Bellis v Queensland Corrective Services Commission & Ors [1995] QSC 38

scq~{o3B State Reporting Bureau 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 DERRINGTON J Appeal No 726 of 1994 STEPHEN JOHN BELLIS and THE QUEENSLAND CORRECTIVE SERVICES COMMISSION and RONALD ARCHER and JEFFREY AHERN and JAMES HARDIE BRISBANE .. DATE 13/02/95 JUDGMENT REVISED CCPIES iSSUED State Reportinq Bureau Date --~? I I 0--2.- r'l) Applicant First Respondent Second Respondent Third Respondent Fourth Respondent 4th Floor. The Law Courts, George Street, Brisbane. Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 7 -- 130295 (Derrington J) HIS HONOUR: This is an appl:c_cation for a judicial review of the decision of the Queensland Corrective Services Commission in an appeal by the applicant against a reprimand by way of punishment in relation to his conduct in the conduct of a matter under his control i~volving a prisoner on parole, Powers. The applicant, in turn, was generally supervised in his work by other officers in his area, including the Area Manager. Information was received by the applicant through departmental sources that Powers was in breach of his parole. One aspect of the breach was that he was no longer living at the address at which he was required to live, but there was also a serious infringement in his having travelled to Fiji on 27 May 1 993 without approval. The parole was cancelled and a warrant was issued for his arrest, but he was not informed of this because his whereabouts were unknown. Unexpectedly, he turned up to report to the applicant in accordance with the terms of his parole. For various reasons which are not relevant here the applicant did not inform him of the cancellation. Instead he took details of his new address, made an appointment for a further reporting about six weeks later, and then, after Powers had left, he reported the matter to the appropriate unit of the Corrective Services Department to enable them to arrest him. That was done quite promptly and within a few days the applicant discussed with his Area Manager his concern that the 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 7 -- 130295 (Derrington J) arrest was not proceeding satisfactorily. Within about another week the applicant left that particular position for another position in a different part of the service, and the matter was entirely out of his hands from then on. In the course of time Powers <:vas arrested, but the applicant 10 was charged in the following terms: 43.1(e) of The April 1993 and 12 to comply with a the Commission by the name of Darren "That in accordance with section Corrective Services Act 1988 between 29 July 1993 you showed wilful failure lawful direction issued to you by continuing to supervise an offender by Lee Powers after cancellation of his failed to advise Powers that his cancelled." parole order and parole had been 20 The essential feature of the wrongdoing alleged resides in the failure to notify Powers of the cancellation, for there cannot have been any fault in the continuance of the supervision; and 30 the contrary was not argued. The foundation for the charge was a directive that was sent to the management of the various areas of the service and in turn brought them to the attention of their staff including the 40 applicant. It read as follows: "Upon receiving advice of the cancellation or the suspension of a Parole Order the Area Manager, in conjunction with the supervising Community Correctional Officer will, in consideration of the likely reaction with the Parolee, formulate an appropriate action plan for advice to be provided to the Parolee and where considered necessarily liaise with the Corrective so Services Investigation Unit in relation to its issuing of a warrant." On being found guilty of the charge, the applicant was reprimanded and took the matter on appeal to the Commission. If the Commission had merely found that his conduct in 60 3 JUDGMENT -- 3 of 7 -- 130295 (Derrington J) handling the matter was incompetent upon the facts before them, and if that were the charge, it is difficult to see how this matter could be entertained within this jurisdiction. However, the difficulty arises, and it is the only difficulty of any substance in the matter, that the Commission may have misdirected its attention to a most relevant issue based upon 10 a wrong interpretation of the directive quoted above. Among its findings of fact the Commission found as follows in paragraph 3 (e) : "That writ ten evidence exists which shows Mr Bell is 20 signed an acknowledgment that he had received his instructions. However, in relation to prisoner Powers, Mr Bellis continued to supervise the parolee concerned without informing him that his parole order had been cancelled. Prisoner Powers remained at large until being subsequently arrested by police on approximately 12 July 1 993. 11 Apart from the bare fact that he did not inform Powers of the cancellation, this is remarkably uninformative as to precisely what the Commission found by way of fault, and the only light that is shed upon that is contained in the Reasons for Decision which, where relevant, read as follows: "Reason for the Decision: The Appeal Tribunal made its determination for following reasons: a. The action taken by Mr Bellis was contrary to the direction relating to the cancellation of a prisoner's parole, dated 8 December 1992, which was 30 40 attested to have been received by him." so As learned counsel for the Commission very properly acknowledged, the directive did not require the applicant to give notice to Powers. It required him only in conjunction with the Area Manager in consideration of the likely 60 4 JUDGMENT -- 4 of 7 -- 130295 (Derrington J) reaction of the Parolee, to formulate an appropriate action plan for advice to be provided for the Parolee. It is not possible to come to the conclusion that on the appeal the Commission directed itself correctly on this point because its statements as to its findings and its reasons simply do not go to the issues. Indeed, to the extent that it expresses these things, its expression at least implies an incorrect approach. The best interpretation of what it said suggests that it found that the applicant was in breach of the directive by not informing Powers of the cancellation. The correct approach would necessarily have involved a recognition in the first instance that the directive did not require the applicant to inform Powers of the cancellation. 10 20 30 It required consultation between the Area Manager and the applicant and nothing more than that. But he was not charged with failing to consult, and if that had been the charge, it may have been found that he was justified. Moreover, from a practical point of view, the directive probably did not ever intend that there be a strict invariable rule that the parolee should always be informed immediately on contact of the matter of cancellation of his parole. Indeed, the provision for consultation to meet suggests the contrary. each particular case The correct issue in relation to the directive then is whether the applicant had taken proper steps to consult with the Area Manager. In that respect he spoke to that officer a few days 5 JUDGMENT 40 50 60 -- 5 of 7 -- 130295 (Derrington J) later, informing him of the matters of progress relating to the matter. It is not suggested that the Area Manager on that occasion made any point as to whether the parolee had been informed, presumably because as a matter of practicality both parties expected that the parolee would either be arrested promptly or could be informed if he reported again at the appointed time. These considerations, however, are largely irrelevant except to demonstrate that it cannot be assumed that the applicant 10 was at fault in failing to consult. The same should be said 20 of his claim that by reason of their absence at the time he could not consult with his superiors. The merits of the applicant's conduct in relation to these matters is not really in issue here and in no way does this Court pretend to have jurisdiction to investigate their merits, except to the extent that there may be an error of law, if, for example, as claimed in this case, the Tribunal misdirected itself as to the material facts which were necessary to sustain the charge. The findings and Reasons for Decision of the Commission makes no mention of these issues. While their terms are far from plain, offer any indication at all as to to the extent that they the approach of the Commission, it appears that it did not direct its attention to these issues and it certainly made no finding of any facts which could sit at all comfortably with what was necessary in order to sustain a charge based on a failure to consult. 6 JUDGMENT 30 40 50 60 -- 6 of 7 -- 130295 (Derrington J) In defence of the Commission it might properly be argued that the charge which it was hear~ng was confined to a failure to inform the parolee. However, the Commission seems to have fallen into the trap of following the error of the charge in interpreting the directive as requiring the applicant to inform the parolee at the time. That line was even adopted in 10 argument on this application. No doubt this is why its finding and reason were so expressed. In those circumstances, it could not properly have found him at fault for the charge had no foundation. In those circumstances, the application should be upheld. So far as consequential relief is concerned, I am told that the Tribunal has now been disbanded and the matter cannot be remitted to it for proper determination. In those circumstances, the finding of the Tribunal must be set aside. No order then follows in relation to the determination which and the matter unhappily rests 20 30 the Tribunal should have made, in limbo, which the parties resolve one way or the other. 40 themselves will be required to The applicant's costs of the application are to be paid by the first respondent. There is to be no other order as to costs. 7 JUDGMENT 50 60 -- 7 of 7 --