- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Ward v. Bottomley  QSC 006
ALLAN WILLIAM WARD
BS 7558 of 2005
Supreme Court of Queensland
31 January 2006
22 November 2005
ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – application for a statutory order of review under Judicial Review Act – where applicant aggrieved over decision about complaints he had made to the respondent about the Sex Offender Treatment Program, from which he had withdrawn – whether respondent decided not to carry out meaningful investigation of the complaint made to him
s 102 Corrective Services Act 2000
The applicant appeared on his own behalf
Mr J Fenton for the respondent
Mr C W Lohe, Crown Solicitor, for the respondent
- This is an application filed on 7 September 2005 under the Judicial Review Act 1991 for a statutory order of review. The applicant is a prisoner at the Wolston Correctional Centre at Wacol. He is serving a sentence of imprisonment for ten years. He says his full-time release date is 21 March 2007 and his parole-eligibility date was 22 September 2000.
- A large volume of correspondence relating to the events giving rise to this application is before the court, but not all of it is directly relevant to the issues.
- In a letter dated 2 March 2004, Mr Chris Watters, director of the Ethical Standards Unit of the Department of Corrective Services, advised the applicant of findings and recommendations concerning complaints the applicant had made to the Official Visitor about the Sex Offender Treatment Program (from which he had withdrawn), the conduct of two ‘facilitators’ of the program (psychologists Ms Eli Sky and Ms Ann Butler) and the program exit report concerning his withdrawal. Mr Watters recorded that the applicant’s complaint had been referred to the department’s Policy and Programs Services Directorate for investigation, and that investigating officers had interviewed the applicant and two program facilitators and had furnished the Ethical Standards Unit with their report on 13 February 2004. The investigators were not able to identify any evidence that would substantiate allegations of misconduct and inappropriate behaviour by Ms Sky or Ms Butler. The investigators’ principal recommendation was that the applicant be afforded ‘one further opportunity to participate in a mediation forum’ with the two psychologists, the mediation to be conducted by ‘a facilitator external to Wolston Correctional Centre and familiar with current approaches to sex offender intervention’. The mediation forum was to be convened specifically for the purposes of providing facilitators with an opportunity to outline program objectives and the expectations thus placed on participants and of providing the applicant with the opportunity ‘to raise his issues’ regarding the information in the exit report. Mr Watters advised that the recommendations had been referred to the Executive Director, Policy and Programs Services, ‘for consideration as to implementation’. At the times relevant to this application, Ms Gabrielle Sinclair held that position.
- In a nine-page letter dated 15 March 2004 to Mr Watters, the applicant commented on the contents of Mr Watters’s letter of 2 March 2004. A passage on p. 8 of the letter and numbered ‘(3)’ is relevant to later events. It was as follows:
(3)This mediation is to be conducted by a facilitator external to Wolston Correctional Centre and familiar with current approaches to sex offender intervention. Advice from counsel on this matter is that I should not participate unless the mediator is of appropriate qualification and independent of the department such as Dr S Smallbone of Griffith University whose credentials are beyond question having been one of the creators of the presently used Sex Offender Treatment Program.
I was further advised that it would in the light of experiences to this time it is considered that my interests would be best served by refusing to participate in any interviews with or relating to departmental psychologists unless that interview is taped and a copy provided immediately.
Mr Watters responded in a letter dated 5 April 2004 in which he advised that the investigators’ recommendations remained with the Executive Director, Policy and Programs Services, for consideration as to implementation, including determination as to the appointment of an independent mediator.
- The applicant sent two letters, dated 19 July 2004 and 22 September 2004 to Ms Sinclair in which he referred to other correspondence concerning his complaints. In the later letter he asserted, inter alia, that it seemed, from Ms Sinclair’s lack of response from March 2004 when Mr Watters referred the matter to her, that she had no intention of implementing any of the recommendations ‘nor of addressing the matters raised in any meaningful or significant manner …’.
- In a letter dated 5 October 2004, Ms Sinclair responded to the applicant’s letter of 22 September 2004. Formal parts omitted, Ms Sinclair’s letter was as follows:
Dear Mr Ward
I refer to your letter dated 22 September 2004 regarding your complaints about the Sex Offender Treatment Program and certain program staff. In particular I note your concern that you have not received any advice in relation to recommendations arising from inquiry into your complaints by the Ethical Standards Unit.
Prior to receipt of your letter, arrangements had already been initiated to implement the recommendations of the Ethical Standards Unit. I subsequently received advice that you did not accept the recommendations and were not willing to take part in mediation with the SOTP facilitators.
I am also aware that considerable correspondence has been entered into between the Department and yourself. I believe you have been informed on a number of occasions to the effect that the matter has been closed until such time as you might wish to reconsider the recommendations. Should you wish to participate in mediation, as recommended by the Ethical Standards Unit, I would urge you to advise centre management of that fact.
No further correspondence from the Department will be entered into regarding this matter.
I trust this information is of assistance.
- By a letter dated 25 October 2004, the applicant responded to Ms Sinclair’s letter asserting that in it she had made ‘incorrect and misleading statements’. Referring to the second paragraph in Ms Sinclair’s letter, he conceded that it was correct that he did not agree with the recommendations ‘made by Mr Chris Watters’ – a reference no doubt to the recommendations Mr Watters mentioned in his letter of 2 March 2004. The applicant asserted that it was ‘without foundation and untrue’ to say that he was ‘not willing to participate in mediation with the SOTP Facilitators’, adding that at no time had mediation been offered and that a statement he attributed to her that he had refused ‘such mediation’ was ‘untrue and misleading’. The applicant ‘respectfully’ requested that Ms Sinclair retract ‘the incorrect and disleading [sic] statements’ made in her letter within twenty-one days.
- By an undated letter received by the applicant on 3 December 2004, Ms Robyn Gregory, Acting Director, Custodial Operations, responded to his letter of 25 October 2005. Formal parts omitted, Ms Gregory’s letter was as follows:
Dear Mr Ward,
I refer to your letter addressed to the Executive Director, Policy and Program Services, dated 25 October 2004. As the issue raised is an operational matter, the letter has been forwarded to me for a response.
I do not intend to enter into any correspondence in relation to the comments you make in your letter, other than to state that no mediation will take place between you and Ms Sky and Ms Butler. This is because of the threats you have allegedly made against Ms Sky. I am of the view that, regardless of the eventual outcome of inquiry into that allegation, mediation would not be appropriate.
Should you wish to participate in a sexual offender program, I will make arrangements for you to be assessed by psychologists from outside of the Wolston Correctional Centre. Please advise management staff if you wish to be assessed for participation in a sexual offender program.
- In a letter dated 14 April 2005, the applicant complained to the respondent as Director of the Ethical Standards Unit:
Ethical Standards Unit,
Department of Corrective Services,
Mr P Bottomley,
GPO Box 1054,
I wish to draw your attention to the refusal of Ms G Sinclair, Director, Policy and Programs, to retract inaccurate and misleading statements published by Ms G Sinclair in her letter dated 5th October 2004 in which she stated that I was, and I quote “not willing to take part in mediation with the SOTP facilitators.” As this statement is untrue and without any substance I draw your attention to the statement made by Mr G B Fitzgibbon, Senior Adviser, Offender Management in his letter dated 27th September 2004 when he stated “Authors of individual documents are responsible for the integrity and accuracy of their report,” and also to the provisions of section 102(1) of the Corrective Services Act 2001, whish [sic] states as follows;- A person must not give information to an official, including in a document, that the person knows is false or misleading in a material particular. And also section 102(2), It is enough for a complaint against a person for an offence against subsection (1) to state that the information was, without specifying which, ‘false or misleading’.
As Ms Sinclair has in a most perfunctory manner sought to ignore my request made in my letter dated 25th October 2004 for her to retract or correct her misleading statement or substantiate her statement and provide documented evidence of the source of her misinformation. Her statement despite my previous requests for mediation to take place such as was recommended by Mr Watters in the recommendations made by him in his report of which he advised me in his letter dated 2nd March 2004.
I specifically draw your attention to points 1 and 2 of page three of that letter with relation to mediation. I will set out in order the events relating to this matter relevant to the subject of mediation to enable your investigation into the inaccurate and misleading statement made by Ms Sinclair and the ethics of her conduct in respect of this matter.
On the 5th March 2004 I received a letter from Mr C Watters of the Department of Corrective Services Ethical Standards Unit, dated 2nd March 2004 in relation to the outcome of investigations undertaken by that unit in response to a complaint to the ESU by the Official Visitor, Mr Wayne Faulkner, made on my behalf after his perusal of various material.
This complaint was in relation to the questionable conduct of psychologists employed by the department as facilitators for the Sex Offender Treatment Program and was made to the ESU by Email on the 28th August 2003.
Mr Watters letter to me contained a number of recommendations as the result of his investigations which included mediation to be conducted by a facilitator external to the staff of the Wolston Correctional Centre and advised that the recommendations had been referred to the Executive Director, Policy and Programs Services Ms G Sinclair, for consideration and implementation. A copy of Mr Watters letter is enclosed as attachment “A”.
Following the receipt of Mr Watters letter and after careful consideration of it’s content I made a comprehensive submission to Mr Watters revisiting a number of matters including his recommendations and raising further points for his consideration. These being matters in relation to the investigation itself, the subject of the investigation and the recommendations that he had made. A copy of that submission is enclosed as attachment “B”.
My comment made in point 3 on page 8 of that submission in relation to the proposed mediation could not be construed by any reasonable person as refusing to participate in mediation, but rather indicates a willingness to participate in meaningful mediation subject to the safeguard that such mediation be conducted by a suitably qualified, experienced and appropriate independent mediator/facilitator as I had originally suggested, a suggestion that closely paralleled Mr Watters recommendation.
That comment being a consequence of a previous experience of so called mediation in this centre whether the principal subject of my complaint was the mediator/facilitator and I was subjected to a session of intimidation and threat which even the most charitable person could not construe as mediation and which at no stage gave any indication of any intent or willingness to address much less resolve the matters raised at that time.
Mr Watter responded on the 5th April 2004, a copy of his letter is enclosed as attachment “C”. His letter gave no satisfaction to the matter that I had raised but he repeated his previous advice that the investigation teams recommendations remained with the Executive Director, Policy and Programs Services for consideration as to implementation including the determination as to the appointment of an independent mediator. Obviously at that point in time my submission to Mr Watters had been considered and he confirmed mediation as being part of the recommendations considered for implementation by the Policy and Programs Services.
Mr Watters comment in respect of an independent mediator would give one to be of the understanding that he had at least discussed my concerns and comment in relation to mediation with Ms Sinclair, the Executive Director, Policy and Programs Services.
On the 19th July 2004, over 4 months since Mr Watters original advice to me of his recommendations and over 3 months since his letter confirming that the matter was now in the hands of the Policy and Programs Services, having had no advice or contact of any form from any section of the department in relation to Mr Watters recommendations I wrote to Ms Sinclair inquiring as to the intentions regarding the implementation of the recommendations. See the fourth paragraph of page 3 of that letter, a copy of which is enclosed as attachment “D”.
There was no response to that letter of the 19th July 2004 and I again wrote to Ms Sinclair on the 22nd September 2004, this now being in excess of six months since Mr Watters first advised me of his recommendations and that he had referred the matter to the Executive Director, Policy and Programs Services for implementation. A copy of this letter is enclosed as attachment “E” and I would draw your attention to the third paragraph of page 1.
Ms Sinclair responded on the 5th October 2004 making no reference to my letter of 19th July 2004. She stated that prior to the receipt of my letter that arrangements had already been initiated to implement the recommendations of the Ethical Standards Unit and that she has subsequently received advice that I did not accept the recommendations and was not willing to take part in mediation with the SOTP facilitators. A copy of her letter is enclosed as attachment F.
The following points of her letter are of note;-
The claim that arrangements had already been initiated. A highly questionable statement when considering there was no advice provided prior to my letter of 22 ndSeptember 2004, some six months after Mr Watters made his recommendations. On the basis of this time frame alone Ms Sinclair’s statement stretches credible belief or perhaps the Policy and Programs Services Unit is incapable of providing such advice within a reasonable time.
The next point of note is the statement by Ms Sinclair that she subsequently received advice that I did not accept the recommendations. Here it is conspicuous that she does not give the source of this alleged advice nor substantiate her statement in any way.
Given the substance of my original complaint and that I drew to the attention of Mr Watters a number of related matters in my submission to him on the 15th March 2004 Mr Watters gave no indication of any concerns that he may have held arising from my submission, nor did he indicate that there was either consideration being given not to proceed with the implementation or in fact any intention not to proceed.
Mr Watters comment in his letter dated 5th April 2004, regarding the appointment of an independent mediator would seem to indicate that there was an intention to proceed at least with mediation.
The Policy and Programs Services Unit had more than ample opportunity to raise any concerns that they may have held as a consequence of my submission to Mr Watters and advise myself of those concerns or of their intention not to proceed with the implementation of those recommendations.
3. Ms Sinclair then continues that I was not willing to participate in mediation with the SOTP facilitators. I would draw to your attention that I have never refused to participate in mediation and point to my submission to Mr Watters from which it is clear that I was then and still remain willing to participate with an independent mediator in line with Mr Watters recommendations.
My view of the proposed mediation was that it was the most positive recommendation made by My [sic] Watters and that it held the potential to possibly resolve some of the matters that I have raised. One must question the reluctance of the department to participate in mediation with a qualified independent mediator such as Dr Smallbone.
Ms Sinclair’s statement with regard to my willingness to participate in mediation is false and misleading and due to potentially damaging further use of her letter in other matters such as a judicial review currently before the courts. On the 25 October 2004, I wrote to Mrs Sinclair a copy of which letter is enclosed as attachment “G” requiring her to either substantiate her false or misleading statement or retract it and correct the record. To this time she has refused to do so.
On the third of December 2004, I received an undated letter under the hand of Ms Robin Gregory, Acting Director, Custodial Operations, a copy of which is enclosed as attachment “H”, in which she referred to my letter of 25 October 2004 to Mrs Sinclair asserting that the matter raised was a operational matter and failed in any respect to address the matter I had raised regarding Mrs Sinclair’s statement.
Of note is that it repeats that the Department will not enter into any correspondence and that no mediation will take place allegedly because of threats I am alleged to have made against Ms Sky.
I would seriously question the validity of such an excuse by the department, even if true, to avoid participation in mediation to resolve the matters raised. Interviews are regularly conducted by psychologists and other staff in this centre with high security inmates with a history of physical violence, often on a one on one basis or in extreme cases in the presence of custodial staff.
Might I suggest that having failed to manage a problem and having by their ineptitude placed themselves in an untenable and indefensible situation that rather than admit to being wrong Ms Sinclair now resorts to the cowards excuse of “we will not discuss this matter any further”, a stance now becoming prevalent in the department when and [sic] intimidation and threat does not work.
It would seem however that a decision that no mediation would take place had been made by the Department well prior to Mr Watters making his recommendations as the Email dated 26th July 2002 from Ms M Moore to Ms L Dalamu and Ms E Sky, clearly indicates.
It is at the suggestion of the Ombudsman’s office that I place this matter in your hands at this time for your investigation and in the light of the refusal by Ms Sinclair to retract her false, misleading and damaging statement and if warranted action by your office under the provisions of section 102 of the Corrective Services Act or section 126 of the Criminal code.
I thank you for your time and await your response with interest,
Allan W WARD.
Attachment B was a copy of the applicant’s nine-page letter dated 15 March 2004 from which I have already quoted the passage numbered (3).
- Section 102(1) of the Corrective Services Act 2000 provides that a person must not give information to an official, including in a document, that the person knows is false or misleading in a material particular. Maximum penalties are: for a prisoner, imprisonment for two years, and ‘otherwise’ one hundred penalty units or imprisonment for two years. Section 102(4) provides that ‘official’ in s. 102 means one of the following persons while performing a function under the Act: the chief executive, (b) the person in charge, (c) a corrective services officer, (d) a corrections board, (e) an inspector, (f) an official visitor. Section 126 of the Criminal Code provides that fabricating evidence by any means other than perjury or counselling or procuring the commission of perjury or knowingly making use of such evidence with intent to mislead any tribunal in any judicial proceeding is a crime.
- In a memorandum dated 19 April 2005, the respondent requested Ms Sinclair’s response to the applicant’s complaint:
To Gabrielle Sinclair, Executive Director, Strategic Policy and Services
From Director, Ethical Standards Unit
Subject Complaint by Wolston CC Prisoner Allan Ward
Date 19 April 2005
- On 19 April 2005, the ESU received correspondence from Wolston CC Prisoner Allan Ward.
- In brief, Prisoner Ward states that on 5 October 2004, you wrote to him in respect of a recommendation (for mediation) arising from a previous departmental investigation into a complaint concerning Wolston CC psychologists. Prisoner Ward specifically alleges that your correspondence contained false/misleading information, and that when he responded to your correspondence raising his concerns, you failed to respond and/or correct the relevant false/misleading information (see attached for further details).
- In order to assist the ESU with appropriately assessing Prisoner Ward’s complaint, it would be appreciated if you could review the attached material, and advise as to your knowledge of this matter. Upon receipt of your response, the ESU will make a determination as to what further action (if any) is to be taken.
- Your assistance is appreciated.
Ethical Standards Unit
- By an e-mail to Ms Sinclair dated 29 April 2005 and showing the subject as ‘Good news re Ward’, Mr Mark Rallings, Director, Offender Intervention Programs, advised Ms Sinclair as follows:
On 19/7/04 Ward wrote to you to say in context of addressing recommendation re mediation that “I was further advised that it would in the light of experiences to this time it is considered that my interests would be best served by refusing to participate in any interviews with or relating to departmental psychologists unless that interview is taped and a copy provided immediately”.
Given this statement was in context of his response to mediation, I took it to mean that mediation would have to be taped or he refused to participate. This is clearly not in the spirit of mediation, and not something Eli, or anyone else in her position for that matter, would agree to. As this was a blatantly unreasonable requirement, I took it as a refusal to participate. He also refuted other recommendations at some length. Accordingly, letter from you said, “I subsequently received advice that you did not accept the recommendations and were not willing to take part in mediation with the SOTP facilitators.”
Checked the rest of the statements in your letter of 5/10/04, and they are all supportable.
The reference to the applicant’s letter of 19 July 2004 was erroneous, as Mr Rallings conceded in an undated letter to the applicant in response to a letter from the applicant to Mr Rallings dated 20 October 2005. The reference should have been to the applicant’s letter of 15 March 2004 to Mr Watters.
- A further letter, dated 13 May 2005, was sent by the applicant to the respondent:
Ethical Standards Unit,
Department of Corrective Services,
Mr P Bottomley,
GPO Box 1054,
On the 14th April 2005, I wrote to you drawing your attention to and making a complaint in respect of the actions of Ms Gabriel Sinclair, Director, Policy and Programs Directorate of the Department requesting that you investigate and initiate the appropriate action in respect of my complaint. To this time you have not seen fit to respond or acknowledge receipt of that complaint.
I also wrote to you on the 30th April 2005, in respect of a complaint of a similar nature against Ms E Sky who was the Sex Offender Treatment Program Co-ordinator and who I understand is now an officer of the Policy and Programs Directorate. Again while sufficient time has not passed to realistically expect you could have investigated that matter you have not as yet seen fit to acknowledge receipt of that complaint.
I will be meeting with the investigator from the Ombudsman’s office on or about the 26th of this month and will be raising these matters with that officer as further examples of conduct by Departmental officers and the manner in which complaints are handled. I would appreciate some indication from yourself as to your intended action in these two matters prior to that meeting.
You will no doubt be aware that the Ombudsman office is currently considering a complaint from myself in respect of my complaint regarding the inclusion and use by psychologists of inaccurate and misleading information frequently generated by those same psychologists which was originally made to yourself on the 6th January 2004.
It is my understanding at this time that the Ombudsman is investigating as to the adequacy of that investigation, the subsequent actions of Mr J Murray in respect of your referral of my initial complaint to Mr Murray, the adequacy of his handling of the matter and then the failure of yourself to act in respect of my further complaint arising out of the misleading and incorrect statements published by Mr Murray in respect of his investigation which culminated with your letter dated 2nd February 2005 in which you stated that you do not propose to take any action in respect of the matters raised in my letter.
It is not unreasonable that having being [sic] disadvantaged by inaccurate, and misleading reports of which it seems there is a departmental policy that there is to be no responsibility or accountability for either the persons generating those reports or assessment or those making further use of their content for various purposes to ensure the accuracy of that material that one should have ongoing concerns and as a consequence seek to have these matters addressed and investigated.
When the adequacy of such investigation also becomes equally questionable and appears to have all the hallmarks of an institutionalised system to justify or excuse such occurrences rather than an open and accountable investigation of the facts of the situation and ethical standards of those involved and the manner in which they carry out their duties regardless of their position it is reasonable that accountability then needs to be sought through other avenues existent for that purpose, such as the Ombudsman, CMC and the Judiciary.
I thank you for your time and I await your response with interest.
I remain respectfully __________________
Allan W WARD.
- The respondent’s response to the applicant came in a letter dated 16 May 2005:
Prisoner Allan Ward
C/- Wolston Correctional Centre
Locked Bag 1800
RICHLANDS Q 4077
Dear Prisoner Ward
I acknowledge receipt of your letter dated 14 April 2005.
Having reviewed your letter, I note that you allege that Ms Gabrielle Sinclair, Executive Director, (then) Policy and Programs, authored a letter to you dated 5 October 2004 which contained “inaccurate and misleading statements”. In particular, you allege that the comment that you were “not willing to take part in mediation with the SOTP facilitators”, is inaccurate.
The Ethical Standards Branch (ESB) has undertaken some inquiries in respect of your complaint. ESB inquiries indicated that an officer involved in assisting Ms Sinclair to provide a response concluded, after examining various documentation in relation to this matter, that you were “not willing to take part in mediation” and provided this advice to Ms Sinclair.
Specifically it was noted that on page 8 of your letter to the ESB dated 15 March 2004, you stated, “I was further advised that it would in the light of experiences to this time it is considered that my interests would be best served by refusing to participate in any interviews with or relating to departmental psychologists unless that interview is taped and a copy provided immediately”. The relevant officer concluded that your comment in this regard was made in the context of your response to the recommendation for mediation, and given that the department generally does not tape-record mediation processes, the relevant officer considered that you were not willing to take part in mediation with the SOTP facilitators (who are departmental psychologists).
I also note that notwithstanding that Ms Sinclair stated in her correspondence that she had been advised that you were not willing to take part in mediation, she did specifically advise you that if you did in fact wish to participate, you should advise centre management accordingly. In any event, you were subsequently informed by Ms Robyn Gregory, (then) Acting Director, Custodial Operations, that due to verbal threats you had allegedly made against Ms Sky, mediation was no longer considered to be appropriate and therefore would not proceed.
Having considered all of the circumstances surrounding this matter, the ESB is satisfied that there is no evidence of misconduct on the part of any officer. Accordingly, no further ESB action is proposed.
I trust that this advice is of assistance.
Ethical Standards Branch
- In a letter dated 26 May 2005, the applicant responded to the respondent’s letter:
Ethical Standards Unit,
Department of Corrective Services,
Mr P Bottomley,
GPO Box 1054,
I am in receipt of your letters dated 16th May received by myself on the 18th May.
I note that in your letter in respect of my complaint regarding inaccurate and misleading statements made and published by Ms Gabrielle Sinclair which despite having been proven to be incorrect, and having been requested to withdraw them Ms Siclair [sic] has not seen fit to do so, instead ignoring my request, while seemingly you seek to exonerate her of any malfeasance and justify her actions in the matter complained of.
I would again draw your attention to a number of documented and irrefutable facts in relation to this matter these being;-
- On the 6th February 2002 I received a memorandum under the hand of the then Acting General Manager, Mr Allan Farrel in relation to a complaint made to him in respect of the actions of SOTP Psychologists in which I was advised that my ability to provocatively manage my concerns would be “Targeted”.
Following my making a complaint to the Official Visitor regarding being “targeted” I was interviewed on Thursday 14th February 2002 by Senior Psychologist, Ms Michelle Moore in Unit S7 at Wolston during that interview she advised me that in fact she, not Mr Farrel had written the memorandum, and that the use of the term “targeted” had been “unfortunate” and held no intended unpleasant connotations. Ms Moore also advised that she would arrange some form of mediation to resolve the problems that I had with the SOTP course.
On the following day, Friday 15th February 2002, I received a letter from the Official Visitor advising that Ms Moore would be seeing me to assure me that the use of the term “targeted” had no unpleasant meaning and that she (Ms Moore) also will try to arrange some form of mediation to attempt to resolve your (my) problems with the SOTP course.
Obviously at that time mediation was considered to be a viable and desirable option.
- In my letter to Senior Psychologist Ms M Moore on the 25th February 2002 in which I advised her that I had withdrawn from the SOTP course and explained my reasons for doing so I drew her attention to the offer that she had made on the 14th February 2002 to arrange mediation.
A copy of an Email dated 26th July 2002 from Ms M Moore to Acting Senior Psychologist Ms L Dalamu and SOTP psychologist Ms E Sky quite clearly indicates that there had been consideration of mediation prior to that time and that a departmental decision had been made that mediation would not occour [sic]. It is also obvious that Ms Moore sought to dissuade Ms Dalamu from consideration of making a recommendation of mediation. It is of note that despite the explicit instruction to ensure that I was briefed of any recommended outcomes I was not provided with any related briefing.
- On the 24th October 2002 I finally received a copy of a report of an investigation into my complaint to the office of the Ombudsman in respect of the actions of the SOTP psychologists. This investigation by the then Acting Senior Psychologist Ms L Dalamu is notable in that on considering her investigation report it would seem that the investigation had been conducted into my actions, not those of the Psychologists in question, seemingly so as to justify or exonerate the actions of those psychologists. On page 3, point 13, of her report Ms Dalamu notes a letter authored by myself on 25th February 2002 to Ms Moore documented that she had interviewed me on Friday 15 February 2002.
It is of note the interview had taken place on the Thursday 14th February and that date was given in my letter not the 15th as stated by Ms Dalamu but since when has the accuracy of such detail mattered in the presentation of Departmental reports supposedly presenting fact.
In that interview Ms Moore advised me that she was arranging some form of mediation to attempt to “resolve my problems with the SOTP course”, yet Ms Dalamu states, “There is no supporting documentation recommending mediation contained on Mr Ward’s files and liaison with Ms Moore indicated that mediation was not considered a viable option at the time”.
Obviously Ms Dalamu does not consider the Email dated 26th July 2002 and the other related material referred to in that document such as the Ombudsman report to be documentation, and the liaison with Ms Moore is not considered relevant in respect of the determination of the Department not to undertake mediation. One must question the purpose of including that misleading information in the response to the Ombudsman and the Official Visitor in regard of this point.
- In letters to the Ombudsman on 19th May 2003 and the Attorney General on the 13th October 2003 reference was made to the subject of mediation and the subsequent actions of the SOTP staff in that respect. In letters dated 16th October 2003 to both the Director of the CMC and the Attorney General the subject of the taping of interviews conducted by psychologists was pursued, giving in both cases examples that justified such action, for the protection of inmates against inaccurate and misleading reporting of such interviews. There is no relationship either intended or implied in these letters between the taping of interviews and assessments conducted by psychologists and any form of mediation.
5In a letter to the Officer in Charge, Sentence Management, Wolston, dated 10th December 2003, I raised a number of points including seemingly selective omissions and presentation of material out of context so as to mislead.
One of those instances raised being in regard to involvement in programs. Mediation is not a program and the misrepresentation in this instance reinforces the need for the recording of interviews so as to protect the integrity of the process as well as the rights of the individual. Again interviews are not, nor can they be construed or presented as mediation.
6On the 6th January 2004 in a letter to Mr Watters I drew his attention in paragraph 4, on page 1, and paragraph 1, of page 2, to my requests to have interviews with psychological staff recorded and provided the justification for that request. Again there is no suggestion of any intention to refuse any form of mediation at any time and interviews do not constitute mediation.
7On the 15th January 2004 I wrote to yourself as Acting Director, Ethical Standards Unit again drawing to your attention in the second paragraph of the second page, to the need to have interviews between Psychologists and inmates taped and the justification for such a proposal.
8In a letter to the Director of the CMC on the 29th January 2004 again I made reference to the taping of interviews to remove the possibility of inaccurate and misleading content being included in psychologists reports. There is no reference at any point to mediation nor is there any suggestion made at any point that I would not be prepared to participate in independent mediation.
9A further reference is made by myself to the taping of interviews in a letter dated 6th February 2004 to the Manager Psychological and Counselling services, Mr J Murray. Again the reference is made in the context of the verballing of inmates in reports generated by psychologists following interviews and assessments, neither of which is related to mediation.
10On the 5th March 2004 I received a letter dated 2nd March 2004 under the hand of the then director of the Ethical Standards Unit Mr C Watters. The most notable features of this letter being that most reasonable people on reading the letter have raised the question, as was in the case with the internal investigation conducted by Ms Dalamu, as to who, was the subject of the investigation and what was it’s purpose.
It would seem that all had gained the initial impression from those extractions from the report that were presented, and the recommendations presented in it, that the document was the outcome of an investigation, not into the psychologists and their conduct, but rather an investigation into my actions with the intended purpose being to either attempt to justify the actions of staff involved or exonerate them of any malfeasance on their part.
The other feature was the emphasis placed on mediation by the investigating team and Mr Watters in the compiling and presentation of their recommendations. This having already acknowledged that it is their opinion in relation to the matters outlined in my allegations and mindful of my views in relation to the SOTP and it’s facilitators that they make their recommendations.
On page three of that report the weight placed on these recommendations for mediation is beyond any question. Point 1, recommends that I be afforded one further opportunity to participate in mediation with the two SOTP psychologists. In my letter of 15th March 2004 on page 7, point 1, I drew Mr Watters attention to the point that no mediation had taken place prior to that time, and that any such mediation as was proposed would in fact be the first mediation that had taken place.
In point 2, Mr Watters sets out the purpose of the proposed mediation which was to provide the facilitators the opportunity to outline the objectives of the SOTP and to provide myself with the opportunity to raise my issues in respect of my principal concern, that being the presentation of inaccurate and misleading material in that report and the refusal of the SOTP to address the correction of that material. While questioning the purpose of the first part of point two my comments on page 8 of my letter to Mr Watters, see paragraphs 1 and 2 raises no objection to his proposal of mediation.
Point 3, of Mr Watters letter proposes that the mediation be conducted by an independent facilitator, experienced and suitably qualified to conduct the proposed mediation.
My response as is set out in point 3, of page 8, of my letter to Mr Watters of the 15th March 2004 closely parallels the recommendations made by Mr Watters, in that it is in full agreement with his recommendation that the facilitator should be an experienced suitably qualified person conversant with the current approaches to sex offender treatment and I suggested that someone of the standing of Dr Stephen Smallbone would be eminently qualified for the task. I also noted that I had been advised by council [sic] that it was considered it would not be in my best interests to participate unless the facilitator was suitably qualified and independent of the department. As this followed the recommendations of Mr Watters this advice in no respect can be considered in any way as indicating that I was unwilling to participate in mediation. In the following paragraph, I advised that I had also been advised that given the circumstances and experiences to that time it was also not considered to be in my best interests to participate in any interview or assessment conducted by departmental psychologists. Again I would point out that an interview or an assessment is not mediation. One must question the level of literacy of the staff member who sought to use that paragraph selectively and out of context to attempt to create a misleading impression to justify the incorrect, unsubstantiated and unsustainable statement made by Ms Sinclair when she asserts in her letter of 5th October 2004 that I am unwilling to participate in mediation with the SOTP facilitators.
- I raised objection to point 4 of the recommendations made by Mr C Watters as is clearly set out in my letter to Mr Watters of 15th March 2004, in point 4, of page 8, in as much as I considered that editing the report to the satisfaction to the satisfaction [sic] of those the subject of the complaint tends to devalue quite considerably the purpose of both the investigation and mediation.
- As it was over five months since Mr Watters had advised me that he had presented his recommendations and I had received no advise of any kind on in respect of the implementation of the recommendations made by Mr Watters on the 19th July 2004 I wrote to the Director of Policy and Programs, Ms G Sinclair, drawing her attention to that fact, and inquiring as to if and when implementation of those recommendations would take place.
- As there had been no response to my letter of 19th July 2004, I again wrote to Ms Sinclair on the 22nd September 2004, requesting advice as to the when the implementation of the recommendations of Mr Watters would take place. I drew her attention to the comments of the Director General Mr Rockett in his letter of 2nd August 2004 when he stated, ”again I urge you to consider the investigators recommendation”. The fact being that I had considered the recommendations as was evidenced by my letter of 15th March 2004 to Mr Watters and I was still after some 7 months waiting for the implementation of those recommendations.
- In her response of the 5th October 2004 Ms Sinclair claims that prior to the receipt of my letter of 22nd September 2004 that arrangements had been made to implement the recommendations of the Ethical Standards Unit. She then continued stating that she had subsequently received advice that I was not willing to participate in mediation with the SOTP facilitators. Ms Sinclair also stated that should I wish to participate in mediation as recommended by the Ethical Standards Unit I should advise centre management of that fact. Having never been offered mediation I have not had the opportunity to decline to participate in mediation even had I been so inclined, however, it is improbable that in the light of my letters to Ms Sinclair of the 19th July and 22nd September 2004, that any reasonable minded person could place any construction other than that I was most willing to participate in mediation otherwise why would I continue to inquire as to the implementation of the recommendations. It is of note that Ms Sinclair did not and has not to this time provided the source of her advice that I was unwilling to participate in mediation nor has she provided any substantiation for her statement
- I responded to Ms Sinclair’s letter on the 25th October 2004 drawing to her attention that her statement that I was not prepared to participate in mediation was both incorrect and misleading and requested that she withdraw that statement and advising her that should she fail to do so that I would avail myself of legitimate avenues of redress.
- I received no response from Ms Sinclair but on the 3rd December 2004 I received an undated letter under the hand of a Ms Robyn Gregory, Acting Director, Custodial Corrections. Ms Gregory stated that the matter that I had raised in my letter of 25th October 2004 to Ms Sinclair was an operational matter and that she did not intend to enter into any correspondence other than to state that no mediation will take place between myself and Ms Sky and Ms Butler, giving as a reason threats that I am alleged to have made against Ms Sky and that regardless of the eventual outcome of inquiry into that allegation mediation would not be appropriate. It is of note that there is no indication of my having refused to participate in mediation nor is there any suggestion that Ms Sinclair is willing to retract her statement and correct the record. One would consider that had I indeed made threats against Ms Sky, even beyond those of legal legitimate redress, then there would be the reasonable possibility that mediation may resolve the differences and thus remove any such alleged threat. Any reasonable minded person must question as to why under those circumstances both Ms Sky and the Department are so reluctant to engage in mediation. A process that may possibly resolve a number of apparent problems as well as my complaint.
It is obvious that despite being quite strongly recommended by the Department’s own internal investigators the Department is most reluctant to enter into mediation as. Again one must question as to why.
- On the 21st January 2005 I received a letter from Mr Neil Whittaker, Deputy Director General, Strategic and Corporate Services, dated 19th January 2005 in which he states that “following due consideration a decision was made that no mediation will occur between you, Ms Sky and Ms Butler over the complaint made by you,” and then gives the reason that, “this is because of the threat you have allegedly made against Ms Sky.”
I would point out that again it is the Department that has decided that mediation will not take place, not myself, and that I have not refused to participate in mediation.
- On the 14th April 2005 I wrote to yourself drawing to your attention the refusal of Ms Sinclair to retract her false and misleading statement in relation my participation in mediation.
I would draw your attention to my comment in that letter in the final paragraph of page 4 in respect of the proposed mediation.
- On considering your response to my detailed letter of complaint and the supporting documentation that was provided that you should now seek to justify her statement and exonerate Ms Sinclair of her responsibility to ensure that her comments are factual, by your use of material out of context you add further to the question of the purpose of the existence of an Ethical Standards Unit that itself could itself, seem to be seen to be devoid of ethics.
That the relevant officer concluded from a statement clearly relating to interviews and assessments that it is related to mediation must raise serious questions as to the literacy, intelligence and competence of that officer and the appropriateness of that person to hold any position requiring even a basic understanding of the English language to preform his or her duties.
Of considerable concern also are the various different reasons given for mediation not taking place.
- In your letter of 16th May 2005 the reason given, I assume to support and exonerate Ms Sinclair, is that an unnamed and literally deficient departmental employee in an Olympic gold medal standard example of conclusion jumping concludes that assessments and interviews are the same as mediation and that as I have been advised that I should not participate in such interviews unless they are recorded determines that I have as a consequence refused to participate in mediation.
That statement would seem to contradict the previous statements made by Deputy Director Mr Whittaker when in his letter of 21st January 2005.
In his letter he advised that following due considering (by the Department) it was decided that no mediation would take place giving the reason of alleged threats against Psychologist Ms E Sky. Ms Robyn Gregory, Acting Director, Custodial Operations in her letter of 3rd December 2004 also advised that a Departmental decision had been made that mediation would not take place also giving as the reason alleged threats against psychologist Ms E Sky.
Both contradict the statement that mediation would not take place because I had refused to participate as stated by Ms Sinclair.
- In her letter of 5th October 2004 when Ms Sinclair published her inaccurate and misleading statement with regard to my being unwilling to take part in mediation. It is of note that she also suggests that if I wished to participate in mediation as recommended by the ESU I should advise the centre management. That being the case one must then question as to the validity of the reason given later for the Department deciding that mediation would not proceed, that being my alleged threats against Ms Sky. In considering that point one must then also consider that in her Email of the 26th July 2002 to Ms L Dalamu, Ms M Moore advised that previous recommendations did not endorse a mediation process and requested that if Ms Dalamu considered making such a recommendation that she should first discuss it with Ms Moore and Ms Sky.
Regardless of all the inconsistency the basic facts remain,
- I have not at any time refused to participate in mediation.
- Mediation has not to this date been offered by the Department.
- The statement by Ms Sinclair is incorrect and misleading.
- Ms Sinclair failed to retract that incorrect statement published under her hand and correct the record when formally requested to do so.
- The Ethical Standards Unit has to this time failed to investigate this matter in any meaningful or adequate manner.
In his letter of 27th September 2004 the Senior adviser of Offender Management wrote that and I quote “The submission of reports is a part of a detailed assessment process aimed at collating all available information that may be used to form a recommendation or make a decision. Individual centres are responsible in the first instance for gathering all available information to assist their considerations in relation to a prisoner. As the report is processed additional reports may be sought to assist the decision-maker. Authors of individual documents are responsible for the integrity and accuracy of their reports.”
I would suggest that both legally and ethically Ms Sinclair is ultimately responsible for accuracy of her letter and it’s content and that it remains her responsibility to ensure that her source information is correct, that being said despite being supplied with supporting documentation proving beyond reasonable doubt that her statement was incorrect she then refused to retract that material and correct the record.
The actions of Ms Sinclair are a clear and undeniable breach of the Corrective Services Act, section 102 yet it could seem to be seen from the puerile and pathetically inept attempt to exonerate Ms Sinclair and absolve her of responsibility by the use of unrelated material presented out of context in a misleading manner and attributing that to a subordinate of Ms Sinclair that there is no intention of your office to investigate or act on this matter.
As I am considerably aggrieved by this matter and the manner in which it has been handled to this time it is my intention to progress the matter to the Courts for Judicial Review.
I request that under the provisions of the Judicial Review Act 1991 that you provide me with a statement of reasons in respect of your decision dated 16th May 2005 that the ESB proposes no further action in respect of my complaint of Official Misconduct on the part of an Officer of the Department.
So that I may be fully informed in relation to this decision, I respectfully request, pursuant to Section 32(1) of the Judicial Review Act 1991, that you provide me with your Statement of Reasons for that decision.
I thank you for your co-operation. I look forward to hearing from you within the 28 day time limitation as prescribed by the Act.
I remain yours respectfully ___________________
Allan W WARD.
- To that letter the respondent gave this answer, in a letter dated 27 May 2005:
Prisoner Allan Ward
C/- Wolston Correctional Centre
Locked Bag 1800
RICHLANDS QLD 4077
Dear Prisoner Ward
I refer to your letter dated 26 May 2005 in which you request a “statement of reasons”, pursuant to Section 32 of the Judicial Review Act 1991, in support of my decision dated 16 May 2005, that the Ethical Standards Branch will not take further action in relation to your complaint against Ms Gabrielle Sinclair.
I do not propose to provide you with any further information concerning this matter on the following grounds.
- My letter of 16 May 2005 provided you with sufficient detail as to the reasons for my decision, pursuant to Section 31(a) of the Act; and
- In any event, and pursuant to Schedule 3 of the Act, decisions relating to the “investigation of persons for misconduct” are “decisions for which reasons need not be given”.
I reiterate that my decision on this matter is final, and I do not propose to enter into further discussions with you on the subject.
Ethical Standards Branch
- By a letter dated 23 June 2005, the respondent reported to Ms H Couper, Director, Complaints Services, Crime and Misconduct Commission:
Dear Ms Couper
RE:Complaint of Wolston Correctional Centre prisoner Allan Ward concerning Ms Gabrielle Sinclair, Executive Director, Strategic Policy and Services
Pursuant to Section 38 of the Crime and Misconduct Act 2001, I make the following report of suspected official misconduct.
Briefly, the above-listed prisoner has alleged that on 5 October 2004, Ms Sinclair provided him with false and misleading information, in departmental correspondence. Further, Mr Ward claims that Ms Sinclair has breached the provisions of Section 102 of the Corrective Services Act 2000, by doing so.
I advise that the Ethical Standards Branch assessed this complaint as lacking in substance and credibility, and determined that it was appropriate to seek an explanation from Ms Sinclair, prior to making a final decision on how best to deal with the matter.
In short, and after considering Ms Sinclair’s response and the related circumstances, the Ethical Standards Branch has determined that Mr Ward’s complaint is misguided, cannot be substantiated, and there is no evidence of misconduct by any departmental officer.
In all of the circumstances, the Ethical Standards Branch is of the view that the further application of departmental resources to this matter is not justified, and pursuant to Section 44(3) of the Crime and Misconduct Act 2001, I confirm that no further action will be taken with respect to it.
I trust this information is of assistance, and can be contacted on 3239 6305 should you wish to discuss this matter.
Section 44 of the Crime and Misconduct Act 2001 concerns dealing with complaints by public officials other than the Commissioner of Police. Subsection (3) provides:
(3)If the public official is satisfied that –
(a)a complaint –
(i)is frivolous or vexatious; or
(ii)lacks substance or credibility; or
(b)dealing with the complaint would be an unjustifiable use of public resources;
the public official may take no action or discontinue action taken to deal with the complaint.
- The applicant has put his application as follows:
Application to review the decision in respect of the decision of Mr P Bottomley of the Department of Corrective Services Ethical Standards Unit not to carry out a meaningful investigation into the conduct of Ms G Sinclair, Executive Director, Policy and Programs Services of the Department of Corrective Services, his decision delivered on the 27th May 2005.
- The applicant puts his reason for his being aggrieved in this way:
The Respondent has failed in his responsibility to undertake a meaningful investigation in regard of a complaint lodged with him on 14th April 2005, that the Executive Director, Policy and Programs Services, Department of Corrective Services, Ms Gabrille Sinclair has breached section 102 of the Corrective Services Act 2000 by knowingly publishing inaccurate and misleading information in relation to the Applicant in an official document and has failed when formally requested to retract that statement and correct the official record.
- The grounds of the applicant are:
1.That the making of the decision, within the meaning of s.20(2)(a) of the Judicial Review Act 1991, was unlawful in that a breach of the rules of natural justice happened in the making of the decision.
- That the making of the decision, within the meaning of s.20(2)(e) of the Judicial Review act 1991, was an improper exercise of the power conferred on the decision maker as the Director, Ethical Standards Unit, Department of Corrective Services by the Chief Executive, Department of Corrective Services.in that;-
aThe Respondent failed to take relevant considerations into account in the exercise of the power, within the meaning of s.23(b) of the Judicial Review Act 1991, that procedures that are required by law to be observed in relation to the conduct have not been, are not being or are likely not to be observed; and
bs.20(2)(e) That the making of the proposed decision would be an improper exercise of the power conferred by the enactment under which the decision is proposed to be made; and
cs.20(2)(f) That an error of law –
(i)has been, is being, or is likely to be committed in the course of the conduct; or
(ii)is likely to be committed in the making of the decision.
ds 23(b) Failing to take a relevant consideration into account in the exercise of a power; and
es23(d) An exercise of a power in bad faith; and
fs.23(e) An exercise of a personal discretionary power at the direction or behest of another person; and
gs.23(g) An exercise of power that is so unreasonable that no reasonable minded person could so exercise the power; and
hs.23(i) Any other exercise of a power in a way that is an abuse of the power.
- The order sought is:
The respondent be instructed to carry out a credible and meaningful investigation into the complaint made in respect of the conduct of Ms Gabrille Sinclair, Director Policy and Programs Services, Department of Corrective Services, with due diligence and probity, in accordance with the responsibilities of his office to ensure the ethical conduct of all departmental staff within 21 days.
- It is clear from the correspondence to which I have referred that the applicant has a number of grievances against officials of the Department of Corrective Services, but it is also clear that he has formulated his grievance against the respondent narrowly. In essence, it is that the respondent decided not to carry out a full and proper investigation into Ms Sinclair’s conduct in allegedly breaching s.102 of the Corrective Services Act by knowingly publishing inaccurate and misleading information concerning him in an official document, viz her statement in her letter to him of 5 October 2004, ‘I subsequently received advice that you did not accept the recommendation and were not willing to take part in mediation with the SOTP facilitators’. I am unable to see how he can sustain the allegation of a breach of s. 102 since the letter was to him and not to an official.
- The investigation the respondent was called upon to undertake, and did undertake, was into Ms Sinclair’s statement that she had received advice that the applicant was not willing to take part in the mediation recommended and referred to in Mr Watters’s letter of 2 March 2004. Ms Sinclair’s statement was, it should be noted, as to the receipt of advice; she did not assert more than that she had received certain advice. The respondent investigated that assertion and found that she had received that advice. It could be argued that the advice may have been wrong in that it proceeded from a misinterpretation of (3) on p. 8 in the applicant’s letter of 15 March 2004, but that is not an issue for determination on this application. I should say, however, that the reference to tape-recording and the provision of copies of tapes following as it does the passage concerning mediation suggests that the advice was correct, or at least that a reasonable person reading the passage could think it was so.
- I can see no suggestion in the evidence that the respondent decided not to carry out a full and proper investigation of the complaint as it was made to him, or that there was a breach of the rules of natural justice (ground 1). There is nothing before me indicating that the respondent failed to take relevant considerations into account or that any required procedures were not observed (ground 2(a)). The applicant’s ground 2(b) is meaningless since what is complained of is not a proposed decision but rather a decision that had been made. Ground 2(c) has not been made out, so far as it relates to past conduct, and so far as it relates to the future it is meaningless. There is nothing before me that could support the remaining grounds 2(d) to 2(h).
- Those conclusions are sufficient to dispose of the application. I accept the primary argument advanced on behalf of the respondent that an adequate investigation has already taken place, so that I shall not consider further other arguments advanced on behalf of the respondent.
- The application will be dismissed.
- Published Case Name:
Ward v Bottomley
- Shortened Case Name:
Ward v Bottomley
 QSC 6
31 Jan 2006
No Litigation History