Andrews v Parole Board of South Australia

[2012] SASC 209

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

ANDREWS v PAROLE BOARD OF SOUTH AUSTRALIA & ANOR

[2012] SASC 209

Reasons for Decision of The Honourable Justice Gray

9 November 2012

ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - HABEAS CORPUS - GENERALLY

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BOARDS, TRIBUNALS ETC: POWERS, DUTIES AND CONSTITUTION

The plaintiff made an application in the within proceedings that a writ of habeas corpus be issued - the within proceedings concern an application for judicial review - the matters that the plaintiff sought to raise by way of judicial review were the matters to be raised in support of the application for the issue of the writ - the plaintiff had issued a new application for parole to be heard by the Parole Board - this new application appears to have overtaken the earlier application for parole.

Held: Application for issue of a writ of habeas corpus refused - no basis for issue established.

Correctional Services Act 1982 (SA) s 66; Correctional Services Act Amendment Act 1984 (SA) s 39; Statutes Amendment (Truth in Sentencing) Act 1994 (SA), referred to.

ANDREWS v PAROLE BOARD OF SOUTH AUSTRALIA & ANOR
[2012] SASC 209

Civil

GRAY J.

1. On 19 November 1991, the plaintiff, Shane Andrews, was convicted of murder and sentenced to imprisonment for life. On sentencing the plaintiff, Cox J fixed a non-parole period of 23 years, which was deemed to have commenced on 25 February 1991, being the date the plaintiff was initially arrested for the offence. Section 66 of the Correctional Services Act 1982 (SA), as amended by section 39 of the Correctional Services Act Amendment Act 1984 (SA), was in operation at the time of his sentencing.  Pursuant to that section, the plaintiff had the right to remissions and to be automatically released on parole, subject to conditions, at the expiration of the non-parole period set by the Court.

2. The plaintiff sought judicial review in 2008.  The application was dismissed by the Full Court on 29 August 2008.[1]  The plaintiff had sought judicial review with respect to refusals by the Parole Board to grant parole.  He argued that the Parole Board had proceeded on the basis of an erroneous view of the law in that the Statutes Amendment (Truth in Sentencing) Act 1994 (SA) could not and did not apply to him.  He contended that he was entitled to automatic parole in accordance with the legislation in existence at the time he was sentenced.  The Court concluded that the Statutes Amendment (Truth in Sentencing) Act applied prospectively and governed the Parole Board decisions subsequent to that enactment.  In particular, Duggan J observed:[2]

   The intention of Parliament emerges clearly from clause 2(1) of Schedule 1 enacted by the 2008 Amending Act which states that the amendments made by the Truth in Sentencing Act apply, and have always applied, to all prisoners serving sentences of imprisonment immediately before the commencement of those amendments.  The clause provides that this is so regardless of when the prisoners were sentenced.

   [1]    Andrews v Parole Board of South Australia [2008] SASC 237.

   [2]    Andrews v Parole Board of South Australia [2008] SASC 237, [5].

3. On 24 August 2012, a Judge of this Court directed that the defendant file and serve affidavits in response to the plaintiff’s application by 12 October 2012 and that the return date for a subpoena issued by the plaintiff be extended to 2 November 2012. 

4. The defendants, the Parole Board of South Australia and the State of South Australia, made an application to excuse compliance with the order for the filing of affidavits and to extend the time for the answering of the application until a further order.  The basis of the application was set out in an affidavit filed on behalf of the defendants in which it is deposed:

   As a result of recent events, the defendants seek to be excused from compliance with Justice Kelly’s orders in relation to the filing of any affidavits.  Those events are:-

   i.On 10 September 2012 [the deponent] received advice from the Executive Assistant to the Parole Board of South Australia that the Parole Board had agreed to consider pursuant to section 67(10) of the Correctional Services Act 1982 a further application by the plaintiff for a recommendation for release on parole (‘the new application’).

   ii.[The deponent] communicated these matters to the plaintiff on 10 September 2012.

   iii.[The deponent is] informed and verily believe[s] that the plaintiff will be interviewed in relation to the new application by the Board on 16 October 2012.

   The new application, and the Board’s decision in relation to it, will bear upon whether the within proceedings will, or ought to, continue.  In those circumstances the defendants submit that is appropriate that they be excluded from compliance with the time fixed for the requirement that they produce documents relating to the decision that forms the subject to of these proceedings (in the form of affidavits), until further order.

5. On 5 October 2012, with the consent of the plaintiff I relieved the defendants from the obligation to file and serve affidavits in accordance with the earlier order of the Court and I vacated the date for the answering of the subpoena.  I gave liberty to the parties to apply in the event that it is necessary to proceed with the action.  I adjourned the proceedings to 2 November 2012 to enable a review of the proceedings to be conducted.

6. On 24 October 2012, Mr Andrews made an application in the within proceedings that a writ of habeas corpus be issued.  The ground for the application was said to be the continuing delays in the Parole Board proceedings.  The plaintiff asserted that he had been denied the opportunity of a recommendation for release from 13 February 2006.  The plaintiff provided a letter accompanying this application, dated 17 October 2012.  In that letter, the plaintiff advised that the Parole Board hearing that had been set for 16 October 2012 had proceeded in the absence of his legal adviser.  The plaintiff recorded in his letter that the executive assistant of the Parole Board had advised that he would provide a copy of the transcript from the Parole Board hearing to the solicitor so that he would be able to make further submissions.

7. The proceedings came on before me for review on 2 November 2012.  The plaintiff, at his request, appeared by telephone.  The defendants were represented by counsel.  It transpired that the defendants had not yet been served with the application for the issue of a writ of habeas corpus.

8. The plaintiff advised the Court that he was concerned that long delays had taken place in hearing his application and that this factor had been relevant to the application for the issue of the writ of habeas corpus.  When pressed, the plaintiff informed the Court that the matters that he wished to raise by way of judicial review were the matters to be raised in support of the application for the issue of the writ.  To my mind, this was sufficient reason of itself to refuse to issue a writ of habeas corpus.

9. Counsel appearing for the defendants informed the Court that the plaintiff had issued a new application for parole and that this application would be heard by the Parole Board.  The plaintiff acknowledged the correctness of this position and this new application appears to have overtaken the earlier application for parole.  The matters to be advanced in support of the issue of the writ of habeas corpus can all be raised before the Parole Board on the hearing of the plaintiff’s new application for parole. 

10. When the above matters were drawn to the attention of the plaintiff, he informed the Court that he was content that the present application for judicial review and his application for the writ of habeas corpus be dismissed.  I consider these to be the appropriate orders.  If the plaintiff is dissatisfied with the way in which his present application for parole is addressed, he will be at liberty to take such steps as he considers appropriate to address that dissatisfaction.

11. I have set out the history of this matter so that the plaintiff, the Parole Board and the State of South Australia will have a record of the events that led to the plaintiff abandoning his applications.  I direct that a copy of these reasons be provided to the plaintiff.