Murray v NSW State Parole Authority

CATCHWORDS : ADMINISTRATIVE LAW - revocation of parole by Parole Authority - insufficiency of reasons - wrong test - difference between test for grant of parole and revocation - difference between "unlikely to be able to adapt" and "inability to adapt" - no evidence - orders issued.

Crimes (Administration of Sentences) Act 1999 LEGISLATION CITED : Crimes (Administration of Sentences) Regulation 2008 Crimes (Sentencing Procedure) Act 1999

Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 CASES CITED : Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126; (1940) 57 WN(NSW) 53 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Esho v Parole Board Authority of NSW [2006] NSWSC 304 Ex parte Hebburn Ltd v Kearsley Shire Council (1947) 47 SR(NSW) 416; (1947) 64 WN(NSW) 107

PARTIES : David James Murray (Plaintiff) NSW State Parole Authority (Defendant)

COUNSEL : A Francis (Plaintiff) P Dwyer (Defendant)

SOLICITORS : Legal Aid (Plaintiff) Crown Solicitor's Office (Defendant)

LOWER COURT JURISDICTION : State Parole Authority of New South Wales

LOWER COURT JUDICIAL OFFICER : Mr Pike (Chairperson)

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

30112/08 David James Murray v NSW State Parole Authority

JUDGMENT 1 HIS HONOUR: David James Murray is currently a prisoner. He was convicted on 27 July 2007 for malicious wounding in company and sentenced to a total sentence of three years' imprisonment with a non-parole period of two years expiring on 29 March 2008. Pursuant to the terms of s 50 of the Crimes (Sentencing Procedure) Act 1999, the Court, in imposing the sentence of imprisonment of three years or less, was required to make an order directing Mr Murray's release on parole on 29 March 2008, being the end of the non-parole period. Thus, Mr Murray was granted parole by order of the Court and the operation of s 50 of the Crimes (Sentencing Procedure) Act. 2 On 20 March 2008, the Parole Authority of New South Wales ("the Authority") issued an instrument revoking Mr Murray's parole. The instrument stated that it was issued because Mr Murray was "unable to adapt to normal lawful community life." No further reasons were given. 3 On the same date, the Authority notified Mr Murray that the issue of the revocation of his parole, initially granted by the District Court on 27 July 2007, was to be considered (and Mr Murray could be heard) on 28 April 2008. 4 On 28 April 2008, the Authority confirmed the order made on 20 March 2008 and the reason for said order. 5 At the hearing on 28 April 2008, the Chairperson expressed more fully the reasons of the Authority. He also indicated the reasons for the order made on 20 March 2008. The Chairperson said: "On 20 May [sic, should read March] 2008 the Parole Authority revoked Mr Murray's parole prior to release on the grounds that he was unlikely to adapt to normal lawful community life, one of the few grounds which justify a revocation prior to release. That determination has been reviewed today….

No evidence was given on oath, however, Mr McKinnon indicated that Probation and Parole Service are still of the view that he is unlikely to adapt to a normal lawful community life….

On all the information currently before the Authority, the Authority is advised that he is unlikely to adapt to normal community life and the revocation order of 20 March 2008 is to stand for the reasons stated." Legislative Framework 6 As stated already, s 50 of the Crimes (Sentencing Procedure) Act provides, in fixing a sentence of three years or less, for a court to grant parole on the expiry of the non-parole period. 7 The Authority is, pursuant to the terms of the Crimes (Administration of Sentences) Act 1999 ("the Act") entitled to revoke a parole order. More generally, the Authority is entitled to make a parole order. It is necessary to compare the two duties. Each of the duties is contained within Part 6 of the Act. The Act prohibits the release of a prisoner on parole otherwise than in accordance with a parole order directing the release of the prisoner/offender. Section 128 of the Act imposes conditions on parole being standard conditions and additional conditions imposed, inter alia, by the Authority. The Act sets out some standard conditions and other conditions that may be imposed. Section 138 of the Act requires the Authority to make an order directing an offender's release, as soon as practicable after deciding to release the person on parole. However, s 135 prohibits the Authority from making a parole order unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest. Subsection 135(2) of the Act establishes mandatory criteria that inform the exercise of the power by the Authority. 8 Subsection 135(2) of the Crimes (Administration of Sentences) Act is in the following terms: "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." 9 It is especially relevant to the current proceedings that paragraph (f) of s 135(2) of the Act requires consideration of "the likelihood of the offender being able to adapt to normal lawful community life". 10 Once an order for parole has been granted (which, as explained, in the case of a sentence of three years or less is by order of the Court fixing sentence), the Authority has the discretion, pursuant to the terms of s 130 of the Crimes (Administration of Sentences) Act "in such circumstances as may be prescribed by the Regulations" to revoke a parole order at any time before the offender is released. Subsection 130(1) of the Act is in the following terms: "The Parole Authority may, by order in writing and in such circumstances as may be prescribed by the regulations, revoke a parole order at any time before the offender to whom the order relates is released under the order." 11 As can be seen from the above provision, the discretion reposed in the Authority to revoke a parole order is conditioned by the manner of its revocation (i.e. by order in writing) and conditioned by the existence of the prescribed circumstances. Relevantly, Regulation 232 of the Crimes (Administration of Sentences) Regulation 2008 provides: "232(1) For the purposes of section 130 of the Act, the following circumstances are prescribed as circumstances in which the Parole Authority may revoke a parole order: (a) circumstances in which the offender requests that the order be revoked, (b) circumstances in which the Parole Authority decides, before releasing the offender, that the offender is unable to adapt to normal lawful community life, (c) circumstances in which the Parole Authority decides that satisfactory accommodation arrangements or post-release plans have not been made or are not able to be made, (d) circumstances in which: (i) a request is made under section 172 of the Act, or a direction is given by a court (whether or not under the Act), for the Parole Authority to consider whether the order should be revoked on a specified ground, and (ii) the Parole Authority decides that the order should be revoked on that ground." 12 Most relevantly for the purpose of these proceedings, the requirement for revocation of a parole order is a circumstance in which the Authority decides "that the offender is unable to adapt to normal lawful community life". 13 The comparison between the relevant conditions for revocation and the relevant conditions for grant of a parole order may make for fine distinctions. However, the Authority, in revoking the parole, had regard to the "likelihood of adaptation" to normal lawful community life, whereas in order to revoke a parole order the Authority must be satisfied that the offender is "unable to adapt" to normal lawful community life. Relief Sought 14 The relief sought by Mr Murray in the summons filed on 25 August 2008 are orders in the nature of prerogative relief, namely, certiorari and mandamus. Prohibition, or an order in the nature of prohibition, has not been sought. The grounds of the order (incorrectly described as an "appeal") are:

(i) Error of law on the face of the record by the absence to give proper and adequate reasons for the decision;

(ii) Error of law on the face of the record on the basis that there was no evidence upon which the Authority could conclude that the plaintiff was unable to adapt to community life. 15 The Authority, most appropriately, submits to any order of the Court, save as to an order for costs. The Attorney General appears as contradictor and/or amicus curiae, for which appearance the Court is most grateful and which appearance is most appropriate. 16 The Attorney General concedes the first ground, namely that there are insufficient reasons for the decision. Regardless of the concession, it is necessary for the Court, in order to grant such an order, to be satisfied that such is the case. 17 The Attorney General does not concede that there was insufficient evidence upon which the Authority was able to conclude that the plaintiff was unable to adapt to community life. 18 During the course of argument, it was clarified that the second ground (the absence of evidence) related to the determination by the Authority that Mr Murray was "unable to adapt to community life" in circumstances where the Authority considered, and had evidence confined to, the "likelihood" that Mr Murray would adapt to community life. 19 The ground, properly understood, is partly based upon the absence of evidence for the criterion necessary for revocation of the parole order, but otherwise based upon the proposition that such evidence as was adduced (and the consideration of it) disclosed the use by the Authority of the wrong test. Ground 1: Absence of Reasons 20 There is a requirement on the Authority to give reasons for its decision, which decision, albeit in a more limited way than prerogative relief, can be the subject of appeal. The adequacy of reasons will depend upon the circumstances of the particular matter being decided and the nature of the tribunal deciding it. Reasons will be insufficient if, objectively ascertained, an appeal court would be unable to ascertain the reasoning of the decision maker upon which the decision is based or if justice is not seen to have been done. 21 The requirement to publish reasons is not satisfied by the publication of a conclusion of fact that does not allow for an ascertainment of the reasoning that gave rise to the conclusion. Thus, the statement of a conclusion that an offender "is unable to adapt to normal lawful community life", without any expression of the basis upon which such conclusion has been reached, is not the publication of sufficient reasons. 22 During the course of the trial, discussion occurred as to the distinction between the revocation given on 20 March 2008 and the confirmation on 28 April 2008. It is unnecessary, in order to determine this summons, for the Court to discuss the distinction between an interim revocation and the confirmation of that interim revocation on an indefinite basis. 23 The sufficiency of reasons was discussed by Harrison J in Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270. At [41] his Honour said: "[41] In Insurance Manufacturers of Australia Pty Ltd v Vandermeer [2007] VSC 28 Kaye J said:

'[11] The requirement that a judge or magistrate, in an appropriate case, give reasons for judgment is a well established and longstanding principle of law. The reasons given for that requirement are generally twofold. First, in cases in which an appeal lies, the provision of the reasons for judgment identifies for the appellate court the reasoning and basis upon which the decision under appeal was made. Thus in Pettitt v Dunkley, Moffitt JA stated:

"The reason why the judicial obligation to give reasons in an appropriate case exists, is, that where an appeal is provided, the trial at first instance does not exhaust the rights which parties have. Just as an express statutory requirement to find facts and give a decision on the particular question of law which arises is directed to ensuring that the right of appeal in case of error of law is effective, so any general judicial duty to give reasons is similarly directed. ... [T]he duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have."

[12] The second reason for the requirement to provide reasons is that a failure by a judge to provide such reasons can engender a real sense of grievance by the losing party, who is left ignorant as to why the decision, adverse to its interest, has been made. Allied to that reason is the public interest in maintaining public acceptance of judicial decisions and the integrity of the judicial process.

[13] Those two reasons led Gray J, who delivered the leading judgment of the Full Court of Victoria in Sun Alliance Insurance v Massoud , to identify the two fundamental criteria, which his Honour considered were critical to the provision of adequate reasons by a judicial officer. His Honour stated:

"In my opinion, the decided cases show that the law has developed in a way which obliges a court from which an appeal lies to state adequate reasons for its decision.

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if ... -

(a) The appeal court is unable to ascertain the reasoning upon which the decision is based; or

The two above stated criteria of inadequacy will frequent overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."

[14] In Beale v Government Insurance Office of NSW , Meagher JA, in considering an appeal from a decision of a district court judge, stated that there are three fundamental elements of an adequate statement of reasons, namely: the judge should refer to relevant evidence; the judge should set out any material findings of fact and conclusions or ultimate findings of fact reached; and the judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts so found. '

[42] Similar principles were also discussed in Mifsud v Campbell (1990-1991) 21 NSWLR 725 and Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639.

[43] In the present case it is not possible to ascertain the reasoning upon which the defendant's decision is based. This is in contradistinction to the conclusion, or reason why the plaintiff's application for release on parole was refused. As I have observed earlier in these reasons, there is no clear pathway to the conclusion that is ultimately reached, and on one view it is heavily obscured if not totally absent. It cannot in my opinion be said that the defendant, other than in a perfunctory and limited way, made any reference to relevant evidence, set out any material findings of fact and conclusions or ultimate findings of fact reached, or that it provided any reasons for making findings of fact and conclusions, or reasons, in applying the law to the facts as found.

[44] In my opinion, the defendant, whether by choice or obligation, delivered reasons for its decision. In the course of doing so it failed to provide reasons that properly or adequately explained that decision. It seems to me to be sensible, and not contrary to relevant authority, that an administrative body that chooses, or is required, to furnish reasons for a decision, should thereby become exposed to scrutiny in the same way as a judge or magistrate. The wisdom that informs the standard in the latter case could not sensibly be discarded when applied to the particular circumstances of the defendant in the present case. If it were otherwise, an obligation or decision to give reasons would have the potential to degenerate into formulaic repetition and the production of reasons of no practical use. Nor is this in conflict with the very important notion, explained by McClellan CJ at CL in Hall (supra), that reasons of an administrative body such as the defendant should not be examined with a fine tooth comb. In the circumstances, the plaintiff is entitled to an order requiring the defendant to remedy an error of law." 24 With great respect, I adopt the reasoning of Harrison J. 25 As a consequence, and as conceded by the Attorney General, there has been a failure by the Authority to give adequate reasons for the decision. Ground 2: Absence of Evidence / Wrong Test 26 As recited, the reasoning of the Authority for the revocation on 20 March 2008 and the confirmation of that revocation on 28 April 2008 was expressed in the reasons of the Chairperson delivered, ex tempore, on 28 April 2008. The Court must be extremely careful not to impose upon the Authority impossible conditions. Further, like all ex tempore judgments, it is impermissible for a Court to comb through the judgment for the purpose of finding infelicitous expressions upon which orders would be based. Nevertheless, the use of the expression "unlikely to adapt" as the basis for the revocation initially made on 20 March 2008 was a reason repeated on a number of occasions. Indeed, it is the only reason expressed by the Chairperson for each decision on revocation, namely, 20 March 2008 and 28 April 2008. 27 This is an understandable position. The only evidence before the Tribunal was that, at its highest, Mr Murray was "unlikely to adapt to normal lawful community life", not that he was "unable" so to do, nor even "unlikely to be able to adapt". 28 That evidence was expressed a number of ways. The Pre-Sentence Report (a report available to the sentencing judge who granted parole) dealt with previous breaches of parole and his attitude to supervision. There was a further report entitled the Revocation Prior to Release Report. It recommended that Mr Murray's parole be revoked prior to release. It did so on the basis that the Authority may decide to: "vary Mr Murray's parole order to that of a supervised order … or … revoke Mr Murray's parole order prior to release." 29 In evidence, Mr McKinnon, on behalf of the Probation and Parole Service, made a number of comments. Unfortunately because of technical issues associated with the audio equipment, not all of it was heard by the Authority or transcribed. Nevertheless, there is no doubt that Mr McKinnon expressed a dilemma for the Service and expressed the view that Mr Murray was "unlikely to adapt to normal lawful community life if released now". Moreover, while recommending revocation of the parole, the Probation and Parole Service stated that it would be happy if the Authority released Mr Murray on supervised parole and subject to the conditions contained in the Pre-Release Report. Mr McKinnon expressed "reservations that Mr Murray can adapt to normal lawful community life". 30 None of the evidence before the Authority dealt with the capacity of Mr Murray to adapt to such life, only the likelihood that he would or would not adapt. While there may be nice conceptual distinctions between being satisfied on the balance of probabilities of a person's ability, on the one hand, and the likelihood that the person is unable, on the other, the Authority did not express itself in those terms. 31 The power of revocation is conditioned, relevantly, on the satisfaction by the Authority of the incapacity of an offender to adapt. The evidence did not address incapacity. Nor was incapacity the basis of the decision of the Authority. The Authority addressed the likelihood of adapting, not even the likelihood of being able to adapt. 32 On the basis of the foregoing, the Authority has acted in the absence of evidence of the criterion that it must consider and/or has asked itself the wrong question and acted upon the wrong criterion. 33 When the Authority determined the "likelihood" as distinct from "capacity", it asked itself the wrong question and applied a wrong and inadmissible test. As expressed by the High Court of Australia: "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 circumstances, to make an erroneous finding or to reach a mistake in conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds it authority or powers. Such an error of law is a jurisdictional error which would invalidate any order or decision of the tribunal which reflects it." ( Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.) 34 As stated by Jordan CJ: "I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R v Minister of Health [1939] 1 KB 232 at 245-246. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of the statute investing a tribunal with jurisdiction leaves it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply 'a wrong and inadmissible test': Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917; or to 'misconceive its duty', or 'not to apply itself to the question which the law prescribes': R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 242-243; or 'to misunderstand the nature of the opinion which it is to form': R v Connell (1944) 69 CLR 407 at 432; in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to issue of a prerogative writ of mandamus to hear and determine the matter according to law: R v Board of Education [1910] 2 KB 165." ( Ex parte Hebburn Ltd v Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420; (1947) 64 WN(NSW) 107 at 108, per Jordan CJ with whom Davidson and Street JJ concurred.) 35 In the circumstances before the Court, the Authority has asked itself the wrong question or identified the wrong issue and that mistake goes to a fundamental precondition on the exercise of its jurisdiction. Alternatively, it has taken account of an irrelevant consideration. As such, there is jurisdictional error, because the Authority misunderstood the nature of the opinion that it was to form. The exercise of the jurisdiction has been, and remains, constructively unexercised. There is error of law and error of jurisdiction. Prerogative writ, or orders in the nature of prerogative writ, will issue. 36 Further, and in the alternative to the foregoing, there is no basis, on the evidence before the Authority, upon which it could have found that Mr Murray was "unable to adapt to normal lawful community life". 37 Legal principles establish that it is an error of law if findings are made upon which there is no evidence. This is in contradistinction to findings that are irrational or based upon insufficiency of evidence: see Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126; (1940) 57 WN(NSW) 53, per Jordan CJ. It is not sufficient (or a different issue) if the findings are illogical or insufficient. But an absence of evidence to support findings of fact crucial to the determination of the Authority is an error of law, upon which basis prerogative writ (or orders in the nature thereof) will issue: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 (per Mason CJ). (See also Esho v Parole Board Authority of NSW [2006] NSWSC 304 at [28] and following.) 38 As a consequence of the foregoing, I find, also, that the Authority has issued the revocation of parole in the absence of evidence of the criterion upon which it purported to act and/or that it issued the revocation without jurisdiction so to do because it asked itself the wrong question and/or applied the wrong test. As a consequence, prerogative writ, or orders in the nature thereof, shall issue. 39 Certiorari and mandamus (or orders in the nature thereof) are discretionary. Prohibition is not. Because Mr Murray is currently held in custody in circumstances where there is a valid grant of parole, it is at least arguable that prohibition would issue, although not necessarily against the same parties. The Court is not satisfied of any other discretionary issue that would override the implementation of the order of the District Court granting parole. Nevertheless, there was evidence before the Authority, upon which it could have based an order, that such parole be on a supervised or conditional basis. Mr Murray accepted those proposed conditions. 40 Prohibition was not sought and is not granted. Given the specialist nature of the Authority and its particular expertise, it is appropriate that, in the exercise of my discretion, I issue the orders with an effect commencing 12noon Friday 19 September 2008, to allow the Authority the time to consider the conditions appropriate for Mr Murray's release and, to the extent desired, to impose them. 41 In the circumstances, I make the following orders:

(i) An order in the nature of certiorari quashing the determination of the Authority of 20 March 2008 revoking the parole order applicable to David James Murray;

(ii) An order in the nature of certiorari quashing the determination of the Authority of 28 April 2008 confirming the revocation of parole made on 20 March 2008;

(iii) The two above-mentioned orders shall take effect on and from 12noon 19 September 2008;

(iv) The parties have liberty to apply in writing for any further order, including any order for costs. Such application shall be made in writing with accompanying written submissions within seven days of the date hereof and any reply thereto may be filed within a further seven days;

(v) The proceedings are otherwise dismissed.

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