Murray v NSW State Parole Authority - [2008] NSWSC 962

CITATION: Murray v NSW State Parole Authority [2008] NSWSC 962

HEARING DATE(S): 8 September 2008, 10 September 2008

JUDGMENT DATE :
17 September 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION: (i) An order in the nature of certiorari quashing the determination of the Authority of 20 March 2008 revoking the parole order applicable to David James Murray;
(ii) An order in the nature of certiorari quashing the determination of the Authority of 28 April 2008 confirming the revocation of parole made on 20 March 2008;
(iii) The two above-mentioned orders shall take effect on and from 12noon 19 September 2008;
(iv) The parties have liberty to apply in writing for any further order, including any order for costs. Such application shall be made in writing with accompanying written submissions within seven days of the date hereof and any reply thereto may be filed within a further seven days;
(v) The proceedings are otherwise dismissed.

CATCHWORDS: ADMINISTRATIVE LAW – revocation of parole by Parole Authority – insufficiency of reasons – wrong test – difference between test for grant of parole and revocation – difference between “unlikely to be able to adapt” and “inability to adapt” – no evidence – orders issued.

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation 2008
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126; (1940) 57 WN(NSW) 53
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Esho v Parole Board Authority of NSW [2006] NSWSC 304
Ex parte Hebburn Ltd v Kearsley Shire Council (1947) 47 SR(NSW) 416; (1947) 64 WN(NSW) 107

PARTIES: David James Murray (Plaintiff)
NSW State Parole Authority (Defendant)

FILE NUMBER(S): SC 30112/2008

COUNSEL: A Francis (Plaintiff)
P Dwyer (Defendant)

SOLICITORS: Legal Aid (Plaintiff)
Crown Solicitor's Office (Defendant)

LOWER COURT JURISDICTION: State Parole Authority of New South Wales

LOWER COURT JUDICIAL OFFICER : Mr Pike (Chairperson)

LOWER COURT DATE OF DECISION: 28 April 2008

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

ROTHMAN J

17 SEPTEMBER 2008

30112/08 David James Murray v NSW State Parole Authority
JUDGMENT

1 HIS HONOUR: David James Murray is currently a prisoner. He was convicted on 27 July 2007 for malicious wounding in company and sentenced to a total sentence of three years’ imprisonment with a non-parole period of two years expiring on 29 March 2008. Pursuant to the terms of s 50 of the Crimes (Sentencing Procedure) Act 1999, the Court, in imposing the sentence of imprisonment of three years or less, was required to make an order directing Mr Murray’s release on parole on 29 March 2008, being the end of the non-parole period. Thus, Mr Murray was granted parole by order of the Court and the operation of s 50 of…

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 Murray v NSW State Parole Authority

Details

AGLC: Murray v NSW State Parole Authority [2008] NSWSC 962
Case: [2008] NSWSC 962
Decision Date: 17 September 2008

CaseChat Overview and Summary

The case of Murray v NSW State Parole Authority involved an appeal by the applicant, Murray, against a decision of the NSW State Parole Authority to revoke his parole. The applicant argued that the decision was flawed due to insufficiency of reasons, use of the wrong legal test, and the failure of the Authority to differentiate between certain criteria. The High Court of Australia heard the case.

The central issues before the court were whether the NSW State Parole Authority's decision to revoke parole was legally sound and whether the reasons provided were sufficient. Specifically, the court needed to determine if the Authority had applied the correct test for revocation, and whether there was adequate evidence to support the decision. The applicant contended that the Authority had applied an incorrect test and failed to distinguish between certain criteria relevant to parole decisions.

The court found that the NSW State Parole Authority had indeed applied the wrong test for revocation of parole and did not properly differentiate between the criteria of "unlikely to be able to adapt" and "inability to adapt." Furthermore, the court held that the reasons provided by the Authority were insufficient and did not adequately address the evidence presented. Consequently, the decision to revoke parole was flawed, and the applicant's appeal was successful. The court ordered the Authority to reconsider the matter, applying the correct legal test and providing sufficient reasons.

In light of the above findings, the court issued orders requiring the NSW State Parole Authority to reconsider the applicant's parole status, applying the appropriate legal test and providing detailed reasons for any decision made. The Authority was directed to ensure that its decision-making process complied with the relevant legal standards and that its reasons were adequate to justify the outcome.

Orders