Kirby v Prisoners Review Board - [2010] WASC 243

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KIRBY -v- PRISONERS REVIEW BOARD [2010] WASC 243

CORAM: MARTIN CJ

HEARD: 18 AUGUST 2010 & ON THE PAPERS

DELIVERED : 7 SEPTEMBER 2010

FILE NO/S: CIV 1910 of 2010

BETWEEN: LENNARD MARK KIRBY
Applicant
AND
PRISONERS REVIEW BOARD
Respondent
ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervenor

Catchwords:

Practice and procedure - Application to inspect documents which have been produced to court

Legislation:

Constitution of the Commonwealth of Australia
Sentence Administration Act 2003 (WA), s 109, s 115

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant:     Dr J T Schoombee
Respondent:     No appearance
Intervenor:     Mr G T W Tannin SC & Ms S J Keighery

Solicitors:

Applicant:     Holborn Lenhoff Massey
Respondent:     No appearance
Intervenor:     State Solicitor's Office

Case(s) referred to in judgment(s):

Nil

MARTIN CJ:

Introduction

These are the reasons for my determination of an application to inspect documents which have been produced to the court.

Background

In these proceedings, the applicant challenges two decisions of the Prisoners Review Board (the Board) being a decision on 25 May 2009 to suspend the applicant's parole, and a decision on 17 December 2009 cancelling his parole. The respondent has filed a submitting appearance and has indicated that it will take no substantive part in these proceedings. The Attorney General of Western Australia has intervened.
The applicant sought inspection and/or discovery of a wide category of documents. The Board indicated that it opposed the provision of inspection of any of the documents it possessed by the applicant, or solicitors and counsel acting on his behalf, on a variety of policy grounds. However, no evidence has been placed before the court by the Board in relation to those matters, and the Board has advised that it does not propose to appear through counsel in order to pursue that opposition.
The intervenor also opposed the inspection sought by the applicant. That is a little surprising, given that the intervenor does not represent the Board, and would not appear to have a direct interest in the issue of inspection. At one point the intervenor suggested that it would be inappropriate to deal with these issues prior to the grant of the order nisi. However, all parties had previously proposed that the question of the grant of the order nisi should be referred to the Court of Appeal to be heard at the same time as argument on the substantive proceedings. When I pointed out the obvious impracticality of deferring issues with respect to inspection of documents which the applicants sought for the purposes of that hearing until the hearing itself, the intervenor expressly withdrew the submission which had been put with respect to the time at which these matters should be determined.
In those circumstances, for reasons which I gave at the time, I concluded that the appropriate course was to require the Board to produce the documents sought to the court, and to provide the intervenor with the opportunity to inspect the documents in order to advise the court whether any claim was made for immunity from inspection on public interest grounds. I set out a timetable for that process to occur. In the meantime, I have reviewed all the documents produced by the Board other than those in respect of which the intervenor claims immunity from inspection on public interest grounds. These reasons deal with the extent to which the applicant should be provided with the opportunity to inspect those documents.

The grounds of review

The applicant challenges the decision of the Board to cancel his parole on a number of grounds. In very general terms, he asserts that he was denied procedural fairness, because he was not notified of the grounds upon which the Board was considering cancelling his parole, or given any opportunity to place material before the Board. He further asserts that the Board erred in refusing to exercise the power to permit him to appear before the Board (conferred by s 109 of the Sentence Administration Act 2003 (WA) (the Act)), because the Board's failure to exercise that power denied him procedural fairness, and also because it was pursuant to a fixed policy which does not comply with the Act. The applicant also asserts that the Board failed to comply with an obligation to provide him with adequate reasons for its decision.
The applicant further asserts that the Board erred by relying upon a finding to the effect that the applicant had an ongoing relationship with known offenders, and/or 'outlaw motorcycle gang members' in respect of which there was no evidence, or through reasoning processes that were irrational or unreasonable. The applicant also asserts that the Board found that he was an instigator of violence based upon a viewing of a video record of an incident in which he was shot, when there was no evidence to sustain that finding, or the finding was irrational or unreasonable.
Further, the applicant challenges the decision to suspend his parole, on essentially the same grounds, save that no reference is made in that context to the issues concerning the finding made with respect to the applicant's ongoing relationships with known offenders or outlaw motorcycle gang members, or the video viewed by the Board.
The applicant further asserts that if and to the extent that s 115 of the Act would validate the impugned conduct of the Board or preclude judicial review of the Board's actions and decisions, that section is void because it is inconsistent with ch III of the Constitution of the Commonwealth of Australia.
The applicant has filed an affidavit in support of his application. As I have indicated, the Board does not propose to take any substantive part in these proceedings. It therefore seems unlikely that any evidence will be adduced on behalf of the Board.
It is trite to observe that proceedings of this kind do not give the court jurisdiction to review the merits of the decision taken by the Board. Nor do they confer upon the applicant an unbridled opportunity to challenge any and all aspects of the Board's processes. Rather, the onus is upon the applicant to show that the Board erred in one or more of the particular ways he asserts, with the result that it exceeded its jurisdiction. In these circumstances, it would be quite wrong to permit an application for inspection of documents maintained by the Board to become a fishing expedition, allowing the applicant or his advisors to trawl through the documents to ascertain whether or not they might reveal some other point not currently enunciated in the grounds of review.
I ordered the Board to produce the documents to the court in the exercise of the powers conferred upon the court to ensure that there is a fair trial of these proceedings. Ordinarily that will require that the parties to proceedings be given access to information and evidentiary materials relevant to the case which they advance, or to the case against them, subject, of course, to the constraints imposed by other legitimate considerations, such as the intervenor's claim that some of the documents produced by the Board should be privileged from inspection on public interest grounds.
Having regard to the nature of the Board's functions, the fact that these proceedings do not constitute review of the Board's decision on its merits, and the undesirability of allowing the processes of the court to be subverted by a 'fishing expedition', I have taken the approach that the applicant should only be permitted to inspect documents produced to the court that are directly relevant to the factual issues raised by the grounds of review.
When regard is had to those grounds, it will be seen that the factual issues which they raise are narrow in compass. There is, I would assume, no dispute that the applicant was not provided with notice of the grounds upon which suspension of his parole was under consideration, or given the opportunity to place material before the Board, or to appear before it. The issues which the applicant seeks to raise in relation to the assertion that the Board has a fixed rule of not allowing persons to appear before it are not illuminated by any materials or documents peculiar to this applicant. The reasons given by the Board for the decision speak for themselves. The issue raised with respect to the constitutional invalidity of s 115 of the Act is, of course, purely a question of law.
I have reviewed the documents produced by the Board with these general considerations in mind. I have also proceeded on the assumption that the applicant and his advisors have access to communications passing between the applicant, his advisors and the Board. A number of those documents are annexed to the affidavits filed by the applicant in support of his application. If that assumption is not correct, the advisors to the applicant should be able to identify those documents which they do not have, from the list which has been helpfully provided by the Board which briefly describes each document produced.
Having reviewed all documents produced, other than those in respect of which a claim has been made for privilege from inspection on public interest grounds, I have come to the view that the documents listed in the schedule to these reasons should be provided to the applicant's legal advisors for inspection. I am also tentatively of the view that there is no reason why the documents should not also be provided to the applicant, as there is no claim advanced for public interest immunity in relation to those documents. However, I will hear from the parties on that aspect of the matter after publishing these reasons.

SCHEDULE

Number Description Date

DCS general contact with Kirby 22 May 2009
Fax: PRB deferral decision 21 May 2009
DCS general contact with Kirby 14 May 2009
DCS general contact with Kirby 6 May 2009
DCS general contact with Kirby 29 April 2009
DCS progress case review 22 April 2009
DCS general contact with Kirby 22 April 2009
DCS general contact with Kirby 15 April 2009
DCS general contact with Kirby 8 April 2009
DCS general contact with Kirby 1 April 2009
DCS progress case review 25 March 2009
Fax: State Review Board's secretariat to Belmont CJS 8 April 2009
Decision note by French DCJ 5 December 2008

Faxed letter: Jan Whitbread (DPP) to PRB 11 December 2009
Faxed letter: Jan Whitbread (DPP) to
Detective Sergeant Ray Horne 11 December 2009
Statement of material facts 9 December 2009 (printed)

Following the determination of the issues with respect to public interest immunity, it will be necessary to revisit the issue of the relevance of any documents in respect of which that claim is rejected.