HALL v RELEASE ON LICENCE BOARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY JJA, and CLARKE JA 22 May 1989, 27 June 1989 [1989] NSWCA 95 RELEASE ON LICENCE BOARD — summons seeking declaration that recommendation by Release on Licence Board for revocation of licence under s463 Crimes Act was void — claim that require- ments of procedural fairness not complied with — Johns v Release on Licence Board (1987) 9 NSWLR 103, relied on — claim fails on facts. MATTERS OF PRACTICE concerning Release on Licence Board and licences to be at large — observations made. Mahoney JA I agree with the judgment of Priestley JA. Priestley JA On 17 January 1989 the Release on Licence Board ("the Board") recommended the revocation of a licence to be at large granted in May 1984 to the claimant, who was serving a life sentence for murder. The claimant's primary claim in the proceedings now before the Court is that the Board's recommend ation is void, as having been arrived at in ways denying proce dural fairness to the claimant. It was in August 1974 that the claimant was convicted of murder and sentenced to penal servitude for life. When he was released in May 1984, the licence document he was given was expressed to be for a period of five years from the date of release. Two of the conditions of the licence were that the licensee must report each fortnight of as otherwise required to the Probation and Parole Officers of the Department of Corrective Services and that he should reside only at places approved by those officers. By 1988 the licensee was required to report monthly and was residing at an approved address. In October 1987 the claimant was charged at Wyong Local Court with a number of offences. These included charges of using a firearm in a public place and two charges of assault. He pleaded not guilty and was released to bail. The Board was notified-of the charges soon after they were made. No action was taken in regard to possible revocation of the licence. The claimant continued to report as required, until and including 19 April 1988, when he was required to report next on 17 May 1988. On 17 May 1988 the claimant did not report. The Board was notified on 3 June 1988 of that failure and of the fact that he had moved from his residence, leaving no forwarding address. Then, on 22 June 1988, the claimant reported to appropriate officers. They in turn notified the Board. Thereafter the claimant reported fortnightly. The Board's administration was told of this development by telephone on 22 June 1988. It is not clear, however, whether this information was before the Board at its next meeting, which was on 28 June 1988, although it seems that it was not. The minute of what happened in relation to the claimant on that day records simply that the claimant was in breach of licence conditions and had serious charges pending at Wyong Local Court on 15 July 1988; and that a report from his Parole Officer dated 3 June 1988 said the whole family, had sold 2 UNREPORTED JUDGMENTS up and left without forwarding address or any contact from the claimant since his last report on 19 April. The Board's decision was that an arrest warrant was to be issued. It was noted that once he was in custody he would be able to say why his licence should not be revoked. A written report from the relevant Officer dated 23 June 1988 and setting out the circumstances of the claimant's failure to report and then his having presented himself in person to report on 22 June 1988 together with a full explanation of why he had not reported, was received by the Board on 29 June 1988. Following receipt of this letter, the warrant for arrest was signed by the Chairman of the Board on 30 June 1988, with the notation that it should lie in the office until the meeting of 25 July 1988. At the Board meeting of 25 July 1988 it was decided to defer consideration of the possibility of revoking the claimant's licence, until the August meeting, so further information on the charges against the claimant could be obtained. The Chairman directed that the warrant lie in the office until the August meeting. By letter dated 27 July 1988, solicitors for the claimant wrote to the Board, pointing out what were submitted to be difficulties facing the Board in considering whether to revoke the claimant's licence before the outstanding charges against the claimant were disposed of. The main submission was that the Board should not take any aspect of those charges into its consideration until after they had been disposed of. (At that stage, because of congestion in the Local Court lists, their hearing had been adjourned to 30 January 1989.) In the meantime, it was submitted that the Board should consider the question of revocation by reference only to the claimant's failure to report in accordance with his licence conditions. The letter ended by submitting that the Board might take the pending charges into account only at a later review, and then only if any of the charges was later proved. At the meeting of the Board on 29 August 1988 it was decided to defer consideration of the matter until the September meeting, with the claimant's solicitor to be supplied in the meantime with the police fact sheets and the Parole Officer's report, and to be asked to say further why his licence should not be revoked. By a Board letter dated 31 August 1988, this was made known to the claimant's solicitors. What was enclosed with the letter was described as "a member's file showing the papers the Board has considered in Mr Hall's case". The claimant's solicitors replied by letter dated 14 September 1988, asking that the matter stand over to the October meeting of the Board to enable a psychiatric assessment of the claimant to be made by Dr Hugh Jolly. At its meeting on 26 September the Board deferred consideration of the matter until the October meeting, noting that the arrest warrant was to continue to lie in the office. In the meantime, however, the Board had received a letter from the solicitors for the claimant, dated 21 September 1988, advising that they no longer acted for the claimant and that the arrangements for the claimant to see Dr Jolly had been cancelled. By letter dated 7 October 1988 the Board wrote to the solicitors asking for the return of the claimant's file. At the Board meeting of 31 October 1988 there was no appearance by the claimant or anyone on his behalf. By a majority of five to two the Board decided to recommend revocation of the licence. The Board also directed the release of the warrant to Police for execution. The claimant was taken into custody on 19 November 1988. By letter dated 22 November 1988 the claimant wrote to the Board asking for "a copy of the transcript of my case". At the same time he formally applied in writing to appear in person before the Board when it reviewed his case again. At the Board's URJ HALL v RELEASE ON LICENCE BOARD (Priestley JA) 3 meeting of 28 November 1988 it was decided that the claimant should be given a copy of the police report and the letters written by his solicitors and invited to make further representations within fourteen days. By Board letter dated 6 December 1988 the claimant was told of this decision and told also that the oral hearing would be held in January. The hearing took place on 17 January 1989. At the hearing, the claimant was represented by the solicitors who had been acting for him until the previous September. The result of the hearing was that the Board recommended, by a majority of three to two, that the claimant's licence should be revoked. It is this recommendation which, unlike the earlier one, was subsequently acted upon, that the claimant argues is void. In the proceedings before this Court, written submissions were filed in advance of the oral hearing by both the claimant and the opponents. These were helpful as an introduction to the material before the Court. The oral submissions from both sides were also helpful. Counsel for the claimant made it clear in his oral submissions that the claim that the Board's recommendation that the licence be revoked was void was based upon two grounds. (1) There was before the Board at the time of the hearing on 17 January 1989 a large file of material relating to the claimant which had not been provided to him or his legal representative; (2) the Board took into account in the course of its considerations allegations relating to the Wyong charges. He also made it clear that although there were a number of subsidiary matters, they fell to be considered only if the claimant succeeded on one of the two main points. (1) The first ground derives from decisions of this Court concerning procedures to be adopted by the Parole Board and the Release on Licence Board. In Todd v Parole Board (1986) 6 NSWLR 71, the question was whether the Parole Board was bound to accord procedural fairness prior to deciding whether or not it should reduce a prisoner's non parole period. The Parole Board submitted, in that case, that procedural fairness requirements were excluded by the terms of the relevant statutory provisions but asked the Court, if of a contrary opinion, to make orders furnishing a guide to what was necessary to accord procedural fairness to prisoners (see at 81). The Board's secretary gave evidence concerning the practical problems the Board would face in carrying out whatever the Court thought appropriate. In the event, the Court found that procedural fairness was required, and that prior to making a decision affecting a prisoner the Board should: notify the prisoner of the nature of the decision concerning the prisoner that it would be considering; notify the prisoner of any material to be considered by the Board in considering what decision to make; permit the prisoner to make written submissions; and afford the prisoner an opportunity to be heard orally (see the full order at 83). In Johns v Release on Licence Board (1987) 9 NSWLR 103 similar questions to those in Todd arose in regard to the Release on Licence Board. In Johns, the Release on Licence Board submitted that because its resources were much more limited than those of the Parole Board, and because of differences in the legislation governing the two Boards, procedural fairness would be appropriately accorded by affording to persons subject to the Release on Licence Board's consideration the opportunity of written submissions and the submission of statutory declarations, and no more (see at 110-111). After considering these arguments, the Court decided that to accord procedural fairness, the Board should comply with substantially the same requirements (mutatis mutandis, see the detailed orders at 117) as had been set out in Todd. Thus, in the present case, the claimant's first ground was that the Board had not 4 UNREPORTED JUDGMENTS complied with the requirement of notifying him of any Aye to be considered by it in relation to the possible revocation of his licence. Upon a detailed consideration of the transcript of what took place before the Board on 17 January 1989, however, it does not seem to me that this first ground is made out. Soon after the solicitor for the claimant began to address the Board, he asked whether there were documents other than those to which he had access which were before the members of the Board. The Chairman replied that the Board would be relying on the reports and the material concerning the original conviction and the claimant's gaol history as well as reports from various persons during the course of that history. The solicitor said that he did not have access to those documents. The Chairman then said that the file was available to him at any time and that the relevant part had been extracted by the Board's executive officer. This was a reference to the fact that the "member's file" referred to in the Board's letter of 31 August 1988 consisted of a selection from the claimant's full file. The selection was of material thought to be relevant to the hearing. This had been available to the claimant's legal representatives, or the claimant himself during the period he was unrepresented, from the beginning of September 1988. At this early point the Chairman made it quite clear that the whole file was available for inspection by the claimant's solicitor at any time. (Transcript at 4.) The discussion then turned to the matter which was plainly of principal concern to the claimant's legal representative, the submission that the Board should not take into account in any way, at the hearing then going on, the existence or substance of the Wyong charges. Then the question of what materials were being used by the Board in the course of the hearing was again raised. (Transcript at 14.) The solicitor said that he saw members of the Board were referring to a larger file than the one that he had and asked, if the Board was going to rely on information in the larger file, that he have access to it prior to the Board relying on it. He then asked, rather than go through the whole file himself, that the Board should draw his attention to any information contained in it that the Board might rely on. The Chairman replied in a way which appears to be garbled in the transcript, but in light of what happened later, was probably an invitation to the solicitor to look through the whole file during the adjournment. Some time later (transcript at 20.) the Chairman said to the solicitor: "The Board will take a short adjournment. I will make this file available to you... and you can go through it and look at the whole lot including the gaol record and the report of every officer. For people to change, they have to grow up in that period and I think you will find that Mr Egan has been both sensible and fair." (Mr Egan was the Board's Executive Officer who had made the abridged version of the file.) The transcript shows (at 20-21) that immediately after the short adjournment the following was said: "CHAIRMAN: Have you been through that file now? SOLICITOR: It would be misleading if I said I have been right through the file. CHAIRMAN: You cannot spend 10 years in an institution with different people expressing views on you. There are a lot of things in that file." [I assume "with" should read "without".] Evidence in the proceedings in this Court made it clear that the claimant's solicitor also had the opportunity of access to the full file during a later adjournment during the day. $P In this Court, the full file was tendered (ExA). It contains a good deal of material, much of it (leaving questions of proof aside) URJ HALL v RELEASE ON LICENCE BOARD (Priestley JA) 5 relevant to an assessment of the claimant's situation as it was at the time of the hearing; in this category I include the material describing his mental and emotional state from the time he began his sentence. It also contained a good deal of material not related to any of the questions before the Board, and neither helpful or prejudicial to the claimant. The making of an abridged file by Mr Egan was obviously a practical step for him to take in preparation for the hearing. I do not see anything unfair or sinister in that step having been taken. Equally, however, once it became apparent to the claimant's legal representative that members of the Board were having recourse to the full file, it was right for him to ask the questions he did and to claim to have access to the whole file. Had he been denied that access, the ground of complaint presently being considered may well have been made out. Also, if after having had access to the file, he asserted that he needed time to prepare the claimant's case in regard to matters emerging from it and requested an adjournment for that purpose, and was denied an adjournment, then again, depending upon an evaluation of the detailed facts, ' the ground may have been made out. Neither of those things happened. What happened was that the whole file was made available, the Chairman made it clear that he regarded the whole of it as appropriate for the Board to look at, granted full access to it, and partial advantage was taken of that access. At an early stage, when the claimant's solicitor was asked whether he was asking for an adjournment, he indicated his client was anxious to have the matter disposed of that day. I think I should say two things about this course of events. One is that it would have been better practice if the claimant had had longer warning that not only the "member's file" but the full file would be used by the Board at the hearing. His solicitor could then have read the full file (if he wished) before the hearing and would not have been placed in the awkward pinch at the hearing of having to choose between asking for an adjournment, which might not achieve anything more than the loss of time against his client's wishes, and pressing on with the hearing, as his client wished him to do, but subject to possible and only partly understood disadvantages. However, though it would have been better practice to have avoided this situation, I do not think the situation itself resulted in procedural unfairness. The full file was available, to be read and to be made the subject of any application appropriate to be made based upon it; the fact that it was not fully read and no application for adjournment was made, was the result of decisions made on the claimant's side of the record, and not of lack of procedural fairness. The foregoing leads into the other comment I wish to make. It is relatively clear that at the hearing, the case the claimant's solicitor wished to present was a simple one. It also must have seemed to have at least some reasonable prospect of success. This case was: the Board had taken no action towards revocation when the Wyong charges were first reported to it; the Board did not take action until the claimant failed to report; this failure was of comparatively short duration, for which a full explanation had been provided to the Board; from 22 June 1988 the claimant reported regularly; the officers from the Probation and Parole Service reporting on the claimant all took the view that his failure to report had been satisfactorily explained and was unlikely to happen again; on this footing, since the claimant had come close to the end of the five year period mentioned in his licence, without fault except for the short period of non reporting, and since the Board had not been concerned by the existence of the Wyong charges until the failure to report, now satisfactorily explained, the Board 6 UNREPORTED JUDGMENTS should not recommend revocation of the licence. As I have said, it was not unreasonable for the claimant's solicitor to think that this approach should have at least some prospects of success, particularly if he could persuade the Board to exclude or limit consideration of the Wyong charges. It was really the only argument available, and it was not likely to be improved by getting mixed up with an examination of the claimant's history while in custody. A glance at the full file would have shown that there were psychological and psychiatric appraisals of the claimant contained in it, not particularly helpful to his case, but unlikely to be usefully enlarged or contradicted. Certainly, a glance at the material would show that becoming involved in a contest about such aspects of it as might be regarded as adverse to the claimant would be likely to be long drawn out and not, in the end, likely to be particularly helpful to the claimant. It seems to me that in the circumstances it would be perfectly rational for the claimant's solicitor to decide, without detailed examination of the full file, that the best strategy was to press on, on the simple and more or less straightforward basis I have above indicated. In the upshot, there was no impediment to the case being put as the claimant wanted it; the fact that that case failed cannot, it seems to me, be attributed either to procedural unfairness, or the somewhat awkward position the claimant's solicitor was placed in by the late availability of the full file. (2) The second ground also seems to me to be unsustainable, once the transcript is read. As part of the basic strategy adopted by the claimant, it was important to persuade the Board to put the Wyong charges out of consideration in the hearing of 17 January. The claimant's solicitor made this clear when at an early stage the Chairman asked him whether he was asking for an adjournment. The Chairman said that the effect of the letter of 27 July 1988 was to ask to have the matter deferred until the criminal proceedings had been concluded. the claimant's solicitor replied that he was not instructed to ask for an adjournment and that the point of the letter of 27 July was quite different, namely to ask the Board to deal with the revocation question before the criminal proceedings were concluded, and without any reference to them. He explained the difficulties in which his client could be placed if there was to be any examination either of witnesses concerned with those charges or of his client, prior to the hearing of the charges. (See transcript at 5.) Later, when this topic was again raised in discussion, there was debate about the way in which the Board should approach the hearing. The Chairman made it clear: "The Board considers all the matters prescribed by s61 of the Prisons Act. It considers the circumstances of the crime, the time served, his gaol history and his conduct in prison, the problems that have been associated with living in a prison. It considers his mental stability, his problems... There are matters here going back, where the Board has had reports from Committees, Prison Officers, Psychologists and others and they go back over a period when he commenced his imprisonment. In 1973 that was. The Board now has to consider whether or not there has been a breach of his licence conditions and no doubt the Board will have to consider very carefully all the matters that are raised by s61 of the Prisons Act whether a recommendation should be made to the Government as to whether the licence should be revoked." (Transcript at 14-15.) Then, after some discussion relating to possible delay connected with the Wyong charges, the claimant's solicitor said his client wanted the matter terminated that day, and was starting to submit what the Board should do if it intended to have any reference to the Wyong allegations, when he was interrupted by the Chairman saying: URJ HALL v RELEASE ON LICENCE BOARD (Priestley JA) 7 "They are not allegations, we have statements from a number of people and the Board is entitled to inform itself in any way that is appropriate. The onus of proof, before this Board, for a decision whether he is to remain at large or whether a recommendation is to be made to the Government of course is the balance of probabilities, not proof beyond reasonable doubt and there are already two very serious breaches which have been admitted. That is, he changed his address in circumstances where there were criminal proceedings pending against him and in which serious charges are made. Secondly, he was away for two months before the matter came to the authority. It was strictly a breach of licence... that he was to be under a very strict form of supervision for a period of 5 years, " (Transcript at 16.) A little later the Chairman said that the reason particular accommodation had been specified for the claimant was "... because it was part of a release plan because the Board was conscious of its responsibilities both to the prisoner and to the community in having a proposal which would ensure that he would adjust on his return to freedom and it made it expressly clear in a special condition that he reside only at such places as approved by supervising Probation and Parole Officers. We have a situation where a man who committed a shooting crime involving passion and sex gets involved in an incident where there are statements from a number of people involving the discharge of a firearm. He leaves and is not heard of for two months. There is the situation that we have before us. The Board already has the situation before it and it considers at its meeting the statements of all these people including a statement of a confessional nature by his father where it says that a person, who on this statement would almost certainly be your client, on the veranda discharge the firearm. That is the situation that is before the Board and the Board has to act in the public interest." (Transcript at 16.) (The words "be your client" near the end of the above passage do not appear in the original, but we were told during the hearing before us they were said.) The Chairman added the following to the above passage: "Let me just say the Board is very conscious of the situation and has been in this and other cases, where a trial is pending, that the person accused of a crime shall not be prejudiced in either presenting his defence to the crime. On the other hand, the Board is also conscious of the fact that there are statements of a very serious nature before it concerning that crime in the background of a man who has breached very serious conditions for a period of two months. That is the relevance of it. It is not whether he has been convicted or is going to be convicted. The whole of his behaviour has, as a person released to licence under conditions where good behaviour and special supervision are required". (Transcript at 16-17.) Some evidence was then given, followed by the short adjournment already mentioned during which the claimant's solicitor had access to the file. After the discussion about the file which followed the short adjournment, the Chairman said: "The Board has had some preliminary discussions and the Board is prepared, at this stage, to deal with the application in two stages. Firstly, it is prepared to deal with the admitted breaches which I want to make clear. The Board, as I have said, is also of the view that these are serious breaches and you said that to the Board earlier. To treat the Wyong matters as charges of a serious nature which are under consideration and to take that no further. But the Board however feels that after having dealt with it in the first instance, should it come to a decision or want 8 UNREPORTED JUDGMENTS to hear more, it will resume the hearing. That may save a lot of time and it may be more acceptable to you. But mind you, if the Board does make the decision without wanting to hear more, it could be out of the way of course. You appreciate that. The Board may proposed to recommend a revocation... " (Transcript at 21). The claimant's solicitor asked for clarification, which was supplied as follows: "CHAIRMAN: The practical effect of that is that the Board regards the breaches as being serious and subject to consideration of s61 of the Prisons Act. The matters that are taken into consideration, your client has been convicted and sentenced to a life of penal servitude for life for murder and having regard to the fact that he has either been granted a licence in fact or would have been granted if there had been a full compliance with the formalities, it would recommend to the Minister for Corrective Services that a licence be revoked, or it would take no action, or it would, if thought that it should go into the matter further before making a decision, then the hearing would be continued after the Board had continued the matter. SOLICITOR: That process would take place today to finality. CHAIRMAN: If practical. You are a practising lawyer and you know you cannot foresee what is going to happen in 10 minutes time in any proceedings. 'You know that, don't you? SOLICITOR: Barring unforeseen circumstances, the Board would propose to deal with the two admitted breaches in today's proceedings? CHAIRMAN: In the context there has been an incident at Wyong and that incident has resulted in serious charges against your client, without considering the circumstances of the charges. It is a circumstance which must be considered and the question of his absence for two months and the breaches of those conditions. There is the inference of flight also, that is a serious nature that is always put up by prosecutors. We will not be considering whether he has been responsible or not for the acts other than that he is in that situation. SOLICITOR: Thank you. That obviously meets with my approval and I think it is the most efficient way to dispose of the matter." (Transcript at 21-22.) It was on that basis that the hearing proceeded. Before going ahead on that basis the Chairman made it clear that if the Board should be in the claimant's favour after hearing the matter in the way which had just been described, it nevertheless might wish to go on and continue the hearing fully. In that context he asked the claimant's solicitor whether he consented to the shortening of the proceedings and the claimant's solicitor said he did. It seems to me to be clear that the claimant's solicitor assented to there being reference to the Wyong charges to he extent and for the purpose which the Chairman had stated in the passages I have last set out. It follows, in my opinion, that the claimant can not rely on anything that took place within the ambit of that consent. I should say also, to avoid any possibility of misunderstanding, that even if the claimant's solicitor had not agreed to the course proposed, I do not think that there is anything wrong with it. I agree with the reasons given by the Chairman (although I will need to say something about s61 of the Prisons Act later) for the necessity for the Board, in the public interest, to bear in mind the fact of the charges having been made in the context of a claimant's past history and the breaches of condition which he admitted. To meet the difficulty to the second ground of the argument caused by what had happened at the hearing, counsel for the claimant then submitted that it was apparent from the reasons for the Board's decision, that matters had been taken URJ HALL v RELEASE ON LICENCE BOARD (Priestley JA) 9 into account by the Board in a wider area than that to which the Board had indicated it was going to restrict itself, at least in the first phase of the hearing. I do not agree with this submission. The Chairman, in delivering the reasons of the Board, summarised the claimant's history from the time of the murder in 1974 up to October 1987. The details all appear to me to have been in the full file. He then said: "Then came this incident in October 1987 which the Board at this stage, for its deliberations and I stress great care has been taken in those deliberations, treated no more than an episode where there are grave issues, whether they are ultimately decided in favour of the prisoner in the Criminal Courts or not, or even if they are looked at more closely in the Criminal Courts, a lesser or nominal punishment made if there is found to be wrong doing. They are serious matters but it does raise problems at this stage. The prisoner has been advised by his solicitor not to discuss the matter. If he chooses to give evidence here, he can be asked questions but it would not be the intention of the Board to require him to answer any questions where the answers may be incriminating of him. So to some extent, the Board would be handicapped in dealing with it. On the other hand, he is a person who has committed murder. He has been sentenced to life imprisonment and he has been released on licence... the usual condition is to be of good behaviour and the important matters of course are set out with which this Board is concerned in s61 of the Prisons Act." (Transcript at 56.) The Chairman then gave the details of the non reporting breaches and concluded: "Two Parole Officers have given evidence and are much in support of him. They have found him a person who required special attention. He is not just a run of the mill parolee; he is a person who has presented difficulties with his conviction and the crime of murder and has rather special circumstances and the good that has been seen since and his response to counselling. On the other hand, he has given testimony here, unsworn testimony, and he has again shown himself as being impulsive, confused and unstable. He did not give us a feeling of confidence in his good intentions. In many ways, his behaviour is strange; his explanation as to the breach clearly shows it was no technical breach, having in mind a technical breach was days. That was a very gross and serious breach. The Board has considered it." (Transcript at 57-58.) The Chairman then announced the Board's decision (by majority) to recommend revocation of the licence. Not only do I not see in the reasons given by the Chairman any sign of the taking into account of anything more in regard to the Wyong charges than what the Chairman had earlier announced and had been assented to by the claimant's solicitor, in the earlier of the passages I have set out the Chairman made it clear that care had been taken to see that the stated limitations upon the use of the material were observed. In regard to this, counsel for the claimant mentioned the fact that most of the members of the Board were lay persons not as practised in putting out of mind matters of which they have knowledge as judges are supposed to be. He submitted that by the time the procedure was decided upon, it was too late in the day for at least the lay members of the Board to be able to exclude the substantial content of the charges and the statements of the prospective witnesses for the prosecution, from their minds. This submission seems to me to be fully answered by what I have already said; the "too late in the day" point relied on in this Court was known equally well to the claimant's solicitor before the Board. Yet he assented to the proposed course. Additionally, however, I do not think there is any reason to suppose that the Board, in 10 UNREPORTED JUDGMENTS considering the matter before the Chairman delivered his reasons, did not do what the Chairman said they had all done, that is treated the Wyong charges as no more than an episode involving grave issues. Judicial officers of all degrees are constantly accepted as being capable of excluding from their process of decision knowledge of matters known to them but either irrelevant or agreed to be left out of account. In the present case, where the Board was presided over by a Chairman with long judicial experience, and its members all responsible persons chosen for their suitability for the particular Board, I do not see why in the absence of any evidence to the contrary of what the Chairman said, this Court should act on any different basis. In my opinion the claimant failed to make good either of the two grounds upon which he relied in this Court. I think I should mention some of the incidental matters that arose in the course of the argument. In regard to the first of these, the use to be made of s61 ina revocation hearing, it will be necessary to express an opinion. In regard to the others I merely note them as matters possibly requiring consideration by the authorities. In one of the passages I have set out from the Chairman's reasons, he referred to s61(2) of the Prisons Act in a way indicating that he thought the Board was bound, in a revocation hearing, to take into consideration the principles and have regard to the matters set out in it. Counsel for the claimant made the point that s61(2) was only mandatory upon the Board in considering whether or not to recommend that an offender be granted a licence or that a prisoner be granted remission. He said that the subsection did not make it mandatory for the Board to take the principles and matters into account when considering whether to recommend the revocation of the licence. The submission is correct. However, counsel also correctly observed that the fact that the Board was not statutorily bound to take into consideration the principles and have regard to the matters in the subsection did not mean that the Board must exclude them in its consideration of the case. He did not rely upon the fact that the Board had considered itself bound to take the various matters into account as independently being a sufficient ground to justify any interference with the Board's recommendation. I would add to this concession, the observation that although the Board is not statutorily bound to take the principles and matters into account it is entirely proper for the Board to do so. Each of the principles and matters referred to in the subsection seems to me to be as relevant to whether or not a recommendation for revocation of a licence should be made as to a recommendation for the grant of a licence or the granting of remissions. In addition to the more obvious reasons for thinking this must be so, it seems to me that one matter inevitably material to the consideration of a revocation recommendation is the circumstances in which there had earlier been a decision to recommend the granting of a licence. Consideration of those circumstances must inevitably involve the Board in seeing what consideration was given to the principles and what regard was had to the matters listed in the subsection at the time when the Board was considering whether to recommend the grant of the licence. The same principles and matters must still be active ingredients at the time when consideration is being given to the revocation of the licence earlier granted. The matters I simply wish to record are these: (1) The opponents named in the proceedings were the Release on Licence Board and the State of New South Wales. Counsel for the opponents suggested it would be preferable to make the Attorney General the substantive opponent. He URJ HALL v RELEASE ON LICENCE BOARD (Clarke JA) 11 indicated that the Crown, to use an all purpose term, would raise no objection if, in cases of this kind, the parties to the proceedings were the Attorney General, who would be the active opposing party, and the Release on Licence Board, who would be a submitting party. (2) It appears that it is the practice to issue licences to be at large, which is done under s463 of the Crimes Act, in the way it was done in this case: the recommendation for the granting of the licence was submitted by the Minister to the Executive Council, who approved it, following which it was signed as approved by the Governor. It is presumably the approval and signing of the minute embodying the recommendation that brings the licence into existence. There is then issued a document called "Licence under s463" given under the hand and seal of the Chairman of the Corrective Services Commission containing the terms approved by the Governor and the Executive Council. In the present case there were some differences between the approved minute and the terms of the licence document, which could, in certain circumstances have caused difficulty. Had difficulties arisen, the licensee would have been in possession of a licence document slightly different from the minute, which it seems unlikely he would ever have seen, but which would contain the accurate statement of the terms upon which he had been released. (3) It also appears to be the practice that one of the conditions upon which a licensee is licensed to be at large is that the duration of the licence be for a stated period, five years in the present case. The terms of s463(1) make it at least arguable that a licence cannot be limited in this way. It would be desirable to preclude the possibility of argument about the validity of licences, either by legislative clarification of s463(1), or an alteration of the form of licence, to ensure.there is no doubt that the form is warranted by s463(1). (4) The possibility was raised in the course of argument that because the Chairman of the Board in the present case was a retired judge, the Board was not a specified tribunal within the meaning of s48 of the Supreme Court Act. Whether or not this submission is correct (and it well may be) the Court undoubtedly had jurisdiction to deal with the matter. Nevertheless, thought should be given to the advisability of an appropriate change to relevant legislation to avoid the possibility of unnecessary distinctions being sought to be drawn between Release on Licence Boards chaired by a judge and those chaired by a retired judge. In my opinion the claimant's summons should be dismissed. The Court did not hear argument on costs, but I know of no reason as presently advised why the ordinary result should not follow. To avoid further expenditure on a matter which I suspect unlikely to be the subject of productive contest, I suggest that the summons be dismissed with costs, with liberty reserved to the claimant to restore the summons to the list within the next seven days for the purpose only, if so advised, of seeking some different order as to costs. Clarke JA I agree with Priestley JA. The claimant's summons should be dismissed. The Court did not hear argument on costs, but I know of no reason as presently advised why the ordinary result should not follow. To avoid further expenditure on a matter which I suspect unlikely to be the subject of productive contest, I suggest that the summons be dismissed with costs, with liberty reserved to the claimant to restore the summons to the list within the next seven days for the purpose only, if so advised, of seeking some different order as to costs. 12 UNREPORTED JUDGMENTS Counsel for Claimant: Mr J Bansten Solicitors for Claimant: Craddock, Murray and Neumann Counsel for Opponents: Mr MF Gray QC and Mr P Lakatos Solicitors for Opponent: HK Roberts, State Crown Solicitor