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

1. 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.

1. 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.

1. 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 provides that in exercising its functions, the Parole Board is not bound by the rules of natural justice. Whilst the rules of natural justice apply to the Board, they do not impose a general right for legal or lay representation before a body such as the Board. Whether representation is necessary to secure a fair hearing depends on all the circumstances of the particular case. The weight of authority is strongly against it being an incident of the rules of natural justice that a prisoner, involved in a proceeding of the nature of the hearing the applicant faced when he appeared before the Parole Board, has an entitlement to legal representation. Authorities dealing with proceedings equatable with a hearing as to the revocation or suspension of a prisoner's parole are to the effect that in that situation a prisoner has no entitlement to legal representation as of right. The public interest in the expeditious disposition of matters such as disciplinary proceedings against a prisoner outweighs other considerations. In Fraser v Mudge [1975] 1 WLR 1132, the Court of Appeal held that a prisoner charged with an offence against prison discipline was not entitled to legal representation, although the rules referable to hearing the charge included the following provisions on a prisoner's right to be heard:

"At any inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case."

1. Much the same issue was dealt with in Ex parte Johns [1984] 1 Qd R 450 where Derrington J held that a prisoner charged with a disciplinary offence had no right to legal representation at the hearing, either at common law or pursuant to the terms of the applicable legislation. In that case, the relevant statute provided that:

"Every hearing and determination … shall be in the presence and hearing of the prisoner charged with the offence, who shall be entitled to be heard to cross-examine any witness."

1. Authorities to the same effect are; R v Secretary of State for the Home Department & Anor, Ex parte Tarrant [1984] 2 WLR 613 and R v Visiting Justice at Her Majesty's Prison, Pentridge; Ex parte Walker [1975] VR 883.

1. It being well established that a prisoner has no entitlement to legal representation when prosecuted on a disciplinary charge, I turn to the provisions of the Corrections Act 1997 in order to assess whether a different view might be reached in relation to a prisoner's right to representation on a parole hearing. Pursuant to s72, the Parole Board is required to determine whether prisoners should be released on parole and in doing so, the Board is to take into consideration a number of matters detailed in s72(4), including the likelihood of re-offending or breaching parole conditions, rehabilitation and the protection of the public. If granted, parole is subject to such terms and conditions as the Board considers necessary, s72(5). A prisoner on parole is taken to be still under sentence, s78(1). With reference to the Board revoking or suspending parole s79(1) and (2) provide:

"79    (1)     Subject to subsection (2), the Board may, at any time, of its own motion or on receiving a report from a probation officer or any other person –

(a)     revoke a parole order; or

(b)     vary, amend or confirm a parole order; or

(c)     suspend a parole order on such terms as it thinks fit; or

(d)     exercise in relation to a parole order more than one of its powers under paragraph (b).

(2)     Unless the Board considers it impracticable to do so, the Board is not to revoke or suspend a parole order granting parole to a prisoner unless it has first called on the prisoner to show cause why any of those powers should not be exercised."

1. The Act makes provision for the early release of prisoners by the Parole Board subject to a number of requirements, including the protection of the public.  The Board's obligations to consider the protection of the public and monitor parolees are backed up by a power to revoke parole.  It is manifest that a grant of parole to a prisoner is a concession subject to immediate revocation.

1. As to the Board hearing a prisoner when considering whether the prisoner should be paroled, s72(2) provides, "A prisoner whose release on parole is being considered … may be heard personally on the matter by the Board if the Board so determines." No obligation is placed on the Board to hear the prisoner, although the Board may determine to do so. In that event, if the prisoner sought to be represented before the Board, the words "may be heard personally" in s72(2) make it plain that the prisoner has no right to insist on being heard via a representative.

1. When practical, before revoking or suspending parole, the Board must call on the prisoner to show cause why the Board should not so act, s72(2). This requirement does not impose an express obligation on the Board to see the prisoner in person. The Board's request that the prisoner show cause could be in writing, as could any response. In practice, I have no doubt that, as in this case, when the Board calls on a prisoner to show cause, it does so by meeting with the prisoner in person. I cannot discern any intention from the Act that a prisoner be given a right to be represented when called upon to show cause. Such an intention would be contrary to the procedure provided for in relation to the Board's decision on granting parole and would not serve the Board's fulfilment of its functions. When determining whether parole should be granted, revoked or suspended, it is incumbent on the Board to consider matters such as the likelihood of a prisoner re-offending or complying with parole conditions, rehabilitation and the protection of the public. A face to face interview with a prisoner can provide the Board with valuable insight into the prisoner's prospects. A regime which entitled prisoners, as of right, to be represented at hearings before the Board could discourage prisoners from conversing with the Board. This would be undesirable. 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. Accordingly, the applicant has not established a prima facie case for the relief he seeks.  His application is dismissed.

1. My focus has been on whether a prisoner has an entitlement to representation before the Board.  Nothing I have said should be taken to suggest that the Board does not have a discretion to allow a prisoner representation.  I am in no doubt that such a discretion exists.  It is not difficult to envisage circumstances in which that discretion should be exercised in favour of a prisoner.  The limited information before me about what occurred when the applicant appeared before the Board on 26 March 2001 is incapable of establishing that the Board was then obliged to exercise its discretion to allow the applicant representation.