Holschier v State Parole Authority - [2009] NSWSC 916

CITATION: Holschier v State Parole Authority [2009] NSWSC 916

HEARING DATE(S): 20 August 2009

JUDGMENT DATE :
11 September 2009

JUDGMENT OF: R A Hulme J

DECISION: Relief sought refused

CATCHWORDS: ADMINISTRATIVE LAW - judicial review - error of law on face of record - jurisdictional error - decision of State Parole Authority - determination not to rescind order revoking parole - reasonableness of decision - onus of proof - not accepting evidence despite finding not untruthful - whether witnesses had interest in outcome of proceedings - assessment of voice identification evidence

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Supreme Court Act 1970
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270
Attorney General for New South Wales v New South Wales State Parole Authority & Hall [2006] NSWSC 865
DCU v State Parole Authority of New South Wales [2006] NSWSC 526
Esho v Parole Board Authority of NSW [2006] NSWSC 304
Hall v NSW State Parole Authority & Anor [2006] NSWSC 1411
Murray v NSW State Parole Authority [2008] NSWSC 962
Regina v Adler (2000) 52 NSWLR 451
Regina v Korgbara (2007) 71 NSWLR 187
Robinson v The Queen (1991) 180 CLR 531

PARTIES: John Raymond Holschier (Plaintiff)
State Parole Authority (First Defendant)
Attorney General for NSW (Second Defendant)

FILE NUMBER(S): SC 2009/30060

COUNSEL: Mr A Haesler SC (Plaintiff)
Mr C Lonergan (Second Defendant)

SOLICITORS: Legal Aid NSW
Crown Solicitor's Office

- 1 -

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

R A Hulme J

11 September 2009

2009/30060 John Raymond HOLSCHIER v State Parole Authority and Attorney General for New South Wales

JUDGMENT

1 HIS HONOUR: On 30 March 2009 State Parole Authority (“the Parole Authority”) declined to rescind a revocation of the plaintiff’s parole. The plaintiff seeks a declaration to the effect that errors of law attended that decision. The basis for the decision was that the Parole Authority was satisfied that the plaintiff had committed a breach of a condition of his parole. The consequential relief sought is that the matter be remitted for rehearing according to law.

2 The Parole Authority has filed a submitting appearance. The second defendant, the Attorney General for New South Wales, has taken the active role in opposing the relief sought.

Statutory regime for parole and revocation of parole

3 Part 6 of the Crimes (Administration of Sentences) Act 1999 (the Act) provides for the granting of parole to offenders who are subject to sentences of imprisonment, whether by way of full-time, periodic or home detention, for which a non-parole period has been specified. An offender is eligible for release on parole when the non-parole period has been served (s 126). An offender who is so eligible may not be released unless a parole order has been made (s 127). A parole order is subject to conditions specified by the Act, the regulations or the sentencing…

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 Holschier v State Parole Authority

Details

AGLC: Holschier v State Parole Authority [2009] NSWSC 916
Case: [2009] NSWSC 916
Decision Date: 11 September 2009

CaseChat Overview and Summary

The matter before the court involved Holschier, an appellant, and the State Parole Authority, the respondent. Holschier sought judicial review of a decision by the Authority not to rescind a prior order that revoked his parole. The case was heard in the Supreme Court of New South Wales. The core dispute centred around whether the Authority's decision was legally sound and reasonable, specifically focusing on the Authority's refusal to consider certain evidence presented by Holschier.

The legal issues before the court included whether the Authority made an error of law in its decision-making process and whether the Authority's refusal to rescind the parole revocation order was unreasonable. Additionally, the court needed to determine if the Authority erred by not accepting evidence that Holschier claimed would have altered the outcome, despite acknowledging that the evidence was not inherently untruthful. Another key issue was whether the witnesses providing this evidence had a stake in the proceedings, potentially biasing their testimony.

In reaching its decision, the court examined the Authority's assessment of the evidence presented, particularly the voice identification evidence. The court found that the Authority's decision was not irrational or unreasonable, given the weight of the evidence and the Authority's assessment of its credibility. The court also noted that the witnesses' potential interests in the outcome of the proceedings did not necessarily undermine the reliability of their testimony. Consequently, the court concluded that the Authority's decision was within its legal and factual powers and did not constitute a jurisdictional error. The appeal was dismissed.

Orders