Minty v Qld Community Corrections Brd

[2004] QCA 141

SUPREME COURT OF QUEENSLAND

CITATION:	Minty v Qld Community Corrections Brd & Anor [2004] QCA 141
PARTIES:	CARL DAVID MINTY (applicant/appellant) v THE QUEENSLAND COMMUNITY CORRECTIONS BOARD (first respondent/respondent) THE DEPARTMENT OF CORRECTIVE SERVICES OF QUEENSLAND (second respondent)
FILE NO/S:	Appeal No 3149 of 2004 SC No 10494 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	28 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	28 April 2004
JUDGES:	de Jersey CJ, McMurdo P and Williams JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – where appellant in custody for offence of murder – where appellant made application for release to work – where application was refused by respondent – where appellant did not have access to all the material the respondent relied on to make its decision – where appellant is now entitled to make fresh application to respondent – whether futile to make order quashing original decision of respondent
COUNSEL:	The appellant appeared on his own behalf C J Clark for the respondent
SOLICITORS:	The appellant appeared on his own behalf Dibbs Barker Gosling for the respondent

WILLIAMS JA:  The appellant was convicted of murder on the 13th of August 1985 and has been in custody since then.  Relevantly for present purposes in about September 1999 he made an application for parole or alternatively for release to work.  The application as it went ahead was limited to an order seeking release to work.

The decision of the respondent Board was delivered in September 2001 and the application was refused.  The appellant in 2004 sought an order for judicial review of that decision and that application was dismissed at first instance.  This is an appeal from that order.

The Court has substantial material before it, including a transcript of what transpired before the Board when the appellant was interviewed in connection with his application.  It is clear that the appellant had access to at least some of the material relied on by the Board in arriving at its decision, in particular some reports from psychiatrists and psychologists over the period of time that he had been in custody.  But it is not clear that he had access to all of the reports and material relied on by the Board.

Subsequent to the decision of the Board on the 5th of September 2001, it was asked to provide a list of the material on which it relied and that was provided.  Since that time the appellant has had access to all of the material on which the Board relied up to September 2001.

If the appellant was successful on this appeal, the result would be the matter would be remitted for further hearing by the Board, and strictly that would have to be a hearing on the material as it existed in September 2001.  It is obvious from the material now before the Court that, for example, the applicant has subsequently obtained a report from a psychiatrist, Dr Fama, which could be said to be favourable to his cause.  In those circumstances it would be futile to make an order quashing the decision of the Board of 5 September 2001 and directing it to reconsider the matter on the material before it in September 2001.

The far better course is for the appellant to make a further application to the Board for post-prison community based release or an order for release to work or a similar order and to have that dealt with as expeditiously as possible by the Board.  This Court cannot, of course, give directions to the Board as to the procedure it should follow, but given the whole history of the appellant's applications, it is appropriate that any further application should be dealt with as expeditiously as possible.  Of course, there may be some delay whilst up to date reports are being received both at the request of the Board and at the request of the appellant himself.

Further, given the history of this matter, it is desirable that the Board make available to the appellant any material on which it seeks to rely which is subsequent to that already disclosed to the appellant and in his possession.

In summary it would be futile for this Court to make the order sought on the judicial review application.  In the circumstances it is appropriate for this court to dismiss the appeal and leave it up to the appellant to take steps to have a further hearing before the Board conducted in accordance with the intimations contained in these reasons for judgment.

In the circumstances, though the appeal should be dismissed, no order should be made as to costs.  In the circumstances the order that I would propose is appeal dismissed, no order as to costs.

THE CHIEF JUSTICE:  I agree.

THE PRESIDENT:   I agree and I specifically note my agreement with the intimations contained in Justice Williams' reasons.

THE CHIEF JUSTICE:  Mr Clark?

MR CLARK:  Could I just add I will undertake to make sure the Judgment which has just been delivered is brought to the attention of the Board.

WILLIAMS JA:  Thanks, Mr Clark.

THE CHIEF JUSTICE:  And will you mind making sure that a copy of the transcript ends up with Mr Minty as well?

MR CLARK:  A transcript of today's proceedings?

WILLIAMS JA:  Of the reasons.

THE CHIEF JUSTICE:  Of the reasons.

MR CLARK:  Oh, the reasons, yes.  Of course.
THE CHIEF JUSTICE:  The appeal is dismissed.