Freeman v Prisoners Review Board
[2011] WASC 18
•20 JANUARY 2011
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 DefendantHONOURABLE 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Criminal Code (WA), s 282(c) (repealed)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 the first defendant relating to, or reflecting, their recommendations/determinations.
These claims for judicial review and associated relief are brought by the plaintiff in pursuit of his claims that, in all the circumstances, he is a suitable person to be released on parole, if necessary on conditions, from his sentence of life imprisonment imposed by the Children's Court of Western Australia on 28 August 1992 for the crime of wilful murder to which he pleaded guilty on 13 August 1992. That sentence was imposed under s 282(c)(ii) of the Criminal Code 1913 (since repealed).
As has recently been confirmed by the Court of Appeal in Prisoners Review Board v Freeman [2010] WASCA 166, the consideration of the suitability of the plaintiff for release on parole from his sentence and, if it were to occur, the procedure to be followed by the Board, by the second defendant and by the Governor in reaching a decision to release the plaintiff on parole is determined by the terms of the Offenders Community Corrections Act 1963 (WA) (otherwise repealed) (the OCC Act) to the extent that they have been applied and continued by s 86 of the Sentencing (Consequential Provisions) Act 1995 (WA) and the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The way in which this legislation continues to apply to the plaintiff is rather complicated and detailed but it is fully set out in the reasons for decision of Murphy JA in Prisoners Review Board v Freeman and, also, in the earlier decision of Hall J in NGJF v Prisoners Review Board [2010] WASC 107 which was, in part, varied in the ensuing appeal.
Under the applicable statutory provisions the OCC Act by s 34(2)(d) provided that the Parole Board (the predecessor of the first defendant) was to provide a report to the Minister 12 years after the commencement of a life sentence and every three years thereafter with respect to a prisoner serving a life term, and that the report may contain a recommendation as to whether or not to release the prisoner and the conditions of any such release ‑ s 34(6). In addition, there are other circumstances in which the PRB may make a report to the Minister either of its own volition or at the request of the Minister and such other reports are required, under the legislation, to include a recommendation regarding release.
Pursuant to this statutory schedule, reports under s 34(2)(d) of the OCC Act upon the plaintiff were due on 28 August 2004, 28 August 2007 and 28 August 2010.
For a prisoner serving a life sentence for wilful murder a grant of parole can only be made by the Governor following a report by the Board to the Minister. Accordingly, the making of any report by the Board to the Attorney General, with or without a recommendation with regard to release, and a subsequent decision by the Attorney General as the relevant Minister either to make, or to decline to make, a recommendation to the Governor in council for the release of the prisoner on parole, are recommendations or preliminary decisions to which regard must be paid by the final decision maker. As such they are sufficiently connected with that final decision so as to affect the rights and interests of the prisoner and so, subject to other discretionary considerations, this provides a basis for judicial review by declaratory order and/or by prerogative remedy: Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149; and Prisoners Review Board v Freeman [160] ‑ [171]. Judicial review of circumstances where a Minister may be obliged to tender advice to the Governor for the Governor to exercise a statutory power reposing in the Governor alone was granted by declaratory order by the Full Court in Tonkin v Brand [1962] WAR 2.
In Prisoners Review Board v Freeman and the earlier hearing of that application before Hall J in NGJF v Prisoners Review Board, the principal points at issue were whether or not certain decisions by the PRB, and by the Attorney General, respectively, to recommend against the plaintiff's participation in a resocialisation programme, and a recommendation by the Board to the Minister against recommending to the Governor to grant the plaintiff parole were decisions in respect of which the plaintiff was entitled to the provision of reasons, and the extent of the reasons which might need to be provided. The final resolution of that earlier litigation resulted in no orders being made against the Board or the Attorney because, as the Court of Appeal held, the report and recommendations of the Board and the decision of the Attorney were null and void, being based on a report made under the provisions of the Sentence Administration Act 2003 (WA) when it should have been made under the OCC Act. Nevertheless, the reasons for decision of the Court of Appeal appear to conclude that a valid recommendation in a report made by the Board under s 34(3) of the OCC Act would be a decision within the meaning of s 107B of the Sentence Administration Act 2003 in respect of which an obligation to provide reasons would arise.
By contrast, these present proceedings do not directly seek, except as may be necessarily incidental to the effective performance of judicial review, the provision of reasons for decision or further reasons for decision of the PRB or the Attorney for those decisions now under challenge, namely the determination and report of the Board of 23 July 2010 and the decision of the Attorney on 21 September 2010 not to recommend to the Governor to release the plaintiff on parole. Rather, the present proceedings challenge those decisions themselves on the basis that they involve various alleged errors of law and involve certain alleged failures to discharge duties and obligations under the applicable provisions of the OCC Act. The plaintiff also contends that there are other alleged non‑jurisdictional errors of law on the face of the record and errors of fact and law determined by the first and second defendants.
Accordingly, the present claim for judicial review is of a broader and more extensive nature than the relief claimed in the earlier litigation which was largely, if not entirely, limited to attempts to secure for the plaintiff notice of the reviews which might affect his interests, sufficient and specific reasons for any decision or recommendation by the Board or the Attorney, and for the provision to the plaintiff of a reasonable outline of the material and criteria relied upon by the PRB for making its decisions or recommendations.
Because of the more extensive nature of the claim for relief or judicial review in the present proceedings there would appear to be less scope for the defendants to maintain that the exclusion of the rules of natural justice effected by the relevant legislation prevents or limits the scope of judicial review, although this must be regarded as no more than a provisional and tentative observation at this stage as it is quite possible that the issue may be one of substantial controversy later in the course of these proceedings. That observation is made at this point with reserve and as no more than a possibility, because it cannot be assumed, at least at this stage, that because of the exclusion of the rules of natural justice by the applicable legislation there can be no right of access by the plaintiff or by the court to the record of documents comprising the decisions or recommendations in respect of which judicial review or prerogative relief is sought. Again, the extent to which access to these materials can or should occur for the purposes of effective discharge of the jurisdiction of this court to undertake judicial review or to consider the grant of prerogative relief may possibly emerge as a future issue in this litigation. From the point of view of dealing with the plaintiff's application for discovery and for making directions for the effective management of this litigation, I consider that the court should proceed on the basis that, subject to such objections or other grounds as may be raised by the parties, if any, access to the record and to other relevant materials should at this stage be ordered.
Accordingly, when this matter was before the court on 13 December 2010 I concluded that to ensure the proper progress of this litigation ‑ and to ensure that the potential for judicial review, if it is attracted, is properly evaluated ‑ there should be limited discovery which would result in documents being sought by the plaintiff being discovered by the defendants subject to claims of privilege. On that occasion, I expressed the view that I did not consider that I could, on any basis, reach a conclusion that there was no arguable basis for the plaintiff's claims for relief without having before the court sufficient notice of the record ‑ that is, the materials relied upon by the defendants for the decisions being challenged.
Consequently, on 13 December 2010 I ordered that within 21 days an officer or officers on behalf of each of the first and second defendants should file affidavits identifying those documents or materials in any way relied upon by the defendant or defendants in reaching the decisions being challenged or resulting in communications between the defendants concerning those decisions with sufficient particularity to allow the documents to be identified and produced, should the court later order such production.
In reaching that conclusion, however, I also observed that there might well be certain documents within those categories which may be privileged on one or more of a number of grounds, or that there might be privileged material in a document which would, otherwise, not be privileged. Consequently, I then directed that the affidavits which were to be filed on behalf of the defendants should advance all or any claims for privilege to all or any parts of the documents which are identified sufficient to allow those claims to be examined if it becomes necessary for that to be done in the future.
When making those orders, I gave brief reasons for those decisions, indicating that more detailed reasons would be given in due course. These present reasons canvass all the matters which I expressed when making those orders, but also refer to more of the background and the legislative framework to allow them to be read in a fuller perspective.
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