PH v State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
PH v STATE OF SOUTH AUSTRALIA & ANOR
[2024] SASC 113
Judgment of the Honourable Justice McDonald
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
The applicant seeks judicial review of a decision made by the Parole Board of South Australia on 16 January 2024, to cancel his parole on the basis that the applicant had breached two of his parole conditions. The two conditions were condition 14, a drug and alcohol testing condition and condition 20, a no contact condition.
The applicant brings this application on the grounds that the Parole Board erred in finding that both breaches had been proved, that the Parole Board erred in finding that the breaches were serious breaches such that s 74 of the Correctional Services Act 1982 (SA) (‘the Act’) be enlivened, that the applicant was denied procedural fairness by the Parole Board, and/or that there was a reasonable apprehension of bias, and that the applicant had been unlawfully imprisoned.
On 22 November 2022, the applicant was sentenced to two years and four months imprisonment with a non-parole period of 14 months for four firearms offences. The applicant pleaded guilty and on 15 December 2022, the Parole Board resolved to release the applicant on automatic parole effective from 21 December 2022, pursuant to s 66 of the Act. On 27 April 2023 a breach of the drug and alcohol condition was reported on the basis that the applicant failed to provide a urine sample. On 31 May 2023, a breach of the no contact condition was reported. Following this, the Parole Board issued a warrant for the applicant’s arrest and the applicant was taken into custody. The Parole Board determined that the nature of these breaches amounted to a serious breach enlivening s 74 of the Act, meaning that the applicant was liable to serve the balance of his sentence of imprisonment as of the date of the first breach.
The applicant seeks a writ of certiorari setting aside the decision of the Parole Board that he be liable to serve the balance of his term of imprisonment and further, or alternatively, an order in the nature of certiorari setting aside the decision of the Parole Board that he had breached the drug and alcohol condition and the no contact condition.
Held; the application is allowed:
1.The Parole Board committed jurisdictional error in finding that the applicant had breached condition 14 (drug and alcohol) and condition 20 (no contact) of his parole.
2.The question of procedural fairness or perception of bias is not to be considered, given jurisdictional error has been established.

3. The parties are to be heard as to the final orders to be made in light of the reasons for judgment.
Correctional Services Act 1982 (SA) s,3(3)(b), s 3(3)(c), s 66, s 66(1aa)(b)(ii), s 66(6), s 66(8), s 68, s 68(1b), s 74, s 74(1)(b), s 74AAA, s 77AA, referred to.

PH v STATE OF SOUTH AUSTRALIA & ANOR
[2024] SASC 113
CIVIL: Application
McDONALD J:

Mr H (‘the applicant’) has made an application for judicial review of the decision of the Parole Board of South Australia to cancel his parole. The applicant challenges the findings of the Parole Board that he breached two of the conditions of his parole, namely, that he breached the drug and alcohol testing condition and the condition that he “not contact or attempt to contact any members of the Commonwealth Justice Assembly” (‘no contact condition’). Further, the applicant challenges the determination that the nature of these breaches were such that the applicant was liable to serve the balance of his sentence of imprisonment as at the date of the first breach, pursuant to s 74 of the Correctional Services Act 1982 (SA) (‘the Act’).
The applicant seeks a writ of certiorari setting aside the decision of the Parole Board on 16 January 2024 that he was liable to serve the balance of his term of imprisonment. Further, or alternatively, an order in the nature of certiorari setting aside the decision of the Parole Board that he had breached the drug and alcohol testing condition and/or the non-contact condition. Finally, the applicant seeks a declaration that he was unlawfully detained at Mount Gambier Prison from either 30 November 2023, 16 January 2024, or 19 January 2024 until his release on 15 February 2024. The relevant date, if there is to be one, will be determined by the resolution of the issues on this application.
The issues raised by the application
The following issues are raised by the application:
·Did the Parole Board err in finding one or both breaches had been proved?
·Did the Parole Board err in finding that the breaches were “serious breaches” such that the power under s 74 of the Act was enlivened?
·Was the applicant denied procedural fairness by the Parole Board’s failure to provide him with an opportunity to consider and make submissions regarding material before and relied upon by the Parole Board?
·Did the Parole Board demonstrate a reasonable apprehension of bias in arriving at its decision?
·Has the applicant been unlawfully imprisoned and if so for what period of time?
The statutory scheme
Section 3(3)(a) provides that in exercising the powers under the Act, “the paramount consideration must be the safety of the community.” Further, the principles that guide those involved in the administration of the Act are found in s 3(3)(b) and 3(3)(c). These are:
(b)prisoners, probationers and parolees should be made aware of their obligations under the law, of the consequences of any breach of the law and of the importance of individual responsibility;
(c)the management of prisoners, probationers and parolees should be designed to assist in their rehabilitation and reintegration into the community.
Part 6 of the Act relates to parole and more particularly Division 3 contains the sections relevant to the release of a prisoner on parole.
Section 66 provides for the automatic release on parole for certain prisoners. Pursuant to s 66(1) “the Board must order that a prisoner who is liable to serve a total period of imprisonment of less than 5 years and for whom a non-parole period has been fixed be released from prison or home detention on parole on the day on which the non-parole period expires”. This is the section under which the applicant was released.
Section 68 relates to the conditions of release on parole. Section 68(1b) provides that “[t]he paramount consideration of the Board when fixing conditions to which the release of a prisoner on parole will be the subject must be the safety of the community”. The section mandates that certain conditions be imposed. In relation to a prisoner who is not serving a life sentence, these are that the prisoner not commit any further offence, they are prohibited from possessing an offensive weapon and are required to be under the supervision of a Community Corrections Officer.[1]
[1] Correctional Services Act 1982 (SA) s 68(1aa)(a)(i)-(iii).
In addition, pursuant to s 66(6) and s 66(8), prisoners automatically released under s 66 of the Act are subject to the “prescribed conditions”; these are a further series of mandated conditions, determined by the presiding member of the Parole Board that apply to all prisoners being granted automatic release on parole.
As well as the mandatory conditions, under s 68(1aa)(b)(ii) any prisoner released on parole “may be subject to any other condition (including a condition that the prisoner be monitored by use of an electronic device) to be effective until the expiration of the period of parole (or such earlier date as is specified by the Board)”.
Section 74 to s 77AA of the Act provide for the action that may be undertaken by the Parole Board in the event of a breach of parole. Relevant to the determination of the issues on this application, the Act prescribes two different regimes dependant upon whether or not the breach of the parole condition amounts to a serious breach.
Section 74 of the Act applies to serious breaches. It relevantly provides:
74 – Board may take action for breach of parole conditions
(1)If the Board is satisfied that—
(a) in the case of a person released on parole who is serving a sentence of life imprisonment—the person has, while on parole, breached a condition of the parole; or
(b) in the case of any other person released on parole—the person has, while on parole, breached a condition of the parole that is constituted by the commission of an offence or that is, in the opinion of the Board, a serious breach,
the Board may, by order, direct that the person serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed.
(1a)Subsection (1) applies notwithstanding that, at the time of finding the breach proved, the parole has expired or been discharged.
…
(2)The Board cannot make an order under this section in relation to a person who is under the supervision of a community corrections officer unless it has obtained and considered a report from the CE.
…
Section 74AAA however applies to breaches of parole conditions that are not determined to be serious, and accordingly the consequences are not so extreme. I set out the relevant portions of that section:
74AAA—Board may suspend release on parole or take other action for certain breaches of parole conditions
(1)If the Board is satisfied that a person who has been released on parole (not being a person serving a sentence of life imprisonment) has, while on parole, breached a condition of the parole (other than a breach of a kind referred to in section 74(1)(b)), the Board may, by order—
(a) direct that the person serve in prison a period of their remaining balance that the Board considers appropriate, but not exceeding—
(i)the period between the day on which the breach occurred and the date of expiry of the parole; or
(ii)6 months,
whichever is the lesser; or
(b) vary the conditions of, or impose further conditions on, the person's release on parole.
(2)Subsection (1)(a) applies despite the fact that, at the time of finding the breach proved, the parole has expired or been discharged.
…
(4)The Board cannot make an order under this section in relation to a person who is under the supervision of a community corrections officer unless it has obtained and considered a report from the CE.
…
For completeness, although not of particular relevance to this application, s 74AA of the Act enables the Parole Board to require a person to serve a specified number of hours of community service instead of exercising its powers under s 74 or s 74AAA of the Act.
The circumstances that resulted in the issue of the Parole Board warrant for the applicant’s arrest
On 22 November 2022, the applicant was sentenced to two years and four months imprisonment, with a non-parole period of 14 months for four firearms offences. It is necessary to set out some of the details of those offences.
The firearms offences
On 16 September 2021, police entered and searched a property at Lonsdale. The property was owned by a company of which, at that time, the applicant was the director, secretary and shareholder. The property comprised of 12 acres and a number of transportable homes, shipping containers and an Atco transportable hut were located on it. The applicant lived in the Atco transportable hut. In the applicant’s bedroom, inside a piano, police located various firearms and ammunition. At that time the applicant did not hold a firearms licence and the firearms were unregistered.
Although the applicant pleaded guilty, there was a factual dispute about how and when the firearms and ammunition came to be located inside of the piano. The applicant gave evidence and the sentencing Judge rejected the applicant’s account.
At the time of sentencing, the Judge discussed the applicant’s affiliation with a group called the Commonwealth Justice Assembly. He said:[2]
You are what could be called the leader of a group known as the Commonwealth Justice Assembly which promotes a sovereign citizen ideology. The property on which the firearms and ammunition were located was used as the Assembly headquarters. The Assembly has a large number of members and you say up to about 100 people attend at the Lonsdale property for meetings each weekend.
[2] FDN 11, Affidavit of Eleanor Frances Nelson KC made on 27 March 2024 (‘Nelson Affidavit’) at 3, EFN-1.
Release on parole
On 15 December 2022, pursuant to s 66 of the Act, the Parole Board resolved to release the applicant on automatic parole on 21 December 2022. Included in the applicant’s parole conditions were:[3]
14.That you present yourself for drug and alcohol testing as and where directed by your Community Corrections Officer, or the Parole Board, and that you do all things and sign all such forms as may be necessary to enable this, the said drug and alcohol testing to be conducted and analysed and the results of such analysis provided to your Community Corrections Officer and/or the Parole Board.
…
20.That you not contact or attempt contact or associate in any way, whether directly or indirectly, with any members of the Commonwealth Justice Assembly.
[3] Nelson Affidavit at 7, EFN-2.
The applicant was placed under the supervision of a Community Corrections Officer, Colin Mercer.
Circumstances surrounding the decision of the Parole Board to revoke the applicant’s parole
On 28 April 2023, Mr Mercer notified the Parole Board of an alleged breach by the applicant of the drug and alcohol testing condition. Mr Mercer advised the Parole Board of the following:[4]
On 27/4/23 the writer directed [the applicant] to provide a urine sample. He failed to provide a sample. He stated he could not provide a sample. He was given 3 hours to provide a sample.
He was directed to attend Noarlunga Community Correctional Centre on 28/04/23 and provide a sample. He was warned about negative consequences for non-compliance.
[4] Nelson Affidavit at 13, EFN-5.
Mr Mercer included a recommendation in the report that “the writer will monitor this situation and continue to urine test [the applicant] regularly and inform the Parole Board accordingly”.
It is the applicant’s account that when he was asked to provide a urine sample, he made three attempts but was physically unable to do so. He described Mr Mercer saying words to the effect of “I can see you’re trying to go, I’ll give you one more chance, come back tomorrow or I will breach you”.[5]
[5] FDN 1, Originating Application for Review, Statement of Facts Issues and Contentions. The second respondent cannot neither admit nor deny this exchange occurred (FDN 9, Response by the Parole Board of South Australia to Statement of Facts Issues & Contentions).
Up until this occasion, the applicant had been compliant with all directions in relation to drug and alcohol testing, and had returned no positive results.
The following day the applicant reattended as requested and provided a sample which tested negative for drugs and alcohol.
On 11 May 2023, the applicant obtained a letter from a general practitioner opining that the applicant’s struggle to provide a urine sample was likely a function of his age and comorbidities. The general practitioner said that he would support the applicant having a longer period of time to provide a sample, suggesting a window of two hours.
On 31 May 2023, Mr Mercer reported a further breach of the applicant’s parole conditions, this time it was the no contact condition. The details provided in that report were:[6]
On 31/05/23 the writer received the following alleged breach information from SAPOL:
…
On 27/05/23 [the applicant] attended Christies Beach Police Station to report a breach of Intervention Order by [JM] (associate of Commonwealth Justice Assembly). [The applicant] has provided a signed affidavit to Police stating on 27/05/23 he attended the immediate vicinity of [the Lonsdale Property] (which is the former meeting place for Commonwealth Justice Assembly and residential address of [JM]) in order to serve an illegitimate summons which he had created and is not legally binding. [The applicant] was allegedly approached and threatened by [JM] in the street, which [the applicant] reports is in breach of an active Intervention Order. [The applicant] had earlier contacted the police call centre and requested a Standby breach of Peace to serve the summons at this address. It has since been established this ‘summons’ is illegitimate and would have amounted to an unnecessary waste of Police resources.
[The applicant] attempts to serve an illegitimate summons are deliberately provocative and may amount to a breach of his parole, by failing to keep the peace towards any person.
[The applicant’s] attendance in the immediate vicinity of [the Lonsdale Property] which is occupied by [JM] and former meeting place for Commonwealth Justice Assembly which is frequented by members/associates. This also may amount to a breach in respect to attempting to contacting any member or associate, given his intent to serve an illegitimate summons and the interaction he had with [JM].
…
The writer supports SAPOL’s alleged breach application. [The applicant] is continuing to lose focus upon supervision in the community. The Parole Board may wish to use a warrant for his arrest.
…
[6] Nelson Affidavit at 15-16, EFN-7.
The applicant’s account of these events is that on 27 May 2023 he was seated in his car about 100-150 meters away from the Lonsdale Property. JM approached him at his car and threatened him. He attended at a police station and provided the police with an affidavit about his interactions with JM.
On 31 May 2023, the Parole Board issued a warrant for the applicant’s arrest. The warrant was executed and the applicant was taken into custody. It is important to note that there is no issue as to the validity of the warrant. It was accepted by the second respondent (‘the respondent’) that the warrant was validly issued and executed. It is the conduct of the Parole Board after the applicant was taken into custody, that is the subject of the contest.
On 4 June 2023, the applicant forwarded written submissions to the Parole Board setting out his explanation for the two alleged breaches of his parole conditions.
On 5 June 2023, Mr Mercer forwarded documents to the Parole Board that he had been provided by Shirley Frost, a person who was purporting to act on behalf of the applicant. These were: a copy of the applicant’s medical certificate (in relation to his inability to provide a urine sample), a copy of the intervention order that had been taken out by the applicant, against JM, and a copy of the Information and summons that the applicant had been attempting to serve.[7]
[7] Nelson Affidavit at 22-31, EFN-10.
On 6 June 2023, Mr Mercer provided the Parole Board with a further report. He had been requested to make a recommendation in relation to the warrant that was holding the applicant in custody. He said the following:[8]
The writer respectfully recommends that the Parole Board release [the applicant] at the earliest opportunity and vary his conditions to report on a twice weekly basis as follows:
“That you report TWICE weekly in person to, and meet with, your Community Corrections Officer under whose supervision you have from time to time been placed and this is not to be varied without the approval of the Parole Board”.
The Parole Board may also wish to consider interviewing [the applicant] at the Parole Board’s discretion.
[8] Nelson Affidavit at 32, EFN-11.

On 7 June 2023, the Parole Board noted the submissions that they had received to date and resolved that the applicant was to remain in custody awaiting an interview on 18 July 2023.
The applicant was interviewed by the Parole Board on 1 August 2023. Mr Mercer was present via AVL for the interview. A number of topics were canvassed in the interview. These included:
·The applicant’s diabetes and the medical reasons that prevented him from providing a urine sample.
·The background to and reason for the applicant attending at the Lonsdale address.
·The circumstances in which the applicant came to be in contact with JM.
·The applicant’s denials that he in any way wanted to contact JM.
·The suggestion that for many years the police have had concerns that the applicant holds an anti-government and anti-law enforcement attitude which has resulted in him stockpiling firearms and ammunition (which was denied by the applicant).
·The applicant’s plan to try and create 100 jobs in South Australia.
·The applicant’s civil action in the Magistrates Court.
·Whether the applicant has had any psychiatric or psychological treatment.
·Suggestions made by the Presiding Member that some of the applicant’s belief system were not based in reality and the issues that this may pose for the applicant moving on into the future.
·The circumstances of the firearms offences, about which the applicant maintained the version rejected by the sentencing Judge.
·The applicant’s previous involvement in the Commonwealth Justice Assembly and the role of that group.
·The suggestion by the Presiding Member that the applicant had not been engaging with his Community Corrections Officer.
As a result of the interview, the Parole Board raised concerns with respect to the applicant’s mental health. On 2 August 2023, the Parole Board determined that prior to making a determination on the breaches, they would require a psychiatric assessment of the applicant and his level of risk if released into the community.
On 24 November 2023, Dr Rachel Jesudason met with the applicant for the purpose of preparing a psychiatric report. She authored the report under the supervision of Dr Craig Raeside and it was completed on 21 December 2023.
On 15 January 2024, the applicant’s head sentence expired.
On 16 January 2024, the Parole Board met having received the psychiatric report. It was determined to cancel the applicant’s parole pursuant to s 74(1)(b) of the Act. Both breaches were found to have been proved. Given that the breach of the drug and alcohol testing condition took place first on 27 April 2023, the applicant was determined to be liable to serve eight months and 19 days imprisonment commencing from 31 May 2023. That meant that he was due for release on 19 February 2024. It is implicit in arriving at this outcome that the Parole Board found that at least one of the breaches was a “serious breach” bringing it within s 74 of the Act.
Was the Parole Board in error in finding that one or more of the parole conditions had been breached?
Condition 14 – the drug and alcohol testing condition
There is no contest that on 27 April 2023 the applicant did not provide a urine sample, however, he did so the next day and that sample resulted in a negative result. It is of significance that the condition required that the applicant “do all things and sign all such forms as may be necessary to enable this, the said drug and alcohol testing to be conducted and analysed”. There is no evidence that he did not comply with the requests made of him and the applicant maintains that the only reason that he did not provide a urine sample was because he was unable to do so. The applicant offered by way of alternative to provide a mouth swab. That offer was declined by Mr Mercer.
In her affidavit, the Presiding Member of the Parole Board set out the reasons for the Parole Board’s determination to cancel the applicant’s parole. In relation to the drug and alcohol test condition she said the following:[9]
[9] Nelson Affidavit at [24].
The Board’s decision to cancel parole pursuant to s 74 of the Act
24.The Parole Board determined that the breach of the drug and alcohol testing condition was a serious breach because:
24.1 Dr Raeside, who examined him, considered that he suffered from a delusional disorder and that it was critical that he not only refrain from alcohol abuse or illegal drug use, but that he be compliant with testing.[10]
24.2 [The applicant’s] presentation at the interview was unusual and he made statements that could be considered as paranoid or delusional and could also be consistent with drug use.
24.3 Testing for substance abuse is a serious matter.
24.4 [The applicant] was provided three hours to produce a urine sample on 27 April 2023 and he was unable to do so, more than the two hours recommended by [the applicant’s] general practitioner.
(Emphasis Added)
[10] The Parole Board was in error in referring to Dr Raeside having examined the applicant. It was Dr Jesudason who interviewed the applicant and prepared the report under the supervision of Dr Raeside.
It appears plain from these reasons that the Parole Board accepted that the only reason that the applicant did not comply with condition 14 was because he could not. That conclusion is consistent with the exchanges that occurred on this topic during the interview with the applicant:[11]
[11] Nelson Affidavit at 63-65; 80-81, EFN-18.
PRESIDING MEMBER:   … We’re also told that on the 27^th of April you failed to supply a urine sample. Now, you’ve, I think, written to us about that, and you say you were given a second chance, or you thought you’d be given a second chance, and you tried multiple times, you say, to provide the urine sample. But you were given a fair time to do that. Was there a problem?
A.Yes, I’m insulin dependent, and I’ve been insulin dependent for 45 years, and the only thing I can presume that’s happened to me that day is that I had bad sugars the night before which makes me dehydrated. And so when I went the next day at 9.00 in the morning, I gave a – I know it was clean because I’m not a drug taker. I do not take drugs. I’m against drugs. I’ve run landfill operations in Lonsdale for 25 years. I’ve had 15 employees, so I know what it’s like, what drugs do in the system to my employees. I absolutely detest it. So it was – look, I tried three times to give a urine sample, and I just – my body just would not produce it.
And so when I went there at 9.00 the next morning, I went straight away, and like I said, I know it was clean. And then I come to an arrangement with Mr Mercer, the parole officer, that he would give me some notice because my appointments were at 2.00, so what I’d do – that would give me the morning to make sure that I didn’t go to the toilet to then give a urine sample. And also, I know that every other urine sample that I’d given in those two or three, it’s a bit of a time ago now, were clean. So I’ve actually got a way now of, which I didn’t before, a way of making sure that I can provide one, and that’s go there early, or, you know, make sure that I can actually hold onto it until I go there. But I do not have a problem with ---
Q.All right.
A.--- supplying a urine sample. It was just one of those unfortunate times.
Q.We’ll take all that into account.
…
PRESIDING MEMBER:   Mr Mercer, in relation to the failure to provide a urine sample, can we hear from you what happened?
MR MERCER:             I do believe [the applicant] does have an issue given urine samples. I was quite flexible and said come in early in the morning, the next morning, which he duly did. The problem I have is when you listen to [the applicant], and I’ve listened to this on numerous occasions during supervision, he believes he has been unjustly treated in many areas. Now, for me specifically, I’ve been made aware that he believes he’s been blindsided in regards to the urine test results – failure to give a urine test. He was actually told it’s a reportable breach, but it would be reported that he’d come back in and give a test the next day. From that, I tried to be a bit more accommodating, as [the applicant] has mentioned in the fact that we’ll give him a bit of time within the limitations of the procedures. But for us to have a good working relationship, he’s got to lose that victim mentality. Because I just feel a lot of the conversations during supervision is about him being a victim, and we don’t really get anywhere. He needs to be upfront, and take a lot more responsibility than he does currently.
As I have mentioned, the applicant provided medical evidence in support of his explanation for why he had been unable to provide a urine sample.
It was the applicant’s submission that there has been no suggestion by anyone that he was deliberately non-compliant. To the contrary, the explicit finding of the Board was that the applicant was unable to provide a sample.
The respondent appropriately conceded that the inability to provide a sample for medical reasons does not constitute a breach of the applicant’s parole conditions.
In my view the Parole Board was in error in finding this breach proved. There was no basis upon which to reach such a finding. For that reason the outcome is unreasonable and amounts to a jurisdictional error.
Condition 20 – the no contact condition
It is the applicant’s contention that the Parole Board was in error in finding that there had been a breach of this condition or, alternatively, if it was a breach that it amounted to a serious breach.
It is apparent from the various materials before me, that one of the applicant’s greatest criminogenic risk factors is his ongoing involvement in, or association with, the Commonwealth Justice Assembly. It was in the context of his role in that organisation that the applicant had committed the firearms offences.
In 2020, the applicant was diagnosed with Persistent Delusional Disorder. His involvement with Community Mental Health Services came about after he wrote several letters to Parliament. At that time, the applicant displayed delusional conspiracy theories, including alleging that the legal system was corrupt as it was run by Freemasons.[12]
[12] Nelson Affidavit at 105, EFN-23.
In addition, the applicant has a history of being hostile, irritable and belligerent to mental health clinicians and the police.[13]
[13] Ibid.
In a Parole Board Report prepared in January 2023 it was observed:[14]
Furthermore, [the applicant] is widely considered a cult-type leader expressing his sovereign citizen’s beliefs. [The applicant] appears to not be a violent person but has demonstrated the ability to groom and manipulate people. In prison, there were concerns that he was attempting to recruit prison staff to his political organisation at the Adelaide Remand Centre. Furthermore, [the applicant] described himself as an influential person in prison, assisting other prisoners in writing submissions to the Parole Board and making legal challenges within the court system.
[14] Ibid.
Against that backdrop it was previously reported that the applicant was the leader of the Commonwealth Justice Assembly which, at its height, boasted over 2,000 members. The Commonwealth Justice Assembly was known to promote sovereign citizen ideology. The applicant told DCS authorities that he wanted to return to the political party when released from prison. He denied that it was a cult or terrorist organisation, suggesting instead that it was committed to obtaining justice for all Australians.[15]
[15] Nelson Affidavit at 112, EFN-23.
In interviewing the applicant for the December 2023 psychiatric report, Dr Jesudason raised the topic of the applicant’s involvement in the Commonwealth Justice Assembly. The applicant described them as a community based group who “try to help people out with justice matters”.[16] Dr Jesudason described the applicant as becoming evasive when asked about the ethos of the group and who their founding members were. The applicant acknowledged that the group would meet regularly on his Lonsdale property and that he did not charge money for his services. The applicant claimed that at one point there were 9,000 members but said that it had closed down since he was imprisoned.[17]
[16] Nelson Affidavit at 98, EFN-20.
[17] Nelson Affidavit at 98-99, EFN-20.
Dr Jesudason expressed the view that the applicant appeared to underplay his belief system however “there was evidence of ongoing fixed beliefs around a political organisation he likely founded (CJA) as well as beliefs surrounding the management of his legal status that fall into the realm of previously documented anti-government/anti-authoritarian views”.[18]
[18] Nelson Affidavit at 100, EFN-20.
Dr Jesudason identified a number of matters that complicated the applicant’s situation. She said:[19]
What complicates [the applicant’s] case is that his delusional belief systems can be increasingly interpreted as cultural norms, given the current political context. Indeed, [the applicant] has had mental health assessments where members of the CJA have been present and behaved in a similar manner as him, to the same clinicians.
[19] Ibid.
A further complicating factor was that “once his custodial sentence is served, there is a likelihood of re-engagement with fringe groups and prior contacts. If this were to occur his beliefs would likely be further reinforced, making it less likely that he would voluntarily seek treatment”.[20]
[20] Ibid.
On that basis Dr Jesudason suggested that if it was determined to grant the applicant parole, a condition be included that would prevent the applicant from contacting anyone from the Commonwealth Justice Assembly.
For these reasons, in my view the parole condition prohibiting contact with members of the Commonwealth Justice Assembly that had already been in place prior to the applicant’s arrest, was an important condition targeting the applicant’s particular criminogenic risk factors. It follows that any breach of that condition would amount to a serious breach.
The real issue however, in relation to this condition, is whether there was in fact a breach.
The wording of the condition is important in that it reads that the applicant not contact or attempt to contact or associate in any way, whether directly or indirectly with any members of the Commonwealth Justice Assembly.
It was the applicant’s submission that he did not contact or attempt to contact or associate with JM – in fact he wished to have no contact with him. The very reason the applicant had obtained an intervention order against JM, was to ensure that there was no contact.
Prior to attending in the vicinity of the Lonsdale property on 27 May 2023, the applicant had attended at the Christies Beach Police Station to request that the police serve a filed Information and summons against JM and Ms S (his former wife). Whilst there, the applicant requested that police meet him at the Lonsdale address to be on standby for any “breach of the peace”, when he served Ms S with the summons. The police declined to be involved.
The applicant drove to the Lonsdale address and pulled up in his vehicle about 100-150 metres away from the front gate. After he had been there for a few minutes, JM approached him at his car. The applicant said that the following exchange occurred:[21]
[JM] walked up to the driver’s side of the car and I think the window was already open. He stood on the outside of the driver’s door within arms-reach and he was heated.
He said,    “What are you doing here?”
I said,        “Delivering a summons, you aren’t supposed to be within 100 metres of me.”
He said,    “If you don’t fuck off I’m going to stab a hole in you.”
[21] Nelson Affidavit at 48, EFN-16.
The applicant then drove off and attended at the Christies Beach Police Station where he made a complaint about these events and provided an affidavit. Had the applicant not reported the matter, the police, DCS and the Parole Board would have been none the wiser.
The applicant has raised two issues in relation to the Parole Board finding that his conduct was in breach of his parole condition.
The first relates to the nature and circumstances of the contact between the applicant and JM. It was submitted that in order for there to be a breach, it was necessary for it to be established that there was purposive conduct. That is, that the applicant made some efforts to seek out or make contact with JM. Whilst there is some force in that argument, there is a contrary argument, that by simply positioning himself where he did, the applicant was deliberately putting himself in a position in which it was inevitable that he would cross paths with JM, which is exactly what happened.
There is, however, a more fundamental problem in finding that this condition had been breached and that is, that it must be established that JM was a member of the Commonwealth Justice Assembly at the relevant time.
The respondent contended that there was material before the Parole Board upon which they could be satisfied of this fact. The materials relied upon were statements made by the applicant in a police interview that took place on 12 December 2022,[22] that were set out in a DCS Individual Development Plan and a further statement made by the applicant to Colin Mercer in about April 2023.[23]
[22] Nelson Affidavit at EFN-31.
[23] Nelson Affidavit at 157, EFN-34.
In the December 2022 report it is recorded that:[24]
During his initial police interview for the offences, [the applicant] denied all knowledge of the firearms. He denied owning the property and stated that he sold it several months prior. [the applicant] further denied being in control of the property, claiming it was being controlled by the Commonwealth Justice Assembly and that he only stayed there part time.
[24] Nelson Affidavit at 150, EFN-31.
Putting to one side the hearsay nature of the evidence, the furthest it takes the matter is that in December 2022 the applicant believed that the Commonwealth Justice Assembly were in control of the property. Not only had nearly a year passed since that time, but on the applicant’s account the group had disbanded whilst he was in custody. Of more significance however, this statement says nothing about whether or not JM was a member of the Commonwealth Justice Assembly in 2023.
The relevant statement made to Mr Mercer occurred in the context of the applicant discussing his personal circumstances, as at April 2023. Mr Mercer noted:[25]
[The applicant] commenced Parole on 21 December 2022 after being released to …, Huntfield Heights. Throughout supervision, [the Applicant] has not reported any issues. Currently, [the Applicant] is working on evicting [JM] from his Lonsdale property so he can relocate back to his Lonsdale address. [The applicant] claims he cannot move home as Police state [JM] is a member of the Commonwealth Justice Assembly.
(Emphasis added)
[25] Nelson Affidavit at 157, EFN-34.
The difficulty with the respondent relying on this statement, as establishing that JM is a member of the Commonwealth Justice Assembly, or even that the applicant believes he is, is that the applicant appears to have been merely reciting what he understood the police suspicion to be. This is also at odds with the applicant’s written submission to the Parole Board that:[26]
[JM] is not a registered member of the Commonwealth Justice Assembly that has been closed down since about 03/10/2021.
[26] Nelson Affidavit at 251, EFN-40.
It appears to me that there was no evidentiary basis upon which the Parole Board could conclude that JM was a member of the Commonwealth Justice Assembly. As a consequence, the determination that the applicant had breached condition 20 of his parole conditions was unreasonable, not open to the Parole Board and amounts to a jurisdictional error.
Procedural unfairness and perceived bias

In circumstances in which I have found it was a jurisdictional error to determine that the applicant breached two of his parole conditions, it is unnecessary for me to determine the questions of whether there was procedural unfairness or a perception of bias.
Conclusion
I find that the decision of the Parole Board that the applicant breached conditions 14 and 20 of his parole were jurisdictional errors.
Relief sought
It was the applicant’s submission that given the various permutations in the potential findings open to the Court, the parties should be given the opportunity to address the appropriate relief to be granted after judgment on the primary issue was delivered.
The respondent did not oppose that course.
I now propose to give the parties an opportunity to address the Court as to the final orders to be made in light of the reasons for judgment.

[2024] SASC 113

5 September 2024