Armstrong v Parole Board of South Australia No. Scgrg-98-959 Judgment No. S6791

ARMSTRONG v PAROLE BOARD OF SOUTH AUSTRALIA
[1998] SASC 6791

Civil
Bleby J

The plaintiff was sentenced to life imprisonment on 4 March 1982, after being found guilty by a jury of the murder of the father of his second wife.
He was released on parole on 14 March 1986. There were breaches of that parole requiring his return to custody, and he was again released on parole on 26 May 1992. That period of parole was due to expire on 25 May 2000. There were a number of conditions attached to the order for release.
On 12 August 1997, he was brought before the Parole Board again, and again found to be in breach of a condition of the release. The Board then imposed some further conditions.
On 25 May this year, 1998, a warrant was issued pursuant to s76 of the Correctional Services Act 1982 requiring him to be taken into custody, pending an appearance before the Board for a further alleged breach of conditions.
The warrant, which is dated 25 May 1998, recites his release on parole and the fact that a member of the Parole Board suspects, on reasonable grounds, that he may have breached a condition of parole, namely, that he has been stalking Ms M Kennedy and has caused a nuisance by making frequent and unsolicited telephone calls to her work and home address, contrary to condition C(1) of the conditions of release.
The warrant was apparently issued at the written request of the secretary of the Parole Board, who had been authorised to do so orally by the presiding officer, and that documentation has been placed before me by way of exhibits to an affidavit.
On 2 June 1998, the plaintiff was arrested and has been in custody since then. His arrest was without warning and without any attempt apparently to question him about the events the subject of the warrant or the subject of the presiding officer’s suspicion. He has not been charged with any criminal offence.
The plaintiff was originally informed by the Parole Board that his case would not be heard until 22 September, but it seems that that date has now been brought forward to 25 August 1998.
He now seeks an order, by way of judicial review, to quash “the decision of the (Parole Board) whereby it determined to detain the plaintiff in custody until it would hear a complaint as to whether or not the plaintiff had breached his parole”. (Paragraph 2 of the originating inter partes summons.)
He also seeks, by para 1 of the summons, that writ of habeas corpus do issue forthwith to have the plaintiff brought before this court and, in para 3, that the plaintiff be released from custody pending a determination by the Parole Board as to whether or not the plaintiff has breached his parole.
The Board itself has made no decision to determine to detain him. The detention was brought about by the issue of a warrant as a result of the presiding officer of the Board having formed a suspicion, she says on reasonable grounds, that he was in breach of the conditions. It is that decision which is under challenge in these proceedings, it being alleged that she could not possibly have entertained the suspicion on reasonable grounds. That, as I say, was not a decision of the Board. However, no point is taken by the Board that it is the Board which is the subject of the application. There is no doubt that the matter proceeded on the basis of the challenge to the presiding officer’s suspicion as being the basis for the issue of the warrant.
It is not open in these proceedings to question any procedure which may have been adopted by the justice of the peace in issuing the warrant or to quash the decision of the justice of the peace to issue that warrant. That could only be the subject of proceedings in which the justice was joined and in which there was some suggestion of a defect in procedure by the justice.
Section 76 of the Correctional Services Act 1982 relevantly reads as follows:
“(1) Where a member of the Board suspects on reasonable grounds that a person released on parole may have breached a condition of parole, the member may:-
(a).... summon the person to appear before the Board;
or
(b)... apply to a justice for a warrant for the apprehension of the person, for the purpose of bringing the person before the Board.
(2) ...
(2a) A warrant issued under subsection (1) or (2) authorises the detention of the person in custody pending attendance before the Board.”

As I said, it was the presiding officer of the Parole Board who applied for the issue of the warrant. She has sworn an affidavit. She was not sought to be cross‑examined on that affidavit. She deposes, amongst other things, to the circumstances which led to a breach of the plaintiff’s parole in August of 1997. In that respect, she says in paragraphs (7) and (8) of her affidavit:

“(7) In August 1997 the Board received a complaint from Katrina Power, a woman who alleged that she had had a relationship with the plaintiff between August 1996 and February 1997. She further alleged that since the end of the relationship, the plaintiff had telephoned her constantly, written threatening letters to her, followed her, damaged her property, threatened others associated with her including colleagues, made allegations to others about her personal affairs and breached restraining orders she had obtained against him.
(8) The Board summonsed the plaintiff to attend a hearing of the Board to determine whether his behaviour in relation to Ms Power amounted to a breach of the conditions of his parole. Following the interview, the Board found that the plaintiff had breached the requirement to be of good behaviour, and on 12 August 1997 the Board added further conditions to those which the plaintiff was already subject. The new conditions specified that the plaintiff must:
(1)... maintain a diary of his daily movements and communications initiated by the plaintiff including phone calls, letters and electronic communications;
(2) undertake and complete a psychiatric assessment and treatment at the direction of the parole officer;
(3)... take such medication as prescribed by the treating psychiatrist;
(4) not contact, or attempt to contact or associate in any way with Katrina Power;
(5)... not to contact, attempt to contact or associate in any way with any Tandanya Board member nor visit the Tandanya premises.”

The information before the presiding officer at the time when she applied for the issue of the warrant which was the subject of this case was in the form of a verbal report only. Once again, I quote from the presiding officer’s affidavit. In paras (9) and (10) she said:
“(9) On 22 May 1998 I received a telephone call from the Secretary to the Parole Board, Kevin Hill. Mr Hill informed me that he had that day received a telephone call from John Heath, the Regional Manager of the Western Metropolitan Region of the Department of Correctional Services. Mr Heath reported to him that one of his staff, Parole Officer, Marion Kennedy, had reported that she had received several telephone calls at home from an anonymous caller who hangs up when the receiver is lifted. She also believed that her house was being watched on two occasions by a person parked outside the house in a red car. Ms Kennedy described the person in the car. Ms Kennedy reported to Mr Heath that she suspected that the caller and the watcher may be the same person, namely the plaintiff. Ms Kennedy’s reason for suspecting the plaintiff lay in the fact that she is the parole officer of Laurel Egan, a woman with whom the plaintiff had had a relationship and who had been complaining of her ongoing harassment from the plaintiff since 5 February 1998 in the form of anonymous telephone calls, a break‑in of her unit and the stealing of an address book, and telephone calls to other acquaintances such as her General Practitioner and to the staff at the Western Community Corrections Centre.
(10) I formed a suspicion that the plaintiff had breached his parole conditions, and in particular, the condition of being of good behaviour, keeping the peace towards persons and not committing any breach of the law. In arriving at that conclusion I took into account, in addition to the allegation of Ms Kennedy, the plaintiff’s previous breaches of parole as outlined in paragraphs 8 and 9 above and their similarity to the allegations now made. I considered that the gravity of the alleged conduct, and the fact that it was alleged to be ongoing was sufficient to justify the issue of a warrant for the plaintiff’s arrest, rather than have him summonsed to appear before the Board.”
That led to the issue of a warrant on 22 May 1998 which was subsequently found to be defective in form, and a further warrant, the subject of these proceedings, was issued on 25 May. It is not suggested that the presiding officer of the Board had any additional information on which to base her suspicion when the fresh warrant was issued on 25 May.
The plaintiff’s solicitors, by letter dated 5 June 1998, were provided with a two page minute from the Acting Manager, Professional Services, South West Community Correctional Centre, being Exhibit PA4 to the affidavit of the plaintiff. That minute was dated 25 May. It was not seen by the presiding officer until she attended a meeting of the Board on 26 May. However, the contents of that minute seemed to have provided the basis of the presiding officer’s suspicion which led to the application to issue the warrant.
The two page minute was, in fact, attached to two other pages of extracts from case notes concerning Laurel Egan and prepared by Ms Kennedy. Those two sheets are Exhibit EFM3 to the affidavit of the presiding officer. Those case notes did not relate at all to any of the encounters between Ms Kennedy and the applicant. They did purport to include contemporaneous notes of complaints by Ms Egan relating to harassment by the applicant between February 1998 and May 1998.
However, it is to be noted that the warrant was not issued because of any suspicion that the breach related to conduct directed to Ms Egan. The only foundation for the warrant was the suspicion in relation to conduct directed towards Ms Kennedy.
The plaintiff wrote a letter to the Parole Board denying the suggestion of any form of harassment against either Ms Kennedy or Ms Egan, suggesting that the Egan relationship had been a normal one, that he had broken it off and that the complaints of Ms Egan were now being fabricated by her as a result of the termination of that relationship.
The presiding officer of the Board reviewed her decision as further information came to hand. She deposes in paragraph (19) of her affidavit to the following:
“(19) Previously there had been occasions upon which I had withdrawn a warrant for the arrest of a parolee after it was issued, and substituted it with a summons. On this occasion, I had occasion to review my decision on a number of occasions as further information came to light. However, I remained of the view that there were reasonable grounds for suspecting that the plaintiff had breached his conditions of parole and that the plaintiff’s history, including his conviction for murder, his previous breaches of parole and particularly his previous harassment of Ms Power, justified his detention until the matter could be heard by the Board.”
The matter was reviewed again on receipt of a copy of a purported written statement provided by Ms Egan which appeared to be consistent with the notes taken by Ms Kennedy.
The plaintiff has sworn an affidavit denying each of the allegations on which the presiding officer’s suspicion was founded. However, I am not here to try the question as to whether the breach of parole conditions has occurred. That will be a matter for the Board in due course. The applicant may be quite right in all that he says. The presiding officer does not have to weigh up competing versions of who might be right and who might be wrong. The presiding officer can only act on information which he or she has reason to suspect could be true in order to have the necessary state of mind and in order to justify the application for the issue of the warrant. That is, he or she must suspect on reasonable grounds. He or she does not have to believe that the stated fact exists.
I turn then to the question of whether the presiding officer suspected on reasonable grounds that the plaintiff was stalking Ms Kennedy and causing a nuisance as suggested in the warrant. That the presiding officer entertained a suspicion was not in issue. The question is whether the suspicion was based on reasonable grounds. The presiding officer had before her an oral report, admittedly secondhand, from an officer of the Correctional Services Department whom she had no reason to disbelieve.
The report emanating from Ms Kennedy did not directly identify the plaintiff as the person in the car or as the person making the telephone calls and, whilst the alleged conduct of the plaintiff towards Ms Egan was not the subject of the presiding officer’s suspicion, that relationship did have some bearing on the formation of her suspicion in respect of the events concerning Ms Kennedy. Ms Kennedy was Ms Egan’s parole officer. Ms Egan, according to the report, had reported various unwanted contacts with the plaintiff. Ms Egan's address book had gone missing. The plaintiff, by his association with Ms Egan, had an opportunity to obtain it. It contained telephone numbers of her doctor and of Ms Kennedy. Unwanted telephone calls had recently been made to Ms Egan’s doctor and to Ms Kennedy. Ms Kennedy claimed that a red car had been outside her home on two occasions. The car was similar in description to that described by Ms Egan as belonging to the plaintiff. The driver of the car outside Ms Kennedy’s residence appeared to her to be similar to Ms Egan's description of the plaintiff.
The behaviour reported bore similar characteristics to the behaviour found by the Board to have been established in relation to Katrina Power and her associates, which conduct had brought about the variation of the conditions of parole in August of 1997.
I remind myself that the presiding officer need only entertain a suspicion. She was not required to form a belief in the existence of a state of facts. I also remind myself that reasonable grounds to found a suspicion will therefore be a lower threshold to overcome than grounds on which to found a belief: George v Rockett (1990) 93 ALR 438 and Manley v Tucs (1985) 40 SASR 1 and what Jacobs J said at p9:
“Not only does ‘suspicion’ carry less conviction than ‘belief’, but to say that a suspicion is ‘reasonable’ does not necessarily imply that it is well founded, or that the grounds for suspicion must be factually correct.”

It is also clear that the suspicion need not be based on facts which are within the personal knowledge of the presiding member. He or she may act on hearsay: Feldman v Buck [1966] SASR 236 at 241; Cotton v Ramm (1976) 16 SASR 107 in particular per Jacobs J at p115.

Whilst it may play little, if any, role in the curial determination of criminal charges, the prior history of the offender and conduct showing a propensity to do what is suspected may also be taken into account: R v Trotter (1992) 58 SASR 223.
In that state of the law and in the circumstances which I have described, being the material before the presiding officer at the time when she applied for the issue of the warrant, I cannot say that it was not open to her to entertain a suspicion which she did. That suspicion was based, in my opinion, on reasonable grounds.
Were the facts giving rise to that suspicion capable of constituting a breach of conditions of parole? The conditions of the plaintiff’s parole included:

(a).... that (he) shall not commit any offence, and

that (he) be of good behaviour, keep the peace towards persons and (do not) commit any breach of the law.

Mr Mancini for the plaintiff argues that in order to constitute a breach a parolee must be shown to have breached all three elements of the additional condition (1) which I have just read. I do not accept that argument. There will be many instances of bad behaviour or behaviour which does not constitute good behaviour and breaches of the law which do not constitute a failure to keep the peace towards persons. Again, any breach of the law will, in most cases, constitute a failure to be of good behaviour but the plaintiff’s interpretation of that condition would render some parts of the condition quite superfluous.
Failure to comply with any one of the three elements mentioned in condition (1) will, in my opinion, be sufficient and therefore the suspicion need only go to any one element of that condition. But in any event, in my opinion, the events which the presiding officer suspected of the plaintiff, if proved, could well constitute a breach of all three elements.
As to whether there was a breach of good behaviour, that will always remain a question of fact. The words carry their ordinary English meaning: Devine v Carey (1980) 24 SASR 338 per Legoe J at 342-343. Would an ordinary person regard the making of unwanted telephone calls and the observation of another’s home for no apparent good reason as being within the contemplation of good behaviour? I think not.
I am conscious of the fact that in the case of Rix v Murray (1984) 34 SASR 517 Zelling J cited with approval a passage from an earlier case of Higgins v Goldfinch (1981) 26 SASR 364 where it was suggested in a passage at pp366 and 367 of that earlier case by the then Chief Justice that good behaviour for the purposes of the then Offenders Probation Act and the then Children’s Protection Act would require the commission of a criminal offence. That may well have been the case in respect of those sections. However, I have to construe a condition of release on parole where the words are coloured by the rest of the document and it seems to me that they might adopt a slightly different hue in that event.
I am satisfied that the conduct which the presiding officer suspected was capable of constituting a failure to be of good behaviour. I am also satisfied that, if established, it would constitute a failure to keep the peace towards Ms Kennedy if that was to her annoyance by his presence and by his telephone calls. It appears that that would be sufficient to justify a restraining order, for example, under s99 of the Summary Procedure Act 1921 and that test, I think, would meet the conditions required for failing to keep the peace.
I am also satisfied that the behaviour could well constitute the offence of unlawful stalking under s19AA of the Criminal Law Consolidation Act 1935. I will not set out in detail the terms of that section, but again I repeat that the presiding officer need only to have formed the suspicion upon reasonable grounds that such an offence may have been committed.
I therefore conclude that the presiding officer suspected on reasonable grounds that the plaintiff may have breached his conditions of parole.
The presiding officer then had a discretion to exercise as to whether she would summon the plaintiff to the Board or apply for the issue of warrant. She chose the latter.
I have no doubt that there are many factors which may influence such a choice. Those factors may include the nature of the offence for which the sentence was being served, the other or earlier breaches of parole by the parolee, the seriousness of the conduct said to give rise to the breach, whether criminal charges are pending and the decision of any bail authority in relation to such charges, and sometimes perhaps the personal circumstances of the parolee where those are known. There may no doubt be many other circumstances which might be brought to bear on such a decision.
It will, however, only be in the most extreme cases, such as cases of bias or breach of good faith, or where there can be shown to be some ulterior purpose for taking a parolee into custody, or where the decision is so unreasonable in the sense discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, that any decision to apply for a warrant rather than to proceed by way of summons would be set aside. I cannot say that the decision had any ulterior motive or was affected by any of those conditions to which I have referred.

I do express some concern, however, that a parolee should be returned to custody for a period of up to three and a half months before the Board can see fit to begin to deal with the allegation that he breached his parole. Because the threshold for applying for the warrant is so low, it behoves the Board to hear any allegations of a breach of condition of parole without undue delay where a parolee has been returned to custody, especially when no criminal charges are pending. The Board has a measure of protection by s76 subs2(A). It should not be thought that the Board is immune from challenge if such detention can be shown to be for some ulterior purpose or consists of an abuse of its process. I am not suggesting that that has necessarily happened here, but undue delays in processing proceedings for breaches of conditions of parole, where they are not dependent upon proceedings in a court, could, where a parolee has been returned to custody, constitute an abuse of process in some circumstances.
However, I do not consider that the likely duration of the detention is a relevant factor in determining whether the suspicion was held on reasonable grounds or in the initial choice of applying for a warrant or issuing a summons.
The suspicion on reasonable grounds is a low threshold to justify taking a person into custody. At first it may seem quite unreasonable to take a person into custody merely on a suspicion entertained by a statutory officer without reference to a court. In cases of an ordinary citizen with an allegation of any breach of the criminal law, it would be unheard of in this country. However, we are dealing in this context with people who have already been convicted and sentenced to a term of imprisonment by a court where that term has not expired. Parole is not a right but a privilege to be earned upon evidence of good behaviour in the custodial system. The original sentence does not lapse and therefore release is a privilege hedged with a number of conditions. It is extremely important that that privilege be not abused and that steps can be taken swiftly and flexibly to ensure that potential abuse is prevented.
In this situation freedom is not a right as it is for an unconvicted citizen. It is a privilege and it is likely to come to an abrupt end upon suspicion of misbehaviour pending investigation, not upon proof of the misbehaviour beyond reasonable doubt.
Finally, if I am wrong in holding that the presiding officer had reasonable grounds on which to entertain the suspicion of a breach of the conditions of parole at the time when she applied for the warrant, the question arises whether relief arising out of that decision should be refused on discretionary grounds. Relief in the nature of certiorari, which this is, and which it is necessary to establish before an order for release of the plaintiff may be made, is discretionary.
Since the presiding officer made her determination based only on the oral report in relation to Ms Kennedy, she has seen the written minutes on which that oral report was based and has seen extracts from Ms Kennedy’s case notes in respect of Ms Egan. She has also seen Ms Egan’s typed statement. In my opinion the presiding officer would now have reasonable grounds for suspecting that the plaintiff has also breached parole in respect of Ms Egan and his conduct towards her, based on what she is alleged to have told Ms Kennedy as the events occurred. Furthermore, the plaintiff, by his affidavit, has admitted at least speaking to Ms Egan’s doctor about her consumption of drugs, though the effect of the conversation may be a matter of some dispute. The presiding officer has now also seen a written statement of Ms Egan covering these events.
Not only do those matters strengthen the suspicion concerning the behaviour towards Ms Kennedy, but in my opinion they would also justify the entertainment of a further suspicion that the plaintiff has breached the condition of parole concerning his conduct towards Ms Egan. But of course this does not constitute a finding in any way that he has done so, any more than I have made any finding that he is in breach of his conditions in respect to his behaviour towards Ms Kennedy. But if an order in the nature of certiorari were to be made based on the presiding officer’s lack of any basis for suspicion when she applied for the warrant, and if any consequential orders were to flow from that releasing the plaintiff, then the order could be said to be futile in the sense that there is now sufficient information on which to justify the suspicion that breach of conditions may have occurred - sufficient, in my opinion, to justify the inevitable issue of a further warrant for the plaintiff’s arrest. I would therefore refuse the orders on discretionary grounds also.
The last matter relates to the application for the writ of habeas corpus based on the continued detention of the plaintiff, notwithstanding that the original taking into custody may have been lawful.
The plaintiff has filed an affidavit disputing all the allegations forming the basis of the presiding officer’s suspicion both in relation to Ms Kennedy and to Ms Egan. That is put forward as justification for the granting of habeas corpus and against the continued detention of the plaintiff. To that is added a suggestion that the plaintiff is being hindered in the preparation of his defence of proceedings which will come before the Parole Board.
I have no doubt that the plaintiff is under some difficulty in respect of the preparation of his case before the Board. It would be up to him to apply to the Board for access to any facilities necessary for the preparation of his case and for the Board to decide whether such requests should be granted. I cannot rule on the effect of those difficulties in the context of these proceedings. If the plaintiff alleges miscarriage of the proceedings before the Board in some way that will be a matter for determination in another forum. Nor can I release the plaintiff merely because he may suffer some detriment or may continue to do so by virtue of his being in custody.
I repeat what subs(2a) of s76 says, namely that a warrant issued under subs(1) authorises the detention of a person in custody pending attendance before the Board. In my opinion, that is the short answer to Mr Mancini’s submission in that regard. It follows that the application must be dismissed, and I so order.

[1998] SASC 6791

10 August 1998