McFarlane v The Queen

[2002] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A24 of 2001

B e t w e e n -

BRETT MATTHEW McFARLANE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 1.30 PM

Copyright in the High Court of Australia

MR B.M. SELWAY, QC, Solicitor‑General of the State of South Australia:   May it please the Court, I appear with my learned friend, MS G. DAVISON, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

GUMMOW J:   Now, Mr Solicitor, there is no oral argument on behalf of the applicant.

MR SELWAY:   Yes, your Honour.

GUMMOW J:   Two points arise for which we would be grateful of your assistance.  The first one is that the matter being out of time there would be a grant needed in that respect and we would need to know your attitude to that.  Secondly, whilst it is perhaps not at the centre of the substantive issues, there is complaint made by the applicant as to the availability of treatment for his pain problem in custody.  Can we ask you, first, for your assistance on the question of extension of time?

MR SELWAY:   Yes, your Honour.  The Crown takes no objection to an extension of time.  There is an affidavit in the application books giving the reasons for an extension of time which involves various allegations that papers were removed from him on whatever.

GUMMOW J:   Yes.

MR SELWAY:   Your Honour, my instructions are, notwithstanding that no affidavit has been filed in answer, we would not necessarily accept those facts as alleged, but given that the applicant was unrepresented, we would take no objection to an extension of time.

GUMMOW J:   Thank you.  That extension will be granted.

MR SELWAY:   Thank you, your Honour.

KIRBY J:   Can I ask you, you will remember at page 21 Chief Justice Doyle says at paragraph 29:

In my opinion, regrettably, the applicant’s chronic pain cannot affect matters much in a case as serious as this, and in the case of a person with such a poor record.

Now, I know from my Court of Criminal Appeal days in New South Wales that that is also the principle that is applied in that State, that what is done by way of treatment and so on in prison is a matter for the corrective services authorities within the Executive Government and not the courts, but I have always had a slight concern about that because the courts have the ultimate responsibility of committing people to prison and it strikes me just as possibly arguable, if it is relevant in this case and critical, that that is a sort of Pontius Pilate approach that courts have adopted, whereas, if it be the reality that a person is not going to get proper treatment within a corrective service institution and that that has in some way contributed to the incident, that that is a matter that courts should take into account in approaching the case and whether that is a special leave point in this case because Chief Justice Doyle does use the adverb “regrettably”.

MR SELWAY:   Yes.  Could I perhaps say what  the Crown would understand the position to be.  Under the Correctional Services Act and regulations in this State there are no minimum requirements for medical care and so forth.  Historically, prison regulations and such like had prescriptive provisions in it on how much food one got per day and such things.  They are no long contained in the regulations and the Act in this State.  Our view would be that the very fact of custody carries within it various obligations upon the correctional services authorities to provide at least a minimum requirement in terms of the necessities of life:  food, health and so forth.

What that might be in a particular case may involve questions of medical judgment and so forth, but in principle, we would not deny that the correctional services authorities have a duty to provide appropriate services and that those duties could be enforced by judicial review and other remedies, if necessary. 

On the question of sentencing, our position would be that it is inappropriate to use sentencing as a vehicle to require correctional services to comply with their legal obligations.  On the other hand, a sentence of imprisonment may well impact upon a particular prisoner more harshly than on another simply because of the prisoner’s condition, and health would be a good example.

KIRBY J:   There are a number of cases in South Australia which began, I think, with some decisions of Chief Justice King which laid down the general principle, often in cases involving HIV status, which have been followed throughout Australia, that a health condition is not a licence to commit offences or to have light sentences but it is a matter that has to be taken into account in assessing the way in which a particular sentence will fall more heavily on one prisoner than on another.  Does that encapsulate the way it has been approached in South Australia?

MR SELWAY:   Yes, your Honour, that is the proposition.

KIRBY J:   Is that Smith, is it?

MR SELWAY:   Yes, R v Smith.  It was accepted and applied by the High Court in Bailey v DPP (1988) 62 ALJR 319 at column 1 paragraph F. It is a special leave application where Smith seems to be approved and applied.  In this case the appeal is about the length of sentence.  The disease is a chronic disease, or at least that is the way the medical evidence appears to be, and there is no suggestion that the medical treatment that is suggested, that is to say, methadone twice a day, would be available outside the prison where it is not inside the prison.

Having said that, there are particular problems with methadone inside a prison and that may be one of the reasons why it is difficult, at least in a high security prison, to make provision for two methadone treatments a day.  But, what we submit to the Court is that it is no answer for the correctional services authority to say, “We will not comply and treat this man’s medical condition.”  They have a duty to do so.  The question of whether the compliance with is reasonable or appropriate, in the circumstances, requires more facts than are before the Court.  But in relation to the question of sentence, we would say that Chief Justice Doyle referred to Smith, identified the relevant principles and that at least in relation to this appeal that is a sufficient answer.  Whether it is a sufficient answer in terms of what the correctional services authority is currently doing may be more difficult but there are legal remedies available if there is a problem.

KIRBY J:   Yes.

GUMMOW J:   Yes, thank you very much, Mr Solicitor.  We will take a short adjournment.

AT 1.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.42 PM:

GUMMOW J:   The application for extension of time has been granted.

Although the matter was listed for hearing for determination on the papers and without oral submissions, the Court requested that respondent be represented today.  That has occurred with the appearance of the Solicitor‑General and junior counsel.

The Court had invited attention to a passage in the judgment of Chief Justice Doyle in the Court of Criminal Appeal where his Honour, in the course of his judgment said this:

In my opinion, regrettably, the appellant’s chronic pain cannot affect matters much in a case as serious as this, and in the case of a person with such a poor record. 

This is not the occasion to explore the subject at length.  However, very properly, the Solicitor‑General has acknowledged that the applicant may have other legal remedies in respect of any proved failure by the custodial authorities to provide him with reasonable medical treatment whilst he remains in custody.

The Court will direct that the Registrar supply the applicant with a copy of today’s transcript which will, of course, include the assistance provided to the Court in this respect by the learned Solicitor‑General.

Turning to the substance of the application, we are, however, not convinced that any relevant sentencing principles have been overlooked or misapplied or that any miscarriage of justice has occurred.  Accordingly, special leave is refused.  We again acknowledge our indebtedness to the Solicitor‑General for his attendance with his junior this morning.

The Court will now adjourn to Tuesday, 30 April 2002 at Canberra.

AT 1.45 PM THE MATTER WAS CONCLUDED