McEncroe v Queensland Community Corrections Board
[1997] QSC 159
•8 September 1997
IN THE SUPREME COURT
OF QUEENSLAND
No. 1842 of 1997
[McEncroe v Queensland Community Corrections Board]
BETWEEN:
ANTHONY JOHN McENCROE
Applicant
AND:
QUEENSLAND COMMUNITY CORRECTIONS BOARD
Respondent
REASONS FOR JUDGMENT - THOMAS J.
Delivered:8 September 1997
CATCHWORDS: CRIMINAL LAW - Parole - Review of Queensland Community Correction Board refusal to grant parole application - Whether Board bound to accord natural justice - Duty to identify issues relevant to refusal of application and bring substance of facts issues/allegations/opinions on which decision is likely to be based to notice of applicant - Whether statement of reasons of Board conclusive as to factors important to its determination - Whether sufficient reason to fear applicant might again take advantage of young female in domestic situation - Difficulties faced by parole boards
JUDICIAL REVIEW - Natural justice - Content of duty
Counsel:Mr J.R. Davidson for the Applicant
Mr B. Thomas for the Respondent
Solicitors:Prisoners’ Legal Service, for the Applicant
Crown Solicitor for the Respondent
Hearing date: 15 August 1997
IN THE SUPREME COURT
OF QUEENSLAND
No. 1842 of 1997
[McEncroe v Queensland Community Corrections Board]
BETWEEN:
ANTHONY JOHN McENCROE
Applicant
AND:
QUEENSLAND COMMUNITY CORRECTIONS BOARD
Respondent
REASONS FOR JUDGMENT - THOMAS J
Judgment delivered 8 September 1997
This is an application for judicial review of a decision of the Queensland Community Corrections Board refusing applications for parole, home detention and extended leave of absence.
The applicant is now 45 years old. Between May 1992 and September 1993 he committed a series of sexual offences on his step-daughter Hailey, whose age during that period was 11 to 12. He was convicted of one count of indecently dealing with a circumstance of aggravation, one count of attempted rape and two counts of rape. He was sentenced in the District Court by Judge Robin QC to concurrent terms of eight years for rape, seven for attempted rape and one for indecent dealing, with a recommendation that the applicant be eligible for parole after serving two years.
During the eight-month period when he was on bail he underwent counselling, and during the period of his imprisonment he has completed all programmes and other therapy offered to him by the prison authorities.
According to the jargon of the Community Corrections System, his release to work eligibility date was 9 September 1995, his home detention eligibility date was 9 January 1996 and his parole eligibility date was 9 May 1996. I take this to be a shorthand reference to the fact that he is eligible to be considered for the grant of those respective benefits on those respective dates.
On 11 July 1995 the applicant made his application for work release, home detention and parole. He supported it with an eight-page summary of relevant matters including relationships, education and employment history, a statement of the activities which led to his convictions, relevant “attitudes”, prison response, future employment and behaviour, future accommodation, future development of skills and support network. On 11 August 1995 he prepared a twelve-page “relapse prevention plan”, and later that month completed the Sexual Offender’s Treatment Plan (SOTP) provided by the prison authorities.
Some delay ensued while the authorities obtained a psychiatric report, and indeed that report (by Dr Alcorn) was not prepared until 14 June 1996. In the meantime, on 19 December 1995, a quite adverse “pre-release report” was prepared by a community correctional officer, Ms Carmel Peters, and placed with the papers to be considered by the relevant Board or Boards in due course. The matter came before the West Moreton Regional Community Corrections Board on 11 July 1996. It confessed to “grave difficulty in making a recommendation” but in the end recommended conditional release to work for six months. The main condition was that he should during that time receive psychological counselling. However that Board’s report was only a recommendation, as the relevant imprisonment exceeded five years. The exclusive discretionary power to grant parole in such cases is reserved to the Queensland Community Corrections Board (Corrective Services Act 1988, s 165(2)).
On 20 July 1996 the Queensland Community Corrections Board declined to approve the applicant’s release, stating its view that the applicant posed an unacceptable risk of reoffending. In its letter to the applicant of 30 July 1996 it added that the Board “considers you should take steps to address your aggression and potential for violence” and informed him that he might “respond to this letter, addressing the issues raised by the Board, and the Board will reconsider your case in light of that response”. The applicant responded by letter of 4 August 1996, inter alia addressing the question of risk of reoffending by pointing out that his wife had divorced him, that she and her children had moved address and he had no intention of reuniting with his wife and that he would be relocating to a totally different area. He described the offences of which he had been convicted as a “one-off situation”.
With respect to the question of aggression and potential for violence, he wrote
“Unless there is evidence before you that I am unaware of, which depicts these problems, I cannot understand why these areas are of concern. At the time the offences were committed, there were no acts of aggression or violence towards my victim, and further there were none suggested at the subsequent court hearings.”
He went on to mention that he had taken all steps possible to address any “potential to violence” and mentioned the courses he had undertaken.
On 27 August 1996 the Board again refused the application. Its stated reasons repeated the two matters stated above. On 7 November 1996 the present application for statutory review was filed. A month later the respondent Board agreed to reconsider the decision in question, and the judicial review proceedings were held in abeyance. A further letter dated 21 January 1997, strongly supportive of the applicant’s case for favourable consideration of parole, was written by Ms Julie Gordon, official community visitor and placed with the relevant papers. On 24 January 1997 the Board reconsidered the application and on 10 February 1997 again notified to the applicant that it declined to approve his release. A fairly lengthy statement of reasons was later prepared and forwarded to the applicant’s solicitors.
The major grounds of the application for judicial review are denial of natural justice, failure to take into account relevant considerations, unreasonableness, abuse of power (acting outside guidelines) and error of law (insufficient evidence).
Denial of Natural Justice
Part 4 of the Corrective Services Act 1988 (ss 163-196) provides a statutory framework under which prisoners may apply for release on parole. Slightly different provisions apply according to whether the proceeding is before a Regional Community Corrections Board or the Queensland Community Corrections Board, but in each instance the relevant Board is required to “consider” each application for parole received by it. In the case of applications by prisoners serving imprisonment exceeding five years, the matter is first considered by a regional Board which is required to make a recommendation to the Queensland Community Corrections Board as to whether or not the prisoner should be released on parole (s 167(1)). The legislation goes on to provide that the regional Board should forward its recommendation together with the application, notes of any representations made to the Board by or on behalf of the applicant and such other material as it considers appropriate, to the Queensland Community Corrections Board “for its consideration”. It is then provided that that Board “shall have regard to the Regional Community Corrections Board’s recommendation with respect thereto but is in no way bound by the recommendation”(s 167(3)).
The prisoner is given greater procedural rights in relation to the primary application to the regional Board than in relation to the final consideration by the Queensland Community Corrections Board. In the former instance, the prisoner has a right to appear before and make representations to the Board in support of the application. There is also the opportunity (with the leave of the Board) to be represented by an agent (s 169(1)(a)). The only provision for representation before the Queensland Community Corrections Board is “with the leave of the Board first obtained, . . by an agent” (s 169(1)(b)).
If either Board refuses an application for parole it is required to “cause reasons in writing for the refusal to be given to the applicant” (s 174).
Within that framework, in a case like the present the Queensland Community Corrections Board is not only the final decision-maker, it is the only decision-maker. The regional Board’s role is to make recommendations. Even so, such a system resembles in some ways that which was considered in South Australia v O’Shea (1987) 163 CLR 378, where the High Court held that a hearing before a recommending body provided sufficient opportunity for a party to present his case, so that the decision-making process viewed in its entirety entailed procedural fairness (p 389, 405). Thus in that case the final decision-maker (the Governor-in-Council) was not obliged to give the applicant the opportunity of being heard, and its decision refusing to act on the recommendation of the Board that the applicant be released on licence, was upheld. However an important rider appears in the reasons.
“If the decision-maker intends to take account of some new matter, not appearing in the report of the recommending body, and the party has had no opportunity of dealing with it, the decision-maker should give him that opportunity.” (per Mason J at 389, per Wilson and Toohey JJ at 405)
I consider then that in making a decision upon an application of this kind the Queensland Community Corrections Board is not free from a duty to accord natural justice to the applicant, and that subject to some obvious limitations which may be implied in relation to the content of the procedural fairness that must be provided, the principles of Kioa v West (1985) 159 CLR 550, 584, 588; Annetts v McCann (1990) 170 CLR 596, 598, 607, are applicable.
I do not think, for example, that the Board has any duty to show its file to the applicant. There is an inherent difficulty however in articulating the kind of material that might need to be disclosed to an applicant when there has been a favourable recommendation from the primary Board and the ultimate decision-maker is minded not act on that recommendation. In a sense the final decision-maker is saying that it does not regard the first Board’s report or the evidence before it as sufficiently persuasive, or that there are additional factors which lead it to a different conclusion. In my view the position has been helpfully stated in Re Solomon [1994] 2 Qd R 97, 110 where Ambrose J stated, with respect to the duty of a Regional Community Corrections Board:
“Natural justice can be said to require such a tribunal to bring to the notice of the person who might be affected by its determination, the issues or factors which it considers to be critical to its determination.”
Such reasoning is in my view equally applicable to the proceedings of the Queensland Community Corrections Board. Ambrose J’s decision reflects the observation of Mason J in Kioa
“In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.” (Kioa at 587)
Another useful statement is that of White J in R v Angel ex parte Van Beelen (1983) 34 SASR 34, 63. His Honour referred to
“the implied duty [of] the Board in the absence of compelling reasons related to confidentiality, to disclose to the prisoner the substance of evidence or factors adverse to the prisoner on those occasions where the prisoner does appear in person before the Board”
His Honour continued
“It is . . the duty of the Board to outline to him the substance of the disclosable evidence or the main factor or factors militating against his application.”
and
“The implied right to know the substance of the adverse factor or factors falls far short of a full range of rights ancillary to a full hearing, such as the right to inspect documents, confidential or otherwise, and to confront and cross-examine adverse witnesses and to address the Board.”
In my view these remarks are equally applicable whether the procedure is by means of correspondence with the applicant, or by means of appearance before the Board by an agent of the applicant.
In the present matter the applicant was made privy to the general issues of concern as to his “potential for violent behaviour” and whether there was an unacceptable risk of his reoffending. However particulars of the real basis on which the Board might reach its conclusion on such matters were never provided to the applicant. Counsel for the applicant submits that the following details are all highly relevant to these matters and that the applicant was never made privy to them or given an opportunity of denying or contradicting the facts on which they were based.
The allegation in the report of Carmel Peters that the applicant was a consistent and long-term perpetrator of domestic violence.
The allegation in the same report that the applicant had “not dealt with” the issue of domestic violence.
The allegation in the same report that the applicant suffers from distort thinking in regard to his relationships with women and that he lacks respect for women.
The allegation in the same report that one Robyn Gregory was subjected to threats by the applicant whilst he was on bail for the offences.
The Board’s statement (in its reasons) that the applicant, being in his mid-forties, was still young enough to enter into new relationships in which there might well be dependant female children.
The adverse inference in the Board’s reasons arising from the applicant’s misdescription on one occasion of the victim’s age.
The Board’s reliance in its reasons on the statement that the applicant committed an offence during a period in which he was receiving church group counselling for his marital difficulties.
The extent to which the Board relied on matters arising from the report of Dr Alcorn.
The report of Ms Peters includes the results of interviews that she conducted with former spouses of the applicant and it explicitly paints the applicant as a long-term perpetrator of domestic violence. That is a potentially relevant factor in assessing his character and propensity for unacceptable conduct towards other members of his household. It also has overtones in relation to the central question whether he has addressed his offending behaviour, recognised his own weaknesses and prepared a reliable strategy to avoid reoffending. Counsel for the Board sought to surmount this difficulty by submitting that this particular consideration was not a critical factor in the decision. He referred to the statement in paragraph 11 of the statement of the Board’s reasons where it is said
“The Board considered that irrespective of the accuracy of the domestic violence alleged but unproven in the two marriages, the applicant needs to recognise himself and take steps to deal with the capacity demonstrated by his convictions to the aggressive conduct already referred to in these reasons.”
Whilst that particular statement tends to reserve the question of domestic violence, the nature of is relationship with his former wives and his attitude towards women including “distorted thinking in regard to relationships with women” can be seen to be very much in the mind of the Board in paragraph 12.
Having read Ms Peters’ report, Dr Alcorn’s report and the lengthy reasons for decision of the Board, I find it impossible to separate in a satisfactory way the issues of alleged former domestic violence, his alleged attitude towards women, and the question whether he has properly come to terms with those propensities. They are matters that are quite relevant to the overall decision of the Board in a case like this where the primary question is whether there is sufficient reason to fear that he may once again take advantage of a young female in a domestic situation. It was not appropriate that facts of such potential relevance be presented to and acted on by the Board without extending to the applicant an opportunity to deny such facts or present a different perspective upon them.
There are serious difficulties confronting Boards which gather diverse information in order to make a wise decision concerning release or non-release of an offender. Persons such as former spouses may not be prepared to be candid if they know that information provided by them will be placed before the applicant. But if such information is relevant, then unless at least a summary of the effect of such evidence is given to the applicant how can he deal with the allegation? The problems are compounded by the practice of receiving “pre-release reports” which commonly canvass a wide variety of potential issues, many of which are peripheral, or in the end quite irrelevant.
The only solution which will enable the regime of natural justice required by the common law to be maintained is for the Board in each case to identify what are the relevant issues which might lead to its refusal of the application. Any factual allegation issue, opinion or basis on which such a conclusion is likely to be based should be identified and its substance mentioned to the applicant so that a response can be given.
In my view the factors mention in points 1, 2 and 3 of the above submissions (on p 7 above) were factors which the Board was obliged to bring to the attention of the applicant so that response could be made. I do not consider that the Board was obliged to bring factor 4 to his attention, because there is no reason to think that this matter played any part in the Board’s determination. Factors 5 and 6 are in my view not sufficiently important or relevant matter to require disclosure to the applicant before the Board could take them into account. They are simply points that the Board was entitled to make out of the material before it. The applicant did overstate the victim’s age in one of his important submissions and the Board was entitled to draw an inference from that. It would be absurd if a Board were obliged in such a situation to promote a correspondence along the lines “This point concerns us. You now have the opportunity to maintain it, withdraw it or say that it was just a slip or oversight”.
Factor 7 however should have been brought to the applicant’s attention because there is considerable doubt as to the dates upon which the offences were committed and he ought to have been given the opportunity of making a statement as to whether any offences were committed during or after his receiving the relevant counselling.
Factor 8 concerns the report of Dr Alcorn, a psychiatrist. The evidence and submissions in the present case do not enable me to express any general view on the question whether such reports are privileged or whether the contents ought in general to be disclosed. However Dr Alcorn’s report clearly raises the allegation that the applicant made an admission that he hated women and raises the issue of his attitude towards women both particularly and generally. It is a matter which the Board was entitled to take into account and which plainly affected its thinking. The applicant ought therefore to have been given notice of this allegation and the opportunity to refute or explain it.
Before leaving this topic it should be noted that the fact that a particular matter is not directly referred to in the statement of reasons is not conclusive that it was not an important factor in the determination. In Kioa, Mason CJ noted two matters, which although not mentioned in the tribunal’s reasons, were potentially quite persuasive, and which the tribunal did “not disavow” (p 588). Obviously in his Honour’s view, what needs to be brought to an applicant’s attention are the critical issues or factors “on which the administrative decision is likely to turn” (ibid p 587).
In view of the above conclusions the challenged decision cannot stand. It is unnecessary for me to consider the additional submissions that insufficient account was given to the judge’s recommendation, to relevant guidelines and concerning other matters raised in the application for review.
It will be ordered that the Board’s decision of 24 January 1997 be set aside and that the Queensland Community Corrections Board reconsider the application according to law.
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