Islam v Director-General of the Act Department of Justice and Community Safety Directorate
[2020] ACTSC 7
•31 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Islam v Director-General of the ACT Department of Justice and Community Safety Directorate |
Citation: | [2020] ACTSC 7 |
Hearing Date: | 12 November 2019 |
DecisionDate: | 31 January 2020 |
Before: | Crowe AJ |
Decision: | See [73] |
Catchwords: | ADMINISTRATIVE LAW – Judicial Review – application for judicial review of decisions to terminate the applicant’s placement in the Men’s Accommodation and Support Services Program and to cancel the applicant’s Parole Order – applicant seeking an extension of time – where Everyman Australia is not a public authority or agency – where the Parole Board acted in accordance with its obligations in coming to its decision to cancel the applicant’s parole |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 5, 10 Crimes (Sentence Administration) Act 2005 (ACT) ss 6, 120, 126, 153, 156, 148, 210 Supreme Court Act 1933 (ACT) s 34B |
Cases Cited: | Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 Kioa v West (1985) 159 CLR 550 Varney v Parole Board of Western Australia [2000] WASCA 393; 117 A Crim R 514 |
Parties: | Self-represented (Applicant) Director-General of the ACT Department of Justice and Community Safety Directorate (First Respondent) EveryMan Australia (Second Respondent) Sentence Administration Board of the Australian Capital Territory (Third Respondent) Australian Capital Territory (Fourth Respondent) |
Representation: | Counsel Self-represented (Applicant) S Whybrow (First and Fourth Respondents) |
| Solicitors Self-represented (Applicant) ACT Government Solicitor (First and Fourth Respondents) | |
File Number: | SC 388 of 2019 |
Crowe AJ
The applicant is a detainee at the Alexander Maconochie Centre (AMC). His sentence expires on 3 July 2024. He became eligible for parole on 3 January 2019. In November 2018 he met with a representative of the second respondent, EveryMan Australia (EMA), to discuss his participation in the Men’s Supported Accommodation and Support Service (MASS). This service is run by EMA to provide accommodation and other services to those in the criminal justice system.
In early December 2018, the applicant commenced a hunger strike in relation to certain grievances relating to his incarceration at the AMC. Later that month, the applicant was admitted to the Canberra Hospital due to concerns about his deteriorating medical condition. He remained at the hospital until 21 March 2019.
In the meantime, on 22 February 2019, the third respondent (the Board) decided under sub-s 126(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (the C(SA) Act) that the applicant should be released on parole on 25 February 2019. It was a condition of his parole that the applicant reside in accommodation approved by the first respondent (the Director-General). At the same time as making the parole decision, the Board set the date of 28 March 2019 for a parole management hearing under s 153 of the C(SA) Act.
In early March 2019, the applicant began consuming food. However, there were a number of incidents that occurred at the Canberra Hospital which led to police being called in to assist. These included: a report that he had inappropriately exposed himself; and, that he had entered the room of an elderly female patient and engaged in threatening behaviour. Indeed, his behaviour deteriorated to such an extent that he was admitted to the Intensive Care Unit where he was sedated and placed on a medically supervised feeding program.
The incidents summarised at [4] above, and some others, were set out in an “Information Report” completed by Ms E Byrne on 19 March 2019.
On 20 March 2019, the applicant barricaded himself in his room. It was reported that he had fashioned a weapon of some sort from the metal inserts of a binder folder in his possession. Staff from ACT Corrective Services attempted to negotiate with the applicant for him to open the door to his room, however this was unsuccessful. Eventually, police were again called to deal with the situation. The officers who initially attended were unable to resolve the stand-off and the tactical response group was called in. A warrant was issued and that group forced entry and arrested the applicant.
The ACT Corrective Services staff dealing with the applicant produced a breach of parole report in relation to the 20 March 2019 incident. They cited his failure to comply with a direction and his possession of an offensive weapon as breaches of his parole conditions. The report recommended cancellation of the applicant’s parole.
On 21 March 2019, the applicant was discharged from the Canberra Hospital to the Crisis Support Unit at the AMC.
On 28 March 2019, Mr J Peach, the Executive Director of ACT Corrective Services, wrote a submission to the Board for its hearing on that date. The submission noted that the hearing was a combined breach of parole and parole management hearing. It referred to a number of incidents involving the applicant since his return to the AMC. These included:
(1)a report that the applicant had been making verbal threats to kill officers, and that he had attempted to hand an officer a note with names written on it asking for his brother to be contacted to carry out “hits”;
(2)that the applicant had claimed that officers were trying to murder him, and that he was responding incoherently;
(3)a report that the applicant had been observed consuming faecal matter from his underwear; and
(4)the applicant had attempted to grab at a medical professional.
Mr Peach expressed concerns in relation to the applicant’s mental state and as to whether EMA would have the capacity to meet his care and treatment needs. He referred to reports from mental health professionals, which had been obtained in 2009 and 2010 for the initial criminal proceedings against the applicant.
The hearing before the Board proceeded on 28 March 2019. The applicant participated in the proceeding. He claimed that the incidents the subject of the reports before the Board were due to food poisoning. He also pointed out the age of the medical reports referred to by Mr Peach. The applicant responded to Mr Peach’s submissions about the applicant’s behaviour and to the breach of parole report by providing his account of the events in question. A substantial submission was also made by Mr Hancock from the ACT Government Solicitor essentially supporting the cancellation of the applicant’s parole. It appears that Mr Hancock was representing the Director-General at the hearing.
The Board decided to adjourn the hearing to give the applicant an opportunity to respond to the matters raised in the breach report and the submissions from Mr Peach. It was suggested to him that he should, if possible, obtain assistance from the Legal Aid Office of the ACT. The hearing was adjourned to Wednesday 3 April 2019. The applicant was remanded in custody under s 210 of the C(SA) Act.
On 29 March 2019, Mr Hockaday, an employee of EMA, and Mr Hawkins, the Case Manager of the applicant at that time, met with the applicant for the purposes of assessment. What occurred during the assessment was summarised in a case note made by Mr Hawkins (Exhibit “A1”). The following is an extract:
Mr Hockaday began to discuss Mr Islam’s case plan, it appeared Mr Islam started to become frustrated and confused. As Mr Hockaday tried further to engaged (sic) – Mr Islam started to write words on Mr Hockaday’s notebook. It looked like Mr Islam wrote ‘HNM’ Mr Hockaday then tried again to talk to Mr Islam. Mr Islam then wrote on the CM’s note book ‘James Joyce - NUTT’. Mr Islam then asked for a piece of paper, Mr Hockaday supplied Mr Islam with the paper out of his note book. As Mr Hockaday again tried to discuss Mr Islam’s case plan, Mr Islam drew a large circle on the case plan and then wrote ‘OK’ in the middle of the circle.
Mr Hockaday again tried to engage with Mr Islam stating words to the effect of ‘I will Takbir you’ (Takbir is the Arabic phrase for Allahu akbar (sic) – god is great). The CM stated words to the effect of ‘it’s all good Isa – take your time’, Mr Islam let out a moan appearing frustrated. Mr Islam then proceeded to open the Quaran next to him and proceeding (sic) to take notes – ignoring the CW and CM. There were a number of pauses and interruptions by the CW and CM trying to re-engage with Mr Islam. Mr Islam would return back to writing notes each time being dismissive using acknowledgments like ‘ok’.
At one point Mr Islam held the pen in the centre of the circle he had drawn on his case plan in front of Mr Hockaday and just held the pen in place – staring at the pen with no comment. The CM asked Mr Islam again would he like us to return at a later date, Mr Islam recommenced taking noting on the piece of paper that was supplied to him. Mr Hockaday stated words to the effect of ‘Isa you appear to be taken with what you are doing, would it be ok if we return at a later date.’ Mr Islam responded with words to the effect of ‘yeah boys, we will do this another time.’ As the CM and CW left the room Mr Islam kept noting words onto the piece of paper supplied to him.
Later that day, EMA emailed Corrective Services advising that it was no longer willing to provide services and accommodation to the applicant.
On 1 April 2019, Mr Hawkins provided a Legal Aid application to the applicant. At one point the applicant said that he would be representing himself. Nevertheless, he completed the application which was then submitted by Mr Hawkins. The applicant also completed a handwritten submission in which he argued that the recent incidents raised at the hearing on 28 March 2019 were the result of food poisoning and not a deterioration in his mental health. He claimed that he was not a danger to public safety and that he had ceased consuming the food (dates) which had caused the food poisoning.
Two further documents were created on 1 April 2019. Corrective Services produced a further breach of parole report in relation to the applicant’s failure to engage with EMA and the MASS program. The report noted that because of his lack of engagement, the applicant no longer had suitable accommodation in the community. It repeated the recommendation that the Board cancel the parole order. On the same day, Mr Hackling and Ms Akyol-Quinn wrote an Information Report which summarised the events recounted at [15] above.
On 2 April 2019, staff from the Legal Aid Office tried to contact the applicant. The file note relating to that attempt states (see Exhibit “D1”):
Visits asked for Mr Islam to be brought to visits to meet with his legal team. He said to this officer ‘Chief just tell them to proceed on the 10th im (sic) too weak’. I tried to explain to
Mr Islam that he has a hearing with SAB tomorrow the 3rd, he replied ‘Na Chief its in about 9 days on the 10th’.
On that same date Mr Peach made a further written submission to the Board addressing various matters which had arisen during the 28 March 2019 hearing. In particular, he pointed to the withdrawal of the applicant from the MASS and the uncertainty that he would engage with the Legal Aid Office. He also noted that the Director-General had sought a report as to the applicant’s health status under s 77 of the Corrections Management Act 2007 (ACT) (CMA).
The hearing on 3 April 2019 proceeded with the applicant representing himself. After acknowledging that he had received the documents referred to in paragraphs [13]-[14] and [16]-[18] above, the applicant handed up written submissions he had prepared (that is, in addition to that which he completed on 1 April 2019). A copy of those submissions did not find their way into evidence before this Court.
In relation to representation by Legal Aid, the applicant told the Board that he was happy to proceed without representation. This was in circumstances where, for some reason, the applicant believed that the adjourned hearing would resume on 9 or 10 April and he wanted a Legal Aid lawyer to appear at that time.
In any event the hearing proceeded by the Board seeking the applicant’s response to each incident of concern. I do not propose to set out the incidents and the applicant’s responses. Suffice to say that in line with the previous hearing the applicant explained his conduct by reference to food poisoning, and by arguing that his behaviour did not constitute a threat to public safety.
The Board adjourned at a little after 12:30 pm to allow the parties to prepare submissions. It resumed just before 2:00 pm. The applicant submitted that he was over the food poisoning and that he was not a danger to the community. He concluded:
I think that’s backed up by the police reports, the other reports that you guys can access. So, yes, given all that I think – you know, I’ve continued to work on my health issues here. I have double rations, at least I did up until yesterday. Hopefully those rations continue, so, I have a chance to improve my health. I have a chance, should you guys grant me an adjournment, and that’s probably I think the best I can hope for, given that EveryMan’s removed my accommodation and I know you guys wouldn’t release me to parole without accommodation. So I think the best I can hope for is an adjournment.
I’d be asking for an adjournment for two weeks or something, to give the board, the honourable board, the chance to check the facts and check reports and in in that time, I can contact my case manager and have EveryMan brought back in and attempt to engage, perhaps with another case manager of EveryMan, in a more – given that these date issues have been sorted out, I can attempt to engage EveryMan in a more open and fair manner.
Mr Hancock and Mr Hackling (the Community Corrections Officer) both made submissions in favour of the revocation of parole. The former pointed out that s 210 of the C(SA) Act only provided a limited opportunity for adjournment and that it was open to the applicant to make a further application for parole once he had re-engaged with EMA.
The applicant submitted that he would be able to re-engage with EMA within 7 days. However, Mr Hackling stated that the referral to EMA would have to start again and that it would not be possible for the process to be completed within 7 days.
The Board gave its decision after a short adjournment. It found that each of the incidents referred to in the Information Report of 19 March 2019 has been proved. It also found the breaches cited by the breach of parole report of 20 March 2019 had been proved. The Board concluded its decision as follows:
So, what the board concludes from all of this is that you have no approved accommodation and it is a core condition for parole and the board can’t change that core condition. It’s set down in the regulations. So, some other points the board would like to note, the board, in part, adjourned from last week, to give you the opportunity to have legal representation. And the board finds that you were offered this opportunity but for whatever reason, didn’t take that opportunity up yesterday.
The board notes that you would like another adjournment and the board has already adjourned your matter twice. The board also notes that one of the reasons you gave to have another adjournment was to re-engage with EveryMan but based on what Mr Hackling has advised the board, seven days would not be adequate and you will have to start again on that process. Also you wanted an adjournment so that the board would itself gain information that would support various aspects of what you put to the board but in the board’s view, it is not clear what evidence does exist that hasn’t already been put to the board and in any case, the board finds there’s sufficient evidence to make findings as I’ve explained above.
Going…(inaudible)…Mr Islam and ACT Corrective Services have provided various explanations about why you behaved like you have, and all the board can say is we don’t know why you’ve behaved like you have. We don’t have any evidence about why you’ve behaved like you have. You did indicate on many occasions that it was food poisoning and at one stage possibly even some after effects (sic) from the hunger strike. Mr Hackling has told us that he received information that your blood tests, at the time of being barricaded in to the room showed that there were not serious consequences from the hunger strike. And you did see a doctor and could have got a medical certificate, if indeed that doctor could have provided you with one. But you haven’t given that to us today.
So all the board can say is the primary concern of the board is the public interest and that involves looking after community safety, and what the board has to look at is your behaviour. You have a risk level of medium. You are doing time for very serious offences. We note that these behaviours and these incidents occurred from 1 March to 20 March, which is almost the entire period you were out on parole in the community.
So all of these findings and considerations lead the board to decide that we will cancel your parole today and this is based, as I said, on the findings above, particularly those that relate to the breach report dated 20/3, the information report dated 19/3 and the information report dated 1/4. So I’m formally cancelling your parole as a result of the management hearing but we also take note of the findings in relation to the breach report that I mentioned.
On 9 April 2019, the applicant made a fresh application for parole. That application was ultimately refused on 7 November 2019.
The proceedings before this Court
The applicant commenced these proceedings by Originating Application (OA) dated
5 August 2019. The OA has been amended a number of times. The relief sought by the time of the hearing was as follows:
(1) To review the decision of Everyman Australia (EMA) of the ACT Department of Justice and Community Safety (JACS) Directorate, made on 1 April 2019, (sic) that Isa Islam be terminated from the Men’s Accommodation and Support Services (MASS) Program, pursuant to s 17(1)(a) and s 17(1)(d) of the Administrative Decisions (Judicial Review) Act 1989.
(2)To grant prerogative relied and other relief, pursuant to, inter alia s 17(1)(a); s 17(1)(c) and s 17(1)(d) of the ACT Administrative Decisions (Judicial Review) Act 1989.
(3)To review the decision of the ACT Sentence Administration Board, given on the 03 April 2019, that the Parole Order for Isa Islam be cancelled, pursuant to s17(1)(a) and s 17(1)(d) of the ACT Administrative Decisions (Judicial Review) Act 1989.
I have assumed from the contents of ground 3 of the OA that the applicant applies for an extension in time in which to bring these proceedings. That ground provides:
Decision of the Third Respondent (ACT Sentence Administration Board): (03 April 2019):
Pursuant to s 10(b) of the Administrative Decisions (Judicial Review) Act 1989 regarding the 28 day lodging limit for Judicial Review, the Court must have regard to the time the applicant became aware of the decision. Is ay (sic) the serious medical issues of the applicant pressed in comprehensive detail later in his application are the reason for the applicant failing to lodge the application within 28 days, and the applicant begs the Court’s leave for special consideration as a self-represented litigant who is not a lawyer.
In accordance with s (sic) 3557(4) of the Court Procedure Rules 2006 the Court may extend the time for starting proceedings of Judicial Review in special circumstances. I say the Applicant’s Hunger Strike, health issues (incoherence)(delirium) the fact he has yet to receive written notice of his Parole cancellation and the fact that he is a non-lawyer, self-represented litigant, constitute special circumstances.
The Board filed a notice of intention to respond (except as to costs).
The Director-General and the fourth respondent (the Australian Capital Territory) were represented by Mr S Whybrow of counsel.
The applicant tendered the following which were admitted into evidence:
(1)Bundle of documents consisting of 19 pages – Exhibit “A1”.
(2)Identification photograph of the applicant – Exhibit “A2”.
The active respondent tendered the following which were admitted into evidence:
(1)Affidavit of Nathan Robert Hancock sworn on 12 November 2019 – Exhibit “D1”.
(2)Incorporated Associations Search in relation to EMA and extract from its website – Exhibit “D2”.
Everyman Australia
It is apparent from Exhibit “D2” that contrary to the applicant’s understanding, EMA is not part of the Directorate of Justice and Community Safety. Indeed, it is incorporated association having essentially charitable objects. These include providing support for ex-prisoners.
There is simply no evidence that EMA is a public authority or agency. Nor is there any evidence to suggest that it made any decision under an enactment or which would otherwise be susceptible to judicial review. The claims for relief against EMA must fail.
Submissions of the Applicant in relation to the cancellation of parole
The applicant claimed that the Director-General and the Board denied him natural justice by failing, given that he was self-represented, to “further explore” the reasons behind his behaviour at the hearing on 3 April 2019. He argued that it should have been obvious that he was in no condition to understand the case made against him and reply to it (referring to Kioa v West (1985) 159 CLR 550 (Kioa) at 582). In that context, the Board should have adjourned the hearing on 3 April 2019 in order to obtain medical evidence as to his condition as he requested on a number of occasions.
The applicant relied particularly on the decision in Singh v Sentence Administration Board of the Australian Capital Territory [2004] ACTSC 74 (Singh) at [62].
The applicant asserted that his submissions before the Board were incoherent, nonsensical and illogical. He also argued that the Board should have taken into account his presentation at the earlier hearing on 28 March 2019 (see [11] above), his bizarre behaviour at the meeting with EMA on 29 March 2019 (see [13] above), and the fact that he had recently been on a long term hunger strike which had led to his admission to the Intensive Care Unit at the Canberra Hospital. He also claimed to have been suffering from food poisoning.
The Board should have realised that the applicant’s behaviour was out of character based on its previous interactions with him, and the fact that it was aware of his tertiary qualifications (three masters degrees and completion of a PhD thesis).
In addition to the alleged breach of natural justice, the applicant argued that the conduct of the Board in failing to adjourn the matter to explore his medical condition amounted to an improper exercise of discretion (under sub-s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (AD(JR) Act)). By not obtaining evidence about his medical condition, the Board failed to take all relevant considerations into account in exercising its power to cancel his parole (see Varney v Parole Board of Western Australia [2000] WASCA 393; 117 A Crim R 514 (Varney) and Stewart v Southern Queensland Regional Parole Board [2009] QSC 332) (Stewart). It also erred in allowing him to represent himself when the Director-General was represented by Mr Hancock from the ACT Government Solicitor.
Finally, the applicant submitted that the Board had fallen into error in failing to provide adequate reasons for its decision. It is asserted that it failed to provide him with written reasons for the decision.
Submissions of the Director-General
At the outset of his submissions, Mr Whybrow pointed out that the applicant does not have a right to parole. Rather, the Board was obliged to consider his application in the light of s 120 of the C(SA) Act which required it to have regard to the principle that the public interest was of primary importance. In that context, the cause of the applicant’s behaviour was not of importance. If those behaviours indicated that he was a risk to public safety it would not be in the public interest for him to be released on parole.
He submitted that the conduct of the applicant which was taken into account by the Board provided ample reasons for it to conclude that it would not be in the public interest for parole to be granted.
Moreover, there was no obligation on the Board to inquire as to the reasons for the applicant’s conduct. If there was an explanation for the conduct which may have indicated that it was unlikely to be repeated, it was for the applicant to provide evidence of that explanation.
In relation to the applicant’s claim that he was in some way incapable of representing himself at the Board hearing, Mr Whybrow directed the Court’s attention to the 28 March and 3 April 2019 transcripts of proceedings as evidence of the fact that the applicant was able to provide explanations, answer questions, and engage in complex reasoning and discussions.
As to the issue of legal representation, Mr Whybrow argued that the evidence demonstrated that the applicant chose to represent himself and not take up the opportunity to potentially be represented by the Legal Aid Office of the ACT. In those circumstances, there was no obligation on the Board to prevent the applicant from appearing on his own behalf.
On the adjournment issue, Mr Whybrow noted that the Board was subject to the C(SA) Act. It had already adjourned the hearing once, remanding the applicant in custody for that period. Section 210 of the Act provided:
210Custody of offender during board hearing adjournment
(1)This section applies if the board adjourns a hearing for an inquiry in relation to an offender.
(2)The board may order that the offender be remanded in custody during the adjournment.
Note Pt 3.2 (Remand) applies in relation to the order for remand.
(3) However, the board may order the remand of the offender –
(a) for no longer than 7 days for each adjournment; and
(b) only twice for the same inquiry; and
(c) if the offender has previously been remanded in custody in relation to the same inquiry – only if the hearing was adjourned on the second occasion because of circumstances beyond the board’s control.
(4)For subsection (3)(a), the day the board adjourns the hearing, and the day the offender appears before the board at the adjourned hearing, are both counted.
Note For the grant of bail to the offender, see the Bail Act 1992.
The evidence suggested that it would take more than 7 days for any re-engagement of EMA so that any adjournment for 7 days or less would be futile.
Mr Whybrow noted that in any event the applicant could make a further application for parole. There was therefore nothing to be gained by adjourning the hearing.
In addition to the substantive matters addressed by Mr Whybrow, he also argued that the applicant’s application was out of time under both the AD(JR) Act and, in so far as he sought judicial review otherwise, under r 3557 of the Court Procedure Rules 2006 (ACT)(CPR). He submitted that no good explanation was given for the delay in commencing proceedings. This was highlighted by the fact that the applicant was able to make a further application for parole a week after the 3 April hearing. The applicant was also able to take a number of steps to progress that application before commencing the current proceedings on 5 August 2019.
Finally, Mr Whybrow submitted that it would be futile to make any declaration in circumstances where the cancellation decision had been overtaken by the further parole application. That should weigh heavily against extending time.
The Applicant’s submissions in reply
The applicant repeated the substance of his initial submissions. He also argued that he should be given latitude in relation to the limitation periods having regard to his illness and the fact that he was not a trained lawyer. He claimed to be ignorant of the limitation periods.
Consideration
The applicant’s extension of time claims are made under the ADJR Act and pursuant to s 34B of the Supreme Court Act 1933 (ACT)(Supreme Court Act). In relation to the former, s 10 of that Act provides:
10 Period in which application for order of review must be made
(1)An application to the Supreme Court for an order of review in relation to a decision that has been made (including a decision made after the end of the period within which it was required to be made) must be made within the period required by subsection (2)(or any further time allowed by the court) if the terms of the decision were –
(a) recorded in writing; and
(b) set out in a document that was given to the applicant.
NoteThe court may allow further time after the end of the period required by s (2) (see Legislation Act, s 151C)
(2)For subsection (1), the period within which an application for an order of review is required to be made is the period beginning on the day the decision is made and ending 28 days after the relevant day.
(3)If there is no period prescribed for making an application for an order for review in relation to a particular decision, the Supreme Court may refuse to consider an application for an order for review in relation to the decision if it is of the opinion that the application was not made within a reasonable time after the decision was made.
(4)If there is no period prescribed for making an application by a particular person for an order for review in relation to a particular decision, the Supreme Court may refuse to consider an application by the person for an order for review in relation to the decision if it is of the opinion that the application was not made within a reasonable time after the decision was made.
(5)In forming an opinion for subsection (3) or (4), the Supreme Court –
(a) must have regard to –
(i) the time when the applicant became aware of the decision; and
(ii)if subsection (4) applies – the period prescribed for the making of an application by anyone for an order of review in relation to the decision; and
(b) may have regard to anything else it considers relevant.
(6)In subsection (2):
relevant day means –
(a) if the decision includes, or is accompanied by, a written statement of reasons for the decision – the day a document setting out the terms of the decision is given to the applicant; or
NoteFor the meaning of statement of reasons, see the dict.
(b) if paragraph (a) does not apply and a written statement of reasons for the decision is given to the applicant (otherwise than because of a request under section 13(1)) not later than 28 days after the day a document setting out the terms of the decision is given to the applicant – the day the statement is given to the applicant; or
(c) if paragraph (a) does not apply and the applicant requests the person who made the decision to give a statement under section 13(1) –
(i) the day the statement is given to the applicant; or
(ii)the day the applicant is told under section 13(3) that the applicant was not entitled to make the request; or
(iii)the day the Supreme Court makes an order under section 13(6) declaring that the applicant was not entitled to make the request; or
(iv)the day the applicant is told under section 14(3) or section 15(3) that the statement will not be given to the applicant.
(d) in any other case – the day a document setting out the terms of the decision is given to the applicant.
There is no evidence that the Board provided the applicant with a document recording the cancellation decision. It would be surprising if he had not been provided a copy of the “Notice of Cancellation of Parole Order” (at pp 25-26 of Exhibit “D1”). I note that in ground 15 of his Second Amended OA, the applicant asserts that the Board did not provide him with a “written decision”. Be that as it may, it is clear that the applicant was present and heard the decision delivered by the Board, and the reasons given for that decision, on 3 April 2019.
Assuming that sub-ss 10(1) and (2) do not apply, it is necessary for the Court to consider what constituted a “reasonable time” for the purposes of sub-ss 10(3) and (5). That exercise involves a similar process to that required for an extension of time decision under sub-s 10(1) (see Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 at 126 per Beazley J). Importantly, an assessment of the merits of the application remains a key consideration. While there is some force in the argument that, in the circumstances of this case, the “reasonable” time limit should be measured with reference to the 28 day period allowed under sub-s 10(2), ultimately it is not necessary for me to address this issue as I have determined the application on the merits (see below).
In relation to the judicial review claim under s 34B of the Supreme Court Act, as Mr Whybrow submitted, the relevant time limit applying to the applicant’s claim was the
60 day period specified under sub-r 3557(2) of the CPR. It is clear that the applicant required an extension in time under that rule. For the reasons advanced by Mr Whybrow, it is doubtful as to whether the applicant could demonstrate the required “special circumstances”. The claims made by the applicant in ground 3 of his Second Amended OA are not particularly convincing. To my observation, the applicant has demonstrated a reasonably sophisticated capacity to understand and use legal processes. Furthermore, there is no evidence to support the proposition that his health was so poor in April/May 2019 that he was unable commence the current proceedings.
However, for the same reason given in relation to the ADJR Act time limit, it is not necessary for me to consider the other discretionary factors relevant to extending time. As I have determined the merits of the substantive application there can only be one conclusion in relation to the application to extend time.
Failure to adjourn
As noted above, the applicant placed particular reliance on the decision in Singh.
In that matter Ms Singh had been found guilty of manslaughter. She was sentenced to 10 years imprisonment with a non-parole period of 4 years. She was released on parole after the expiry of 4 years on conditions including that she abstain from illicit substances. Some 2 years after her release on parole, urinalysis reports indicated that she had used cannabis in contravention of her parole conditions. She was summonsed to a Board hearing which gave her a formal warning in relation to her admitted breaches. However, in the next few months she returned a number of urinalysis results positive for cannabis. The Board directed her to attend a further hearing on
20 April 2004. Just before the hearing, Ms Singh’s legal representative contacted the Board advising that his client had only just received notice of the hearing. He sought an adjournment to obtain expert reports.
The Board agreed to adjourn the hearing to 27 April 2004. Ms Singh’s lawyer requested a further adjournment because there was a difficulty in obtaining the proposed psychiatric report by that time. However, the Board decided to proceed with the hearing. At the hearing further, more recent test results were provided, which were positive for cannabis and cocaine. Ms Singh did not have time to put these tests to the experts she wished to call. The Board decided to revoke her parole.
It was in that context that Higgins J decided that the Board had fallen into error. His Honour said at [62]:
By declining to permit an opportunity to further explore those issues the Board failed to afford natural justice to the applicant.
It is apparent from his Honour’s analysis that he saw the decision to proceed as one which resulted in the failure to take into account “material of a critically relevant character”.
As can be seen, the decision in Singh turned on its particular factual circumstances. Those circumstances are quite different from those under consideration here.
Having regard to the findings made as to the issues raised in the breach of parole report of 20 March 2019, the matters raised by Mr Peach in his submissions of
28 March 2019, and the lack of approved accommodation, the Board decided, in the exercise of its management power, to cancel the parole order on 3 April 2019. In that context, it decided that parole would no longer be suitable for the applicant (see sub-s 156(3)(b) of the C(SA) Act. It did not make a decision under s 148 C(SA) Act in relation to the asserted breaches of parole: see Exhibit “D1” (NHI pp 22-24), although the Board took those matter into consideration; see the last sentence of the transcript extracted at [25] above.
In the light of the submissions made by the applicant, the crucial issue here is whether there was anything about the way in which he conducted himself before the Board on 3 April 2019 which required it to terminate the hearing and take steps to investigate the reasons for that conduct.
In that regard I accept the submission of the Director-General that the transcript of the hearing on that date fails to demonstrate that the applicant was so incapable of representing himself that the Board should have adjourned the hearing. On the contrary, in my view, the transcript indicates that the applicant was lucid, coherent and capable of articulating his case. The reality is, as Mr Whybrow submitted, the precise reasons for the bizarre previous conduct of the applicant were not critical for the decision to be made by the Board. As it indicated in its oral reasons for the decision to cancel parole, the Board’s primary concern was that of public safety. Having regard to the nature of the applicant’s behaviour as found to be proved by the Board, it was not surprising that it decided to cancel his parole. That decision entirely accorded with the requirements of s 6 of the C(SA) Act which picks up sub-s 8(a) of the CMA, which is as follows:
8Management of correctional services
Correctional services must be managed so as to achieve the main purposes of this Act, particularly by –
(a)ensuring that public safety is the paramount consideration in decision-making about the management of detainees; and
…
It is true that the applicant’s behaviour on 29 March 2019 during the EMA interview was bizarre. It was so unusual that it caused EMA to withdraw its offer of accommodation. Having regard to the situation before it, the Board had no option, but to take the absence of approved accommodation into account in making its decision. I accept the argument put on behalf of the Director-General that on the evidence before it the Board’s decision not to adjourn the hearing to allow the applicant to try and re-engage with EMA was open to it and, indeed, entirely reasonable. Having regard to the reasons given by the Board, I can see no actionable error in that decision.
It is implicit in the Board’s comment that “..we don’t know why you’ve behaved like you have” that it took into account the bizarre behaviour which led to the EMA withdrawal. However, as Mr Whybrow submitted, the reason for that behaviour was not critical. What was critical was the fact that the applicant no longer had approved accommodation. Moreover, it was likely to take a significant amount of time before that situation could be remedied.
Self-Representation
In relation to the applicant’s appearance before the Board on 28 March 2019, it seems to me that his submissions and responses were generally coherent and appropriate. This is a little surprising, given his conduct on the following day. Nevertheless, I do not accept that there was anything in his behaviour before the Board which should have caused it to conclude, either then or on 3 April 2019, that he was incapable of representing himself.
As to the argument that the Board should have intervened to prevent the applicant from representing himself, it seems to me that the conclusion on this point must follow from that expressed in paragraph [65] above. There was simply no reason for the Board to intervene. Insofar as this argument relied upon the abortive engagement with the ACT Legal Aid Office, I accept the submission of the Director-General that the applicant decided not to seek that assistance and made a deliberate decision to act on his own behalf.
Inadequate Reasons
The reliance by the applicant on the decisions in Varney and Stewart is misconceived. Both of those cases involved determinations by parole authorities in which decisions were based upon policies rather than the merits of each individual application for parole. They are thus distinguishable from this case.
I reject the argument that the Board failed to provide adequate reasons for its decision. Having regard to the issues raised in the hearing on 3 April 2019, I am satisfied that the Board provided cogent reasons for its findings and decision. They are set out in the transcript of the hearing at pp 63-66 of Exhibit “D1” and in the “Extract of Minutes” of the Board meeting on 3 April at pp 22-24 of Exhibit “D1”. As noted above, the applicant states in the grounds of the Second Amended OA that he did not receive a “written decision”. Assuming that to be true, I am unable to see how it could affect the validity of the decision to cancel the parole.
Conclusions
For the reasons given above I am satisfied that the applicant fails to establish any grounds for the relief he seeks. Insofar as the applicant seeks a time extension to enable him to seek relief, that application is refused, and his substantive application is dismissed.
Order of the Court
Accordingly, the orders of the Court are as follows:
(1)The application to extend time in which to bring this proceeding is refused.
(2)The Second Amended Originating Application is dismissed.
(3)Unless either party seeks a different order within 14 days of publication of these reasons, the applicant is to pay the costs of the proceeding as agreed or assessed.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 31 January 2020 |
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