Biira v Parole Board [2019] KIHC 71; Civil Review 10 of 2017 (30 August 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CIVIL REVIEW NO. 10 OF 2017

[TAUNTEANG BIIRA APPLICANT
[
BETWEEN [AND
[
[PAROLE BOARD RESPONDENT

Before: The Hon Chief Justice Sir John Muria

15 February 2019

Mr Teetua Tewera for Applicant
Ms Pauline Beiatau for Respondent

JUDGMENT

Muria, CJ: This is an application for leave to issue certiorari proceedings to quash the decision of the Parole Board. The application is brought under O.61 r2 of the High Court (Civil Procedure) Rules 1964.

Background

2. The applicant was serving a life imprisonment sentence for murder. He was sentenced on 16 February 1996. He was released on parole on 12 May 2003 after serving seven years of his sentence pursuant to section 14 of the Parole Board Act 1986 (“the Act”).

3. The applicant’s Release on Parole Order sets out the conditions for his release on parole. The Order enabled the applicant to serve his term of his sentence for the rest of his life at his home island, Aranuka, with effect from
12 May 2003 on the following conditions:

“The said prisoner –

(1) within 24 hours after his release on parole shall report in person to the parole officer at the place stated in this order or if he does not proceed directly to that place, then he shall report to some other parole officer within 48 hours of his release on parole;

(2) shall report to the parole officer under whose supervision he is for the time being as and when he is required to do so by the parole officer;

(3) shall give to the parole officer and the Superintendent of Prisons reasonable notice of his intention to move from his address and if he moves to any other address, he shall within 48 hours after his arrival and the nature and place of his employment (if any);

(4) shall not reside at an address that is not approved by the parole officer;

(5) shall not continue in any employment or continue to engage in any occupation that is not approved by the parole officer;

(6) shall not associate with any specified person, or with persons of any specified class with whom the parole officer has in writing warned him not to associate with;

(7) shall be of good behaviour and shall not commit any offence against the law”.

4. Following reports of breaches of the conditions for his release on parole, the applicant was apprehended and brought to South Tarawa to be returned back to prison. The applicant is now back in prison.

Parties’ Arguments

5. The principal argument for the applicant is that he was not given the opportunity to be heard before he was arrested and brought back to prison.
Mr Tewera submitted on behalf of the applicant that the applicant was entitled to be heard before a decision was to be taken on whether he should be sent back to prison or not.

6. There is the suggestion by the applicant that his repatriation back to prison stemmed from his dispute with the Onotoa Island Council over land. He was successful in that dispute and that the authorities seized the opportunity to silence him by utilizing an alleged breach of his parole condition in order to put him back in prison.

7. The respondent, on the other hand, relied mainly on the alleged breach of the applicant’s parole condition. The condition referred to is set out in paragraph 7 of the Release on Parole Order dated 12 May 2003. The said condition has already been set out earlier in this judgment.

8. It was also submitted that the Parole Board was entitled to order the arrest and to bring the applicant back to prison. Reliance was placed on section 16 of the Act.

Whether the Court has jurisdiction to review Parole Board’s Decision

9. The Court has specifically asked Counsel for the parties to address the question of the Court’s jurisdiction to review the decision of the Parole Board in this case. Only if this Court has jurisdiction to review the Board’s decision will the applicant’s case be further dealt with by the Court.

10. Mr Tewera for the applicant pressed the argument that the High Court has power to review decisions of the Parole Board. Such power is inherent in the Court, argued Counsel, despite the Act being silent on the point. The inherent powers of the Court referred to by Counsel are, I take it to mean, the powers to issue prerogative writs as stipulated in Order 61 of the High Court (Civil Procedure) Rules 1964.

11. Counsel’s researches discovered that in Canada, statutes have been enacted empowering the courts to “review and set aside” decisions of the Parole Board. See section 28 of the Canadian Federal Court Act. See also the case of Howarth –v- National Parole Board [1976] 1 SCR 453 which held that the remedy in section 28 of the Federal Court Act is essentially “the same as those on which certiorari traditionally is issued to quash administrative decisions”.

12. The Supreme Court of Canada in Howarth –v- National Parole Board held that although the Federal Court Act empowers the Court to review an Order of the National Parole Board, the order of the Parole Board was of an administrative nature, not made on a judicial or quasi-judicial basis. As such it was not reviewable.

13. Mr Tewera also referred to the English case of Browne –v- The Parole Board of England and Wales [2018] EWCA Civ. 2024 which discussed the various cases referred to in the judgment of the Court in that case. That case and the various cases discussed in it have all demonstrated the extent of the Court’s power to review a decision of the Parole Board and the test to be applied in so doing.

14. The case of Browne also highlighted the point raised by Mr Tewera on the need of the Parole Board to hear all parties concerned before making its decision. This includes hearing and considering risk assessment from relevant authorities as well as considering representations from the parolee, Mr Browne.

15. Mr Tewera also helpfully referred the Court to the Article of Bronwyn Naylor and Johannes Schmidt “Do Prisoners have a Right to Fairness before the Parole Board?” Sydney Law Review [2010] vol. 32:437 which contains helpful discussions on the subject and the case law authorities from Canada, England, Australia and New Zealand. The authors have demonstrated that the Courts in the various jurisdictions do have powers to review Parole Board decisions whether by way of statutory appeals or common law judicial reviews.

16. In Kiribati, the Parole Board Act 1986 does not provide for statutory review of the decisions of the Parole Board. However, judicial review is available against decisions of the Parole Board through the High court’s review powers under O.61 of the High Court (Civil Procedure) Rules. The common law review procedure by way of prerogative writs still applies in Kiribati to review decisions of public bodies including the Parole Board.

Should the Parole Board’s decision be reviewed in the present case

17. There have been replete of case law authorities to support the proposition that statutory bodies performing public functions are amenable to judicial review. The grounds of judicial review are commonly two fold namely, that the body acted outside its legal powers, otherwise referred to as ultra vires:
Hazell –v- Hammersmith and Fulham LBC [1992] 2 AC 1 and secondly, that the body failed to observe the rule of natural justice: Ridge –v- Baldwin [1963] UKHL 2; [1964] AC 40; [1963] 2 All ER 66.

18. In the present case there is no dispute that the Parole Board did anything other than exercising its powers under the Parole Board Act. Right from the start, the Board rests its case on section 16 of the Act. For ease of reference I set out below section 16.

19. Section 16 of the Act provides as follows:

“16. The Board may for any reason at any time direct in writing that a paroled offender be recalled. On the giving of the direction, the parole order shall be deemed to be cancelled, and the paroled offender may be arrested without a warrant by any police or prison or parole officer and shall continue to serve his sentence unless he is again released on parole by the Board under this Act or under the Prisons Ordinance as the case may be”.

20. I do not think that there is any dispute as to the power of the Parole Board under section 16 of the Act to recall a parole offender who breaches the conditions of his release on parole. The power can be exercised “for any reason at any time”, a power that is clearly at large.

21. However, I do not think, despite such a seemingly wide power, that such power can be exercised without due regard to the facts and the particular circumstances of a parolee who is going to be adversely affected by the decision of the Parole Board. In this regard the Parole Board is bound to observe, at least, some measure of procedural fairness. See Ridge –v- Balwin (above).

22. Mr Tewera builds the applicant’s case substantively on the breach of the rule of natural justice. The secondary attack on the Board’s decision is premised on the suggestion that the arrest of the applicant and cancellation of his parole order was a convenient opportunity to put him back in prison and to keep him away from disputing land issues on the island of Onotoa.

23. Apart from his own affidavit in which he deposed to the fact that he was not told of the reasons for his arrest on 31 July 2017, there is no evidence to show that the applicant was given any opportunity to be heard by the Board before the cancellation of his Parole Order and to have him recalled back into prison on
2 August 2017. The evidence given on behalf of the respondent, as contained in the affidavit of Saitofi Mika, shows that when the respondent met on
2 August 2017, it had before it the Letter also dated 2 August 2017 from the Superintendent of Prisons addressed to the Chairperson of the Parole Board. In that letter, the Superintendent confirmed that the applicant was arrested and brought over to Tarawa from Onotoa following “an operation” executed by the Police.

24. The Superintendent’s letter also sought the Board’s decision to recall the applicant’s Parole Order on two grounds namely that the applicant

“(1) failed to notify the Superintendent of Prison of reasonable notice of intention to move from his address contrary to Condition 3;

(2) failed to remain of good behaviour; and shall not commit any offence against the law”.

25. The Superintendent’s letter then set out the background justifying the submission to the Board to have the applicant’s Parole Order recalled. According to Ms Mika’s affidavit, the Secretary of the Ministry of Justice (who is also the Superintendent of Prisons) left the Board meeting after presenting his case for the cancellation of the applicant’s Parole Order.

26. Other reports were also placed before the Parole Board according to Mika’s affidavit evidence, in addition to the letter from the Superintendent of Prisons. These documents include a copy of the applicant’s Parole Order, copies of several e-mail correspondence between Tebobora who is Parole Officer in Onotoa and Peter Bwebweata who is an Inspector of Prisons regarding the applicant and his behaviour while in Onotoa. Undoubtedly the contents of these correspondence did contain matters adverse to the applicant.

27. There was nothing in the affidavit of Ms Mika to show or even suggest that the applicant was given the chance to respond to the matters raised in the Superintendent’s letter or to matters raised in the correspondence between the Parole Officer and Inspector of Prisons about him. There was no evidence at all to show that the applicant was asked or invited or given the opportunity to be heard in reply to the matters brought before the Board against him.

28. The evidence shows that the respondent Board deliberated on the matter on 2 August 2017 and decided that “the prisoner be recalled on the basis that he breached his parole Condition 7” which required the applicant to be of good behaviour and not to commit any offence against the law. With regard to Condition 3 of the applicant’s parole conditions, the Board felt that, although unsatisfactory, the applicant took steps to notify police officers of his change of location.

29. When considering the applicant’s case, the Board indicated its concern about the delay in reporting the breach of the applicant’s parole condition which was said to have occurred in 2014 when the applicant was alleged to have assaulted an 8 year old boy. The Prison authority waited until three years later to bring the alleged breach to the Board’s attention. The Board was also very concerned about the general failure in the monitoring system on parolees and urged improvement in the system.

30. As mentioned earlier, the applicant was not invited to be present before the Board. The Minutes of the respondent Board’s meeting on 2 August 2017 did not show that the applicant was present nor was there any indication that he was invited to be present but failed to do so. This clearly confirms the applicant’s complaint that he was not given the chance to give his side of the story on the matters raised against him before the Board.

31. Ms Beiatau of Counsel for the respondent Board, however, submitted that the Board’s decision was correct and lawfully made pursuant to section 16 of the Parole Board Act. Counsel submitted that the Board had all the information before it at its meeting to justify its decision to recall the applicant. In particular, Counsel submitted that the applicant made no denial of breaching Condition 7 of his parole conditions. As such the Board was entitled to make the decision to recall the applicant.

32. On the question of breach of the rule of natural justice, Ms Beiatau submitted that in the present case, no breach of the rule of natural justice occurred on the part of the respondent Board. Counsel accepted that the Board failed to call the applicant to explain his side of the story regarding the allegations brought against him. However, Counsel submitted that the failure to hear the applicant in the present case could not amount to a breach of the rule of natural justice. This, Counsel suggested, is because the evidence of his being charged and convicted of an offence while on parole is unchallengeable. Any explanation from the applicant would not change the fact that he was charged and convicted of an offence of assaulting an 8 year old boy.

34. On the question of the Court’s jurisdiction to review the respondent Board’s decision, Ms Beiatau accepts that the High Court has jurisdiction to review decisions of the Board. Counsel referred to the case of Naon –v- Otintai Hotel Board of Directors [2013] KIHC 38 for the proposition that a body with a public law character, exercising public functions and being part of an integral system of the Government set up is subject to the judicial review powers of the Court. See also R -v- Panel on Takeovers and Mergers, ex parte Datafin PLC and Another [1986] EWCA Civ 8; [1987] 1 All ER 564.

35. With regard to the question of whether the Court should interfere with the decision of the respondent Board, Ms Beiatau submitted that in the circumstances of the present case, the Court should refuse to interfere with the Board’s decision. There is no evidence that the Board has abused its power when it decided to recall the applicant who had breached one of his parole conditions. Counsel submitted that since the Board was exercising its powers lawfully conferred on it under section 16 of the Parole Board Act, the Court can only interfere with it if it is shown that the Board had abused its power as provided to it under the section.

36. Ms Beiatau submitted that in the present case, the Board took into account all the relevant information placed before it. It then considered the competing interests of the applicant and the public before making its decision. Thus Counsel submitted, the Board in the present case, carried out the balancing exercise as that done in Browne –v- The Parole Board of England and Wales [2018] EWCA Civ 2024 and having done so, it decided that the applicant’s parole order be cancelled and the applicant be recalled. Thus, it is suggested, the Court should not interfere with the respondent Board’s decision in the present case.

37. The present case, in the Court’s view, is very much one that falls into the area of procedural fairness as recognized in Kioa –v- West [1985] HCA 81; (1985) 159 CLR 550 rather than simply a balancing exercise as alluded to in Browne –v- The Parole Board of England and Wales (above).

38. The Board had before it information about the applicant’s behaviour, including that of being charged and convicted of an assault on an 8 year old boy.
However, not all the information about the applicant given to the Board were undisputed. For example, the parole officer’s emails contained allegations that the applicant was not in good terms with the Onotoa Island Council and that he had taken the Guest House and seawall of the Onotoa Council. The applicant had land disputes with the Council. He was also said to have been penalized by the Unimwane for using insulting words. There was the general tenor in the complaints against the applicant that he was causing troubles in the village indicating that he was still a risk to the people in the community. All these adverse information about the applicant were before the Board and they were obviously not agreed to by the applicant. As such it was incumbent on the respondent to give an opportunity to the applicant to respond to the issues in controversy. Procedural fairness would oblige the respondent to do the right thing by inviting response from the applicant first before deciding to lock him up in prison. That did not happen.

39. As mentioned earlier, the only matter that the applicant cannot and did not dispute is the fact that he was charged with and convicted of assault on an 8 year old boy. An opportunity to be heard is not necessary on such indisputable fact. However, the other matters submitted to the Board were open to the applicant to dispute in which case the applicant, who is a life prisoner, ought to be given the opportunity to be heard on such matters. This principle was pointed out in Osborn –v- The Parole Board [2013] UKSC 61 where at page 85 it was stated:

“85. In accordance with the guidance provided in West, an oral hearing is required when facts which appear to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted”.

40. If the only matter placed before the Board was the uncontroverted fact that the applicant was charged and convicted of assault on an 8 year old boy, I would agree with Ms Beiatau that no breach of the rule of natural justice would arise even if the applicant were not given the opportunity to be heard. In the present case, however, there is a strong sense of an underlying current which belied the actions of those who mounted the “operation” to have the applicant arrested and brought back to Tarawa.

41. Support can be found in the materials attached to the affidavit evidence of Ms Saitofi Mika as well as in the affidavit of the applicant for the second suggestion raised by the applicant that the “operation” to arrest and remove him from Onotoa and to take him back to Tarawa was a convenient vehicle to keep him away from those he had disputes with. Had it been for the reason only of having been charged and convicted of a criminal offence, it makes little sense to wait almost three years before the respondent took any step to enforce “Condition 7” of the applicant’s parole Order.

42. In the present case I accept that the arrest of the applicant was lawful, since he had clearly breached Condition 7 of his parole conditions. Section 18(2) of the Act authorises the arrest of the applicant without Warrant for the purpose of bringing him before the Board and the Board to exercise its functions in relation to his case. One such function was to decide whether the applicant should be returned back to prison to continue serving his life sentence until paroled again.

43. In the present case, it was also open to the Board to exercise its functions under section 7(1) (Functions of the Board) and section 18(1) and (2) (Offence to breach conditions of parole). In fact the applicant was arrested and brought over to South Tarawa on 31 July 2017 pursuant to section 18 of the Act, not under section 16 of the Act. It is therefore not correct to say that the applicant was arrested without warrant under the Parole Board Directions issued under section 16 of the Act. The Board’s Directions was issued on 2 August 2017, the date on which the Board met, by which time the applicant had already been arrested and spent three days in custody already in South Tarawa.

44. The manner in which the applicant was dealt with in this case by those responsible was very wanting in proper procedure. This is not surprising when one reads the materials placed before the Board. Be that as it may, the applicant was lawfully arrested pursuant to section 18 of the Act as evidenced in the submission by the Superintendent of Prisons to the Board on 2 August 2017.

45. In the light of the manner in which the applicant was arrested and brought to Tarawa, and despite the language of section 16, the Board ought to have given the applicant the opportunity to be heard on the issues raised against him by his accusers and which were placed before the Board. At the very least the applicant is entitled to procedural fairness before his liberty is taken away from him because of the allegations against him, especially since he is a lifer. The right to be heard was accorded to life prisoners in R –v- Parole Board ex parte West [2005] UKHL 1.

46. The right to be heard accorded to a parolee can also be seen as envisaged in section 7(2) of the Act requiring the Board to receive information or representations from various bodies, including the offender or any person acting on his behalf. Unfortunately that had not been done in this case. Such failure on the part of the Board in this case, and in the light of the procedure followed in arresting and bringing the applicant to South Tarawa, the failure to accord the applicant the opportunity to be heard vitiates the order to detain him.

47. In the circumstances of this case, and having found that the applicant was lawfully arrested and brought to Tarawa, the period between his arrest and the making of the prison detention order was crucial. It was crucial because the applicant was brought before the Board following “an operation” by police and prison officers exercising their lawful powers under section 18(2) of the Parole Board Act, together with information and materials against him. The applicant is therefore entitled to look to the Board with a legitimate expectation to observe standards of procedural fairness. See Kioa –v- West (above).

48. Having considered this case most anxiously, the proper course to take is to find that the arrest of the applicant was lawful but his detention was and still is not lawful. He should be released forthwith from detention but should continue to remain in custody, not in prison, to await the hearing before the Parole Board, at which time the applicant is to have his opportunity to put his case before the Board.

49. Leave to issue certiorari is granted and certiorari is hereby granted to quash the detention of the applicant in prison. His arrest, however, remains lawful.

50. The applicant is entitled to costs in which I shall hear Counsel on a date to be fixed.

ORDER:

1. The Order for detention of applicant in prison from 2 August 2017 to date is unlawful and certiorari is to issue to have it quashed.
   
2. The applicant’s arrest is, however, lawful and the applicant to be removed from prison and kept in custody pending the hearing before the Parole Board.
   
3. Parole Board to meet to properly consider applicant’s case, giving him opportunity to be heard at a date to be fixed by the Board within 7 days from the date of this Order.
   
4. The Court shall hear parties on costs on date to be fixed by the Court.
   

Dated the 30^th day of August 2019

SIR JOHN MURIA
Chief Justice