1. law, govt and politics

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IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Not Restricted
S CI 2015 01272 and S CI 2015 1280
JAMES YOXON
Applicant
v
SECRETARY TO THE DEPARTMENT OF
JUSTICE
Respondent
- and JAMES YOXON
Applicant
v
THE ADULT PAROLE BOARD
Respondent
---
JUDGE:
T FORREST J
WHERE HELD:
Melbourne
DATE OF HEARING:
26 March 2015
DATE OF RULING:
2 April 2015
CASE MAY BE CITED AS:
Yoxon v Secretary to the Department of Justice; Yoxon
v Adult Parole Board
MEDIUM NEUTRAL CITATION:
[2015] VSC 124
--HABEAS CORPUS – Decision by the Adult Parole Board to cancel parole – Whether Board
empowered to cancel parole on the basis that the applicant had breached a term or
condition of his parole, by committing criminal offence, on mere suspicion that that offence
had been committed – Whether finding that applicant had committed a criminal offence
reasonably open in the circumstances – Whether Board did not, as a matter of fact, find that
the applicant had committed a criminal offence – Court ordered the release of the applicant
forthwith.
--APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr C. Boyce SC with
Ms G. Connelly
Grigor Lawyers
For the Respondents
Mr P. Hanks QC
Victorian Government
Solicitor’s Office
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JUDGMENT
Yoxon v Secretary to the Department of Health
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HIS HONOUR:
1) Introduction
1
On 26 November 2014 Mr Yoxon, who was then on parole, was arrested and
interviewed on suspicion of involvement in the trafficking of the drug
methamphetamine. Ultimately, at some time on 27 November 2014, the Adult Parole
Board (‘the Board’) determined to cancel Mr Yoxon’s parole. It is said that the basis
for that determination was that Mr Yoxon had breached a term or condition of his
parole when he had committed a criminal offence and that he was, as a result, an
unacceptable risk to himself and the community.
2
Mr Yoxon has not, at the time of writing, been charged with any offence allegedly
committed during the relevant parole period. He is not, therefore, detained in
custody on remand for such an offence; his continued detention is said to be justified
on the basis that he is, as a result of the cancellation, serving the balance of the
sentence owing on the date that he was paroled.
3
In two proceedings, brought pursuant to Orders 56 and 57 of the Supreme Court
(General Civil Procedure) Rules 2005 (‘the Rules’), the applicant now impugns the
cancellation. In the Order 56 proceeding Mr Yoxon seeks, inter alia, an order in the
nature of certiorari quashing the cancellation; in the Order 57 proceeding he seeks
the issue of a writ of habeas corpus or, alternatively, an order directing the Secretary
to the Department of Justice (‘the Secretary’) to release Mr Yoxon.
4
At the conclusion of the hearing of the applications, the surviving1 ground for relief
was that the Board fell into jurisdictional error when it purported to cancel Mr
Yoxon’s parole on the basis that he had breached a term or condition of that parole,
in circumstances where such a finding was not reasonably open, or where, as a
matter of fact, the Board simply had not made such a finding. Although Order 56
proceedings are concerned, generally, with the lawfulness of administrative action
1
Two further grounds set out in the applicant’s Originating Motion, dated 20 March 2015, filed in the
Order 56 proceeding, were abandoned during the hearing.
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JUDGMENT
Yoxon v Secretary to the Department of Health
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and Order 57 proceedings, specifically, with the lawfulness of restraints on liberty,
that ground is common between the two proceedings. This is because, as I have said,
the decision to cancel provides at present the only lawful basis for the applicant’s
continued detention.
2) Factual Background
5
On 6 October 2010 Mr Yoxon was convicted and sentenced for the offences of
aggravated burglary, intentionally causing serious injury and making a threat to
inflict serious injury, having previously entered a plea of guilty to each charge. The
sentencing judge imposed a total effective sentence of 4 years’ 7 months’
imprisonment, with a non-parole period of 2 years 4 months. 2 371 days were
reckoned as served against that sentence by way of pre-sentence detention.3
6
After an unsuccessful parole in early 2012, Mr Yoxon was for the second time
released on parole on 27 November 2012. All parties are now agreed that at that time
Mr Yoxon owed 731 days against his sentence; that is, he owed 2 years and one day.
7
On 1 July 2014, the Act and the Corrections Regulations 2009 (Vic) (‘the Regulations’)
were amended to incorporate a suite of mandatory terms and conditions for parole .4
In anticipation of that amendment, the Board determined to vary the terms and
conditions of Mr Yoxon’s parole order, with effect from 1 July. 5 From that date, the
first term and condition of Mr Yoxon’s parole order was,
You must not break any law.6
a) The Cancellation of Parole
8
Two years after the grant of parole, on 26 November 2014, Mr Yoxon was arrested
and interviewed in relation to the trafficking of the drug methamphetamine. The
2
3
4
5
6
Affidavit of Jacob Michael Slucki, dated 20 March 2015, Exh JMS-1: ‘Reasons for Sentence’; Exh JMS-2:
‘Record of Orders for Sentence’ (‘The Slucki Affidavit’).
Ibid.
Corrections Regulations 2009, reg 83A.
Affidavit of Stuart Kipling Ward, dated 26 March 2014, [29] (‘The Ward Affidavit’).
Ibid, Exh SW-3: ‘Varied Parole Order dated 5 June 2014.
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JUDGMENT
Yoxon v Secretary to the Department of Health
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police detained Mr Yoxon without charge 7 and advised the Board, by notice, of the
arrest and detention.8 That notice recorded two alleged offences (‘Possess Drug of
Dependence’ and ‘Possess proceeds of Crime’) and the following condition breach:
‘Condition 1 – do not break the law by an offence punishable by imprisonment.’ 9 The
Board ordered that Mr Yoxon be detained in a prison or police gaol, pending the
consideration by the Board of the breach of the relevant term or condition.10
9
The following day, on 27 November, the Board met to consider Mr Yoxon’s parole
circumstances. It was in receipt of a ‘Special Report’ from Community Correctional
Services, Frankston, ‘concerning the alleged breach of a term and condition by Mr
Yoxon of his conduct that was the subject of the police investigation.’ The Special
Report recorded no breaches of Mr Yoxon’s parole conditions, it continued :
Mr Yoxon has been investigated by Victoria Police for his possible
involvement in trafficking illicit substances. If charged and found guilty of
these offences, it will constitute a breach of his parole. It is known, as selfreported by Mr Yoxon, that he has booked flights with the intention of
leaving Victoria on 28/11/2014, it appears that he is a flight risk. In light of
the aforementioned, it is respectfully recommended that his parole be
cancelled and that he be returned to custody. When the exact charges are
known, a Further Offences report will be submitted to the Board. 11
10
The Board determined to cancel Mr Yoxon’s parole and issued a warrant for his
apprehension and return to prison. 12
b) Subsequent Correspondence
11
The subsequent correspondence is significant for two reasons. First, it contains the
Board’s statement of its reasons for the cancellation. Secondly, Mr Yoxon submitted
that in more than one respect it supports the proposition that the Board was not
satisfied, at the time of the cancellation, that Mr Yoxon had breached his parole by
committing a criminal offence.
7
8
9
10
11
12
Pursuant to s 78B(1) of the Act. I will deal with this and other relevant provisions shortly.
Pursuant to s 78B(3).
The Ward Affidavit, Exh SW-4: ‘Notification to Adult Parole Board of Detention of Parolee’, 1.
Pursuant to s 78C(1)(a); The Ward Affidavit, Exh SW-5: ‘Order to Detain Person under Section
78C(1)(a) of the Corrections Act 1986, dated 26 November 2014.’
The Slucki Affidavit, Exh JMS-6: ‘Special Report of Community Correctional Services, Frankston,
dated 27 November 2014.’
The Ward Affidavit, Exh SW-6: ‘Warrant for Apprehension and Return to Prison.’
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JUDGMENT
Yoxon v Secretary to the Department of Health
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12
By way of reply to an email query, Mr Yoxon’s lawyers were advised on 27
November 2014 that his parole had, that day, been cancelled. 13 Mr Jacob Slucki,
solicitor for Mr Yoxon, wrote, an hour later:
[…]
I kindly request that you provide me with further information on the following:
1) Why Mr Yoxon’s parole has been cancelled;
2) How long Mr Yoxon is now expected to spend in custody, given his parole
period was set to finish at midnight tonight;
3) Whether his time spent on parole will be considered time served pursuant to
s 77C of the Corrections Act;
4) When the Board is next scheduled to meet about Mr Yoxon.
I note that although Mr Yoxon was interviewed by Victoria Police, no cha rges
have been filed against him.
[…]14
13
A response was received, by email, on 12 December 2014:
Dear Mr Slucki,
Thank you for your email dated 27/11/14.I confirm that your client’s parole
order was cancelled on the same day after the Board considered the matters
arising out of his detention pursuant to an earlier decision of the Board relying on
section 78C of the Corrections Act 1986. The Board determined to cancel your
client’s parole order on the basis that he had breached his conditions of parole
and further that he remained an unacceptable risk to the community. As you
have indicated, your client was arrested and detained initially by police on the
basis of information held with regard to his conduct whilst on parole.
To answer your questions numerically:
1) Whilst your client has not yet been charged, the Board considered the matters
before it and considered that he was an unacceptable risk by remaining in the
community;
2) It is not possible at this time to say how long your client will remain in
custody as it is dependent on the outcome of the investigations and any
charges issued against him (and in that case, the outcome of such charges);
3) Once his matters are finalised, your client may make an application to the
Board for consideration of credit for time served whilst on parole;
13
14
The Slucki Affidavit, Exh JMS-7, 1-2.
Ibid, Exh JMS-8, 1.
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JUDGMENT
Yoxon v Secretary to the Department of Health
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4) The Board will await receipt of further information before it considers your
client’s case.
I will arrange for your email to be placed on the Board’s file.
Regards,
Adult Parole Board of Victoria. 15
14
On 16 January Grigor Lawyers requested an explanation for the delay in Mr Yoxon’s
parole determination. By email of 4 February, the Board replied:
[… ]
The Board has considered James’ matter on 14 January 2015 and noted that he
has outstanding charges listed and at the conclusion of the hearing, the decision
is ‘Await Result’. The Board reviewed James’ case again on 22 January 2015 and
the decision is ‘Previous decision to stand – Await Result’.
Once the outstanding matters are finalised, a Result and Recommendation Report
will be prepared by a Community Corrections Officer. The report will provide
the Board with an outcome to the outstanding matters and the author will make
recommendations about James’ suitability for re-parole. When the report is filed,
the Board will review James’ case and he will be notified of the outcome in
writing.
I will arrange for your email to be placed on the Board file. 16
15
By letter of 16 March 2015, Grigor Lawyer’s requested reasons for the cancellation,
‘[in] keeping with the Board’s requirement to give reasons under sectio n 74(8) of the
Corrections Act’ and that the Board inform them of the following:
(i) Precisely when the Board met to cancel our client’s parole;
(ii) Under what power the Board acted so as to cancel our client’s parole;
(iii) The nature and timing of the “earlier decision of the Board relying on section
78C” that is referred to in your email of 12 December 2014;
(iv) What conditions of our client’s parole he has breached and the facts founding
this breach; and,
(v) The basis upon which our client was held by the Board to constitute an
“unacceptable risk to the community”. 17
16
15
16
17
Also that day, Grigor Lawyers received from Mr Yoxon a transcription of a letter
Ibid, Exh JMS-9, 1.
Ibid, Exh JMS-10.
Ibid, Exh JMS-13, 1-2.
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JUDGMENT
Yoxon v Secretary to the Department of Health
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received from the Board on or about 27 November 2014. 18 Neither the Board nor the
Secretary challenged the authenticity of that transcription. The letter began as
follows,
Please find attached a copy of the Adult Parole Board’s cancellation order for
your information, pursuant to section 74(8) of the Corrections Act 1986. 19
17
After setting out relevant dates from his parole history, the transcription continued:
Now the Adult Parole Board cancels the parole order, the Adult Parole Board
being advised that you failed to comply with conditions during the parole period
and you post (sic) a risk to yourself and or to the community.
Dated at Carlton 27/11/14. 20
18
The letter provided no other explanation for the cancellation.
3) Parole and the Cancellation of Parole
19
The Board is established under Division 5 of Part 8 of the Act. It has wide functions
and powers.21 They include the power to order the release of a person on parole at a
time not before the end of the non-parole period.22
20
They also include the power to impose terms and conditions of a parole order and to
vary those terms and conditions. 23 In addition to the conditions imposed by the
Board, all parole orders are subject to the mandatory terms and conditions set out in
the Regulations.24 A prisoner must, during the parole period, comply with the terms
and conditions of the order,25 and it is an offence to breach a term or condition of a
parole order.26
21
Section 78B(1) of the Act countenances the arrest of a person on suspicion of
committing such an offence:
18
19
20
21
22
23
24
25
26
Ibid, [20].
Ibid, Exh JMS-14, 1.
Ibid, Exh JMS-14, 2.
Chimirri v Adult Parole Board [2008] VSC 187, [12] (‘Chimirri’).
Corrections Act 1986 (Vic), s 74(1).
Ibid, s 74(5).
Ibid, s 74(4).
Ibid, s 74(7).
Ibid, s 78A.
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JUDGMENT
Yoxon v Secretary to the Department of Health
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(1) A police officer may, without warrant, arrest a prisoner released under
a parole order if he or she suspects on reasonable grounds that the
prisoner has committed an offence against section 78A.
22
Further subsections permit the detention, by police, of a person who is arrested
under sub-s (1). Subsection (2) provides for a power to detain. The relevant
subsection, in this case, is, however, sub-s (3):
(3) A prisoner who is arrested under subsection (1), or under any power
of arrest that a police officer has under any Act or law if the
prisoner is suspected on reasonable grounds of committing an
offence against section 78A, must be detained in custody if the
alleged breach of a term or condition of the parole order is—
23
(a)
the commission of an offence punishable by imprisonment,
other than an offence against section 78A; or
(b)
a breach of a term or condition of the parole order that is
prescribed for the purposes of this section.
If the prisoner is detained under either sub-s (2) or (3) the police officer who arrested
the prisoner must, pursuant to s 78B(4) cause the Board to be notified of the
detention not more than 12 hours after the arrest of the prisoner. It was a notice of
this variety that I described at [8], above.
24
As I have said, upon receipt of the notice on 26 November, the Board proceeded to
order the detention of the applicant pending its consideration of the breach of the
term or condition. This power is contained at s 78C, and is triggered by a s 78B(4)
notification:
(1)
As soon as reasonably practicable after being notified under sectio n
78B(4) of the detention of a prisoner, the Board must by instrument
order that—
(a)
the prisoner be detained in a prison or a police gaol pending
consideration by the Board of the breach of the term or
condition of the prisoner's parole order; or
(b)
the prisoner cease to be detained under section 78B(2) or (3).
[… ]
(3)
If an order has been made under subsection (1)(a), the Board must consider
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JUDGMENT
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the breach of the term or condition of the prisoner's parole order under this
Division as soon as practicable after it is notified of the detention of the prisoner.
25
This final subsection does not, in my view, countenance the abstract or theoretical
consideration of the breach of the term or condition; plainly it calls for consideration
by the Board of whether or not it ought exercise its power to cancel parole.
26
27
Section 77(1) of the Act provides for that power to cancel parole:
77
Cancellation of Parole
(1)
Subject to this section, if a prisoner is released on parole the Board
may, at any time before the end of the parole period, by order
cancel the parole.
That provision is followed by a set of subsections that oblige the Board, in certain
circumstances, to consider whether it ought cancel parole and, in others, to cancel
parole. Although none of those provisions applied to the cancellation in this case,
they are indirectly relevant to matters of construction which were raised by the
parties in submissions. I set out those provisions.
(2)
Subject to subsection (3), the Board must consider whether to cancel
the parole or to vary the terms and conditions of the parole of a
prisoner who is charged, while on parole, with an offence that—
(a) is punishable by imprisonment; and
(b) is alleged to have been committed during the parole period.
[… ]
(4)
Subject to subsections (5) and (6), the Board must consider whether to
cancel the parole or to vary the terms and conditions of the parole
of a prisoner who is convicted, while on parole, of an offence that—
(a) is punishable by imprisonment; and
(b) was committed during the parole period.
(5)
Subject to subsection (6), the Board must determine under subsection
(4) to cancel the parole of the prisoner unless the Board is satisfied
that circumstances exist that justify the continuation of the parole.
(6A) If a prisoner is sentenced to another prison sentence while on parole,
the prisoner's parole is taken to have been cancelled on the sentence
being imposed.
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JUDGMENT
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(7)
28
If the prisoner is sentenced to another prison sentence in respect of
one or more offences committed during the parole period, whether
in Victoria or elsewhere, the Board may by order cancel the
prisoner's parole, even though the parole period may already have
elapsed.
If parole is cancelled, or taken to be cancelled, the original warrant to imprison or
other authority for the person’s imprisonment is to be regarded as again in force.27
The default position is that any time spent on parole is not, upon cancellation, to be
regarded as time served.28 The Board may, however, direct that some or all of the
relevant period be regarded as time served in respect of the sentence. 29
29
The Act does, of course, contemplate the successful completion of parole and an
associated discharge from the relevant sentence:
76 Persons on parole deemed still under sentence
If in relation to a prisoner the parole period elapses without the
making by the Board of an order cancelling the parole or the
commission by the prisoner, whether in Victoria or elsewhere, of an
offence for which the prisoner is sentenced to imprisonment (whether
during or after the parole period), the prisoner is to be regarded as
having served a prison sentence and is to be wholly discharged from
the sentence, but until the parole period so elapses or until the prisoner
is otherwise discharged from the prison sentence the person released
on parole is to be regarded as being still under sentence.
30
Finally, as soon as possible after making a determination cancelling a parole order
the Board must give a copy of the determination to the prisoner including the
reasons for the determination. 30
4) Habeas Corpus
a) General principles
31
The writ of Habeas Corpus compels the custodian of a person whose liberty is
restrained to produce that person to the issuing Court so that it may determine the
27
28
29
30
Ibid,
Ibid,
Ibid,
Ibid,
s 77B(2)(a).
s 77B(2)(b).
s 77C.
s 74(8).
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JUDGMENT
Yoxon v Secretary to the Department of Health
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legality of the restraint. In this case the application is brought against the Secretary to
the Department of Justice: section 6A of the Corrections Act provides that once an
order of imprisonment is made in relation to a person and that person is taken into
physical custody, he or she is deemed to enter the legal custody of the Secretary.31
32
On a successful application the Court may Order that the writ shall issue, or ‘order
that the person restrained be released’. 32 In appropriate cases, therefore, a court can
determine the legality of the restraint at the application stage, rather than upon
return of the writ.33
b) Onus and standard of proof
33
Every imprisonment is prima facie illegal at common law. 34 In general terms, the
principle that follows from this is that the burden of justifying the detentio n falls to
the respondent party.35 In reality, the issue of burden is a complicated one because it
shifts between the parties as the application proceeds.
34
The applicant carries the burden of establishing the fact of the restraint.36 In this case,
the application has proceeded inter partes and the respondent concedes the fact of
detention.
35
Once the restraint is established the application shifts into a second phase and it falls
to the respondent to justify the restraint by showing the legal authority which lies
behind it.37 In this case, the justification offered for Mr Yoxon’s detention is that his
31
32
33
34
35
36
37
See, Mercorella v The Secretary to the Department of Justice [2015] VSC 18, 3 [12].
Supreme Court (General Civil Procedure) Rules 2005, r 57.03(1)(b).
See, for example, Antunovic v Dawson [2010] VSC 377, 54 [186]-[187].
Antunovic v Dawson [2010] VSC 377, 33 [118]; Hicks v Ruddock (2007) 156 FCR 574, [53] (Tamberlin J);
Ruddock v Vadarlis (2001) 110 FCR 491, [73] (Black CJ); Chu Kheng Lim v Minister for Immigration Local
Government and Ethnic Affairs (1992) 176 CLR 1, 13 (Mason CJ), 19 (Brennan, Deane and Dawson JJ)
and 63 (McHugh J); R v Secretary of State for the Home Department; Ex parte Khawaja [1984] AC 74, 110
and 112-114 (Lord Scarman) and 122-123 (Lord Bridge of Harwich); Liversidge v Anderson [1942] AC
206, 245 (Lord Aitkin) (‘Liversidge’).
R v Governor of Metropolitan Gaol; Ex Parte Di Nardo [1963] VR 61, 62 (Sholl J): ‘[…] the onus is on the
respondent, who admits that he holds the applicant in custody, to justify his detention. This being a
free country, every person is presumed entitled to personal freedom of body unless some reason is
made to appear to the satisfaction of the court why he is lawfully deprived of that freedom.’; R v
Davey & Ors; Ex Parte Free (1936) 56 CLR 381, 385 (Evatt J).
Opinion on the Writ of Habeas Corpus (1758) Wilm 77, 82-94.
Above n 37; Aronson and Groves refer to this as the ‘show cause’ phase of the application: Mark
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JUDGMENT
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parole order was purportedly cancelled, under s 77(1), with the purported
consequence the original authority for his imprisonment, the sentence of 6 October
2010, was revived. Documentary evidence which supports this justification includes,
but is not limited to, the record of orders made in the criminal jurisdiction of the
County Court, on 6 October 2010, and the warrant for Mr Yoxon’s apprehension and
return to prison, issued by the Board on 27 November 2014.
36
Where the fact of the restraint is proved, and the respondent offers no justification
for that restraint, the application will succeed. The more complicated case is one in
which the respondent produces some documentation to support the restraint but the
applicant challenges the validity of the act or decision justifying it. Although it is still
true to say that the respondent bears the legal onus of proof, the applicant will in
such a case carry an initial, evidentiary, burden.
37
In Greene v Secretary of State for Home Affairs38 the applicant alleged that the Home
Secretary had ordered his detention in bad faith, or without believing an allegation
of ‘hostile relations’ which had been made against him and which provided the
putative basis for his detention.39 The applicant failed to adduce any evidence which
tended to prove either scenario. Lord Wright held, dismissing the application, that,
[The order for detention] is good on its face unless and until it is
falsified… [The Home Secretary’s] statement would have been enough,
at least in the first instance and until it appeared to the court that
sufficient reason was shown to question it… Until there emerges a
dispute of fact into which the court feels it should enquire, I think the
defendant’s statement is enough.40
38
Provided the applicant satisfies this initial evidentiary burden, the onus will, as I
have said, shift absolutely to the respondent. As the Full Court of the Supreme Court
of Western Australia observed in Dien v Manager of the Immigration Detention Centre,41
The writ of habeas corpus will issue to determine whether statutory
conditions which regulate or define the power to detain a person have
38
39
40
41
Aronson and Matthew Groves, Judicial Review of Administrative Action (5th ed, 2009), 864 [14.110].
[1942] AC 284.
Ibid, 284-286.
Ibid, 306.
(1993) 115 FLR 416 (‘Dien’).
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been complied with: R v Governor of Brixton Prison, Ex parte Ahsan
[1969] 2 QB 222.The applicant carries an initial burden of showing a
prima facie case that the detention was unlawful. Upon this being
shown the burden of proof is then cast on the authority detaining the
applicant to prove any fact prescribed by the statute as a condition of
the power of detention: R v Governor of Brixton Prison, Ex parte Ahsan,
above; R v Home Secretary, Ex parte Khawaja [1984] AC 74 at 110-112 per
Lord Scarman.42
39
R v Governor of Brixton Prison; Ex Parte Ahsan 43 is, as the Full Court observed, an
earlier English authority for that principle. 44 In that case, the applicants gave highly
unreliable evidence that tended to prove the absence of an essential condition to the
valid exercise of the relevant power of detention. Although the applicants were
unable to prove that matter to the Court’s satisfaction, having raised it by their
testimony it fell to the respondents to negative the applicants’ account.45 This was,
the Court held, consistent with the notion that all detentions are prima facie illegal.46
The onus as stated is also consistent with the principle that, whilst there is ordinarily
a presumption of the regularity of official acts, there ‘is no room for presumptions in
favour of the executive where the liberty of the subject is concerned.’ 47
40
Finally, the relevant standard of proof is the civil standard, although it ‘requires a
degree of probability which is commensurate with the occasion.’48 Because ‘the
liberty of the applicant is at stake the issue is sufficiently grave to require strong,
clear and cogent evidence.’49
c) The mechanics of this application
41
Before I turn to submissions, I should briefly say something about the mechanics of
this application. As I have said, the effect of the cancellation of Mr Yoxon’s parole
was that on 27 November 2014 the original authority for his imprisonment, the
42
43
44
45
46
47
48
49
Ibid, 418-419.
[1969] 2 QB 222 (‘Ex Parte Ahsan’).
Others include, R v Secretary of State for the Home Department; Ex parte Khawaja [1984] AC 74, 123 (Lord
Scarman); R v. Governor of Pentonville Prison, Ex parte Azam [1974] A.C. 18, 32-33.
Ex Parte Ahsan [1969] 2 QB 222, 233-235 (Lord Parker CJ), 248 (Blain J).
Ex Parte Ahsan [1969] 2 QB 222, 241 (Blain J).
Schieske v Federal Republic of Germany (1987) 91 ALR 215, 223.
R v Secretary of State for the Home Department; Ex parte Khawaja [1984] AC 74, 110-112 (Lord Scarman).
Dien (1993) 115 FLR 416; Ibid.
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sentence of 6 October 2010, was regarded as again in force. 50 Because, the default
position is that any time spent on parole is not, upon cancellation, to be regarded as
time served,51 and because the Board has not directed otherwise, 52 Mr Yoxon is
presently serving the balance of the sentence owed on the date of his parol e, 26
November 2012.
42
At its most basic, the ground to which I will shortly turn is that the Board cancelled
parole when it did not, in the circumstances, have the power to do so; in other
words, it is said the decision is vitiated by jurisdictional error. Habeas Corpus would
plainly be available as a remedy in these circumstances because a determination to
cancel parole that was vitiated by jurisdictional error would be invalid and of no
effect53 and could not have revived the original authority for Mr Yoxon’s
imprisonment;54 there would, therefore, be no lawful basis for his continued
detention. Although certiorari might theoretically also go to quash an invalid
exercise of the power to cancel, it would in this case be unnecessary.
5) Submissions
43
I have said that the surviving ground on these applications is that the Board fell into
jurisdictional error when it purported to cancel Mr Yoxon’s parole on the basis that
he had breached a term or condition of that parole, in circumstances where such a
finding was not reasonably open, or where, as a matter of fact, the Board simply had
not made such a finding. The respondent’s ultimate contention was, a) that it was
open on the information before the Board for it to conclude that there had been a
breach, b) that it had been so satisfied, and c) that, in any event, a reasonable
suspicion that a person had committed an offence was sufficient to found the power
to cancel for breach.
50
51
52
53
54
Ibid, s 77B(2)(a).
Ibid, s 77B(2)(b).
Ibid, s 77C.
Minister for Immigration and Multicultural Affairs v Bha rdwaj (2002) 209 CLR 597, 614-615 [51]
(Gaudron and Gummow JJ): ‘A decision that involves jurisdictional error is a decision that lacks legal
foundation and is properly regarded, in law, as no decision at all’; Plaintiff S157/2002 v
Commonwealth (2003) 211 CLR 476, 506 [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
Under s 77B(2)
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44
The logical starting point for Mr Yoxon’s submissions is with the legal proposition
that the Parole Board did not have the power to cancel parole because it was not
satisfied that there had been a breach of a term or condition of parole. In this case,
where such breach could only have consisted of a failure to abstain from breaking
the law, the argument was that the Board’s valid exercise of the power was
conditional upon its satisfaction that Mr Yoxon had committed a criminal offence.
45
First, Mr Boyce SC, who appeared for Mr Yoxon, submitted that s 78C was in this
case the gateway to the Board’s consideration of its powers under s 77(1). Because s
78C(3) required the Board to consider the breach, it followed as a matter of logic that
the Board was required to satisfy itself that that breach had occurred. In answer to
the respondent’s submission that the phrase ‘suspected’ or ‘alleged’ breach ought be
read into the section, Mr Boyce submitted that, unlike other provisions of Part 8
which deal with the same subject matter, s 78C does not use that language; the
respondents’ proposed construction was, it followed, contrary to the longstanding
principle that penal statutes ought be read strictly, and in favour of those whose
liberty they would curtail.
46
Second, and in the event that I found that the Board had approached s 77(1)
independently of s 78C, Mr Boyce submitted I ought reject the proposition that a
suspicion of breach, albeit one based on reasonable grounds, might ever be sufficient
to cancel parole. Such an approach, Mr Boyce submitted, would abrogate from Mr
Yoxon’s right to liberty and freedom from arbitrary detention, which are enshrined
in s 21 of the Charter of Human Rights and Responsibility Act 2006 (‘the Charter’), and
that s 32(1) required s 77(1) of the Act to be read down accordingly. Furthe r, Mr
Boyce argued that the respondents’ preferred interpretation would potentially enlist
a judicial officer to act in a manner antithetical to his or her proper role as an officer
of this Court. The respondent’s took issue with each of these propositions although
for reasons that will become apparent, it is unnecessary to set out these submissions
in any detail.
47
Finally, and assuming I accepted the first and/or second submission of law, Mr
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Boyce argued that it had not been open to the Board to conclude, on the information
before it, that Mr Yoxon had committed a criminal offence. I will return to this
submission below, but it suffices at this juncture to say that the respondents
submitted to the contrary. Further and in the alternative, Mr Boyce submitted that
the subsequent correspondence demonstrated that the Board had not, as a matter of
fact, found that Mr Yoxon had committed a criminal offence. I did not understand
this submission to involve an allegation of dishonesty; rather, I took Mr Boyce to
submit that this correspondence indicated that the Board considered something less
than a finding of criminal activity was required (by the Board) before they could
cancel parole on that basis.
6) Conclusion
48
It is not necessary to determine whether there is a general power, under s 77(1), to
cancel a parole order on the basis of a suspected breach of a term or condition of
parole. That is because, in this case, the Board cancelled parole on the basis that Mr
Yoxon had breached a term or condition of his parole and referred, specifically, to
the terms of s 78C. Mr Hanks accepted, during oral submissions, that the secondary
basis for cancellation, which was that Mr Yoxon was an unacceptable risk, had to be
dependent, factually, on the first. 55 The upshot of this is that I find that the Board did
approach s 77(1) through the gateway of s 78C(3), and did not, as the respondents
suggested, cancel parole independently of that section.
49
If the Board is to cancel a prisoner’s parole on the basis of its consideration of a
breach of a term or condition of the relevant parole order it must first form a state of
mind as to the existence of the breach; if the breach is constituted by the commission
of a criminal offence, then the Parole Board must form a state of mind as to the
commission of that offence. This is, in my view, common sense.
50
Where the exercise of the power is triggered by the consideration of a breach of a
term or condition of the parole order under s 78C of the Act, and exercised solely on
55
T 33/11-20.
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the basis of that consideration,56 I do not accept that mere suspicion (albeit one
based on reasonable grounds) is a state of mind sufficient to enliven the power to
cancel parole; the Board must find, to its own satisfaction, that the breach has
occurred.
51
Three features of the relevant statutory context weigh in favour of this conclusion.
First, in ss 78B(1), (2), (3) the language of suspicion is used – in the ordinary way – to
qualify the state of mind upon which a police officer’s power of arrest is conditioned.
The same or similar language is noticeably absent from s 78C(3). Second, requiring
the Board to be satisfied that the offence has occurred would not lead to absurd
results, or be inconsistent with the text and purpose of the Act. This is particularly so
when one considers the fact that the Board need not satisfy itself to the criminal
standard or according to the laws of evidence. 57 Third, as Mr Boyce submitted, this is
a penal statute and any ambiguity should be resolved in favour of the liberty of the
subject.58
52
If a Board satisfies itself that the offence has occurred, it is not for a reviewing court
to cavel with that Board’s finding, the weight ascribed to relevant evidence, or
inferences drawn from that evidence. 59 Any finding must, however, be reasonably
open in the sense that it is supported by at least some evidence.60 If it is not, the
determination will almost certainly be unreasonable in the manner contemplated by
the High Court in Minister for Immigration v Li.61
a) Was the finding that Mr Yoxon had committed a criminal offence reasonably open?
53
In addition to the Community Corrections Report, the Board had in its possession at
the time of the determination a copy of a police summary of the alleged offending.
As I have said, the Board was entitled to rely upon that document as proof of its
56
57
58
59
60
61
Or on another factually dependent basis.
See, for a discussion of analogous under cl 8(1)(g) of sch 2 to the Broadcasting Services Act 1992 (Cth),
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, 19 [49].
Beckwith v The Queen (1976) 135 CLR 569. See, also, Mercorella [2015] VSC 18, 11 [41].
Chimirri [2008] VSC 187, [24]. Kola v Parole Board of South Australia [2004] SASC 423, [23]-[24].
Australian Broadcasting Authority v Bond (1990) 170 CLR 321, 356.
(2013) 249 CLR 332, 366 (Hayne, Kiefel and Bell JJ).
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contents. Relevantly, it included the following assertions:
 On 19 November 2014 police observed Mr Yoxon attend the Goodlife gym in
Chelsea Heights.
 While there, Mr Yoxon met another person (person ‘X’) in a carpark area. Mr
Yoxon and X got into their own vehicles and departed from the carpark at the
Goodlife gym.
 Police observed the vehicles driving in convoy to the Werribee Shopping
Centre. X’s vehicle was following Mr Yoxon’s vehicle. Police observed X get
out of his vehicle, and return a short time later, while Mr Yoxon remained in
his vehicle.
 Police intercepted both vehicles in the Oakleigh area. A search of X’s car
revealed a sealed postage package which contained 2 bottles labelled
‘vampire blood.’ The package was addressed to a parcel locker at the
Werribee Shopping Centre. Mr Yoxon was found to be in possession of $1000
in cash.
 On 24 November 2014 police were advised by qualified chemists at the
Victoria Police Forensic Services Centre that the liquid contained a ‘positive’
result for methylamphetamines.
 On multiple occasions police observed Mr Yoxon attend premises at 34
Huntingdon Avenue.
 On 25 November 2014 police executed a search warrant at these premises and
located ‘a large quantity of scientific glassware, consistent with a clan lab’,
assorted pre-cursor chemicals and various documents which detailed
recipes/instructions for the manufacture of amphetamine type substances.
 On 26 November 2014 police executed a search warrant at Mr Yoxon’s home.
Police seized a large number of items including mobile phones/lap tops, cash
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and various other documents. Mr Yoxon was arrested, conveyed to St Kilda
Road Police Station, and made a no comment interview.
54
I am satisfied that it was reasonably open to the Board to conclude on that basis that
Mr Yoxon had breached a term or condition of his parole by committing a criminal
offence. Although police intended to release Mr Yoxon pending further forensic
analysis, nothing in the police report indicates or necessarily implies that the initial
analysis was defective or unreliable, and I consider that the Board was entitled to
rely upon it. I consider that it was reasonably open to infer from Mr Yoxon’s known
association with the premises at 24 Huntingdon Avenue, the results of the search of
those premises, and the cash (and other valuable items) found in his possession on
19 and 26 November 2014, that Mr Yoxon was involved in drug activity of some
variety.62 It would be a short step, in my view, to then conclude that the events of 19
November 2014, specifically, were embraced by that drug activity, and that Mr
Yoxon and X had been acting according to an agreement to import or otherwise
obtain the substance later found to be methamphetamine.
55
I accept that the Board could never have excluded all reasonable hypotheses
consistent with Mr Yoxon’s innocence. As I have said, however, they were not
obliged to do so.
b) Did the Board find that Mr Yoxon had committed a criminal offence?
56
The Board’s reasons were essentially neutral on this question: in the letter to Mr
Yoxon dated 27 November 2014, the reason for the cancellation was that the Board
had been ‘advised that [he had] failed to comply with conditions during the parole
period’; in the email to Grigor Lawyers of 12 December 2014, the Board explained
that it had cancelled Mr Yoxon’s ‘parole order on the basis that he had breached his
conditions of parole’. In neither case did the Board state that it was satisfied that Mr
Yoxon had committed a criminal offence, capable of breaching his parole, as
62
I also consider that the Board would have been entitled to infer from this factual matrix that the large
amounts of cash (and other valuable items) to which I have referred were the proceeds of crime.
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opposed to merely suspecting him of committing such an offence. 63 It is not, in my
view, fanciful to suppose that the Board had reasoned in this latter, impermissible
way, given the terms of the recommendation contained in the Community
Corrections Report of 26 November. 64
57
To positively establish the absence of a finding of criminal activity, Mr Boyce also set
out to demonstrate an inconsistency between such a finding and statements
subsequently made by the Board in their correspondence with Mr Yoxon and his
lawyers. Mr Boyce took me, specifically, to the second question in the email from
Grigor Lawyers of 27 November and the associated answer in the Board’s email of
12 December. What Mr Boyce argued was that because the Board had stated that Mr
Yoxon’s time in custody would be dependent upon the outcome of investigations, it
necessarily followed that the Board was not, to its own mind, satisfied that the
Applicant had committed an offence – it was, he said, equivocating. The argument
was developed, factually, by reference to the ‘await result’ determinati on of 22
January 2015.
58
I am not satisfied that this correspondence is necessarily inconsistent with a finding,
at the time of the determination, that an offence had been committed because it is
capable of other, innocuous, explanations. 65 I am, however, satisfied that in
combination with the terms of the Community Corrections Report, which was,
significantly, a ‘recommendation’, this material is sufficient to discharge the
applicant’s evidentiary burden. In other words (or those of Lord Wright in Greene),
there emerges from this material a dispute of fact into which this Court can and
should enter. It follows that the burden of proving that the Board was satisfied, at
the time of the determination, that a criminal offence had been committed shifts to
63
64
65
Or, in the case of the letter of 27 November, adopting the suspicions of the police.
I have set out this recommendation in [9] of these reasons.
The Board might have been explaining, for example, that although it was satisfied at the time of the
determination that an offence had been committed it was not able to say what the nature or extent of
Mr Yoxon’s involvement in that offending was, predict any resulting charges, anticipate plea
bargaining on those charges or, assuming there was a conviction and Mr Yoxon fell to be resentenced,
say what the length of any new, global, non-parole period would be. Each of these considerations
would, in my view, be relevant to the question of Mr Yoxon’s re-parole. They would also be relevant
to the issue of whether and to what extent Mr Yoxon ought be credited for the time he had spent on
parole.
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the Secretary.
59
In my view the Secretary has not established, to a standard commensurate with the
occasion, that the Board was positively satisfied that Mr Yoxon had committed a
criminal offence. They may have been; or they may simply have suspected that he
had committed such an offence. As I have said I regard the correspondence that I
have reviewed at [58] and [59] equivocal in this regard. I do not regard Mr Ward’s
assertion66 that ‘the Board was of the view that Mr Yoxon had breached a term and
condition of his parole, and that there was an unacceptable risk to the community’ as
saying any more than the earlier emails of 27 November 2014 and 12 December 2014.
Specifically, Mr Ward did not address the underlying question of whether the
Board’s conclusion that Mr Yoxon had breached his parole was based on a positive
finding that he had committed an offence, or a suspicion that he may have. In other
words the respondent has failed to demonstrate by ‘strong, clear and cogent’
evidence that the Board was positively satisfied that Mr Yoxon had committed a
criminal offence. The point is moot.
60
This conclusion means that I must allow the Order 57 application but dismiss the O
56 application. Before I turn to the wording of the orders that will follow upon this
conclusion I wish to make two further observations. First, should it be that Mr Yoxon
is successfully prosecuted and imprisoned for the impugned conduct (or any other
conduct occurring during his parole period) then the Board will be empowered to
reclaim him and may require him to serve out the balance of his sentence.
61
Second, this case illustrates the importance of the adequacy of reasons for
administrative decisions by bodies who are required, by law, to give them. To my
mind, there is a lingering question in this case as to the adequacy of the reasons.
This, obviously, has a factual component; but it is also a matter of law – there is, as
far as I am aware, no authority setting out the standard required of the reasons given
by a Parole Board cancelling parole. If that standard were the same or substantially
similar to the standard required, for example, by a Medical Panel in cases such as
66
The Ward Affidavit, [40].
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Wingfoot Australia Partners Pty Ltd v Kocak,67 there would be an arguable case that the
Board had not complied with that standard. Assuming for a moment that the Board
had complied with that standard, and assuming that the cancellation was lawful, the
Secretary would have had to go no further than the Reasons to establish the
lawfulness of the cancellation: a finding that Mr Yoxon had committed a criminal
offence would have been a necessary step in the Panel’s reasoning.
62
I will hear the parties on the appropriate form of orders.
67
(2013) 88 ALJR 52: a Medical Panel ‘must explain the actual path of reasoning by which the medical
panel in fact arrived at the opinion […]in sufficient detail to enable a court to see whether the opinion
does or does not involve any error of law.’
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