Byron v West Moreton Regional Community Corrections Board [1995] QSC 195

I ! \ I t TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J APN No 113 of 1995 SHANE WILLIAM BYRON and WEST MORETON REGIONAL COMMUNITY CORRECTIONS BOARD BRISBANE .. DATE 06/07/95 JUDGMENT Applicant Respondent 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 12 -- 060795 tgc (Williams J) HIS HONOUR: This is an application pursuant to section 20 of the Judicial Review Act 1991 to have the Court review a decision of the West Moreton Regional Community Corrections Board made with respect to the applicant on 5 November of 1992. The reason for the significant delay between the making of that decision and the matter coming before the Court will appear later. The background to the decision can be briefly set out. 9 February 1990 the applicant was sentenced by Carter imprisonment for three years on drug related charges. J On to His Honour then recommended that the applicant be considered for 10 20C\ parole after serving six months of his sentence. On 2 August () 1990 the West Moreton Regional Community Corrections Board, the respondent, ordered that the applicant be released on 30 parole pursuant to section 165 of the Corrective Services Act 1988. The parole order then made is before the Court, one copy of which is Exhibit 2. The applicant signed that order declaring that he understood the requirements of his parole and undertook to comply with them. The order was in the usual form which included, inter alia, conditions that he abstain from violation of the law, carry out lawful instructions of the community correctional officer,and that he undergo drug counselling. JUDGMENT 2 40 50 60 0 0 -- 2 of 12 -- ( ' (' 060795 D.1 Turn 10 ck (Williams J) The order contained the endorsement informing the applicant that he was still under sentence and the Board could cancel his parole at any time. It also informed him that if he was sentenced to another term of imprisonment, his parole would be automatically cancelled. The applicant came under the supervision of Barney Kelly, who was the Community Correctional Officer for the Near North Coast Region based at Noosa. In November 1990 Kelly received a complaint from one Childs, who was the licensee of the Pomona Hotel, to the effect that the applicant had threatened the licensee on at least two occasions and had on one occasion attempted to strike the licensee with a bar stool. Kelly made that the subject of a memorandum to the respondent dated 6 December 1990. He formally gave a direction to the applicant not to frequent that particular hotel for a period. Then on or about 25 September 1992, it would appear on information provided to the respondent, the applicant was involved in an incident at the Queen's Hotel, Gympie. In that incident, it would appear, that an employee of the hotel was injured. A solicitor acting for the applicant informed Kelly that the applicant was going to deliver himself up to the police in relation to that incident. On 29 September 1992 the applicant was charged with causing grievous bodily harm. On 1 October 1992 Kelly interviewed the applicant and asked him some questions about that particular incident. It is accepted by Kelly that the applicant declined to answer some questions on the basis that he had been advised by his solicitor not to answer any questions relating to that JUDGMENT 3 10 20 30 40 50 60 -- 3 of 12 -- 060795 D.1 Turn 10 ck (Williams J) incident • However, to Kelly, the 10 applicant indicated to him that he had been drinking at the hotel and had become intoxicated, that he had been asked to leave, that he had done so, but had later returned, on which occasion he was thrown out on to the footpath, and, thereafter, events occurred of which the applicant had only a vague recollection. But in the course of the conversation, according to Kelly, the-applicant accepted that he may have produced a pocket knife and used it to defend himself. Kelly contacted the Magistrates Court and obtained details of the charge and the terms on which th8 applicant had been qranted 20 () bail. Within about an hour of his speaking to the applicant on 1 October, Kelly completed his incident report of that date C': to the respondent. He attached to it a copy of some newspaper accounts of the incident at the Queen's Hotel. Reference is 30 made to that newspaper report in the course of the incident report. Having received that report, the respondent Board wrote a letter of 15 October 1992 formally calling on the applicant to show cause. The letter was addressed to the applicant care of the Noosa Conmunity Corrections 40 Office and was rather brief. It merely stated: "The Board has received a progress report from your Community Correctional Officer in regard to your conduct on parole. It is requested that you appear before the Board at its next meeting at Wacol Correctional Centre on Thursday, 5 November 1992 at 10.00 a.m. to show cause." That letter was given by Kelly to the applicant and the latter admits receiving it. Keliy has no specific recollection of explaining in detail to the applicant what was meant by "show cause" but said ti.11.at it was invariably his practice to do so when JUDGMENT 4 50 60 G -- 4 of 12 -- 060795 D.1 Turn 10 ck (Williams J) persons on parole or probation under his jurisdiction were given such a notice. Initially in his material the applicant denied that he had been given any information as to what was involved with respect to the show cause notice, but in his affidavit filed 21 June 1995 he says that he does recall his Community Corrections Officer advising him that he had to attend and explaining, "That I had to attend and discuss how my parole was going and·to answer questions about the incident at Gympie." rt must also be said that the applicant got notice of that show cause procedure on or about 21 October 1992 and at that time he had engaged solicitors with respect to the Gympie incident and was acting on advice of those solicitors when asked questions about the Gympie incident. In fact, the applicant appeared before the Board on 5 November 1992. There is a factual dispute as to what transpired before the Board but I accept the contents of the affidavit of Paul McNally Fallu, the President of the Board, as to what then transpired. I am satisfied that at the outset Fallu addressed words to the applicant to the following effects, "These are proceedings requiring you to show cause why your parole should not be cancelled as a result of reports received by us from your Community Corrections Officer." I am also satisfied that at the outset of the hearing, the President read to the applicant the incident report of 6 Decem0er 1990 relating to the incident at the Pomona Hotel and the incident report of 1 October 1992 relating to the incident at-the Queen's Hotel, Gympie. That meant that the JUDGMENT 5 10 20 30 40 50 60 -- 5 of 12 -- 060795 D.1 Turn 10 ck (Williams J) applicant had full information of the matters which were being alleged against him and which were of interest to the Parole Board. When I say that the incident report of 1 October 1992 was read, the substantive document was read which contained reference to the newspaper report. However, the newspaper report itself was not read to the applicant. There was some questioning of the applicant and some answers made by him. It will be necessary to say a little more about that in a moment. At the conclusion of the hearing, it would appear that no formal announcement was made in the presence of the applicant 10 ~o as to the outcome. Apparently, the Board deliberated on that (~l day after the hearing at which the applicant was present, and its decision was formulated in a letter of 5 November 1992 which was addressed to the applicant again care of the Noosa Community Corrections Office. The critical part of that document is in these terms: "The Board has given careful consideration to Mr Kelly's report on your verbal submission and have determined as follows: upon the request made by the Board for you to appear personally before it in relation to your current response on parole, it is considered that you have failed to show cause why your parole should not be cancelled due to your conduct, particularly when threatening the barman from the Pomona Hotel in April 1990 and more recently in relation to the incident which occurred in the Queen's Hotel, Mary Street, Gympie, where it has been noted that you denied stating to anyone that you may have produced a pocket knife and used i~ to defend yourself. The Board accepts the report from Mr Kelly that you had, in fact, made the last mentioned statement to him and on that basis it is clear that your response to parole is unsatisfactory, justifying your parole being cancelled from this date.'' Apparently, that decision was communicated by telephone to the JUDGMENT 6 30 0 40 0 50 60 -- 6 of 12 -- 060795 D.1 Turn 10 ck (Williams J) de facto spouse of the applicant. The applicant concedes that she informed him of that detail. According to Kelly, on 10 November 1992 the applicant telephoned him in response to a message left at his home and asked that Kelly read over to him the contents of his mail from the Board. On that occasion Kelly informed the applicant of the contents of the letter I have just quoted. Consequently, it is clear that as and from about 10 November he was aware of the decision. Thereafter, he failed to report at all to his Community Corrections Officer and he also appears from about that time to have failed to honour his bail reporting conditions with respect to the Gympie incident. He conceded frankly in evidence today that one of his reasons for failing to report was that he believed that a warrant would be in existence for his apprehension in consequence of the respondent's decision. It appears that he was not then apprehended until September 1994. In other words, for about· two -years he evaded apprehension in consequence of the respondent's decision. That, of course, explains the delay in the bringing of this application. In December 1994 an application was made to the respondent Board for a statement of reasons and those reasons were received in February 1995. I accept in broad terms the accuracy of those reasons but the comment must be made that reasons written some two years after a decision was reached 10 20 30 40 50 are not necessarily likely to accurately reflect the mental processes that the members of the Board went through at the actual time the decision was made. But, nevertheless,. in my view, the reasons broadly reflect the reasoning behind the decision. JUDGMENT 7 60 -- 7 of 12 -- 060795 D.1 Turn 10 ck (Williams J) Consequent upon a directions order of this Court, particulars were supplied by the applicant of the alleged failure to afford him procedural fairness or natural justice. A number of particulars were given but in the end only two aspects were really the subject of detailed argument today. The applicant contended that the newspaper report annexed to Kelly's incident report about what happened at the Queen's Hotel was a material document and he had no opportunity of replying to it. A number of points can, in my view, be made with respect to that. Firstly, as I have already said, the incident ~eport was read to him and that made mention of the newspaper report. At the time the applicant made no request of the Board to be shown a copy of the newspaper report and made. no attempt to address any of the observations contained in Kelly's incident report relating to that newspaper report. Fallu has said in his affidavit that the newspaper report was not something which was considered by the Board and I see no reason to reject that evidence. Secondly, it seems to me, that the newspaper report was not of such significance as to vitiate the Board's decision. It added nothing new to what really was already known about the incident. It may have used somewhat more inflammatory language in describing what happened,but, in essence, the issue of concern for the respondent was what happened at the Queen's Hotel and the applicant had been aware for sometime that that is the issue that would be raised when he appeared before the Board to show cause. If anything, at most, the newspaper cutting would have provided a basis on which the members of the Board could have formulated some questions to put to the applicant. But it is clear, in my JUDGMENT 8 10 CJ 30 40 0 50 60 -- 8 of 12 -- / ! ( \ 060795 D.1 Turn 10 ck (Williams J) view, that the decision that they reached was based on the questions and answers in the course of the hearing which related to the incident at the hotel and not on the media report. It is then said that the decision as recorded in the document of 5 November 1992 was really based on the 10 proposition that the applicant lied to the Board. And it is then said that it was not made clear to him that if he lied to the Board, his parole could be revoked. I do not regard the statement in the document of 5 November as indicating that. 20 The affidavit of Fallu, and the reasons subsequently qiven by the Board, make it clear that there was some questioning of the applicant as to the Gympie incident and that some answers were made. It appears that he may well have denied before the Board ever saying that a knife was involved and he may well 30 have at or about that time indicated he was not prepared to answer questions with respect to the incident. The Board, in my view, was not obliged to accept his · denial. It was entitled to have regard to his demeanour, to the answers that he had give~and to the incident report from Kelly. The Board appears to have come to the conclusion that he made the statement and there can be no factual appeal with respect to that. The only question is whether or not it was incumbent on the respondent to make it known to the applicant that his credit was in issue and was likely to affect the outcome. In the circumstances, it is my view that procedural fairness does not require, in the circumstances which existed here, the Tribunal to indicate to the person in the position of the applicant JUDGMENT 9 40 50 60 -- 9 of 12 -- 060795 D. 1 .Turn 10 ck (Williams J) that any adverse finding made with respect to credit will be a relevant circumstance when it comes to the decision. But all of that, in my view, is largely rendered irrelevant because when one looks carefully at the document of 5 November 1992, it is clear, in my view, that the Board directed its attention to the critical question and that was whether or not the parole should be cancelled due to the conduct associated with the Pomona Hotel incident and the Queen's Hotel, Gympie, incident. Having considered those two incident~ and the statements made to the Board by the applicant in his verbal submission showing cause, the respondent came to the conclusion that the applicant's response to parole was unsatisfactory and that his parole should be cancelled. In those circumstances, I cannot see that there was a failure to afford natural justice. Counsel for the applicant relied · on the decision of the High Court in Smith v. The New South Wales Bar Association (1992) 176 Commonwealth Law Reports 256. In my view, that case is clearly distinguishable and the reasoning 10 20 C) () 30 40 is not of present assistance. Submissions were also made that (J the Board should have granted the applicant an adjournment but it is clear that the applicant made it known to the Board that he had received solicitor's advice in relation to the Gympie incident and he made no application for any adjournment. In those circumstances, I cannot see that there was any denial of procedural fairness. As I have said on a number of occasions, this is not a review on the merits of the Board's decision. It can only be JUDGMENT 1 0 50 60 -- 10 of 12 -- ( ( ( I ( . ~ 060795 D.1 Turn 10 ck (Williams J) attacked if it is established that there was some denial of natural justice. In all of the circumstances I am not persuaded that there was such a denial of natural justice and in all the circumstances, the application should be dismissed. JUDGMENT 1 1 10 20 30 40 50 60 -- 11 of 12 -- 060795 D.1 Turn 10 ck (Williams J) Any other orders? MS HOLMES: I seek my client's costs of the application. HIS HONOUR: What do you say to that? MR GALLOWAY: Your Honour, in the circumstances, such an order would be futile. My client will no doubt shortly have to 10 submit himself to a term of imprisonment. He is not in employment, will not be, and Your Honour has no capacity. HIS HONOUR: I think it would be a futile order in the circumstances, would it·not, Ms Holmes? MS HOLMES: Your Honour, it might or it might not be but my client should at least have the opportunity of recovering some of the costs if it can and, of course, it becomes a bit of an encouragement if there is simply no sanction, one can bring 20 c:)these applications without costs risks. HIS HONOUR: If your client has no funds, Mr Galloway, I suppose that is the end of the matter. It is probably that the ordinary order should be made and it is left at that. () MR GALLOWAY: Your Honour, I am still seeking that the order not be made because, Your Honour, the order - or the effect of it may hang over his head for a number of years which won't assist in any rehabilitation that he must undergo. Your 30 Honour might bear in mind that it has been the opinion of the parole officer that he has some authority problems. These are only going to make them worse. Your Honour won't make, with respect, a nugatory order. HIS HONOUR: In the particular circumstances of this case and (--) without in any way indicating that this ought to be the usual '---- order in circumstances such as this, I will make no order as to costs. MR GALLOWAY: Thank you, Your Honour. HIS HONOUR: The application is dismissed and no order as to costs. JUDGMENT 12 40 50 60 -- 12 of 12 --