Crockford v Adelaide Magistrates Court
[2008] SASC 62
•6 March 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
CROCKFORD v ADELAIDE MAGISTRATES COURT & ANOR
[2008] SASC 62
Judgment of The Honourable Justice Layton
6 March 2008
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - OPPORTUNITY TO PRESENT CASE
Application for judicial review of Magistrate’s decision to terminate plaintiff from Drug Court Program – Plaintiff entered into Bail Agreement with provisions relating to Drug Court Program – Plaintiff assigned points for breaches including abusive conduct at third monthly review before Drug Court – At fourth review when Program Supervisor sought matter to be listed for hearing for termination presiding Magistrate referring again to plaintiff’s prior abusive conduct forthwith terminated plaintiff from Drug Court Program, revoked bail and remanded plaintiff to custody – Whether Magistrate sitting in Drug Court as well as Magistrates Court - Whether there was an obligation by Magistrate to afford procedural fairness to plaintiff before terminating – Whether plaintiff was provided with proper hearing according to hearing rule – Whether Magistrate failed to properly exercise discretion.
Held: Plaintiff’s interests were relevantly affected by the decision of the Magistrate – a Magistrate sitting in the Drug Court would be expected to apply a level of procedural fairness akin to that required by judicial officer in a court – Plaintiff granted permission to proceed with application for judicial review pursuant to Rule 200(1) of Supreme Court Rules 2006 – Certiorari setting aside decision of Magistrate ordered.
Bail Act 1985 (SA) s 21B, s 17, s 18; Criminal Law (Sentencing) Act 1988 (SA) s 19B, s 10(6); District Court Act 1991 (SA); Magistrates Court Act 1991 (SA); Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA); Supreme Court Act 1935 (SA), referred to.
Kioa v West (1985) 159 CLR 550; Minister of Immigration and Multicultural Affairs, Re; Ex Parte Lam (2003) 214 CLR 1, applied.
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; H, T v Police [2005] 91 SASR 329; Macquarie University, Re; Ex Parte Ong (1989) 17 NSWLR 113; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; R v McMillan [2002] SASC 73, discussed.
Annetts v McCann (1990) 170 CLR 596; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Craig v State of South Australia (1995) 184 CLR 163; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Lymberopoulos v Police [2006] SASC 36; Stead v State Government Insurance Commission (1986) 161 CLR 141, considered.
CROCKFORD v ADELAIDE MAGISTRATES COURT & ANOR
[2008] SASC 62LAYTON J
Introduction
This is an application for judicial review of the decision imposed by a magistrate on 22 October 2007. The plaintiff has alleged that there was a jurisdictional error on two grounds, namely:
·a failure to provide natural justice or procedural fairness to the plaintiff before making the decision to terminate him from the Drug Court Program; and
·a failure to properly exercise discretion in relation to the decision to terminate the plaintiff from the Drug Court Program.
Material before me
The following material was before me:
·Affidavit of Tessa Holly Giordano sworn on 20 November 2007 together with the exhibits (“the First Giordano Affidavit”);
·Affidavit of Gino Cocchiaro sworn on 20 November 2007 (“the First Cocchiaro Affidavit”);
·Affidavit of Tessa Holly Giordano sworn on 7 December 2007 together with the exhibits (“the Second Giordano Affidavit”);
·Affidavit of Gino Cocchiaro sworn on 7 December 2007 (“the Second Cocchiaro Affidavit”);
·Affidavit of Elizabeth Mary Griffith sworn on 13 December 2007 (“the Griffith Affidavit”); and
·Affidavit of Rasha Amira Dietrich sworn on 13 December 2007 together with the exhibits (“the Dietrich Affidavit”).
The Drug Court Program
In order to discuss the decision which is the subject of this judicial review, it is necessary to first have an understanding of the Drug Court Program (“the Program”). An initiative of the Government of South Australia, the Program is a diversionary program of the Magistrates Court pursuant to the Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA). The Program aims to reduce recidivism in drug abuse offenders by diverting participants from the conventional court process to a judicially supervised program involving drug testing, escalating sanctions, treatment and support services.
Although the Program was established without any statutory authority[1] in May 2000,[2] the Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA) amended the Bail Act 1985 (SA) (“the Bail Act”), the Criminal Law (Sentencing) Act 1988 (SA), the District Court Act 1991 (SA), the Magistrates Court Act 1991 (SA) and the Supreme Court Act 1935 (SA) to allow for the processes and procedures necessary in the administration of a number of intervention programs, including this Program.
[1] R v Tran (2000) 211 LSJS 479 at [40].
[2] South Australia, Parliamentary Debates, House of Assembly – Estimates Committee, 19 June 2001, 7 (The Hon. J.W. Olsen).
Section 21B(1) of the Bail Act now allows a court to release a person on bail by making it a condition of the bail agreement that the person undertake an intervention program. Before the court imposes such a condition, it must be satisfied that the person is eligible according to the applicable criteria.
Whilst the Program has no governing legislation, the Courts Administration Authority has released a collection of publications addressing the criteria a person must meet so as to be considered for the Program, the nature and aims of the Program, and the sanctions available for participants who do not adhere to the requirements. The Drug Court Fact Sheet and the Points System Guidelines were the two publications I had before me relating to the procedures of the Program.
These publications use the description “Drug Court” when referring to a magistrate conducting a participant’s review. It appears this name has been adopted by most involved in the process, despite it differing in nature from a conventional court, as discussed hereafter.
The Drug Court Fact Sheet
The Drug Court Fact Sheet sets out the criteria a person must fulfil in order to be considered for the Program. This includes a demonstrated “willingness to participate in the Drug Court Program and comply with the case management plan developed for them”.[3]
[3] The Second Giordano Affidavit, Exhibit 2.
It should be emphasised that participation is voluntary. A person must first apply for an assessment by the Program Supervisors to be considered as a participant. A Supervisor will then compile an assessment report, providing a recommendation to the Magistrates Court on whether the person should be accepted into the Program.
Once the Magistrates Court officially accepts a person into the program, the participant must sign a “Declaration of Participation”, stating their intention to participate in all activities and adhere to the rules of the Program.[4] A team of Program Supervisors closely supervise the participants, monitor their progress and compile regular review reports for the Drug Court Magistrate, thus providing a further interface with the court.
[4] The Dietrich Affidavit, Exhibit 3.
During the early stages of the Program, all participants are placed on electronically monitored home detention bail. Throughout the Program, which typically lasts up to 12 months, they must submit to random but regular drug tests. A range of treatment and support services are also made available to participants to assist with their long-term rehabilitation.
Points System Guidelines
Participants are allocated points for non-compliance with the Program requirements in accordance with the Points System Guidelines (“the Guidelines”), which provides a schedule setting out sanctions and the equivalent demerit points. The Guidelines state that when points totalling 20 points or more are reached “… at the discretion of the magistrate – List for termination”.[5]
[5] The Second Giordano Affidavit, Exhibit 3.
Of particular significance to the matter before me, the Guidelines also include the following excerpt:[6]
[6] Ibid.
Threatening or abusive behaviour in court, at drug testing or with staff
4 points
List for termination argument or Magistrate to have the discretion terminate immediately.
Following the schedule of sanctions and demerit points in the Guidelines, there is a more detailed explanation of the available sanctions, applicable incentives and the Termination Policy. Apart from awarding points and considering the participant for termination, the Drug Court Magistrate has the discretion to apply a number of additional sanctions, for example, a verbal warning or an increase in drug and alcohol testing. The Guidelines provide: [7]
At the discretion of the Drug Court Magistrate additional sanctions will be applied if they are satisfied on the balance of probabilities that an offender has, without reasonable excuse, failed to comply with a condition attached to a Drug Court program.
[7] Ibid.
The Termination Policy lists the various circumstances in which a participant may be “considered for termination”, including if a participant:[8]
Threatens other Drug Court participants, a treatment provider or anyone connected with the Court, or repeatedly disrupts any process related to the participants program.
Or if a participant:[9]
Otherwise demonstrates a lack of commitment to his or her Drug Court program…
[8] Ibid.
[9] The Second Giordano Affidavit, Exhibit 3.
The Guidelines do not make specific mention of a termination hearing, but they do instruct a magistrate to “list for termination” where a participant accumulates 20 points or more or “list for termination argument”, where a participant engages in threatening behaviour. Additionally, the Termination Policy concludes as follows:[10]
If a bench warrant or a complaint in relation to breach of bail has been issued for a participant and the participant has not appeared at Court within a month thereafter, the matter is to be listed for the purpose of considering whether the participants Drug Court program should be terminated. [Emphasis added]
[10] Ibid.
As will be seen later in the chronology of events, the process which the parties sought before the Magistrate was to have the matter of termination listed for hearing. The process of listing a possible termination of a participant from the Program for hearing before a Magistrate appears to have been the usual procedure adopted by the Drug Court as deposed to in the Second Giordano Affidavit.[11]
[11] The Second Giordano Affidavit, [15].
Chronology of events
On 16 July 2007 the plaintiff was before the Adelaide Magistrates Court in relation to eight counts of Non Aggravated Serious Criminal Trespass, two counts of Non Aggravated Serious Criminal Trespass and seven counts of Theft. These offences had been committed between 3 May 2006 and 12 February 2007. Having pleaded guilty to all counts, Ms Giordano, representing the plaintiff, made an application for assessment of eligibility for the Program. As the second defendant had no objections, Mr Baldino SM ordered an assessment and remanded the plaintiff in custody until 13 August 2007.[12]
[12] The Dietrich Affidavit, [3].
On 13 August 2007 the plaintiff appeared before Dr Cannon DCM. The Court was provided with an assessment report recommending that the plaintiff be accepted into the Program. Following this recommendation, Dr Cannon ordered that a Home Detention Report for a residence provided through Anglicare be provided to the Court on 20 August 2007.
On 20 August 2007 the plaintiff appeared before Mr Millard SM who determined that the plaintiff was eligible for the Drug Court Program, adjourned his sentencing and released him on bail with home detention conditions together with other conditions relating to the Program.
The first review
On 3 September 2007 the plaintiff had his first review before Dr Cannon DCM. The Court was provided with the plaintiff’s first Drug Court Progress Report (“Progress Report”) containing records of drug test results, breaches of home detention conditions and commentary from a Drug Court Program Supervisor. Whilst all drug tests had returned negative results, the plaintiff had breached his home detention conditions once by being out of range for 42 minutes. Acting on the recommendation provided in the first Progress Report, Dr Cannon DCM gave the plaintiff a formal warning to keep to leave times as specified. The plaintiff was, however, “congratulated for his good start to the Program”.[13]
[13] The Second Giordano Affidavit, [7].
The second review
On 17 September 2007 the plaintiff had his second review before Dr Cannon DCM. In the second Progress Report which was provided to the Court, the plaintiff again had clear drug test results, but had committed a number of home detention breaches. The table below sets out his various breaches:[14]
[14] Ibid, Exhibit 5.
Date
Breach
Wednesday 05/09/07
25 minutes late return
Friday 07/09/07
9 minutes out of range
Monday 10/09/07
11 minutes out of range
Tuesday 11/09/07
9 minutes out of range
The second Progress Report recommended that another warning be given to the plaintiff to keep to leave times as specified. As the plaintiff submitted that the home detention equipment was faulty, Dr Cannon DCM decided to wait for the equipment to be checked before awarding any points against the plaintiff.
The third review
On 8 October 2007 the plaintiff had his third review before Mr Grasso SM. The Court was provided with the third Progress Report, which contained the results of a drug test with a dilute specimen of 1.4mmol/l. The report also listed the following home detention breaches:[15]
[15] Ibid, Exhibit 6.
Date
Breach
Saturday 15/09/07
9 minutes out of range
12 minutes out of range
Monday 24/09/07
7 minutes out of range
Wednesday 26/09/07
19 minutes out of range
Saturday 29/09/07
7 minutes out of range
8 minutes out of range
Wednesday 03/10/07
121 minutes out of range
The Program Supervisor noted in the report that due to the location of the plaintiff’s unit, the plaintiff would be out of range when checking his letterbox. While this may have provided an explanation for a number of his breaches, the Program Supervisor found that it would be “highly unlikely [for a person] to visit a letterbox a number of times during the day and certainly not on the weekends”.[16] The Program Supervisor also highlighted that the plaintiff had been warned in previous reviews about going out of range for short periods.
[16] The Second Giordano Affidavit, Exhibit 6.
The report acknowledged that the plaintiff’s attendance at a drug test caused the particularly long out of range breach occurring on Wednesday 3 October 2007. It was noted, however, that the plaintiff had not contacted the Drug Court to negotiate an appropriate pass for this appointment. The Program Supervisor also provided additional information in relation to the plaintiff’s “unsatisfactory” attitude towards Drug Court staff, writing:[17]
He is extremely rude, hostile, uncooperative and blatantly unwilling to follow direction. He is also unwilling to accept responsibility for his own behaviour.
[17] Ibid.
The report included two recommendations. First, that the plaintiff be provided with a warning regarding non-compliance with home detention and the requirements for obtaining leave passes and second, that:
Should Mr Crockford’s behaviour not improve the Drug Court team will be asking for him to be removed from the program.
In addition to the third Progress Report, the Court was also provided with an Addendum Report regarding the plaintiff’s inappropriate behaviour. The Addendum Report detailed the abusive language the plaintiff had used when talking to his caseworker about the Drug Court Coordinator. When warned not to refer to Drug Court staff using such abusive expressions, the caseworker recorded that the plaintiff was unwilling to change his behaviour.[18] The Addendum Report concluded with the following recommendation:[19]
The Drug Court have serious concerns in relation to Mr Crockford’s escalating inappropriate behaviour toward staff and request [that] he be removed from the program immediately.
[18] The Second Giordano Affidavit, Exhibit 7.
[19] Ibid.
As Ms Giordano was absent, Mr Grasso adjourned the matter to 12 October 2007 to allow the issues to be discussed in greater detail.[20]
[20] The Dietrich Affidavit, [10].
The 12 October 2007 hearing
On 12 October 2007 the plaintiff again appeared before Mr Grasso SM. The third Progress Report and the addendum report was again before the Court. Ms Rasha Dietrich, appearing for the second defendant, submitted that in the light of the third Progress Report and the plaintiff’s abusive behaviour, the matter should be listed for termination.[21]
[21] The Second Cocchiaro Affidavit, [2].
Mr Cocchiaro, appearing for the plaintiff, made submissions emphasising, inter alia, the plaintiff’s positive progress in the Program, his apology to the Drug Court staff and his depression stemming from the infrequency of seeing his family.[22]
[22] Ibid, [4].
After hearing submissions, Mr Grasso SM declined to list the matter for termination, deciding, instead, to allocate the plaintiff:
·two points for his home detention breaches;
·two points for his behaviour; and
·two points for a dilute sample in his drug testing.
His Honour also issued a warning to the plaintiff about his behaviour. Without a transcript, however, I am unable to determine the exact wording Mr Grasso used. Ms Giordano and Mr Cocchiaro depose that His Honour stated “that if any further problems arose, then the plaintiff’s matter would be listed for termination argument”.[23] Ms Dietrich, on the other hand, says His Honour advised that “if the plaintiff appeared on a future occasion before His Honour and there was a repeat of this type of behaviour … the plaintiff would be ‘off the program’”.[24] The matter was then adjourned to 22 October 2007 at 11:30 am for further review.
[23] The Second Giordano Affidavit, [12].
[24] The Dietrich Affidavit, [12].
I pause to re-emphasise that Mr Grasso SM was apprised of the threatening and abusive behaviour and decided to decline to list the matter for termination. Instead, His Honour ascribed points, issued a stern warning about future behaviour and listed the matter for a fourth review.
The fourth review
The fourth review was before Mr Ackland SM on 22 October 2007. The Court was provided with a copy of the fourth Progress Report. In the report, at the concluding recommendation, the Court was requested to list the plaintiff for termination. The reasons for that request were contained in the report, as discussed hereafter.
The fourth Progress Report referred to a positive result for Codeine in one drug test. The Program Supervisor commented that the plaintiff had failed to declare the use of a Codeine-based medication for his shoulder pain on this occasion. (I note that the Supervisor was aware of earlier problems which the plaintiff had suffered with his shoulder.)
As listed in the following table, the plaintiff again had a number of short home detention breaches and one long out of range breach:[25]
[25] The Second Giordano Affidavit, Exhibit 8.
Date
Breach
Thursday 04/10/07
8 minutes out of range
Saturday 06/10/07
9 minutes out of range
11 minutes out of range
Tuesday 09/10/07
7 minutes out of range
Monday 15/10/07
10 minutes out of range
2 hours 50 minutes out of range
Tuesday 16/10/07
15 minutes out of range
Wednesday 17/10/07
25 minutes out of range
Thursday 18/10/07
22 minutes out of range
16 minutes out of range
In relation to the particularly lengthy out of range breach on Monday 15 October 2007, the plaintiff advised Drug Court staff that he had had a doctor’s appointment which resulted in him being out of range for over two hours. The Program Supervisor contacted the relevant medical centre but was unable to confirm his attendance. The Progress Report indicated that the plaintiff would present evidence of his attendance at the court hearing on the fourth review. A report from Anglicare was also included in the Progress Report and it stated that the plaintiff was prepared to undertake anger management counselling which was due to commence the week beginning 22 October 2007.
The full recommendations of the Drug Court Program Supervisor were as follows:
Mr Crockford continues to breach his home detention even when directed by the Court to keep to his leave times. He has also been warned by his Home Detention Officer on 3 separate occasions over the past few months to keep within the range of his electronic unit. He is well aware of his responsibility and his current review highlights an increase of breaches that is most concerning.
The Drug Court Team has received information that a number of neighbour complaints have been made in relation to Mr Crockford’s property regarding excessive noise and people coming and going at all hours of the night. We have been notified that an official complaint has been sent to the Housing Trust. Mr Crockford has indicated to me that he denies any allegations and has now secured alternative accommodation and will ask the Court to modify his bail conditions so he can relocate.
This is Mr Crockford’s 4th Review with home detention breaches and his ongoing non-compliance to leave monitoring is becoming increasingly unmanageable and we would respectfully ask the Court to list him for termination. [Emphasis added]
At this hearing before the Magistrate, both Ms Giordano, acting for the plaintiff, and Ms Griffith, acting for the second defendant, proceeded on the basis that the hearing was for a review and Ms Griffith sought a listing of the matter for a termination hearing.[26]
[26] The Second Giordano Affidavit, [16]; The Griffith Affidavit, [5].
Ms Giordano made submissions relevant to a review, concerning the Codeine drug test results, the home detention breaches, and his commencement of anger management counselling. In particular, in relation to the short periods of being out of range, she submitted that the plaintiff’s community corrections officer had given him permission to walk to the letterboxes surrounding his block of units. As he had not gone any further than his letterbox, the plaintiff did not believe he was out of range.[27] There is no transcript available of the proceedings, but the affidavit of Ms Giordano detailing the proceedings was not contradicted. Further, it appears to be consistent with the reasons later given by Mr Ackland SM. Mr Ackland SM indicated to Ms Giordano that his concern was not the home detention breaches but rather the abusive language the plaintiff had used towards the Drug Court staff.[28] Ms Giordano submitted that that matter had been previously dealt with by Mr Grasso SM on 12 October 2007. Mr Ackland SM acknowledged this but indicated to Ms Giordano that “he thought that the matter had not been dealt with adequately”.[29] His Honour stated that the plaintiff’s behaviour demonstrated that he was not a willing participant of the Program.
[27] The Second Giordano Affidavit, [13].
[28] The Second Giordano Affidavit, [14].
[29] Ibid.
Ms Giordano, in response, submitted that the plaintiff was apologetic for his behaviour and drew attention to his attendance at all counselling sessions and his negative drug test results, with the exception of one result. She referred to Mr Grasso SM’s decision to award the plaintiff two points for his behaviour and submitted that as there was no allegation of any further abusive behaviour, it was not necessary for His Honour to revisit the issue.[30]
[30] Ibid.
Ms Griffith, acting for the second defendant, referred to the fourth Progress Report and submitted that the plaintiff’s case should be listed for termination argument in accordance with Drug Court practice.[31]
[31] The Griffith Affidavit, [5].
Instead of listing the matter for a termination hearing, the Magistrate forthwith terminated the plaintiff from the program, revoked his bail and listed the matter for sentencing. The Magistrate did not warn Ms Giordano of his intention to deal with termination at the review hearing on that day, and that he would do so immediately.
The Magistrate, in his reasons, noted that:[32]
Mr Crockford has not been a participant of the Drug Court programme for very long. Today, there are positive intimations of his commitment. Two disturbing negative indications are his failure to respect home detention bail restrictions and his use of abusive language to and concerning members of programme staff.
The failures to respect home detention bail restrictions have continued since his last appearance before the court on 12 October. There is no suggestion of further use of intemperate or abusive language towards programme staff.
…
A report of abusive language or conduct towards programme staff is not an allegation of abusive language or conduct that can be challenged in court. It is abusive language or conduct towards programme staff. As I have acknowledged during the course of our discussion this afternoon, because this programme deals with some deeply troubled and disoriented individuals, inappropriate conduct towards programme staff can sometimes be expected, but there are limits. While occasional examples of inappropriate language or conduct towards programme staff do not themselves threaten the integrity of the programme, when the Court that is supervising the programme for the benefit of the participants and the community is seen to tolerate abusive language or conduct, the integrity of the programme and its practitioners is undermined.
It now seems to me undeniable that by his conduct, if not by his words, Mr Crockford has declared himself to be unwilling to continue as a participant. His participation in the Drug Court programme is terminated. Bail is revoked and he will be remanded for sentence next Monday, 5 November 2007 at 2.15 PM.
[32] The Second Giordano Affidavit, Exhibit 9.
As is apparent from the Magistrate’s reasoning, his major focus in terminating the plaintiff harked back to the plaintiff’s use of abusive language and conduct which had previously been dealt with by Mr Grasso SM on 12 October 2007.
On the basis of the above material, the plaintiff submits that the Magistrate failed to provide natural justice or procedural fairness before terminating the plaintiff from the Program. Further, the plaintiff submits that the discretion of the Magistrate was wrongly exercised in that he wrongly penalised the plaintiff by terminating him from the Program for abusive conduct which had already been the subject of different treatment by another Magistrate. At the time of termination, the plaintiff had only six points against him and had not reached the required 20 points which may warrant his termination from the Program. The plaintiff also alleged that his termination at that point, in all of the circumstances, was contrary to the Guidelines and the Termination Policy.
I now turn to the legal issues relevant to an application for judicial review in respect of decisions taken by a magistrate under the Program.
The legal issues concerning judicial review
The plaintiff, in his summons, sought an order pursuant to Rule 199 of the Supreme Court Civil Rules 2006 seeking to set aside the decision of the Magistrate to terminate the plaintiff from the Program, revoke his bail and remand him for sentencing. The Supreme Court Civil Rules 2006 invest the Supreme Court with power to make an order for judicial review. Rule 199(2) sets out the types of orders which can be made as an order for judicial review:
199—Power to make order for judicial review
…
(2) An order for judicial review is an order of one of the following kinds—
(a)an order preventing another court or a tribunal that has a duty to act judicially from acting beyond its jurisdiction or in contravention of the requirements of natural justice (prohibition);
(b)an order setting aside the decision of another court or a tribunal that has a duty to act judicially because of error, absence of jurisdiction, failure to observe the requirements of natural justice or fraud (certioriari);
(c)an order to compel the performance of a duty of a public nature that cannot be enforced by some other adequate legal remedy (mandamus);
(d)an order to prevent a person from wrongfully exercising, or purporting to exercise, functions of a public character (quo warranto).
Procedural fairness
In relation to the submission that natural justice was denied to the plaintiff, the concept of natural justice, or procedural fairness as it is commonly referred to today, incorporates two traditional rules; the hearing rule and the bias rule. The hearing rule, which is the relevant rule in this case, requires persons affected by a decision to be given an adequate opportunity to be heard before a decision is made which affects their interests.
The failure to adhere to a rule of procedural fairness is a well-established ground of judicial review and can be found in an order by way of prohibition, certiorari or mandamus. It is a separate ground of relief and is different from jurisdictional error.[33] An application for judicial review on the ground that there has been a failure to provide natural justice, or procedural fairness, must have regard to the fairness of the procedures adopted by the decision-maker, as distinct from the merits of the decision itself.
[33] Craig v State of South Australia (1995) 184 CLR 163, 175-6, Lymberopoulos v Police [2006] SASC 36, [33]-[35].
The rules of procedural fairness are not to be viewed as rigid and inflexible in their application. What may constitute procedural fairness in one case may not in another. As Mason J noted in Kioa v West (“Kioa”):[34]
What is appropriate in terms of natural justice depends on circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting.
There is therefore considerable scope in the standards of procedural fairness that may be required of a decision-making body.
[34] (1985) 159 CLR 550, 584-585.
The obligation to afford procedural fairness
In order to determine whether a decision should be subject to the requirements of procedural fairness, the courts have developed a threshold test or “threshold question” as it is alternatively referred to. In Australia, Mason J established the threshold test in Kioa when his Honour held: [35]
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
Mason J later qualified that the decisions must affect “rights, interests or expectations of the individual citizen in a direct and meaningful way”.[36]
[35] Kioa v West (1985) 159 CLR 550, 584.
[36] Kioa v West (1985) 159 CLR 550, 584.
The threshold test established by Mason J in Kioa has been supported by the High Court in numerous subsequent cases.[37] It can now be said in general terms, that unless there is a contrary statutory intention, the rules of procedural fairness apply when a decision is made affecting the rights, interests or “legitimate expectations” of an individual.
[37] See for example Attorney General (NSW) v Quin (1990) 170 CLR 1, 57-58 (Dawson J); Haoucher v Minister for Immigration and Ethic Affairs (1990) 169 CLR 648 (Deane J); Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane & McHugh JJ).
Rights, interests and legitimate expectations
In applying the threshold test established by Mason J, it is necessary to determine whether a decision affects a person’s rights, interests or “legitimate expectations” in the requisite meaningful way. The concept of “interests” is a broad one, encompassing but not being limited to, personal liberty, status, personal reputation and livelihood.[38]
[38] Kioa v West (1985) 159 CLR 550, 582.
In the section titled “Intervention Programs”, the Bail Act provides at s 21B(4):
Where a bail agreement contains a condition under this section-
(a)the person released on bail under the agreement must comply with conditions regulating his or her participation in the assessment or intervention program notified from time to time by the person’s case manager; and
(b)A failure to comply with a requirement under paragraph (a) may be regarded as a breach of a condition of the bail agreement.
A breach of a condition of a bail agreement is treated seriously and constitutes an offence under the Bail Act.[39]
[39] Bail Act 1985 (SA) s17.
Section 21B(6) of the Bail Act provides:
If an intervention program manager considers that—
(a) a person has failed to comply with a condition regulating the person's
participation in an assessment or intervention program; and
(b) the failure to comply (of itself or in connection with other matters) suggests
that the person is unwilling to participate in the assessment or program as
directed,
the manager must refer the matter to the court and the court must then determine
whether the failure to comply constitutes a breach of the bail agreement.
In this case the Magistrate appears to have been satisfied not only that there should be a termination, but also appears to have exercised his powers under s 21B(6) of the Bail Act, finding that it was a breach of the bail agreement. Further, his Honour also exercised his powers under s 18(1)(a) of the Bail Act when he cancelled the bail agreement and remanded the plaintiff for sentencing. In so doing, the Magistrate was thereby exercising powers as a Magistrate sitting in the Magistrates Court under s 18(1) of the Bail Act.
A further consequence to the plaintiff is that the Criminal Law (Sentencing) Act 1988 (SA) provides on one hand that if a participant has “performed badly in, or has failed to make satisfactory progress in an intervention program” this fact is not relevant to sentencing,[40] but, on the other hand, if a participant has successfully participated in such a program, this is relevant to sentencing.[41] The consequence is that if participants are removed from the Program they lack the ability to demonstrate rehabilitation in respect of important matters which impact upon the likelihood of future offending and the potential to have a suspended sentence imposed, or a shorter non-parole period.
[40] Criminal Law (Sentencing) Act 1988 (SA), s 10(6)(b).
[41] Ibid, s 10(6)(a).
As the decision, which is the subject of this application, affects the liberty of the plaintiff, there is no doubt that the plaintiff’s interests are relevantly affected by the decision of the learned Magistrate. I reject Ms Griffith’s submission that the fact that the plaintiff could make an application for fresh bail or could involve himself in other drug programs (unspecified), detracts from the consequences outlined above. Further, a change of bail may result in different conditions.
I will turn briefly to the concept of a “legitimate expectation” as it may be said that the plaintiff had a legitimate expectation that:
·this case would be listed for a hearing on whether he should be terminated from the Program; and
·he would be given an opportunity to be heard on that issue before being terminated from the Program.
The use of the “legitimate expectation” doctrine in the present sense is most thoroughly explored in the decision of Minister of State for Immigration and Ethnic Affairs v Teoh (“Teoh”).[42] In that case, the majority of the High Court held that the decision-maker had denied the applicants natural justice by not allowing them the opportunity to make a case against a decision inconsistent with a legitimate expectation. The legitimate expectation did not need to be held personally by the subject person, it was enough that it was an objectively “reasonable” expectation.[43]
[42] (1995) 183 CLR 273.
[43] Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 291.
The relevance and utility of the doctrine of “legitimate expectation” was questioned by McHugh J in Teoh when he held:[44]
I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker ‘to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it’. If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?
[44] Ibid, 311 - 312.
In the subsequent case of Re Minister of Immigration and Multicultural Affairs; Ex Parte Lam (“Lam”),[45] although it was not formally necessary for the High Court to reconsider Teoh, four of the five judges[46] expressed views which were critical of the reasoning of the majority in Teoh. In particular, questions were raised as to whether “legitimate expectation” now had any relevance. Callinan J observed:[47]
…the necessity for the intervention of the doctrine is questionable. The law of natural justice has evolved without the need for recourse to any fiction of “legitimate expectation.”
[45] (2003) 214 CLR 1.
[46] Ibid, 23ff (McHugh and Gummow JJ), 46ff (Callinan J), 38 (Hayne J).
[47] Ibid, 45.
In short, the case of Lam suggests that a majority of the High Court consider that, at best, the doctrine of “legitimate expectation” cannot give rise to substantial rights as distinct from procedural rights.[48] Instead, it may inform on the context of procedural fairness which would be required to be given in the situation in relation to the hearing rule. That is the approach which I adopt in considering this case.
[48] Ibid, 21ff (McHugh and Gummow JJ), 48 (Callinan J).
The hearing rule
It has been said that the hearing rule is best understood as “a bundle of potentially interrelated rights”.[49]
[49] W B Lane and S Young, Administrative Law in Australia (2007) [2.240].
The content of the hearing rule is dependent on the legislative and administrative framework in which the decision is made. In this case the decision was made by a magistrate, who is a judicial officer. Whilst the role of a magistrate in relation to the Program is largely supervisory, the reviews of progress of persons in the Program by the Drug Court may be characterised as supervisory administrative decision-making performed by a judicial officer. In another respect, the magistrate is empowered to make orders under the Bail Act. I will discuss these two aspects of the magistrate’s role separately. First, I will address the role of magistrates sitting in the Drug Court for a progress review.
The Court of Criminal Appeal discussed the role and nature of diversionary courts in R v McMillan.[50] Gray J observed: [51]
Specialist “courts” and assessment panels have been developed to facilitate this restorative and rehabilitative philosophy. Such courts are not ‘courts’ in the traditional sense but rather the forum through which treatment services and rehabilitation programs are coordinated, implemented and individual outcomes monitored.
In this case the question is whether the Drug Court is subject to the same procedural fairness requirements as a conventional court, which in turn raises the issue of what is a “court”.
[50] [2002] SASC 73.
[51] R v McMillan [2002] SASC 73, 553. For further discussion on the aims of diversionary programs, see pages 552-555.
In Mitsubishi Motors Australia Ltd v Kowalski,[52] the Full Court was required to determine whether the Workers Compensation Tribunal should be regarded as a “court” for the purposes of s 39 of the Supreme Court Act 1935 (SA). In deciding that it should be regarded as a court, Duggan J observed:[53]
A body does not have to be named as a “court” in the legislation which creates it for it to be regarded as a court in a particular context. I have expressed the view that the Tribunal is invested with judicial power. It has power to make binding and authoritative decisions on disputes between parties according to pre-existing standards. Its decisions are enforceable, albeit through the agency of the District Court.
[52] [2004] SASC 302.
[53] Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302, [31].
Duggan J further noted that there were similar procedures in Tribunals as courts generally. For example, both have the power to punish contempts and award costs, summon witnesses and direct the production of documents.[54] In determining the applicability of orders of the type prescribed in s 39 of the Supreme Court Act 1935 (SA), Duggan J commented:[55]
Abuse of process and detriment to other parties are features of vexatious proceedings in the Tribunal just as they are in civil courts of general jurisdiction.
[54] Ibid, [33].
[55] Ibid, [34].
The circumstance with which Duggan J was concerned was whether a statutory tribunal should be regarded as a court. In this case I am concerned with a different situation, namely where a magistrate, who is a judicial officer, makes decisions in what is commonly referred to as the “Drug Court”. The Drug Court on review is able to impose sanctions and appears to have all the trappings of a court, with listing procedures and hearing processes modelled on court procedures.In this case I did not hear any submissions on the issue of whether the Drug Court could be characterised as a “court”, however it is not necessary for the purposes of this review to make a specific finding on this point for reasons which appear hereafter. The Drug Court is able to make binding and authoritative decisions affecting the rights and liberties of individuals in a hearing and procedural fairness is required.
In relation to the right of the plaintiff to a hearing, I consider that within the context in which magistrates perform functions under the Program, it would be expected that magistrates would apply a level of procedural fairness akin to that required by a judicial officer in a court.
This level of procedural fairness is reinforced in this case when the Magistrate, on the same occasion, sat as the Magistrates Court and made orders revoking bail and remanding the plaintiff for sentence. In this latter respect, the Magistrate was clearly acting as a judicial officer, and was therefore required to adhere to the rules of procedural fairness.
Adequate prior notice
One of the bundle of rights which has been recognised as part of the hearing rule is that there must be adequate prior notice of matters pertaining to the impending decision. The case of Re Macquarie University; Ex parte Ong (“Re Macquarie University”)[56] provides an example of this requirement, albeit in a different context.
[56] (1989) 17 NSWLR 113.
In that case a committee had been set up for the purpose of determining whether a university Head of School should be removed from his office. The Committee provided the Head of School with prior notice of the matters it intended to investigate but later it added further matters without disclosing them to the Head of School. The Court held that this amounted to a breach of natural justice.
In the present circumstances, I consider that the plaintiff was not provided with adequate notice that the Magistrate intended to proceed to forthwith terminate him from the Program, instead of listing the issue of termination for hearing on another occasion as requested. Alternatively, if he had formed the view that immediate termination from the Program was appropriate, the Magistrate should have indicated this to the plaintiff in order to give him an opportunity to be heard on all aspects relevant to termination.
Adequate opportunity to address
The adequate opportunity to address is often linked with prior notice and is separately recognised as an aspect of the hearing rule. The content of this requirement, like many aspects of procedural fairness and the hearing rule, is entirely dependent on the particular circumstances of the case.
For example, in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[57] a Tribunal member said, at the end of a hearing, that she would write to the applicant regarding his inconsistencies in evidence and allow him to respond. She did not do this and the applicant was not given an opportunity to be heard on the inconsistencies. The joint majority of the High Court held that the Tribunal had denied the applicant procedural fairness.
[57] (2004) 221 CLR 1.
In this case the Magistrate did not indicate to the plaintiff that he intended to hear the argument immediately and not list it for hearing at a further date. This meant that the plaintiff’s counsel lost an opportunity of addressing important matters, such as the issue of whether his letterbox was “out of range”; whether the alleged short “out of range” breaches were indeed breaches of the conditions of detention; the possibility of faulty equipment; and the further aspects of his good behaviour since the third review.
In conclusion on this first point, I am satisfied that there was a breach of procedural fairness by the Magistrate in the process he used when terminating the plaintiff from the Program which resulted in actual unfairness.[58] I now move to consider the second ground of judicial review.
[58] Stead v State Government Insurance Commission (1986) 161 CLR 141, 147.
Did the Magistrate fail to properly exercise his discretion?
In exploring the plaintiff’s second argument that the Magistrate failed to properly exercise his discretion, it is necessary to consider the extent to which the Magistrate was bound by the Guidelines.
It is clear to me that the Guidelines are only guidelines and are not legislative requirements. They assist in providing a framework to the Program but do not act to fetter a magistrate’s discretion. However, a participant may reasonably expect that regard would be had to the Guidelines when being considered for termination. It is an aspect of what may be characterised as a legitimate expectation of procedural fairness that unless otherwise indicated, a magistrate would follow the Guidelines.
In the case of H,T v Police,[59] Sulan J discussed the role of the eligibility criteria guidelines for a mental health diversionary program, which is similar in operation to the Drug Court Program. In that case a steering committee had established policy guidelines in relation to eligibility requirements. When the magistrate rejected the plaintiff’s application for acceptance into the program, he based his decision solely on the said guidelines. Sulan J found that the Magistrate had erred by not exercising his discretion to consider the plaintiff’s application beyond the guidelines. He discussed the significance of the guidelines in the following passages: [60]
The fact that a steering committee has issued policy guidelines, including guidelines for eligibility as to entry into the program, cannot be binding upon a magistrate who must determine eligibility. The decision of the steering committee to exclude certain types of offences from the program can only act as a guideline to a magistrate. Each individual application must be considered on its merits…
The eligibility criteria, as set by the steering committee, are but one factor to which a magistrate may have regard when considering a person’s eligibility. There are other factors personal to the offender and relevant to the offending which must also be considered in making the decision whether or not to admit a defendant to the program.
[59] [2005] 91 SASR 329.
[60] H,T v Police [2005] 91 SASR 329, 337.
In the matter before me, I regard the Guidelines as having a similar effect. Whilst magistrates may consider the Guidelines in making a decision, they are not bound to follow its policies. However, if there is to be a departure, a participant should be given an opportunity to be heard on such departure. This of course is then connected with the earlier argument regarding procedural fairness.
In this case, there are two concerning features about the exercise of the Magistrate’s discretion. First, the Magistrate specifically took a different view from Mr Grasso SM who had already warned the plaintiff and ascribed penalty points in relation to his abusive language and conduct. The Magistrate, without the occurrence of any further such conduct, immediately terminated the plaintiff from the Program as he decided that his previous conduct warranted a more severe response. In my view, this approach by the Magistrate was in the circumstances unfair to the plaintiff and was in effect a double penalty for the same conduct. The second aspect of concern is that the Guidelines suggest a breach by a participant must consist of a level of seriousness before termination is considered. There was a potential aspect that no further grave conduct had occurred and the plaintiff had a total of only six points at the time. I specifically indicate that I do not make a finding that termination may not have been appropriate, but rather these were aspects which should have been fully argued and considered before terminating the plaintiff from the Program.
In summary, I consider that the Magistrate appears to have departed from the Guidelines, however, that does not necessarily mean that the plaintiff may, by virtue of that fact alone, apply for judicial review. Unlike the case of H, T v Police, [61] this is not an appeal. The relevance of the Guidelines of the Drug Court to judicial review is that it is one aspect of procedural fairness which participants in the Program can legitimately expect will be applied to them. If there is to be a deviation from the approach indicated in the Guidelines, then I consider that the plaintiff should be given an opportunity to be heard in respect of the departure. In this case, for reasons previously discussed, I find that the plaintiff was not given that opportunity.
[61] [2005] 91 SASR 329.
I therefore conclude that the Magistrate denied procedural fairness to the plaintiff in the circumstances of terminating him from the Program.
Orders which should be made
The focus of the application for review was on the termination of the plaintiff from the Program. But, as noted earlier, on the same occasion, the Magistrate, sitting as a Magistrates Court, exercised his powers under s 21B(6) and s 18(1)(a) of the Bail Act by revoking bail and remanding the plaintiff for sentence. Thus, the decision of the Magistrate had three components.
Rule 199(2)(b) of the Supreme Court Civil Rules 2006 allows this Court to make an order in relation to “the decision of another court or a tribunal that has a duty to act judicially…”. In my view there are doubts as to whether a Magistrate, in conducting reviews of participation in the Program is sitting as a “court” or a “tribunal with a duty to act judicially”. However, I am satisfied that a Magistrate, in purporting to exercise his powers under the Bail Act, is sitting as a Magistrate in the Magistrates Court.
Therefore in relation to the three interrelated components of the Magistrate’s decision in this case, namely, terminating the plaintiff from the Program, revoking bail and remanding the plaintiff for sentencing, he was, in all of the circumstances, acting in his capacity as a court.
I therefore make the following orders:
1I grant the plaintiff permission to proceed with the application for judicial review pursuant to Rule 200(1) of the Supreme Court Rules 2006.
2An order by way of certiorari setting aside the decision made by Mr Ackland SM on 22 October 2007.
3I will hear from the parties further as to consequential orders which may be required having regard to the plaintiff’s present circumstances
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