In re Nigel Lionel Scott - [2001] TASSC 34

[2001] TASSC 34

CITATION: In re Nigel Lionel Scott [2001] TASSC 34

PARTIES: SCOTT, Nigel Lionel, In re

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M66/2001
DELIVERED ON:  28 March 2001
DELIVERED AT:  Hobart
HEARING DATE:  27 March 2001
JUDGMENT OF:  Evans J

CATCHWORDS:

Administrative Law - Procedural fairness - Right of party affected to be heard - Nature of hearing - Representation of party affected - Parole Board (Tas).

Corrections Act 1997 (Tas), ss72, 78, 79.
Baba v Parole Board of New South Wales (1986) 5 NSWLR 338; Todd v Parole Board (1986) 6 NSWLR 71; Orreal v Queensland Community Corrections Board (1995) 81 A Crim R 212, considered.
Fraser v Mudge [1975] 1 WLR 1132; Ex parte Johns [1984] 1 Qd R 450; R v Secretary of State for the Home Department & Anor, Ex parte Tarrant [1984] 2 WLR 613; R v Visiting Justice at Her Majesty's Prison, Pentridge; Ex parte Walker [1975] VR 883, followed.
Aust Dig Administrative Law [60]

REPRESENTATION:

Counsel:
Applicant: C J Gunson
Solicitors:
Applicant: Abetz Curtis & Worsley

Judgment Number: [2001] TASSC 34
Number of paragraphs: 10

Serial No 34/2001
File No M66/2001

IN THE MATTER OF AN APPLICATION BY
NIGEL LIONEL SCOTT

REASONS FOR JUDGMENT EVANS J

28 March 2001

The applicant seeks an order that a writ of habeas corpus issue, directed to the Director of Corrective Services, to bring the applicant before the Court. He also applies for a general order for the Parole Board to show cause why a writ of certiorari should not issue to have its decision to revoke or suspend the applicant's parole quashed.

It appears from the material before me that some time prior to 7 March 2001 the applicant was granted parole in respect of a sentence of imprisonment he was then serving. The applicant having since been charged with one count of stealing, the Parole Board called on him to appear before it on 26 March 2001 and show cause why it should not revoke or suspend his parole. The applicant requested a lawyer, Mr C Gunson, to represent him before the Board. To that end, Mr C Gunson attended the venue for the Board's hearing on 26 March 2001, but was denied admission. The applicant presented before the Board without Mr Gunson. The Board suspended the applicant's parole for 14 days.

The applicant contends that the Board's refusal to allow him legal representation before it was a denial of natural justice. The Board is subject to the rules of natural justice. It has been so held in relation to similar bodies such as the Parole Board of New South Wales, see Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 and Todd v Parole Board (1986) 6 NSWLR 71, and the Queensland Community Corrections Board, see Orreal v Queensland Community Corrections Board (1995) 81 A Crim R 212. The situation is otherwise in Victoria where the Corrections Act 1986…

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 In re Nigel Lionel Scott

Details

AGLC: In re Nigel Lionel Scott [2001] TASSC 34
Case: [2001] TASSC 34
Decision Date: 28 March 2001

CaseChat Overview and Summary

The applicant in this case, Nigel Lionel Scott, sought an order for a writ of habeas corpus to be issued, which would bring him before the Supreme Court of Tasmania, and a general order for the Parole Board to show cause why a writ of certiorari should not issue to quash its decision to revoke or suspend his parole. The applicant argued that the Board's refusal to allow him legal representation before it was a denial of natural justice. The court examined whether the Board's refusal to allow legal representation constituted a breach of natural justice, and whether the applicant had a right to legal representation before the Board. The court held that a prisoner has no entitlement to legal representation as of right when prosecuted on a disciplinary charge or when appearing before the Parole Board to show cause why parole should not be revoked or suspended. The court noted that the public interest in the expeditious disposition of matters such as disciplinary proceedings against a prisoner outweighs other considerations, and that the Board has a discretion to allow representation but it is not an entitlement.

The court examined the relevant provisions of the Corrections Act 1997 to determine whether a different view might be reached in relation to a prisoner's right to representation on a parole hearing. The court found that the Act does not provide a prisoner with any basis for asserting an as of right entitlement to be represented before the Board and such an entitlement cannot be derived from the common law. The court held that the applicant had not established a prima facie case for the relief he seeks and dismissed his application. The court emphasised that its focus had been on whether a prisoner has an entitlement to representation before the Board, and that nothing it had said should be taken to suggest that the Board does not have a discretion to allow a prisoner representation.

Orders