Millar v Chief Executive, Department of Corrective Services

[2004] QSC 303

SUPREME COURT OF QUEENSLAND

CITATION:

Millar v Chief Executive, Department of Corrective Services [2004] QSC  303

PARTIES:

ANDREW JOHN MILLAR
(applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES
(respondent)

FILE NO/S:

BS 1887 of 2004

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court
Brisbane

DELIVERED ON:

27 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26, 27 August 2004

JUDGE:

McMurdo J

ORDER:

1.   Application to review the decision in relation to the radio breach made on 19 December 2003 confirming an earlier decision of 22 November 2003 is dismissed

2.   Order for review of decision made on 28 January 2004 to confirm the earlier decision made on 8 January 2004; each decision is quashed

3. The finding of this breach of discipline be expunged from the registered kept under s 90

4.   Further order that the person in charge cause details of decisions to be deleted from that register

5.   Application for review is otherwise dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS FOR REVIEW OF DECISION – ERROR OF LAW – where applicant argues that he was not informed that he could not have a radio in his possession without approval – where question of fact for decision maker whether approval was given – whether s 15(1)(d) of Corrective Services Regulation requires knowledge of wrong doing for a prisoner to be in breach

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS FOR REVIEW OF DECISION – ERROR OF LAW – where applicant asked to provide a sample of his urine but did not – where Act deems a prisoner to have given a positive test sample – where positive test sample defined as a sample which shows that a prisoner has used a substance that is a prohibited thing – where question for decision maker is whether applicant had wilfully consumed or inhaled anything that was likely to induce an intoxicated state – whether the proof of use of a prohibited substance prove that applicant had consumed or inhaled a substance likely to induce an intoxicated state – whether wilfulness proved – whether failure to provide urine sample within a reasonable time establish a breach of s 15(1)(k) – whether error of law

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – PROCEDURE ON APPLICATION FOR REVIEW – OTHER MATTERS – where respondent did not provide factual case that applicant did wilfully consume a substance likely to induce an intoxicated state – whether matter should be remitted for further decision – whether register should be rectified 

Corrective Services Act 2000 (Qld), s 32(1), s 33(1), s 33(2), s 33(4), s 89, s 93(1), schedule 3
Corrective Services Regulation 2001 (Qld), s 15, s 15(1)(d), s 15 (1)(k), s 18,

Judicial Review Act 1991 (Qld), s 23(g)

Hogan v Sawyer, ex parte Sawyer [1992] 1 Qd R 32, distinguished

COUNSEL:

The applicant appears on his own behalf

M O Plunkett for the respondent

SOLICITORS:

The applicant appears on his own behalf

C W Lohe, Crown Solicitor for the respondent

HIS HONOUR:  The applicant, Mr Millar, is an inmate of

Borallon Correctional Centre.  He applies for review of two

decisions by which he was found to have committed major

breaches of discipline in contravention of section 15 of the

Corrective Services Regulation 2001.

The first is a decision of 19 December 2003 in which he was

found to have committed a breach of discipline within section

15(1)(d) of that regulation in that he was "a prisoner in

possession of something, being a radio, without the express or

implied approval of the person in charge of the prison".  I

shall refer to this as the radio breach.

The second is a decision of 28 January 2004 by which he was

found to have committed a breach within section 15(1)(k) which

is breached where a prisoner "wilfully consumes or inhales

anything that is likely to induce an intoxicated state other

than medication taken as prescribed by a doctor".

The hearing which led to this decision had resulted from

Mr Millar's not supplying a sample of urine within an hour of

being told to do so.  I shall call this the "urine sample

breach".

Part 1 of chapter 3 of the Corrective Services Act deals with

breaches of discipline by prisoners.  It begins with

section 86 which provides that a regulation may prescribe an

act or omission to be a breach of discipline and which gives a

Corrective Services officer a discretionary power to start

proceedings on such a breach.  It further provides that the

officer must decide whether the prisoner should be proceeded

against for a major breach or a minor breach.  Pursuant to

section 87, a deciding officer must decide whether the breach

was committed within, for a minor breach, 24 hours or, for a

major breach, seven days after the deciding officer becomes

aware of the alleged breach.

By section 87(2) the deciding officer must inform the prisoner

of any evidence that supports the allegation and give the

prisoner a reasonable opportunity to make submissions and to

question any witness called by the officer and to call a

person who is "within the facility" to give evidence in the

prisoner's defence.  Section 87 further provides that neither

side is entitled to legal or other representation and that the

deciding officer is not bound by the rules of evidence.  By

section 87(6) the consideration of a major breach of

discipline must be videotaped.

Section 88 stipulates the consequence of a breach of

discipline which, if it is a major breach, must be established

beyond reasonable doubt.  A prisoner has a right of review of

the decision of the deciding officer which, according to

section 89, is by way of re-hearing by a more senior officer,

who may allow further evidence.  Again, neither party is to be

legally represented on such a hearing and the proceedings on

the review of a major breach of discipline must be videotaped.

The officer conducting this review may confirm the original

decision, vary it or set it aside and substitute another

decision for it.  The decision on this review is not itself

subject to appeal or further review under the Act.  Each of

these decisions in the present case was a decision made on

review of an earlier finding of a breach of discipline.

It is conceded that they are decisions to which the Judicial

Review Act 1991 applies.  It is also conceded that Mr Millar

is a person aggrieved by the decisions for reasons which

include the potential effect of the findings of breaches upon

his release on post-prison community based release.  The

outcome of the hearing in relation to the urine sample breach

is also relevant according to section 33(1)(a) in assessing Mr

Millar's classification as a prisoner

Pursuant to section 86 of the Act, section 15 of the

Corrective Services Regulation 2001 prescribes certain acts to

be breaches of discipline.  One of those is the subject of

section 15(1)(d) which is relevant to the radio breach.

Section 15(1)(d) relevantly provides:

"For section 86(1) of the Act a prisoner commits a breach
     of discipline if the prisoner (d) possesses or conceals
     something that has not been expressly or impliedly
     approved by the person in charge as being something the
     prisoner may possess."

Another act within section 15 of the regulation is that the

subject of paragraph (k), the terms of which have already been

mentioned and which is the subject of the urine sample breach.

I turn then to the application to review the decision or

decisions relating to the radio breach.  Mr Millar argued his

own case and the grounds and particulars for his application of review for each of these decisions in many respects lacked the precision which would be expected of a lawyer.  However, the complaints he makes in relation to this decision seemed to be ones of denial of procedural fairness, error of law and bad

faith and fraud.  As the argument was developed however, his

complaints in relation to procedural fairness and error of law

involved essentially the one point, which is that at no time

was he informed that he should not have such an item in his

possession, at least without approval.

He does not argue that the Corrective Services Regulation 2001

is in any sense invalid and, in particular, that it has not

been duly published as indeed I find it has been in the

Government Gazette on the 29th of June 2001 on page 222.

Rather, his case is that it had not been made to him that he

required prior permission to possess such an item.

By the terms of section 15(1)(d) of this regulation, a breach

of discipline occurs by the possession of something that has

not been expressly or impliedly approved as something which

the prisoner may possess.  There is nothing in the regulation

or in the Act itself which requires some notification to the

prisoner that he should not possess such an item without

permission.  The source, if not a basis, for Mr Millar's

argument is the decision of the Full Court in Hogan v. Sawyer

ex parte Sawyer [1992] 1 Qd R 32. That was a

criminal case in which the appellant had been convicted of an

offence under section 93(1)(c) of the then Corrective Services

Act 1988 of being a prisoner having a prohibited article in

his possession.  Section 93 created an offence for a prisoner

to possess an article of substance "prescribed by a rule as a

prohibited article" and conviction of such an offence carried

a penalty of a term of imprisonment.

Section 20 of the Corrective Services Administration Act 1988

gave the Corrective Services Commission the powers to make

rules called Commission Rules which would be brought to the

notice of persons to whom they were to apply.  Section 36

required the commission to inform a prisoner of his or her

duties pursuant to the Commission Rules and rule 14 of those

rules prohibited the possession by a prisoner of, amongst

other things, money.  In that case, the rules were not

published in the Government Gazette, nor were they generally

available to the public, police or distributed to prisoners.

That appeal concerned the scope of section 22 of the Criminal

Code which provides that a person is not criminally

responsible for an act or omission in contravention of any

statutory instrument if the statutory instrument was not known

to him and had not been published or otherwise reasonably made

available or known to the public or those persons likely to be

affected by it. It was held that section 22(3) applied

because there would have been no offence but for the statutory

instrument and its declaration that certain items were

prohibited articles for the purposes of section 93 of that

Act.  Because mere knowledge on the part of a prisoner that he

would get into trouble if he possessed money was not

sufficient to meet the requirements of notification of the

statutory instrument, pursuant to section 22(3) of the

Criminal Code, the appellant was found not to be criminally

responsible.

Inspired by this case, Mr Millar's argument then is that he

could not be guilty of a breach of discipline absent some

publication or notification to the effect that items should

not be possessed by prisoners and, in particular, borrowed

from other prisoners without approval.  This argument

misunderstands the effect of Hogan v. Sawyer.  In the present

case, no question of criminal responsibility arose.  A breach

of discipline is not an offence although in some circumstances

the same conduct might constitute both, as section 86

anticipates. In this context, the difference between an

offence and a breach of discipline under a statutory regime

such as the Corrective Services Act 2000 and its predecessor

was explained by Thomas J in Hogan v. Sawyer at page 35.

Section 22 of the Criminal Code is expressed in terms of

criminal responsibility, and according to the definition of

"criminally responsible" in section 1 of the Code it means

"liable to punishment as for an offence".

It is unnecessary to explore whether the possession of this

item by Mr Millar was also, in all the circumstances, an

offence and, in particular, the possession of what the Act

describes as a "prohibited thing".  The decision which is the

subject of these proceedings was one in which criminal

responsibility was not to be determined.  In any case, if it

did matter, the relevant regulation, which is the Corrective

Services Regulation 2001, had been duly published in the

Gazette.

More generally, Mr Millar complains that he was unaware of the

provisions to the effect of section 15(1)(d) of this

regulation.  He believed that there was nothing wrong in

possessing such an item if it was lent to him by another

prisoner, at least where that prisoner had been entitled to

have the item inside the prison.  However, the terms of

section 15(1)(d) regulation do not require the implication of

some knowledge of wrongdoing for a prisoner to be in breach.

Mr Millar then claims that the officer who conducted the

relevant review hearing in relation to this breach and another

officer who gave evidence in that hearing acted in bad faith

and that the latter's evidence was fraudulently given.  The

question for determination by the officer conducting the

hearing was whether there was an implied approval for

Mr Millar to have this item in his possession.  His case was

that he did have such an approval because, when stopped by a

supervisor and asked about the radio, the supervisor had said

something to him which was to the effect that he should not

have the item in his possession. That argument was rejected as

it seems to me the decision maker was entitled to do in

determining what was a factual question.

Mr Millar says that the evidence of the supervisor as to the

circumstances of that conversation was false in a particular

respect.  The supervisor had said that he took no action

himself to seize the radio from Mr Millar but left it to other

officers because the supervisor had more pressing business in

relation to a potential for an incident to occur between other

prisoners.  Mr Millar says that, in effect, there was no such

potential and that the supervisor gave a false account in this

respect in order to refute Mr Millar's case that the

supervisor's inaction about the radio was an implied approval.

If I had to make a finding on the matter, I would see no

reason to doubt this supervisor's evidence as to the potential

for that other incident and that it was on his mind when he

encountered Mr Millar with the radio.  But in my view, the

accuracy or otherwise of that evidence is of no present

significance.  There was no factual contest as to what had

passed between the supervisor and Mr Millar.  For example,

there was no suggestion by the supervisor that he had said

that Mr Millar should not have the radio, nor does Mr Millar

assert that he had express approval from the supervisor.  The

decision maker had to determine whether what had undoubtedly

passed between the supervisor and Mr Millar was sufficient to

give Mr Millar approval for his possession of the item.  I

cannot see that the credibility of the supervisor's evidence

as to the potential for another incident was capable of

affecting the outcome of this disciplinary hearing.  In turn,

the allegation that his evidence was fraudulent is not only

not established but has no present relevance.

The distinct allegation by Mr Millar that the officer who made

the decision on review was acting in bad faith also has no

substance.  It was first alleged by reference to evidence said

to have been given by that person before Mr Millar realised,

when providing or attempting to provide particulars, that this

man had not himself been a witness but was the adjudicator. But the particulars raise another matter against this man by reference to what he said at the hearing about an item found within the radio after it had been taken from Mr Millar's possession and examined.

At Mr Millar's disciplinary hearing, the officer conducting

the review said that the item, in the nature of a makeshift

screwdriver, had been found within the radio.  That formed no

part of the charge against Mr Millar.  Mr Millar complains

that, in truth, there was no such item within the radio.  From

this, he says that a statement by the decision maker that the

decision maker had information to that effect must have been

false:  that is, he could not have had that information and,

accordingly, he was biased against the prisoner.  There is no

evidence which would support an allegation.  Whether or not

the radio did contain this item, there is nothing to suggest

that the decision maker, in saying that he believed the radio

did contain it, in truth believed otherwise.

For these reasons the application to review the decision in

relation to the radio breach, which is the decision made on

19 December 2003, confirming an earlier decision of

22 November 2003 must be dismissed.  I then turn to the other

matter involving the urine sample breach.

On 28 January 2004 a decision was made under section 89 to

confirm an earlier decision of the same date that Mr Millar

had committed a major breach of discipline under section

15(1)(k) in that he wilfully consumed or inhaled something

likely to induce an intoxicated state.  The grounds for the

application for review of this decision are that Mr Millar was

given insufficient time to prepare his defence. He says that he was refused permission to call relevant witnesses, that "the section of the Act under which the applicant was dealt with is unsafe and is not based on any scientific foundation" and that at no stage was a relevant section of the Corrective Services Act "displayed within the prison to prisoners". The last of these grounds again seems to be inspired by Hogan v. Sawyer and must be rejected. To understand the other grounds, it is necessary to discuss the circumstances which led to that

disciplinary hearing.

Mr Millar had been asked to provide a sample of his urine,

which he did not do.  The sample was required pursuant to

section 30 of the Corrective Services Act which provides that

the Chief Executive may require a prisoner to give a test

sample of the type the Chief Executive requires.

At one stage in the arguments in this Court there was a

suggestion that there had not been a valid delegation by the

Chief Executive to the person who requested Mr Millar to

provide this sample.  The Chief Executive was able to delegate

his power under section 30 according to section 57 of the

Public Service Act 1996. Exhibit 5 within these proceedings

is an instrument of delegation which shows that the Chief

Executive has delegated to persons occupying certain positions

the power under section 30. In particular, it shows that the

Chief Executive has delegated that power to, amongst others, a

"correctional supervisor".

The onus is upon Mr Millar to establish an invalid delegation

or a purported exercise of a power under section 30 by a

person not within the category of those to whom the section 30

power has been delegated.  Mr Millar has failed to discharge

that onus and this point, that is, the question of whether the

power under section 30 had been duly delegated, which was not

itself within the amended application filed by Mr Millar but

was raised only in the course of the hearing, is not made out.

Section 33(4) of the act provides the prisoner is taken to

have given a positive test sample if the prisoner refuses to

supply a test sample or "((b) fails to supply a test sample

within reasonable time unless the prisoner has a reasonable

excuse".

Section 33(1) provides that if a prisoner gives a positive

test sample, the test result may be considered when assessing

the prisoner's classification and the prisoner may be required

to undertake a medical or behavioural treatment program.

Section 33 (2) provides that this is in addition to the

prisoner being dealt with for the commission of an offence or

a breach of discipline.

The term "positive test sample" is defined in the Act as a

sample which "shows a prisoner has used a substance that is a

prohibited thing".  The term "prohibited thing" is defined to

mean something which is prescribed to be a prohibited thing

under section 93 of the Act.  Pursuant to section 93 section

18 of the Corrective Services Regulation 2001 has prescribed

certain things to be prohibited things.  They relevantly

include:

"(k) a spiritous or fermented fluid or substance of an
     intoxicating nature;

(l) a drug or medicine".

At the hearing which led to this decision, the question which

both sides seemed to consider of central importance was the

factual one of whether a reasonable time had expired for

Mr Millar to supply a urine sample.  The prison officers seem

to have adopted one hour as a reasonable time.  Mr Millar's

case was that a reasonable time would depend upon the

circumstances and that he should have an opportunity to call a

nurse from within the prison facility to say so.  This is the

basis for his complaints that he was given insufficient time

to prepare his defence and denied the opportunity to call

relevant witnesses.  It is also the basis for his argument

that the decision is one which is without any "scientific

foundation".

These submissions are not without some substance.  I

appreciate that it is necessary in the proper management of
the prison environment that disciplinary proceedings occur

with expedition, and to that end the Act provides for the

decision by a deciding officer to occur within a matter of

days of the awareness of a major breach.  However, the hearing

must be conducted with regard to the particular requirements

for procedural fairness, according to law and in a way

in which the ultimate decision is not unreasonable in the

sense of that term which is relevant for judicial review

proceedings.

In my view, however, it is unnecessary to consider those

submissions further because the present decision was affected

by errors of law which made the ultimate decision relevantly

unreasonable and one which is susceptible to judicial review.

The flaw which I see in this decision is in the effect which

it gave to section 33(4). As I have mentioned, by that

provision a prisoner who has failed to supply a test within a

reasonable time is taken to have given a positive test sample.

Accordingly, the prisoner is taken to have given a test

sample that shows a prisoner has used a substance that is a

"prohibited thing".  The question for the decision-maker was

not whether the prisoner had used a substance that was a

prohibited thing but whether he had wilfully consumed or

inhaled anything that was likely to induce an intoxicated

state.  Many of those things which are "prohibited things", as

prescribed by section 18 of the regulation, are not items

which would be ordinarily expected to be consumed or inhaled,

but of those which are, such as those within paragraphs (k)

and (l), many would not be likely to induce an intoxicated

state.

So to say that Mr Millar was shown to have used a substance

that was a prohibited thing might be to say no more than that

he was shown to have used, for example, a "drug or medicine".

The proof of the use of a prohibited thing through the deeming

of a positive test sample by section 33(4) does not of itself

prove that he consumed or inhaled a substance likely to induce

an intoxicated state, nor does it prove that he did so

wilfully.  It follows that a decision that he had wilfully

consumed or inhaled anything likely to induce an intoxicated

state in breach of section 15(1)(k) cannot be made solely from

a finding that he failed to provide a sample of his urine

within a reasonable time.

In some cases, of course, the failure to provide that sample

considered with other circumstances could well justify the

conclusion that a prisoner had wilfully consumed an

intoxicating substance, and in some cases the consumption of

such a substance could well be proved without any need to rely

upon a failure to provide a sample of urine.  But the failure

to provide the urine sample within a reasonable time does not

of itself establish a breach of section 15(1)(k).

I have seen the videotape of the relevant hearings which

culminated in this decision and the earlier decision reviewed

by it.  It seems to me that the only question which was

considered was that in relation to section 33(4) of whether

more than reasonable time had expired for the provision of a

sample.

In the present proceedings the respondent did not seek to

uphold the decision by evidence that the decision-maker did

consider the factual question or questions corresponding with

the terms of section 15(1)(k). Rather, the written

submissions indicated that the process of reasoning was, as I

have seen it, which is that from a failure to provide a sample

must come the conclusion that the prisoner had willingly

consumed or inhaled something likely to induce an intoxicated

state.

Mr Millar did not argue his case in a way which corresponds

with this analysis but it seems to me that the decision should

be susceptible to review on this basis because the point is a

legal one, and had Mr Millar specifically taken it in his

application, there could have been no relevant factual

response to it.  Indeed, the decision maker swears in his

affidavit that "I was satisfied beyond reasonable doubt that

Andrew Millar had contravened section 15(1)(k) by failing to

supply a urine sample on 27 January 2004."

There should be an order for a review of this decision made on

28 January 2004 to confirm the earlier decision made on same

date.  Each decision should be quashed.  Absent any suggestion

of a factual case to the effect that Mr Millar did wilfully

consume such a substance, I see no purpose in remitting the

matter for any further decision.  But it is necessary to

ensure that the finding of this breach of discipline be expunged from the Register kept under section 90 of the Corrective Services Act and I will further order that the person in charge cause details of these decisions to be deleted from that register.

The application for review is otherwise dismissed.

I will hear the parties as to costs.

...

HIS HONOUR:  As to costs, for the respondent, no order for

costs is sought.  Mr Millar, however, seeks some order for

costs on the basis that although he represents himself, he has

incurred, he says, certain expenses such as photocopying.  No

doubt there have been some expenses on his part, as no doubt

there has been considerable expense on the part of the

respondent, in meeting an application which in one respect has

succeeded but in one respect has failed.

It seems to me that in the circumstances, the appropriate

result is that there should be no order for costs.

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