Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 (3 March 1999)

Last Updated: 3 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86

CURRENT JURISDICTION: Administrative Law

FILE NUMBER(S): 30024/98

HEARING DATE{S): 30/11/98

JUDGMENT DATE: 03/03/1999

PARTIES:

David John Kelleher v Commissioner, Department of Corrective Services

JUDGMENT OF: McInerney J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. M. Thangaraj (Plaintiff)

Ms. R.M. Henderson (Defendant)

SOLICITORS:

I.V. Knight (Defendant)

CATCHWORDS:

ACTS CITED:

DECISION:

Summons dismissed

JUDGMENT:

21

THE SUPREME COURT

OF NEW SOUTH WALES

ADMINISTRATIVE LAW DIVISION

McINERNEY J

Wednesday, 3 March 1999

30024/98 - DAVID JOHN KELLEHER v COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES

JUDGMENT

1 HIS HONOUR: This matter has a long history. The plaintiff, David John Kelleher, is serving a sentence for conspiracy to import heroin. He was originally sentenced to life imprisonment on 21 September 1988. On 18 July 1996 his sentence was redetermined and a non-parole period of 13 years was substituted. He is due for release on parole on 20 September 2001. The head sentence of life imprisonment remains.

2 The plaintiff sought permission from the Department of Corrective Services (the Department) to have certain tattoos removed outside the prison environment. In fact, he had one treatment which resulted in the partial removal of some tattoos and it was anticipated that he would have further treatments. However, after the first treatment, in a policy statement dated October 1997 the Department denied the right of inmates to private medical treatment for removal of tattoos.

3 At about the same time, the plaintiff sought permission to have plastic surgery but that was refused. There was no urgency in either of these procedures which could be performed on his release from prison.

4 By way of Summons filed on 19 March 1998 the plaintiff seeks:

"1(i) A declaration that the prohibition of access by inmates to private medical practitioners for tattoo removal is invalid.

(ii) An order quashing the decision of the defendant to prohibit the plaintiff having his tattoos removed.

(iii) An order that the plaintiff be entitled to complete the tattoo removal procedure.

(iv) Alternatively to (iii), an order that the matter be remitted to the defendant.

2(i) A declaration that the prohibition of access by inmates to private medical practitioners for cosmetic surgery which has no medical need is invalid.

(ii) An order quashing the decision of the defendant to prohibit the plaintiff having the cosmetic surgery.

(iii) An order that the plaintiff be entitled to undergo the cosmetic surgery.

(iv) Alternatively to (iii), an order that the matter be remitted to the defendant.

3(i) An order quashing the decision of the defendant to deny the plaintiff a Metropolitan Warrant.

(ii) An order that the plaintiff be entitled to a Metropolitan Warrant.

(iii) Alternatively to (ii), an order that the matter be remitted to the defendant.

4(i) An order quashing the decision of the defendant to deny the plaintiff a Complex Warrant.

(ii) An order that the plaintiff be entitled to a Complex Warrant.

(iii) Alternatively to (ii), an order that the matter be remitted to the defendant.

5. Such further order as the Court sees fit.

6. Costs.

Outline: The plaintiff seeks relief with respect to four decisions made by the defendant.

1. The plaintiff, after initially being given approval, paid moneys and commenced a medical procedure to remove his tattoos. Subsequently, the defendant decided to disallow the procedure.

2. The plaintiff, after initially being given approval, paid moneys and commenced a medical procedure to have facial cosmetic surgery. Subsequently, the defendant decided to disallow the procedure.

3. The plaintiff sought a Metropolitan Warrant and was strongly supported in his application by, inter alia, the Activities Manager for whom the plaintiff would have been working. This application was refused.

4. The plaintiff sought a Metropolitan Warrant and was again strongly supported in his application. This application was also refused.

Grounds

1(i) The prohibition of access by inmates to private medical practitioners for the purpose of tattoo removal is ultra vires.

(ii) The prohibition was so unreasonable, given, inter alia, the legitimate expectation of the plaintiff to be able to complete the program, that the Court should substitute the decision, or alternatively, quash and remit the matter.

2(i) The prohibition of access by inmates to private medical practitioners for the purpose of cosmetic surgery is ultra vires.

(ii) The prohibition was so unreasonable, given, inter alia, the legitimate expectation of the plaintiff to be able to complete the program, that the Court should substitute the decision, or alternatively, quash and remit the matter.

3. The decision of 19 February 1998 to deny the plaintiff a Metropolitan Warrant was not made on the merits of the case. It was so unreasonable that no reasonable person could have made it. Irrelevant factors, inter alia the life sentence status of the plaintiff, were considered. Relevant factors, inter alia the exemplary record of the plaintiff were not properly considered.

4. The decision in March 1998 to deny the plaintiff a Complex Warrant was not made on the merits of the case. It was so unreasonable that no reasonable person could have made it."

5 This case raises the question of the power of this Court to review administrative decisions of the Commissioner and/or the Department.

6 Whilst it is conceded that prisoners are not barred from seeking judicial review of the decision making powers of correctional authorities under relevant legislation, such review, on the authorities, is clearly limited and very confined. The decisions on this question, however, are not uniform.

7 The Courts in Australia have tended to interpret prison legislation so as to give full scope to the power of correctional authorities to carry out the tasks of prison administration and management without undue influence from the courts. On some occasions the courts have, however, been willing to provide public law remedies and the right of a prisoner to seek judicial review is to be determined by reference to ordinary principles of statutory interpretation.

8 In Flynn v King [1949] HCA 38; (1949) 79 CLR 1 Dixon J said (at 8):

"It is pointed out in the case of Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38 that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer fixed legal rights upon prisoners it would result in applications to the courts by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain. Such a construction of the regulation-making power was plainly never intended by the legislature and should be avoided. An interpretation of the power to make prison regulations and of the regulations made thereunder as directed to discipline and administration and not to the legal rights of prisoners is in my opinion supported by the decision of this Court in Horwitz's case".

9 The implication from a number of cases is that legislation and regulations will only be construed as conferring rights on prisoners where the language of the statute is unambiguous. In Bromley v Dawes (1983) 10 A Crim R 98 at 113 , White J of the South Australian Supreme Court, after referring to the common law rule that a statutory authority empowered to affect the rights of a person is required to grant the person a hearing before exercising the power, commented:

"The presumption in favour of the citizen does not apply in favour of the prisoner, as the cases show. He is deprived of all of a citizen's rights except those which are preserved by the Prisons Act and regulations. There must be clear words, apt words, which preserve those rights".

10 Consequently, where a statute is silent, prisoner rights to seek judicial review have generally been given a restrictive interpretation.

11 The exercise of powers relating to prisoner classification and separation, the transfer from one part of a prison to another, transfers between prisons, conditions on visits or access to certain conditions or facilities such as education, recreation and supply of condoms have all been characterised as administrative and managerial in nature rather then punitive and judicial. Consequently, they have been held not to give rise to any right, interest or legitimate expectation enforceable by judicial review in the ordinary courts. For example, see Smith v Commissioner of Corrective Services (1978) 1 NSWLR 317; Walker v The Queen (1992) 60 A Crim R 463; Gray v The Queen (1990) 45 A Crim R 364; and Prisoners A-XXX inclusive (1935) 38 NSWLR 622.

12 In Vezitis v McGeechan (1974) 1 NSWLR 718 the treatment of a prisoner not in accord with the prison routine and timetable contained within the schedule to the prison regulations was seen by Taylor J as not examinable by the court. He said (at 721):

"In my opinion the management of the gaol and the prisoners therein is given to the Commissioner in very wide terms, and the manner in which he carries out his duties imposed by the section ought not to be examined by this Court unless there a clear infringement of the Act or regulations".

13 It has been said, however, that the approach of Courts has become more interventionist and such decisions as Vezitis must be treated with reserve. In McEvoy v Lobban (1990) 2 QR 235 Macrossan CJ said (at 236):

"The development of principle which may be found in the English cases concerned with the power of the courts to review orders which have been made by prison authorities in respect of alleged offences or breaches of prison disciplinary provisions (decisions culminating in the recent case of Leech v Governor of Parkhurst [1988] UKHL 16; [1988] AC 533) has involved an increased tendency on the part of the courts to undertake judicial review".

14 See also Thomas J (at 242).

15 Leech v Governor of Parkhurst [1988] UKHL 16; [1988] AC 533 is authority for the proposition that a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication and in particular his right of unimpeded access to the courts. In Leech, the prisoner was convicted of an offence and the Deputy Governor of the Prison ordered 28 days loss of remission. The Court held that it had jurisdiction to entertain an application for judicial review of a prison governor's disciplinary action, such action being an essential characteristic of the rights of the subject, whatever his status and however attenuated his rights and liabilities might be in consequence of some punitive or other process, and there was a right of recourse to the courts unless some statute provided otherwise. There was no provision in the Prisons Act 1952, in particular section 4(2), which derogated from that principle in relation to the exercise of the disciplinary powers conferred upon a prison governor. Lord Bridge of Harwich said (at 568):

"I cannot help reflecting, in conclusion, that it would be a very remarkable state of affairs if he were denied access to the courts to challenge the proceedings of an inferior judicial authority empowered, in effect, to deprive him of liberty by extending the term of his imprisonment".

That situation is far removed from this case.

16 In Raymond v Honey (1982) 1 All ER 756 Lord Bridge of Harwich said (at 762):

"I gratefully adopt the summary of the fats set out in the speech of my noble and learned friend Lord Wilberforce and his statement of the two basic principles to be applied: first, that any act done which is calculated to obstruct or interfere with the due course of justice, or the lawful process of the courts, is a contempt of court; second, that a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. To these I would add a third principle, equally basic, that a citizen's right to unimpeded access to the courts can only be taken away by express enactment".

Again, a very different situation to this one.

17 In Felton (1992-93) 66 A Crim R 355 the facts were that the Queensland Corrective Services Commission informed the applicant of its decision not to grant him any remission on his 10-year sentence as he had not adequately addressed his sexually offending behaviour. The Court held that Regulation 27 clearly established a legitimate expectation in a prisoner of good conduct and industry to be granted remission in accordance with Regulation 21 and that the decision gave undue weight to irrelevant matters. Mere failure to complete the Sex Offender Treatment Programme is not ordinarily regarded as detrimental to the prisoner's entitlement to remission.

18 In New South Wales, correctional centres are governed by the Correctional Centres Act (1952). The plaintiff is a "convicted inmate" (s.4(1)(a) of the Act). The Commissioner is given wide powers under the legislation. The Commissioner has, subject to the direction and control of the Minister, the functions conferred or imposed on the Commissioner by or under this or any other Act (s.6(2)). The Commissioner has the care, direction, control and management of all correctional centres and correctional complexes (s.6(3)). The Commissioner may, either alone or in conjunction with other persons or organisations, make provision for the training, welfare and aftercare of inmates (s.6(4)).

19 The legislation is quite detailed in respect to the rights of prisoners. For example exercise (s.12); clothing (s.13); diet (s.14); and separation of inmates (s.15). Importantly, on the question of medical treatment, s.16(1) provides:

"Every inmate shall be supplied with such medical attendance, treatment and medicine as in the opinion of a medical officer is necessary for the preservation of the health of the inmate and of other inmates and of correctional officers, and may be so supplied with such medical attendance, treatment and medicine as in the opinion of the Commissioner will alleviate or remedy any congenital or chronic condition which may be a hindrance to rehabilitation".

20 In my view, this Section does not apply to the medical attention sought by the plaintiff as it is does not go to alleviating or remedying any congenital or chronic condition which may be a hindrance to rehabilitation.

21 Imposed in the Commissioner is the absolute discretion under s.29 to permit an inmate to be taken temporarily from any correctional centre. There are a number of purposes specified (none of which apply to this case) and in addition "or for any other purpose which the Commissioner deems to be justified" (s.29(1)).

22 The Department permitted the plaintiff to attend one session of tattoo removal for which he paid $1,200. The removal was only partially completed, resulting, it appears, from the plaintiff, through no fault of his own, arriving late for the appointment at Bondi where the procedure was undertaken. Having been given permission to have the tattoos removed, he expected to be permitted to undertake the further treatment.

23 After that visit, the tattoo removal policy was altered in October 1997. Annexure "A" to the affidavit of Mr. Murray McPherson, Principal Legal Officer of the Department of Corrective Services, sworn 27 November 1988, is a copy of a letter from Mr. R.G. Woodham, Assistant Commissioner Operations, to all Regional Commanders, Governors, D/S&I and OIC Courts which is in the following terms:

"Inmates Access to Private Medical Practitioners

Inmates will no longer be permitted to use the services of private medical practitioners of their choice to have tattoos removed or for any other form of cosmetic surgery.

This does not prevent inmates having cosmetic surgery, other than for the removal of tattoos, when the Corrections Health Service has determined a medical need for this type of surgery".

24 There is no evidence as to why there was this sudden change of policy, particularly after the plaintiff had been granted permission to undergo the procedures.

25 If permission was refused initially to have the tattoos removed, particularly as it required the plaintiff to leave the prison confines under escort (even though the plaintiff was paying for the costs of escort) the decision would have been within the Commissioner's and/or the Department's absolute discretion, and, in my view, would not be open to review by this Court. As I have stated earlier, there was certainly no urgency for this procedure which could just as easily be carried out on his release from prison.

26 However, permission was granted to have the procedures carried out on the understanding that a number of procedures would be required. No explanation has been given for this policy decision. It probably arose out of the plaintiff's application. The plaintiff has been given no explanation. The question in those circumstances is does this Court have jurisdiction to intervene if it were minded to do so?

27 The plaintiff argues, firstly, that the decision is ultra vires. I do not accept that submission. The Commissioner has a discretion to allow a prisoner to leave a prison pursuant to s.29. Thus, by acting to prevent a prisoner leaving a prison is not acting ultra vires.

28 It is submitted, however, that the plaintiff had a legitimate expectation that he would be able to have the tattoo removal completed, particularly as he was permitted one treatment in what was envisaged as a course of treatment. It is submitted that there may be a legitimate expectation in a person that may give rise to him being entitled to procedural fairness in the treatment of his case. This duty, of course, depends on the circumstances of each case but its existence is determined by reference to legal principle. See Attorney General (NSW) v Quin (1990) 170 CLR 1 per Mason CJ at 20. Mason CJ said (at 20):

"So, a legitimate expectation may be created by the giving of assurances, the existence of a regular practice, the consequences of denial of the benefit to which the expectation relates or the satisfaction of statutory conditions. The list is not exhaustive, but provides indications of the kinds of factors which a court will take into account in deciding whether or not an expectation is legitimate.

... it is still necessary to identify a relevant legitimate expectation, and that legitimate expectation may consist of an expectation of a procedural right, advantage or opportunity. ...

Perhaps in pursuit of clarity of expression, courts have referred to a legitimate expectation that some benefit will not be denied or taken away without an opportunity of being heard".

29 See also Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J (as he then was) at 582.

30 I am satisfied that there was a legitimate expectation that the plaintiff would not be denied further visits in the light of the permission previously granted, including the fact that he expended $1,200 on the partially completed treatment.

31 Despite that expectation, this was an administrative decision of the Commissioner and/or the Department which involves the exercise of the discretion under s.29 of the Act for the plaintiff to be temporarily absent from the prison establishment. Questions of security are obviously involved in such an exercise, particularly with a prisoner serving a life sentence.

32 The defendant's submissions are not particularly helpful. The only submission made is that pursuant to s.29 the defendant can decide not to exercise his discretion when he considers that a particular purpose is not justified. The necessary power has been committed to him by the legislature under s.29. That matter is self-evident.

33 It is further submitted on behalf of the defendant that para. 13 of the plaintiff's submissions shows that the decision which the plaintiff seeks to challenge is a general policy statement regarding inmates' access to private medical practitioners made in October 1997. The plaintiff has produced no evidence of any individual decision taken in respect of him since the policy was introduced, although para. 38 of the plaintiff's submissions is worded in terms which assume that has occurred. It is reasonable to assume the policy refers to the plaintiff, or otherwise he undoubtedly would have been told to the contrary.

34 Reliance is placed on the decision of Prisoners A-XX v NSW (1994) 75 A Crim R 205, a decision of Dunford J, where he said in respect of the use of condoms in correctional centres (at 211):

"... policy decisions of the Commissioner and/or the Department made with the concurrence of the Minister relating to the administration of prisons ... are not reviewable by the Courts within the Wednesbury principles or otherwise".

35 It is submitted on behalf of the defendant that the plaintiff's submissions advert to paras. 23 and 25 of that decision, apparently with a view to distinguishing that decision by claiming that the policy decision in the present case was not made with the concurrence of the Minister. The plaintiff submits that from a reading of that decision his Honour inferred the existence of Ministerial concurrence from the language of the then Prisons Act 1952, now the Correctional Centres Act 1952 (S.6).

36 I have carefully examined Dunford J's Judgment and I cannot agree with the submission made on behalf of the defendant. His Honour said (at 210):

"The power to direct and manage prisons conferred on the Commissioner by s.6 is subject to the direction and control of the Minister (s.6(2)) who in turn is a member of the Cabinet and as such is answerable to Parliament, and through Parliament to the electorate. Such is the nature of our democratic process that the determination of government policy often involves political considerations, and if the courts were to assume the power to review decisions of governmental policy, political power would pass from the Parliament and the electorate to the courts".

37 More importantly, his Honour went on to say (at 210):

"Section 50(1) of the Prisons Act, which gives the Governor power to make regulations, was amended by the Prisons (Amendment) Act 1988 (NSW), No. 46, s.3 and Sch.2, par (20)(e) which inserted a new par (j3) in the subsection, namely a power to make regulations relating to the distribution and use of condoms; but s.2 of that Act provided that its various provisions should commence on day or days to be appointed by proclamation, ie by the Governor with the advice of the Executive Council: Interpretation Act 1987 (NSW), ss.23(2), 14; and this particular amendment has not yet been proclaimed. The power to proclaim the commencement of the relevant amendments was not conferred on the courts, and it is not for the courts to, in effect, usurp such power".

38 If that was the case, it is quite obvious that those regulations could not be introduced, except by the responsible Minister. I am of the view that Dunford J concluded in those circumstances that the regulation proposed had the concurrence of the Minister. That is not the situation in the present case. The only material before me is contained in para. 3 of the affidavit of Mr. McPherson which is in the following terms:

"I am informed and believe that it is Departmental practice for a policy to be sent to the Commissioner for the Commissioner's approval prior to its issue".

39 That does not assume that it had the specific concurrence of the Minister. I do not accept the submission that in those circumstances I can imply the Minister's concurrence. Despite the expectation of the plaintiff that he would be able to continue the tattoo treatment, and despite the visits of the plaintiff to have that performed, I have come to the conclusion that it is not open to this Court to review the exercise of the Commissioner and/or the Department's discretion pursuant to s.29 of the Act to allow an inmate to leave an institution. These are matters peculiarly vested in the Commissioner and/or the Department.

40 Likewise, this Court does not have the jurisdiction to interfere with the decision not to permit absence from the institution for plastic surgery.

41 This was a novel request. It was not for the purpose of "medical attention" (s.16) and there was no immediate need for such surgery which could be undertaken on the plaintiff's release from prison.

42 These matters are administrative decisions within the discretion of the Commissioner and/or the Department. There is nothing in the material before me to indicate that there was a failure to properly exercise the discretion imposed in the Commissioner. In those circumstances this Court does not have the power to intervene.

43 In relation to the second part of the application, namely the s.20 warrants, it is submitted that the decision was unreasonable having regard to a proper approach to the plaintiff's rehabilitation.

44 The plaintiff's management is under the auspices of the Serious Offenders Review Council (s.61). The Council consists of eight members, six appointed by the Governor, and two official members, being officers of the Department of Corrective Services nominated by the Commissioner. Of the members appointed by the Governor, three are to be judicially qualified persons and three are to be community members (not being officers of the Department of Corrective Services) appointed to represent the community or any significant portion of the community.

45 The Council's functions are set out in s.62 as follows:

"(a) to provide advice and make recommendations to the Commissioner with respect to the following:

* the security classification of serious offenders,

* the placement of serious offenders,

* developmental programs provided for serious offenders".

46 It should be pointed out that the plaintiff comes within the definition of a serious offender.

47 Amongst others, the Council's functions are:

"(b) to provide reports and advice to the Parole Board concerning the release on parole of serious offenders,

(e) to provide reports and advice to the Minister,

(g) to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other inmates."

48 The plaintiff made application to the Serious Offenders Review Council on 4 August 1997 (page 61, Exhibit A) which noted that the Council had recommended a reduction of his classification to C2 "as per your approved pathway". He sought the position of Activities Clerk. That was supported by a Mr. Cusack, a senior prison officer Activities Manager. His approval was sent to Mr. B. Russell, the Governor ITC, and Mr. G. Delprado, Area Manager B. Mr. Russell noted, "I believe this is an appropriate progression for inmate Kelleher. I recommend a Section 20 Metropolitan Warrant which I can approve. However, given the SORC status seek your final advice". Mr. Delprado also recommended that this was appropriate for his programme pathway. A Mr. Stefan Tkautz, A/Manager of Industries, also urged that this job be given to the plaintiff.

49 At its meeting on 24 October 1997, the Council noted the application for a s.20 Metropolitan Warrant. However, in view of the length of sentence which remained to be served and the programme pathway, it deferred making a recommendation until he was interviewed by an Assessment Committee. This took place on 19 November 1997. The Minutes of the meeting on 24 October 1997 state:

"Kelleher denies that he will be the subject of any media attention. The Assessment Committee recommends that Kelleher remain at the Industrial Training Centre with his current C2 classification in accordance with his management plan. Also, the Committee recommends the Council consider Kelleher's request for a s.20 Order which is supported by the Activities Officer. For the Council's consideration and recommendation".

50 On 22 December 1997 the following recommendation was made:

"The Council noted that Kelleher's Federal non-parole period expires on 19 September 2001. In the circumstances and having regard to the offence committed and the length of time served, the Council is of the opinion that Kelleher requires a proper structured program to include meaningful work (other than being employed as a gaol sweeper or as an assistant to the Activities Officer at the ITC) in order to re-integrate into the community.

Accordingly, the Council does not support the issuing of an order pursuant to s.20 of the Correctional Centres Act 1952, at this time.

The Council asks the Case Management Team at the ITC to develop an appropriate pre-release program and submit by Friday, 30 January 1998".

51 Pursuant to that decision, a letter was written by the Council to the plaintiff on 24 December 1997. The plaintiff replied to that letter setting out reasons why that decision should be reversed.

52 On 28 January 1998 a meeting was held to discuss a "Pre-Release Program" at which the plaintiff was present. The members of the Case Management Team supported the programme.

53 On 19 February 1998 the Council wrote to the plaintiff and stated:

"The Council does not recommend the issuing of a s.20 Metropolitan Warrant because of the gravity and nature of your offence which incurred an original sentence of life".

54 It is submitted that that action was unreasonable.

55 It is submitted by the defendant that Ground 3 of the Summons asserts, but does not establish, the existence of an error of law in the Council's decision. The Council advised the plaintiff why it had decided not to make a recommendation; it did not advise him that it had not taken into account such matters as his record or his numerous trouble-free visits to medical practitioners and annexure "OO" to the plaintiff's affidavit is not evidence to that effect.

56 It is submitted that Ground 3 of the Summons and para. 41 of the plaintiff's submissions make reference to relevant and irrelevant considerations. Para. 41 incorrectly claims that the Council adverted to "the alleged high profile status of the plaintiff". The matter which the Council actually did cite in annexure "OO" is not an irrelevant consideration. The nature of the crime and the recommendations of the sentencing court are considerations which the Council is required to take into account under s.62(3)(b) and (c) of the Correctional Centres Act 1952.

57 It is submitted that the weight which a decision-maker allocates to a particular relevant consideration is a matter for the decision-maker and not for the Court on a judicial review unless the decision-maker has given excessive weight to a relevant factor of no great importance. The nature of the plaintiff's crime and the recommendation of the sentencing court could not, in the defendant's submission, be characterised as relevant factors of no great importance.

58 I should point out that I have no information as to the facts of the crime. Suffice it to say that it was obviously a very serious crime calling for a life sentence.

59 There is no evidence that this decision resulted from an abuse of power. See Attorney General v Quin per Brennan J at 36. It is not so unreasonable that no reasonable repository of the power could have taken the impugned decision or action.

60 It is submitted that the plaintiff's submissions invite the Court to review the Council's decision on the merits but do not establish that the decision falls within the restricted category which Brennan J identified.

61 The defendant routinely refers all warrant applications regarding serious offenders to the Council for a recommendation. The defendant, it is submitted, is not aware of any decision made by the Council in March 1998 in respect of a complex warrant relating to the plaintiff. The Council met in February 1998 and in November 1998. The March 1998 application set out in annexure "PP" to the plaintiff's affidavit was referred to the Council but was not the subject of any recommendation made by the Council prior to the date on which the Summons was filed.

62 The situation is that this Court is asked to interfere and overrule the decision of an expert body which was set up to determine programme pathways for serious offenders. It is fully conversant with the background of the offender and his problems and it has made decisions with respect to him being in a position to rehabilitate himself when he is released from gaol.

63 I do not find that this Court has any jurisdiction to intervene and I do not propose to do so.

64 So far as is necessary, I make a similar finding in relation to the issue of the Complex Warrant.

65 I therefore dismiss the plaintiff's Summons.

LAST UPDATED: 03/03/1999