Bulger v Queensland Community Corrections Board [1993] QCA 493

"...it would have concluded that special circumstances existed such as to cause it to order [the respondent] to be released on parole earlier than was recommended by the sentencing court".

The judge decided that the appellant's decision was an improper exercise of the power conferred by s. 166(4) of the Act, because an unreasonable exercise of that power.

It is necessary to refer to the facts in some detail, but it may be useful to begin with a summary of the main points which emerge. The respondent was convicted in the District Court of 12 counts of official corruption and one of perjury and was sentenced by his Honour Judge Healy QC to 12 years imprisonment in respect of the former and 3 years in respect of the latter; and his Honour recommended that he be eligible for parole after serving five years. His appeal against the severity of the sentences failed. Thereafter the respondent co-operated with the Special Prosecutor's Office, set up to investigate the bringing of charges arising out of evidence given to the Commission of Inquiry into Police Corruption. He gave considerable assistance in that connection. At the conclusion of his evidence in one of the relevant trials, which happened to be heard by the same judge as had sentenced the respondent (Judge Healy QC), his Honour remarked that he was then in a better position to assess the respondent's part and the extent of the respondent's culpability, in comparison with the involvement of other Licensing Branch officers who had admitted corruption. His Honour expressed the view that the respondent should be considered for parole after he had served 2 years of his sentence. It was that view, and the information from the Special Prosecutor as to the extent of the assistance given by the respondent, which was the foundation of the respondent's case.

The respondent has made a number of unsuccessful applications for parole, which were refused on 18 January 1991, 9 August 1991, April 1992 and 17 December 1992, the last being the refusal currently in question. All of these applications had the support of the Special Prosecutor. As to the bases of that support, we refer to two letters, the first from Mr D P Drummond QC (as his Honour then was) dated 30 July 1990, and the second from Mr F J Clair, who replaced Mr Drummond as Special Prosecutor, dated 28 February 1992.

In the first letter, from Mr Drummond, one finds the following passages :

"However, Bulger has, since the dismissal of his appeal, co-operated with this Office and rendered great assistance by that co-operation. He has supplied a large amount of information and, as a result, has made possible the prosecution of a number of middle ranking police who would not otherwise have been charged. He is prepared to give evidence against these persons...

A series of extensive interviews were then carried out with him in the period 16th May, 1990 to 12th July, 1990. He co-operated to such an extent that what has been obtained from him is, in my view, a very full account of that part of the system of corruption organised by Jack Reginald Herbert that operated within the Licensing Branch...

It is my view that the account given by Bulger has a high degree of credibility. He has not attempted to falsely implicate any person. He has not attempted to minimise his own role in the corrupt system nor has he attempted to minimise the role of any other person. He has not given any indication of malice toward any individual.

He has, however, in the course of his discussions with this Office, refused to discuss two persons, both associated with S.P. bookmaking. He refused to discuss the involvement of these people on the basis of friendship or blood tie. I am also in doubt as to whether he has played down to some extent the total amount of the graft moneys he actually received. These are matters which leave his credibility open to some attack but they do not cause me to doubt his veracity on other matters; they do not, in my view, detract to any great degree, from the value of his information or his usefulness as a witness.

The upshot is that Bulger is, in my assessment and notwithstanding his conviction for both perjury and corruption, a very valuable informant and witness for the prosecution in a number of cases relating to the corrupt system which operated within the Queensland Police Force in the period 1978 to 1987...

In this case, Bulger has provided valuable information in relation to a highly organised corrupt network...

It must also be said that Bulger, by giving this information and giving evidence, takes upon himself an increased risk of danger during his imprisonment. He is already in prison and known to be an ex-policeman. He now takes upon himself the further danger of being labelled an informer. This must put his personal safety at a great deal of risk."

"I understand he has now again applied for early release on parole or, alternatively, he has applied for a transfer under s. 69 of the Corrective Services Act 1988 to a hostel...

Bulger has now given evidence in eleven cases involving twelve accused and, further, four persons have pleaded guilty in cases where he was to give evidence. He has attended when necessary for interview for the purpose of giving such evidence. He has co-operated fully in both respects. The value of his testimony has been made manifest time and again, both on trial and during argument on appeal following convictions.

His evidence has been at the centre of the Crown case in a number of cases and close to the centre in others.

He is yet to give evidence in respect of eight accused. Again, his evidence will play an important role in the Crown case in those matters."

It is, of course, possible to conceive of cases in which co-operation has been given by convicted persons of a kind which is more valuable than that which the respondent gave. Further, as Mr Douglas QC who led for the appellant pointed out, the respondent's merit would have been more evident had he not been open to the criticisms made in Mr Drummond's letter and if he had co-operated earlier. But as to the latter point - that the respondent did not help until the court proceedings were over - it has to be kept in mind that it is that circumstance which gives rise to the present problem; had he co-operated before sentence, that would undoubtedly have been taken into account by the sentencing judge. The likely impact of the co-operation on the sentence is indicated by Judge Healy's subsequent recommendation that the non-parole period be reduced to two years.

The reasons given by the appellant for its decision require to be scrutinised carefully and read as a whole. It is not, however, necessary to set them out at length here, and in these reasons attention is focused on the points which appear to have most significance, in the light of the arguments advanced before us.

The appellant's reasons said that it gave full weight to the submissions repeatedly made by the Special Prosecutor, to the assistance the respondent had given to the Special Prosecutor, and to the remarks of his Honour Judge Healy. The reasons took into account that the respondent first denied his complicity in official corruption to the Commission of Inquiry and later acknowledged his guilt. The last four paragraphs of the reasons read as follows :

"The case of the applicant does not stand alone. The Board has on other occasions had to consider similar applications, not infrequently supported by police officers, based on the notion that the applicant had whilst in prison, assisted police officers and the prosecution of others by the provision of confessional or other evidence. The Board does not perceive its statutory duty to either encourage or discourage that process. In such cases the concern is often for the security of the person providing the evidentiary material. At the same time the Board recognises the capacity of the corrections system to ensure the protection of such persons.

In this case fear for the safety of the applicant is not urged as a relevant consideration. That is not to say that if it was it would be a decisive consideration. It is merely another relevant consideration. The core of this application is that the applicant, after being sentenced, has assisted the Special Prosecutor in the prosecution of others and that others should be encouraged to act likewise. The Board has carefully considered this question.

Whilst these matters have to be given due consideration in an application of this kind so too must due weight be given to the statutory scheme relating to the release of prisoners on parole.

After a consideration of all of the circumstances relating to this applicant the Board considered that the circumstances were not "special" and therefore refused to exercise its discretion in favour of the applicant."

It is convenient to add that, during argument before us, there was some consideration given to the meaning of the expression "similar applications" in the second sentence quoted above. It was suggested that the appellant may not have had many applications having some of the characteristics the respondent's application possessed: assistance in uncovering long standing and high level official corruption, and a clear indication as to what sentence would have been imposed if the sentencing judge had been able to anticipate subsequent events. Reference was also made to the appellant's perception with respect to the encouragement or discouragement of the sort of co-operation which the respondent gave, a subject further discussed below.

Before the primary judge, a number of submissions made on behalf of the respondent (then applicant) were considered and rejected. Her Honour declined to treat Judge Healy's remarks about the 2 year probation period as a sentencing recommendation under s. 166(3) of the Act, and that point was not pursued before us. Then her Honour rejected the contention that the appellant had made an error as to the considerations to be taken into account when it said that it did not "perceive its statutory duty to either encourage or discourage that process..."; Mr Rangiah, who appeared for the respondent before us, made submissions on that subject, dealt with below. Next, her Honour rejected the submission that the appellant should have engaged in a two-stage process, deciding on the existence or otherwise of "special circumstances" as a threshold question and then exercising the discretion implied by the use of the word "may"; this point was discussed before us, but we find it unnecessary to say anything about it. The judge also rejected a contention that the appellant wrongly failed to take into account the respondent's safety in prison, and that was not pursued here.

The last, and successful, submission considered by her Honour was, to put it simply, that the result was unreasonable in the Wednesbury sense. In accepting that contention, the judge relied on the facts that (as her Honour saw it) the appellant had failed to give -

"...proper weight to the extent and value of Bulger's co-operation with the Special Prosecutor's Office, bearing in mind the public interest in encouraging such co-operation with the authorities, particularly in the area of official corruption...".

Mr Rangiah contended that if the respondent's co-operation is not recognised by the appellant, by releasing him on parole early, it will have gone unrewarded. He also submitted that the law required the appellant to consider and give weight to the public interest in exposing and punishing high level corruption, of the kind in issue here. That argument is relevant to the appellant's expressed view that it had no statutory duty to encourage prisoners to provide evidence to assist in the prosecution of others. It appears that her Honour's view was that the public interest in this respect is relevant to the exercise of the appellant's functions, as can be discerned from remarks quoted above.

There are two points involved in this: the first is whether considerations of public interest were relevant to the appellant's deliberations, and the second whether the encouragement of such co-operation as the respondent gave is in the public interest.

As to the first point, it was not contended on behalf of the appellant that the public interest has no present relevance and the point needs no extensive discussion. Although s. 166 of the Act does not say what criteria are to be looked at when the respondent is exercising its function to order release on parole it is obvious that the benefit or detriment to the public from adopting one course or the other needs to be thought about; plainly, it is not only the applicant prisoner's interests which must be considered. The general relevance of the public interest is illustrated by a number of English decisions concerning the activities of local authorities, e.g. re Hurle-Hobbs [1944] 2 All E.R. 261 at 264 (top), Prescott v. Birmingham Corporation [1955] Ch. 210, and Bromley London Borough Council v. Greater London Council [1983] 1 A.C. 768, in which emphasis was placed on a duty to the ratepayers, which brings in the public interest. But there is direct authority in the United Kingdom for the proposition that the exercise of a power to adopt a policy with respect to release on parole involves consideration of the public interest. In the reasons of Lord Scarman, with whom the other judges agreed, one finds :

"The statute gives little, and at best only indirect, guidance as to the factors which the Secretary of State has to consider in the exercise of his power to grant parole and as to the weight to be given them. But they are many, and they are by no means confined to the particular circumstances or record of the prisoner. If the public interest is to be served, they must include some matters of policy.": In re Findlay [1985] A.C. 318 at 335.

See also Kevin R Whelpton & Assoc. (Aust) Pty Ltd v. Attorney General (Commonwealth) (1987) 72 A.L.R. 679 at 688.

In the present case, the appellant did not say that it would decline to consider the public interest in the issue whether or not the respondent should be released on parole; nor did it explicitly deal with the question whether the considerations which are relevant to release on parole necessarily include, in the instant case, the encouragement of such conduct as that on which the respondent relied. But its statement that it did not "perceive its statutory duty to either encourage or discourage that process", referring to co-operation by prisoners in the prosecution of others, appears to us to import that it did not accept that such encouragement in appropriate cases, was a proper part of its function.

We were referred to strong authority in favour of the view that there is a public interest in encouragement of behaviour of this general kind: McGookin and Robinson (1986) 20 A. Crim. R. 438 at 449 (Victorian Court of Criminal Appeal), Cartwright (1989) 17 N.S.W.L.R. 243 at 252E (Court of Criminal Appeal) and Malvaso [1989] HCA 58; (1989) 168 C.L.R. 227 at 239 per Deane and McHugh JJ. In the last mentioned case the judges' remarks read in part :

"It would be to close one's eyes to reality to fail to recognise that in areas of organised crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organisers and financiers by the provision of significant and reliable evidence".

Here, the sentencing Court would have extended leniency, by reducing the non-parole period by three-fifths for the circumstance that the facts entitling the respondent to leniency arose too late. It then fell to the relevant administrators to extend the leniency which the Court could no longer proffer. The learned primary judge took the view that the respondent had not given enough weight to the public interest in this connection; we would go further and hold that on the face of the appellant's reasons it did not approach the matter on the basis that it had an obligation to consider whether, in the public interest, the respondent should be released on parole to encourage others who might be minded to give similar co-operation.

The notion that the appellant should have approached the matter as we have indicated received some support from one of the ministerial guidelines for the operation of Community Corrections Boards which is in the papers. This document has no date but its relevance was not disputed; it was, we infer, issued under s. 139(1) of the Act which reads as follows:

"The Minister may, subject to this Act, from time to time issue guidelines to the Queensland Community Corrections Board with respect to the policy to be adhered to by the board in exercising its powers and discharging its functions under this Act".

"Only in exceptional circumstances should Community Corrections Boards fail to comply with the recommended release date stipulated by a Judge or Magistrate".

In our view the guideline did not, strictly speaking, apply in its terms to the respondent's situation, because the recommendation by Judge Healy QC did not result in there being a recommended release date "stipulated" by his Honour. Nevertheless, the step his Honour took and the expressed basis for it should, in our view, have been treated by the respondent as providing a sound prima facie basis for a recommendation in favour of the appellant. That the judge's recommendation was, technically speaking, too late to create a "stipulated" release date within the meaning of the guideline did not make the guideline irrelevant to a proper consideration of the matter; the respondent should, observing the spirit as well as the letter of the guidelines, have treated the recommendation of Healy J. as taking the respondent's application entirely out of the general run of such applications.

We agree with the learned primary judge that the result arrived at was one involving an exercise of power which was unreasonable in the relevant sense.

A question remains as to the order which should ensue. It was argued on behalf of the appellant that the Court should not grant relief on the basis of the obligation to encourage prisoners to assist in the way the respondent did, unless convinced that the relevant failure "would have resulted in the decision going the other way". In our opinion that is incorrect. The true position is that failure to take a relevant factor into account may not be vitiating where that factor is "...so insignificant that the failure to take it into account could not have materially affected the decision...": The Minister for Aboriginal Affairs v. Peko Wallsend Limited [1986] HCA 40; (1986) 162 C.L.R. 24 at 40. Here the judge held that if the respondent had given proper weight to the matters discussed above "it would have concluded that special circumstances existed such as to cause it to order Bulger to be released on parole earlier than was recommended by the sentencing court" (emphasis added). That is, the judge thought not merely that the appellant fell into error, but that a result favourable to the respondent would have ensued in the absence of such error. But her Honour did not remit the matter to the appellant with a direction to allow the application (see s.30(1)(d) of the Judicial Review Act), but merely referred it back "for further consideration in the light of [her Honour's] reasons". There may be little or no difference in a practical sense between the order made and an order to grant parole. We were not asked by counsel for the respondent to make an order requiring the appellant to grant parole and, in the circumstances, we do not propose to take that step. It will be necessary, however, to vary Order 1 made below by replacing the expression "in the light of these reasons" by "in the light of the reasons of the primary judge and those of the Court of Appeal". Otherwise the appeal will be dismissed with costs.