Samandi v State Parole Authority

[2021] NSWSC 1037

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Samandi v State Parole Authority [2021] NSWSC 1037

Hearing dates:

17 August 2021

Date of orders:

20 August 2021

Decision date:

20 August 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Dismiss the proceedings.

2. The plaintiff is to pay the defendant’s costs.

Catchwords:

ADMINISTRATIVE LAW – grounds for review – irrelevant and relevant considerations – inadequacy of reasons - procedural fairness – where State Parole Authority revoked parole order prior to release of plaintiff and subsequently refused to rescind revocation order - where SPA declined to rescind revocation of parole order based on information including material withheld pursuant to s 194 Crimes (Administration of Sentences) Act 1999 (NSW - whether there was failure by SPA to provide proper reasons - whether relevant and irrelevant considerations taken into account - where SPA not bound to take into account any particular consideration – whether SPA asked the wrong question – whether withholding s 194 material amounted to procedural unfairness

CIVIL PROCEDURE - suppression and non-publication - application made by defendant for suppression orders in relation to information withheld by judicial member of SPA pursuant to s 194 - application for order in reliance on s 23 of Supreme Court Act that withheld information not be disclosed to plaintiff - receipt of closed evidence - whether ordinary requirement of procedural fairness can be modified where present hearing is judicial review of decision and decision maker entitled not to accord procedural fairness - where order should be made that evidence be received as closed

CRIME – parole – refusal of SPA to rescind parole revocation order – whether decision made on the basis of false, misleading or irrelevant information

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8

Crimes (Administration of Sentences) Act 1999 (NSW) ss 130, 155, 173, 174, 175, 176, 193C, 194, Sched 1 cl 11

Crimes (Sentencing Procedure) Act 1999 (NSW) s 23

Criminal Procedure Act 1986 (NSW) s 166

Supreme Court Act 1970 (NSW) ss 23, 69A

Foreign Evidence Act 1994 (Cth) s 3

Uniform Civil Procedure Rules 2005 (NSW) Pt 59

Cases Cited:

AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72

Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7

Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865

Attorney General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223

Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700

Dib v Parole Authority of NSW [2009] NSWSC 575

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4

HT v The Queen [2019] HCA 40; (2019) 93 ALJR 1307

Harrison v NSW State Parole Authority [2019] NSWSC 1783

Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21

Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39

Mawas v State Parole Authority [2021] NSWSC 652

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Ngati v NSW Parole Authority [2007] NSWSC 963

R (on the application of Haralambous) v Crown Court at St Albans [2018] AC 236

Renshaw v New South Wales Lotteries [2020] NSWSC 360

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Rozynski v Parole Board of NSW [2003] NSWCCA 214

Samandi v R [2020] NSWCCA 217

State of New South Wales v Russell (Final) [2020] NSWSC 396

United States v Fisher (1805) 6 US 358

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Ali Samandi (Plaintiff)
State Parole Authority (First Defendant)
Attorney-General for New South Wales (Second Defendant)
Commissioner of Corrective Services (Third Defendant)

Representation:

Counsel:
In person (Plaintiff)
Submitting appearance (First Defendant)
J Davidson (Second & Third Defendants)

Solicitors:
Self-represented (Plaintiff)
Crown Solicitors Office (Defendants)

File Number(s):

2021/115716

Publication restriction:

The Court orders that:

1. Pursuant to s. 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”), upon the grounds set out at s 8(1)(a), (c) and (e) of the Act, the following information contained in Annexure A to the affidavit of Amy Jessica Manuell affirmed on 13 August 2021 (“the confidential evidence”) be suppressed:

a. On third of the five pages forming Annexure A (page 6 of the affidavit), all of the words contained in the alphabetised dot points A - F;
b. On the fourth of the five pages forming of Annexure A (page 7 of the affidavit):

i. all of the words in the second paragraph;
ii. all of the words in the first sentence of the third paragraph;
iii. all of the words in the third sentence of the third paragraph;
iv. all of the words in the third last paragraph;

c. On the final page of Annexure A (page 8 of the affidavit), all of the words in the second paragraph.

2. Pursuant to s. 23 of the Supreme Court Act 1970 (NSW), the confidential evidence not be disclosed to the Plaintiff.

3. Order 1 is to apply throughout the Commonwealth pursuant to s. 11 of the Act.

4. Order 1 is to apply for a period of two years or until further order of the Court, whichever is sooner.

5. An order restricting access to the Court’s file in this proceeding such that access would be permitted to a non-party only with the leave of a judge of the Court, and with prior notice to the Second Defendant so as to allow the Second Defendant an opportunity to be heard in respect of the application for access.

Judgment

1. On 13 December 2018 the plaintiff was sentenced by Judge Norrish QC for six counts of assault occasioning actual bodily harm, three counts of assault, one count of intentionally damaging property, and one count of making a false accusation knowing that persons were innocent of the alleged offence. The plaintiff had pleaded guilty to these offences. He was sentenced to an aggregate sentence of imprisonment of six years commencing 23 February 2017 and expiring 22 February 2023, with a non-parole period of three years and nine months expiring 22 November 2020.

2. There was contained on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) an offence of knowingly contravening a prohibition or restriction in an Apprehended Domestic Violence Order (“ADVO”). For that offence the plaintiff was sentenced to a term of imprisonment of five months, but the term of that sentence was made wholly concurrent with the aggregate sentence imposed.

3. He sought leave to appeal to the Court of Criminal Appeal. Whilst that appeal was pending he was granted bail on 9 June 2020.

4. On 27 August 2020 the Court of Criminal Appeal dismissed his appeal: Samandi v R [2020] NSWCCA 217. His sentence was adjusted to take account of the time he had spent on bail. With a correction subsequently made, his sentence was adjusted so that the overall sentence expired 10 May 2023 and the non-parole period expired on 7 February 2021.

5. The complainant in all the offences was a woman the plaintiff had met in Iran. They began a relationship, and the complainant arrived in Australia on 16 December 2015. They lived together and appear to have entered into some form of religious marriage, although it is not clear if they were in a legally recognised marriage.

6. On 4 December 2020 the State Parole Authority (“SPA”) considered the plaintiff's application for parole in advance of his earliest possible release date. The SPA had before it a pre-prelease report prepared by Community Corrections, and a psychological report Ann Marie De Santa Brigida dated 5 December 2018. That report appears also to have been used at the sentence proceedings.

7. At the meeting on 4 December 2020 the SPA determined to grant parole to the plaintiff, and made a parole order noting the plaintiff's release date as 7 February 2021.

8. The plaintiff was notified of that determination on the same date.

9. On 4 February 2021 the SPA decided to revoke the parole order prior to release of the plaintiff. The SPA issued an order to that effect and gave as the reason for doing so:

The offender poses a serious identifiable risk to the safety of the community.

10. In determining that the parole order should be revoked, the SPA had before it a further document which the judicial member of the SPA certified on 3 February 2021, pursuant to s 194(1) and (1A) of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”). That document is hereinafter referred to as “the s 194 Material”.

11. On 8 February 2021 the SPA caused a letter to be sent to the plaintiff notifying him that the SPA would reconvene on 12 March 2021 to reconsider the revocation order at a review hearing. Enclosed with the letter were the documents relied upon by the SPA, with the exception of the s 194 Material.

12. On 9 February 2021 the plaintiff indicated that he intended to appear at the review hearing, and that he would be legally represented by the Prisoners Legal Service.

13. The plaintiff was represented at the hearing by a solicitor, Mr Angelovski. It is apparent from the transcript of the review hearing that Mr Angelovski at least became aware that the SPA had material that was not disclosed to him or the plaintiff. At the conclusion of the hearing the SPA issued a Notification of Determination by the State Parole Authority in Respect of Review of Revocation Order. The determination was that the SPA declined to rescind the revocation of the parole order. The reason given was:

The offender poses a serious identifiable risk to the safety of the community.

14. The SPA also said that the plaintiff would be reconsidered for possible release on the parole eligibility date of 7 February 2022, with a meeting to take place on 10 December 2021.

15. On 8 April 2021 the ADVO protecting the complainant in the offences for which the plaintiff was sentenced, was extended to 7 April 2023. Although the extension appears to have been by consent, it was based on information that had come to the attention of the police since the ADVO had been put in place, and since the plaintiff had been sentenced by Judge Norrish.

16. On 26 April 2021 the plaintiff filed in this Court a document entitled "Application for of Prerogative Relief" [sic]. It described the plaintiff as the applicant and the State Parole Authority as the respondent. The SPA filed a submitting appearance.

17. Subsequently, the Attorney-General for New South Wales was added as a second defendant, as a contradictor to the proceedings. The Commissioner of Corrective Services was added as a third defendant, by reason of an interlocutory application made by the plaintiff, which was dismissed by Lonergan J on 22 July 2021. The Commissioner was not an active party at the hearing before me. I shall refer to the Attorney-General as the defendant.

18. The defendant has been prepared to accept that the application filed on 26 April 2021 should be regarded as a summons under Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW), since what is sought are “writs of certiorari, mandamus and prohibition”. The application also appears to be made under s 155 (or s 176) of the CAS Act.

19. The plaintiff challenges the decision of the SPA not to rescind the revocation order on 12 March 2021. The application alleges that the decision was made on the basis of false, misleading or irrelevant information, that the SPA had asked itself the wrong question or identified a wrong issue that went to a fundamental precondition on the exercise of its jurisdiction, and that its action was unconstitutional because it misinterpreted s 194 of the CAS Act and violated the plaintiff’s right to procedural fairness.

20. The s 194 Material consists of an intelligence report prepared by Detective Sergeant Cameron Mitchell. Three days before the date this matter was heard, the Crown Solicitor provided the plaintiff with a redacted form of the s 194 Material (“the redacted Material”). The redacted Material relevantly reads as follows:

Whilst out on bail the inmate paid for and arranged for associates of his based in Iran to attend the victim’s parents’ residence who also reside in Iran. On the 5^th July 2020, one of the associates and his wife attended the victim’s parents’ residence. During this time the associate of the inmate threw acid onto the victim’s father causing burns to his arms and chest.

On the 10^th August 2020, a further associate attended the victim’s parents’ residence and placed a home-made explosive device at their front door. This was then detonated, and damage was sustained to the door, door frame and floor.

NSW Police believe that there is a clear nexus between the offence taking place in Iran and the inmate in NSW.

The offences police alleged were planned and at the direction of the inmate who paid for the services of his two associates.

Police are in possession of court documents from the court of Tehran, Iran detailing the inmate’s and his associate’s involvement in the above offences and the fact that they were paid for their services.

…

The victim in this matter holds grave fears for her safety and well-being. The victim believes that the inmate will actively search for her and cause her harm or kill her. The victim believes that the inmate will never take responsibility for his own actions and blames the victim for being sent to gaol.

21. The information which appears to have formed the basis for Sergeant Mitchell’s report was contained in a brief of evidence given to Burwood Local Court as part of the application to extend the ADVO. That material consisted of a letter apparently from a court in Iran written in Farsi, together with a translation of that document by a translator at Multicultural NSW; a statement by Sergeant Mitchell; a statement by the complainant; and email correspondence between Sergeant Mitchell, the Department of Foreign Affairs and Trade and Interpol (together, “the Local Court Brief Material”).

22. The letter in Farsi is said to be from the Criminal Court of the Two Ghods Judicial Complexes in Tehran. Part of the translation document reads:

The defendant [Reza Javanmard Nejad] by admitting to his delinquency in pages 53 and 54 indicates that … Ali Sahandi had been on leave from prison and contacted me via Facebook and told me about the problem he had with his wife which caused him to be prisoned for four years in Sydney. He asked me (illegible) the family of his wife in Iran and to give consent (relinquish her claim) so Ali could be freed. I could not get in touch with his wife’s family so he asked me to ask my brother Mehdi. Ali said I should pour some gasoline on the door of their house so that they would be scared and talk to their daughter to give consent. For this job he was supposed to pay 30,000,000 Toomans, 10,000,000 to be paid first and the rest 20,000,000 at the end. Ali just paid 15,000,000, and I paid the balance of 15,000,000 to my brother for the job he did.

23. The plaintiff has had the Local Court Brief Material at least since he filed his submissions in June 2021. It is likely that he had the material prior to 8 April 2021 when the ADVO was extended at Burwood Local Court.

24. The plaintiff has filed multiple documents, all of which apparently contain his written submissions. A great deal of the material is repetitive.

25. In one of the sets of submissions dated 21 June 2021, the plaintiff identifies the following grounds on which he bases his claim for relief:

1. Absence of reasoning;

2. Error of law on the face of the record and/or jurisdictional error in that parole was refused on the basis that there was an ongoing enquiry of a serious nature “endorsed under s 194”;

3. Error of law on the face of the record and/or jurisdictional error because the defendant failed to have regard to relevant considerations;

4. Error of law on the face of the record and/or jurisdictional error as the defendant took into account unlawful and/or irrelevant matters;

5. Error of law on the face of the record and/or jurisdictional error because parole was refused on the basis that denied the plaintiff procedural fairness and the presumption of innocence;

6. The defendant failed to give proper or adequate reasons for its decision;

7. The refusal of parole was based on information that was false and/or misleading and/or irrelevant.

   26. In subsequently filed submissions on 22 July 2021, the plaintiff identified two further grounds as follows:

8. Non-disclosure resulting in a miscarriage of justice;

9. The dissemination of false, misleading and irrelevant information by the Commissioner for Corrective Services occasioned a miscarriage of justice.

Legislation

27. Section 130 of the CAS Act entitles the SPA to revoke a parole order at any time before an offender is released to parole. It relevantly provides:

130 Revocation of parole order before release

(1) The Parole Authority may, by order in writing, revoke a parole order at any time before the offender to whom the order relates is released under the order, if the Parole Authority is satisfied that -

(a) the offender, if released, would pose a serious identifiable risk to the safety of the community and that the risk cannot be sufficiently mitigated by directions from a community corrections officer or by changing the conditions of parole, or

…

28. A revocation notice must be served on an offender (s 173), and the offender is permitted to make submissions to the SPA in relation to a reconsideration of the revocation (s 173(2)(c)). In this case, the plaintiff gave notice that he intended to appear and make submissions. The result is that a meeting of the SPA had to be convened (s 174). A decision whether or not to rescind the revocation parole is a decision made under s 175 of the Act, after the review hearing.

29. Section 194 deals with the security of certain information. It provides:

194 Security of certain information

(1) Nothing in this Act or the regulations requires a person to be provided with a copy of a report or another document (or any part of the report or document) if its provision to the person may, in the opinion of a judicial member -

(a) adversely affect the security, discipline or good order of a correctional centre, or

(b) endanger the person or any other person, or

(c) jeopardise the conduct of any lawful investigation, or

(d) prejudice the public interest, or

(e) adversely affect the supervision of any offender who has been released on parole, or

(f) disclose the contents of any offender’s medical, psychiatric or psychological report.

(1A) Nothing in this Act or the regulations requires a person to be provided with information about the content of a report or other document, a copy of which is not (by operation of subsection (1)) required to be provided to a person, if, in the opinion of a judicial member -

(a) not providing the information to the person is necessary in the public interest, and

(b) that public interest outweighs any right to procedural fairness that may be denied by not providing the information.

(2) …

“Closed evidence” and suppression orders

30. An application was made by the defendant at the outset under the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the CSNPO Act”) for suppression orders to be made in relation to the information that had been certified by the judicial member of the SPA, so that the information would not be provided to the plaintiff nor otherwise published. In conjunction with that, the defendant sought an order under s 23 of the Supreme Court Act 1970 (NSW) that the confidential evidence not be disclosed to the plaintiff.

31. The defendant read an affidavit of Amy Manuell of 13 August 2021. The affidavit was neither filed nor served on the plaintiff. Ms Manuell is the Director and Secretary of the SPA.

30. Ms Manuell said that at the time of considering the revocation of the plaintiff’s parole order, the SPA had before it documents which included the s 194 Material received by the SPA on 3 February 2021. Ms Manuell annexed an unredacted copy of the s 194 Material to her affidavit.

31. I marked the affidavit as exhibit 1 on the application by the defendant for suppression and associated orders. I directed that, pending my decision on the suppression issue, a copy of the affidavit was not to be provided to the plaintiff.

32. The defendant sought suppression orders over portions of the s 194 Material. The orders were sought on the grounds in s 8(1)(a), (c) and (e) of the Act, with particular portions of the document each being related to the grounds in those paragraphs, to comply with what was said by the Court of Appeal in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [42].

33. It became apparent during submissions, that the defendant’s principal application was for an order in reliance on s 23 of the Supreme Court Act that the evidence be treated as “closed evidence”, and that the orders sought under the CSNPO Act were ancillary, for the purpose of avoiding the possibility that a third party might inspect the file and transmit the information in the s 194 Material to the plaintiff.

34. At the conclusion of argument on this application by the defendant, I made orders, generally in the terms sought by the defendant. I said that I would provide my reasons in the judgment on the substantive application by the plaintiff. These are my reasons.

35. The principal issue to be decided on this application by the defendant is whether the ordinary requirement of procedural fairness can be modified in the present circumstances, where the present hearing is judicial review of a decision, and where the decision maker is entitled not to accord procedural fairness by virtue of the provisions of s 194 of the CAS Act.

36. In HT v The Queen [2019] HCA 40; (2019) 93 ALJR 1307, the High Court was concerned with the position where evidence concerning assistance given by an offender under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was sought to be kept from the offender and even his lawyers.

37. Having considered that the doctrine of public interest immunity, and the power given under ss 7 and 8 of the CSNPO Act, were not relevant to the situation, the High Court turned to consider the inherent powers of a superior court such as the Court of Criminal Appeal. The joint judgment of Kiefel CJ, Bell and Keane JJ said at [42]:

...It may be accepted that a superior court may vary its procedures to meet the exigencies of a particular case and on occasions have done so even with respect to matters such as open justice and procedural fairness.

40. The judgment then went on to say:

[44]   It is well known that the courts have modified and adapted the content of the general rules of open justice and procedural fairness in particular kinds of cases. Orders for non-publication are an example of the former. The non-disclosure of evidence in wardship cases is an example of the latter. More relevant for present purposes is litigation concerning trade secrets where disclosure is sometimes limited, for example with "confidentiality rings" being placed around disclosure and the persons who are permitted to see the confidential material. In Roussel Uclaf v Imperial Chemical Industries Plc [[1990] FSR 25 at 29-30], Aldous J observed that each case has to be decided on its own facts and on the broad principle that the court has the task of deciding how justice can be achieved taking into account the rights and needs of the parties. The relevant party should have as full a depth of disclosure as would be consistent with the adequate protection of the secret.

[45]   In such cases, arrangements are often made to allow access to a person who represents the party from whom it is necessary to maintain confidentiality. And as Brereton J observed in Portal Software v Bodsworth, protective limitations may be introduced at the time of production or inspection. Orders can be made for inspection by an independent solicitor reporting directly to the court. This is similar to the position of an amicus curiae, which was referred to in the course of argument on the appeal. Orders for inspection might be limited to the party's lawyers or experts and not extended to the party itself. In such a circumstance the order has permitted to be conveyed to the party in some way such information as is necessary for the purpose of giving instructions. In cases such as the present it is difficult to accept that orders could not have been tailored to meet the concerns of the Commissioner, for example by providing the appellant's counsel with access to Exhibit C on terms which would have enabled him meaningfully to take instructions and make submissions.

[46]   True it is that orders of the kind referred to, excepting disclosure from the general rule of the common law, are made for identifiable purposes: in the case of wards because the object of the proceedings is to protect and promote the best interests of the child; in the case of trade secrets because the very subject of the litigation may be destroyed. Clearly a case such as the present does not fall into either of those categories. But once it is accepted that there are certain classes of cases where a departure from the general rule may be justified for good reason, it makes it difficult to suggest that the court lacks jurisdiction to vary the basic principles of open and natural justice or to say that the proper administration of justice may not require it. The trade secrets cases in particular show that the general rule is not absolute. Consistently with the general rule of the common law regarding fairness in the conduct of proceedings, the concern of the courts is to avoid practical injustice.

41. In Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, the United Kingdom Supreme Court held that the Court had power to consider closed evidence in circumstances where the use of closed evidence by the courts below had been authorised by statute, but no authorisation existed for appeals to the Supreme Court. The same principle was subsequently said to operate where the higher court was conducting a judicial review: R (on the application of Haralambous) v Crown Court at St Albans [2018] AC 236 at [57]-[59].

42. Ms Davidson of counsel for the second defendant quite properly took me to two decisions of single judges of this Court, where the view was taken that it would be inappropriate to receive evidence on a closed evidence basis so that the other party did not have access to it. Those decisions were Renshaw v New South Wales Lotteries [2020] NSWSC 360 and State of New South Wales v Russell (Final) [2020] NSWSC 396. The procedural fairness situations in those cases were far removed from the present. Principally, neither was an appeal nor a review where the primary decision maker acted in accordance with a privative provision preventing disclosure.

43. In my opinion, the position I am faced with in this case is what was discussed by the decisions in the United Kingdom Supreme Court.

44. In Bank Mellat, Lord Neuberger said at [38] to [42], that if the closed evidence procedure could not be followed in an appeal, there were five possible consequences. First, the appeal could not be entertained; secondly, the whole of the evidence, including the closed evidence, would be considered in open court; thirdly, the appeal court would conduct the appeal but not see the closed evidence; fourthly, the appeal court was bound to allow the appeal; fifthly, the appeal court was bound to dismiss the appeal. His Lordship found that none of these consequences could be entertained, because they would either produce injustice one way or the other, with the result that the appeal court could conduct the appeal on the basis of viewing the closed evidence without its being disclosed contrary to the statutory prohibition applicable at first instance.

45. That approach appears to me to be consistent with what the High Court said in HT at [42] and [46]. In an ideal case, orders could be tailored to deal with the problem, perhaps by the party’s legal advisors being given access (see at [45]), but that is not possible here where the plaintiff is not legally represented. The position is somewhat analogous to the situation where a court can view evidence without the parties seeing it, to determine a claim for public interest immunity. However, the analogy is imperfect because, in the present case, if the evidence is admitted, one party may, but the other may not, see the evidence.

46. It may be acknowledged that the position is not fair (in a general sense) to the plaintiff, but that position arises by reason of s 194 of the CAS Act. I am satisfied, in the circumstances, that an order should be made that the evidence be received as closed evidence. I am also satisfied that ancillary orders are needed under the CSNPO Act to obviate the risk of a third party accessing the information and transmitting it either to the plaintiff or more widely.

47. In relation to the tests to be applied under the CSNPO Act, I have had regard to what was said by the High Court in Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [31]; the Court of Appeal in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27], and the decisions of the Court of Criminal Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8] and AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [56]-[58]. I am satisfied that the orders are necessary, as that term has been explained in those cases.

48. The defendant had sought that the orders be in place for a period of five years. I consider that a period of two years is sufficient, partly because the ADVO was extended for a period of two years, in reliance on much the same information as the SPA had, and partly because the balance of the plaintiff’s sentence will have expired by May 2023. Noting that the redacted Material says that NSW Police are still collecting further evidence, I would also expect that any decisions to be made by the Police arising out of the material ought to be made within a two year period.

Application for issue of subpoenas

49. On the morning of the hearing, the plaintiff forwarded to the defendant, and to my associate, a large bundle of material in support of an application for leave to issues subpoenas to give evidence and produce documents at the hearing. One subpoena was directed to Sergeant Mitchell to give evidence, and one subpoena was directed to the Commissioner of Corrective Services, apparently to give evidence, but chiefly to produce all material given by the Commissioner to the SPA between 10 December 2020 and 4 February 2021.

50. I refused leave for the issue of the subpoenas. I explained to the plaintiff that applications for judicial review of decisions involved questions of law, and that it was not appropriate to obtain factual evidence and conduct cross-examination. In fact, the plaintiff knew that this was so, because in his written submissions of 21 June 2021 he said this:

The function of the Court in considering an application for prerogative relief is limited. Prerogative relief is only available if an error of law is established.

He then set out an extract from the decision of McClellan CJ at CL in Attorney-General for New South Wales v New South Wales State Parole Authority and Anor [2006] NSWSC 865, where his Honour said that “it is not for this Court to review the merits of the Authority’s decision”.

51. There were the further problems that leave was being sought on the day fixed for the hearing, and that ordinarily a party does not, or should not, subpoena a witness to conduct a cross-examination of that witness.

Plaintiff’s grounds for review

Grounds 1 and 6:   Failure to provide proper reasons

52. Section 193C of the CAS Act relevantly provides:

193C Parole Authority decisions

(1) The Parole Authority must cause a record of its reasons for the following decisions under Parts 6 and 7 to be kept in the minutes of its meetings -

(a) all decisions that result in the granting or refusing of a re-integration home detention order or parole,

(b) all decisions that result in the revocation of an intensive correction order, re-integration home detention order or parole order,

…

53. A decision not to rescind the revocation of a parole order is a decision pursuant to Div 4 of Pt 7 of the Act. It is a decision that results in the refusing of parole. Accordingly, the SPA must cause a record of its reasons to be kept in the minutes of its meetings. The minutes were here said to consist of the transcript of the review hearing, because there had been a public hearing.

54. Mr Angelovski made submissions including in relation to what was said in the pre-release report. The transcript then reads:

HIS HONOUR: I appreciate you're in a disadvantageous position, but when one looks at the index offences, there was a very, very disturbing course of conduct and one would wonder how one human being could treat another human being that way. I know he's been sentenced for that, that's true, but you don't have the material, we have the material. The inquiries re that material have not been exhausted, they're ongoing. All I can say about them is that they're of a serious nature, and that's all I can say. I appreciate that's not a good position for you to be in because obviously there are considerations for procedural fairness, but there's also the consideration of the Act, there's consideration of public safety, endangerment to persons. That's the difficulty. I understand the difficulty. It's a question of what realistically we can do at this point. Realistically at this point, we don't have any choice other than to confirm the revocation. Things may change. I know that's not very satisfactory for you; I understand that completely. Continue; I don't mean to cut you off.

MR ANGELOVSKI:   That was in summary in respect of my submission currently, noting what the difficulties are. It is a difficult position. All we can offer is quite certainly the strict supervision and the fact that he understands that he will abide by the supervision, otherwise, he's going to end up in custody where he is at the moment.

HIS HONOUR Yes, I understand the submission and I understand why you put it, but in all the circumstances, with the information which we have which you do not have, unfortunately for you, we decline to rescind the revocation order of 04/02/21. It will stand for the reasons stated.

55. In Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865, McClellan CJ at CL said at [49]:

It is important when considering the “reasons” of a body such as the Parole Authority that the court not adopt a “fine tooth comb” approach to its published reasons: see Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. This principle is obviously appropriate to the reasons of the Authority.

56. In Attorney General of New South Wales v Chiew Seng Liew [2012] NSWSC 1223 Beech-Jones J made clear that the SPA’s function under the CAS Act is different from the function of a tribunal, for example, where the tribunal is determining a case, cause or complaint between competing parties. His Honour said at [97]:

In the end result the sole question is whether the Authority has complied with its statutory obligation in 193C.

57. His Honour also said at [103]:

I can find little support in the Administration Act for the contention that the power of the Authority to make a valid parole decision is dependent on it subsequently causing a record of its decision to be placed in its own minutes in conformity with s 193C.

58. Although the reasons provided by the Chairman at the hearing were brief, I am satisfied that they are a sufficient compliance with s 193C. The reasons point to the very disturbing course of conduct involved in the index offences, and to the s 194 Material, both of which gave rise to considerations of public safety and endangerment to persons.

59. That was confirmed by the document entitled “Determination by the State Parole Authority in Respect of Review of Revocation Order”, where the reason for the revocation order to stand was that “The offender poses a serious identifiable risk to the safety of the community.”

60. Bearing in mind that, at the time the determination was made on 12 March 2021 the entirety of the s 194 Material had been certified by the judicial member pursuant to that section, I am satisfied that the reasons given by the SPA were a sufficient compliance with s 193C of the CAS Act.

Ground 2:   Error of law on the basis of ongoing enquiry

61. This ground was not addressed by the plaintiff. It seems to be related to the statement by the Chairman of the SPA in the transcript where he said:

The inquiries re that material have not been exhausted, they're ongoing.

62. It may be accepted that this was a consideration in not rescinding the revocation order. However, the plaintiff does not show how this amounted to an error of law. It is not apparent that it did amount to an error of law.

63. I would reject this ground.

Grounds 3, 4 and 7:    Relevant and irrelevant considerations, and false and misleading material

64. It is a little difficult to discern from the plaintiff’s application and written submissions what the relevant and irrelevant considerations are said to be. The likelihood is that it relates to the following matters.

65. First, in his application to the Court at paragraph 33, he asserted that the SPA relied on “other materials” provided to it by Corrective Services NSW. There is no evidence that CSNSW sent any material to the SPA apart from an affidavit sworn by the plaintiff on 15 February 2021. The plaintiff does not identify what the “other materials” from the CSNSW were.

66. Secondly, in paragraphs 15-33 of his written submissions of 21 June 2021, and in his oral submissions, the plaintiff identified material supplied by Sergeant Mitchell to the SPA. At the time the plaintiff prepared his written submissions he did not have the advantage of having the redacted s 194 Material. He assumed, therefore, that what had been provided by Sergeant Mitchell was the Local Court Brief Material.

67. It is now clear from the affidavit of Amy Manuell that the document that the SPA had before it was a four page submission from Sergeant Mitchell, being the s 194 Material. A redacted form of that material was made available to the plaintiff and was marked as exhibit 2 at the hearing of the plaintiff’s application. Although, by the time of the hearing of the application, the plaintiff was aware that this was the only document before the SPA, the plaintiff continued to make his submissions on the basis that the Local Court Brief Material was before the SPA.

68. In relation to relevant considerations which the plaintiff claimed the SPA did not take into account, that appears to be a reference to a portion of the remarks on sentence of Judge Norrish QC where his Honour said:

I am prepared to make a finding however of special circumstances. I believe there should be an adjustment of the relationship of the non-parole period to the balance of the sentence. The prisoner needs professional assistance to adjust to community living, this will be longest sentence imposed upon him. In my view the Parole Authority should ensure that he receives professional counselling, particularly in relation to the management of his anger. He may need other psychological counselling and assessment on a more thorough and more reliable analysis of the issues that he has to deal with in his life.

69. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mason J (with whom Gibbs CJ and Dawson J agreed) said (at 39-41) that the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision; that what factors a decision-maker is bound to consider is determined by construction of the statute conferring the discretion; that not every consideration that a decision-maker is bound to take into account but fails to take into account will justify a court setting aside the impugned decision; and that generally, it is for the decision-maker to determine the appropriate weight to be given to matters.

70. The decision impugned by the plaintiff was the decision made on 12 March 2021 refusing to rescind the revocation of parole. The decision was one made under s 175 of the CAS Act. Section 175(2) provides:

In determining a review of the revocation of a parole order, and without limiting subsection (1), the Parole Authority may take into account any behaviour of the offender, including whether the offender is alleged to have committed any offences while released on parole or after the revocation of the parole order.

71. In those circumstances, it may be seen that the SPA was not bound to take into account any particular consideration. At the hearing before the SPA, Mr Angelovski made reference to the fact that the non-parole period set by Judge Norrish QC had by that stage passed. However, as the Chairman of the SPA made clear, the SPA operates under the CAS Act, and with the sentence as long as the sentence that was imposed on the plaintiff, the Court does not specify when somebody is released on parole.

72. What the SPA was doing on 12 March 2021 was not a determination under s 135 of the Act where it would be obliged to have regard to any relevant comments made by the sentencing court. The only particular focus in s 175 is “any behaviour of the offender”, but the SPA is not bound to take that into account. In those circumstances, the plaintiff’s complaint of failure to take into account a relevant matter is not made out.

73. In relation to the SPA taking into account the s 194 Material, it was clearly entitled to do so, because what was contained in that material involved the alleged behaviour of the offender.

74. Clause 11 of Schedule 1 to the CAS Act provides in sub-cl (3) that the SPA is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate. When that is coupled with s 175(2), the SPA is entitled to take into account allegations of wrongdoing by an offender: see also Mawas v State Parole Authority [2021] NSWSC 652 at [7], [71] and [82], whilst accepting that the complaint there concerned the revocation of parole.

75. To the extent that the plaintiff relied on the presumption of innocence, that submission is answered by the terms of s 175(2) and clause 11(3). The words “any behaviour” suggest that the subsection is not confined to offences for which a conviction has been recorded. Whilst it would include convictions, it also extends to the sort of matters that are commonly reported in pre-release reports. It would include information such as was included in the s 194 Material.

76. The plaintiff submitted that the SPA should not have regard to the documents that formed part of the police brief to Burwood Local Court. The document from Iran in Farsi was alleged by the plaintiff to be a fraudulent document or a forgery, and it was alleged by him to have been mistranslated. The plaintiff claimed that the provisions of the Foreign Evidence Act 1994 (Cth) meant that the SPA should not have regard to the material.

77. This submission is misconceived. The Foreign Evidence Act is concerned with the receipt of evidence in criminal and civil proceedings. A criminal proceeding is defined in s 3 of that Act as meaning “a prosecution for an offence and includes a proceeding for the committal of a person for trial or sentence for an offence”. The decision being made by the SPA was neither a civil nor a criminal proceeding. However, there is no evidence that the Local Court Brief materials were before the SPA.

78. The allegations contained in the s 194 Material went to the very matter in respect of which the plaintiff had been convicted and sentenced. The fact that no charges have been laid arising out of that material, and the fact that the plaintiff has not been convicted of an offence arising from that material, does not mean that the material was an irrelevant consideration for the purposes of the SPA’s decision.

79. The plaintiff also submitted that the SPA had asked itself the wrong question. This assertion was included in his Application without identifying what the wrong question was. He did not identify this as a separate ground of review. During oral submissions, in answer to an enquiry of mine, he identified the wrong question as being related to a consideration of what was said in Sergeant Mitchell’s report about his involvement in what happened in Iran.

80. The submission was that under s 69A of the Supreme Court Act, he was not under the supervision of the SPA when he was released to bail in 2020 pending the hearing of his appeal. In that way, he submitted, the SPA could not take into account things that he was alleged to have done during that period, when it considered whether to revoke his bail or make a decision not to rescind the revocation.

81. The plaintiff’s reference to s 69A appears to be to subsection (3) which provides:

The time during which a claimant is at liberty on bail (pending the determination of the proceedings for review) does not count as part of any term of imprisonment under the claimant’s sentence.

82. The plaintiff’s submission is misconceived for a number of reasons. First, s 69A is concerned with a person who is seeking judicial review of a conviction or sentence. The plaintiff was on bail pending the hearing of an appeal under the Criminal Appeal Act 1912 (NSW). Secondly, the SPA was not purporting to claim any right to supervise him during that period. Thirdly, the SPA was not precluded from having regard to the plaintiff’s behaviour during that period on bail. Section 175(2) is not confined to any time when an offender is released on parole. The SPA can have regard to “any behaviour of the offender”.

83. It is not, in any event, clear what the question was that SPA wrongly asked itself, unless it was, “can we take into account behaviour allegedly engaged in by the plaintiff whilst he was on bail pending an appeal?” If that was the question, it was not a wrong one.

84. I would reject these grounds.

Ground 5:   Procedural fairness

85. When dealing with the application for suppression orders, I made reference to what was said by the High Court in HT v The Queen in relation to the rules of procedural fairness. The joint judgment in that case also said at [18] that rules derived from the general principle of procedural fairness do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is essentially practical, and the concern of the law is the avoidance of practical injustice.

86. However, the starting point in the present matter must be the terms of the statute and in particular s 194. Prior to the enactment of sub-s (1A) it had been held in Dib v Parole Authority of NSW [2009] NSWSC 575 that, while a copy of the report or other document the subject of the s 194 certification was not required to be provided to the offender if the judicial member had formed the opinion that one or more of the matters set out in that sub-section applied, the offender was still entitled to natural justice. Justice Patten went on to say at [25]:

…It is difficult to conceive that the public interest required the Authority to say absolutely nothing about the nature or quality of the material it proposed to rely on, but, in any event, the Plaintiff was entitled to some reasons for the approach the Authority took.

87. It was in the circumstances of that decision that sub-s (1A) was enacted to provide that nothing in the Act or Regulations required the person to be provided “with information about the content of a report or other document” if it was one which fell within sub-s (1). In my opinion, the wording of sub-s (1A) is clear, and operates, whether unfairly or not, to deny the offender any information about the content of a document which falls within sub-s (1).

88. In Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Gageler and Keane JJ discussed the principle of construction traced to the statement of Marshall CJ in the Supreme Court of the United States in United States v Fisher (1805) 6 US 358 at 390, where his Honour said:

Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.

89. Justices Gageler and Keane then said at [314]:

The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that "[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve".

90. In Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532: [2008] HCA 4 Crennan J said at [182] that parliament can validly legislate to exclude or modify the rules of procedural fairness provided there is "sufficient indication" that "they are excluded by plain words of necessary intendment". This statement was later approved by the plurality judgment in Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [152].

91. The plaintiff relied on what was said by the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [27]-[29]. That case did not relevantly involve a statutory denial of the rules of procedural fairness, and the submission fails to have regard to the provisions of s 194(1A) and the right of parliament to legislate to take away rights of procedural fairness as referred to in the other cases which I have mentioned.

92. The plaintiff also relied on what was said by Murphy J in Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 at 431:

There is a public interest in certain official information remaining secret; but there is also a public interest in the proper administration of criminal justice. The processes of criminal justice should not be distorted to prevent an accused from defending himself or herself properly. If the public interest demands that material capable of assisting an accused be withheld, then the proper course may be to abandon the prosecution or for the court to stay the proceedings.

93. What was said there was said in the context of a criminal trial. The issue was one of public interest immunity. The position is different here. Not only is the SPA entitled to inform itself in any way its considers appropriate, s 194 expressly provides for the denial of what would otherwise be considered to be procedural fairness

94. As I have earlier mentioned, the plaintiff has had a redacted form of the s 194 Material and has had access to the Local Court Brief Material. The plaintiff’s submissions in relation to that material are only that it is fraudulent, mistranslated, untruthful, and does not refer to him (by reason of a misspelling of his name in the document translating the document in Farsi). I have already given reasons why, in any event, it was open to the SPA to have regard to the information contained in the s 194 Material.

95. The plaintiff relied on the presumption of innocence also in relation to this ground of review. However, procedural fairness has little to do with the presumption of innocence. I have dealt earlier with the plaintiff’s submission about the presumption of innocence.

96. By reason of s 194 of the CAS Act, it cannot be said that the plaintiff has been wrongly denied procedural fairness. I would reject this ground.

Grounds 8 and 9:   Miscarriage of justice

97. Grounds 8 and 9 were also concerned with the s 194 Material and the Local Court Brief Material which the plaintiff believed were before the SPA.

98. To the extent that they are grounds related to judicial review, they are misconceived. Determining whether there is a miscarriage of justice arises only in an appeal to the Court of Criminal Appeal against a person’s conviction for an offence. It is not a ground which, in itself, entitles a party to judicial review.

99. The submissions made in relation to the s 194 Material and the other documents are largely repetitive of submissions made in relation to the taking into account irrelevant considerations and have been dealt with earlier in this judgment.

100. I would reject these grounds.

Application under s 155 of the CAS Act (also ground 7)

101. Paragraph 4 of the plaintiff’s application says:

The decision of the SPA has been made on the basis of false, misleading or irrelevant information.

102. That appears to be a reference to s 155 (or s 176) of the CAS Act, and has been assumed by the defendant to be such a reference.

103. Section 155 of the Act provides:

155 Application to Supreme Court by offender

(1) If -

(a) the Parole Authority decides that an offender should not be released on parole, and

(b) the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information,

the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.

(2) The Supreme Court may give such directions with respect to the information as it thinks fit.

(3) An application under this section is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.

(4) This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority’s decision otherwise than on the grounds referred to in subsection (1).

104. Section 176 is in relevantly the same terms, but is directed to the revoking of a parole order or an intensive correction order. The s 194 Material was the basis for the revocation order, with the result that the plaintiff could also be relying on s 176.

105. In Harrison v NSW State Parole Authority [2019] NSWSC 1783 Lonergan J said:

[12] The authorities on how applications under s 155 of the CAS Act should be approached were collated and summarised by Garling J in Sutton v NSW State Parole Authority [2011] NSWSC 935 at [9] (adopted in Clark v NSW State Parole Authority [2011] NSWSC 1220 at [8] per Walmsley AJ and Naden v NSW State Parole Authority [2017] NSWSC 479 at [15] per Latham J):

a. An application for a direction from this Court to the Authority is not an appeal, or any form of appeal against the decision of the Authority.

b. An application for a direction from this Court to the Authority is not concerned with whether the Authority acted in accordance with the statute, because it is not a proceeding in the nature of an administrative proceeding seeking prerogative relief.

c. The role of this Court in considering an application of this kind is extremely limited. This Court can only consider whether information given to the Authority was false, misleading or irrelevant, and then only if that information is a basis for the decision which was made.

d. On the hearing of an application, this Court is not concerned with any questions as to the merits on the decision of the Authority, or with what weight the Authority placed on various factors.

e. At the hearing of an application, the Court is not concerned with the thought processes of the Authority, or its findings based on the information before it.

f. The term “information” is not used in any broad sense. It is used in the sense of factual information, namely information going to the characteristics of the offence and the offender and all factual matters relevant to whether or not it may be appropriate to order a release on parole.

g. In hearing an application, the court needs to be satisfied that the information was false or misleading in substance. This will usually require evidence in addition to that which was before the Authority to discharge the onus on the applicant

[13]   The power in s 155(2) is to give directions “with respect to the information.” In Lee v NSW State Parole Authority [2006] NSWSC 1225 at [11], Johnson J held that section did not permit a direction that the Authority reconsider its decision; see also Naden v NSW State Parole Authority [2017] NSWSC 479. In so holding, Johnson J rejected the approach taken by Adams J in Galli v NSW State Parole Authority [2006] NSWSC 206.

106. In Ngati v NSW Parole Authority [2007] NSWSC 963 Price J said:

[7]   Sub-section 155(3) provides a threshold which must be satisfied before a s 155 application is to be considered by the Court. Failure by an applicant to satisfy the Court that the application is not an abuse of process and that there appears to be sufficient evidence to support it will result in dismissal of the application.

107. In relation to that evidence and what is required to be shown, the Court of Criminal Appeal in Rozynski v Parole Board of NSW [2003] NSWCCA 214 said at [13]:

For my part, I consider that action under the section will not be warranted unless the statutory conditions are met as a matter of substance. This means that information before the Board will not be characterised as false, misleading or irrelevant simply because it was challenged, even if challenged on such a basis before the Board and the challenge determined adversely to the applicant, nor if it is merely incorrect in detail but not false or misleading in substance. This court will need to be satisfied on appropriate (usually new) evidence that information was false or misleading in substance, and that the direction should be given. So far as there is a determination of the Board concerning information said to be false or misleading, before the court will so categorise that information, it will be necessary to satisfy the court that the Board’s determination was plainly, not just arguably, wrong and further that the information was false or misleading and material to the Board’s conclusion.

108. The plaintiff made a number of statements which amount to no more than evidence from the bar table, concerning the falsity and misleading nature of the documents. He claimed to have spoken to someone in the Iranian embassy in Canberra who had confirmed that the Iranian document was illegitimate and fraudulent. He claimed that the Iranian document had been mistranslated. He denied that the document referred to him.

109. The plaintiff does not satisfy the requirements of s 155(3) that there appears to be sufficient evidence to support the application. There is simply no evidence that the s 194 Material was false or misleading. Even if there was, it will not be characterised as such simply because it was challenged as being false or misleading.

108. I am not satisfied that there is any evidence to support the application under s 155, and I decline to consider the application.

Conclusion

111. The plaintiff does not demonstrate any errors on the face of the record nor any jurisdictional error. The plaintiff was not unlawfully denied procedural fairness.

112. I make the following orders:

1. Dismiss the proceedings.

2. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 20 August 2021