Clark v Queensland Corrective Services Commission

[1996] QSC 4

IN THE SUPREME COURT

OF QUEENSLAND
  Apn. No. 115 of 1994
Before the Hon. Justice Fryberg

[Clark  v Queensland Corrective Services Commission]

BETWEEN:
  GREGORY JAMES CLARK
  Applicant
AND:
  THE QUEENSLAND CORRECTIVE SERVICES COMMISSION
  Respondent

DECISION - FRYBERG J.

Delivered the 7th day of February, 1996

I gave judgment in this matter on 21st July 1995.  At that time I stood over the question whether I should direct the Registrar to send the papers in the matter to an appropriate authority for investigation into whether there had been an offence or official misconduct committed by Peter Kevin Gray, a deponent on behalf of the respondent in the proceedings.  At subsequent hearings only the respondent was represented.  It argued that I should not make any direction.  I allowed further evidence (by affidavit) to be placed before me on that issue.

The proceeding in which the issue arose was an application for judicial review by Gregory James Clark, a long-term prisoner with a disgusting criminal history which included murder, rape and armed robbery.  At the time of the application he was serving a life sentence for murder.  The application was to review a decision not to downgrade his security classification from medium to low, a decision made pursuant to regulation 13 of the Corrective Services Regulations 1989.  That regulation requires that security classifications be reviewed at periodic intervals.

Clark was unrepresented and prepared and argued the application himself.  He made the Queensland Corrective Services Commission the respondent, although at no stage was it suggested that the Commission itself had made the relevant decision.  Nothing turned on that.

I described the course of the hearing in my judgment:-

"The decision the subject of the application was not made by the Commission itself; that much is clear.  However, when the matter first came before me, I was told from the bar table, and it appeared in an affidavit of Peter Kevin Gray, that the decision was made by a committee called the Remission and Security Reclassification Committee at its meeting on the date in question, 20 September 1994.  The case was argued on the basis that the decision was properly made by that committee by reason of the provisions of rule 152 of the rules of the Commission, which provided in short that only that committee may make a decision in relation to a prisoner serving a life sentence.

The hearing stretched over a number of days.  The reasons for this need not be pursued.  During the course of the hearing, leave has been granted to both sides to file additional material from time to time, and ample advantage has been taken of that opportunity by the respondent.

The decision of the committee was conveyed to the applicant by a letter dated 22 September which Mr Gray sent to him.  That letter gave reasons for the decision and referred to the decision as having been made by the authorised delegate, Mr Powne.  Mr Gray in his affidavit filed on 17 May deposed that:

'Although the letter refers to the authorised delegate, Mr Powne, as having considered the matter, the actual decision was made by the Remission and Security Reclassification Committee, of which Mr Powne is the chairperson and authorised delegate.'

The application proceeded on this basis until, for a variety of reasons, toward the end of the hearing on 14 July I had occasion to look closely at the minutes and to observe that not only was the letter referring to Mr Powne as having made the relevant decision but the minutes were also in that state.  I was told from the bar table that the minutes had been approved by the committee.  For this reason, I felt that before I made any decision I should have affidavit material from the committee indicating that the matter had been properly considered by each and every member of it.  I adjourned the proceedings on the 14th in order to enable affidavits from the members of the committee to this effect to be procured.  There was no objection to my doing so from Mr Clark.

When the matter resumed today, Ms Atkinson on behalf of the Commission was granted leave to read and file some further affidavits - one by Mr Gray, one by Mr Powne and one by Mr Davies.  These affidavits have disclosed that, contrary to the evidence of Mr Gray in the earlier affidavit, the decision was indeed made by Mr Powne and that the committee did not make it."

No explanation was offered for Mr Gray's earlier, incorrect testimony.  I raised the issue now under consideration because it seemed to me that in the absence of any explanation it might be desirable for an investigation to be conducted to establish whether the incorrect version of events had been given in order to bring the case within the ambit of Rule 152.

It is not part of my function even to investigate this question, let alone to make findings in relation to it.  The only issue which I have been considering is whether I should direct the Registrar to refer the papers to an appropriate authority for investigation.  However on behalf of the Commission Mr Flanagan submitted that even to do that would cast a slur upon Mr Gray's reputation.  He submitted that I should not give such a direction unless I found a prima facie case established.  He referred me to several cases where judges have referred possible perjury to the Attorney-General.  However I do not find those cases relevant in the present context.

Two further affidavits by Mr Gray have been filed.  He has deposed that at the time he swore his earlier affidavits he honestly believed that the Remission and Security Reclassification Committee ("the committee") had made the decision.  He has given his reasons for that belief:

"(a)the decision (as with other reclassification decisions) was made at a meeting of the Committee;

(b)the Committee meeting at which the decision was made was only the second meeting of the Committee which I attended.  The Committee which was established in July 1994 was still in its infancy at the time when the decision was made and its practices and procedures had not been firmly established;

(c)the decision (as with other reclassification decisions) was made after Mr. Eric Powne chaired an 'around the table' discussion where each Committee member had an input into the process by in turn stating his or her opinion as to whether Mr. Clark ought to have his security rating reclassified and reasons therefore;

(d)the decision (as with other reclassification decisions) was not made by Mr. Powne in isolation or in private and was recorded at the meeting;

(e)at the time of swearing the affidavit sworn on 25 January 1995 and the May affidavit, I was of the view that the level of consultation which took place at the Committee meeting when the decision was made was sufficient to my mind to mean that the Committee had in fact made the decision;

(f)at the time of swearing the affidavit sworn on 25 January 1995 and the May affidavit, I was considering the decision-making process and the mechanisms of the meeting from a layperson's perspective and as a consequence, I did not fully appreciate the legal considerations in respect of that decision-making process;

(g)at the time of swearing the May affidavit, although I considered the May affidavit in total, I was primarily concerned with ensuring the accuracy of the two additional paragraphs that are not contained in exhibit 'PKG1', being paragraphs 7 and 8 of the May affidavit;

(h)I considered that in view of the legal advice that had been conveyed to me as referred to in paragraph 12 above, it was necessary for legal reasons to draft the minutes of the Committee's meetings in the manner in which they were drafted, albeit, that I considered, as a non-lawyer, that the Committee had in fact made the decision."

He swore that he did not change his mind until after he considered a discussion which he heard in Court at the hearing on 14th July.  That was the occasion when the proceedings were adjourned in order to enable affidavits from the members of the committee to be procured.  Mr. Gray swore:-

"18.Upon my consideration of the discussion that I had heard in Court on 14 July 1995 and after becoming aware of the full legal implications of the decision-making process that was undertaken by the Committee prior to the decision being made, I formed the view (which differed from the view that I had previously held) that, for legal purposes, Mr. Powne, as the Commission's Authorised Delegate, had in fact made the decision after consultation with the Committee and that this was to my mind the correct legal interpretation of what had occurred at the Committee meeting.

...

26.At no time did I intend to mislead the Court in any way or to alter my position to support any arguments advanced by the Commission.  Both paragraph 9 of the May affidavit and paragraph 4 of the July affidavit contained views which were honestly held by me at the relevant times having regard to the processes of the Committee meeting referred to in paragraph 6 above and to the subsequent comments by His Honour and to the discussions of legally qualified persons to which I was witness."

There is nothing inherently improbable in Mr Gray's statement that he believed the decision was made by the committee.  Having regard to all of the evidence before me, I see no reason not to accept it.  Indeed I rather suspect that Mr Gray still believes that in reality the committee took the decision.  I base this on his reference to Mr Powne having made the decision "for legal purposes" and to this being the "correct legal interpretation" of what occurred.  No need for an investigation into any possible offence appears from the evidence before me.

That however is not the end of the matter.  Mr Gray's testimony gave rise to a further question: if he believed that the committee made the decision, why did he put something different in the minutes of the meeting of 20th September 1994?  To understand Mr Gray's answer it is necessary to have regard to the history of the committee.

The committee was established by a resolution of the respondent passed on 20th July 1994 and certified five days later.  The minute of the decision establishing the committee is as follows:

"8(a)Remission and Re-Classification Committee:

The Commission considered the Paper from the Director of Offender Development and approved that -

(i)a Remission and Security Re-classification Committee be established and that it be comprised of:

(A)two Commissioners (these being on an initial basis Messrs Powne and Davies);

(B)the Director of Offender Development;

(C)A General Manager (on a six monthly rotational basis, with Mr J Krikorian, General Manager, Sir David Longland Correctional Centre being the first General Manager to commence in this role);

(D)the Senior Adviser, Sentence Management; and

(E)a position to provide secretarial/co-ordination support.

It was also agreed the Chairperson or any other Commissioner should be available to attend meetings of the Committee with full rights of participation in the event either Messrs Powne and Davies were unable to do so;

(ii)Either of the two Commissioners to chair the Committee on a six monthly rotational basis and in that role to act as the Commission's authorised delegate (Mr Powne is to chair the committee for the first six months of its operation);

(iii)(A)      Instruments of Delegation E.35.4; E.40.2; E.41.4; E.42.4; E.43.4; E.44.4; E.45.2; E.46.4; E.47.4; E.48.4; E.49.4; E.50.4; E.52/2.1; E.53/8.2; E.60.5; E.61.5; E.62.5; E.63.5; and E.64.5; be revoked; and

(B)draft Instruments of Delegation E.1.1; E.3.1; E.4.1; E.15.1; E.16.1; E.17.1; E.41.5; E.42.5; E.43.5; E.44.5; E.45.3; E.46.5; E.47.5; E.48.5; E.49.5; E.50.5; E.52/2.2; E.53/8.3; E.60.6; E.61.6 E.62.6; E.63.6 and E.64.6 be approved and signed by the Acting Secretary under the common seal of the Commission;

(iv)Commission's Rules 102 and 138 be revoked and the draft Commission's Rules attached to the Paper entitled 'Transfer of Low Security or Open Security Prisoners to Open Institutions, Community Corrections Centres and Approved Programs' and 'Security Classification of Prisoners to Low and Open Security' (which have subsequently been numbered 144 and 145 respectively) be approved and signed by the Acting Secretary under the common seal of the Commission;[1]

[1]      Although the case before me was originally argued on behalf of the Commission on the basis that Rule 152 was the relevant rule, that rule was not in fact in force on 20th September 1994.  On that date the relevant rule was its predecessor, Rule 145, enacted at this meeting.  There was no material difference in the terms of the two rules.

(v)The Director-General arrange for the Director of Offender Development to establish procedures at correctional centre level to ensure that the process of considering issues of remission at that level is consistent with and reflects the procedures of the Committee; and

(vi)the Director-General arrange for the effectiveness of the above arrangements to be reviewed in six months and that a report on same be submitted to the Commission.

Furthermore, consideration was given to the question of those remission cases which should remain within the province of the Commission to make a decision in relation thereto.  It was decided that in the event the members of the Remission and Security Re-Classification Committee were divided 3 to 2 on an issue, or if either Commissioner on the Committee was uncomfortable with a proposed action, then the matter should be referred to the Commission for it to make a decision."

None of the instruments or draft instruments referred to in paragraph (iii) of the resolution was put before me, but I was told from the bar table that none of them dealt with security classification.  The terms of paragraph (ii) of the minutes suggest that the delegations were in favour of the two persons referred to in that paragraph, not in favour of the members of the committee.

The committee held its first meeting on 22nd July 1994, only two days after it was established.  At that time Mr Gray was not the secretary and he did not attend that meeting.  The minutes record:

"The Chairperson opened the meeting and briefly discussed the decision of the Commission in relation to the establishment of this Committee and the decision making process relative to his delegation.

Ms Mahoney was requested to advise on any legal implications arising from the Chairperson, as the authorised delegate, making decisions based on the advice of a Committee.  Ms Mahoney advised that an amendment will need to be made to Mr Powne's Instrument of Delegation to reflect the process.  Mrs Gray[2] was requested to liaise with Ms Mahoney to ensure that the delegation is amended.

[2]      A Mrs Gray was the acting secretary of the committee.

Ms Mahoney briefed the Committee on the requirements of the Corrective Services Regulation 1989 with respect to remission and security re-classification."

Mr Gray began to act as secretary to the committee on 8th August 1994.  At about that time he read the minutes of the first meeting of the committee.  He attended its second meeting on 30th August 1994 where those minutes were confirmed.  At that meeting, according to the minutes drafted by Mr Gray:

"The Chairperson opened the meeting and briefly discussed the legal implications of having the appropriate delegations in place for the Committee.  New delegations are being drafted for the positions of the Remission and Re-Classification Committee.  The issue of delegations is to be resolved in the immediate future."

That was how matters stood when the committee met on 20th September 1994, the day when it considered Clark's case.  On that day, according to the minutes:

"The Chairperson briefly discussed the drafting of appropriate delegations for the Committee.  The Chairperson stated that he would pursue the finalisation of delegations with the Legal Section."

Mr Gray recalled that Mr Powne outlined three options:

(a)a delegation to each individual committee member;

(b)a delegation to the committee as one entity; or

(c)a delegation to the chairperson (Mr Powne) as an appointed Commissioner.

Thereafter the committee proceeded to discuss Clark's case.

In my view it is plain on the face of the minutes of the first three meetings of the committee that its members were very much alive to the fact that there had been no express delegation of power by the Commission to the committee.  Presumably they were aware that the Commission had delegated some powers to Mr Powne, and they may have believed that these powers included power in relation to security classification[3].  Mr Gray however believed that the committee took the decision regarding Clark.  He must have known that it had no express power to do so and that this was a topic of concern to it.  He drafted the minutes of the meeting of 20th September 1994 to record that Mr Powne made the relevant decision.  Why did he do so?

[3]      There is no evidence that any such delegation in fact existed.

Mr Gray sought to explain his draft by reference to what he described as "legal advice".  He did not say in terms what that advice was, but he said it was confirmed by a note dated 23rd September which Ms Baldwin, the relevant officer from the Commission's legal section, sent him.  The note read as follows:

"Peter

As discussed, here is the latest version of Bunny's delegs.  It goes to the next Board meeting for approval.

As you will see, Bunny is still the 'delegate' but we have added the preamble for him to 'consult with members of the C'tee'.

I suggest you adopt this wording in the decisions, Statements of Reason etc.  The minutes of the meeting may also reflect that.

Good luck

H Baldwin23/9/"

Attached to the note was a draft instrument of delegation.

Three features may be noted about that draft[4].  First, power is to be delegated to Mr Powne only, although he is expressly authorised in exercising the discretion conferred by the instrument to consult with members of the committee.  Second, no power was delegated in relation to security classifications.  The delegated powers related only to absence on leave, transfers and remissions.  Third, the delegation was not in place at the time of the meeting of the committee on 20th September 1994. 

[4]      The draft was apparently duly adopted by the Commission on 29th September 1994.

In his affidavit Mr Gray dealt with the second of these features.  He said that he did not distinguish between the delegated functions of the Commission for the purposes of adopting the legal advice as to the appropriate drafting of the minutes.  "To my mind," he said, "this form of drafting legally established the authorised delegate as the person who was to anchor or to record the Committee's decision."  In his evidence he did not address the fact that the delegation was not proposed to come into force until 29th September at the earliest.  Neither did he address the question of how legal advice could somehow make it proper to record the decision as having been made by Mr Powne when he believed the position to have been otherwise.

It is difficult to see how his actions could have occurred through oversight, since the issue of the proper repository of power was plainly a vexed one - Ms Baldwin's note, read with the committee's minutes, shows that.  However without access to the whole of the minutes of the committee for its July and August meetings, I would not wish to express any opinion on the correctness of Mr Gray's explanation to me.  It would be relevant to know the way in which any exercises of delegated power were recorded in those minutes.  It would be relevant to know whether at the time he drafted the minutes Mr Gray believed Mr Powne held an appropriate delegation, and whether in fact he did so.  On the material before me Mr Gray's explanation is less than satisfactory.  The matter deserves further investigation. 

The question arises whether I should direct the Registrar to refer the papers to any particular body for further investigation.  In the course of argument I intimated to counsel for the Commission that I was satisfied that there was no reason on the evidence before me to suspect the possibility of perjury and that the only body to which I would consider a reference would be the Criminal Justice Commission.

The definition of "official misconduct" in the Criminal Justice Act 1989 is lengthy and complex. It is unnecessary to set it out. It suffices to say that the evidence before me does not disclose a serious probability that Mr Gray has committed official misconduct. Nor is there any reason to think that Mr Gray attempted to mislead the Court, now that his explanation for his affidavit has been provided. There is need for further investigation, but the evidence before me, limited as it is, does not suggest the existence of matters of sufficient seriousness to warrant an investigation by the Criminal Justice Commission.

It is apparent that there has been a breakdown in administrative procedures.  The Commission formulated a rule that required the committee to deal with applications for security classification and implemented that rule.  It appears to have been thought that appropriate delegations were also necessary to enable the committee to comply with the rule.  If the rule did not operate as an implied delegation any decision by the committee may have been void.  If there was no delegation to Mr Powne in place, or if that delegation was inconsistent with the rule, any decision by him in the relevant period may have been void.  I do not know how many prisoners may be affected by any such void decisions.  I have already referred to the need to investigate further Mr Gray's position.  It is not the function of this Court to engage in such an administrative inquiry.  That is best done by the Commission itself.  It seems unnecessary to direct that papers in the matter be provided to the Commission - I presume that its legal representatives will do that in any event.

For the foregoing reasons, I have decided not to give any direction of the sort contemplated at the time I gave judgment.  The Registrar should forward a copy of these reasons to the prisoner Clark.