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Onea v Chief Executive, Department of Corrective Services

 

[2002] QSC 182

 

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

FRYBERG J

No S3379 of 2002

CONSTANTIN FRANCISC ONEA

Applicant

and

 

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES

Respondent

BRISBANE

. . DATE 31/05/2002

JUDGMENT

HIS HONOUR: This is an application by Constantin Francisc Onea for review of a decision of the chief executive of the Department of Corrective Services refusing his request to participate in a WORC program.

A WORC program may be approved by the chief executive under section 56 of the Corrective Services Act 2000. Subsection 2 of that section provides:

“The chief executive may by written order (a community work order) grant approval for a prisoner to participate in (a) for a male prisoner - a WORC program.”

Section 57(2) provides:

“(2) When deciding whether to allow a prisoner to participate in a WORC or WCC program, the chief executive must consider—

(a)any recommendation of the sentencing court; and

(b)the risk the prisoner may pose to the community, including for example, by considering—

(i)whether the prisoner is likely to escape; and

(ii)the risk of physical or psychological harm to a member of the community and the degree of risk; and

(iii)the prisoner's classification; and

(c)anything else the chief executive considers relevant.”

The respondent did not actually make the decision which is under challenge in these proceedings. That decision was made by his delegate, Mr Colin McKenzie. The respondent is a proper party to the proceedings because, by reason of section 27A(7) of the Acts Interpretation Act, a delegated power that is properly exercised by the delegate is taken to have been exercised by the delegator.

Whether that means that the chief executive is not deemed to have taken any decision which is not properly made is an interesting question. Perhaps the parliament was approving the notion that chief executives can do no wrong. Be that as it may there has been in this case no challenge to the constitution of the proceedings with the chief executive as the only respondent.

It is material to have regard to some of the background in this case. The applicant was arrested on 7 September 1992 and subsequently charged on two counts of drug trafficking and five counts of possession, most or all of which charges related to heroin. He was tried in February 1994, convicted by a jury and was sentenced on 17 February to imprisonment for 20 years.

At the time he was sentenced the sentencing Judge said:

“You, Onea, in giving evidence exposed yourself as a brazen and barefaced liar, prepared to say anything to avoid retribution and punishment for your illegal trading in heroin. You have shown yourself to be completely devoid of remorse. Remorse for your illegal activities with drugs is completely absent. You have shown not the slightest concern about the effects that your sale and distribution of heroin may have caused.”

Other comments were made adverse to the applicant in the Court of Appeal when he appealed to it, particularly that he was not entitled, in the circumstances, to any leniency. The applicant has served the time since his conviction in a variety of prisons, but the history of his imprisonment shows clearly that he has, almost without exception, been well behaved throughout that time. There is one offence against prison discipline, but it is common ground, I think, that it is of no particular consequence.

He has participated in prison programs, and has received favourable recommendations at all stages of his progress through the prison system. He has gradually been reduced in his security classification to the point where he is now classified as open classification and minimum escape risk, and the sentence review team which most recently examined him recommended in favour of his participation in the WORC scheme.

It is material that he will become eligible for parole in September this year. He has been the subject of a sentence management plan, which has, among other things, identified his eligibility dates for such things as release to work, home detention and parole, and which has been created in accordance with what is now regulation 235 of the Corrective Services Rule Regulation, originally made under the Corrective Services (Administration) Act 1988, section 20(1), but more recently elevated to the status of a regulation by section 272(2) of the Corrective Services Act 2000.

Paragraph one of that regulation provides that its purpose is to ensure that offenders are managed in a manner that provides an integrated process for progression through the system and paragraph two provides that sentence management procedures, including admission, induction, assessment, planning and intervention, review and exit, must be in accordance with the procedures attached to the rule.

Very detailed procedures are attached to the rule, setting out sentence management plans and provisions for lightening the classification of prisoners in order to render them eligible for participation in such things as the WORC program.

The applicant first applied to participate in that program on 5 October 2001. The application which he made was referred to Mr McKenzie who at that time it seems was authorised to make recommendations to the Serious Offenders Committee who presumably had the authority to decide the application. Mr McKenzie decided that he could not support the application at that time. He advanced as his reason for that decision that the applicant posed a risk of physical or psychological harm to a member of the community which he regarded as serious.

The applicant challenged his decision. I have not regarded in detail all of the material that was put forward in the course of that challenge but such as has been placed before me is strongly indicative of the conclusion that this decision was completely unjustified by any evidentiary material placed before Mr McKenzie.

For whatever reason, the respondent took the view that it should consent to the order which the applicant sought. It did so on 30 January this year. On that day the Court ordered that the decision, presumably of the Serious Offenders Committee refusing the applicant placement on the WORC program, be set aside and the matter remitted for reconsideration according to law within 21 days. The respondents were ordered to pay the applicant's costs.

Despite that order, the respondent did not reconsider the matter within 21 days. No explanation has been given for this disobedience to an order of this Court. It is a serious thing for a chief executive of a Government department to fail to comply with an order of this Court, particularly when it is one which was made by consent.

No explanation for his failure to comply with this order has been advanced. His attitude is suggestive of a contemptuous one toward the Court. That perception is reinforced by the attitude which he took to a subsequent order in circumstances to which I shall shortly refer.

The matter was eventually reconsidered. It was reconsidered by Mr McKenzie, this time as decision maker. He sent a letter of 7 March 2002 to the applicant advising that he was the authorised delegate to consider the request to participate in the program.

He set out some information, which he said he was required to consider. He did so under headings reflecting the terms of section 57(2) of the Corrective Services Act 2000. He noted (wrongly) that the applicant had incurred four breaches, meaning, in the context, breaches of prison discipline. He noted a number of other matters. I will not set them all out.

The important part of his letter is this:

“In considering your application, I have reviewed the intelligence information that is held on you. The identity of informants and the contents of the relevant intelligence reports are subject to public interest immunity privilege.

It is apparent that between 1997 and August 2000, you were identified by informants on two occasions as a person who was using other prisoners to introduce drugs into correctional facilities.

In addition, people who visited you in prison and other associates of yours were targeted and returned positive drug dog reactions. I note, however, that no drugs were found on these occasions; however, it provides me with reasonable grounds to suspect that they had been in contact with prohibited substances.

I also note that on 22 December 1999, photos of correctional centres were found in your incoming mail.

It is noted from intelligence reports that you have many associates who have been involved in the drug trade.

In light of the information contained in intelligence reports, I am concerned that your placement on the program has the potential to allow you to broaden your network and organise the introduction of prohibited substances into both this facility and Western Camps. I am, therefore, considering not allowing you to participate in the WORC program, as I am of the view that it would be contrary to the good order of the program.”

Mr McKenzie then invited submissions from the applicant. The applicant responded to that invitation by a letter from his solicitors dated 13 March 2002. It is a lengthy letter, and I shall not set out everything that is in it.

It drew attention to a number of matters which it submitted were irrelevant, and responded in particular to the assertions which I have already quoted in relation to intelligence reports.

It did not seek access to those reports, though it recorded that the applicant had been denied access to them. Whether that reflected an earlier denial, I do not know. I assume that, had there been such an explicit request and denial, evidence of it would have been put before me.

The letter contained the applicant's denial that he had used other prisoners to introduce drugs into correctional facilities. It expressed surprise that these matters had not previously been brought to the applicant's attention and observed that no charges had been laid or breaches even reported. It complained of a lack of particularity in the statement and the failure to identify which correctional centre was involved. It asserted that the allegations were stale and lacking in credibility.

As to the assertion regarding the drug dog reactions, it queried how it was possible for the applicant to respond. The allegation covered a period of more than nine years over four correctional establishments and numerous unnamed people. The associates were not identified. In particular it was not indicated whether the people were other than visitors and no indication was given as to how the applicant could be expected to have any influence on these people.

It informed the delegate that the applicant contended he had not had any visits other than by family members and not made any phone calls or had not had any phone numbers on his phone account other than to family members and legal representatives. It pointed out that all outgoing correspondence went through the prison mail system.

As to the assertion regarding photos of correctional centres, the solicitor's letter submitted that the matter was irrelevant. It asserted that the applicant had some photographs taken at the Darling Downs Correctional Centre which may have been sent to him showing photographs of him with friends. It asserted that, if those were the photographs, then they showed the centre only coincidentally. Otherwise it is apparent that the solicitors were unable to respond through lack of particularity.

The photographs in question have not been identified and, although the day of the occasion was given, what happened to them was not indicated nor was there any indication of what was wrong with having a photograph of a correctional centre. Finally, the letter denied that the applicant had many associates who had been in the drug trade. It conceded that before the applicant's imprisonment the statement may have been accurate. It asserted that he had put all that behind him, his prison conduct being evidence of that, and that his life had completely changed.

The solicitors asserted that the decision makers' concerns about the applicant broadening his “network” and organising the introduction of prohibited substances into facilities was unfounded. They asserted there was no network, there was no association with drug dealers and the applicant had no wish to be involved in the drug scene. He wished to be released on parole and serve out that period and put that chapter of his life behind him.

The letter went on to draw attention to the favourable reports of the sentence management review team and other favourable documents. It raised no objection to Mr McKenzie being the person who had dealt with the matter.

Mr McKenzie made his decision on 25 March and communicated it to the applicant on that day by letter. He said in that letter that he had decided that the applicant was not suitable to participate in the program because it would be contrary to the good order of the program. He took into account the matters set out in his earlier letter and also he said, “I also considered the matters raised in the letter dated 13 March 2002.” That is the letter from the applicant's solicitors. He wrote that the applicant had committed only two breaches, not four as suggested in his first letter. He said that in reaching his decision he placed little weight on the breach history. He went on to say:

“In reaching my decision I noted that you received a lengthy sentence of 20 years for the drug-related offences for which you are currently in prison. In reaching my decision I placed the greatest weight on the intelligence information held on you. I am concerned that your placement on the work program has the potential to allow you to broaden your network and organise the introduction of prohibited substances into both this facility and the western camps. I confirm that the identity of informants and the contents of the relevant intelligence reports are subject to public interest immunity privilege.”

The reference to intelligence information is, in my judgment, clearly a reference to the material summarised in the passage which I have already quoted from the first letter.

The applicant then sought review of this decision by an application filed in this Court on 15 April. He asserts, and it is I think not challenged, that the decision will have the effect of delaying any release on parole - indeed he asserts that it will prevent it - and postpone his release to work and home detention programs.

The grounds of his application are as follows:

“3. The grounds of the Application are:

(a)the Respondent through the authorised delegate prejudged the Applicant's application upon erroneous facts;

(b)the authorised delegate relied upon material the substance of which was not brought to the Applicant's attention in breach of Sentence Management Procedures Rule 235 and the Applicant is suffering a serious denial of natural justice as a result;

(c)the authorised delegate gave undue weight to the alleged effect which the Applicant's presence on the program may have on that program;

(d)the authorised delegate gave too little weight to the importance to the Applicant of placement on the said WORC program;

(e)the authorised delegate failed properly to apply the provisions of the Sentence Management Procedures contained in rule 235 of the Prisoner Management Rules;

(f)the authorised delegate failed to have proper regard to section 56 of the Corrective Services Act 2000 and failed to apply the provisions of that section.

Particulars:

Section 56(4) allows the insertion of conditions in a community WORC order and the Respondent could have inserted appropriate conditions to ensure the integrity of the WORC program and the western camps whilst transferring the Applicant to that program.”

The matter came on before Justice Byrne upon a review on 26 April this year. His Honour made a number of orders on that occasion including an order that the parties provide a list of documents and disclosure of documents by 10 May this year. The applicant complied with that order. The respondent did not. On 14 May the applicant's solicitors sent a letter to the solicitors for the respondent drawing their attention to the fact that there had not been compliance with this order. They pointed out the existing noncompliance with the order for reconsideration made earlier this year and asserted that it then took 54 days, not 21 days, for the decision.

They further asserted that they were informed that this, referring to delay, had occurred repeatedly in the past with the Corrective Services Department, and in particular that “your client does not appear to have any respect for legal processes.”

In the event the order for disclosure of documents was complied with by the respondent on 28 May this year, that is, only three days ago, and well outside the time which was allowed. Again there has been no explanation put before me for this blatant disregard of the order of the Court.

It is noteworthy about this case that the respondent has not put forward any evidence at all. One affidavit has been read, and that was read only on the issue of a claim for public interest immunity, a claim which was pressed in relation to the documents described as intelligence reports when counsel for the applicant called for them today. In the light of the claim counsel for the applicant did not continue the call, no doubt in order to save time and avoid any further delay in the matter. In consequence I have not seen those documents, and I do not know what they contain. I have no reason to doubt that they are properly described in the passages which I have already quoted.

The first argument advanced on behalf of the applicant by Mr Crowley QC was an argument based on bias. Counsel argued that the decision maker had prejudged the facts. This prejudgment was said to have been based upon the fact that the decision maker had previously dealt with the application, had previously refused it, had done so for completely different reasons, and had now taken a point which indicated that he could not consider the matter dispassionately. In support of that proposition counsel relied upon the decision of the High Court in Livesey v. New South Wales Bar Association (1983) 151 CLR 289.

There are three problems in the road of this argument. The first is that, with one exception, counsel is unable to identify any common issue of fact or credit which arose in the two considerations which had to be made. The one exception was the applicant's assertion that his intention was not to have any dealing with drugs if admitted to the program.

The existence or absence of that intention is no doubt one relevant fact. Whether even that fact was taken into account by the decision maker in the earlier decision may be doubted, since the reliance upon section 57(2)(b)(ii) in the earlier decision would suggest that fact would have been irrelevant. It is necessary when Livesey is being applied to identify such common questions of fact or credibility: see the judgment of the Court at page 300.

The second obstacle was that the applicant took no objection to Mr McKenzie dealing with the application. The letter which his solicitors wrote showed a complete awareness of the matter and it is in my view a reasonable inference that the decision was taken to refrain from voicing any objection.

Mr Crowley very properly drew my attention to the passage in the judgment of Justice McPherson in Nickel Seekers Limited v. Vance [1985] 1 Queensland Reports 266 at page 272, which drew attention to the very salutatory rule of practice that a party aggrieved by bias must either show he has taken his objection at the hearing below or state on his affidavit that he had no knowledge of the facts. Mr Crowley submitted that simply meant that I had a residual discretion in regard to the matter. If that is right, I would certainly see no reason to exercise it favourably to the applicant on this point.

The third obstacle in the way of this argument was drawn to my attention by Mr Plunkett, for the respondent. It is that, in general terms, cases such as Livesey are relevant to determining bias by judicial officers, but not to cases involving administrative decisions. For that proposition, Mr Plunkett replied upon the decision of a Full Court of the Federal Court in Century Metals and Mining NL v. Yeomans (1989) 100 ALR 383 at page 417, where the Court held that the Livesey test will not usually be appropriate in connection with administrative decisions. I respectfully agree with that view and would apply it in this case.

A related argument for the applicant was that Mr McKenzie was the wrong person for the respondent to have delegated the decision making power to. That was because of his previous involvement, but it was also because Mr McKenzie, on the argument, was the chief officer of the WORC program, and (went the argument) he had a duty, and no doubt a desire, to make the program a success. This, it was submitted, had led him to give too much weight to the good order of the program as a factor, and to be incapable of giving an unbiased decision.

In the end, Mr Crowley did not submit that consideration of the good order of the program was an irrelevant consideration. That would have been a difficult submission, having regard to section 57(2)(c) of the Act. But rather, he replied upon a conflict of duties as his foundation.

That argument is largely rebutted by the considerations to which I have already referred, but also by the fact that there simply is no evidence that there was any conflict of duties. A desire to further the program would be consistent with a desire to see it take aboard the maximum number of prisoners and when they were such ideal prisoners, as Mr Crowley paints his client, to lean toward having them in the program rather than out of it. I would not support that argument.

Next, it was argued that the decision maker had not taken into account a number of material factors set out in the letter from Delaney & Delaney. There is, I think, a degree of support for this argument.

The letter containing the decision also contains the reasons for it. It asserts that the decision maker had considered the matters raised in the letter of 13 March. There is, however, no evidence that statement is true, either internally in the letter, or externally by way of affidavit evidence, and there are indications to the contrary.

I would not be prepared to use the letter itself without more as evidence of any weight of that fact. The letter had to be put into evidence by the applicant because it is the letter setting out the relevant decision. It was tendered for that reason.

It was not tendered on the basis that the applicant accepted the truth of the assertion that the matters in the Delaney & Delaney letter were considered. Quite the contrary: the applicant's contentions were that they were not considered.

The respondent sought to meet this by arguing, in relation to each point as it was discussed, the respondent has no obligation to put any evidence before the Court. When that proposition was expanded, it turned into a proposition that the applicant carries the onus of proof. So he does. However, when a party who carries the legal onus of proof puts evidence before the Court which, if believed, will demonstrate his case, an evidentiary onus arises.

It is true that it is a matter for the respondent to decide whether to try to put forward evidence to show that the contentions which he wishes to advance are well founded. If he chooses not to do so, he can hardly complain that the decision is made on the evidence which has been advanced by his opponent alone.

The letter from Delaney & Delaney raised a number of matters which, plainly, are relevant considerations. The applicant's very favourable prison history, the recommendations of the sentence management team, the open classification, the absence of any escape history and the approach of the applicant's parole eligibility date were all considerations which ought to have been considered.

There is no material before me which satisfies me that they were considered. The absence of any reference to them in the letter of 25 March suggests they were disregarded. That, in my view, was a serious error in the decision making process.

I have not attempted to list every matter raised in the letter, but those will give an idea of some of them.

Another criticism which was made of the decision is that the decision maker did take into account matters which were not relevant to his decision. That referred in a sense to the intelligence reports. The submission was really phrased in the alternative. On one view of the matter, the view which the applicant was initially inclined to advance, the applicant had been denied natural justice by not being provided with a statement summarising the effect of the reports in such a way as to enable him properly to respond to them.

That course was the course recommended by Justice White in Kidd v. Chief Executive [2000] QSC 405, a course which was followed by Justice Williams in Abbott v. Chief Executive, a decision given on 21 December 2000.

Associated with that criticism was a criticism that in relation to at least some of the matters the delegate took no steps to verify information, for example the first matter, that is that informants had identified the applicant as a person who was using other prisoners to introduce drugs. Justice White had referred to the decision in Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) 21 FCR 193, which supports the suggestion that there should be material that the delegate took steps to verify informants' information.

Associated with this complaint also was the complaint about the lack of particularity of the statements which were provided. That was the second and alternative way in which this argument was advanced. In other words it was said that, if in fact a full summary had been provided in the passage which I have earlier quoted, then it was far short of the summary which ought to have been provided, and did not answer the description given by Justice White in Kidd's case of what ought to be done.

In my judgment this argument also is correct. If what is in the letter is the whole of the substance of the reports, which is I think a fair inference, the amount of particularity is so lacking as to leave the matter as a guite insufficient summary. The issues could not be dealt with adequately by the applicant.

If there are other matters not referred to, of course, the summary is even more deficient and there is a plain denial of natural justice. In one case, the summary is so vague that it is, I think, irrelevant.

I am unable to see how the fact that people, who at some time in the last nine and a a half years visited the applicant in prison, or other associates, at some time unstated, provided positive dog reactions has any relevance to whether the applicant should participate in the WORC program. I presume that the positive drug dog reactions means that a trained dog indicated that the person had contact with prohibited substances. That is the conclusion which the delegate drew, and it seems to be a reasonable conclusion. But how does it possibly provide evidence to support the decision? Someone in the community who had been an associate at some time had returned a positive drug dog reaction: so what?

It therefore seems to me that the applicants argument on the facts of the case, as opposed to the question of bias, is made out.

The third argument is associated with the second one, and that is that the conclusion that the applicant had some network was a conclusion completely unsupported by the evidence.

That was the conclusion central to the reasons for the ultimate decision. It was that network which it was said could be broadened and which would damage the WORC program. There simply is not evidence to support that conclusion, or if there is, there is certainly no evidence before me of the existence of such evidence.

I should add that in assessing the weight which I should give to statements in letters from the respondents, I have taken into account, though only in a marginal way, the respondent's attitude to orders of this Court.

There were other arguments advanced on behalf of the applicant, principally relating to the possibility of conditions being Imposed under section 56(4) of the Corrective Services Act 2000, but I do not need to deal with those arguments.

The respondent's submissions, I think, have substantially been dealt with in what I have said. I was referred to some English cases which, according to the respondent's submissions, suggested that it would not be proper to have evidence by affidavit from the decision maker placed before the Court, or to allow cross-examination of the decision maker on his reasons.

I do not think those cases either support that proposition or have any application under the Judicial Review Act in the present context. In particular, I refer to O'Reilly [1982] 2 Appeal Cases at pages 282 to 283.

The respondent submitted that the decision was really a purely managerial decision which the Court would not review. In my judgment, that submission is at odds with the concession that it was a decision to which the Judicial Review Act applies.

It is not a decision of detail made under a general power, such as was the case in Graveson v. The Commissioner for Corrective Services [2000] 1 QdR 529, where that was the position. In this case, the decision was explicitly that upon which the Act focuses.

For these reasons, the application should, in my judgment, be allowed. The deemed decision of the respondent made on 25 March 2002 refusing the applicant's request to participate in the WORC program should be set aside, and the matter should be remitted to the respondent to consider in accordance with law.

HIS HONOUR: The applicant has sought costs on an indemnity basis. The respondent does not oppose an order for costs, but submits it should be on the standard basis. The basis of the application is substantially two fold. First, reliance is placed on the facts that this is the second time the matter has been before the Court; that on the previous occasion a consent order was made remitting it for reconsideration, that is, the earlier decision was set aside and the matter remitted for reconsideration within 21 days; there was a flagrant disregard of that time requirement; and no explanation has been given for that disregard.

The second foundation for the submission is that there has been disregard of the order of Justice Byrne that the list of documents be provided and that also shows a contemptuous attitude to the Court. And it is submitted that unless an indemnity costs order is made, the lesson which the respondent needs to learn will not be brought home.

On behalf of the respondent, my attention was drawn to the short time frame which was allowed for a decision. It is not immediately apparent to me that 21 days is too short a time for a public servant to make a decision, but even assuming that is so, the evidence does seem to indicate that, in fact, it took until 7 March from 30 January even for a preliminary view to be formed. The decision was not made until 25 March.

I note that the solicitors for the applicant were able, within a week, to provide a detailed response to the letter of 7 January.

It was also argued that the application, once it was started, proceeded with great haste, having been brought on for hearing within one month, and that the respondent cooperated in having it brought on at that sort of notice.

That is, no doubt, true. On the other hand, it does not seem that the respondent had very much to do. It must have, at least one hopes it did, considered whether to file any affidavits. It had to prepare a list of documents, and that, apart from preparing for the hearing, seems to be about all.

It does not seem to me that a month is such a short time to do those things.

I think there is force in the applicant's submission. The respondent has not displayed diligence. Far from it, his attitude has been quite the reverse.

In my judgment, there should be an order that the respondent pay the applicant's costs of and incidental to the application, including reserved costs if any, on an indemnity basis.

HIS HONOUR: I will vary the order to make it read that it is remitted to the respondent to determine in accordance with law within 28 days of today. And I will add, liberty to apply. Now, it should be clear to all, and I say this particularly since Mr Crowley's client is present in Court, that my decision today has nothing to do with the merits of the matter.

And it is to be quite clearly understood that I have not accepted the arguments on bias. It is a matter for the respondent which delegate if any he decides to have redetermine the matter. I have made no directions in that regard. If the respondent happens to decide that the same person should decide it, then evidence will be needed in the future to support that argument if the applicant wishes to mount it again.

I also have expressed no view on the merits of whether the conclusion that was reached, or any similar conclusion, is the right or the wrong conclusion. It may well be that, when proper consideration is given to the matter, the respondent will reach exactly the same conclusion as has been reached previously.

THE COURT ADJOURNED AT 6.20 P.M.

Close

Editorial Notes

  • Published Case Name:

    Onea v Chief Executive Department of Corrective Services

  • Shortened Case Name:

    Onea v Chief Executive, Department of Corrective Services

  • MNC:

    [2002] QSC 182

  • Court:

    QSC

  • Judge(s):

    Fryberg J

  • Date:

    31 May 2002

Litigation History

No Litigation History

Appeal Status

No Status