Minister for Corrections NSW v Elomar

Supreme Court of NSW|2016-07-29|Before: Bellew J

INTRODUCTION

By summons filed on 20 July 2016 the Minister for Corrections NSW ("the Minister") seeks judicial review of a decision made by the second defendant, the State Parole Authority ("the Authority") to grant parole to Ahmad Elomar ("the first defendant").
The matter first came before me on 21 July 2016, at which time I granted the Minister a temporary stay of the Authority's decision, pending further order of the Court: Minister for Corrections NSW v Elomar (No.1) [2016] NSWSC 1020.
The orders sought by the Minister are opposed by the first defendant, who was the only active defendant in the proceedings. The Authority, along with the third defendant (the Commissioner of Corrective Services) each filed a submitting appearance.
It should be stressed at the outset that it is not my function to review the merits of the Authority's determination to grant parole to the first defendant. As was pointed out in Attorney-General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223 (at [4]), the Parliament has vested exclusive responsibility in the Authority to decide whether to release inmates on parole. The role of this Court is to review the legal validity of the Authority's decision. These are not appellate proceedings enabling a general review of the Authority's determination, or enabling a substitution, for that determination, of the order or decision which this Court thinks should have been made: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175.
THE EVIDENCE
The summons was supported by three affidavits of Claudia Pendlebury, solicitor, one dated 20 July 2016 (attached to which was Exh. CP-1) and two dated 21 July 2016 (attached to the first of which was Exh. CP-2). No objection was taken to any of that material.

The first defendant's offending

The following summary of the first defendant's offending is taken from the Authority's reasons (which are Annexure A to the second of Ms Pendlebury's Affidavits of 21 July 2016).
On 15 September 2012 a group of 300 to 400 people gathered in Sydney to protest against what they asserted was the defamation of the Prophet Muhammad. The first defendant was one of a number of persons chanting and marching towards the United States Consulate which was located in Martin Place. This occurred in circumstances where the allegedly defamatory material was a film which was believed to have originated in the United States.
At the time, the first defendant was carrying a sign attached to a wooden pole about 2m long. The sign stated: "Our dead are in paradise, your dead are in hell".
As the protest continued and the crowd moved, the first defendant came to be one of several protestors in a line, facing a line of police officers. One of the police officers was punched in the mouth by one of the protestors, as a consequence of which the officer lost his balance and stumbled forward, causing him to fall out of line with his fellow officers. As that happened, the first defendant raised the pole that he was carrying and brought it down on the officer's head. The blow was delivered forcefully, and caused pain and bleeding. The officer was taken to hospital where his wound was sutured. The first defendant was later identified by his distinctive clothing. He was arrested by police. He resisted that arrest.
The first defendant subsequently pleaded guilty to a charge of reckless wounding and appeared for sentence before Woodburne SC DCJ. He asked her Honour to take into account, on sentence, a number of other charges including resisting arrest and assaulting police.
Her Honour sentenced the first defendant to imprisonment for a period of 4 years and 8 months, comprising a non-parole of 2 years and 6 months and a balance of term of 2 years and 2 months. The first defendant's non-parole period expired on 8 March 2016. His sentence will expire on 8 May 2018. He presently remains in custody.

Matters leading up to the proceedings before the Authority

On 25 February 2016 a pre-release report was prepared by Kathleen Parker, a Community Corrections Officer. Ms Parker recommended that the first defendant be released on parole. That recommendation was supported by Linda Burridge, the Manager of Goulburn Community Corrections.
The matter was due to come before the Authority for consideration on 5 May 2016. However on 4 May 2016 Lyn Howse, a Senior Project Officer at the Serious Offenders Assessment Unit, wrote to the Authority regarding the first defendant's suggested inclusion in a program known as "PRISM" (Proactive Integrated Support Model). The letter from Ms Howse included the following:
"Advice has been received that Mr Elomar is to be approached during the week commencing 9 May 2016 by psychological staff from (PRISM) to ascertain his interest and consent in engaging with the project in custody.
PRISM is a pilot assessment and early intervention project for inmates who are identified as at-risk of violent extremism. …. Given Mr Elomar is to be approached within the next week in relation to his obtaining his consent to participate in PRISM, the Authority may wish to stand over further consideration of this matter until Mr Elomar's position in relation to participating in the program can be ascertained".
On 5 May 2016, the Authority formed an initial intention to grant the first defendant parole. At that stage, the matter was stood over until 17 June 2016 for the hearing of submissions.
In a supplementary pre-release report of 16 June 2016, Brett Bannerman, the Unit Leader at the Goulburn Community Corrections Office, supported the first defendant's release on parole. Mr Bannerman stated (inter alia):
"Mr Elomar's acceptance into the PRISM program would suggest it has been concluded that he has been radicalised. This determination may well be based on documents not available to Community Corrections so it is difficult for Community Corrections to comment on this conclusion. In interviews with Community Corrections Mr Elomar does not give the impression that he holds extreme views, although it is conceded that PRISM staff are more qualified in this area. Whilst it is acknowledged that Mr Elomar may be verbally inappropriate he is capable of recognising this and apologising for his actions.
Given the above Community Corrections still recommend release to Parole".
Mr Bannerman's recommendation was again supported by Ms. Burridge.
The proceedings before the Authority
The matter came before the Authority on 17 June 2016. The Chairperson confirmed (T1 L35) that the Authority had the s. 194 material before it. The summaries set out at [6] and [7] above were provided to the parties.
Dr Klamer, a Forensic Psychologist engaged in the implementation and conduct of the PRISM program, gave evidence before the Authority. She explained (T3 L31 and following) that she had met with the first defendant with a view to obtaining his consent to participate in the program. She said (T4 L9) that she had been made aware that he was "happy to participate" and explained (T4 L22-40) that the program was directed towards assessing and assisting offenders who had been "identified as having already been radicalised". She said that the purpose of the program included "disengaging" participants from wanting to engage in politically or religiously motivated violence, with a view to "reintegrating them into a positive, pro-social support model when they are released into the community". Importantly however, Dr Klamer explained (T 12 L17-19) that the first defendant had not undergone any formal assessment for the purpose of determining his inclusion in the program on the basis that he was in fact radicalised. She also stated (T12 L23-28) that whilst there was existing material available which provided some information, there was "an amount of information that we're still yet to gain".
Mr Bannerman (who, as noted at [22] above, provided a supplementary report recommending the release of the first defendant on parole) also gave evidence before the Authority. He said (T16 L22-31) that the proposal for the first defendant's post release supervision would, if implemented, effectively provide an individualised plan of the kind which Dr Klamer thought appropriate. Whilst he accepted that the proposal for the first defendant's release did not include a detailed psychological assessment, he said (T16 L33-42) that there would nevertheless be a high level of professional expertise available to assist the first defendant in the event that he was released.
Mr Bannerman confirmed (T17 L25-35) that he had taken into account the fact that there was a link between "the religious nature" of the demonstration in which the first defendant had participated, and the charge which had been laid against him. To the extent that his report referred to the first defendant's radical beliefs (in the paragraph set out at [22] above) Mr Bannerman explained (T18 L9-16) that he had concluded that "PRISM's involvement meant there must have been some information suggesting that the first defendant had radicalised beliefs or (was) at the risk of being radicalised". However, he went on to say (T18 L23-27) that the first defendant had never expressed such views to him, and that any conclusions he had expressed in his report in this regard were "by virtue of the fact that PRISM (was) involved". As previously noted, the first defendant has not actually been assessed for inclusion in the PRISM program.
Further material provided to the Authority
A further report was prepared by Mr Bannerman on 14 July 2016. He adhered to his earlier recommendation that the first defendant be released on parole. That recommendation was again supported by Ms Burridge, who concluded (inter alia) that the first defendant "can be managed effectively in the community".
The Authority's determination
On 15 July 2016, the Authority authorised and directed that the first defendant be released on parole no later than 22 July 2016. Such release was expressed to be subject to a number of conditions.
I have considered particular aspects of Authority's determination when dealing with the individual grounds of appeal relied upon by the Minister.
THE GROUNDS OF APPEAL
The summons filed by the Minister sets out four separate grounds. Ground 1 asserts that the Authority erroneously determined that the release of the offender was appropriate in the public interest. Grounds 2(a), (b) and (c) assert what are said to be specific errors on the part of the Authority.
It was made clear in the course of the hearing (T1 L36 to T3 L14) that the Minister put his case on the basis that the Authority erred in the manner which was asserted in Ground 1 because of the specific errors pleaded in each of grounds 2(a), (b) and (c). The three latter grounds are therefore encompassed by Ground 1. In these circumstances it is appropriate to go directly to Ground 2(a).

GROUND 2(a) - The Authority ignored relevant material (namely the confidential information from the NSW Police Force and the Department of Corrective Services)

The Authority's determination

I have already made reference to the fact that the Authority had before it the s. 194 material, and the summaries set out at [6] and [7] above. For the purposes of this ground the totality of that material constituted the "relevant material' which the Authority is said to have ignored.
Having reviewed some of the background facts, the Authority stated (at T4 L46):
"The Authority must not make a parole order unless it is satisfied on the balance of probabilities that the release of the offender is appropriate in the public interest: the Act s. 135(1). In deciding whether release is appropriate in the public interest, the Authority must have regard to the matters listed in subs. (2). Mr Fernandez submitted that it was not appropriate in the public interest to grant parole. Three matters were relied on, namely: 1. matters sought to be placed before the Authority pursuant to s. 194 of the Act; 2. the offender's radical beliefs; and 3. the offender's difficult behaviour in custody.
At T5 L11-17 the Authority determined as follows: "… Mr Fernandez submitted that the material put before the Authority clearly demonstrated why the need to protect the safety of the community must result in the refusal of parole. It is not open to the Authority to reveal the material referred to. For that reason, the Authority may not expose its process of reasoning. We have considered the material referred to, it does not demonstrate that the need to protect the safety of the community makes a grant of parole inappropriate in the public interest" (emphasis added).
The italicised portion of that passage is the focus of this ground.

Submissions of the Minister

In support of this ground, counsel for the Minister relied on s. 135 of the Act which provides (inter alia) as follows: (1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest. (2) In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters: (a) the need to protect the safety of the community, (b) the need to maintain public confidence in the administration of justice, (c) the nature and circumstances of the offence to which the offender's sentence relates, (d) any relevant comments made by the sentencing court, (e) the offender's criminal history, (f) the likelihood of the offender being able to adapt to normal lawful community life, (g) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole, (h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A, (i) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council, the Commissioner or any other authority of the State, (ia) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to an offender's sentence on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998 , the circumstances of that decision to decline to make the order, (j) such guidelines as are in force under section 185A, (k) such other matters as the Parole Authority considers relevant.
Counsel for the Minister submitted that the summaries provided a clear basis upon which to satisfy the Authority that the threat to the community was such that the first defendant ought not be released.
In advancing that submission counsel emphasised the italicised part of the Authority's reasons set out at [35] above. It was submitted that the conclusion expressed therein was inconsistent with, and directly contradicted by, the summaries of the s. 194 material. It was pointed out that the Authority had made no reference to the s. 194 material having been considered and rejected, but had simply referred to the fact that the material had been considered, before proceeding to express the conclusion set out at [35]. It was submitted that in these circumstances, and despite the fact that the Authority's reasons made express reference to the fact that the s. 194 material had been considered, the only conclusion available was that the Authority had in fact ignored it.
It was further submitted that the Authority had failed to articulate the basis upon which it had reached its finding. It was submitted that to properly do so "required more than the one sentence that was contained in that part of the judgment". In this regard it is relevant to observe that the Minister did not assert, as a specific ground of appeal, that the Authority's reasons were inadequate.
Counsel for the Minister highlighted, in particular, the summary prepared by Det. Chief Inspector Gawel (set out at [7] above). He submitted that this could not be reconciled with, or explained by, the Authority's finding that the material before it did not demonstrate that the need to protect the safety of the public rendered a grant of parole inappropriate.
Finally, counsel for the Minister drew attention to s. 137C of the Act (which gives the Authority power to examine an offender) and s. 193 of the Act (which gives any member of the Authority free and unfettered access to particular classes of offender, including any offender confined in a correctional centre whose release is being considered by the Authority). Counsel pointed out that the Authority did not, at any time, avail itself of these powers.

Submissions of the first defendant

Senior counsel for the first defendant submitted that the language in which the Authority expressed its conclusions clearly indicated that it had considered the material which was before it, and that there was no basis upon which to reach a conclusion that such material had been ignored.
Counsel further submitted (in respect of each ground of appeal) that what the Minister in fact sought in these proceedings was an impermissible merits review. He submitted that the Authority was not bound to do any more than fairly consider the material, and reach a conclusion based upon its contents. It was submitted that it was a matter for the Authority to accept or reject such material as was before it and, in the event that such material was accepted, to then determine what weight was to be attached to it. It was submitted, in particular, that the Authority was not bound to accept the opinions which were expressed by the police in the summaries set out at [6] and [7].

Consideration

The gravamen of this ground of appeal is that the Authority ignored relevant material, namely the s. 194 material and the summaries. Accepting that such material was relevant to the authority's determination, the plurality in Craig (supra) observed (at 179):
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it" (emphasis added).
Whilst error may be constituted by a decision maker ignoring relevant material, for the reasons that follow I am not satisfied that Ground 2(a) is made out.
The essence of the submissions advanced on behalf of the Minister was that the content of the summaries (and, by inference, the content of the s. 194 material), and in particular the opinions expressed in them, were so obviously contrary to the conclusion which was reached by the Authority that they must have been ignored. Those submissions overlook the fact that the s. 194 material and the summaries were not the only material placed before the Authority to assist it in reaching a conclusion. The Authority made reference to some of that material in its determination.
Moreover, the submissions made on behalf of the Minister tended to proceed on the assumption that the Authority was bound to accept the content of the s. 194 material and summaries, and the opinions contained in them. That is not so. Whilst the Authority was bound to consider such relevant material which was placed before it (which obviously included the s. 194 material and the summaries) it was not bound to accept it. It was a matter for the Authority to consider and evaluate all of the relevant material before it, before coming to the conclusion required under s. 135 of the Act.
Further, inherent in the submissions advanced on behalf of the Minister in support of this ground was the proposition that this Court should simply ignore the express statement made by the Authority that the material in question was, in fact, considered. Once it is recognised that the Authority was not bound to accept any of the material before it, there is no basis upon which to ignore what the Authority said. As I have noted, there is no complaint that the Authority's reasons were not adequate.
Finally, I have had regard to the powers contained in ss. 137C and 193 of the Act to which my attention was drawn. Those powers were not exercised by the Authority in this case. However in my view, that has no bearing whatsoever on the question of whether the asserted error of law in Ground 2(a) is made out. Apart from any other consideration, the exercise of the powers contained in s. 137C and 193 is not mandatory.
For all of these reasons, Ground 2(a) fails.

GROUND 2(b) - The Authority made findings of fact that were not available on the material before it

The Authority's determination

Commencing at T5 L19, the Authority stated:
"Mr Fernandez gave particulars of circumstances relied on to show that the offender has radical beliefs. Paragraph 17 of the Commissioner's written submissions was as follows:
The offender's concerning behaviour in relation to radical beliefs includes: 1. on 27 November 2015 the offender was named him (sic) as part of a group of Muslim inmates at Goulburn Correctional Centre, known as Shura, who administer Sharia Law in the Middle Eastern courtyard; 2. on 13 September 2015 the offender was placed in the vicinity of a conversation had by Middle Eastern inmates in relation to beheading a person; 3. on 1 September 2015 the offender was linked him (sic) to extremist ideology; 4. on 24 August 2015 and 1 June 2016 the offender had photographs of his brother who allegedly died overseas fighting with a terrorist group Islamic State (IS) and the offender regards that brother as a martyr. 5. We have considered the statements. Save for para (d), the amount individually and collectively to no more than assertions presumably based on the offender's proximity to the other inmates referred to. That proximity is, we assume, not a matter of choice for the offender. None of the statements contains any factual basis for its conclusion. There is no description of anything the offender has said to warrant the conclusion. There is no description of anything the offender has done except occupy the portion of the premises occupied by other inmates. As to para (d) we would not regard the offender's keeping of photographs of his dead brother as indicated his holding any radical belief. The remainder of the statement is tendentious and contains no statement of anything said by the offender to demonstrate any belief. 6. We note the statement of the reporting officer in the Community Corrections Supplementary Report of 16 June 2016 that the offender does not give the impression that he holds extreme views".
Having set out these matters, the Authority concluded (at T6 L12-13): "We are not satisfied that (the first defendant) has radical beliefs, though we consider that if he remains where he is, he may be influenced by inmates who have".
The Authority then concluded (at T9 L31-34): "We also note that the offender is confined in the presence of inmates who may have radical beliefs. We consider that the community will be better served if he is removed from the possibility of their influence".
It is the Minister's position that the italicised passage at [53], and the entirety of the passage at [54], incorporate findings which were made by the Authority in the absence of any evidence to support them. It is noted that the opening part of the passage at [53] (as to the first defendant's radical beliefs) is the subject of Ground 2(c).
Submissions of the Minister
It was submitted on behalf of the Minister that the Authority erred in finding that the material before it amounted to no more than assertions. It was further submitted that nowhere in the material before the Authority was there any support for the conclusions reached by the Authority which are the subject of this ground.
Submissions of the first defendant
Counsel for the first defendant again submitted that findings of fact, and questions of weight, were matters for the Authority to determine on all of the material which was before it. He further submitted that when viewed as a whole, there was material before the Authority which supported the conclusions which had been reached.
Counsel for the first defendant also pointed out that the Authority was not a Court, and was therefore not bound by the rules of evidence. It was submitted that each of the impugned findings was open to the Authority on the material before it.

Consideration

The Minister's position in respect of this ground is that there was no material to support either of the impugned findings of the Authority. In Insurance Australia Limited v O'Shannessy [2015] NSWSC 1047; (2015) 72 MVR 1, Beech-Jones J considered the principles to be applied when a "no evidence" ground is advanced in proceedings for judicial review. Commencing at [56] his Honour said:
[56] There remains to be considered the complaint that there was no evidence to support the challenged finding.
[57] A review of the authorities reveals that supervisory courts apply one of three standards of review to facts found by inferior courts and tribunals depending on the jurisdiction exercised by both.
[58] The first is applicable to facts the objective determination of which was a matter upon which the inferior court or tribunal's jurisdiction depended (Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; 46 NSWLR 55 at [36]-[38] per Spigelman CJ). If the facts are of that character then this court can determine them (Timbarraid). With inferior courts there is a strong presumption against construing legislation as making "the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist" because of the inconvenience that the former would occasion (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; 59 CLR 369 at p 391 per Dixon J). A similar approach has been adopted with administrative decisions (QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [27]-[29] per Basten JA).
[59] The second standard is applicable where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction of the inferior court or tribunal depended. The state of satisfaction or opinion is a "jurisdictional fact" (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 ; 244 CLR 144 at [57] per French CJ). If the power is so conditioned then facts found in the course of forming that opinion or satisfaction can be reviewed on a wider basis than merely enquiring as to whether there was some evidence to support them (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; 197 CLR 611 ("Eshetu") at [138] ff per Gummow J). I discuss the scope of review further below, but it suffices to state that the opinion or state of satisfaction can be reviewed if "the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration, Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; 78 ALJR 992 at [38] (per Gummow and Hayne JJ; "SGLB"); Eshetu at [145] per Gummow J; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30 ; 198 ALR 59 at [34] and [37] per McHugh and Gummow JJ; "S20"). If this is demonstrated then relief under s 69 for jurisdictional error can be granted.
[60] The third standard is applicable if the challenged facts do not constitute part of the formation of such an opinion or satisfaction. Depending on the basis for judicial review such findings can only be challenged if there was no evidence to support them (Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; 170 CLR 321 at p 355-356 per Mason CJ ("Bond"); Eshetu at [138] per Gummow J; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; 199 CLR 135 at [59] per Gaudron J; "Enfield"). In Bond Mason CJ stated (at p 356):
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
[61] Similarly in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Glass JA explained that a finding of fact for which there was some evidence to support it revealed no error of law even though it was made by "ignor[ing] the probative force of the evidence which is all one way" or could be described as "perverse" or one which "no reasonable person could have made" (at pp 155-156). In L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] Basten JA noted that one consequence of this approach was that "where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a 'no evidence' ground of review".
The factual conclusions which are challenged under this ground formed part of the opinion formed by the Authority pursuant to s. 135 of the Act. Accordingly, having regard to the three categories formulated by Beech-Jones J in O'Shannessy, establishing this ground depends upon this Court being satisfied that, bearing in mind the material which was before the Authority, its determination was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds.
The written submissions to which the Authority referred in its reasons (in the passage at [52] above) were seemingly based on the contents of the redacted intelligence reports (referred to at [10]) which formed part of the material before the Authority. It was a matter for the Authority to accept or reject what was contained in that material, as well as all of the other material before it. It was also a matter for the Authority to ascribe such weight as it saw fit to the material that it accepted.
In my view, there is nothing inaccurate about the Authority's description of the material in [10] as "assertions". The very nature of the material bears out such a description.
Further, the Authority's conclusion that if the first defendant remained in custody he might be influenced by inmates who had radical beliefs was, bearing in mind the material before the Authority, neither irrational nor illogical. The conclusion was supported by references in the material to (inter alia) the first defendant being kept in proximity to other inmates who administered Sharia Law.
Finally, and again having regard to the material placed before it, the Authority's conclusion that the community would be better served if the first defendant was removed from the possible influence of others was neither irrational nor illogical. It was supported by (inter alia) the pre-release report of 1 March 2016 which noted that in the event of the first defendant's release, he would (inter alia): 1. reside with members of his family at an address which had been assessed as suitable; 2. be subject to regular supervision; 3. resume employment.
For these reasons, Ground 2(b) is not made out.

GROUND 2(c) - The Authority made an erroneous finding of fact based on the material that was available before the Authority, namely that the first defendant was not radicalised

The Authority's determination

The Authority's determination which is the subject of this ground appears in the first sentence of the passage at [53] above, namely:
"We are not satisfied that (the first defendant) has radical beliefs …."
That determination followed the Authority's evaluation of some of the evidence as set out at [52] above.

Submissions of the Minister

In support of this Ground, the Minister pointed to the evidence of Dr Klamer and Mr Bannerman concerning the placement of the first defendant in the PRISM program. Aspects of that evidence are summarised at [22]-[28] above.
The Minister also pointed to the material referred to in [10] above, to which reference was made by the Authority in the passage set out at [52] above.
The primary submission advanced on behalf of the Minister was based upon the evidence of Dr Klamer. In particular, it was submitted that "the fact that the first defendant was assessed, and found suitable, for the PRISM program, was a sufficient basis for a finding that he held radical beliefs".
It was again submitted that the Authority had erred in concluding that the material in [10] above amounted only to assertions, and that such material provided a sufficient basis upon which to conclude that the first defendant held radical beliefs.

Submissions of the first defendant

Counsel for the first defendant repeated his submission that findings of fact and questions of weight were matters for the Authority, having regard to the material before it. To the extent that the Minister relied upon the evidence of Dr Klamer, counsel for the first defendant pointed out that on the basis of that evidence, there had been no adverse assessment of the first defendant at any time. It was submitted that properly understood, Mr Klamer's evidence did not support the Minister's position.
It was further submitted that even if there was some proper basis on which to conclude that the first defendant held some particular belief(s), that was not determinative. It was submitted that a great deal more would have to be demonstrated, including the nature and extent of any belief(s) that he held, and how such belief(s) might bear upon suitability for parole having regard to the applicable statutory criteria.
It was submitted that the material before the Authority did not support the proposition that the first defendant had, or has, any radical belief(s) or was "radicalized", such that there was a real or even hypothetical risk to public safety. It was further submitted that having regard to all of the information before the Authority, along with its consideration of the factors set out in s. 135, its determination was not affected by any error as would warrant the intervention of this Court. It was submitted that the Authority, in coming to the conclusion that it did, plainly had regard to issues of public safety.

Consideration

To the extent that Mr Bannerman's report of 16 June 2016 made reference to the fact that the first defendant's "acceptance into the PRISM program would suggest it has been concluded that he has been radicalised", Mr Bannerman said (T18 L23-27) that he made this statement by virtue of the fact that "PRISM (was) involved". Dr Klamer made it clear (T3 L31-39) that it was she who approached the first defendant to offer him participation in the PRISM program. Whilst she explained (T4 L19-24) that the PRISM program was directed to assisting "offenders … identified as either at a risk of radicalisation or who have been identified as having already been radicalised", it is clear from her evidence in cross-examination (at T12 L17-19) that no assessment of the first defendant has ever been undertaken to determine whether, at the present time, he falls into either category.
It follows that the Minister's reliance on the evidence of Dr Klamer as a factor which rendered the Authority's conclusion erroneous, was misplaced. The submission advanced on behalf of the Minister in this respect was based upon a false premise, namely that the first defendant had actually been assessed for inclusion in the PRISM program, and had therefore been assessed as radicalised or at risk of radicalisation. The evidence of Dr Klamer makes it clear that although the first defendant was approached, and his possible inclusion in the PRISM program discussed with him, no assessment has ever taken place.
Further, even if the material referred to in [10] above provided some basis on which to conclude that the first defendant held extreme beliefs, the Authority was not bound to accept it. The Minister's submissions again overlook the fact that this was not the only material before the Authority which went to that issue. It is evident from its determination that the Authority took into account, as it was entitled to do, the observation made by Mr Bannerman that the first defendant had not expressed any radical views to him. That was consistent with his report (at [22]) where it was noted that the first defendant did not give the impression that he held such views.
For these reasons, Ground 2(c) is not made out.
ORDERS
As explained at [31]-[32] above, Ground 1 necessarily relied upon one of Grounds 2(a), (b) or (c) being made out. As none of those grounds have been established, Ground 1 must also fail.
It was conceded by counsel for the Minister that in the event that the proceedings were dismissed, there was no reason why costs should not follow the event.
Accordingly, I make the following orders: 1. The order made on 21 July 2016 granting a stay of the decision of the Second Defendant to release the First Defendant on parole no later than 22 July 2016 is vacated. 2. The proceedings are dismissed. 3. The plaintiff is to pay the first defendant's costs of the proceedings, as agreed or assessed. 4. Exhibit A is to be returned forthwith to the Second Defendant.

Amendments 04 August 2016 - Paragraph [7] amended from "16 June 2006" to "16 June 2016" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2016

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (17)

Cited By (1)