Rankine v Parole Board of South Australia
[2019] SASC 145
•16 August 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
RANKINE v PAROLE BOARD OF SOUTH AUSTRALIA
[2019] SASC 145
Ruling of The Honourable Justice Kelly
16 August 2019
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
Application for judicial review.
The plaintiff applies for judicial review of the decision of the Parole Board not to release him on parole. The plaintiff asserts that the Parole Board did not afford him procedural fairness, that the Board's decision was beyond power as the Board contravened s 67(4)(c) of the Correctional Services Act 1982 (SA), and that the decision of the Board is unreasonable. The plaintiff seeks orders in the nature of certiorari and mandamus.
The defendant seeks summary judgment against the plaintiff and submits that the plaintiff's summons be dismissed.
Held, granting the defendant's application for summary judgment and dismissing the plaintiff's claim:
1. There is no reasonable basis for the plaintiff's claim against the defendant and as such the defendant is entitled to summary judgment pursuant to rule 232.
Correctional Services Act 1982 (SA) s 67(4)(c); Supreme Court Civil Rules 2006 (SA) rr 193, 232, referred to.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Re State Coroner; Ex Parte Minister for Health (2009) 38 WAR 553, applied.
RANKINE v PAROLE BOARD OF SOUTH AUSTRALIA
[2019] SASC 145Civil: Application for Judicial Review
KELLY J: On 19 March 2019, the Parole Board conducted a hearing of the plaintiff’s application for parole and refused the plaintiff’s application. On 22 March 2019, the Board published reasons for its decision.
The plaintiff now seeks judicial review of the decision not to release him on parole.
The plaintiff filed a number of documents in support of his application. Most of them are handwritten and some of them are somewhat unintelligible. A summary of the documents filed is set out in the schedule attached to these reasons.
As he has represented himself at all times, it has been necessary for the Court to seek clarification of the exact nature and basis for the plaintiff’s claims.
The plaintiff filed a summons for judicial review on 24 May 2019, in which he seeks review of the parole decision not to grant him parole. He filed an interlocutory application on the same date, in which he asserted as the grounds seeking judicial review, the following:
I be supplied with High Risk Extended Supervision Act and the basis for refusal was not discussed with me at the meeting. And other relevant facts were not heard such as evidential objective material such as case notes from Ray Scott violence prevention fascillitator, programs completed at H.D.U. and the transcripts to court case 16-2259 that Parole Board made note of a report of physchatrist I.N. Jenning. No positive case notes discussed only inuendo based vaguely on Mr. I.N. Jennings report.
In response to the plaintiff’s application, the defendant filed an interlocutory application on 1 July 2019 seeking summary judgment against the plaintiff or, in the alternative, that the plaintiff’s summons of 24 May 2019 be dismissed as disclosing no reasonable cause of action pursuant to rule 193 of the Supreme Court Civil Rules 2006 (SA).
On 12 July 2019, both applications came before me for hearing. The plaintiff filed further documentation and made oral submissions.
The plaintiff did not articulate with any precision what relief he is seeking. However, I infer that he is seeking an order in the nature of certiorari quashing the decision of the Parole Board and an order in the nature of mandamus compelling the Parole Board to hear and determine his application for parole according to law.
So far as it is possible to understand the plaintiff’s complaints, they are:
1. That the Parole Board did not afford him procedural fairness;
2. That the Parole Board’s decision was beyond power as the Board unreasonably substituted its own view of the plaintiff’s offending, adopting instead the view of the sentencing Judge, thereby contravening s 67(4)(c) of the Correctional Services Act 1982 (SA);
3. That the decision of the Parole Board lacks any intelligible justification and is therefore unreasonable.
The plaintiff’s principal complaint relates to the proceedings before the Parole Board on 19 March 2019. The plaintiff alleges that there are inaccuracies in the transcript of that Parole Board hearing.
In light of that complaint, the audio record of the proceedings before the Parole Board on 19 March 2019 was played in open court. After hearing the audio recording, which was consistent with the transcript, the plaintiff contended that not everything which was said at the hearing was recorded on the audio record played in open court.
The plaintiff complained that the Parole Board was unreasonable and prejudicial throughout the hearing. He complained that the Deputy Chair, Mr Bourne, cut him off during the hearing and contravened s 67(4)(c) of the Correctional Services Act 1982 (SA) by referring to the District Court Judge’s sentencing remarks about the plaintiff’s offending and by describing the plaintiff’s offending as “shocking”.
He asserted that Mr Bourne repeatedly referenced the “shocking” offending and that some of what Mr Bourne said is not recorded in the transcript nor could it be heard on the audio recording.
The plaintiff alleged that, because of the behaviour of the Deputy Chair, he felt intimidated and was not able to properly present his case.
In particular, the plaintiff alleged that the Deputy Chair did not appear to appreciate that it was his ex‑partner’s behaviour which caused him to assault her. He was not permitted to present photographs of a child which he said proved that the child was actually the child of another man with whom his ex‑partner was having an affair at the relevant time.
The plaintiff contended that his predicament in prison is very precarious and the Deputy Chair consistently treated him unfairly by not taking this into account or letting him produce material in the form of transcript from a previous trial (where the plaintiff was acquitted of the charge against him), which the he says shows that he has very real enemies in prison who are a danger to him.
The plaintiff maintained his claim that he was cut off by the Deputy Chair “a heap of times” during the hearing; however, he conceded that it does not come across on the taped recording of the hearing. He complained that the Deputy Chair’s remark that his offending was “shocking” was made in a degrading and forceful manner, that he was asked leading questions and he was interrupted on numerous occasions.
I shall deal with the complaints made by the plaintiff under the three main headings of procedural unfairness, the alleged contravention of s 67(4)(c) of the Correctional Services Act 1982, and unreasonableness.
Procedural Fairness
The requirement of procedural fairness in administrative decision making is well known. The content of the requirement to accord procedural fairness depends on all of the circumstances. This was articulated in Re State Coroner; Ex parte Minister for Health:[1]
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. The requirements of procedural fairness are flexible. Proceedings where procedural fairness must be accorded may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular parties whose interests may be affected, and the legal representation of parties before the relevant body or tribunal.
[citations omitted]
[1] (2009) 38 WAR 553, 579 [111] (Buss JA).
The plaintiff’s complaint that he was denied procedural fairness is based principally on the conduct of the Deputy Chair during the hearing on 19 March 2019.
Having listened to the audio record of those proceedings together with a copy of the transcript provided, I consider the plaintiff’s continued assertion that both the transcript and the audio recording are not a correct record of the proceedings is without substance.
Contrary to the plaintiff’s assertion that he was constantly interrupted, I consider that any interruptions made by the Deputy Chair were as a consequence of the plaintiff’s tendency to make wide‑ranging submissions not necessarily relevant to the matter at hand.
In this respect, I have had the opportunity to observe the plaintiff in the presentation of his submissions on 12 July 2019. The same difficulties during that hearing emerged. Even taking into account that the plaintiff is an unrepresented litigant and, as such, entitled to some latitude, nevertheless, it was necessary, from time to time, to bring the plaintiff’s attention back to the main point of his submissions.
In my view, the Deputy Chair’s remarks during the interview were measured, certainly not degrading or forceful, and, at least from an objective point of view, neither intimidating nor overbearing.
I note that the usual rules of evidence do not apply at a hearing before the Parole Board. It is not adversarial in the sense that, unlike in a courtroom, leading questions are not prohibited. Any questions asked by the Deputy Chair were clearly directed to ensuring that all submissions put forward were relevant to the decision which the Board needed to make. The plaintiff was given opportunities to respond to matters raised by the Board and was given an open‑ended opportunity to raise any other matters he wished.
The paternity of any children of the plaintiff’s ex‑partner was, as the Board correctly determined, irrelevant to its decision and it was plainly open to the Board to decline to receive the photographs of the children.
Section 67 of the Correctional Services Act 1982
The relevant subsections of s 67 are set out below:
(3a)The paramount consideration of the Board when determining an application under this section for the release of a prisoner on parole must be the safety of the community.
(4)The Board must also take the following matters into consideration when determining an application under this section:
(a) any relevant remarks made by the court in passing sentence; and
…
(c) where the prisoner was imprisoned for an offence or offences involving violence, the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment (but the Board may not substitute its view of these matters for the view expressed by the court in passing sentence); and
…
(f) any reports tendered to the Board—
(i) on the social background, or the medical, psychological or psychiatric condition, of the prisoner;
(ii) from the CE (including recommendations (if any) as to the conditions that should, in the opinion of the CE, be imposed by the Board on the prisoner's release on parole); and
…
(h) any other matters that the Board thinks are relevant.
The Parole Board, in the course of its reasons, referred to the District Court Judge’s sentencing remarks concerning the circumstances of the plaintiff’s offending:
On 15 June 2011, Rankine committed the offence for which he is serving his current sentence of imprisonment. Judge Brebner’s sentencing remarks included the following:-
Your victim was your partner. Your relationship was turbulent. You were violent towards her from time to time because she was violent towards your children.
You had been drinking and taking drugs in the days leading up to your crime. You had become jealous of your victim because you thought that she had been in a sexual relationship with another man while you were in gaol and the night before you committed your crime you became angry with her because she fell asleep when you wanted to have sex with her.
The following day you subjected her to a series of vicious and violent assaults which extended over a period of several hours. You hit her about the face and the head with your fists. You broke a chair, plates and a mirror over her head. You stabbed her to the head with a knife. You kicked her in the head and the ribs. You hit her on the head and the feet with a hammer. You stabbed her to the body with a screwdriver. You eventually tied her up and threatened to kill her.
Your judgement was compromised by alcohol and drugs and your subjective culpability is less than it otherwise might have been, but by your plea you have admitted that you knew what you were doing and that you knew that it was wrong.
I am satisfied that, in all the circumstances, you are a person from the community is, in a very real sense, in need of protection and that your history of offending warrants a particularly severe sentence in order to provide the community with the necessary protection and that there is no other alternative available which will provide the appropriate degree of protection.
You will be declared a serious repeat offender.
The plaintiff contends that the Deputy Chair’s description of the offence as “so shocking” during the hearing on 19 March 2019, together with the Board’s later reference in its reasons to the District Court Judge’s sentencing remarks set out above, is a clear indication that the Board has contravened s 67(4)(c) by substituting its own view of the offending for the view expressed by the Court in passing sentence.
When determining whether or not to grant parole, one of the considerations which the Parole Board is required to take into account is the circumstances and gravity of the offending. The provision in s 67(4)(c) requires that the Board undertake its own independent assessment and not just simply follow the sentencing Court’s assessment.
In passing sentence, the sentencing Judge declared the plaintiff to be a serious repeat offender pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (SA). That declaration is made only in serious cases and permits the Court to depart from imposing a sentence which is proportionate where there is a clear need to protect the community.
Given the description of the plaintiff’s offending and the requirements upon the Board in assessing the circumstances and gravity of the offence, I do not consider that it is reasonably arguable that the Deputy Chair’s reference to the offence as shocking during the interview involves any impermissible substitution of the sentencing Court’s view for that of the Board. It merely indicates that the Parole Board, like the sentencing Court, took a very serious view of what, in fact, was very serious offending.
Unreasonableness
In Minister for Immigration and Citizenship v Li,[2] the High Court (per Hayne, Kiefel and Bell JJ) stated that an administrative decision may be unlawful, by reason of being unreasonable, if it ‘lacks an evident and intelligible justification’. A court may conclude that the impugned decision is, on the facts, unreasonable or plainly unjust or, even where reasons have been provided, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.
[2] (2013) 249 CLR 332, 367 [76].
The first observation which I make is that the plaintiff, notwithstanding extensive written and oral submissions, has provided very little by way of detail to support this ground of unreasonableness.
The Board was required to provide, and did provide, written reasons for its decision. That decision was published on 22 March 2019. It is plain that the primary basis upon which the Board refused to grant parole was the Board’s view that the plaintiff continues to be at high risk of violent re‑offending and that risk remains unaddressed and requires further intervention.
That in itself, in my view, discloses a proper and intelligible basis for the decision which the Board reached.
Conclusion
Taking into account all of the material before me, I consider that the material filed by the plaintiff and the submissions raised by him during numerous oral hearings before Hinton J and before me do not disclose any reasonable basis to support any of the proposed grounds for judicial review.
My mind has wavered as to the appropriateness of exercising the powers under either rule 193 or rule 232 of the Supreme Court Civil Rules 2006 (SA). Rule 193 relevantly provides that the Court may dismiss proceedings if the pleadings disclose no reasonable cause of action, or the proceedings are frivolous, vexatious or and abuse of the process of the Court. Rule 232 provides that the Court may give summary judgment for the defendant if the Court is satisfied that there is no reasonable basis for the claim against the defendant.
In the end, out of an abundance of caution, I have assessed the plaintiff’s application on the basis that, at its highest, the three articulated grounds for judicial review might raise grounds of unreasonableness, a contravention of the Correctional Services Act 1982, and failure to afford procedural fairness.
Accordingly, I have proceeded to analyse all of the material referred to in the attached schedule to ascertain if there is any reasonable basis for the plaintiff’s claims in accordance with rule 232. After a close analysis of all the material on which the plaintiff relies and after hearing the parties, I am satisfied that there is no reasonable basis for any of the plaintiff’s claims against the defendant.
During the course of the multiple preliminary hearings of this matter, the plaintiff was given the opportunity to file further material and to attempt to file material in a more comprehensible and intelligible form. The chamber Judge provided some assistance to the plaintiff by way of provision of certain materials and the defendant has provided informal disclosure of the transcript, the reasons for decision and the audio record of the proceedings before the Parole Board.
Much of the material filed by the plaintiff is replete with misconceived and unintelligible allegations. As there is no reasonable basis for the plaintiff’s claim against the defendant, I consider that the defendant is entitled to summary judgment pursuant to rule 232. Accordingly, the plaintiff’s claim is dismissed.
Schedule of documents filed/produced by the plaintiff, Sidney Rankine
Identifying Number Description Date FDN 1 Summons – Judicial Review Filed 24 May 2019 FDN 2 Interlocutory Application Filed 24 May 2019 Bundle of documents - ‘A1’ and ‘A2’ Affidavit A1 and A2 and Exhibit front sheet A1 and A2 with handwritten notations exhibiting documents entitled ‘Exhibit B1’, ‘Exhibit B2’, ‘Exhibit B3’ Handed up 14 June 2019 ‘A2’ Amendment to Statement of Claim dated 13 June 2019 Filed 1 July 2019 ‘4.B’ Application for Remission or Reduction of Court Fees Application Form together with handwritten attachment Filed 1 July 2019 FDN 6 – unlabelled Letter dated 1 July 2019 from Crown Solicitor to Mr Rankine with notations in green, black, blue and red pen Filed 17 July 2019 FDN 6 – unlabelled A4 white envelope with notations Filed 17 July 2019 FDN 6 – ‘H2’ Transcript of Chamber List hearing of 31 May 2019 with notations on front page, and throughout 21-page double-sided document Filed 17 July 2019 FDN 6 – ‘E.1’ Parole Board of South Australia, Reasons for Refusal to Release dated 22 March 2019 Filed 17 July 2019 FDN 6 – ‘AH4’ A further unmarked copy of the Parole Board of South Australia, Reasons for Refusal to Release dated 22 March 2019, exhibited to the affidavit of Anthony Lawrence Hoban Filed 17 July 2019 FDN 6 – ‘SCCIV-19-639 Exhibit A’ 5 pages of transcript of XXN of witness Dylan Andrew Duthie with notations on all pages Filed 17 July 2019 FDN 6 – unlabelled Two-page handwritten police notes relating to a stabbing incident at Port Augusta Prison Filed 17 July 2019 FDN 6 – ‘D.2.0 – D.2.13’ Fourteen pages of transcript of XXN of witness D.A. Duthie Filed 17 July 2019 FDN 6 – ‘D.3.1 – D.3.3’ Three pages of transcript of XXN of witness D.A. Fox Filed 17 July 2019 FDN 6 – ‘D.4.2 – D.4.7’ Six pages of transcript of XXN of witness C.A. Matheson Filed 17 July 2019 FDN 6 – ‘D.6.1 – D.6.5’, ‘D.6.7 – D.6.24’ Twenty-three pages of transcript of XXN of witness R.J. Scott Filed 17 July 2019 FDN 6 – ‘D.7.1’ One page of transcript of XXN of witness S.A. Dawe Filed 17 July 2019 FDN 6 – ‘E.2’ Letter from Parole Board of South Australia to Mr Rankine dated 4 March 2019 Filed 17 July 2019 FDN 6 – ‘E.3’ Notice from Parole Board of South Australia – Prisoner Version Only – to Sidney James Rankine, dated 26 April 2019 Filed 17 July 2019 FDN 6 – unlabelled Letter from Crown Solicitor to Mr Rankine dated 31 May 2019 Filed 17 July 2019 FDN 6 – unlabelled Notice of Acting and Address for Service filed on behalf of Parole Board of South Australia dated 30 May 2019 Filed 17 July 2019 FDN 6 – ‘F’ Letter from the Department of Human Services to Sidney Rankine dated 13 August 2018 Filed 17 July 2019 FDN 6 – ‘G.1’ Port Augusta Prison schedule of telephone call details Filed 17 July 2019 FDN 6 – ‘G.2’ Department for Correctional Services – Offender Case Note(s) dated 7 December 17, commencing 6 March 2016 – marked Filed 17 July 2019 FDN 6 – ‘G.3’ Department for Correctional Services – Offender Case Note(s) dated 7 December 17, commencing 27 February 2016 – marked Filed 17 July 2019 FDN 6 – ‘G.4’ Department for Correctional Services – Offender Case Note(s) dated 7 December 17, commencing 22 January 2016 – marked Filed 17 July 2019 FDN 6 – ‘G.5’ Department for Correctional Services – Offender Case Note(s) dated 7 December 17, commencing 9 January 2016 Filed 17 July 2019 FDN 6 – ‘G.6’ Department for Correctional Services – Offender Case Note(s) dated 7 December 17, commencing 13 December 2015 Filed 17 July 2019 FDN 6 – ‘H.1’ – ‘H.5’ Five-page letter from Dr Ian Jennings to his Honour Judge W Chivell dated 25 May 2018 – marked Filed 17 July 2019 FDN 6 – ‘M.1’ Certificate from Centacare: ‘Building Better Skills in Relationships – Between 01.02.18 and 19.04.18’ Filed 17 July 2019 FDN 6 – ‘M2’ Document entitled “The Present – questions to consider” - marked Filed 17 July 2019 FDN 6 – ‘M3’ Handwritten document entitled “What shaped our life” Filed 17 July 2019 FDN 6 – ‘M4’ Document entitled “What do I want my life to be about?” - marked Filed 17 July 2019 FDN 6 – ‘M5’ Document entitled “The Future – questions to consider” - marked Filed 17 July 2019 FDN 6 – ‘M6’ Document entitled “New Beginnings – questions to consider” Filed 17 July 2019 FDN 6 – ‘M7’ Document entitled “The Past – questions to consider” - marked Filed 17 July 2019 FDN 6 – ‘M8’ Handwritten document entitled “2” Filed 17 July 2019 FDN 6 – ‘M9’ Handwritten document entitled “3” Filed 17 July 2019 FDN 6 – ‘M10’ Handwritten document entitled “4” Filed 17 July 2019 FDN 6 – ‘M11’ Handwritten document entitled “Problem solving about a borrowed lawnmower” Filed 17 July 2019 FDN 6 - unlabelled Pay Allowance Advice dated 4 August 2017 Filed 17 July 2019 FDN 6 – ‘M12’ Document entitled “Problem Solving” Filed 17 July 2019 FDN 6 – ‘M13’ Document entitled “Mindfulness Handout 1” Filed 17 July 2019 FDN 6 – ‘M14’ Document entitled “CBT Model” Filed 17 July 2019 FDN 6 – ‘M15’ Document entitled “Present Moment or Mindfulness” Filed 17 July 2019 FDN 6 – ‘M16’ Document entitled “What do I value in others?” - marked Filed 17 July 2019 FDN 6 – ‘M17’ Document entitled “What? Me Worry!?! – Problem-Solving” - marked Filed 17 July 2019 FDN 6 – ‘M18’ Document entitled “Improving the Moment” - marked Filed 17 July 2019 FDN 6 – ‘M19’ Handwritten notes on images Filed 17 July 2019 FDN 6 – ‘M20’ Handwritten notes Filed 17 July 2019 FDN 6 – ‘M21’ Document entitled “Obstacles to identifying my values” Filed 17 July 2019
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