SAMUEL MARK NARROWAY In Person via AVL v DEPARTMENT FOR CORRECTIONAL SERVICES [2024] SASC 19

Applicant: SAMUEL MARK NARROWAY In Person via AVL Respondent: DEPARTMENT FOR CORRECTIONAL SERVICES Counsel: MR S O’FLAHERTY - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 15/09/2023, 03/10/2023 File No/s: CIV-23-002383 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Judicial Review) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. NARROWAY v DEPARTMENT FOR CORRECTIONAL SERVICES [2024] SASC 19 Judgment of the Honourable Justice McIntyre 15 February 2024 ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - MEANING OF DECISION – REPORTS AND RECOMMENDATIONS ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS OF AN ADMINISTRATIVE CHARACTER PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS The applicant, Samuel Narroway, made an application to this Court seeking judicial review of a decision of the respondent, the Department for Correctional Services. The decision is one that amongst other things assessed the applicant as suitable to complete the Domestic & Family Violence Intervention Program (‘DFVIP’). The applicant seeks orders that the decision be set aside, a declaration be made that DFVIP is not applicable to him and that a tag of ‘DV Offender’ be removed from the applicant’s records within the respondent’s Justice Information System (‘JIS’) on the basis that he has never been convicted of a domestic violence offence. Held granting the respondent’s application for summary judgment: 1. There is no reasonable basis for any ground of review relied upon by the applicant nor the relief sought by the applicant. -- 1 of 11 -- Uniform Civil Rules 2020 (SA) rr 12.1, 12.2, 34.1, 143.1, 143.2, 144.2, 256.3; Correctional Services Act 1982 (SA) s 23, referred to. Narroway v Parole Board of South Australia [2023] SASC 100; Adelaide Brighton Cement Ltd. v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118; Hot Holdings Pty Ltd v Creasey (1996) 185 CLR 149 ; Vansetten v The State of South Australia [2020] SASC 158; Bechara v The State of South Australia [2021] SASC 126, considered. -- 2 of 11 -- NARROWAY v DEPARTMENT FOR CORRECTIONAL SERVICES [2024] SASC 19 Civil: Judicial Review 1 McINTYRE J: The applicant, Mr Narroway, issued these proceedings for judicial review of a decision of the respondent, the Department for Correctional Services (‘DCS’), which resulted in him being offered a place on the Domestic & Family Violence Intervention Program (‘DFVIP’). The applicant seeks orders that the decision be set aside, a declaration be made that DFVIP is not applicable to him and that a tag of “DV Offender”1 be removed from the applicant’s records within the respondent’s Justice Information System (‘JIS’). 2 The respondent filed an interlocutory application seeking summary judgment on the basis that there is no reasonable basis for any ground of review relied upon by the applicant nor for any relief sought by the applicant. 3 For the reasons that follow I find that there is no reasonable or real prospect of success for the application and accordingly I grant the respondent’s application for summary judgment. Background 4 The applicant has an extensive history of offending in both South Australia and interstate. He is currently serving a total sentence of imprisonment of five years and two months with a non-parole period of two years, eight months, and 14 days related to three sets of offending. Details of the offending and the sentences imposed are set out in Narroway v Parole Board of South Australia.2 For present purposes it is relevant to note that the applicant has been in custody since 7 September 2019 and that the expiry date for his head sentence is 5 November 2024. His non-parole period expired on 19 May 2022. 5 The applicant initiated these proceedings by filing an application for review on 2 March 2023. He applied for, and was granted, leave to file an amended application. The applicant filed this amended application on 25 August 2023. In this application he identifies the decision the subject of his application as: Date of decision: 09/02/2021 & 06/11/2022. 6 The applicant says that he received the decision, presumably the 6 November 2022 decision, on 17 January 2023. In summary, the applicant challenges an assessment of an employee of the respondent which resulted in him being considered suitable to attend the DFVIP and he further seeks removal of the ‘tag’ denoting ‘DV Offender’ from JIS. 1 Domestic Violence Offender. 2 Narroway v Parole Board of South Australia [2023] SASC 100 at [4] to [9] (‘Narroway’). -- 3 of 11 -- [2024] SASC 19 McIntyre J 2 7 The respondent issued an interlocutory application seeking summary dismissal of the application pursuant to either rr 143.1 or 144.2 of the Uniform Civil Rules (‘UCR’). In the alternative, the respondent says that the pleading and claims in the amended originating application ought to be either struck out under r 34.1of the UCR or dismissed under r 143.2 of the UCR on the basis that the action is frivolous, vexatious or an abuse of the process of the Court. 8 The respondent’s application is brought on two grounds. First that any challenge to a decision made on 9 February 2021 is made out of time3 and requires leave. No extension of time has been sought. Second, the respondent contends that the matters raised in the originating application are not decisions, acts, or omissions amenable to judicial review. Hearing 9 For convenience, both the respondent’s interlocutory application and the originating application were heard together. The following affidavits were tendered by consent: • Angela Ruth Fletcher dated 16 May 2023;4 • Samuel Mark Narroway dated 2 February 2023; 5 and • Samuel Mark Narroway dated 21 June 2023.6 10 There was no oral evidence called and the matter proceeded by way of written and oral submissions. The Decisions 11 Ms Fletcher’s affidavit establishes that on 8 February 2021, after the applicant was sentenced, she conducted an initial assessment of the applicant under s 23 of the Correctional Services Act 1982 (SA) (‘the Act’). Ms Fletcher then created an individual development plan (‘IDP’) for the applicant the following day, 9 February 2021.7 This appears to be the first decision identified by the applicant in his originating application. 12 This initial assessment concluded that, based on a review of the DFVIP criteria and the applicant’s Ontario Domestic Abuse Risk Assessment (‘ODARA’) score, the applicant was eligible for the DFVIP. Ms Fletcher’s affidavit says that the ODARA is an actuarial risk management tool comprised of empirically tested and validated predictions. Ms Fletcher explained the manner in which that tool is 3 Uniform Civil Rules 2020 (SA) r 256.3 (‘UCR’). 4 Exhibit R1. 5 Exhibit A2. 6 Exhibit A3. 7 Exhibit R1 at [4]. -- 4 of 11 -- [2024] SASC 19 McIntyre J 3 applied. The DFVIP is a group based rehabilitation program for men with an identified history of violence and abuse against their intimate partners. 13 Ms Fletcher said that all available and relevant information held by DCS relating to an offender, including information provided by the offender in an interview, is considered when an IDP is prepared. Whilst the applicant has never been convicted of a domestic violence offence, DCS was aware of a police report made by the applicant’s former spouse in August 2020. This report detailed allegations concerning three separate occasions in which the applicant allegedly acted in an abusive and threatening manner toward her. The report also noted that the applicant had allegedly threatened her from gaol, and that she was fearful that he would hurt or assault her in the future when released from prison. The applicant declined to comment when interviewed by the police. He was subsequently issued with an intervention order and charged with three counts of aggravated assault and property damage. Those charges were on foot at the time Ms Fletcher prepared the IDP; however, the criminal charges were withdrawn on 17 February 2022 and the intervention order was revoked on 1 December 2022.8 Ms Fletcher explained the rationale for taking such material into account as follows:9 There is considerable international and Australian research showing that, in addition to being less likely than many offence types to be brought to the attention of police, domestic violence incidents are particularly unlikely to result in a criminal conviction. As such, it is DCS practice to examine not only prior convictions but also prior police reports, even where these did not result in charges or convictions in administering the ODARA. This is consistent with the ODARA scoring method. 14 Given that there was information indicative of partner violence, albeit consisting of unproven allegations, Ms Fletcher said that the applicant met the criteria for the administration of the ODARA and she proceeded with that assessment. The ODARA rated the applicant against thirteen variables and gave him a score of either zero or one for each variable. Those scores were collated in order to determine a risk assessment score. The applicant’s final raw ODARA score was seven and made up as follows: • prior custodial sentence of 30 days or more; • failure on a prior conditional release; • victim concern about future assaults; • more than one child; • victim’s biological child from a previous partner; • history of substance abuse; and 8 Exhibit A3 at [8] – [9]. 9 Exhibit R1 at [8]. -- 5 of 11 -- [2024] SASC 19 McIntyre J 4 • barriers to victim support. 15 The applicant’s final score placed him in the 74th percentile of domestic violence offenders who were recidivist. Ms Fletcher therefore concluded that the applicant was eligible for the DFVIP subject to a psychological assessment. 16 Ms Fletcher said that, before a prisoner is offered a place in the DFVIP, a full assessment is required to be undertaken by a clinician within the DCS Rehabilitation Programs Branch. This assessment took place on 5 November 2021. The applicant engaged in an assessment interview conducted by a senior clinician and was deemed suitable to attend the DFVIP. 17 The applicant did not attend the DFVIP for reasons set out, by the clinician who conducted the assessment, in a minute annexed to Ms Fletcher’s affidavit. Specifically, the clinician says: 10 Mr Narroway asked for the weekend following his assessment to consider and make a decision around his consent to participate in the DFVIP. On the date when the author had agrees to meet with him to gain his consent or refusal, Mr Narroway was transferred to Yatala Labour Prison due to ‘abusive/threatening behaviour and for the good order of the institution’. 18 The applicant has subsequently declined to participate in the DFVIP as he does not believe that he was properly assessed as requiring that program because he has never been convicted of a domestic violence offence. His failure to undertake the DFVIP is one of the reasons for the refusal of his application for parole.11 19 The preparation of the IDP is also the process that led to the label ‘DV Offender’ being included in the JIS. Ms Fletcher’s affidavit says that this is a label located within an IDP for internal use by DCS presumably to assist in the management and rehabilitation of a prisoner.12 20 Ms Fletcher’s affidavit indicates that all sentenced prisoners have an Offender Plan in addition to their IDP. This plan contains a brief summary of information about the offender and their core programs or other recommendations in their IDP. The Offender Plan is the mechanism that enables DCS to record and approve subsequent assessments required under s 23 of the Act. These are known as case reviews and must take place every 12 months. Ms Fletcher deposes to the fact that a case review occurred for the applicant on 6 November 2022. This appears to be the second decision identified in the applicant’s originating application. Ms Fletcher says that: 13 10 Exhibit ARF-3 of Exhibit R1. 11 Narroway. 12 Exhibit R1 at [6]. 13 Ibid at [17]. -- 6 of 11 -- [2024] SASC 19 McIntyre J 5 In the applicant’s case, although he had a case review on 6 November 2022, the part of his Offender Plan which lists the ‘Core Program Plan’ has not been updated since the IDP was created as it can be seen that this is dated 9 February 2021. 21 I note that by 6 November 2022, the criminal charges referred to above had been withdrawn but the intervention order remained in place until 1 December 2022. Applicant’s submissions 22 The applicant’s application for judicial review concerns two issues that he contends are reviewable decisions. First, his classification as a domestic violence offender on 9 February 2021, and second the failure of the respondent to remove that classification on 6 November 2022. The applicant contends further that he is not seeking a review of the merits of those decisions but rather seeks a review of the lawfulness of the decisions saying that the respondent “has acted beyond their jurisdictional scope” and failed to observe requirements of procedural fairness.14 The applicant says that because he has not completed the DFVIP he is not being released on parole and accordingly the decision has a significant adverse effect upon him and his legal rights. 23 The applicant says that the decisions were unlawful and subject to jurisdictional error because he was treated as guilty until proven innocent contrary to Article 14.2 of the International Covenant on Civil and Political Rights (‘ICCPR’) to which Australia is a signatory. He says that this is a breach of his human rights. He further contends that the decision labelling him as a ‘DV offender’ is defamatory, and the information relied upon in reaching that decision represents a breach of his privacy. He says further that the ODARA is not a departmental tool, nor is it a recognised Australian tool and as such should not be considered in any legal setting.15 The applicant further submits that the respondent is manipulating s 23 of the Act for other purposes and says that it cannot be a concealment for other injustices and acts. 24 The applicant has given no reason for the delay in challenging the first decision nor has he sought an extension of time. However, he has contended that under r 12.1 of the UCR the Court can make any order it sees fit. Whilst not entirely clear, it appears that the applicant is contending that the Court may on its own initiative waive requirements of the rules and grant an extension of time in so far as it may be necessary in the interests of justice.16 No basis for this has been articulated but I note that the applicant is currently in custody and does not have the benefit of legal assistance. 14 T37 and T39. 15 Exhibit A3 at [11] and [15]. 16 UCR rr 12.2 and 12.2(c). -- 7 of 11 -- [2024] SASC 19 McIntyre J 6 Respondent’s submissions 25 The respondent submits that the applicant has brought this application out of time. The applicant has not sought an extension of time in either his original or revised application. Rule 256.3 of the UCR provides as follows:17 (1) An action for judicial review must be commenced— (a) as soon as practicable after the decision, act or omission the subject of the action; and (b) in any event within 6 months after the decision, act or omission the subject of the action. (2) An applicant may institute an action for judicial review more than 6 months after the decision, act or omission the subject of the action if the applicant seeks an extension of time to commence the action; however the applicant must seek an extension of time to commence the action and the action cannot proceed further without leave of the Court. 26 The applicant identifies the dates of the decisions for which he seeks review as 9 February 2021 and 6 November 2022. The first is Ms Fletcher’s preparation of the IDP and the second is the applicant’s case review under s 23 of the Act. The applicant filed his originating application for review on 2 March 2023. Accordingly, the respondent says the application is 570 days out of time for review of any decision made 9 February 2021. The respondent further submits that the applicant has not raised any particular concern with the case review in November 2022, his arguments are all directed to the initial assessment in February 2021; rather he has identified the date of the review as a pretext to bring his proceedings within time. 27 The respondent further contends that the matters in respect of which the applicant seeks review are not decisions, acts, or omissions amenable to judicial review. The applicant was assessed following sentence as required under the Act. Section 23(6) of the Act states: After the first assessment of a prisoner has been completed, the [Chief Executive] must prepare a programme in relation to the prisoner that contains particulars of any proposals for the education or training or medical or psychiatric treatment of the prisoner, and may, after any subsequent assessment, add to or vary that programme. 28 The respondent submits that it is clear from this that, after the first assessment, the Chief Executive (‘CE’) must prepare a program in relation to each prisoner but that there is no direct consequence that arises from that program. It is 17 Ibid r 256.3. -- 8 of 11 -- [2024] SASC 19 McIntyre J 7 further submitted that, at subsequent assessments, there is no requirement that a first assessment be updated, added to, or varied and ultimately no obligation for the CE to act on the program in any particular way. 29 The respondent further contends that the main thrust of the application is directed to the ODARA risk assessment process, and the outcome of that, rather than the elements of the assessment under s 23 of the Act. The respondent submits that there is no discernible legal effect which has affected the applicant’s rights arising from the ODARA risk assessment. Discussion 30 The respondent seeks interlocutory orders dismissing the application18 or granting summary judgment19 on the ground that no reasonable basis for the application is capable of being disclosed. The approach to be taken to such applications is conveniently summarised by Doyle JA in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd:20 By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss. Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a “mini trial” of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim. [citations omitted] 31 Accordingly, in determining whether there is a ‘reasonable basis’ for this application I need not be satisfied that the applicant’s application is ‘hopeless’ or ‘bound to fail.’21 The test requires a practical consideration or assessment of whether there is a reasonable or real prospect of success. 32 The first decision identified by the applicant is the preparation of the IDP on 9 February 2021 and the ‘DV Offender’ label applied to him as a result of that. That decision was not challenged within time, no application has been made to extend time nor has any explanation been provided for the delay. The application 18 UCR r 143.1. 19 UCR r 144.2(2). 20 (2020) 137 SASR 117 at [59] – [60]. 21 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. -- 9 of 11 -- [2024] SASC 19 McIntyre J 8 in respect of the case review on 6 November 2022 is within time however it is my view that neither the initial assessment nor the case review are decisions capable of judicial review. 33 Judicial review is available to test the legality of a decision or an administrative act, not the merits of that decision or act. It must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect that may be removed by a successful application for certiorari. As Brennan CJ, Gaudron and Gummow JJ stated in Hot Holdings Pty Ltd v Creasey:22 Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing. This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently "affects rights" in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently "determines" or is connected with that decision 34 Arguably the applicant does not fall within the first category as he is not challenging an ultimate decision. Rather he challenges steps taken in the initial review in February 2021 including the administration of the ODARA and the recording of that in his IDP and his offender plan and the failure to alter that position at the case review in November 2022. 35 The administration of the ODARA was only one part of the initial assessment under s 23 of the Act. The initial assessment did no more than include a recommendation that the applicant be assessed for the DFVIP. He may or may not have been assessed as suitable for that program. In relation to the ‘DV Offender’ label, it is plain that the applicant has not been convicted of any domestic violence offence. Whilst it could be said to be clumsily expressed, the label was based on the initial assessment and subsequently recorded in his IDP and offender plan. It did not constitute a decision that he was in fact a domestic violence offender. 36 At most it is my view that the matters raised by the applicant could be characterised as a decision taken at a preliminary or recommendatory stage of the decision making process. However, even if I am wrong about this, it cannot be said that the ultimate decision was one which undoubtedly affected his rights. The initial assessment recommended, based upon the administration of the ODARA, that the applicant be assessed for participation in the DFVIP. However, an assessment determining eligibility for a program such as the DFVIP did not enliven any express rights or legitimate expectations for the applicant. There was no 22 (1996) 185 CLR 149 at 159. -- 10 of 11 -- [2024] SASC 19 McIntyre J 9 substantive legal effect or foreseeable consequence that directly arises from such assessment. As Doyle JA stated in Vansetten:23 It can thus be seen that in relation to a prisoner sentenced to a term of imprisonment exceeding six months, s 23 requires that the CE “assess the prisoner and his or her circumstances and determine whether or not the prisoner should be transferred to some other prison.” It requires that there be an initial assessment and determination, and then subsequent assessments and determinations at regular intervals of not more than one year. The CE is not bound to implement any aspect of the determination, or indeed any recommendation made during a case assessment. 37 In Bechara David JA further expands on the implementation of s 23 of the Act, stating:24 Irrespective of the outcome of an assessment under s 23, under the Act, the CE nonetheless retains a discretion as to whether to act upon any such assessment or determination made under s 23. 38 Whilst the CE is bound to assess a prisoner and prepare a program the CE is not bound to implement it. In the present case, the CE did implement the applicant’s IDP. The applicant was assessed and offered a position in the DFVIP. As was his right, he chose not to undertake that course. That decision by the applicant has had consequences for his application for release on parole.25 However, any anticipated use by third party decision makers of that assessment or conclusions reached as part of that assessment, such as the Parole Board subsequently reviewing a prisoner’s circumstances for consideration for release on parole does not enliven a right of review. 39 Likewise, the recording of the outcome of the assessment by the use of the internal label ‘DV Offender’ in the respondent’s JIS is not a decision which has any apparent legal effect upon the applicant’s rights and again does not enliven a right of review. 40 The case review in November 2022 did not alter that position. 41 Accordingly, I have formed the view that no reasonable basis for the application is capable of being disclosed and that the respondent’s application for summary judgment ought to be granted. 23 Vansetten v The State of South Australia [2020] SASC 158 at [16] and [19]. 24 Bechara v The State of South Australia [2021] SASC 126 at [27]. 25 Narroway. -- 11 of 11 --