LMS v Parole Board

[1999] NSWCCA 371

Reported Decision: 110 A Crim R 172

New South Wales

Court of Criminal Appeal

CITATION:	LMS v Parole Board [1999] NSWCCA 371
FILE NUMBER(S):	CCA 60438/99
HEARING DATE(S):	25 October 1999
JUDGMENT DATE:	25 November 1999
PARTIES :	LMS Appellant Parole Board Respondent
JUDGMENT OF:	Stein JA at 1; Hulme J at 1; Greg James J at 1

COUNSEL:	LMS in person - Appellant R Burgess - Respondent
SOLICITORS:	LMS in person - Appellant I V Knight - Respondent
CATCHWORDS:	Criminal Law; Sentencing Act s23, Law reform needed
DECISION:	Direct the Parole Board that, insofar as Dr Blake's report of 31 March 1999 suggested that the Applicant had been unwilling to undergo counselling, that report was misleading; Reserve liberty to the Applicant to apply, in the event no further hearing of the Board is held within a reasonable time

IN THE COURT OF
CRIMINAL APPEAL

No. 60438 of 1999

STEIN JA

HULME J
GREG JAMES J

Thursday, 25 November 1999

LMS v PAROLE BOARD

JUDGMENT

1    THE COURT: The applicant is a prisoner who was refused parole by the Parole Board following a review hearing on Monday 19 July 1999. He now makes application to the court pursuant to s23 of the Sentencing Act 1989.

2    During the course of the hearing the Court ordered, inter alia, that “any reference to the Applicant be only by the initials ‘LMS’.”. We shall follow that course in these Reasons, substituting “Mr S” for references to the Applicant in quotations to be made from a number of documents.

3    So far as material, Section 23 provides:-

"(1) If:-
(a) the Board has decided, under ss22, 22J or 22K, that a prisoner should not be released on parole; and
(b) the prisoner alleges that the decision of the Board was made on information which was false, misleading or irrelevant,
the prisoner may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Board as to whether the information was false, misleading or irrelevant and the Court of Criminal Appeal may give such direction with respect to the information as it thinks fit."

(2) An application under this section is not to be considered by the Court of Criminal Appeal unless it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.
(3) At the hearing or determination of an application under this section, the applicant is not entitled to appear in person, except by leave of the Court of Appeal.

4 The criteria to be considered in respect of the grant of leave under s23(3) were considered by this court in McPherson v Offenders Review Board (1991) 23 NSWLR 61 on an application under s41 of the Sentencing Act which is to similar effect as s23. It was held that the principles to be applied in granting leave to an applicant to appear in person were those adopted by the court in respect of an analogous provision discussed in Schneidas v Jackson (1982) 2 NSWLR 969. The effect of those decisions is that there needs to be some explanation of why the applicant is not represented to warrant the grant of leave.

5    By letter of 12 August 1999, the Applicant informed the Court that he would be unable to obtain legal aid. It appeared to the Court unlikely that he would have been able to obtain private professional assistance. After a preliminary consideration of the voluminous material the Applicant had submitted to the Court, it seemed desirable to obtain the assistance of the applicant to identify with more precision than had occurred in writing, what material might meet the s23(2) criteria and, if the Court were satisfied as to that, on whether a direction should be given under s23(1). In the particular circumstances of the case, the matter proceeded upon the basis that leave under sub-section (3) was given.

6    Having regard to the terms of sub-section (2), at the commencement of the hearing the Court required the Applicant to identify with precision the material which he contended was relied on by the Board and which was false, misleading or irrelevant and then to point to the evidence or state the argument he relied on as demonstrating one or other of those criteria was made out. At the conclusion of that exercise the Court took the view that, in at least one respect, the application was fairly arguable. In this matter it is not necessary to refine the test more precisely.

7    The Court then proceeded with the application. The Court had been provided with the material which was before the Board, and the transcript of proceedings before the Board. In addition the applicant provided three written submissions in affidavit form to which voluminous material was attached. During the hearing, he was permitted to hand up further material.

8    The function of this Court and the nature of its powers in an application under s23 was re-stated by Hunt CJ at CL in McCamley v The Offenders Review Board at pp 2-3:-

"Before examining the contentions of the parties in relation to the application before this court, it is important to re-state once more the extremely limited nature of his court's powers under s23 and s41 of the Sentencing Act in relation to proceedings before the Offenders Review Board. Those powers have been considered in McPherson v Offenders Review Board (1991) 23 NSWLR 61 and in a number of cases since, notably Whiteley v Offenders Review Board (CCA, unreported 11 September 1992). What follows is (except where otherwise indicated) based upon what was said in those cases.
The Board is not bound by the rules of evidence, and it may inform itself on any matter as it thinks fit: Sentencing Act, Schedule 1, cl.11(3). There is no appeal from the Board's decision. This court is concerned only with information which was before the Board and upon which the Board decided either not to release the applicant to parole or to revoke parole. This court is not concerned with whether the Board acted in accordance with the statute; that is a matter for an administrative appeal to the Supreme Court which would presently be heard by the Court of Appeal: Supreme Court Act 1970, s48(i)(vii). See also Sentencing Act, Schedule 1, cl.11(5). Nor is this court concerned with whether the Board's decision was right or wrong, or whether the Board correctly interpreted or construed the information before it, or whether it drew the correct inferences from that information or whether it gave the correct weight to that information. The only powers which this court has are to give directions to the Board as to whether the information upon which its decision was made was false, misleading or irrelevant and to give such further directions with respect to that information as it thinks fit.
It follows that, where there is within the information before the Board a dispute as to any particular fact, this court is not concerned whether the decision of the Board to accept one piece of information in preference to another was right or wrong. So far as the falsity of the information is concerned, the purpose of the two sections in question is to provide to prisoners the opportunity to obtain a ruling where further evidence becomes available which was not available to be put before the Board. This court will not - except perhaps in unusual circumstances - undertake a re-hearing upon the material which was before the Board."

9    Earlier in McPherson (supra) His Honour had said, concerning the provision of additional material to that considered by the Board to this court:-

"In my opinion, the purpose of the statutory provisions in ss23(1) and 41(1), so far as they relate to the falsity of the information upon which the Board acted, was to provide to prisoners the opportunity to obtain a ruling where further evidence becomes available which was not available to put before the Board at either stage at which the Board considers its decision. Although the direction which this court may give relates to the information upon which the Board based its decision either to refuse (s19) or to revoke (s34) parole, and although it does not relate directly to the information upon which the Board based its reconsideration of that refusal (s22) or its decision either to confirm that revocation or (in terms of s40) not to rescind that revocation, this court will obviously enough look at the additional material put before the Board upon its reconsideration of the refusal or revocation for the purpose of determining whether the information originally before the Board was false, but not for the purpose of giving a direction in relation to that additional material. But this court will not - except perhaps in unusual circumstances - undertake a re-hearing upon the material which was before the Board.
Such an interpretation of the statue, so far as it deals with the falsity of the information upon which the Board acted, is consistent with the only decision of this court which has been discovered in relation to an application for a direction upon the basis of the falsity of the material, one which was made under the Probation and Parole Act: Kurtovic v Parole Board (unreported 17 December 1986). The earlier application to this court brought by the present application ( McPherson v Parole Board (unreported 6 March 1990)) was, of course, concerned with information which was said to be misleading. No other decisions in relation to either the Sentencing Act or the Probation and Parole Act provisions have been discovered.
I would not wish to circumscribe the exercise of this court's jurisdiction under ss23(1) and 41(1) to those cases where the evidence is 'fresh' in the sense understood in applications for new trials, as hearings before the Board are in no way equivalent to trials with all of the procedures available there for the production of evidence. Having said that, however, I should add that neither do I wish to encourage prisoners to withhold material which is available to them when appearing before the Board on the reconsideration (held at their request), using that hearing as a trial run in the belief that, if they are unsuccessful there, they can mend their hand by bringing that additional material before this court for a re-run."

10    The section seems to assume that there will be a further hearing, at which the direction might guard the Board from being materially misled. Thus even if there was material before the Board that is shown in this court to have been false, etc., no direction would be given where the Board’s decision was not “made on (that) information”. The Board's decision and the background to it is relevant to whether any direction might be called for.

11    In giving the Parole Board’s decision, its Chairperson said:-

“Mr S, the Board’s given serious consideration to your problems but we’re not satisfied to give you parole at present. We feel there’s a need for further psychological counselling. We feel there’s a need for you to convince us that you are not likely to re-offend. I’m not very happy about your post-release plans so, I’m going to refuse parole for the present because of inability to adapt, risk of re-offending, need for further psychological counselling. And be reviewed on 25 January next. I want all reports including a psychological report. So let’s hope by then that you convince us or we have a good psychological report on you and that you’ve got satisfactory plans and we’ll be able to give you parole.”

12    The Board is not obliged to give detailed reasons but it is clear from the transcript of proceedings that among the matters which concerned the Board was a report of a Dr Blake of 31 March 1999. On the topic of counselling Dr Blake said:-

“Mr S has been reluctant to involve himself in more intensive group treatment due to his perceived issues of personal safety. …. the writer does not support such assertions by Mr S.
While he has avoided further group treatment, Mr S does not appear to minimise the harm he has caused as a perpetrator. …
Risk of Re-offence :
This is indeed a difficult area to predict. It must be acknowledged that Mr S was reluctant to continue with further sex offender group work at our centre of to apply for the DCS CUBIT program. It is also regrettable that Mr S … believes that he is not suitable for the Corrective Services COBAC program, as he claims he is suing the Dept. of Corrective Services. In the writer’s opinion, Mr S needs to face certain realities about his situation as a perpetrator.
Mr S’ risk of re-offence is contingent upon his capacity to abstain from high risk factors in his life such as alcohol misuse. Quite clearly Mr S needs ongoing monitoring and support. Ms Barrier has offered to work with him in the community as well as Dr Quadrio. … It must be added that Ms Barrier is a private psychologist and the question of Mr S’ ability to pay her fees is still not answered.”

13    Evidence before this Court, if accepted, establishes that the Applicant has sought individual counselling. That evidence included a “Prisoner Application” dated 20 April 1999 and made by the Applicant. In it he sought a retraction of Dr Blake’s report and “that the (Parole) Board be provided with a fresh report, that includes an explanation why a total of ten (10) referrals were rejected for counselling”. There was also an affidavit dated 24 August 1999, sworn by the Applicant in connection with his application. In it the Applicant said:-

“It was Dr Blake, who in a witnessed agreement, committed himself to providing one on one counselling, as was strongly suggested by two respected Psychologists in this field. If ‘I’ entered into and completed, the Introductory SORT Course, that I did, because, I believed and placed my faith in this man, only to have that ‘trust’, abused, in the most awful way, in his refusal to counsel me.” (sic)

14    Although its terms are a little cryptic, a letter of 11 December 1998 from Mr Robert McKeown, who describes himself as the Acting General Manager, apparently of the Junee Correctional Centre, seems to indicate that the Applicant had made 7 requests for referral for psychological counselling in 1998. A report of 30 April 1999 signed by Maree Grant and Heinz Krueger records that:-

“After a meeting with Dr Blake, Senior Psychologist at this Centre, Mr S agreed to attend the Introductory SORT program and then have one on one counselling with Dr Blake. Mr S completed the Intro-SORT program, however, the one on one sessions did not eventuate, through no fault of the applicant”.(sic)

15    In totality, this evidence satisfies us that the Applicant has made serious efforts to obtain individual counselling. The omission of any reference to these efforts did not make what Dr Blake did say false but it did, on the other hand, make his report misleading. Notwithstanding the references in the report to counselling are to counselling of particular types, when one has regard to the number of occasions the report makes reference to the applicant being unwilling to undertake counselling, it suggests the applicant has been substantially unwilling to undertake counselling at all. That is clearly not so.

16    The probabilities are that Dr Blake’s report, and in particular what he had to say on the question of counselling was of significance in the Board’s decision. In that situation, the Court should give the direction which s23 of the Sentencing Act contemplates.

17    There were also other aspects of Dr Blake’s report which were criticised but in relation to these matters, the complaint fails. The opinions of someone in Dr Blake’s situation, providing the opinions are in fact held, are not false or misleading merely because, in the applicant’s view, they are wrong.

18    Dr Blake said:-

“Mr S has somewhat of an “assumed” key informant status … and has been reluctant to involve himself in more intensive group treatment due to his perceived issues of personal safety.”
and later -
“It is also regrettable that Mr S believes that he is not suitable for the Corrective Services COBAC program, as he claims he is suing the Dept. of Corrective Services.”

19    The Applicant submitted that the use of the words “assumed” and “claims” indicated that Dr Blake was asserting the untruth of the suggestions that the Applicant was an informant and was suing the Department. However it seems to us that these references have been misunderstood by the applicant. The Board could have been in no doubt but that the applicant was an informant and a most important informant from the point of view of the authorities. The writer of the report, however, was concerned about LMS himself assuming that status and because of it being reluctant (for whatever reason, whether of personal safety or otherwise) to involve himself in group psychological counselling treatment sessions. Similarly, the writer, when he refers to the claim of LMS suing the Department of Corrective Services, is not concerned as to whether LMS is or is not a litigant but whether that status had been claimed to justify LMS asserting that he was not suitable for the COBAC Programme involving, as that programme does, psychological counselling. The important matter in each case is not the applicant's actual status but whether he is really willing to undergo counselling. The report implies he is not.

20    Apart from the material to which we have referred, the Court was taken to a very considerable quantity of other documentary material in support of the application. We have considered all of that material but none provides any basis for concluding that the Board made its decision on any other information which was false, misleading or irrelevant.

21    An appropriate order to reflect the conclusion at which we have arrived is:-

“Direct the Parole Board that, insofar as Dr Blake’s report of 31 March 1999 suggested that the Applicant had been unwilling to undergo counselling, that report was misleading.”

22    However a question arises whether the Court can, or should, go further. There is nothing in the Sentencing Act which indicates what effect will or might be given by the Parole Board to such a direction. Fairness would suggest that the Board should reconsider Mr S’ application for parole in light of this Court’s conclusion or direction and as soon as that can reasonably be done. It may be that insofar as s23(2) provides that the Court of Criminal Appeal “may give such direction with respect to the information (suggested to have been false, misleading or irrelevant) as it thinks fit” the section empowers the Court to give consequential directions designed to ensure the decision it does make concerning that information is not a solemn farce. However, not surprisingly considering the Applicant was not represented, no submissions were directed to any question of ancillary orders.

23    Given that the Board expressed a number of reasons for its decision, it may be that the Applicant would gain little or nothing by having a further hearing by the Board now, merely on the basis of the conclusion at which this court has arrived. He may be better served by waiting until 25 January with a view to addressing all of the Board’s concerns. In these circumstances, we would propose that the Court go no further than to give the direction I have set out above but reserve liberty to the Applicant to apply, in the event no further hearing of the Board is held within a reasonable time.

24    The applicant sought certain costs. That application is entirely misconceived and this court lacks power to grant any such application.

25    In conclusion, we would add our voice to the pleas of other judges that Parliament will remove ss23 and 41, at least in their current form, from the Sentencing Act. In McCamley (supra) Hunt CJ at CL, with the agreement of at least one other member of the Court said that that case illustrated how little utility there was in those provisions and that the procedure was a failure. We would add that, while the sections do contain some provisions directed to avoiding the time of the Court being wasted, this case illustrates that one effect of the sections is that 3 Supreme Court judges may be required to examine a great deal of paper in order to come to a decision whether some information before the Parole Board was false, misleading or irrelevant; and this even though the information, while material, was not decisive and may turn out to be utterly irrelevant when the Parole Board next considers an applicant’s case - in less time than it generally takes to bring a matter on in this Court. The absence from the Sentencing Act of anything which clearly states what effect is intended for directions concerning information this Court may make under the sections is yet another unsatisfactory aspect of them.

26    The orders of the Court are:-

(1) Direct the Parole Board that, insofar as Dr Blake’s report of 31 March 1999 suggested that the Applicant had been unwilling to undergo counselling, that report was misleading.

(2) Reserve liberty to the Applicant to apply, in the event no further hearing of the Board is held within a reasonable time.