Elliot v Queensland Community Corrections Board [2004] QSC 95

SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION FRYBERG J [2004] QSC 095 No S11423 of 2003 MICHAEL FREDERICK ELLIOT Applicant and QUEENSLAND COMMUNITY CORRECTIONS BOARD Respondent BRISBANE ..DATE 19/04/2004 JUDGMENT 1 categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those -- 1 of 8 -- 19042004 T27/CAL8 M/T 4/2004 (Fryberg J) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an application by Michael Frederick Elliot to review a decision of the Queensland Community Corrections Board refusing his application for exceptional circumstances parole, pursuant to section 133 of the Corrective Services Act 2000. The applicant was sentenced to nine years' imprisonment on 1 November 2001. The sentencing Judge ordered that he be eligible for post-prison community release after serving a period of three and a-half years. The Judge did not include the word "only" in that order but nothing turns on that fact: compare section 157 of the Penalties and Sentences Act 1992. The applicant applied for the order on 9 April. The basis of the application was his wife's medical condition. The applicant is in his sixties and so, I think, is his wife. She suffers from multiple sclerosis, a condition which has resulted in her becoming blind and also she has suffered from breast cancer, a condition which has resulted in her having a mastectomy and which has left her at risk for the future. The applicant appealed his sentence to the Court of Appeal but that appeal was dismissed on 14 May 2002. Much of the evidence relating to his wife's condition was before the Court of Appeal. It is not altogether clear how the Court took that evidence into account but no point has been taken on that basis. The evidence that was available to the Court of Appeal consisted of two medical reports which were tendered before that Court, together with the material before the trial Judge. -- 2 of 8 -- 19042004 T27/CAL8 M/T 4/2004 (Fryberg J) 3 JUDGMENT 1 10 20 30 40 50 60 All of that material would have been relevant to the proposition that imprisonment would have been harder upon the applicant than it would have been upon an ordinary prisoner because his wife's condition meant that she was, in effect, a prisoner in her unit, having no-one to care for her save for short periods of each week. It must be assumed, I think, that in this sense the Court of Appeal took into account the material which was before it. The applicant submits before me that his wife's condition has deteriorated since then and that this factor has not played any part in the decision of the respondent. He also submits that the respondent denied him natural justice by taking into account a report by a Ms Blake, a copy of which was not provided to him, and which he submits he did not have any opportunity to rebut. He further submits that the respondent failed to give due weight to the totality of the evidence regarding his wife's condition. Further, he relies upon an erroneous statement in that report, namely the statement that the applicant had been given, in principle, approval for short reintegration leaves of a few hours per month to see his wife. There is, finally, a general submission that the term "exceptional circumstances" must have been misinterpreted. The submission regarding the erroneous statement "may be disposed of quickly" - that statement does not seem to have played any part in the decision and, in my judgment, the fact -- 3 of 8 -- 19042004 T27/CAL8 M/T 4/2004 (Fryberg J) 4 JUDGMENT 1 10 20 30 40 50 60 that it was before the Board does not assist the applicant in the present application. It seems to have been a very minor factor in the whole scheme of things, in any event, and it does not, in my view, invalidate any decision which was made by the Board. The respondent contended that there was no obligation on it to provide a copy of the report by Ms Blake to the applicant. The report was based on a lengthy interview which Ms Blake had with the applicant and was a central document in the respondent's decision on the application. It seems to me that the applicant is quite correct in submitting that he ought to have been provided with a copy of the report. Mr McLeod relied upon the decision of Justice Ambrose in Re Solomon [1994] 2 QdR 97, particularly at page 108, but in my judgment the passage there does not support the submission in the present case. The facts of the present case are, in my view, much closer to those in Pollentine v. Attorney-General [1995] 2 QdR 412; see especially at page 417. It was, I think, a breach of the requirement for fairness on the part of the respondent to fail to provide a copy of the document. What consequence does that have? Counsel for the applicant pointed out that until the last paragraph the report is supportive of the application and that submission is, I think, -- 4 of 8 -- 19042004 T27/CAL8 M/T 4/2004 (Fryberg J) 5 JUDGMENT 1 10 20 30 40 50 60 correct. Indeed the comment on exceptional circumstances made by Ms Blake in relation to the change in circumstances might even be regarded as somewhat more favourable to the applicant than the medical evidence would support. Be that as it may, there is nothing in the report which could possibly be regarded as detrimental (except of course for the one error to which I have already referred) apart from the final recommendation. That recommendation is in the following terms, "It is respectfully recommended that Mr Elliot's application for exceptional circumstances parole not be granted. The seriousness of Mr Elliot's wife's current medical condition and the level of care required as a result are significant. However, it would appear that the Court of Appeal has already considered these factors and that there would be other avenues for Mrs Elliot's needs to be met other than through the granting of this application." No point was taken about the second limb of the last sentence. As to the first, I accept the view that the Court of Appeal has taken the relevant matters into account as has been suggested. It was submitted on behalf of the applicant that failure to provide the report meant that the applicant did not have the opportunity to make submissions about the position before the Court of Appeal. When I pressed counsel for particulars of what the applicant would have said, none was forthcoming. -- 5 of 8 -- 19042004 D.1 T28/EMW17 M/T 4/2004 (Fryberg J) 6 JUDGMENT 1 10 20 30 40 50 60 I note that the applicant himself advanced none in his most recent affidavit where he swore that he would have made submissions had he been given the opportunity to make what he called proper written submissions. He was a solicitor. In fact, he had made a written submission less than a week earlier when he applied for compassionate leave. That written submission was before the Board on his application for parole and in my view it says everything that the applicant could possibly have said regarding the position at the time of the Court of Appeal hearing and since. Consequently, it seems to me that although the applicant ought to have been provided with a copy of the report, the failure of the respondent to provide it has not been productive of any miscarriage of justice. The applicant refers to the condition of his wife at some length in his application. However, the fact of the matter is most of what he has referred to has already been taken into account in sentencing him: compare R v Maxfield [2002] 1 QdR 417. I am not persuaded that he has demonstrated that the total gravity of the situation is such that the Board could not have reached the decision which it did, or must have misinterpreted "exceptional circumstances". It is not possible to infer that relevant considerations have been ignored nor is it possible to conclude that this is a situation of Wednesbury unreasonableness. -- 6 of 8 -- 19042004 T29/PAB02 M/T 4/2004 (Fryberg J) 7 JUDGMENT 1 10 20 30 40 50 60 I would add that the deterioration in Mrs Elliot's condition, since the Court of Appeal decision, has not been demonstrated to be anything which would be surprising in the light of what was known and expected at the time of the sentencing and of the appeal. I have taken into account the passage to which I was referred, very properly, by Mr McLeod from the Explanatory Notes accompanying the Corrective Services Bill 2000, and, in particular, the example of a prisoner who is the sole carer of a spouse who contracts a chronic disease requiring constant attention. While there is, no doubt, material before me - and which was before the Board - which raises some level of sympathy for the applicant and particularly for his wife - it does not seem to me that he has not had a proper hearing before the Board. This Court does not have jurisdiction to review the decision on the merits. It has not been demonstrated that the decision is affected with error. The application is dismissed. ... HIS HONOUR: The applicant resists a cost order on the grounds that such an order may impact on Mrs Elliot; that the applicant is in prison; that the applicant has no money and may well go bankrupt; and that the order would be futile. I agree that it is likely that order will be futile. However, that is a problem for the respondent. It has asked for costs. -- 7 of 8 -- 19042004 T29/PAB02 M/T 4/2004 (Fryberg J) 8 JUDGMENT 1 10 20 30 40 50 60 Nothing that has been said satisfies me that it is an appropriate case to depart from the usual order. Consequently, the application is dismissed with costs. ----- -- 8 of 8 --