Tulloh v Prisoners Review Board - [2014] WASC 239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TULLOH -v- PRISONERS REVIEW BOARD [2014] WASC 239

CORAM: CHANEY J

HEARD: 14 MAY 2014

DELIVERED : 4 JULY 2014

FILE NO/S: CIV 2948 of 2013

BETWEEN: MICHAEL DENNIS JOHN TULLOH
Applicant
AND
PRISONERS REVIEW BOARD
First Respondent
CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF CORRECTIVE SERVICES
Second Respondent

Catchwords:

Administrative law - Judicial review - Decision to cancel parole - Irrelevant considerations - Failure to consider relevant considerations - Whether policy inflexibly applied

Legislation:

Sentencing Act 1995 (WA)
Sentence Administration Act 1995 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Supreme Court Act 1935 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Decisions quashed

Category: B

Representation:

Counsel:

Applicant:     Mr B W Galloway
First Respondent          :     Ms C J Thatcher
Second Respondent      :     No appearance
Intervenor:     Ms C J Thatcher

Solicitors:

Applicant:     Galloways Solicitors & Attorneys
First Respondent          :     State Solicitor for Western Australia
Second Respondent      :     No appearance
Intervenor:     State Solicitor for Western Australia

Cases referred to in judgment:

Agnew v Prisoners Review Board (No 2) [2012] WASC 175
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Hiron v The State of Western Australia [2010] WASC 236
Jones v Dunkel (1959) 101 CLR 298
King v Allen Piper, Director General, Department of Justice WA [2004] WASCA 218
Minister for Aboriginal and Torres Strait Islander Affairs v The State of Western Australia (1996) 67 FCR 40
NGJF v Prisoners Review Board [2010] WASC 107
R v Secretary of State for Home Department; Ex parte Venables & Thompson [1998] AC 407
Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515
Seiffert v Prisoners Review Board [2011] WASCA 148

CHANEY J: On 13 December 2002, the applicant, Mr Tulloh, was sentenced to a 15 year term of imprisonment following a conviction for possession of methamphetamine with intent to sell or supply. When sentencing Mr Tulloh, the sentencing judge explained the effect of the then current provisions of the Sentencing Act 1995 (WA) (Sentencing Act) and the Sentence Administration Act 1995 (WA) (SA Act 1995). He said:
You are sentenced to 15 years imprisonment. That sentence is to date from 9 December. As the term is in excess of 6 years, one third of the sentence will be remitted. You will then serve 10 years less 2 years, namely 8 years in custody. If you are granted parole, and I make you eligible for parole, then you spend 2 years on parole. That is the sentence of the court.
On 25 November 2010, Mr Tulloh was granted parole, and was released on parole on 8 December 2010. As had been explained to him by the sentencing judge, he was required to serve two years on parole, and in the event that that period of parole was successfully completed, his sentence would have then been taken to have been fully served.
In addition to the standard obligations of a…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2014] WASC 239
Decision Date: 4 JULY 2014

CaseChat Overview and Summary

In Tulloh v Prisoners Review Board, the applicant sought judicial review of a decision by the Board to cancel his parole. The central issue in this case was whether the Board had a policy to automatically cancel parole upon a positive urinalysis test for methamphetamine and if this policy was rigidly applied in the applicant's case. The applicant argued that the Board's approach to parole cancellation was overly rigid and did not consider individual circumstances, amounting to an invalid fetter on the Board's discretion.

The legal issues before the court included whether the Board had established a policy of automatically cancelling parole for a positive methamphetamine test, and if such a policy existed, whether it was applied inflexibly in the applicant's case. Additionally, the court had to determine if the Board's failure to consider individual circumstances amounted to an invalid fetter on its discretion. The court was also tasked with assessing the sufficiency of the evidence presented to establish the existence and application of the alleged policy.

The court found that while it was permissible for the Board to develop criteria for the exercise of its discretion, any such policy must allow for exceptions based on individual circumstances. The applicant's evidence regarding the existence of a policy was considered insufficient due to the lack of corroborating evidence and the unclear origin of the document in question. Consequently, the court determined that the applicant had not established the existence of an inflexible policy. Furthermore, the court concluded that even if such a policy existed, it was not applied inflexibly in the applicant's case.

In light of the findings, the court dismissed the application for judicial review. The Board's decision to cancel the applicant's parole was upheld, and no further orders were made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Martin CJ continued:[15]This is of course not to say that it is impermissible for a decision maker vested with a discretionary power to develop criteria for the exercise of the discretion in the form of a policy relating to its exercise: see for example Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277, 289 (Gleeson CJ). However, consistently with the principles relating to invalid fetter of a discretionary power, any such policy must admit of the possibility of exception depending upon the circumstances of a particular case.[15] Seiffert v Prisoners Review Board [2011] WASCA 148 [124]. Although somewhat loosely expressed, grounds 5 and 9 were clearly intended to assert error in the nature of an invalid fetter on the exercise of the statutory discretion. An assertion of that character also appeared in the applicant's original grounds of application which included a ground that the first respondent failed to discharge its duties and obligations because it 'acted in bad faith where [it] approached the matter with a closed mind'. The more precise formulation of this ground only emerged during the course of the hearing of the matter on 14 May 2014. The first respondent did not appear at the hearing, having, quite properly, given notice to the Court that it did not intend to appear and would abide by the Court's decision. The Attorney General was given leave to intervene, so as to provide an appropriate contradictor to the application regarding the decision of the Prisoners Review Board and to file affidavits in reply to the application. When the clarification of the ground concerning inflexible application of policy emerged during the hearing, counsel for the Attorney General sought an opportunity to provide any additional evidence on that question and supplementary submissions on that ground. Accordingly, at the conclusion of the oral hearing, the matter was adjourned with directions for the Attorney General to file any further affidavits and submissions on the question of inflexible application of policy, and for the applicant to file any submissions in reply. Subsequently, the Attorney General filed submissions on the question, but no further evidence. The applicant filed written submissions in reply. This ground raises two issues. The first question is whether or not the applicant has established that the Board had a policy to cancel parole in the event of a parolee returning a urinalysis test positive to methamphetamine. The second question only arises if that policy is established, and that is whether the policy was, in Mr Tulloh's case, inflexibly applied. To establish the policy, the applicant relies upon a document which was annexed and marked as MDT 4 to his affidavit in support of his application sworn on 17 February 2014. MDT 4 is described by Mr Tulloh as being the transcription of answers provided by the Chairperson of the Board to a group of prisoners whom he visited at Bunbury Regional Prison on or about 11 December 2011. Beyond that description, there was no evidence as to who prepared the document or as to its accuracy. Taken at face value, it would appear that the Chairperson was provided with the questions in advance of the meeting, because there is a reference to some of the passages in the document being extracted from 'briefing notes provided by the Chairperson'.