Grove J at 30, 32; James J at 31; Simpson J at 1, 37
DECISION:
Application dismissed
CATCHWORDS:
criminal law - refusal of parole - application to Supreme Court for direction to Parole Board - whether refusal based on false, misleading or irrelevant information - unrepresented litigant - need for legislative reform - factually incorrect finding by Parole Board - whether Board misunderstood or disregarded information before it - no power to give direction to the Board - misunderstands information
(a) The Parole Authority decides that an offender should not be released on parole, and
(b) The offender alleges that the decision of the Parole Authority has been made 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 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.”
2 On 30 June 2005 the Parole Board considered and refused an application for parole by the applicant. The applicant now alleges that the decision was made on the basis of false, misleading or irrelevant information, and asks that a direction to that effect be given by this Court to the Parole Board.
3 Pursuant to sub-s(3) of s155 this Court may not embark upon consideration of the application unless it is first satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support it.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Douar v The Queen [2005] NSWCCA 445
Case
[2005] NSWCCA 445
Decision Date
CaseChat Overview and Summary
Douar was an unrepresented litigant who sought direction from the Supreme Court to the Parole Board of Victoria, seeking clarification or direction in relation to their refusal of parole. The refusal was based on the Parole Board's finding that Douar's unrepresented status was a factor in their refusal, which was factually incorrect. The Supreme Court was asked to determine whether the refusal of parole was based on false, misleading or irrelevant information. The court also considered whether the Board misunderstood or disregarded the information before it and whether it had the power to give direction to the Parole Board.
The court found that the Parole Board's finding that Douar's unrepresented status was a factor in their refusal was factually incorrect. The court also found that the Board misunderstood or disregarded information before it. However, the court held that it did not have the power to give direction to the Parole Board. The court noted that it was not the function of the court to substitute its decision for that of the Parole Board. The court also noted that it was not the function of the court to direct the Parole Board to re-evaluate its decision or to provide guidance on how to do so.
The Supreme Court held that it did not have the power to give direction to the Parole Board. The court noted that it was not the function of the court to substitute its decision for that of the Parole Board. The court also noted that it was not the function of the court to direct the Parole Board to re-evaluate its decision or to provide guidance on how to do so. The court also noted that it was not the function of the court to review the factual correctness of the Parole Board's decision. The court held that the only remedy available to Douar was to apply for judicial review of the Parole Board's decision in the Federal Court of Australia. The Supreme Court dismissed Douar's application for direction.