Brazel v Acting Commissioner of Prisons [2002] VSC 213

Supreme Court of Victoria|2002-06-12|Before: BEACH J

In September 1990 the plaintiff Gregory John Brazel was convicted of a number of serious offences and sentenced to 34 years' imprisonment with a non-parole period of 29 years.

On 29 September 1990 the plaintiff was received into custody at Her Majesty's Prison Barwon (Barwon) and has remained at Barwon since that date.

The affidavit of the Acting Director of Prisons Brendan Francis Money sworn 20 May 2002 contains the following reference to the plaintiff's history in the Victorian Prison system:

"The plaintiff at all times material has a history in the Victorian Prison system of extreme violence, including assaults on staff and others, the taking of hostages, extreme episodes of self mutilation including intentionally bleeding himself and generally uncooperative behaviour. The offences of which he was convicted in Victoria include Armed Robbery, Bribery, Arson, Criminal Damage, Assault, False Imprisonment, Threat to Kill, Murder, Theft, Deception, Wilful Damage, Trespass, Possess Firearm in Public, Possess Pistol, Possess House Breaking Implements, Theft, Burglary, Deception and Breach of Parole."

As a result of information recently received by the Acting Director concerning the plaintiff's actions, information to the effect that the plaintiff had caused large sums of money to be transferred by a former female prison visitor named Mrs Bailey into a TAB betting account in the name of an associate of the plaintiff, the Acting Director requested the Acting Superintendent of the Armed Offenders Squad of the Victoria Police to investigate the matter.

On 23 April 2002 Money spoke to the Acting Director of Sentence Management and Strategic Operations Shane Francis Kelly, and told him that he considered that the plaintiff should be placed in another cell within the Acacia High Security Unit at Barwon until such time as the police had completed their investigation into the plaintiff's behaviour after which time he would be transferred back to his cell.

Money's account of that conversation is set out in his affidavit sworn 20 May 2002 the relevant paragraph of which reads:

"On 23 April 2002 I spoke to the said Shane Kelly. I informed him that I considered for the reasons set out herein that the plaintiff should be placed in another cell within the Acacia High Security Unit until such time as Victoria Police had completed their investigation into the plaintiff's behaviour after which time he would be transferred back to his cell. I said in substance that I expected that in the event that he became aware that he was being investigated by Victoria Police as set out herein that he would probably react by becoming violent towards staff and other prisoners with or without weapons and engaging in self harming activities or any combination of these. I also explained that I considered he could secrete weapons in the cell where he was initially located and it was necessary to exclude that risk. I also considered that the regime imposed upon him should limit his telephone calls to legal calls only. I explained to Mr. Kelly in substance that I considered that it was necessary to limit the telephone calls to legal calls only because it may have been communicated to the plaintiff by telephone that he was under investigation by Victoria Police and/or that he may attempt to hinder the Victoria Police investigation using a telephone. I also explained that I considered that the risk of harm to visitors and staff managing those visits during the regime imposed was escalated and that as Mrs. Bailey had been a visitor of the plaintiff in the past, the plaintiff should be restricted to his right to a box visit under the Corrections Act 1986 as approved by me. I also explained in substance that I considered that during the transfer between cells the plaintiff should be placed in handcuffs for the reasons set out herein and otherwise he be closely monitored. Mr. Shane Kelly informed me that he would sign a formal order separation order which he did."

The power of a prison officer to use restraint during the transfer of a prisoner from one place to another is given to him by Reg.14 of the Corrections Regulations 1998 which reads:

"14. Use of restraint during transport (1) A prison officer may apply an instrument of restraint to a prisoner for the duration of a transfer of the prisoner under escort from one place to another if the Governor believes on reasonable grounds that the application of the instrument of restraint is necessary to prevent the escape of the prisoner or the assault of, or injury to, any person. (2) A prison officer may apply an instrument of restraint to a prisoner during a transfer of the prisoner under escort from one place to another if the prisoner's conduct during transfer has been such that it is reasonable to believe that the application of the instrument of restraint is necessary to prevent the escape of the prisoner or the assault of, or injury to, any person."

Kelly, who is the delegate of the Secretary to the Department of Justice for the purposes of s.56(2) of the Corrections Act 1986 (the Act) agreed with the course proposed by Money and on 24 April 2002 made a formal separation order. Section 56(2) reads:

"(a) the Secretary may by instrument authorise the transfer of a prisoner or class of prisoners from one institution to another or from place to place within an institution."

Regulation 22 of the Regulations also provides:

"22(1) The Secretary may in writing order the separation of a prisoner from other prisoners for a specified term if: (a) the separation is necessary or desirable for the safety of the prisoner or other persons, or the security, good order or management of the prison: and (b) the prisoner is only separated from other prisoners while the safety of the prisoner or other persons, or the security, good order or management of the prison is at risk."

The affidavit of Money is to the effect that the handcuff regime was imposed on the plaintiff only whilst he was being moved from his cell.

On 9 May 2002 the plaintiff filed an originating motion in the Court naming as defendants Money in his capacity as Acting Commissioner of Prisons, Bernard Charles Clements who is the Operations Manager employed by CORE The Public Correctional Enterprise at Barwon and Paul Spadano who is said to be the General Manager at Barwon.

By his originating motion the plaintiff seeks the following relief:

"1. The plaintiff seeks from the Court an order, mandatory injunction, against the defendants, ordering them not to monitor legal phone calls with his legal representatives. 2. The plaintiff seeks from the Court an order, mandatory injunction, against the defendants, ordering them to return legal documents confiscated from the plaintiff by the defendants between Wednesday 24th April and Wednesday 1st May 2002. 3. The plaintiff seeks from the Court an order, mandatory injunction, against the defendants, ordering them not to assault or cause the plaintiff to be assault[ed] by agents working on their behalf. 4. The plaintiff seeks from the Court an order, mandatory injunction, against the defendants, ordering them not to illegally use restraints upon the plaintiff. 5. The plaintiff seeks from the Court a declaration that prisoner(s) have, at common law, and pursuant to section 47(2) of the Corrections Act 1986 (Vic.), the right of access to the courts, the right to legal advice and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. 6. The plaintiff seeks from the Court a declaration that prisoner(s) have the right to expect protection under sections 20-21 of the Corrections Act 1986 (Vic.), and for the General Manager to insure that the prisoner is not assaulted by any member of staff. 7. The plaintiff seeks from the Court a declaration that prisoner(s) are entitled to be released from their cells daily under section 47(1)A of the Corrections Act (Vic.) and that the General Manager is acting illegally by not insuring said right is fulfilled and seeks a prohibitory injunction against denial of a prisoner's right under section 47(1)A of the Corrections Act 1986 (Vic.)"

The affidavit sworn by the plaintiff in support of his originating motion contains many allegations including allegations that while he was absent from his cell some legal papers were removed and that he has not been able to find them, and that he has been informed that his legal calls are being monitored and recorded by order of the General Manager of the prison and Money.

I do not consider any useful purpose will be served by setting out the details of those complaints in my reasons for judgment.

However, I do record the fact that the plaintiff was not returned to his cell until 2 May because of his threats to bleed himself and be taken to hospital, and believed he refused to give a guarantee that if returned he would not do so. According to Clements the plaintiff has never complained that any legal papers were missing.

Finally Clements has sworn that the plaintiff's legal phone calls were not monitored nor did he give any order that they be monitored.

On 20 May 2002 the defendants filed a summons in the Court whereby they seek judgment in their favour pursuant to Order 23.01 on the grounds that:

(a) the proceeding does not disclose a cause of action; alternatively

(b) the proceeding is frivolous or vexatious; alternatively

(c) the proceeding is an abuse of the process of the Court.

I turn then to the relief sought by the plaintiff in his originating motion.

Upon the material before this Court I am not satisfied that the plaintiff's legal telephone calls are being monitored. The only evidence to that effect is the hearsay evidence of the plaintiff contained in paragraph 21 of his affidavit sworn 2 May 2002. As against that is the sworn testimony of Money that they are not. The order sought in paragraph 1 of the plaintiff's originating motion therefore is unnecessary.

The defendants have sworn through Money that they have not taken any legal documents of the plaintiff. In my opinion there is no basis for making the order sought in paragraph 2 of the originating motion.

In my opinion this Court should not make orders sought in paragraphs 3 and 4 of the originating motion. Such orders would be totally unworkable and impossible for the Court to supervise. If the plaintiff were to suffer injury by the unlawful act of the prison authorities he has his common law rights to sue for damages.

In any event it is to be borne in mind that the Corrections Act itself authorises acts to be committed by the prison authorities that would otherwise constitute an assault.

In my opinion the declarations sought in paragraphs 5, 6 and 7 of the originating motion are totally unnecessary.

As Gillard J said in Rich v Groningen and Others[1]:

"Finally, the exercise of powers and duties by prison authorities depends on factual situations which arise at a particular point in time and which are the subject of decisions made by officers in the day-to-day management and operation of a prison. The facts will change. The weight attached to factors such as security, fire risk and good administration and management of the prisons will vary considerably depending on the circumstances. Mr. Shepherd submitted that in those circumstances a court should not make a declaration in relation to the exercise of discretion made in the course of making decisions except in circumstances where there is a dispute, the facts are established and a finding is made. I agree."

In my opinion that is a correct view of the matter.

I also agree with the observation of Curtin J in Fyfe v State of South Australia[2]. That was a case in which his Honour was dealing with a prisoner in a somewhat similar situation to that in which the present plaintiff found himself between 12 September and 2 October. At paragraph 18 of his judgment his Honour said:

"There can be no question that it is the duty of this court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the court's jurisdiction must be carefully observed and the court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of the court surroundings."

In my opinion the plaintiff's action is vexatious and should be dismissed.

It must be remembered that under the provisions of s.47(1)(j) of the Corrections Act the plaintiff has the right to make complaints concerning prison management to the Minister, the Secretary to the Department of Justice, the Commissioner appointed pursuant to s.8A of the Act, the Governor of the prison, an official visitor, the Ombudsman, the Health Services Commissioner and the Human Rights Commission.

In that situation this Court should be slow to interfere in matters of prison procedure and prison security and should only do so in an exceptional case where such interference may be warranted. I do not consider this to be such a case.

The order of the Court is that the proceeding be dismissed. I order that the plaintiff pay the defendants' costs of the proceeding including reserved costs.

At a glance

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Before

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Judgment (41 paragraphs)

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