Craig v Chief Executive, Department of Corrective Services & Anor [2006] QSC 26

SUPREME COURT OF QUEENSLAND CITATION: Craig v Chief Executive, Department of Corrective Services & Anor [2006] QSC 026 PARTIES: PHILIP-JOHN CRAIG (applicant) v THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES (first respondent) NORTHERN REGIONAL COMMUNITY CORRECTIONS (CHERMSIDE) (second respondent) FILE NO/S: BS No 10076 of 2005 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 23 February 2006 DELIVERED AT: Brisbane HEARING DATE: 14 February 2006 JUDGE: White J ORDER: Dismiss the application of Philip-John Craig filed 25 November 2005. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where home detention order cancelled – where earlier decision sought to be reviewed overtaken by subsequent decision – application to dismiss application summarily Corrective Services Act 2000, s 149(1) and s 150 Corrective Service Regulation 2000, s 33(4) Judicial Review Act 1991, s 48(1)(a)(i) and (b) Millar v Chief Executive, Department of Corrective Services, unreported decision of McMurdo J of 27 August 2004. COUNSEL: Applicant appeared on his own behalf M O Plunkett for the respondent Chief Executive SOLICITORS: Applicant appeared on his own behalf Crown Solicitor for the Chief Executive -- 1 of 5 -- 2 [1] The respondent to this application, (“Mr Craig”) has brought an application (“the principle application”) filed on 25 November 2005 for a statutory order of review in respect of two decisions made by the Northern Regional Community Corrections (Chermside) and one “procedure” of that office. The respondent Chief Executive has brought an application that the principle application be dismissed pursuant to s 48(1)(a)(i) and (b) of the Judicial Review Act 1991 (“the Act”) on the grounds that it would be inappropriate for proceedings to be continued because they would serve no useful purposes, alternatively that there is no reasonable basis disclosed for the application when reference is had to the information on which the impugned decisions were based and the legislation which governed those decisions. [2] Mr Craig is serving a term of imprisonment of 14 years and 10 months for a number of armed robberies and other offences. His full-time discharge date is 22 July 2007. He is presently residing at Palan Creek Correctional Centre. [3] On 15 March 2005 he was released on a home detention order to reside with his mother. The reporting office on release was the Brisbane North Community Corrections Office at Chermside. Mr Craig’s release was subject to certain conditions, the relevant ones being: (f) that the prisoner not commit an offence; (h) that the prisoner abstain from the consumption of alcohol or non-prescription drugs; (i) that the prisoner give a test sample of breath or urine when directed by a corrective services officer; (p) that the prisoner comply with the conditions included in this order (s) that the prisoner be of good behaviour during the home detention period. [4] In the information sheet that was provided to him on release and which he signed as having received the following appeared “Whilst on home detention/parole you will be subject to urine analysis. A ‘dirty’ urine test may result in your order being suspended. It is therefore important that you are aware that many medications, including ‘over the counter drugs’ can test positive for the same ingredients that are contained in illegal drugs.” And at the foot of the information sheet appeared the following: “NB If there are any doubts as to why or how you provided a ‘dirty’ urine test it is possible that your home detention could be suspended and you return to custody whilst further tests are undertaken. Therefore medications that will provide positive readings for illicit drugs should be taken only if absolutely necessary and therefore be prescribed to you by a Doctor.” [5] On 29 March 2005 the applicant was subject to a random urine test. He provided a sample of his urine for testing. The Department of Corrective Services Administrative Form used for a community drug test required, inter alia, that the tester mark a “+” for a positive test result. In the test box identified as “MOR -- 2 of 5 -- 3 Opiate” appears a + sign (no longer relevant as Mr Craig provided proof of medication) and in the test box “THC Marijuana” appears a + sign. In the lines for additional comment appears “feint [sic] – THC (...) single test – positive – THC Following test offender advised passive smoking of THC then admitted to use.” Mr Craig has signed that form. [6] The Chief Executive suspended Mr Craig’s home detention order for 28 days pursuant to s 149(1) of the Corrective Services Act. [7] Section 149 provides relevantly “(1) The chief executive may, by written order, suspend a post- prison community based release order for up to 28 days if the chief executive reasonably believes the prisoner – (a) has failed to comply with the order ...” [8] The belief held by the delegate of the Chief Executive in the order dated 29 March 2005 was a belief that the prisoner had consumed an illicit drug in that on 29 March 2005 he provided a sample of his urine which tested positive to THC and further he admitted to such use. It will be recalled that a condition of Mr Craig’s post-prison home detention order required him to abstain from the consumption of alcohol or non-prescription drugs. Mr Craig was advised of the suspension of his home release. [9] The applicant’s sample of urine was subsequently analysed by a government analyst. The result showed the presence of a minute quantity of tetrahydrocannabinol – less than 15 ng/mL – characterised as a negative result. The date of that analysis was 22 April 2005. [10] The acting senior community correctional officer in his report dated 4 April 2005, after setting out the facts and circumstances of the alleged breach and that Mr Craig had been otherwise conforming with the conditions of home detention, recommended that Mr Craig show cause why his order should not be cancelled. [11] By letter dated 4 April 2005 Mr Craig wrote to the community corrections board giving an explanation for his positive urine test. He wrote “One afternoon I found myself in the company of two individuals, who, when sitting down in my room lit up a joint. I didn’t want any at first but after being persuaded did take a couple of puffs. The reading on the test was minimal, but that doesn’t affect the fact that I had a ‘minor lapse’.” A few sentences on Mr Craig wrote “I admit that I had a lapse, it was a stupid thing to do...” Mr Craig then proceeded to talk about his proposals for prevention discussing abstinence and attending at Biala. -- 3 of 5 -- 4 [12] Mr Craig wrote again by letter dated 6 April to Mr Jay Lequertier, a community corrections officer, about his 28 day suspension. The tone of the letter is a clear acknowledgement of breaching the conditions relating to drug use. [13] By notice dated 22 April 2005 and pursuant to s 150 of the Corrective Services Act the community corrections board suspended Mr Craig’s home detention order for an indefinite period because of his breach of a condition of his order by testing positive for tetrahydrocannabinol on 29 March 2005. He was invited to show cause within 21 days. Section 150 permits a corrections board by written order to suspend a post-prison community based release order if the board reasonably believes that the prisoner subject to the order has contravened the order, s 150(a)(i). [14] By order dated 13 May 2005 the community corrections board cancelled Mr Craig’s home detention order on and from 29 March 2005 on the ground that it reasonably believed that he had contravened condition (h) of his post-prison community release order. He was invited to show cause within 21 days. In the meantime the laboratory test dated 22 April had become available which indicated that the positive reading of the office urine test was incorrect. [15] By its letter dated 21 June 2005 the community corrections board confirmed its original decision to cancel Mr Craig’s home detention order because of breach of the conditions of the post-prison release order. [16] In response to Mr Craig’s then solicitors’ request, the community corrections board provided a statement of reasons dated 7 July 2005. The board particularly relied on Mr Craig’s admissions in his various letters that he had breached the conditions of his post-prison release order. It noted the very low reading of the laboratory test but was satisfied that nonetheless Mr Craig had breached those conditions. It took into account Mr Craig’s assertion that he was under pressure at the time that the urine sample was tested at Chermside to make admissions but did not accept that this was the case. It noted that Mr Craig remains eligible to reapply for post-prison community based release mentioning the positive contribution he had made to the care of his mother whilst in the community. [17] Mr Craig complains that the reliability of the urine test even of the government laboratory testing process suggests that in some way the decisions made about his post-prison community release were invalid. He now wishes to demonstrate that no friends were at his mother’s house on the day of the test to support his contention that he “made up” his admissions to gain an advantage. As he is aware this court does not embark on a merits review. [18] It is clear on the material that the administrative action taken by the board in suspending the order for 28 days and then suspending it indefinitely and finally cancelling it was justified on the evidence available to the board and permissible within the provisions of the Corrective Services Act to which reference has been made. There are no procedural errors identified. [19] Further, a review of those earlier administrative decisions and that conduct are to no purpose against the decision of the board which now operates upon Mr Craig. [20] In reality, Mr Craig is concerned to have the positive tetrahydrocannabinol reading from the Chermside office expunged from his file. He relies upon the decision in -- 4 of 5 -- 5 Millar v Chief Executive, Department of Corrective Services, unreported decision of McMurdo J of 27 August 2004. That was a different case. Section 33(4) of the Corrective Services Act provided that a prisoner who failed to supply a urine test sample within a reasonable time is taken to have given a positive test sample. The deeming provisions of s 33(4), his Honour found, did not of itself prove that Mr Millar had consumed or inhaled a substance likely to induce an intoxicated state. Nor did it prove that he had done so wilfully. Accordingly the decision of the delegate that Mr Millar had wilfully consumed or inhaled anything likely to induce an intoxicated state in breach of s 15(1)(k) of the Corrective Services Regulation 2001 could not be made from a finding that he had failed to provide a sample of his urine within a reasonable time. This was a fundamental error of law. His Honour concluded “But it is necessary to ensure that the finding of this breach of discipline be expunged from the Register kept under s 90 of the Corrective Services Act and I will further order that the person in charge cause details of these decisions to be deleted from that Register.” [21] As can be seen, that decision has no application to this. [22] I am persuaded that the application to dismiss the principle application should be made. [23] The order is: Dismiss the application of Philip-John Craig filed 25 November 2005. -- 5 of 5 --