Esho v Parole Board Authority of NSW

[2006] NSWSC 304

CITATION:	ESHO v. PAROLE BOARD AUTHORITY OF NSW [2006] NSWSC 304
HEARING DATE(S):	15 March 2006
JUDGMENT DATE :	21 April 2006
JURISDICTION:	Supreme Court, Common Law
JUDGMENT OF:	Rothman J at 1
DECISION:	1. A declaration that an error of law has occurred in the decision, and the reasons therefor, made by the NSW Parole Authority on 20 September 2005 in relation to Edward Esho. 2. An order, in the nature of certiorari, pursuant to the terms of s.69 of the Supreme Court Act 1970, quashing the determination of the Parole Authority made 20 September 2005 in relation to Edward Esho, the claimant. 3. An order, in the nature of mandamus, pursuant to the terms of s.69 of the Supreme Court Act 1970 and pursuant to the terms of s.65 of the Supreme Court Act 1970, that the Parole Authority convene and fulfil its public duty by determining the application for parole in accordance with law.
CATCHWORDS:	ADMINISTRATIVE LAW - Parole - Orders in the nature of prerogative relief granted - public interest - intersts of community - benefit from further programs - all available programs completed - public interest in respect of jury verdict - adapt to community life not same as most optimum basis - finding in absence of evidence - error of law
LEGISLATION CITED:	Crimes (Administration of Sentences) Amendment (Parole) Act 2004 No. 94 Crimes (Administration of Sentences) Act 1999 Supreme Court Act 1970
CASES CITED:	A-G (Qld) v. Riordan (1997) 192 CLR 1 Banks v. Transport Regulations Board (1968) 119 CLR 222 Craig v. SA (1995) 184 CLR 163 LMS v. Parole Board (1999) 110 A. Crim. R. 172 MFA v. R. (2002) 213 CLR 606 Parisienne Basket Shoes Pty. Limited v. Whyte (1938) 59 CLR 369 Public Service Association (SA) v. Federal Clerks Union (SA) (1991) 173 CLR 132 R. v. Electricity Commissioners [1924] 1 KB 171 R. v. Victorian Industrial Appeals Court; ex parte Victorian Chamber of Manufacturers [1975] VR 84 Sinclair v. Maryborough Mining Warden (1975) 132 CLR 473 Swain v. Waverley Municipal Council (2005) 220 CLR 517
PARTIES:	ESHO, Edward v. STATE PAROLE AUTHORITY (FORMERLY PAROLE BOARD AUTHORITY OF NSW)
FILE NUMBER(S):	SC No. 30013/06
COUNSEL:	Claimant: Ms. Bashir Contradictor: Mr. Hoy (AGD)
SOLICITORS:	Claimant: Justin Claude Le Blond Contradictor: I.V. Knight, Ann Louise Bonner (Crown Solicitor)
LOWER COURT DATE OF DECISION:	03/15/2006

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LIST

JUSTICE ROTHMAN

21 April 2006

Edward ESHO v PAROLE BOARD AUTHORITY OF NEW SOUTH WALES
30013/2006

JUDGMENT

1 HIS HONOUR: The claimant seeks orders in the nature of certiorari and mandamus against the State Parole Authority (Parole Authority) in respect of its decision to refuse the parole of Edward ESHO, made on 20 September 2005.

2 It is necessary to acknowledge that the decision was made by the Parole Board of New South Wales which, pursuant to s.183 of the Crimes (Administration of Sentences) Amendment (Parole) Act 2004 No. 94 was reconstituted as the State Parole Authority effective from 10 October 2005 and the proceedings are properly brought against the State Parole Authority. The formal opponent, the State Parole Authority, submitted to any order of the Court save as to an order for costs and, as is usual, the Attorney General appeared as contradictor for which the Court is grateful.

3 The claimant also relies upon s.155 of the Crimes (Administration of Sentences) Act 1999 and applies for directions to the Parole Authority on the basis that information upon which it relied was false, misleading or irrelevant.

Facts

4 On 3 October 2000 Abadee J sentenced the claimant to imprisonment for a total period of six years and eight months commencing on 3 October 2000, setting a non-parole period or minimum term of detention of five years also to date from 3 October 2000. On 2 October 2005 the claimant was first eligible for parole. The maximum term of imprisonment for which the claimant was liable to be sentenced was seven years’ imprisonment and it can be seen that Abadee J took the view that the claimant should have imposed upon him almost the maximum sentence available. The reasons for that are set out in the remarks on sentence of Abadee J which are before the Court.

5 The claimant was involved in an incident which occurred on 18 April 1997 at Fairfield. The victim was a police officer, off duty at the time, Constable David Carty. Constable Carty was murdered. There were a number of people involved in the incident, one of whom was the claimant. The background was that after approximately 11 pm on 17 April 1997 a number of police, including Constables Michelle Auld and David Carty, gathered at a hotel for a drink after ceasing duty. Constable Carty was partly dressed as a police officer, wearing navy blue trousers and black police boots.

6 Prior to coming off duty, Constable Carty and another had dealt with an incident involving a number of men including the claimant. The claimant was reprimanded by Constable Carty concerning his use of certain alleged offensive language.

7 Shortly after the police arrived at the hotel a number of men, including the claimant, gathered at the hotel. They had come at different times from different places to the hotel. They noticed the police officers.

8 At about 2 am on the morning of 18 April 1997 Constables Carty, Michelle Auld and Spencer were present at the hotel, as were the claimant and a number of other persons.

9 Constable Spencer left the hotel, entered his car and drove away. Constable Auld entered her car and drove to a position where Constable Carty had opened his vehicle door and started the car engine. The Constable had a conversation with him and she left in her vehicle.

10 Constable Carty was approached by a number of men including the claimant. There was some dispute as to the exact number of people who approached the deceased. These people formed a semi-circle around him and an altercation began.

11 After the altercation commenced, one of the friends of the claimant, for reasons not revealed in the proceedings for the offences, was wounded and seriously injured in the neck. It is unknown who stabbed this person but Abadee J found that it was not Constable David Carty who at all times was unarmed and did not possess a knife. The wounded man moved backward, away from the melee, and was bleeding heavily. As he withdrew, he was accompanied by the claimant. Shortly after the above person was wounded, Constable Carty was stabbed in the chest, receiving a deep knife wound through the sternum, penetrating the back and the front of the aorta; this stab wound was fatal. It was common ground that it was the stab wound that was the cause of the death of Constable Carty who died shortly after being wounded.

12 Abadee J, on sentencing, emphasised that the fatal stab wound was received after the claimant had withdrawn from the initial altercation but remarked that the claimant had a significant role in starting the initial altercation. After the initial phase of the altercation, which included the fatal wound, there was a second phase which involved, relevantly, the claimant occasioning grievous bodily harm on Constable Carty whilst he was lying on the ground dying from the stab wound. It is not suggested that the claimant knew that Constable David Carty was dying at the time of this attack. Nevertheless it was described correctly by Abadee J as a “calice, cowardly” attack. This subsequent attack itself involved savagery and brutality by persons including the claimant.

13 The claimant was charged with murder (on the basis of his involvement in a joint criminal enterprise) and two other offences, namely, affray and, as an alternative to murder, maliciously inflicting grievous bodily harm with intent so to do. After a lengthy trial, the claimant was found not guilty of murder and not guilty of maliciously inflicting grievous bodily harm with intent so to do. He was found guilty of the statutory alternative offence which was maliciously inflicting grievous bodily harm. As already stated, it carries a maximum penalty of seven years’ imprisonment. He was also found guilty of affray but his sentence for that has concluded and it is irrelevant to this application.

Proceedings before Parole Authority

14 In the five years that the complainant has been in prison, he has had a relatively unblemished record and has moved from the status of maximum security to minimum security, classification C2. There is no suggestion that during the period of incarceration the complainant has acted in a way that diminishes his ability to operate on parole from that which was before Abadee J. During his internment, the complainant completed an Anger Management Program and in July 2002 was referred to the Violent Offenders Therapeutic Program, but at that stage his classification rendered him ineligible for inclusion in the program. Given that his classification as a prisoner has altered, there is a question as to the availability of the VOTP. In September 2004 the psychologist at Goulburn Correctional Centre advised that the claimant “would not have the necessary language (English) skills to qualify” for the program.

15 In November 2004 an LSI-R assessment was undertaken by Goulburn Parole Unit. It noted that his criminal history was minimal but he was assessed as a “medium risk” because of his criminal history and that he was involved in a serious crime, which he has denied.

16 A comprehensive psychological report was before the Parole Authority and before this Court. The conclusion of this report is that the claimant was “currently assessed as being within the low/moderate range”. The psychological report confirmed that a “barrier to progress may be Mr Esho’s low proficiency with the English language. … Mr Esho has limited reading and numeracy skills only completing primary school in a non-English speaking country.”

17 The pre-release report conducted by the Probation and Parole Service recommended that parole be granted conditioned upon attendance at individual psychological counselling.

18 Notwithstanding that report, the Parole Authority refused parole. Mr Esho had continued to express his innocence regarding the offence for which he was found guilty and there are a number of statements, by the Parole Authority and by the psychologists, that maintaining his innocence suggests a lack of remorse. The pre-release report from the Probation and Parole Service reiterated the claimant’s position that he considered himself innocent, that he was in “the pub” having a drink when the attack occurred and that he went to the assistance of his friend who, in his view, had been stabbed by the police officer and that there had been a cover-up of this information. However, the Probation and Parole Service states:

“To this Service, Mr Esho expressed some regret for what occurred when he said that the police officer was ‘a human being’ and he should not have been killed.
The inmate has continued to state that he is ‘innocent’ and that his sentence is ‘unfair’. He has maintained this stance through interviews with several parole officers and psychologists. From the psychological report dated June 2005, it is noted that the inmate’s offences are of a violent nature and occurred within the ‘context of group affiliation’.”

19 There is a fundamental difference between the maintenance of innocence to a charge and remorse and empathy at the injury inflicted on a victim. Members of society are entitled, without punishment, to maintain their innocence, even after they have been found guilty.

20 On 4 August 2005 the Parole Authority expressed its intention to refuse parole and notified the claimant accordingly. The claimant was not heard in relation to the formation of the intention of the Parole Authority. On 20 September 2005 the Parole Authority reconvened. The transcript of that meeting is before the Court. At that meeting the claimant was represented by Counsel who raised no issue associated with the formation of a preliminary intention and the lack of representation of the claimant at that initial meeting on 4 August 2005. Further, no issue was raised, it seems, as to the procedures adopted by the Parole Authority on 20 September 2005. It is noted that, notwithstanding a request, no interpreter was available for the claimant. At that hearing a number of reports were available, some extracts of which I have summarised above. Other material which was available which I have not hitherto addressed was a briefing note from the Parole Authority itself. It contained, relevantly, the following material:

“The matter has attracted public interest as it involved the death of a police officer, Constable David Carty. Constable Carty was killed in the early hours of 18 April 1997 in the car park of the Carnbridge Hotel, Fairfield.
At its meeting on 4 August 2005, the NSW Parole Board considered whether ESHO should be released on parole. The Board formed an intention to refuse parole and a public review hearing to consider this decision will be held on 20 September 2005.”

21 The Board also had before it the Probation and Parole reports to which reference has already been made and the conclusions in relation thereto and in-depth psychological reports.

22 Further, the Parole Authority had before it a submission from the New South Wales Police, in which the Police sought to have the Parole Authority take into account, in determining the question of consent to parole, the following matters, purportedly addressed to “the public interest”:

“He (the claimant) has not participated in any courses whilst in custody which would assist him to better integrate into the community. The offender continues to blame the NSW Police for his situation and maintains that he was not responsible in any way for the attack on CARTY. This attitude shows that the offender has no remorse for his actions. The attack on CARTY can only be described as furious and violent. There is nothing to indicate that the offender’s attitude towards violence has changed. In fact it is the New South Wales Police submission that the offender has not addressed his hostility towards members of the New South Wales Police.
This is of real concern when considering that, if the offender is released on parole, it appears that he will reside in the area where the offence occurred. An area where some of the police who worked with CARTY are still stationed. Clearly, in all these circumstances, it is not in the public interest to release an offender on parole who has not accepted responsibility for his offending behaviour nor attempted to address his attitude toward violence and Police Officers.”

23 This comment, particularly the comment as to whether or not the claimant had participated in any courses, was made without any indication as to the source of the information of the New South Wales Police. It was done in the context of a factual background which stated:

“David CARTY, a Constable of Police, was murdered in the car park of the Cainbridge Tavern at Fairfield. CARTY was stabbed once in the heart … ESHO continued the attack on CARTY.”

24 There was also a submission before the Parole Authority from the family of the victim. It stated:

“We are the parents and family of Constable David CARTY. We have suffered the imprisonment of a life sentence from the day our son David was murdered and had our future and dreams of our family forever damaged, our lives shattered until our dying days.
ESHO was sentenced to a term of only six years and eight months for his brutal involvement in our son’s murder. He was acquitted of murder but found guilty of malicious infliction of grievous bodily harm and affray. We believe his actions led to our son’s death. His non-parole period was five short years. If it were not for ESHO having an involvement with our son whilst David was on duty … our son would still be alive.
ESHO, to our dismay, had the cheek to appeal both the convictions of the jury and the very short sentence set down by the Courts. This we found unbearable and so unfair – we could not appeal anything! Continually he abused the system showing no responsibility for his actions and showing no regard for our son’s life. The Court of Criminal Appeal dismissed both of his appeals – five years for his involvement in David’s death is so lenient.”

25 I reiterate that the sentence imposed by the Court was four months less than the maximum sentence available under the legislation.

26 It is understandable that the family of David Carty (and the Police Service) would be overcome at his death. It is an appallingly tragic end to a life of dedicated service to the community. It is understandable that the death of Constable Carty would anger the family and the Police, as it would any correct thinking member of our community. It is also understandable that the attack on Carty, even the attack which occurred after the fatal blow, would anger all who know of it, and particularly the family and co-workers of the victim.

27 A number of persons were found guilty of the murder of Constable Carty. The claimant was not one of them. Having been charged with murder (and another more serious offence than that for which he was ultimately convicted) the claimant was acquitted. Anger and resentment at the death of Constable Carty, which to varying degrees we would all have but which would be felt most acutely by the family and co-workers, can not be directed at the claimant who was acquitted of any involvement in his murder and of acting with any intention to cause him grievous bodily harm.

Certiorari

28 In its historic form, two forms of certiorari are issued. The first, now in disuse, was for the purpose of removing a record or proceeding from one court to another so that the case could be better heard. The second and more modern form is the order removing the official record of a decision of a tribunal, or inferior court, to a superior court of record for the quashing of that decision because it was made without proper authority. Thereafter, it is usual for an order in the nature of mandamus to issue to require the public duty to be performed in accordance with the law as decided by the superior court.

29 Certiorari will issue against any body having authority under the law to determine issues affecting the rights of subjects, which body, having the right to act judicially, act otherwise than in accordance with its legal authority so to do: see R v Electricity Commissioners [1924] 1 KB 171 at 205 per Atkin LJ. Section 69 of the Supreme Court Act 1970 allows the issue of orders in the nature of certiorari and ameliorates some of the technicalities associated, historically, with the issue of the writ. Sections 65 and 69 of the Supreme Court Act 1970 do the same in relation to mandamus. There can be no doubt that the Parole Authority, in exercising the jurisdiction conferred upon it by the Crimes (Administration of Sentences) Act 1999, as amended, is amenable to such prerogative writs: LMS v Parole Board (1999) 110 A Crim R 172. Further, the capacity to grant or refuse parole is a matter which “affects the rights of subjects” as it has been interpreted in modern times: see Banks v Transport Regulations Board (1968) 119 CLR 222 and R v Victorian Industrial Appeals Court; ex parte Victorian Chamber of Manufactures [1975] VR 84.

30 There are four essential grounds for the grant of certiorari being: jurisdictional error; denial of natural justice; fraud; and error of law on the face of the record. There are nice questions as to whether a denial of natural justice is, in any event, a jurisdictional error, but the question is of academic interest only, in a case such as this where no privative clause exists. Under the common law, certiorari would issue only for an error of law on the face of the record, which record did not include the reasons for decision: see Craig v SA (1995) 184 CLR 163. By the operation of sub-section 69(4) of the Supreme Court Act 1970 the legislature has defined the face of the record to include the reasons for any decision.

31 Mandamus, on the other hand, will issue only for jurisdictional error being an actual or constructive refusal to exercise jurisdiction. However, once certiorari has issued to quash a relevant decision, then the public duty reposed in the body remains unexercised and mandamus will issue.

32 Nevertheless it is an important aspect of understanding the jurisdiction exercised by the Supreme Court reviewing the Parole Authority to understand the nature of jurisdictional error as it now is. In Public Service Association (SA) v Federal Clerks Union (SA) (PSA v FCU) (1991) 173 CLR 132 the High Court had occasion to deal with jurisdictional error and the distinction between mandamus and prohibition. In the course of that appeal from the Full Court of the Supreme Court of South Australia, which, in turn, issued writs against the Full Commission of the South Australian Industrial Commission, Brennan J (as he then was) said at 143-144:

“The essential relief which the [prosecutors] sought and obtained by way of judicial review was an order requiring the Full Commission to hear and determine according to law the application for leave to appeal which, it was submitted, the Full Commission had constructively failed to determine. The foundation for relief of this kind is stated by Jordan CJ in ex parte Hebburn Ltd; re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, in a passage cited by Aitkin J in R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 at 268:
‘I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of the statute, does not necessarily constitute constructive failure to exercise jurisdiction: R v Minister of Health [1939] 1 KB 232 at 245-246. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and … inadmissible test”: Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917; or to “misconceive its duty”, or “not to apply itself to the question which the law prescribes”: R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 242-243; or “to misunderstand the nature of the opinion which it is to form”: R v Connell (1944) 69 CLR 407 at 432; in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R v Board of Education [1910] 2 KB 165.’
In this case the Full Commission’s error lay in regarding their proposed appeal as involving no more than an appellate review of an unstructured discretion whereas, as we have seen, the proposed appeal required a re-hearing on the merits of the issues … The Full Commission misconceived its jurisdiction and failed to consider the true question which they had to decide, namely, whether leave to appeal should be granted to permit a rehearing of the application on the merits. This was a jurisdictional error.”

33 While the above passage adumbrates the principles on jurisdictional error, certiorari issuing out of the Supreme Court issues for error of law on the face of the record. But it is not every error for which certiorari will issue. It must be an error upon which the judgment is based and it must be an error of a kind that affects the task undertaken by the tribunal. Of course, it can be an error of law which is not jurisdictional. An administrative tribunal lacks authority to determine questions of law authoritatively or bindingly or to make an order or decision otherwise in accordance with the law.

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.” ( Craig (1995) 184 CLR 163 at 179)

34 While it is true that certiorari will issue for an error of law on the face of the record (which includes the reasons), certiorari, like prerogative relief generally, is discretionary and unless it can be shown that the error of law has affected the exercise of the discretion or power reposed in the specialist tribunal, a court would not generally intervene to grant relief. Thus, even though certiorari will issue for error of law beyond jurisdictional error, it must be an error of law which affects in substance the exercise upon which the tribunal has embarked. I turn then to the duty of the Parole Authority and its exercise.

Duty of Parole Authority

35 Section 135 of the Crimes (Administration of Sentences) Act 1999 recites the duty of the Parole Authority in the following terms:

“135(1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest.”

36 Sub-section 135(2) of the Act adumbrates a number of matters to which the Parole Authority must have regard: the need to protect the safety of the community; the need to maintain public confidence in the administration of justice; the nature and circumstances of the offence to which the offender’s sentence relates; any relevant comments made by the sentencing court; the offender’s criminal history; the likelihood of the offender being able to adapt to normal lawful community life; the likely effect on any victim, and on any such victim’s family, of the offender being released on parole; any report in relation to the granting of parole to the offender that has been prepared by … the Probation and Parole Service; any other report; guidelines; such other matters as the Parole Authority considers relevant.

37 The existence of the last criterion (“such other matters as the Parole Authority considers relevant”) has a significant effect. Firstly, on its face, it allows the Parole Authority to take into account matters that the Parole Authority itself considers relevant. In that regard it is not the objective relevance of a criterion to which challenge may be made but only whether it was open to the Parole Authority to consider it relevant: see, by analogy, Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391. Secondly, by including that criterion and expressing it in that way, of necessity, sub-section 135(2) exhaustively adumbrates the criteria relevant to the public interest. This does not mean that there cannot be error because the tribunal has failed to take into account a relevant matter. Indeed, on one view, it makes more compelling addressing an error of that kind. On the other hand, it will be more difficult to substantiate a proposition that an irrelevant matter has been considered. The test will be, not whether the consideration is irrelevant, but whether it could not, as a matter of law, be relevant.

38 On 20 September 2005 the Parole Board issued its formal decision in which it determined:

“That the offender not be released from a correctional centre until further review by the Board for the following reasons:
The Board has sufficient reason to believe that if released from custody at this time, the offender would not be able to adapt to normal lawful community life; risk of re-offending; need for victim’s submissions.”

39 As a matter of law, there was no need at the time of the issue of the decision for “victim’s submissions”. Victim’s family’s submissions were already before the Parole Board and were taken into account. If this were a reason (and it is stated as such) for the refusal of parole, it would be an error of law affecting its decision for which orders in the nature of certiorari would issue and, consequently, orders in the nature of mandamus.

40 It is suggested that the inclusion in the formal publication of the decision of the words “need for victim’s submissions” was a typographical or ‘word processing’ error. Were it not for the existence of s.69(4) of the Supreme Court Act 1970, the Court would be bound to treat as the record that which emanated as the decision and confine its determination to that material. The provisions of s.69(4) of the Supreme Court Act 1970 do not lessen the requirement to treat the published reasons of the Parole Board as the record of the decision and the reasons therefor. This is an error although it is unlikely to have affected the decision sought to be impugned.

41 After a short adjournment at the conclusion of the proceedings before the Parole Authority on 20 September 2005, the Chair of the Authority delivered its reasons for the decision to refuse parole. There are aspects of those reasons which need to be addressed.

Reasons for Decision on Parole Authority

42 Firstly, the Board remarked on the evidence before it, namely, that, for the first time, the claimant admitted his guilt whereas previously he had asserted his innocence. The Board said such an admission made “a significant difference because in custody he had done one course of anger management but he had not done any courses which might address his violent behaviour and that was a matter of concern for the Board and obviously is one of the matters which must have cause to suggest there is a risk of re-offending.”

43 Further, the Board took into account the submissions of the family of Constable Carty for whom it expressed deep sympathy. Thirdly, the Board expressed its duty as “s.135.1 of the Crimes (Administration of Sentences) Act 1999, which says that the Parole Board may only make a parole order if it is in the interest of the community”. They then reiterated that the complainant, for the first time today, admitted his guilt and remarked that “that therefore makes it more likely that he would benefit by having his violent behaviour treated. For that reason the Board is not going to grant parole today, and parole is refused for the reasons stated.”

44 When a court is dealing with a decision of a specialist tribunal, it is entitled, dare I say required, to take account of the expertise within the tribunal and give to the tribunal’s determination great weight on matters within that expertise.

“… the Court gives particular weight to the evaluation made by the [tribunal]. This approach was stated by Mason J in R v Alley; ex parte NSW Plumbers and Gas Fitters Employee’s Union (1981) 153 CLR 376 at 390. In that case, Mason J, referring to the comments of Fullagar J in R v Blakeley; ex parte Association of Architects etc of Australia (1950) 82 CLR 54 at 92 to 93 said:
‘His Honour, though maintaining the doctrine that this Court must determine for itself questions on which the jurisdiction of the [tribunal] depends, drew a distinction between questions of law and questions of fact. He said that if the jurisdiction depends on matters of fact, considerable weight is attached to the decision of the [tribunal] … He concluded by saying (82 CLR 54 at 93), after referring to the remarks of Isaacs J in Caledonian Collieries v ACSEF (1930) 42 CLR 527 at 547-548:
“It may be more correct to say that, as to fact, a doubt as to error is resolved in favour of the decision of the inferior tribunal.”
The weight to be given to the [tribunal’s] decision will depend on the circumstances. If the evidence remains the same … and if the issue of fact is one in the resolution of which the [tribunal’s] knowledge … specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent.’
That case was followed by the Court in R v Ludeke; ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 183-184.” ( A-G (Qld) v Riordan (1997) 192 CLR 1 at 14-15 per Brennan and McHugh JJ)

45 The above statement of principle, while applying to prerogative relief against the Australian Industrial Relations Commission on the question of whether or not there was a situation likely to give rise to an industrial dispute, is a statement of principle generally applicable to specialist tribunals. It is a statement of principle which I apply to the decision of the Parole Authority on the question in issue before this Court.

46 Nevertheless, applying those principles, one is forced to the position that there are significant and fundamental errors in the exercise of the jurisdiction of the Board and/or Authority.

47 I have already discussed the consideration given by the Parole Authority to the submissions of the family and the Police Force which rely upon the role of the claimant in the murder of Constable Carty. The necessary inference from the material before the Court, conceded by the Attorney General, is that the submissions of each of the family and the police were taken into account in its decision. While the Attorney General sought to submit that the Court could assume that those parts of the submissions which relied upon the participation of the claimant in the murder were not relied upon by the Parole Authority, that would require the Court to excise from evidence before the Authority material that was clearly before it and which, on any analysis, it took into account.

48 Further, and even more fundamentally, the Authority based its decision upon the determination that it was preferable for the claimant to receive treatment under the Violent Offenders Therapeutic Program in prison before his release. In the words of the Parole Authority, this would make it “more likely that he would benefit from having his violent behaviour treated”. That the claimant, and indeed any person, would benefit from having violent behaviour treated, is a truism. However, the evidence before the Authority was that the claimant had undertaken every program available to him. The only program which could possibly have been contemplated by the Authority was a program unavailable to the claimant because of his lack of English. Questions arise as to the lawfulness of taking into account a condition on the grant of parole which the claimant is less likely to achieve because of his ethnicity. Nevertheless, it is unnecessary for the Court to determine that question. It is sufficient, for my purposes, to determine that the only evidence before the Authority was that the need for therapy was best served by individual therapy which was unavailable in prison. Further, even that which would be available to another prisoner, and may have sufficed for better treatment, was not available to this claimant and would not be available no matter how long the claimant remained in prison. On the basis of the evidence that was before the Authority, it would be impossible to come to the view that any treatment, more than had already been received, was available to the claimant or would ever be available in prison. In taking into account the possibility of treatment which was not available, the Parole Authority has taken into account an irrelevant consideration and has erred in law, and erred in the exercise of its jurisdiction.

49 I next turn to the question of the test propounded by the Authority in the determination of the question before it. The test propounded by the Authority was that it “may only make a parole order if it is in the interests of the community”. That of course is not the test in the Act. The Act requires that the Authority refuse parole unless it is satisfied that it is in the public interest to grant it. The public interest would ordinarily be understood to be broader than the “interests of the community”.

50 The public interest includes, as s.135(2) of the Act makes clear, the administration of justice. The administration of justice includes the principles associated with the proper regard for the sentence initially imposed by Abadee J and, most particularly, includes the finality and legitimacy accorded to verdicts of juries. As Gleeson CJ said in the context of a civil trial:

“Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of the court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind.” ( Swain v Waverley Municipal Council (2005) 220 CLR 517 at [2])

51 In the context of criminal cases “a ‘verdict of a jury’, particularly in serious criminal cases, is accepted, symbolically, as attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality.” (MFA v R (2002) 213 CLR 606 at [48]).

52 As a consequence, to the extent that the Authority had regard to the submissions of the family and police on the role of the claimant in the murder of Constable Carty, that regard was, itself, contrary to public interest and contrary to the duty imposed upon the Parole Authority.

53 As is further made clear by the provisions of s.135(2), the public interest includes the “need to maintain public confidence in the administration of justice”. That criterion is juxtaposed with the “need to protect the safety of the community”. The public confidence in the administration of justice includes the necessity to give full effect to the sentence of Abadee J and the determination of the jury.

54 While it is true that the tribunal is entitled to take into account the likely effect of the release of the claimant on the victim’s family, that effect must be conditioned on the understanding that, in the case of this claimant, there is an understandable reluctance by the victim’s family and the police to differentiate the role of the claimant as found by a jury from the roles of the murderers.

55 Further, the function of the Parole Authority in determining the question before it under s.135 is not to determine what would be the most optimum basis upon which the claimant could be released into the community. It is to consider “the likelihood of the offender being able to adapt to normal lawful community life”. On the evidence before the Parole Authority, the claimant had suitable accommodation and employment, he had attended and passed anger management courses, he had expressed remorse at the death and/or injuries to the victim and he had completed every course available to him (and which was likely to be available to him) in prison.

56 The expert reports that were before the Parole Authority were all to the effect that he had a low to moderate likelihood of re-offending and recommended release on parole subject to the condition of one to one treatment which was unavailable in prison. In those circumstances there is no basis, on the evidence, upon which the Parole Authority could possibly have found the claimant was not “able to adapt to normal lawful community life”. Indeed, if its predominant consideration was, as expressed in its reasons, that the claimant “would benefit from having his violent behaviour treated” then the only manner, on the evidence before the Parole Authority, by which that could occur would be by the grant of parole. The only decision, as a matter of law, on the material available to the Parole Authority, if treatment were the determinative criterion, was that “the release of the offender is appropriate in the public interest”. The finding of the Parole Authority, in the absence of evidence, is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483.

57 As already made clear, the Parole Authority took into account irrelevant considerations, it failed to take into account relevant considerations, and it made errors of law in that it made a decision for which there is no basis in evidence or material. In those circumstances, writs are appropriate. It is unnecessary for me to deal with the application under s.155 of the Crimes (Administration of Sentences) Act 1999, and all of the other grounds for the issue of writs.

58 On the above bases the determination of the Parole Authority was without authority.

59 I make the following orders:

a A declaration that an error of law has occurred in the decision, and the reasons therefor, made by the NSW Parole Authority on 20 September 2005 in relation to Edward Esho;

b An order, in the nature of certiorari, pursuant to the terms of s.69 of the Supreme Court Act 1970, quashing the determination of the Parole Authority made 20 September 2005 in relation to Edward ESHO, the claimant;

c An order, in the nature of mandamus, pursuant to the terms of s.69 of the Supreme Court Act 1970 and pursuant to the terms of s.65 of the Supreme Court Act 1970, that the Parole Authority convene and fulfil its public duty by determining the application for parole in accordance with law.

60 I will hear the parties on costs.

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