Blanch v New South Wales State Parole Authority [2014] NSWSC 835

Supreme Court New South Wales

Medium Neutral Citation: Blanch v New South Wales State Parole Authority [2014] NSWSC 835 Hearing dates: 20/06/2014 Decision date: 20 June 2014 Before: Fullerton J Decision: Application dismissed Catchwords: ADMINISTRATIVE LAW - application for direction pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) Cases Cited: Rozynski v Parole Board of NSW [2003] NSWCCA 214 Category: Principal judgment Parties: Peter Blanch (Applicant) New South Wales Parole Authority (1st Respondent) Attorney General of New South Wales (2nd Respondent) Representation: Counsel: In person (Applicant) Submitting appearance (1st Respondent) R Ranken (2nd Respondent) Solicitors: In person (Applicant) Submitting appearance (1st Respondent) Crown Solicitor's Office (2nd Respondent) File Number(s): 2014/20292

Judgment 1HER HONOUR: This is an application (file dated 13 January 2014) brought under s 176 of the Crimes (Administration of Sentences) Act 1999 (NSW) ("the Act"). That section provides that where the Parole Authority revokes a parole order and the offender to whom the parole order relates alleges that the order has been revoked on the basis of false, misleading or irrelevant information, the offender may apply to this Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant. The section also provides for what is meaningfully referred to in the authorities as a "threshold test" such that an application is to be considered if, and only if, the Court is satisfied that the application is not an abuse of process and there appears to be sufficient evidence to support it. 2Mr Blanch appears unrepresented as he has on a number of successive appearances before the Court where directions have been given to allow the application to be heard in accordance with the Rules of Court (see s 176(1) of the Act), in particular in relation to the filing and serving of evidence. Without detailing the course of the proceedings to date, the threshold test now falls to be applied referable to the evidence relied upon by the applicant and the evidence which was filed by the Attorney General under direction of Harrison J. That evidence includes the transcript of proceedings before the Parole Authority and the various memoranda internal to the Department of Community Corrections relating to the revocation of parole. I also read the affidavit of Dale Cameron Byrne affirmed on 24 April 2014, and an affidavit of Robert Allen Cosman affirmed on 17 April 2014. Mr Cosman is the Director and Secretary of the State Parole Authority. Mr Byrne is a Community Corrections Officer at the Grafton Office of Community Corrections. I note that Mr Blanch's supervising officer upon his release to parole on 22 August 2013 was a colleague of Mr Byrne's who was based at the Lismore office of Community Corrections. 3The application is based upon the contention that Mr Byrne lied when he gave evidence before the Parole Authority at a hearing convened on 29 November 2013 when he said that the applicant had admitted to him that he had driven a motor vehicle on a number of occasions whilst on parole despite the fact that he was not licensed to drive. That was referred to in the proceedings before me as the "disqualification lie". 4The applicant also relied upon an additional lie, not particularised in the filed application. That lie related to the extent of contact between Mr Byrne, in his capacity as a Community Corrections Officer, and Peta Newman, the nominated partner of the applicant at whose residence he was to reside as a parolee. The lie was allegedly told in the context of circumstances where Mr Byrne had reason to believe that the applicant either was not residing at the nominated address or where the circumstances in which he was resident at that address could not be verified. The particular lie which Mr Byrne is said to have told the parole authority on this issue was identified by the applicant in paragraph 12 of Mr Byrne's affidavit when he said, "On the morning of 9 October 2013 I received a telephone call from Peta Newman". In that affidavit Mr Byrne went on to depose to the fact that that call prompted him to conduct a routine police check to enquire whether the applicant had come to the attention of police. The police check returned a result for the previous day, 8 October 2013, where police had attended a domestic incident at Ms Newman's residence involving the applicant. It was this information that prompted Mr Byrne to seek to verify whether the applicant was residing at Ms Newman's residence, the approved residence under his conditions of parole. 5The applicant maintains in submissions before me that in a Breach of Parole Update Report dated 23 October 2013 (a report which resulted in the recommendation for a revocation of parole), where Mr Byrne said that "all attempts to contact Ms Newman have been to no avail", he was clearly lying, given that in his affidavit he said he spoke with her on 9 October 2013. I am not satisfied that the two statements are in contradiction, much less that they evidence the telling of a lie or the provision of false or misleading information. To extract one statement from the Breach of Parole Update Report and to attribute to it the character of a lie is to ignore entirely the fact that the report refers in terms to attempts made by Mr Byrne to both speak with Ms Newman at her home on 17 October 2013, and to have her contact the service, such requests being communicated through the applicant himself, but that those attempts did not result in any contact with her. 6In my assessment, despite the applicant's lengthy recounting in the statement tendered in the proceedings before me that he was residing with Ms Newman at all relevant times whilst on parole, there is insufficient evidence to support his claim that Mr Byrne's information to the parole authority concerning that matter was false or misleading in any respect. I note that the proceedings were adjourned before me on the last occasion to allow the applicant the opportunity to obtain evidence in the form of an unsworn statement from Ms Newman, in order that I then might consider an appropriate means by which she might give evidence in the formal sense in support of the application. No statement was furnished and accordingly no evidence was called from her. 7Insofar as the "disqualification lie" is concerned, in addition to the evidence before the Parole Authority from Mr Byrne where he sets out his conversation with the applicant concerning his unlicensed driving or his driving whilst disqualified, and the applicant's evidence denying that conversation, the applicant relies upon his statement tendered on the application in which he said, "I did not break the law in any way whatsoever" (whilst on parole). That material is, in my view, incapable of supporting the proposition that Mr Byrne has given false or misleading information as contended for in the so called "disqualification lie". 8In Rozynski v Parole Board of NSW [2003] NSWCCA 214 at [13] Greg James J makes it clear beyond question that this Court would need to be satisfied on what his Honour described as "appropriate (usually new) evidence" that information supporting a revocation of parole was false or misleading in substance, before a direction under s 176 could be given. It is not sufficient that the information is simply challenged, and even less, if it is incorrect in some detail, without being false or misleading in substance. 9In the result, whilst I am not persuaded that this application is an abuse of process, I am not permitted under the Act to consider the application unless the threshold test of sufficiency is met, and in this case, I am satisfied it is not. 10Accordingly, the application is dismissed.