Kheir v Robertson
[2019] VSCA 229
•16 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0073
| ALI KHEIR | Applicant |
| v | |
| NEIL ROBERTSON (As Delegate of the Secretary to the Department of Justice and Regulation) | First Respondent |
| and | |
| COMMISSIONER FOR CORRECTIONS | Second Respondent |
| and | |
| THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION | Third Respondent |
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| JUDGES: | WHELAN, McLEISH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 September 2019 |
| DATE OF JUDGMENT: | 16 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 229 |
| JUDGMENT APPEALED FROM: | Kheir v Robertson [2019] VSC 422 (McDonald J) |
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ADMINISTRATIVE LAW – Application for leave to appeal – Judicial review – Decision of delegate of Secretary to the Department of Justice and Regulation to refuse an application for ‘emergency management days’ – Delegate not satisfied applicant was of ‘good behaviour’ during emergency at the prison – Whether applicant denied procedural fairness – Duty to inquire – Whether delegate obliged to consider transcript of committal proceeding in which witnesses against applicant were said to have resiled from their original allegations – No denial, in the circumstances, of procedural fairness – Leave to appeal refused – Corrections Act 1986 s 58E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P G Nash QC | Access Law |
| For the First and Second Respondents | Mr L Brown (Crown Counsel) with Ms S M C Fitzgerald | Victorian Government Solicitor’s Office |
| For the Third Respondent | No appearance |
WHELAN JA
McLEISH JA
WEINBERG JA:
This is an application for leave to appeal by Mr Ali Kheir (hereafter referred to as the applicant) against an order made by McDonald J in the Trial Division on 26 June 2019. His Honour dismissed an application for orders in the nature of certiorari and mandamus, as well as declaratory relief, arising out of an application for judicial review of a decision made by the first respondent, Mr Neil Robertson.
On 20 June 2018, Mr Robertson, acting in his capacity as a delegate of the third respondent, the Secretary to the Department of Justice and Regulation (‘the Secretary’), refused an application by Mr Kheir for a reduction in his sentence of imprisonment, and non-parole period, pursuant to s 58E of the Corrections Act 1986 (Corrections Act). That section deals with what are described as ‘emergency management days.’ It provides:
58E Emergency management days
(1)The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation—
(a)during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or
(b) in other circumstances of an unforeseen and special nature.
(2)Subsection (1) applies to all sentences of imprisonment, including any imposed for murder, irrespective of whether the sentences were imposed before or after the commencement of this section.
Section 58E must be read in conjunction with reg 100 of the Corrections Regulations 2019. That regulation relevantly provides:
100 Emergency management days
For the purposes of section 58E(1) of the Act, the Secretary may reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period by—
(a)in the case of an industrial dispute or an emergency under section 58E(1)(a) of the Act, up to 4 days for each day or part of a day on which the industrial dispute or emergency exists in the prison or police gaol in which the sentence is being served …
Background facts
The applicant is currently a prisoner serving a lengthy sentence at Port Phillip Prison. On 27 June 2013, he was convicted and sentenced in the County Court to a total effective term of 9 years and 6 months’ imprisonment with a non-parole period of 7 years. The offences for which he was convicted included aggravated burglary, armed robbery, recklessly causing injury, and blackmail. When he was sentenced, a period of 272 days was declared as pre-sentence detention.
Despite being a sentenced prisoner, the applicant was initially imprisoned at the Metropolitan Remand Centre (‘MRC’) in the mainstream prison population. On 30 June and 1 July 2015, a riot took place among the prisoners at the MRC. It seems that this occurred because the government had determined to put an end to smoking within the prison environment, and the prisoners were angered by that decision.
During the riot, a number of prisoners at the MRC, including the applicant, left their cells. Certain prisoners caused extensive damage throughout the prison during the course of the violence that ensued. By reason of that damage, the MRC was no longer able to accommodate the number of approximately 1,000 prisoners.
On 2 July 2015, the applicant was removed from mainstream classification at the MRC and transferred to the Melaleuca High Security Unit at Barwon Prison. The applicant was placed on a management regime pending an investigation into his alleged involvement in the riot.
On 3 September 2015, the Acting Deputy Commissioner of Corrections Victoria approved the applicant’s reclassification as a long term management placement. This decision was made on the basis of allegations that the applicant had been seen rallying and inciting prisoners during the MRC riot, and that there was difficulty in placing him at a distance from his prison connections, and from certain other prisoners who presented a risk to him.
On 22 August 2016, the applicant was transferred to the Olearia High Security Unit at Barwon Prison. Because the applicant was subject to a long term management regime, he continued to be held in isolation. As a managed prisoner, he was permitted only one hour out of his cell each day.
On 11 May 2017, almost two years after the riot at the MRC, the applicant was released from long term management. He was transferred to the mainstream unit at Port Phillip Prison, where he continues to be held to this day. Under that regime, he is permitted some 11 hours and 30 minutes out of his cell each day.
The applicant’s earliest eligible parole date was 21 August 2019. Prior to the hearing of this matter, this Court was informed that the Parole Board would be considering whether the applicant should be released on parole at a meeting to be convened on 4 October 2019.
On 22 December 2015, the applicant was charged with the offences of riot (contrary to s 206 of the Crimes Act 1958 (‘Crimes Act’)) and sabotage (contrary to s 247K of the Crimes Act), arising out of the events in June and July of that year. In February 2017, a committal hearing was conducted, the applicant was represented by counsel and various witnesses were cross-examined. As a consequence, the charge of sabotage was withdrawn during the course of that hearing. On 10 August 2017, the charge of riot was discontinued.
The informant had served on the applicant’s solicitors a USB mass storage device containing the statements of a number of persons present during the course of the MRC riot. There were, among these, a number of police statements made by prison officers who described what had occurred.
On 24 August 2017, the applicant, through his solicitors, applied pursuant to s 58E of the Corrections Act to have both his sentence and non-parole period reduced. In essence, he argued that he was entitled to that reduction by reason of his having suffered ‘disruption or deprivation’ during an ‘emergency existing in the prison’ in which he was serving his sentence (that being the MRC). Without spelling it out, it would seem that he wanted a reduction of four days for each of the two days of the MRC riot, making a total of eight days.
On 15 September 2017, the Commissioner for Corrections, Ms Jan Shuard, acting as delegate of the Secretary, refused that application. She did so on the basis that emergency management days should not be available to any prisoner in circumstances where the emergency in question had been brought about by the unlawful conduct of prisoners.
By originating motion filed on 14 November 2017, the applicant applied to the Trial Division for judicial review of Commissioner Shuard’s decision. On 11 May 2018, T Forrest J quashed that decision. His Honour ordered that the s 58E application be remitted to a different delegate ‘who if possible, has had no involvement with that application.’[1]
[1]Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222 [42].
His Honour’s judgment repays careful consideration. He noted that the discretion under s 58E would be enlivened if the Secretary (or his or her delegate) had considered and was satisfied of three relevant preconditions.[2] These were:
·the prisoner had been of ‘good behaviour’;
·while suffering a disruption or deprivation; and
·during an emergency existing in the prison.
[2]Ibid [26].
In quashing Commissioner Shuard’s decision, his Honour held that her reasoning that ‘… it would be inappropriate to grant any prisoner emergency management days when prisoners have created the emergency’ was not in conformity with the relevant statutory regime, and constituted jurisdictional error.
On 20 June 2018, the applicant’s solicitors emailed a number of documents to Ms Debra Coombs of the Victorian Government Solicitor’s Office (‘VGSO’). That office had acted as solicitor for both the Secretary and Commissioner Shuard in the proceeding before T Forrest J. The documents sent to Ms Coombs included the applicant’s written submissions in support of his s 58E application and various witness statements. At that point, a further delegation had not yet been made. However, the submissions invited the new delegate to obtain a copy of the transcript of the committal proceedings in order to determine whether all of the conditions necessary to invoke s 58E had been met.
On 22 June 2018, Ms Coombs acknowledged receipt of the documents sent to her. She informed the applicant’s solicitors that she had referred those documents to Corrections Victoria.
For reasons that are not altogether apparent, as at late September 2018, still no further delegation had been made. On 10 October 2018, the applicant initiated another proceeding for judicial review, this time complaining of the Secretary’s failure either to decide the s 58E issue, or to appoint a delegate to make that decision.
On 23 October 2018, the Secretary finally delegated the decision to Mr Robertson. The applicant then withdrew his originating motion. On 19 February 2019, Richards J ordered costs to the applicant in respect of that proceeding.
At the time of Mr Robertson’s delegation, he was an Executive Director of Criminal Justice Strategy and Coordination in the Department of Justice and Community Safety. He had occupied that position from about October 2017. Prior to that, he was Deputy Secretary of Emergency Management, and Executive Director of Police and Emergency Management, both within the Department of Justice and Regulation.
The events that followed seemed to take the following form. According to Mr Robertson, he had a brief discussion over the phone with Mr Rod Wise, Deputy Commissioner of Corrections Victoria at about 6.00 pm on Friday, 10 October 2018. That conversation lasted about 10 minutes. The purpose of the call was for Mr Wise to ascertain whether Mr Robertson would be prepared to accept a delegation from the Secretary to review three applications from three different prisoners for emergency management days. Mr Robertson indicated that he was prepared to accept the delegation.
According to Mr Robertson, Mr Wise then suggested that he contact Ms Coombs to obtain further information. There was then a subsequent meeting on 24 October 2018 between Mr Robertson, Ms Coombs, and Ms Allison Will, who was assisting Mr Robertson. That meeting took place at Mr Wise’s suggestion.
In respect of that meeting, Ms Coombs said that they discussed the nature of Mr Robertson’s delegation, and his powers under s 58E. They did not discuss the applicant’s s 58E application itself. They did, however, discuss T Forrest J’s reasons for decision, and the requirements of s 58E as set out in that judgment. Ms Coombs said that she was conscious of the fact that she should not influence Mr Robertson’s consideration of the application, and it was agreed that all of her future communications in respect of that application would be directed to Ms Will.
On 15 November 2018, Mr Robertson wrote to the applicant’s solicitors. He informed them of the fact that the Secretary had delegated to him all powers under s 58E, and had asked him to consider the present application. The letter also set out the materials that Mr Robertson had received from both Corrections Victoria and the VGSO in respect of the s 58E application.
Between 26 and 29 November 2018, the applicant’s solicitors made five requests to the VGSO and/or Mr Robertson or Ms Will for materials. They sought a copy of Corrections Victoria’s submissions, and ‘the whole lot of basal materials’ upon which those submissions had been grounded. The submissions made by Corrections Victoria identified various passages within particular witness statements which, it was contended, militated against a finding that the applicant had been of ‘good behaviour’ during the MRC riot.
On 28 November 2018, Ms Coombs sent the applicant’s solicitors an email listing the witnesses whose full statements Mr Robertson had requested from the VGSO. Her letter concluded: ‘Should you require a copy of those statements, please advise us.’
The applicant’s solicitors did not request a copy of the full statements of the witnesses listed in that letter. Instead, they sought other materials from Ms Coombs, including a copy of her letter to Mr Robertson, dated 7 November 2018.
On 29 November 2018, Ms Coombs provided the applicant’s solicitors with a copy of that letter. However, the enclosures to that letter were not provided.
On the same day, the applicant’s solicitors sent an email to Ms Coombs, copying in Ms Wills, seeking:
a)a copy of all the documents you attached to your letter of 7 November 2018 to Mr Robertson;
b)a copy of ALL other correspondence and materials between the VGSO and your clients on the one hand and Mr Robertson and Ms Wills on the other; and—
c)a copy of all correspondence, notes, memoranda, etc. between the VGSO and your clients on the one hand and the informant, Mr Hatton, on the other.
Ms Coombs did not reply to that email. She was of the opinion that the request to provide documents that had already been forwarded to the applicant’s solicitors, and various prosecution brief documents (to which neither she nor Corrections Victoria had access), was ‘oppressive and unreasonable.’ The request was instead addressed directly by Mr Robertson, as explained below.
On the afternoon of 29 November 2018, Mr Robertson wrote to the applicant’s solicitors and said, amongst other things:
My communications with Corrections Victoria and the Victorian Government Solicitor’s Office (VSGO) as its lawyers have been confined to obtaining material relevant to determining your client’s application.
In that context, I do not consider any useful purpose is served by providing you [with] copies of the various communications [that] you seek (beyond the instrument of delegation). However, at the risk of repetition, and for the sake of completeness and transparency, following is a consolidated list of the material I have been provided (which include the exhibits and annexures to those primary documents) as set out in the letters dated 15, 19 and 22 November 2018:
…
I have also asked for, and received from, the VGSO copies of the following witness statements:
…
Again, for the sake of completeness, I note that I also have the following witness statements, which were the exhibits annexed to your Affirmed Affidavit dated 10 November 2017 (Document 1):
…
I had assumed that these statements were taken from the brief of evidence on the riot charge against your client and, therefore, already in your possession. If that assumption is incorrect, I note that Ms Coombs, VGSO, has offered to provide copies of these statements to you.
In addition, Ms Coombs of the VGSO has provided me:
A document enclosed with her letter to you dated 28 November 2018 headed ‘Statements’ evidently prepared by the informant Detective leading Senior Constable Hatton.
I note that that document contains extracts from witness statements of the following prison officers:
…
I do not have copies of these witness statements and have requested them from the VGSO. If you do not have them, please let me know and I will ask that the VGSO also sends you copies.
Subsequently, during the course of a mention of this matter before a Judicial Registrar on 30 November 2018, counsel for the Secretary and Corrections Victoria stated that in respect of the s 58E application, her clients would ‘firmly resist’ providing the applicant with communications passing between Mr Robertson on the one hand, and the VGSO and Corrections Victoria on the other. However, those communications were later referred to and exhibited to an affidavit affirmed by Ms Coombs on 19 March 2019 which had been filed in the judicial review proceeding before McDonald J.
On 7 December 2018, the applicant’s solicitors were copied into an email from Ms Coombs to Ms Will which attached four full witness statements that had been requested by Mr Robertson.
On 10 December 2018, the applicant’s solicitors provided supplementary submissions and additional materials to Mr Robertson. These included the following submission:
If, for any legitimate reason, the delegate decides not to adopt and give full effect to the DPP’s conclusion, it is incumbent upon the delegate to decide the matter himself by obtaining and perusing the transcripts of the committal hearing and examining the veracity of the witnesses whose statements were not tested at committal hearing. In conducting this exercise the delegate should accord Mr Kheir natural justice.
On 17 May 2019, the applicant’s solicitors obtained the relevant committal transcripts from the Office of Public Prosecutions (‘OPP’). It subsequently emerged that the OPP had obtained those committal transcripts as far back as 7 March 2017. There had been a request to the OPP for those transcripts in late October 2017, as well as for materials relevant to the decision to discontinue the prosecution against the applicant. The OPP had initially responded by indicating that the applicant’s solicitors could apply to the Victorian Government Reporting Service (‘VGRS’) for release of the committal transcripts, but that the prosecution would not provide them. Nor would it provide any documents relevant to the decision to discontinue against the applicant.
On 20 December 2018, Mr Robertson wrote to the applicant’s solicitors, informing them of his decision not to grant the applicant any emergency management days. His written reasons for his refusal were attached to that letter.
In his reasons, Mr Robertson considered and rejected a preliminary objection to his having dealt with the matter. This objection was based upon apprehended bias on the part of Mr Robertson. He then stated that he had afforded the applicant ‘natural justice’ by giving him the opportunity to respond to the material and submissions that were before the delegate, and that he had considered the applicant’s submissions in arriving at his decision.
A list of all of the documents considered by Mr Robertson in arriving at his decision was annexed as ‘Attachment A’ to the reasons. Mr Robertson accepted that there had been an emergency existing in the prison at the time of the riot. He further accepted that the applicant had suffered disruption or deprivation as a result of that emergency. He was not, however, satisfied that the applicant met the requirement of ‘good behaviour’ during the emergency. More precisely, as regards that last condition, Mr Robertson said he was satisfied that the applicant was of good behaviour both before and after the riot, but was not satisfied of his good behaviour during the riot.
Mr Robertson said that although the evidence was ‘confused and seemingly contradictory’, there were ‘some clear and consistent points’ upon which he could reasonably rely.
For example, Mr Robertson made it clear that he was prepared to proceed on the basis that the applicant had been housed in what was termed the ‘Bellbridge Unit’ in Area 3 of the MRC in the period leading up to the riot. He accepted that the applicant had been a sentenced prisoner, rather than on remand. For that reason, he had been at the MRC for a considerably longer period than many other prisoners. He also accepted that the applicant was well known to many prison officers, and therefore, was easily recognised during the riot.
Mr Robertson said that the applicant was in the Area 3 yard when the fence between Areas 2 and 3 had been breached. He stated, at paragraph 37(d) of his reasons for decision, that the applicant ‘was part of the crowd encouraging those who broke through the fence.’ He indicated that he relied, for that conclusion, upon the statements of Mr Mark Wilson and Ms Amber Stabek, both prison officers who were present at the MRC at the time of the riot.
Mr Robertson went on to say that he was satisfied that the applicant was on the basketball court in Area 2, with a group of other prisoners, after the fence was breached, and that he had addressed the group along with another prisoner. The applicant was then among the group of prisoners who had advanced on the Central Movement Control. He was at the front of that group. He spoke to that group as a whole. He remained out of his cell and unit throughout most of the riot, until his ‘surrender.’ Indeed, he was with the other prisoners who ‘surrendered’ at the fence line at around midnight.
Mr Robertson then went on to say:
[38]Given these finding[s] of fact, I am not satisfied that Mr Kheir was of good behaviour during the riot.
[39]My conclusion is not undermined by the fact that there are reasonable grounds to conclude that when the group reached the gates to the [Central Movement Control] … Mr Kheir does appear to have attempted either to delay the crowd or turn it back.
[40]While this attempt was unsuccessful, given the context of Mr Kheir’s other actions as outlined (and as illustrated by the prison officers’ witness statements), there is more than one possible interpretation of this act. I am not required to decide positively what was happening, but I do conclude that this one act, regardless of its motivation, does not necessarily characterise or explain the balance of Mr Kheir’s behaviour during the riot.
[41]In addition, my conclusion is not affected by the submissions on Mr Kheir’s behalf that some prison officers had the conclusions in their witness statements successfully challenged during cross-examination at Mr Kheir’s committal hearing. While I accept these submissions, I note that my findings of fact are based on observations of Mr Kheir’s behaviour, rather than conclusions drawn from it and are all reported by two or more prison officers. On that basis, I consider it reasonable to rely on the written statements of these facts.
[42]Nor is my conclusion affected by Mr Kheir’s lawyers’ submission that I ‘should adopt and give full effect to the DPP’s conclusion … [that] there was no reasonable prospect of obtaining a finding of guilt against Mr Kheir on the charge of riot.’ With respect, that is the answer to a different question than the one on which s 58E requires me to reach a conclusion. It indicates there was insufficient evidence to satisfy a jury beyond reasonable doubt that Mr Kheir had committed a criminal offence; whereas I need to be satisfied for the purposes of s 58E that, along with the other two requirements, he was of good behaviour during the emergency.[3]
[3]Reasons for Decision, Mr Robertson, 20 December 2018.
Mr Robertson went on to refer to T Forrest J’s judgment. In particular, his Honour’s acknowledgment that, on the relevant material available to Commissioner Shuard, it was open to her to reach the conclusion that the applicant had not been of good behaviour during the emergency. That was so, notwithstanding the evidence given at committal by the various prison officers to the effect that the applicant may have been trying to restrain the rioters, rather than promoting a continuation of the riot itself.
It was these passages, from the reasons for decision provided by Mr Robertson, that formed the basis of the primary challenge to his refusal to grant emergency management days to the applicant. Mr Robertson was not satisfied that the applicant had been of ‘good behaviour’ during the emergency, and that put an end to his claim for the s 58E discretion to be exercised in his favour.
The primary judge’s decision
In his reasons for judgment, McDonald J dealt with a plethora of grounds in support of the application for judicial review. In fact, there were nine separate grounds, most of which were replicated in the application for leave to appeal before this Court.
Stated succinctly, these nine grounds were as follows:
1.The plaintiff was denied the right to fair notice and the right to be heard;
2. Apprehended bias and/or partiality;
3.The delegate misapprehended and thereby failed to exercise lawfully the s 58E jurisdiction;
4.The delegate erred in treating the ‘riot’ as the ‘emergency’;
5.The delegate failed to adequately explain his reasons for concluding that he was not satisfied that the plaintiff was of good behaviour;
6.The delegate failed to take relevant considerations into account;
7.The delegate took irrelevant considerations into account;
8.Unlawful delay in considering and determining the plaintiff’s s 58E application; and
9.The second and third defendants breached the plaintiff’s rights under ss 21(1), 21(3) and 22(1) of the Charter.
In his comprehensive reasons for judgment, McDonald J rejected each of the proposed grounds of judicial review. Before this Court, senior counsel for the applicant made it clear that the ‘nub’ of the complaint was the asserted wrongful failure of the delegate to obtain and consider the transcript of the committal. This complaint was advanced under proposed ground 1. Senior counsel submitted that if the applicant could not succeed on this proposed ground, his application for leave could not succeed on any of the other proposed grounds of appeal. Indeed, senior counsel for the applicant specifically stated, in oral argument before this Court:
Our submission basically is if we do not get up on the transcript, we will not get up on anything.
Having regard to the reasons for judgment of McDonald J, which we have obviously read closely, that concession was entirely proper. That leaves Ground 1 to consider.
Justice McDonald’s reasoning re Ground 1
Justice McDonald began his discussion of the procedural fairness point by correctly noting that there has long been an issue as to the extent to which decisions relating to prison administration and management are subject to what used to be called the rules of ‘natural justice.’
His Honour first dealt with several subsidiary matters, which were obviously of little moment. These included a misconceived submission to the effect that the delegate was obliged to provide the applicant with a complete set of materials ‘in identical form’ to those which had been provided to him by Corrections Victoria. It was also said that the delegate had been obliged to identify any passages in those materials that he considered relevant.[4]
[4]Cf Hala v Minister for Justice (2015) 145 ALD 552, 564 [66]; [2015] FCAFC 13.
‘Procedural fairness does not generally require that a decision-maker disclose information, the substance of which is already known to the person who may be affected by the decision … nor does it require a decision-maker to give an affected person the chance to comment on every nuance of what the decision-maker is considering …’
Justice McDonald then turned to the essence of the submission ultimately advanced before this Court. The applicant complained of the delegate’s failure to obtain a transcript or recording of the committal hearing in February 2017 which, he submitted, constituted a denial of procedural fairness.
Justice McDonald raised the question whether the transcript of the committal was in existence during the period from Mr Robertson’s appointment on 23 October 2018 until his decision on 20 December 2018. As previously indicated, the applicant’s solicitors obtained that transcript on 17 May 2019, and were subsequently informed that the OPP had been provided with the committal transcript as far back as 7 March 2017.
Nonetheless, as his Honour observed, it was not clear, in the proceeding below, whether the delegate, as a non-party to the committal, could have obtained the transcript even had he sought to do so. Moreover, there was no evidence that the applicant’s solicitors had informed the delegate of any steps that they may have taken to attempt to obtain the transcript and/or their inability to obtain the transcripts themselves.
Justice McDonald dealt with this issue in the following terms:
The plaintiff was not denied procedural fairness by reason of the delegate not obtaining the transcript. In Kheir v Secretary to the Department of Justice and Regulation, T Forrest J held that s 58E does not require the delegate to undertake inquiries to uncover material beyond what is actually or constructively before him at the time of the decision. I am bound to follow this conclusion unless I am satisfied that it is plainly wrong. I am not so satisfied. To the contrary, his Honour’s conclusion is plainly correct.
In Enichem Anic Srl v Anti-Dumping Authority, Hill J stated:
Decision-making is a function of the real world. A decision-maker is not bound to investigate each avenue that may be suggested to him by a party interested. Ultimately, a decision-maker must do the best on the material available after giving interested parties the right to be heard on the question.
In Prasad v Minister for Immigration and Ethnic Affairs, Wilcox J stated:
The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries.
In Minister for Immigration and Citizenship v SZIAI, the High Court considered the ‘duty to inquire’ of the Refugee Review Tribunal (‘RRT’). The plurality held that the RRT may obtain such information it considers relevant and in that sense has an inquisitorial function, but this does not impose a general duty to inquire in addition to information provided by the applicant and otherwise. In SZIAI, the RRT had made inquiries with a religious association that the respondent claimed to be a member of, which advised that certificates provided by the respondent were fake and forged. The plurality held that the RRT had not denied the respondent procedural fairness by failing to conduct its own inquiries in relation to the allegation of forgery. Nothing indicated that further inquiries could have yielded a useful result, and the respondent’s solicitors had indicated the futility of further inquiry by admitting that there was nothing they could add beyond a bare denial. The plurality criticised the term ‘duty to inquire’ on the basis that it directs consideration from the real question, whether the decision is vitiated by jurisdictional error. The plurality further stated:
It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law.
The plurality accepted that a failure to inquire may, in some circumstances, amount to a constructive failure to exercise jurisdiction or result in a decision affected in some other way that manifests jurisdictional error.
Heydon J concluded that the respondent and his solicitors were in at least as good a position as the RRT to contact the relevant persons and make appropriate inquiries. His Honour held that it was not unreasonable for the RRT to proceed on the basis that, if any further evidence was to be provided, it would come from the respondent.
I agree with T Forrest J’s conclusion that s 58E does not require a delegate to undertake inquiries to uncover materials beyond what is actually or constructively before them at the time of the decision. The delegate was not subject to a duty to inquire. The plaintiff did not place the transcript before the delegate. The plaintiff’s solicitors were in as good a position as the delegate to obtain the transcript from the VGRS. Arguably, they were in a better position than the delegate to obtain the transcript because their client was a party to the committal mention. In the circumstances, it was reasonable for the delegate to rely on the material before him. The plaintiff was not denied procedural fairness by the delegate’s failure to take steps to obtain the transcript.[5]
[5]Kheir v Robertson [2019] VSC 422 [35]–[40] (citations omitted).
His Honour continued by stating that even if that conclusion were incorrect, he would still not be satisfied that the applicant had been deprived of the possibility of a successful outcome by the delegate’s failure to obtain the transcript. Assuming for the moment that the delegate could have obtained the transcript, the findings of fact upon which he was prepared to proceed would in no way be undermined by anything contained therein.
That was because it was incontrovertibly established that the applicant had, during the course of the riot, gone to various parts of the MRC which were off-limits, as far as he was concerned. He ought to have been in his own cell area, and had no business being on the basketball court in Area 2, addressing a group of prisoners who had breached the fence between Area 3 and Area 2. He had no business being with those prisoners, who advanced on the Central Movement Control, or speaking to that group as a whole.
His Honour then continued:
A precondition to the exercise of the discretion conferred by s 58E is a finding that an applicant was of good behaviour. In the present case, this required a finding by the delegate that the plaintiff was of good behaviour during the emergency constituted by the riot on 30 June 2015 and 1 July 2015, and at least its immediate aftermath. The question for determination by the delegate was not whether the plaintiff committed the offence of participating in a riot. Rather, the question was whether he was of good behaviour during the riot. Put another way, a finding that the plaintiff did not commit an offence does not necessarily correlate with a finding that the plaintiff was of good behaviour.
Evidence that the plaintiff remained quietly in his cell while other prisoners participated in a riot is one example of the type of evidence which could support a finding of good behaviour. There does not appear to be any issue that the plaintiff was in the vicinity of prisoners who were rioting. There was no evidence on behalf of the plaintiff that he was forced to join the crowd of prisoners against his will. Shortly stated, the plaintiff had the opportunity to place evidence before the delegate which could have supported a positive finding that he was of good behaviour, but did not do so.
I am not satisfied that, had the delegate taken steps to obtain the transcript and been able to obtain the transcript, this could realistically have resulted in a different decision. I have read the transcript of the committal mention. The transcript discloses that evidence of prison officers in respect of the delegate’s findings at (d), (e), (g) and (h) was not challenged in any meaningful sense. As to the finding at (f), there was evidence given at the committal mention that, when the plaintiff was speaking to the crowd of prisoners, he was attempting to dissuade them from advancing further upon Central Movement Control. The delegate accepted this.
…
The transcript of the committal mention does not detract from the findings upon which the delegate based his conclusion that he was not satisfied that the plaintiff was of good behaviour. Further, had the transcript been obtained, this would not have altered the inadequacy of the material provided on behalf of the plaintiff. In particular, the plaintiff’s failure to provide evidence in relation to matters which could have supported a finding that he was of good behaviour.[6]
[6]Ibid [43]–[46] (citations omitted).
Submissions before this Court
Senior counsel for the applicant based his argument regarding failure to obtain the transcript of the committal upon the proposition that any fair reading of that transcript would have negated two distinct passages in the delegate’s reasons.
As previously indicated, the first of these was paragraph 37(d) of the delegate’s reasons for decision, referred to at [42]–[44] of these reasons, which read as follows:
Notwithstanding the confused and seemingly contradictory nature of this evidence, there are some clear and consistent points from it on which I consider I can reasonably rely:
…
(d)Mr Kheir was in the yard in Area 3 when the fence between Areas 2 and 3 was breached and was part of the crowd encouraging those who broke through the fence …
The second was paragraph 41 of the delegate’s reasons, set out above at [46] of our reasons. In particular, senior counsel noted the delegate’s statement that his ‘findings of fact’ were ‘based on observations of Mr Kheir’s behaviour, rather than conclusions drawn from it.’
It was submitted that the conclusions implicit in both of these passages could not possibly be justified in the light of the committal transcript, which clearly revealed that most of the witnesses who were to give evidence against the applicant in the criminal proceedings brought against him either retracted their allegations, or modified them to such a degree that the charges were subsequently withdrawn.
More particularly, it was submitted that the suggestion that the applicant had been part of the crowd encouraging those who broke through the fence, which implied that he had personally engaged in that encouragement, rather than merely being part of that crowd, could not stand in the face of the committal transcript.
As regards the delegate’s comment that his findings of fact were based on observations of the applicant’s behaviour, rather than conclusions drawn from it, it was submitted that whatever that may have meant, the committal transcript spoke decisively against any conclusion of culpable conduct on the applicant’s part.
It was submitted on behalf of the respondent that irrespective of the decision to withdraw or discontinue the criminal charges brought against the applicant, there was ample basis upon which the delegate had been entitled to find that the applicant had not been of ‘good behaviour’ during the riot. There was the evidence of Ms Stabek, who was cross-examined at committal, but did not resile from her allegations concerning the applicant’s role in the riot. More importantly, the delegate had been entitled to find that even assuming that the committal transcript had ‘cleared the slate’, as far as criminality was concerned, the applicant had no business being where he was, or acting as he had, throughout the period of the riot. That, of itself, justified the delegate’s finding that he had not been of good behaviour during the period of the riot itself.
Conclusion
In our opinion, the respondent’s submissions regarding the failure of the delegate to procure the transcript of the committal hearing should be accepted. The short answer to the applicant’s point is that the delegate proceeded on the assumption that the submissions put forward regarding some prison officers having resiled from their witness statements under cross-examination at the committal were correct. In other words, the delegate accepted that these witnesses had been ‘successfully challenged’ during cross-examination.
A reading of the transcript could hardly have advanced the applicant’s case. That was because the delegate did not base his decision upon the content of those original witness statements, but rather upon ‘observations of’ the applicant’s behaviour during the riot. As the delegate said, those ‘observations’ were all reported by at least two prison officials. In relation to the applicant’s own movements at the time, those observations were unchallenged. Moreover, the delegate accepted the applicant’s submission that the conclusions of the officers expressed in their witness statements were successfully challenged during cross-examination.
In other words, the delegate did not base his decision upon ‘conclusions’ to be drawn from observable facts. He did not infer that the applicant had, himself, encouraged other prisoners to continue rioting, as distinct from merely being part of a group, some members of which were encouraging those who broke through the relevant fence. The fact that the applicant was not in his cell, and was not in that part of the MRC where he was required to be was, to the mind of the delegate, sufficient to bar him from a finding of ‘good behaviour’ during the riot.
Any challenge to the correctness of the delegate’s decision that the observable facts precluded a finding of ‘good behaviour’ on the part of the applicant would seem to us to cross over from judicially reviewable error, jurisdictional or otherwise, and into the realm of merits review.
There are also other considerations that might be relevant to the question of leave to appeal. As previously indicated, the very best that the applicant could hope for, if he were to succeed on this ground, would be to have the delegate’s decision set aside, and the matter remitted for reconsideration by yet another delegate. The applicant stands to gain no more than an eight day reduction off his sentence, and non-parole period. It would be likely to take some months, at least, before further consideration could be given, by a different delegate, to his application.
The applicant has been eligible for parole since 21 August 2019, subject to the decision of the Parole Board, which, we were informed, during the course of argument, was scheduled to meet on 4 October 2019. We have since been told that since that date, the Parole Board has met but was unable to reach a decision. That was because there was ‘outstanding information’ that needed to be obtained. We were not told what information was being sought. It is unknown, at this time, how long it will take for that information to be procured, and accordingly, it is not known when the next meeting of the Parole Board will be held.
Of course, if the applicant were to be granted parole in the immediate future, the issue of the eight days’ emergency management time would be rendered largely moot. Senior counsel properly acknowledged as much before this Court.
On the other hand, if the Parole Board were to reject the application for parole, it is possible that some part, or all, of a maximum of eight days’ emergency management time might still be an issue. It might be thought that some months of further uncertainty, with only a relatively modest gain (after serving a term of 9 years and 6 months’ imprisonment) would be somewhat disproportionate to the potential benefit to the applicant.
In the end, none of this matters. It should not be forgotten that the applicant comes before this Court, not as of right, but needing leave to appeal. It should also be understood that, realistically, and practically, he stands to gain very little from having this matter remitted to a different delegate, with the entire process having to commence yet again. At the same time, and bearing in mind that the liberty of the subject is at stake, we would grant leave to appeal if this application otherwise had sufficient merit.
In the end, however, we have concluded that the delegate’s decision cannot be impugned. His failure to have regard to the committal transcript did not, in the circumstances of this case, constitute a denial of procedural fairness. For that reason, leave to appeal should be refused.
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