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[2006] NSWSC 1352
Supreme Court of NSW
2006-11-20
Howie J
Original judgment source is linked above.
The applicant sought permission to enter the Sydney CBD to meet with his solicitor. However, he failed to report to this officer as directed later the same day. 37 The second matter arose on 19 May 2006 when again the applicant was alleged to have failed to contact the service as directed. The particulars given are as follows.
On 18 May 2006 a home visit was conducted to the parolee's approved place of residence. Access to the applicant's apartment was gained through the assistance of the caretaker. A card was left under the parolee's front door directing him to contact his supervising officer on 19 May 2006 without fail. He failed to do so. 38 The applicant gave evidence about these allegations before the Authority. There was some confusion in his mind about the two dates but it is obvious that the applicant was asserting that he had an explanation for each of the alleged failures to do what he ought to have done under the conditions of his parole in relation to either reporting or contacting the supervising officer. In relation to the first breach, that is 8 May, the applicant gave evidence that he did report to the officer later that day but that the officer who was supervising him had left. He claimed to have signed in at the office, indicating that he had reported as required. In effect, he was claiming that it was not his fault that the officer had left the office before he could attend. Therefore, on his behalf it was submitted the breach was a technical one, if in fact he had breached his parole condition at all. 39 In relation to the next breach, that is on 19 May, his explanation was that normally a card was placed in his letter box and he received it and complied with it demand. On this occasion, however, the card was placed under the door and went underneath a mat so that he was unaware that the card was present or the obligation to report or contact the office in accordance with the request until two days later when the card was found. He said that he spoke to the officer about this problem and she instructed him to come in the next day, which he did. 40 Again, one of the difficulties is that the parole officer was not called and so she was not cross-examined or questioned about these circumstances and as to whether or not there might have been be some substance in the explanations given by the applicant in evidence before the Authority. Once more the Authority did not deign to give reasons for rejecting the applicant's evidence, if this is what it did. Once more the Authority can be criticised for failing to explain why, in light of the evidence given by the applicant, it determined to continue the revocation order. 41 On its face the statements about which complaint is made are neither false nor misleading. They might become so when one considers the evidence of the applicant and if it were accepted as being true. But even then it may simply be the case that a statement in a report has been explained in circumstances where the applicant is asserting that the apparent breach as set out in the report can be explained and, therefore, should be excused by the Authority. Such a situation does not enliven the jurisdiction of this Court under the relevant statutory provision where the Authority does not accept the explanation or excuse the breach. 42 But once again, notwithstanding that the applicant gave evidence about these matters, the Authority gave, as one of the reasons for taking the stand that it did, his "failure to report". The Authority says nothing to explain why it came to the finding that he had failed to report or why if he did it should be considered as a breach of his parole in light of the evidence given by the applicant. 43 In argument counsel conceded that this was a difficulty for his client and that perhaps, if any relief were available against the orders made by the Authority, it would be relief of an administrative law nature based upon a complaint about the lack of appropriate or proper reasons being given by the Authority in light of the material that was before it. Whether or not such a complaint would in the circumstances of this matter be sufficient for this Court to interfere in the business of the Parole Authority is not for me to determine. I am simply trying to point out the limit of this Court's power to make orders under this section or under s 155. It is however of concern that the Parole Authority gives what, with respect, appear to be insufficient reasons to explain how it came to its decision based upon the material before it. In any event, it does not seem to me that there is any merit in the complaint made in relation to the actual reports. If there is any justifiable complaint, it arises from the reasons given or not given by the Parole Authority to justify its decision. 44 It seems to me, therefore, notwithstanding that perhaps understandably the applicant may feel aggrieved with the situation and that his efforts of reform have gone unacknowledged and his efforts to comply with his parole conditions was not given sufficient weight by the Authority or by the officer perhaps, it is not a matter which can be reviewed by this Court on such an application as before it. Again, this is one of these cases that does raise questions about the effectiveness of this form of application as being any sort of relief to a parolee who has complaints about the procedure adopted or the reasons given or the decision made by the Authority. 45 Criticism of the appropriateness or the effectiveness of this type of procedure for reviewing the decisions of the Authority has been raised before by this Court and by Court of Criminal Appeal. However, it remains and it is for this Court to apply the provisions as best it can to determine the complaints falling under the relevant provisions for whatever good it might ultimately do. 46 In the present case I am of the view that the application should be dismissed. 47 HIS HONOUR: Is there any order for costs?
MORRIS: No, your Honour. 48 HIS HONOUR: I do not make any order for costs. I hand you back that letter.
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Trinh
NSW State Parole Authority
CITATION : Trinh v NSW State Parole Authority [2006] NSWSC 1352
"The Authority is of the view that the revocation order of 2 June 2006 ought to stand for the reasons that were stated, those reasons being your drug use, your failure to report and your failure to obey directions." 8 On 14 August 2006, the applicant made this application asserting that there were statements that were false or misleading in the reports that were placed before the Authority. 9 Section 176 is as follows: 176 Application to Supreme Court by offender (1) If: (a) the Parole Authority revokes a periodic detention order, home detention order or parole order, and (b) the offender to whom the periodic detention order, home detention order or parole order relates alleges that the order has been revoked on the basis of false, misleading or irrelevant information, the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant. (2) The Supreme Court may give such directions with respect to the information as it thinks fit. (3) An application under this section is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application. 10 As far as I am aware, this Court has not yet considered this particular section. However, it is in the same terms as s 155 of that Act and that section has been reviewed on a number of occasions. The most recent review was carried out by Johnson J in a judgment handed down on 17 November 2006, being Lee v The State Parole Authority of New South Wales [2006] NSWSC 1225. In that judgment, Johnson J in some detail considers the section then before him, that is s 155, and a number of authorities, including some of his own, which have considered that section and the extent of the jurisdiction of this Court to review the material before the Authority in relation to the orders made by it. 11 It is unnecessary for present purposes to undertake a further review of the section or the powers of this Court. It is enough to acknowledge the very limited basis upon which this Court has to concern itself with the material placed before the Authority. It should be noted that the Court is not reviewing the actual order that the Authority made. It is not a court of appeal, concerned in any way with the correctness or otherwise of the order made by the Authority. Nor is it a court sitting as an administrative appeal against the proceedings before the Authority or the reasons given by the Authority for the order it made. 12 It is important to note that matter because there continues apparently to be a misunderstanding by persons who have been before the Authority as to the powers of this Court and as to the limited nature of the Court's power to address the proceedings before the Authority. As I have indicated, the Court is limited to a review of the material before the Authority rather than conducting a review of the proceedings before, or the orders made by, the Authority. 13 In the present case the Court has been more fortunate than some other courts that have had to deal with this type of application because the applicant was represented by competent counsel who endeavoured to argue the case with a full appreciation of the limits of this Court's jurisdiction and its powers to intervene in what is in effect the business of the Authority. The Court was much assisted by both oral and written arguments made on the applicant's behalf. 14 Initially there are a number of bases upon which it was said that the material before the Authority contained either false statements or misleading statements but sensibly, if I might say so and with due respect to this Court's jurisdiction, the applicant's counsel sought only to argue a very limited number of the matters that had been initially set out as being misleading or false. 15 The applicant should understand that the only arguable matters were those put forward to the Court on the applicant's behalf and a number of the matters raised initially were either simply unarguable or were irrelevant to the ultimate decision made by the Parole Authority and, therefore, could not be the subject of any relief given by this Court. 16 However, with due regard to the applicant's concern that in some way he was mistreated by the Authority or that the Authority's decision was inappropriate, I received a letter from the St Vincent De Paul Society, a letter that was before the Authority and was relevant to one of the significant issues before the Authority which has been the subject of complaint and that is, the applicant's use of drugs while subject to the parole order. The letter, strictly speaking, was not admissible and counsel conceded so much. However, simply so that the applicant is aware that this Court understands his frustration with the decision of the Authority and why he believes it is unjust and inappropriate, I had received the letter and am aware of its contents and aware how that might reflect upon the material about which complaint is made. 17 The first matter that was raised on the applicant's behalf was a complaint that a piece of information in the parole report dated 21 May 2006 was false. The particular statement about which complaint is made appears under the heading, "Response to Supervision". The officer wrote,