New South Wales Supreme Court CITATION : White v SPA of NSW & Anor [2007] NSWSC 299 HEARING DATE(S) : 28 March 2007 JUDGMENT DATE : 5 April 2007 JURISDICTION : Common Law Division - Administrative Law List JUDGMENT OF : Associate Justice Harrison DECISION : (1) The Summons filed 10 August 2006 is dismissed; (2) Each party pay his/its own costs CATCHWORDS : Judicial Review - whether a condition of parole was invalid, denial of procedural fairness Bail Act 1978 NSW Crimes (Administration of Sentences) Act 1999 NSW ss 135,128 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 NSW s 17A, Part 8A Interpretation Act 1987 Cth ss 33, 34 Justice (Non-association and Place Restriction) Act 2001 NSW Supreme Court Act 1970 NSW ss 65, 69 Anthony Hordern and Sons Limited and Others v The Amalgamated Clothing and Allied Union of Australia [1932] 47 CLR 1 Attorney General of New South Wales v New South Wales Parole Authority & Anor [2006] NSWSC 865 CASES CITED : Coco v The Queen [1993-1994] 197 CLR Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 Institute of Patents Agents v Lockwood [1894] AC 347 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Raymond Leslie White - Claimant PARTIES : State Parole Authority of NSW - First Respondent Attorney General of NSW - Second Respondent FILE NUMBER(S) : SC 30100/2006 COUNSEL : Mr R P Greenhill SC with Mr P Kulevski - Claimant Mr C Hoy - Contradictor Higgins and Higgins - Claimant SOLICITORS : Submitting Appearance, Mr I V Knight - Crown Solicitor - First Defendant Mr I V Knight Crown Solicitor - Contradictor LOWER COURT JURISDICTION : State Parole Authority of NSW LOWER COURT FILE NUMBER(S) : Not Applicable LOWER COURT JUDICIAL OFFICER : Not Applicable LOWER COURT DATE OF DECISION : 13 May 2005 - 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST ASSOCIATE JUSTICE HARRISON 5 APRIL 2007 30100/2006 - RAYMOND LESLIE WHITE v STATE PAROLE AUTHORITY OF NSW & ANOR JUDGMENT (Judicial review - whether a condition of parole was invalid, denial of procedural fairness) 1 HER HONOUR: By summons filed 10 August 2006 the claimant seeks firstly, a declaration that the State Parole Authority of NSW (Parole Authority) erred in law in its decision dated 13 May 2005 whereby it imposed condition 12 as a condition of parole granted to the claimant under the Crimes (Administration of Sentences) Act 1999; secondly, an order, in the nature of certiorari, pursuant to the terms of s 69 of the Supreme Court Act 1970 (SCA) quashing the condition of parole; and thirdly, an order, in the nature of mandamus, pursuant to ss 65 and 69 of the Supreme Court Act that the Parole Authority delete Condition 12 from its records of the grant of parole to the claimant. The Parole Authority has filed a submitting appearance. The Attorney General has been joined as the second respondent. He appeared as a contradictor and has made submissions. 2 The Court has jurisdiction to consider this application for prerogative relief under s 69 of the SCA. Prerogative relied is only available if an error of law is established – see Attorney General for New South Wales v New South Wales Parole Authority & Anor [2006] NSWSC 865 at [74]. This matter was referred to me for hearing by the List Judge. 3 There are two main issues for determination. The first issue is whether the claimant was denied procedural fairness at the parole hearing on 13 May 2005. The second issue is whether parole Additional Condition 12 falls within s 128 or s 128A of the Crimes (Administration of Sentences) Act 1999. Background 4 On 16 June 1988, Raymond Leslie White, the claimant, was found guilty of the murder of Andrew Westwood who was the new partner of his estranged wife. At the time of the offence, the claimant was married to Kay White. They had two children. He was a trainer of trotting horses and in partnership with his wife, conducting a business of selling harness equipment at various trotting meetings from the back of a truck. The claimant employed the deceased in that business on and off from 1982 to 1984. 5 On 24 June 1988, McInerney J sentenced the claimant to a life sentence for the murder and to a fixed sentence of six years that he did invite, move, procure, aid, counsel, hire and command John Szabo to maliciously set fire to a motor vehicle with intent thereby to injure. 6 On sentence McInerney J stated at 18: "It cannot be said that this prisoner had a deprived background. He was a man of mature age. He had apparently been previously married. He allowed insane jealousy and bitterness to consume him over a long period of time and he persisted from June, certainly until September, with attempts to do physical harm of a serious nature to the deceased, having over a period of almost twelve months threatened violence to the deceased. On the manner in which the jury have found, I believe he callously and coldly planned over a period of some time the murder of the deceased and he put into plan an operation, on the facts, that would ensure that the deceased was murdered and that he himself would have alibi in respect of that murder. Of course, because of his plea of not guilty, there is no evidence of contrition. Furthermore, I have no evidence before me of a psychiatric nature that would go to explain his motivation for such a callous and cold-blooded act, other than jealousy of his wife's affair with the deceased…" 7 On 14 November 1997, at the redetermination hearing, McInerney J at 14 stated: "My opinion had not changed since I utter those, words, and I proceed to sentence the application on that basis. The applicant continues to deny his involvement in this crime. However, in my view, the Crown case was an overwhelming, strong, circumstantial evidence case. Thus there is no evidence of contrition, and the applicant's lack of contrition was quite obvious when I observed him giving evidence before me. This is a matter of concern as to his ultimate rehabilitation." 8 On 14 November 1997, the claimant's life sentence was redetermined to a term of 21 years with a non-parole period of 16 years to expire on 15 June 2004. The earliest day on which he could be released on parole was 15 June 2004 with the sentence to expire on 15 June 2009. Grant of parole and variations 9 On 10 June 2004 the NSW Parole Board (now the State Parole Authority of NSW) ordered that the claimant be released on parole on 18 June 2004. The conditions of parole, including Condition 12, were imposed on that date and the claimant was then released on parole on 18 June 2004. 10 Additional Condition 12 reads: "The offender shall not associate with the Harness and Racing Industry, including working and contact with the industry and attendance at race meetings and trials." 11 On about 27 August 2004, the claimant sought and was granted a variation of his parole conditions so as to enable him to relocate and live with his brother on his property outside Wagga Wagga. The Parole Authority granted this variation and the claimant's parole conditions were varied to permit him to reside there and to work with horses "totally within the confines of the brother's property". 12 On 8 October 2004, the claimant attended a Harness Race Meeting at Wagga Wagga and in doing so breached Condition 12 of his parole. On 15 October 2004, the Parole Authority revoked his parole and the claimant was returned to custody. 13 By letter dated 10 February 2005, the claimant sought re-release on parole. He also sought to have Condition 12 deleted from the conditions of his parole, on the basis that his life revolved around the harness racing industry. On 13 May 2005 the claimant was again released on parole, but his release continued to be subject to the same conditions, including Condition 12. 14 On 10 August 2005, the claimant wrote to the Parole Authority seeking permission to apply to the Harness Racing Authority for a stable hand license. In writing to the Parole Authority the claimant hoped to overcome two problems that he stated as being: "a) I am uninsured in case of accident. b) The requirements of the Harness Racing Authority are that anybody assisting with training, management, care and control of horses be licenced (with insurance implications)." 15 On 29 January 2006, the claimant made a further request by letter. These requests were referred by the local Parole officers to the Parole Authority as they considered that they contravened Condition 12. On 9 February 2006, the Parole Authority after consideration granted the claimant permission to be licensed as a stable hand, but re-affirmed the requirement that his work with horses be totally restricted to the confines of his brother's property. Denial of procedural fairness 16 The claimant submitted that by the conduct of the Parole Authority he was denied his rights under s 190 of the Act and in particular subsection (1)(e) in that he was not able to "otherwise adduce, orally or in writing, to the Parole Authority such matters, and address the Parole Authority on such matters, as are relevant to the proceedings before the Parole Authority." 17 The claimant submitted that by firstly, taking into account the Minister's adverse communication noted in the file; secondly, failing to disclose to the claimant's solicitor at the hearing on 13 May 2005 the Minister's above communication; thirdly, taking into account the latest submission of the Westwood's relatives without at least confidentially disclosing it to the claimant's solicitor at the hearing on 13 May 2005; fourthly, taking into account an irrelevant part of the latest submission of the Westwood's relatives, namely, "…[they] do not want to see White enjoying the freedom to participate in the sport our brother should have had"; fifthly, failing to apply the proper test in its consideration of the above quoted extract from the latest submission of Westwood's relatives, namely, the test under section 135(2)(c) of the Act of "the likely effect on (the) victim's family of the offender being released on parole."; and sixthly, denying the claimant his rights under s 190(1)(e) of the Act; the Parole Authority made errors of law, as well as committing procedural unfairness, in its process of determining the imposition of Condition 12 as a condition of parole of the claimant. 18 However, since the claimant's Counsel prepared this submission, the Parole Authority has written to the claimant on 21 March 2007 (Ex 1) referring to its decision of 13 May 2005 and advised that: "It has come to our attention that you were not provided with a copy of certain documents prior to the making of that decision. In particular, that you were not provided with a submission from the family of the victim of your crime or with a copy of a case note from Mr Paul Nash, Executive Director and Corporate Counsel of the Department of Corrective Services, dated 9 May 2005. This is to advise you that the State Parole Authority has decided to reconsider the decision concerning parole to give you an opportunity to address the submission of the victim's family. … A copy of the submission of the family is now attached. As to the note of Mr Paul Nash, I have been unable to ascertain if this note was considered by the Authority. The note has been removed from the papers and will not be before nor considered at the meeting of the Authority on 3 May 2007. Please advise the Director and Secretary of the State Parole Authority if you wish to attend this meeting/be legally represented/and make submissions. If you wish to submit written submissions before the meeting, the contact details are…" 19 The review is to take place on 3 May 2007 at 9.30am. 20 It is my view that as the Parole Authority has provided the claimant with a copy of the submissions of Mr Westwood's relatives, has taken the offending note off the file and has decided to reconsider its decision and has given the claimant the opportunity to make submissions, be legally represented and attend the meeting, even if I were to consider granting prerogative relief there is no utility in now doing so. It appears that the claimant will be granted procedural fairness at the next hearing. In these circumstances I decline to grant relief on the basis of a denial of procedural fairness. The Crimes (Administration of Sentence) Act 1999 21 Section 135 of the Act provides for the general duties of the Parole Authority in determining whether a parole order will be made for an offender serving a sentence of imprisonment exceeding three years. 22 By way of introduction, the general duties of the Parole Board are set out in s 135 of the Act. At the relevant time, s 135 provided: "135 General duty of Parole Board (1) The Parole Board may not make a parole order for an offender unless it has decided that the release of the offender is appropriate, having regard to the principle that the public interest is of primary importance. (2) In making a decision under this section, the Parole Board must have regard to the following matters: (a) any relevant comments made by the sentencing court, (b) the offender's antecedents, (c) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole, (d) any report prepared by or on behalf of the Crown in relation to the granting of parole to the offender, (e) any report required by the regulations to be furnished to the Parole Board in relation to the granting of parole to the offender, (f) the offender's conduct to date while serving his or her sentence, including: (i) the attitudes expressed by the offender, and (ii) the offender's willingness to participate in rehabilitation programs, (g) the availability to the offender of family, community or government support, (h) the likelihood that, if granted parole, the offender will be able: (i) to benefit from participation in a rehabilitation program, and (ii) to adapt to normal lawful community life, (i) any special circumstances of the case, (j) such other matters as the Parole Board considers relevant." The scope of ss 128 and 128A of the Act 23 Section 128 of the Act refers to conditions of parole generally. 24 Section 128 reads: "(1) A parole order is subject to the following conditions: (a) the standard conditions imposed by this Act or the regulations, (b) any additional conditions imposed by the sentencing court (including any conditions that are, under section 51 (1AA) of the Crimes (Sentencing Procedure) Act 1999 , taken to be included in the order), (c) any additional conditions imposed by the Parole Authority under this section. (2) The Parole Authority may from time to time, by written notice given to the offender: (a) impose additional conditions on a parole order, or (b) vary or revoke any additional conditions imposed by it or by the sentencing court on a parole order. (2A) The conditions of a parole order must include conditions giving effect to a post-release plan, prepared by the Probation and Parole Service and adopted by the Parole Authority, in relation to the offender. (3) Without limiting subsection (2A), but subject to section 128B, the conditions of a parole order may include conditions requiring that the offender to whom the order relates be subject to supervision prescribed by the regulations, during the period specified by or under the order or the regulations. (4) This section does not permit the Parole Authority: (a) to revoke any standard conditions imposed by this Act or the regulations, or (b) to impose any additional conditions, or vary any additional conditions imposed by it or by the sentencing court, so as to be inconsistent with any standard conditions imposed by this Act or the regulations." 25 Conditions imposed under s 128(1)(a) and (b) can be put to one side, as any conditions imposed under these subsections are not in dispute. 26 Section 128A refers to the conditions of parole as to non-association and place restriction. It reads: "(1) The conditions to which a parole order is subject may include either or both of the following: (a) provisions prohibiting or restricting the offender from associating with a specified person, (b) provisions prohibiting or restricting the offender from frequenting or visiting a specified place or district. … (3) An offender does not contravene a prohibition or restriction as to his or her association with a specified person: (a) if the offender does so in compliance with an order of a court, or (b) if, having associated with the person unintentionally, the offender immediately terminates the association. (4) An offender does not contravene a requirement not to frequent or visit a specified place or district if the offender does so in compliance with an order of a court. (5) In this section, associate with means: (a) to be in company with, or (b) to communicate with by any means (including post, facsimile, telephone and email)." 27 The claimant referred to s 17A and Part 8A of the Crimes (Sentencing Procedure) Act 1999, whereby a Court sentencing an offender may, in certain cases, make non-association and place restriction orders. The claimant submitted that such orders can only be made to prohibit association with a specified person or to prohibit the offender from frequenting or visiting a specified place or district. 28 Section 100A in Part 8A of the Crimes (Sentencing Procedure) Act provides that non-association and place restriction orders do not restrict certain activities such as work, educational institutions, places of worship and associations with close family members. 29 The claimant submitted that the Parole Authority was not authorised by the Act to impose Condition 12 as a grant of parole and in doing so it has misinterpreted the statute, misconceived its powers, failed to take into account relevant matters and taken into consideration irrelevant matters. 30 The claimant further submitted that the Parole Authority had no power or proper authority to impose a non-association or place a restriction condition that was not in accordance with the terms of the Act. The claimant also submitted that Condition 12 is invalid by reasons of its failure to comply with the terms of the Act and it is bad for vagueness and uncertainty by reason of its lack of specificity as well as being unreasonable. 31 The Attorney General submitted that the claimant's argument rests on a flawed assumption as to the relationship between s. 128 and s. 128A of the Act. Section 128(1)(c) of the Act provides that a parole order is subject to conditions including "any additional conditions imposed by the Parole Authority under this section". Section 128(2)(a) provides that the Parole Authority may, from time to time, and by written notice given to the offender, "impose additional conditions on a parole order". The Attorney General submitted that apart from the limitations contained in s. 128(4), which are not of relevance here, the power given to the Parole Authority by s. 128 is, by its terms, unconstrained. 32 According to the Attorney General, s 128A(1) provides that "the conditions to which a parole order is subject may include either or both" conditions relating to non-association or place restriction. It is submitted that s. 128A should not be read so as to limit the broad terms of s. 128, which confer a general power on the Parole Authority to impose additional conditions. 33 As there is ambiguity, reference can be made to extrinsic material (see s 33 of the Interpretation Act 1987 (NSW). Support for the Attorney General's interpretation appears from the history of s 128A. Section 128A was introduced into the Act by the Justice Legislation Amendment (Non-association and Place Restriction) Act 2001. That Act also introduced amendments to the Crimes (Sentencing Procedure) Act 1999 and the Bail Act 1978. The effect of the amendments was that "non-association" and "place restriction" orders could be imposed on persons convicted of offences, and as conditions on the grant of bail or parole. The Parliamentary Secretary, Mr Stewart, in giving the 2nd reading speech for this bill on 26 October 2001 in the Legislative Assembly, identified the bill as "a cornerstone of the Carr government's comprehensive anti-gang package". Mr Stewart explained that "this bill focuses on breaking down an offender's association with persons and places that increase the likelihood of re offending". 34 Mr Stewart also made the following comment in relation to s 128A of the Act: "The bill not only provides for non-association and place-restriction orders to be made at sentencing: It amends relevant legislation to specifically recognise that non-association and place restriction conditions may be attached to bail, unescorted leave from custody, conditions of detention imposed by the Parole Board upon revocation of periodic detention and parole… Non-association and place-restriction conditions may already be imposed under the condition-making powers that attach to bail, leave, parole and revocation of periodic detention… Proposed section 128A of the Crimes (Administration of Sentences) Act will allow the Parole Board to explicitly consider the appropriateness of attaching non-association or place-conditions to parole." (my emphasis added) 35 Similarly, on 14 November 2001 in the 2nd reading speech for the bill in the Legislative Council, the Minister for Justice, the Hon. Carmel Tebbutt, observed: "The bill extends the specific recognition of non-association and place restriction parole conditions to parole determined by the sentencing court, Parole Board and Children's Court… The proposed new section 128A of the Crimes (Administration of Sentences) Act will mean the Parole Board explicitly considers the appropriateness of attaching non-association or place-conditions to parole ." (my emphasis added) 36 Debate on the bill in the Legislative Council was then adjourned to 27 November 2001 and again the intent of the legislation was highlighted by a Member who stated: "…while such conditions may already be imposed under general bail, leave or parole provisions, granting special legislative recognition to the making of such conditions will encourage their further use". 37 From these speeches three relevant considerations emerge. Firstly, it was considered the non-association and place-restriction conditions may already be imposed under the condition-making powers that attach to parole; and secondly, that by extending the specific recognition of non-associate parole condition to parole will mean that the Parole Board explicitly considers the appropriateness of attaching non-association or place-conditions to parole. Thirdly, it will encourage the use of these type of orders. These reading speeches make it clear that Parliament did not intend to limit the power granted under s 128. 38 The claimant referred to a passage from Anthony Hordern and Sons Limited and Others v The Amalgamated Clothing and Allied Trades Union of Australia [1932] 47 CLR 1, the High Court stated at 7: "…When the Legislature explicitly gives a power by a particular provision which prescribed the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power…" 39 The claimant also referred to Coco v The Queen [1993-1994] 197 CLR 427 at 437 where the High Court stated: "The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundament rights. So long as the requirement for express statutory authorisation is understood in the sense explained above, we would accept the requirement as a correct statement of principle. At the same time, in our view, the principle was expressed more simply by Brennan J in Re Bolton; Ex parte Beane in these terms: "unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation." In Bropho v Western Australia , Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is: "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used." 40 S128 and 128A concern conditions governing parole. The imposition of conditions will involve the infringing of rights of the individual. The intention of the legislature to infringe on the rights of the individual in the granting of parole and in setting parole conditions is clear. 41 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court stated that the primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined [at 69] "by reference to the language of the instrument viewed as a whole" (per Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320) and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. The Court said [at 70] that reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" (Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. 42 Section 128 allows for additional conditions to be imposed upon the offender under this section. Section 128A may include certain types of orders namely non-association and place restriction orders. It is not restrictive. S128A specifically addresses the prohibiting or restricting of an offender from associating with a specified person or prohibiting or restricting the offender from frequently or visiting a specified place or district. Section 128A(3) provides for the situation where the offender unintentionally finds himself or herself in the association of a prohibited person. 43 The reading speeches make it clear that it was not Parliament's intention to limit the Parole Authority's power to set these type of conditions, but rather to specifically recognise them and encourage their usage. It is my view that s128A should not be read so as to limit the broad term of s128. It is my view that non-association or place restriction orders can be made under either s128 or s128A. 44 Condition 12 reads that the claimant "shall not associate with the Harness and Racing Industry, including working and contact with the industry and attendance at race meetings and trials. As to whether or not condition 12 is vague, uncertain by reason of lack of specificity, or unreasonable, it is difficult to envisage how it could be more appropriately articulated. If reference was made to specific times, dates and locations of harness and race meetings and trials and lists of individuals involved with the harness and racing industry, it would be a difficult document to comprehend, especially when alterations were to be made when race meetings are added, cancelled, rescheduled and the like. The names of individuals with the harness and racing industry would also change. Condition 12 has been in place since 18 June 2004, and aside from one breach by the claimant it has been complied with. 45 The claim for prerogative relief fails. The summons filed 10 August 2006 is dismissed. Costs are discretionary. The Plaintiff sought an order that each party pay its own costs. The Attorney General sought its costs. 46 The Parole Board elected to hold a further hearing after this summons and submissions were filed. The appropriate order for costs, in my view, is that each party pay his/its own costs. The Court orders: (1) The Summons filed 10 August 2006 is dismissed. (2) Each party pay his/its own costs. I certify that this and the 15 preceding pages are a true copy of the reasons for judgment of Associate Justice Harrison. Dated: Thursday, 5 April 2007 Associate - 16 - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.