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Moefili v State Parole Authority

Moefili v State Parole Authority

Case [2009] NSWSC 1146 29 October 2009

Judicial Review

Natural Justice & Procedural Fairness

Statutory Interpretation

Administrative Law

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Reported Decision:
76 NSWLR 555

New South Wales

Supreme Court

CITATION: MOEFILI v STATE PAROLE AUTHORITY & ANOR [2009] NSWSC 1146
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Tuesday 27 October 2009

JUDGMENT DATE :
29 October 2009

JURISDICTION: Administrative Law

JUDGMENT OF: Hall J at 1

DECISION: The summons is dismissed.

CATCHWORDS: ADMINISTRATIVE LAW - whether parole conditions imposing non-association and place restrictions on parolee should be set aside - whether the term "outlaw motorcycle gang" was so uncertain as to be ultra vires - the phrase "specified person" in s 128A of the Crimes (Administration of Sentences) Act extends to the plural - "specified persons" need not be named but can be described by membership of an organisation or class - however, conditions attached to parole should be reasonably precise in order for an offender to understand the requirements they impose - the term "outlaw motorcycle gang" is in current usage and it could be inferred from the evidence that the parolee understood its meaning - no uncertainty or ambiguity found - summons dismissed

LEGISLATION CITED: Adoption Act 1955
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Felons (Civil Proceedings) Act 1981
Interpretation Act 1987
Justice Legislation Amendment (Non-Association and Place Restriction) Act 2001

CASES CITED: A v B [1969] NZLR 534
Cann’s Pty Limited v Commonwealth (1946) 71 CLR 210
Coco v The Queen (1993-1994) 197 CLR 427
DCU v State Parole Authority of New South Wales [2006] NSWSC 526
King Gee Clothing Co Pty Limited v Commonwealth (1945) 71 CLR 184
McCallum v Parole Board [2003] NSWCCA 294
Power v The Queen (1973) 131 CLR 623
Regina v Bugmy [2004] NSWCCA 258
Regina v JJS [2005] NSWCCA 225
Regina v Simpson (2001) 53 NSWLR 704
White v State Parole Authority of NSW [2007] SWSC 299

PARTIES: Eric MOEFILI v
STATE PAROLE AUTHORITY & ANOR

FILE NUMBER(S): SC 30099 OF 2009

COUNSEL: P: S Beckett
1D: Submitting appearance
2D: D T Kell

SOLICITORS: P: S E O'Connor
1D: I V Knight
2D: I V Knight

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LIST

HALL J

THURSDAY 29 OCTOBER 2009

No 30099 of 2009

ERIC MOEFILI v PAROLE AUTHORITY OF NEW SOUTH WALES & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff commenced proceedings by way of summons filed on 15 October 2009 in respect of a decision by the Parole Authority of New South Wales (the “Authority”) to impose two parole conditions identified in the summons as conditions 37 and 38.

2 The plaintiff seeks an order that the decision of the Authority of 30 July 2009 imposing the conditions be set aside. In addition, the plaintiff seeks an order that the decision of the Authority to revoke his parole be set aside. An order is also sought setting aside a decision by the Authority on 9 October 2009 not to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moefili v State Parole Authority

Details

AGLC: Moefili v State Parole Authority [2009] NSWSC 1146
Case: [2009] NSWSC 1146
Decision Date: 29 October 2009

CaseChat Overview and Summary

In the case of Moefili v State Parole Authority, the applicant sought to set aside certain parole conditions imposed by the respondent. The conditions required the applicant, a member of an outlaw motorcycle gang, to avoid association with other members of the gang and to not enter certain premises. The dispute was heard in the Supreme Court of Queensland. The applicant argued that the parole conditions were too vague and uncertain, particularly the term "outlaw motorcycle gang," which he contended was too ambiguous to be enforceable. The central issue before the court was whether the parole conditions were so uncertain as to be invalid and whether the term "outlaw motorcycle gang" was sufficiently defined to be enforceable against the applicant.

The court considered whether the term "outlaw motorcycle gang" was sufficiently certain and whether the phrase "specified person" in s 128A of the Crimes (Administration of Sentences) Act extended to the plural. The court found that while "specified persons" need not be named, they could be described by membership of an organisation or class. The court held that conditions attached to parole should be reasonably precise in order for an offender to understand the requirements imposed upon them. However, given that the term "outlaw motorcycle gang" is in current usage and that it could be inferred from the evidence that the applicant understood its meaning, no uncertainty or ambiguity was found. The court further found that the phrase "specified person" in s 128A extended to the plural and could include multiple individuals described by membership of an organisation or class.

The court dismissed the summons, finding that the parole conditions were not so uncertain as to be invalid. The court held that the term "outlaw motorcycle gang" was sufficiently defined and that the phrase "specified person" in s 128A extended to the plural. The court found that the parole conditions were reasonably precise and that the applicant had understood the requirements imposed upon him. The summons was therefore dismissed.

Orders