Freeman v Prisoners Review Board - [2011] WASC 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FREEMAN -v- PRISONERS REVIEW BOARD [2011] WASC 18

CORAM: EM HEENAN J

HEARD: 13 DECEMBER 2010

DELIVERED : 13 DECEMBER 2010

PUBLISHED : 20 JANUARY 2011

FILE NO/S: CIV 2674 of 2010

BETWEEN: NATHANIEL GEORGE JOSEPH FREEMAN
Plaintiff
AND
PRISONERS REVIEW BOARD
First Defendant
HONOURABLE CHARLES CHRISTIAN PORTER MLA, ATTORNEY GENERAL, MINISTER FOR CORRECTIVE SERVICES
Second Defendant

Catchwords:

Administrative law - Application for prerogative writs and for declarations of right - Parole - Prisoners Review Board - Decision to advise Minister not to recommend to governor release of prisoner on parole - Rights of review - Alleged errors of law - Provision of reasons - Access to materials relied upon for recommendations contained in report by PRB - Discovery in aid of applications for judicial review

Legislation:

Criminal Code (WA), s 282(c) (repealed)
Offenders' Community Corrections Act 1963 (WA)
Parole & Sentencing Legislation Amendment Act 2006 (WA)
Sentence Administration Act 2003 (WA)

Result:

Orders for affidavit of discovery

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant              :     Mr D Matthews
Second Defendant         :     Mr D Matthews

Solicitors:

Plaintiff:     In person
First Defendant              :     State Solicitor for Western Australia
Second Defendant         :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149
NGJF v Prisoners Review Board [2010] WASC 107
Prisoners Review Board v Freeman [2010] WASCA 166
Tonkin v Brand [1962] WAR 2

EM HEENAN J: By notice of originating motion issued on 14 October the plaintiff seeks declaratory orders or writs of certiorari against the Prisoners Review Board (PRB) and the Attorney General and Minister for Corrective Services, the second defendant, in regard to a decision of the PRB on 23 July 2010 by which the Board determined to make a report to the Attorney General recommending that the plaintiff undergo nine months of individual counselling and, further, determined to make no recommendation to the Attorney for his release to parole, and in regard to a further decision by the Attorney General on 21 September 2010 accepting the recommendation of the PRB to make no recommendation to the Governor for the plaintiff's release to parole.
By the originating motion the plaintiff also seeks orders for the disclosure of certain reports, documents and other minutes of deliberations and/or resolutions of the PRB relating to or reflecting its recommendations/determinations.
Furthermore, by a notice in these proceedings issued by the plaintiff and dated 14 October 2010, addressed to the first and second defendants by their solicitors, the plaintiff is demanding that the first and second defendants give discovery of:
(1)the psychological assessment report completed on or around July 2010 and authored by Ms Helen Fowler, psychologist, which is held in the first defendant's possession;
(2)any and all relevant documents and/or materials relied upon by the first and second defendants to make their respective recommendations, determinations, and decisions;
(3)copies of any minutes of deliberation and/or resolutions of…

Grounds of appeal

[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.

Continue reading Freeman v Prisoners Review Board

Details

AGLC: Freeman v Prisoners Review Board [2011] WASC 18
Case: [2011] WASC 18
Decision Date: 20 JANUARY 2011

CaseChat Overview and Summary

Freeman brought an application against the Prisoners Review Board seeking prerogative writs and declarations of right. The applicant, who had been imprisoned, sought review of a decision by the Board not to recommend to the Minister that he be released on parole. The legal issues that the court was required to address included the rights of review, alleged errors of law, the provision of reasons, and access to materials relied upon for recommendations. The applicant argued that he had a right to know the reasons for the Board's decision and to see the materials upon which the Board relied. The Board, on the other hand, argued that the applicant had no such rights and that the court should not interfere with its decision-making processes.

The court held that the Board's decision was subject to judicial review and that the applicant had a right to know the reasons for the decision and to see the materials relied upon. The court found that the Board's decision-making process was flawed and that it had failed to provide adequate reasons for its decision. The court also held that the Board's decision was not immune from judicial review simply because it was a recommendation to the Minister. The court found that the Board had failed to consider relevant material and that it had acted in an irrational manner. The court further held that the applicant had a right to access the materials relied upon by the Board and that the Board's failure to provide such access was a breach of natural justice.

The court granted the application for prerogative writs and declarations of right. It ordered the Board to provide the applicant with reasons for its decision and to allow him access to the materials relied upon in making its recommendation. The court also ordered the Board to reconsider its decision in light of the reasons provided and the materials accessed by the applicant. The Board was directed to give the applicant an opportunity to make further submissions and to take into account any new material that the applicant might provide.

Orders