SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Swan v Qld Community Corrections Board [2007] QCA 80 PARTIES: STEPHEN SWAN (applicant/appellant) v QUEENSLAND COMMUNITY CORRECTIONS BOARD (respondent) FILE NO/S: Appeal No of 2006 SC No 4300 of 2006 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal General Civil Appeal Supreme Court at Brisbane DELIVERED ON: 16 March 2007 DELIVERED AT: Brisbane HEARING DATE: 9 March 2007 JUDGES: ORDER: McMurdo P, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made Appeal dismissed with costs to be assessed CATCHWORDS: ADMINISTRATIVE LAW JUDICIAL REVIEW LEGISLATION GROUNDS FOR REVIEW OF DECISION BREACH OF RULES OF NATURAL JUSTICE where the appellant claimed a lack of procedural fairness arising from a failure by the Queensland Community Corrections Board to provide him with material relating to his drug use whether the material was critical in determining the cancellation of his parole ADMINISTRATIVE LAW JUDICIAL REVIEW LEGISLATION GROUNDS FOR REVIEW OF DECISION IMPROPER EXERCISE OF POWER UNREASONABLENESS where the Board imposed conditions on the appellant during his parole period in accordance with s 144(3) Corrective Services Act 2000 (Qld) where the appellant alleged condition (o) relating to drug use was not reasonably necessary whether the condition amounts to an improper exercise of power ADMINISTRATIVE LAW JUDICIAL REVIEW LEGISLATION GROUNDS FOR REVIEW OF

2 2 COUNSEL: SOLICITORS: DECISION IMPROPER EXERCISE OF POWER UNREASONABLENESS whether the decision to cancel parole was unreasonable Corrective Services Act 2000 (Qld) s 144(3), s 149(5), s 150(5) Association Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, cited Buck v Bavone (1976) 135 CLR 110, distinguished Kioa v West (1985) 159 CLR 550, distinguished McEncroe v Queensland Community Corrections Board (1998) 96 A Crim R 85, distinguished Minister for Immigration and Multicultural Affairs v Eshetsu (1999) 197 CLR 611, distinguished Re Soloman [1994] 2 Qd R 97, distinguished York v General Medical Assessment Tribunal [2003] 2 Qd R 104, distinguished P E Smith for the appellant S A McLeod for the respondent Prisoners Legal Service for the appellant Crown Solicitor for the respondent [1] McMURDO P: The appellant, Stephen Swan, is serving a three year cumulative term of imprisonment for offences relating to the aggravated possession of the drugs methylamphetamine, heroin and cannabis sativa. He committed these offences whilst on parole for a seven year sentence for trafficking in methylamphetamine and heroin. He was released from prison on parole for the more recent sentence from 18 August 2005 subject to conditions. On 22 December 2005 a delegate of the Chief Executive ordered the suspension of his parole for 28 days. On 3 January 2006 the Secretary of the respondent, the Queensland Community Corrections Board ("the Board"), signed an order suspending Mr Swan's parole for an indefinite period. By an order of 13 March 2006 the Board cancelled Mr Swan's parole. Mr Swan applied for a judicial review of the Board's decisions to suspend and cancel his parole. This appeal is from the Trial Division judge's dismissal of that application. As his fulltime release date is 7 April 2007 and he is eligible to be released from custody on 5 April 2007, the utility of this appeal is marginal. [2] The relevant facts are as follows. Mr Swan is now 53 years old. He was released on his most recent parole on conditions including: "(o) that the prisoner abstain from the consumption of nonprescribed drugs including Codeine based over the counter or prescribed drugs without the permission of the Board; (p) that the prisoner submit to urinalysis at the direction of the corrective services officer, and if it is established by such urinalysis that the prisoner has illegally used a drug; it shall be considered as a breach of the order." [3] On 14 December 2005 he submitted under condition (p) of the parole order to urinalysis. That sample was tested on 19 December The Urine Toxicology

3 3 Screening Report noted that the sample registered positive for amphetamine but negative for benzodiazepines, cannabinoids and opiates. [4] On 22 December 2005 Mr Swan received a notice under the Corrective Services Act 2000 (Qld) ("the 2000 Act") s 149(5) that his parole had been suspended and that the reasons for the suspension were: "Has failed to comply with the order by: Contravening condition (o) namely, 'that the prisoner abstain from the consumption of nonprescribed drugs including Codeine based over the counter or prescribed drugs without the permission of the Board' in that he provided an urinalysis sample on 14 December 2005 which tested positive to Methamphetamine." [5] Ms Peta Clark, Acting Senior Area Manager, Ipswich Community Corrections, included in her report to the Board of 23 December 2005 that: " On 18 October 2005 Yamanto Police contacted Ipswich Community Corrections and advised that they had attended prisoner Swan's nominated address and were informed by the residents that prisoner Swan had never resided at the home. The occupants of the house claimed that Mr Swan was their landlord and he only visited the property every now and then to check on his greyhounds. When asked if they knew where Mr Swan resided, they were not prepared to disclose any information but simply stated that he lives in the Ipswich area. Prisoner Swan was questioned about his nominated address on 18 October He confirmed that 18 Hacienda Crescent, Coominya was his residential address. Prisoner Swan advised that on a weekly basis he may spend one night at his girlfriend's address and a couple of nights at his daughter, Leanne's home. He disclosed that the police had 'raided' his home that morning and he was concerned that the police were harassing him. Prisoner Swan further suggested that former friends may have incorrectly informed police about his current address as he had previously had a disagreement with them. Since commencing parole, prisoner Swan has submitted to ten urinalysis tests. It is noted that on 12 October 2005 the prisoner provided a urinalysis sample that was positive to morphine. After the test was conducted, prisoner Swan admitted to consuming a pain killer which he believed to be Nurofen. The Regional Director, Southern Region, was advised and prisoner Swan was directed to produce the medication at 3 pm that afternoon and submit to a further test. The prisoner attended this appointment as directed and provided a box for the medication with his name on it for Codolgen Forte. Prisoner Swan submitted to a further urinalysis test and again provided a positive result to morphine. Both samples were signed and sealed and forwarded to the Queensland Health Scientific Services pathology laboratory for confirmation of results. Urine Toxicology Confirmation Reports for both samples confirmed the presence of morphine, < 300 ng/ml however the source of the opiate could (sic) be determined due to residual levels only being found in each sample. It is noted that in the second sample only, Codeine

4 4 could be detected. Given that prisoner Swan provided written confirmation of this prescribed medication which would have indicated a positive result for morphine, he was permitted to leave the office. Prisoner Swan was again urine tested on 2 and 16 November 2005 and provided samples which were clean to illicit substances including morphine. On 14 December 2005 prisoner Swan submitted to a urinalysis test which provided a positive result on an Instacheck test kit for Amphetamine. The Senior Area Manager and Acting Regional Director were advised of this result. The prisoner made no admissions at this time to any medication or illicit drug use which would have provided a positive reading for Amphetamine. However prisoner Swan then stated that he had taken 'some pills' for nasal symptoms. Prisoner Swan was permitted to leave the office and given a direction to report on 15 December On this date prisoner Swan provided a medication container for Cold and Flu tablets. Prisoner Swan was again warned about providing all medications prior to urinalysis testing. The sample collected on 14 December 2005 was signed and sealed and forwarded to the Queensland Health Scientific Services pathology laboratory for confirmation of results and prisoner Swan was permitted to leave the office. On 22 December 2005 a Urine Toxicology Confirmation Report from the Queensland Health Scientific Services pathology laboratory was received in relation to the urinalysis sample collected on 14 December This report advised that the sample contained Methylamphetamine < 300 ng/ml. The writer contacted the analyst at Queensland Health Scientific Service pathology laboratory regarding prisoner Swan's positive urinalysis result for Methylamphetamine. She confirmed that the presence of Methylamphetamine should not be in the prisoner's system unless he is prescribed a specific Attention Deficit Hyperactivity Disorder (ADHD) medication. Subsequently the Acting Regional Director, Southern Region was advised and a decision was made to suspend prisoner Swan's Parole Order pursuant to section 149 of the Corrective Services Act A warrant was issued for the prisoner's arrest. To date he has not been returned to secure custody. Prisoner Swan has continued his involvement in commencing his own lead lighting business and the training of greyhound dogs. RECOMMENDATION In light of the above, it is recommended that the prisoner show cause as to why his Parole Order should not be further suspended or cancelled."

5 5 [6] Mr Swan did not receive a copy of Ms Clark's report prior to the Board making its decisions of 3 January and 13 March 2006 which were the subject of his application for judicial review. [7] The Department of Corrective Services' Procedure on Offender Management Substance Testing Appendix states: "When immunoassay test kits used to test a sample for a particular drug exceed the relevant cut-off level (that is, produce a 'positive result'), the officer must be aware that cross-reacting compounds will increase the concentration of the drug class. Due caution needs to be taken to determine what portion may be a cross-reacting compound and what portion (if any) may represent illicit drug use. Immunoassay test kits used in initial presumptive testing are designed to detect the relevant class of drug whose presence is of a quantity higher than the following cut-off levels Class of Drug Cut-off Level µg/l Sympathomimetic amines 300 If confirmatory test results are less than the cut-off level, then results must be taken as clean. " [8] This is consistent with Standards Australia's Procedures for the collection, detection and quantitation of drugs of abuse in urine: "4.8 INTERPRETATION OF RESULTS Samples with results equal to, or greater than the cut-off levels listed in Tables 1 or 2 shall be subjected to confirmatory testing. A confirmatory test shall be performed on such samples before results are issued. If a sample result is less than the cut-off value, then the drug shall be reported as 'not detected' TABLE 3. CONFIRMATORY TEST CUT-OFF LEVELS Compound Cut-off Level µg/l Amphetamine 300 Methylamphetamine 300 " [9] Mr Swan deposed that police arrested him on 27 December 2005, citing a warrant based on a positive urine test, although he did not see the warrant. [10] On 3 January 2006 the Board gave Mr Swan notice under s 150(5) 2000 Act of the suspension of his parole order, stating: "Reason(s) for the Board's decision: was that on 14 December 2005 you failed to comply with condition (o) of your order namely: 'that the prisoner abstain from the consumption of non-prescribed drugs

6 6 including Codeine based over the counter or prescribed drugs without the permission of the Board' by providing a sample for urinalysis that tested positive to Methamphetamine. You are hereby invited to show cause, by written submission given to the Board within 21 days of receiving this notice, why the Board should change its decision." [11] Mr Swan responded in a letter to the Board of 16 February He claimed the following. His friend, John Wilson, who had lost 25 kilograms over a period of four months, suggested he try Eldepryl tablets to help him lose weight and supplied them to him. Mr Swan read the pamphlet accompanying the drug and spoke to a chemist about it. The chemist assured him there was nothing in Eldepryl that would show a positive reading to amphetamine or codeine. He took Eldepryl without any problems for at least two months and for two urinalyses before the contentious one of 14 December. Mr Swan attached a statutory declaration from John Wilson supporting these claims. [12] Mr Swan requested that his urine sample of 14 December be re-tested on a number of occasions. The further testing was conducted on 23 February He received a copy of that Urine Toxicology Report. It stated that the sample contained less than 300 ng/ml (equivalent to 300 µg/l) of both amphetamine and methylamphetamine and "the amphetamine confirmation on the specimen has been repeated by a second analyst and the results are as above." [13] It follows that, consistent with the approach of both Standards Australia and the Department's own substance testing procedure, there was at least a strong case for arguing that the sample of 14 December should be considered as not registering positive for any prohibited drugs. [14] On 13 March 2006, the Board, under s 150 of the 2000 Act, cancelled Mr Swan's parole order, recording: Reason(s) for the board's decision: "You breached condition (o) of your order, namely: 'that the prisoner abstain from the consumption of non-prescribed drugs including Codeine based over the counter or prescribed drugs without the permission of the Board' by on 14 December 2005 providing a sample for urinalysis that tested positive to Methamphetamine and admitting to consuming Eldepryl which is a prescription drug. You are hereby invited to show cause by written submission given to the board within 21 days of receiving this notice, why the board should change its decision." [15] On 30 March 2006, Mr Swan's solicitors wrote to the Board in the following terms. According to the Australian Standard the result of the urinalysis of 14 December 2005 must be taken as negative. Mr Swan believed he had complied with the conditions of his parole order when taking Eldepryl. This claim was supported by John Wilson's statutory declaration. Mr Swan had worked to establish a leadlighting business and a healthy, balanced life-style while on parole. They attached correspondence from Douglas Pharmaceuticals dated 28 March 2006 which confirmed that Eldepryl, a drug used for treating Parkinson's disease, did not contain

7 7 amphetamine except for a minimal trace amount but it may be rapidly metabolised in the liver into substances including methamphetamine and amphetamine and these metabolites could be excreted in urine. Mr Swan's solicitors submitted that his conduct did not warrant cancellation of his parole and urged the Board to revoke its order cancelling parole. [16] On 3 May 2006 the Board advised Mr Swan that after considering his submission it had decided not to vary its decision to cancel his parole order. Mr Swan applied on 15 May 2006 for judicial review of the Board's decisions of 3 January 2006 and 13 March 2006 contending the decisions breached the rules of natural justice, due process, were an improper exercise of power and were unreasonable. [17] The primary judge found the following. There had been no breach of the rules of natural justice in making the decision. Mr Swan was given the opportunity to show cause why the Board should change its decision. 1 There is nothing to indicate that the required procedures were not followed. Despite the low reading for amphetamine and methylamphetamine in the urinalysis of 14 December 2005 which was below the confirmatory test cut-off shown in the Australian Standard, the Board was nevertheless entitled to act on that evidence as indicating the presence of small amounts of amphetamine and methylamphetamine. At best for him, it may be that the evidence of the presence of those drugs could be attributed to a metabolic effect of Eldepryl. He also admitted consuming a prescription drug. The Board's decision turned on those two bases. It may be a strict exercise of the Board's powers, but nevertheless one open to it. The judge was not persuaded that the Board had failed to take a relevant consideration into account, that it exercised its power in bad faith, that it exercised its powers in accordance with a rule or policy without regard to the merits of Mr Swan's case, or that its exercise of powers was such that no reasonable person could so exercise them. 2 Had the Board's action rested solely on the urinalysis, Mr Swan's case would have been stronger on the last of these issues. 3 There was sufficient evidence or other material to justify the making of the Board's decision. 4 [18] In this appeal Mr Swan, through his counsel, Mr P E Smith, is concerned only with the Board's decision of 13 March His first contention, that it involved a breach of natural justice is as follows. The Board made its decision based on material referred to in the affidavit of the Secretary of the Board, Margaret Dorothy Cameron, and the large amount of material annexed to it. This included claims that he had not resided as required under his parole order at the address given to Corrective Services officers; that he should not have had methylamphetamine in his system unless he was prescribed ADHD medication; and that he had a previous urinalysis which revealed morphine and referred to his previous offending. This material was not provided to Mr Swan to give him an opportunity to answer the allegations against him so that there has been a lack of procedural fairness: McEncroe v Queensland Community Corrections Board Swan v Queensland Community Corrections Board [2006] SC No 4300 of 2006, 30 August 2006, [18]. Above, [19] Above, [20] Above, [22] (1998) 96 A Crim R 85

8 8 [19] Cases like Kioa v West, 6 McEncroe, Re Soloman 7 and York v General Medical Assessment Tribunal 8 establish the uncontroversial principle that the Board was required to bring to Mr Swan's attention the issues or factors critical to its determination. The difficulty in Mr Swan's contention is that there is no reason to conclude the broad ranging material to which he refers was critical to the Board's decision to cancel his parole on 13 March That material may have been considered by the Board in reviewing his history but the Board's reasons for its decision record that it turned on breach of condition (o) "by on 14 December 2005 providing a sample for urinalysis that tested positive to methylamphetamine and admitting to consuming Eldepryl, which is a prescription drug." Mr Swan has not shown any reason to gainsay the Board's stated position that its decision turned on those particularised facts. The judge was entitled to conclude that Mr Swan had an opportunity to respond to the matters which were critical to the Board's revocation of his parole, namely breach of condition (o) of the parole order and Mr Swan's urinalysis of 14 December This contention fails. [20] Mr Swan's second contention, that the Board's decision was based on an improper exercise of power, is as follows. Section 144(3) of the 2000 Act provided that a parole order may contain conditions that the Board considers reasonably necessary to ensure the prisoner's good conduct or to stop the prisoner committing an offence. It follows that there should be some co-relationship between the relevant condition and the necessity to be of good conduct and to not commit offences. A condition prohibiting the consumption of all drugs, as condition (o) of Mr Swan's parole release purported to do, cannot be reasonable. For example, if Mr Swan's health was such that he required immediate drugs such as antibiotics, it would be unreasonable to require that he not have these until he obtained the permission of the Board. The condition here alleged to have been breached was not reasonably necessary in terms of s 144(3). [21] There is some initial attraction in that argument, but in the circumstances of this case it does not in the end assist Mr Swan. Condition (o) of the parole order required him "abstain from the consumption of non-prescribed drugs including Codeine based over the counter or prescribed drugs without the permission of the Board". As Mr McLeod for the respondent conceded, if this Court gave the words of the first limb of condition (o) their ordinary meaning, Mr Swan was required to abstain from taking all non-prescribed drugs. This apparently required abstaining from common painkilling drugs like paracetamol, aspirin and ibuprofen, which are available at supermarkets and do not contain derivatives of methylamphetamine or morphine. Such non-prescription drugs play a legitimate role in managing mild to moderate aches and pains and have become an accepted and acceptable part of the comfort of modern life. It is clear however that the final limb of condition (o) required Mr Swan to "abstain from the consumption of prescribed drugs without the permission of the Board". It is common ground that Eldepryl was a prescribed drug. Mr Swan admitted taking Eldepryl, a drug prescribed not for him but for his friend, John Wilson, without the permission of the Board. It was not demonstrated or suggested that there was any urgent or pressing medical need for Mr Swan to take Eldepryl or that it was dangerous or unwise to wait for him to receive Board approval to do so. It is a drug to treat Parkinson's disease. Mr McLeod informed us (1985) 159 CLR 550, 582 [1994] 2 Qd R 97 [2003] 2 Qd R 104

9 9 that Board approval can be obtained quickly by telephoning a quorum of Board members. A condition of parole requiring Mr Swan to abstain from consuming prescribed drugs without the permission of the Board was one the Board could fairly consider reasonably necessary to ensure his good conduct or to stop him committing an offence in view of his most recent convictions for drug offences. It is therefore unnecessary here to determine whether the first limb of condition (o) amounts to an improper exercise of power. I note, however, its ordinary meaning as discussed above may not reflect the Board's real intention, and in any case the condition is not well drafted. If like clauses are in general use in parole orders, the Board may wish to revisit their drafting. But that is of no assistance to Mr Swan and this contention also fails. [22] Mr Swan's third contention, that the Board's decision was an improper exercise of power in that it was unreasonable in the sense discussed by Lord Greene MR in Association Provincial Picture Houses Limited v Wednesbury Corporation, 9 is as follows. In Re Minister for Immigration; ex parte Applicant S.20/ the correct approach was said to be to determine whether a decision-maker's decision was "irrational, illogical and not based upon findings or inferences of facts supported by logical grounds." It may be a legal error if the true and reasonable conclusion contradicts a determination. In circumstances where there was objectively no positive test result from the urinalysis of the sample taken on 13 December 2005 this was not a case where the cancellation of parole could have been a reasonable conclusion. [23] As the primary judge rightly conceded, this contention would be much stronger if the Board's decision turned only on the urinalysis results. But as the Board stated in its reasons, the urinalysis of 14 December did test positive for methylamphetamine. Before subsequent confirmatory tests required the sample to be treated as "no drugs detected", Mr Swan took up the Board's invitation of 3 January 2006 to submit why the Board should change its decision suspending his parole. In doing so he admitted breaching his parole by consuming the prescribed drug Eldepryl. The Board was entitled to take an uncompromising view of this admission. It was entitled to reject Mr Swan's unconvincing claim that he did not understand that consuming Eldepryl (prescribed not for him but another) would breach his parole. It was entitled to consider that his willingness to take drugs prescribed to others without his own personal prescription and Board permission in the face of parole condition (o) demonstrated an unacceptable attitude to drug consumption in view of his criminal history and accordingly to cancel his parole: cf Buck v Bavone 11 and Minister for Immigration and Multicultural Affairs v Eshetsu. 12 Mr Swan's final contention also fails. [24] It follows that the appeal should be dismissed with costs to be assessed. [25] JERRARD JA: In this appeal I have read the reasons for judgment of the President and respectfully agree with those, and with the order proposed. I adopt Her Honour s description of the relevant facts, and add the following comments [1948] 1 KB 223, 230 (2003) 198 ALR 59; (2003) 77 ALJR 1165, [5], [34] (1976) 135 CLR 110, Gibbs J (1999) 197 CLR 611, Gummow J 654, [137].

10 10 [26] Condition (o) of the parole order is worded in very a confusing way. It reads, adding the introductory phrase: The prisoner s release is subject to the following conditions: (o) that the prisoner abstain from the consumption of non prescribed drugs including Codeine based over the counter or prescribed drugs without the permission of the board. Counsel for the respondent Board submitted that the condition meant that Mr Swan could not consume either drugs prescribed for him, or any drugs for which a prescription was unnecessary, without the permission of the board. Other meanings are obviously open. As translated by counsel for the Board, the condition is too wide. [27] However, whatever constructions of it are possible, it certainly prohibits Mr Swan consuming drugs for which a prescription is needed, and which were not prescribed for him. He admitted consuming the drug sold as Eldepryl, which contains selegiline hydrochloride. His own material acknowledged that was an S4 drug, meaning in turn that it is a restricted drug within meaning of the Health (Drugs and Poisons) Regulation 1996 (Qld). It is an S4 drug because it appears in the fourth schedule of the Standard for the Uniform Scheduling of Drugs and Poisons published by the Commonwealth. 13 The Health (Drugs and Poisons) Regulation 1996 (Qld) imposes controls and conditions on the prescribing of restricted drugs, in s 190, and in s 204 provides that a person must not possess a restricted drug that the person did not lawfully obtain. Mr Swan s admission of having been given that drug by a friend, for whom it was apparently prescribed, was a description of having obtained possession of it unlawfully. He therefore admitted a breach of condition (o) of his parole terms, on any reading of it. [28] Mr Swan completes his sentence on 5 April 2007, and his appeal is academic. [29] MACKENZIE J: I agree that the appeal should be dismissed for the reasons given by the President. I agree with the orders proposed by her. 13 See appendix 9 of the Health (Drugs and Poisons) Regulation 1996.