Vaughan v Parole Board Queensland - [2019] QSC 10

SUPREME COURT OF QUEENSLAND

CITATION:

Vaughan v Parole Board Queensland [2019] QSC 10

PARTIES:

JASON RONALD VAUGHAN

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

No 238 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

30 January 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2018

JUDGE:

Brown J

ORDERS:

The Order of the Court is that:

1.   I declare that the decision of the Board to not lift the suspension until 26 February 2018 was effected by an error of law and ought to be regarded as invalid;

2.   The application is otherwise dismissed;

3.   Each party bear their own costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where parole suspended by Parole Board member and confirmed by Parole Board – where Parole Board subsequently rescinded decisions confirming suspension – where Parole Board stated it would not consider certain matters – where Parole Board lifted suspension of parole and amended conditions of parole order – where suspension lifted three days after decision – where Parole Board did not give notice of amended conditions and medical report prior to amending conditions – where Parole Board gave information notice and medical report after amendment – where the applicant made submissions – where Parole Board confirmed the amended conditions – where the applicant applied for judicial review of the Parole Board’s decision to defer lifting suspension for three days and to amend the conditions – whether the Parole Board had exercised statutory power for suspension – whether the Parole Board took into account irrelevant considerations – whether Parole Board failed to accord natural justice

Corrective Services Act 2006 (Qld) s 200, s 208, s 208B, s 208C
Judicial Review Act 1991 (Qld) s 20, s 23

Folling v Queensland Parole Board [2010] QSC 440, cited
McQueen v Parole Board of Queensland [2018] QSC 216, cited
Minister for Aboriginal Affairs v Peko Wallsend ltd (1986) 162 CLR 24, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited
Renwick v Parole Board of Queensland [2018] QSC 169, cited
TBR v Southern Queensland Regional Parole Board [2010] QSC 204, cited

COUNSEL:

J Greggery QC for the applicant

S A McLeod QC for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the applicant

Crown Solicitor for the respondent

The applicant, Mr Jason Ronald Vaughan, was released on Court ordered parole on 3 February 2017. On 15 September 2017, a member of the Parole Board ("the Board”) suspended the parole order indefinitely, pursuant to s 208B(2)(c) of the Corrective Services Act 2006 (Qld) (“CS Act”) on the basis that Mr Vaughan was an unacceptable risk of committing an offence. While that decision was confirmed by the Board on 19 September 2017 and 5 October 2017, those decisions were subsequently rescinded by the Board on 23 February 2018. The Board decided to consider the matter afresh, excluding consideration of…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] QSC 10
Decision Date: 30 January 2019

CaseChat Overview and Summary

In the case of Vaughan v Parole Board Queensland, the applicant sought judicial review of decisions made by the Parole Board Queensland, which pertained to the suspension and amendment of parole conditions. The applicant, who was on parole, challenged the Board's decision to suspend parole and impose additional conditions, as well as the subsequent lifting of the suspension and amendment of conditions. The applicant argued that the Board had not exercised its statutory power correctly, had taken into account irrelevant considerations, and had failed to accord natural justice.

The central legal issues before the court involved the proper exercise of statutory power by the Board, whether the Board took into account irrelevant considerations, and whether the Board had failed to accord natural justice to the applicant. Specifically, the court needed to determine whether the Board's decision to suspend parole and impose additional conditions was lawful and whether the subsequent lifting of the suspension and amendment of conditions were conducted in accordance with the relevant legislative provisions and procedural fairness requirements.

The court found that the decision of the Board to not lift the suspension until 26 February 2018 was effected by an error of law and was therefore invalid. The Board had not given the applicant notice of the amended conditions and medical report prior to amending the conditions, which contravened the statutory requirements. Additionally, the Board had not considered the applicant's submissions before confirming the amended conditions, which was a breach of natural justice. However, the court dismissed the application in all other respects, finding no errors in the Board's exercise of its statutory power or in taking irrelevant considerations into account.

The court declared that the decision of the Board to not lift the suspension until 26 February 2018 was invalid due to the error of law. The applicant was ordered to bear their own costs, while the Board was not ordered to bear any costs.

Orders

Orders of the court

The Order of the Court is that:

1. I declare that the decision of the Board to not lift the suspension until 26 February 2018 was effected by an error of law and ought to be regarded as invalid;

2. The application is otherwise dismissed;

3. Each party bear their own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Prior to giving consideration to the above matters I will set out an overview of the circumstances leading to the decision of the Board to suspend the applicant’s Court ordered parole and to the present application. The circumstances leading to the decision At the time of the applicant’s release on Court ordered parole on 3 February 2017, his release was subject to a number of conditions, namely that he was to:(a)be under the supervision of Corrective Services until the end of the period of his imprisonment unless he was detained in an institution for a period fixed by a judge; (b)carry out the chief executive or delegate’s lawful instructions; (c)give a test sample as directed by the chief executive or delegate; (d)report to and receive visits as directed by the chief executive or delegate; (e)notify the chief executive or delegate within 48 hours of any change of address or employment during the parole period; and (f)not commit an offence.[1] [1] See Affidavit of Wickramasinghe, CF 10, Exhibits MW-1 and MW-30. On 10 March 2017, the Board issued an information notice of a preliminary decision on 9 March 2017 to amend the parole order by adding parole conditions, which were 11 in total, on the basis that the Board reasonably believed that the applicant posed an unacceptable risk in committing an offence.[2] [2] Affidavit of Wickramasinghe, CF 10, Exhibit MW-51. On 26 March 2017, the applicant wrote to the Board to show cause in respect of the decision of 9 March 2017, contending that the conditions would impose social isolation, result in psychological and emotional injury and retard his rehabilitation initiatives and ultimately be counterproductive. On 27 April 2017, the Board met and determined that the show cause submission did not cause it to change its decision and ordered the amendment of the order by adding the conditions. On 2 May 2017, the Board ordered the amendment of the parole order by providing for the added conditions that had been the subject of the information notice of 9 March 2017 and determined not to vary its decision of 27 April 2017.[3] [3] Affidavit of Wickramasinghe, CF 10, Exhibit MW-49. Following requests for reasons, the Board issued a statement of reasons on 7 July 2017 confirming that it considered the amendments made to the parole order were necessary as it reasonably believed that the applicant posed an unacceptable risk of committing an offence. On 7 September 2017, the Board met and determined to rescind its decisions of 9 March 2017 and 27 April 2017. On 14 September, the Board met again and decided to rescind its decisions of 7 September 2017, 9 March 2017 and 27 April 2017. Following a 14 September 2017 meeting, the Board gave the applicant an information notice of 14 September 2017, advising that it had made a preliminary decision to amend the Court ordered parole order granted which commenced on 3 February 2017 to add 16 conditions. The information notice stated that the reason for the Board’s decision was due to his offending history, pattern of offending, the comments of the District Court judge and his withdrawal of permission for Queensland Corrective Services to contact any third parties or treating entities and that the Board had been notified that he had ceased participating with his treating psychologist. The Board stated that in light of all that information it reasonably believed that he posed an unacceptable risk of committing an offence. The additional conditions proposed to be added to those which had been previously contained in the information notice of 9 March 2017 included that “the prisoner must actively participate in treatment with a psychologist to address his appending profile as directed by an authorised Corrective Services officer or the Board” and “the prisoner is to permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of attendance and compliance with treatment and provide opinions relating to level of risk of re-offending to a Corrective Services Officer if such a request is made”. Other than those conditions, the conditions were substantially the same as those the Board had previously imposed, prior to its decision of 14 September 2017. The decision followed a recommendation being made to the Board by Corrective Services.[4] [4] Affidavit of Wickramasignhe, CF 10, Exhibit MW-36.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Vaughan v Parole Board Queensland [2019] QSC 10
PARTIES:	JASON RONALD VAUGHAN (applicant) v PAROLE BOARD QUEENSLAND (respondent)
FILE NO/S:	No 238 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	30 January 2019
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2018
JUDGE:	Brown J
ORDERS:	The Order of the Court is that: 1. I declare that the decision of the Board to not lift the suspension until 26 February 2018 was effected by an error of law and ought to be regarded as invalid; 2. The application is otherwise dismissed; 3. Each party bear their own costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where parole suspended by Parole Board member and confirmed by Parole Board – where Parole Board subsequently rescinded decisions confirming suspension – where Parole Board stated it would not consider certain matters – where Parole Board lifted suspension of parole and amended conditions of parole order – where suspension lifted three days after decision – where Parole Board did not give notice of amended conditions and medical report prior to amending conditions – where Parole Board gave information notice and medical report after amendment – where the applicant made submissions – where Parole Board confirmed the amended conditions – where the applicant applied for judicial review of the Parole Board’s decision to defer lifting suspension for three days and to amend the conditions – whether the Parole Board had exercised statutory power for suspension – whether the Parole Board took into account irrelevant considerations – whether Parole Board failed to accord natural justice Corrective Services Act 2006 (Qld) s 200, s 208, s 208B, s 208C Judicial Review Act 1991 (Qld) s 20, s 23 Folling v Queensland Parole Board [2010] QSC 440, cited McQueen v Parole Board of Queensland [2018] QSC 216, cited Minister for Aboriginal Affairs v Peko Wallsend ltd (1986) 162 CLR 24, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited Renwick v Parole Board of Queensland [2018] QSC 169, cited TBR v Southern Queensland Regional Parole Board [2010] QSC 204, cited
COUNSEL:	J Greggery QC for the applicant S A McLeod QC for the respondent
SOLICITORS:	Purcell Taylor Lawyers for the applicant Crown Solicitor for the respondent