Supreme Court of SA|1998-10-15|Before: Olsson J

The applicant has initiated and prosecuted the proceedings in person and, very articulately, conducted his own case at the hearing. Because he has no legal training, the pleading of the relief claimed and of the precise basis of the applicant's case is by no means a model of drafting. However, I have taken a broad, non technical, view of what has been placed before me. At the end of the day the transcript clearly reveals the essential points relied on and the defendants have not been prejudiced by some lack of formality in their presentation.

Additionally, the applicant is, understandably, not fully conversant with the rules of evidence. I have before me a mass of affidavit and documentary material. Some of the latter was informally put in at the hearing. Other information was proffered from the bar table and during the inspection to which I will shortly refer, as appears from the transcript. To facilitate the proper consideration of the real issues in this matter I have taken all of this material into account, subject only to considerations of relevance. Dr Manetta, of counsel for the defendants, has been given adequate opportunity to consider and react to it and I did not take him to object to my approach, save as to certain features specifically identified by him. He is to be commended for his practical attitude in the circumstances.

I also had the benefit of visiting Yatala Labour Prison and viewing both G and B Divisions, by way of contrast with one another, so as to place the evidence in a practical, physical, perspective.

Before coming to the core issues to be decided I first turn to the relevant factual history.

The applicant has now been in a custodial environment for a long period of time. By way of background in this regard, I draw on my sentencing remarks when, on 24 November 1994, I sentenced the applicant for attempted murder.

The applicant was, relevantly for present purposes, a prisoner in the Port Lincoln gaol when, on 16 September 1992, he committed the offence of causing grievous bodily harm to a fellow prisoner by beating him about the head and body with a cricket bat.

At the time he was serving an aggregate head sentence of 9 1/2 years with a non parole period of 8 years in respect of offences of attempted murder, escaping from custody, assaulting police and causing death by dangerous driving.

A District Court Judge imposed an additional head sentence of five years in respect of the Port Lincoln offence, to run from 14 May 1993. He fixed a non parole period of 45 calendar months, to run from the same date.

The offence with which I dealt was committed at the Yatala Labour Prison on 25 May 1994. The applicant burst into a mess hut where another prisoner (who was under protection) was having lunch. He struck the latter in the left shoulder with a pick. There was no evidence as to why the prisoner was so assaulted and the applicant proffered none. It simply appeared that the applicant had an aggressive personality, said to have stemmed from childhood experiences of violence and sexual abuse at the hands of his parents, coupled with poor impulse control and difficulty in anger management.

In the circumstances I was constrained to impose an additional, cumulative sentence of ten years and eleven months. The non parole period was extended for nine years from the expiry of the then current non parole period.

On 16 January 1995 the applicant murdered a fellow prisoner, who was, as Matheson J put it, working in the kitchen and minding his own business. The applicant came up behind him, stabbed him in the back with a large knife and twisted it before pulling it out.

Once again there was no real, apparent explanation for what, plainly, was a premeditated act.

In sentencing the applicant Matheson J had this to say:-

"I have read the report of the psychiatrist Dr Craig Raeside who saw you on 16 May 1996. He said that you are not suffering from any formal psychiatric illness, but that there was clear evidence to suggest an anti-social personality disorder. He said that he believed you were at considerable risk of further offending, particularly in a violent manner, especially if you become frustrated and angry. You have put to me strongly that the Department of Correctional Services is responsible in some degree for the death of your victim by placing you in circumstances that you had warned them about previously. It is not my responsibility to make any findings as to whether there was a breach of any duty of care on the part of the Correctional Services officers, but I will direct that the papers, including your submissions to me, be forwarded to the Director of the Department for investigation. Even if there were some breach of duty - and I express no opinion as to that - I am not persuaded it is relevant to my task."

He was constrained to extend the applicant's then current non parole period for 28 years.

At the time of the murder the applicant had been accommodated in B Division, one of the general divisions of the prison. He was immediately transferred to the high security G Division and, effectively, separated from all other prisoners. Except for a short period of removal into police custody, he has remained there ever since, although there have been changes, over time, in his detailed regime within that Division. He has thus now been in the G Division environment for a virtual continuous period of three years and eight months.

G Division houses prisoners in a special and restrictive regime. In essence it is a section of the prison in which specific prisoners are kept separately and apart from all other prisoners, including other inmates of G Division itself. The inmates of G Division are, generally speaking, housed there for one of four reasons, namely:-

(a) whilst alleged offences said to have been committed by an inmate are being investigated;

It is my understanding that, generally speaking, other (less restrictive) arrangements are now made within B Division for most prisoners in category (b) above.

The evidence and my visit to the prison indicate that the applicant is quite correct when he asserts that G Division is essentially intended to house prisoners on a relatively limited term basis.

This Division is a very high security area located outside the main area of the prison, as a virtual self contained unit. It houses a number of prisoners in a totally internalised environment. There is no external perspective. Individual cells are very small and extremely spartan, each having a concrete bed base, seat and "table" fixture. There are stainless steel hand basin and toilet fixtures. The building has no external windows and the only natural light in cells is by means of opaque glass bricks high up near the roof. Only one prisoner is permitted to move around a specific unit of the Division at any given time and then, usually, only under the escort of three correctional services officers. The Division includes several fully enclosed exercise yards with steel mesh roofs, open to the sky. The majority of these are of quite limited size.

Compared with other Divisions of the prison, G Division is very spartan and restrictive. It is an extremely claustrophobic, restricted and oppressive environment which one would expect, normally, to be employed, more often than not, for disciplinary reasons. This is the more so as B Division now has a unit which holds so called "protectee" prisoners. A prisoner in G Division has no real social intercourse with other prisoners. The only persons with whom he interacts in any meaningful fashion are prison staff. He can, at times, speak, from a distance, with a prisoner who may be exercising in an adjacent yard.

I shall return to the actual daily regime of G Division in due course.

Whilst it is true that s24 of the Correctional Services Act 1982 ("the Act") vests in the Chief Executive Officer ("CEO") of the Department for Correctional Services an absolute discretion both to place a prisoner in such part of a correctional institution and to establish such regime for work, recreation, contact with other prisoners, or any other aspect of the day to day life of prisoners as he deems expedient, I think that the applicant is undoubtedly correct when he argues that this general provision of the statute is to be read down in light of s36 of the Act.

The lastmentioned section establishes what, on the face of it, is a specific and discrete code related to the so-called "separation" of prisoners and, thus, their allocation to G Division. (See Page v State of South Australia (1997) 192 LSJS 375.) "Separation" comes very close to the old concept of solitary confinement.

If it is intended to place a prisoner in a separation situation then this may only lawfully be done in accordance with s36 and not otherwise.

The pre-requisites to resort to that section are quite specific. They may, relevantly, be summarised as under:-

(1) The CEO must bona fide and reasonably arrive at the opinion that the factual situation falls within one of the four categories above referred to;

(2) The placement and retention of a prisoner must be pursuant to a specific direction in writing given by the CEO;

(3) A copy of the written direction must be served personally on the prisoner within 24 hours of being given;

(4) If the direction is given pursuant to reason (a) above, it must be for a specific, stipulated period, which may not exceed 30 days;

(5) Any direction given must, as soon as is reasonably practicable, be furnished to the responsible Minister, with a report of the relevant circumstances; and

(6) Upon receiving such a report the Minister may review the matter and confirm or revoke the direction.

Section 36 must, of course, be read in light of s7(2) of the Act, which stipulates that the CEO may, with the approval of the Minister, delegate any of his or her powers to any employee of the Department.

On 12 July 1993 the then Minister approved the conferral by Mr Dawes, as the then CEO of the Department, of various delegations under the Act. The instrument of delegation appears to be undated, but, in absence of evidence to the contrary and applying the legal presumption of regularity (see Page v State of South Australia (supra) at 378.7), I am required to infer that it was intended to take effect on the same date as the Ministerial approval. Inter alia, powers under s36 were delegated to "General Manager", Yatala Labour Prison. At the time, the incumbent of that office was Mr Barry Willoughby.

Following the incident in the prison kitchen on 16 January 1995 the applicant was immediately relocated to G Division. I infer that this was done at the direction of the General Manager and that the basis of it was founded in s36(2)(a) of the Act.

However, the plain fact is that there is no evidence whatsoever of any attempt to comply with the provisions of the section. There does not even appear to have been a written direction given. The applicant's separation from that date up to at least 10 May 1996 appears to have been plainly unlawful and in breach of the statute. This is, to say the least, a matter of concern. It is stating the obvious to say that the formal requirements of s36 exist to prevent abuse of power and to protect prisoners against oppression. They are not mere formalities, but matters of substantial importance.

The material before me reveals, however, that, on 10 May 1996, Mr Willoughby, as the then General Manager of the prison, signed a formal order directing separation of the applicant pursuant to s36(2)(c) of the Act - in the interests of protecting other prisoners. I infer that this was duly served on the applicant. The evidence indicates that the requisite report was not duly transmitted to the Minister. This constituted a further, serious breach of the Act, because of the de facto avoidance of the review process inherent in any default. That breach, which now occurred a long time ago, does not invalidate the applicant's separation, but if it had occurred recently, might have been an important matter going to bona fides and abuse of power.

The evidence indicates that G Division is a high security facility, which may be used to house both s36 prisoners and also other prisoners who may not be on a separation regime, but are deemed high security risk.

The applicant asserts, and it is not denied, that there are three normal regimes operative in G Division, through which a prisoner can, successively, progress. His description of them, which is not refuted by the defendants, is as under:-

Regime 1 is in place for 2 weeks then reviewed pending behaviour

Regime 2 is in place for 4 weeks then reviewed pending behaviour

The applicant makes the point that few prisoners progress to Regime 3, because most of those who come to G Division do not stay there long enough to do so in accordance with the above rules.

He has, currently, been granted additional privileges over and above the normal Regime 3 because of his length of stay in G Division and his generally acceptable behaviour whilst there. Regime 3 is said, by management, to "provide a springboard to returning to mainstream" prison allocation - provided that the prisoner demonstrates active participation in and commitment to identified programmes and displays "consistent appropriate behaviour".

The general manager deposes that a typical daily routine for a Regime 3 prisoner is as under:-

. prisoners remain in their cell, hot water is provided for breakfast and they are issued with toast;

. unlocking of cells occurs at about 8.20 am. By this time prisoners are expected to have prepared their cell by folding blankets and sheets into a neat pile (bed pack), tidied and cleaned their cell and benchtop and stored all of their loose property in the tubs provided. They must ensure the stainless steel is free of any stains, floor clean and be fully dressed with appropriate footwear;

. they are then asked if they have any complaints or requests;

. they can then give any mail or written requests to staff and their cell is inpected;

. they then take it in turns to go to the exercise yard. One prisoner goes in to each yard. Yards one and two are next to each other and separated by woven steel mesh screens about 25 mm squares;

. not every prisoner wishes to go into the yard for exercise, but usually they are in an exercise area which adjoins another similar area in which there is a prisoner also exercising. The prisoners can, to some extent, see each other and there is no restriction on talking;

. yards 5, 6, 7, 8 are next to each other. Yards 3 and 4 are walled yards with a steel mesh front. A person in yard three can see who is in front of it and talk to those walking past. Yard 4 is similar to yard 3, except that it has no potted plants and trees;

. yards 1, 2, 3, 4 are the larger yards at about 30 metres average width and about 50 to 60 metres deep. Yards 5, 6, 7, 8 are about 20 metres square. Only yard 3 has plants;

. prisoners are rotated through the yards with the exception of yard 3, because that is where the laundry is hung out to dry.

. there is an area in one of the units set aside for the washing machine and drier. [This is in a unit in which the applicant has his cell. It is opposite his cell door, across a central passage.];

. each prisoner may be in one of the yards during the period from about 8.45 am until about 11.00 am, or in the afternoon during the period from about 1.15 pm until 4.00 pm. They are permitted one session or the other each day;

. while in the yard they may exercise. They may spend an hour at the weightlifting station, or doing aerobic exercises in a room set aside for that purpose. They read in the yard, smoke or talk to other prisoners in adjacent yards. They may receive support visits by the chaplain, Aboriginal liaison, psychologist or visits with any other support staff may occur there;

. if they are not in a yard they will be locked in their cell. They may be watching TV, reading or listening to the radio. They are largely left to determine for themselves what they do. [There is, however, no comfortable plastic or other chair on which to sit - only a concrete fixture.];

. lunch is at 11.00 am to 11.15 am. The prisoners are brought in from the yard for lunch and it is served in their cells;

. during the morning or afternoon yard sessions those prisoners who are not in the exercise yards remain in their cells except to have their showers. They are taken one at a time to the shower room and locked in for an average of about 15 minutes. When they are finished they call staff on the intercom to be returned to their cells;

. if they have nominated for a phone call they are taken one at a time to one of the two phone cubicles and locked in until they finish;

. through the course of the day they may have an interview with support staff or legal adviser. They may also be on a programme consistent with their individual management plan, ie anger management, drug and alcohol abuse. Usually a social worker from the institution's programme unit will meet with them in the education room;

. on occasions during the week there may be a special visit with their family. That occurs on Tuesdays and Thursdays, if appropriate;

. all prisoners are who are in the yards are returned to their cells at 4 pm. They are served their meals at about 4.15 to 4.30 pm;

. from 4.30 pm until the next morning they remain in their cells and are largely left to determine what they do;

. there are medical parades at about 8.00 am and 6.30 pm when prescribed medication is issued, or they may be seen by the registered nurse. The nurse is escorted around and sees the prisoners in their cells and may refer them on to a Doctor.

It is further deposed that the applicant is currently on Regime 3, but, because of his long term allocation to G Division, also enjoys certain unique privileges, namely:-

. he has a 7 day per week job doing the unit laundry. This means that, even when his wing does not have exercise in the morning, he may be unlocked at about 8.45 to 9.30, (depending on the amount of prisoner management taking place) to put a load of washing in the machine which is in an area set aside for it adjacent to yard 3 where the washing may be hung out to dry. He may be out of his cell for ten or fifteen minutes, or out in the yard for twenty minutes to half an hour;

. after all of the prisoners are showered he is then permitted to walk around the wing under guard and out of his cell, to do what ever he needs to do such as collecting laundry from the other unit or doing a pile of laundry. He is permitted to walk under escort to the other units to collect soiled linen and other items for the laundry;

. he nominates to the staff when he wishes to go out to the yard to put up or take in the drying laundry items. For much of the time when he is doing the laundry he is not overtly supervised and he is left to motivate himself;

. he is given access to the day space, a large multi-purpose room in unit 2. He then folds and stores a lot of the clothing and bedding that has been washed. That is also where the type-writer is placed and he has open access to that;

. usually, the only time during the day when he is secured in his cell is while other prisoners are showering, meal times and night times between about 4.30 pm and about 8.20 am;

. on occasions when there are no other prisoners in his wing, and staff numbers permit it, he is not secured in his cell during lunch time;

. he also normally has his personal quilt. He is usually specially exempt from making a bed pack, although this was not the situation when I visited the prison. I am not clear whether this was for some disciplinary reason, or because he desired to illustrate to me what was a "normal" requirement;

. he is usually permitted a poster on the wall at all times, other prisoners must put their photos away in the tubs when they leave their cells;

. he usually has a mat on the floor, which no other prisoner has;

. by virtue of his job he is paid over 7 days at the top bonus rate and receives $36.69 per week, which, in prison terms, is the highest obtainable (apart from overtime rates) and a considerable advantage to him.

I do not take the applicant to challenge the accuracy of that information.

Since July 1993 relevant changes of personnel have taken place.

At some stage between that time and November 1997 there have been at least two changes in the incumbency of the position of CEO. Mr Dawes was succeeded by Ms Vardon at some date which does not readily appear. She, in turn, was succeeded by Mr J R Paget, who had been appointed by mid November 1997.

Mr Willoughby relinquished his post as General Manager of Yatala Labour Prison at about September 1996 and Ms Bordoni, the present General Manager, was appointed in his stead.

Moreover, by instrument dated 13 November 1997, the then Minister revoked all previous approvals of delegations under s7(2) of the Act and gave approval to the CEO to make new delegations in accordance with an annexed schedule. That schedule envisaged a delegation of s36 powers to General Managers of prisons. However, Mr Paget did not actually sign a delegation, in accordance with the Ministerial approval, until 19 November 1997.

The applicant has made a series of submissions concerning those events.

The first is that, on Mr Dawes relinquishing office, any delegations given by him with Ministerial approval lapsed, with the result that only the CEO could then give a lawful direction to continue the separation of the applicant pursuant to s36 of the Act.

I do not think that this is correct. As was pointed out in Bunwell v Gatterwald [1978] VicRp 26; [1978] VR 253 at 255 a delegation of the nature of that now under consideration does not constitute the delegatee the mere agent of the delegator. The effect of the delegation is to confer direct power on the delegatee to exercise primary power in the stead of the delegator. (See Reference under s11 of Ombudsman Act 1976 for an Advisory Opinion; ex parte Director-General of Social Services (1979) 2 ALD 86 at 94.) It is a delegation of the power attaching to the office held by the delegator and continues in force, whilst the power remains vested in the office held by the delegator, until the delegation is lawfully revoked. Any delegation given does not lapse with a change in incumbency of the delegating office.

This reasoning accords with that of Bray CJ in G H Michell & Sons (Australia) Pty Ltd v Minister of Works (1974) 8 SASR 7 at 14 and Sangster J in Evans v Sparrow (1973) 6 SASR 519 at 525.

On the other hand I consider that the applicant was quite correct when he contended that the effect of the revocation, by the Minister, on 13 November 1997, of all delegation approvals previously given necessarily brought about the situation, ipso facto, that any then current delegations which had been given lapsed.

It follows that a hiatus period followed until, on 19 November 1997, the CEO signed a new set of delegations in accordance with the Ministerial approval given to him. During the period in question the General Manager possessed no power to give any direction pursuant to s36 of the Act.

An interesting question therefore arises as to whether the revocation of the General Manager's power of delegation automatically voided the s36 direction previously given, by reason of the cessation of the power vested in that office.

There can be no doubt that the direction, when originally given, was a valid exercise of existing delegated power. It seems to me, upon reflection, that the fact that a delegatee subsequently ceases to have the relevant power cannot automatically void that which has already lawfully been done. The situation which develops is that no further exercise of the relevant power can be undertaken by the delegator until a fresh lawful delegation is given. Any contrary view would necessarily lead to the same disastrous and absurd situation as was adverted to by Bray CJ in G H Michell & Sons (Australia) Pty Ltd v Minister of Works (supra).

I therefore hold that the direction given by Mr Willoughby was not voided simply by the revocation by the Minister dated 13 November 1997.

Next the applicant submitted that the delegation given to Mr Willoughby lapsed upon his cessation of office; and that a further specific delegation ought to have been given on each change in the incumbency.

The short answer to that suggestion is that the delegations which have been given have, in each instance, been directed to the holder, for the time being, of the nominated office; and not to the individual incumbents as persona designata. This was clearly a valid mode of exercise of power (see Barton v Croner Trading (1984) 54 ALR 541 at 557 and Owendale Pty Ltd v Anthony [1967] HCA 52; (1966-67) 117 CLR 539 at 563). It follows that any general delegation continued in force until such time as it was specifically vacated or rescinded.

Central arguments also advanced by the applicant were that the "open ended" committal of him to G Division, with its concomitant impact on his quality of life, was so unreasonable as to constitute an abuse of power and that, in any event, he had not been accorded natural justice in relation to the managerial decision making processes - because he had not been afforded an opportunity of making submissions in relation to the weekly case file reports of his Unit Manager.

The first point taken by Dr Manetta in relation to these contentions was that they did not bear on any topic which was properly the subject of the judicial review process. These were, he said, simply questions of internal prison management and administration, in which it was not proper for the court to intermeddle.

As to this he sought to draw comfort from the reasoning of Mullighan J in Fricker v Dawes and Anor (1992) 165 LSJS 464. In that case Mullighan J expressed the view that it is inappropriate for the court to intervene in prison management decisions, unless there has been a breach of statutory provisions, or a failure to exercise power bona fide for the purposes for which it has been conferred. He appears to have questioned the relevance of the rules of natural justice to situations in which a prison manager has been invested with what is tantamount to an absolute discretion.

Reference was also made to the reasoning of Perry J in Bromley v McGowan and Vardon (1994) 178 LSJS 1 at 9-10 to a somewhat similar effect, albeit in relation to an exercise of a general discretion pursuant to s24 of the Act. As to this Perry J commented:-

"The very nature of the discretion and the circumstances in which it may be called into play compel the conclusion that its exercise would not ordinarily carry with it an obligation of disclosure to the prisoner of the grounds upon which the transfer was effected. Such transfers may often have to be made at short notice, and on the basis of a threat which may turn out to be unsubstantiated. For example, if a threat of a riot comes to the ears of prison authorities, they do not have to wait until a riot actually erupts, before transferring prisoners in an endeavour to maintain good order and safety in the prison."

I have no difficulty with the conclusion that, in such a scenario, a s24 decision may well not normally attract considerations of natural justice, where it is bona fide taken.

On the other hand, with respect, I agree with the view of Bleby J expressed in Page v The State of South Australia (supra), that somewhat different considerations may well arise in relation to directions given under s36 of the Act. As he there said:-

"Several points need to be made about that section. The discretion placed upon the Chief Executive Officer is expressed in broad terms, being dependent upon his or her opinion that it is desirable to make the order. However, it is at once limited by the consideration that must be given to the matters referred to in subparagraphs (a) to (d) inclusive. It is to be contrasted with s24(2) which vests in the Chief Executive Officer an absolute discretion to place any particular prisoner in such part of the correctional institution and to establish in respect of a particular prisoner such regime for work, recreation, contact with other prisoners or any other aspect of the day-to-day life of prisoners, as from time to time seems expedient to the Chief Executive Officer. That latter section was the subject of consideration by Perry J in Bromley v McGowan and Vardon (1994) 178 LSJS 1, where it was held that there were only very limited grounds on which the Court could intervene in relation to a decision made under that section. Whether the Court, in considering a determination under s36, is similarly limited, was not argued before me on this occasion. There can be little doubt, however, that, as in the case of s24(2), the exercise of power under s36 must be bona fide and not for a purpose unrelated to the grounds stated in subs(2). It was not suggested that the decision was not reviewable at all by this Court; cf Bromley v Dawes (1983) 34 SASR 73, dealing with the predecessor to this section in rather different form. Finally, it should be noted that a direction under subsection (2), other than for a reason referred to in paragraph (a), is of indefinite duration, and is not necessarily subject to any review by the Chief Executive Officer. For that reason, and for the serious consequences which follow for the prisoner, where a challenge of this nature is made, a Court will need to scrutinise carefully the reasons said to justify the determination, in order to ensure that no extraneous considerations have influenced the Chief Executive Officer in forming his or her opinion."

Whether or not the rules of natural justice apply in relation to a s36 direction may be a moot point. But what can be said is that a non observance of them may lead to obvious conclusions either as to bona fides or, alternatively, whether a direction given or maintained is so unreasonable a use of the power of management as to amount to an abuse of that power, warranting intervention by the court (cf Macrossan J in McEvoy v Lobban [1990] 2 QdR 235 at 236 - 7). That a power of intervention exists and may be exercised in proper cases is beyond question. One situation which might justify intervention could, for example, be the raising of quite unreasonable, distorted, unfounded, or patently unfair reports bearing adversely on a prisoner. The potential for such a situation being asserted, absent adherence to principles of natural justice, is obvious.

I do not take the applicant to assert that, having regard to his attitude and conduct, the decision to maintain his retention in G Division was not, initially, inappropriate. What he does contend is that the continued long term, open ended, retention of him there is so patently unfair and unreasonable as to warrant intervention by the court.

In this regard I think that the applicant is mistaken as to one factual issue. He appears to be of the understanding that the Departmental prisoner assessment committee has directed that he remain in G Division until at least November of the year 2000. The relevant documentation indicates that this is not the situation. The current sentence plan approved by that committee merely provides that he is to remain at Yatala Labour Prison until at least that time.

The decision to retain the applicant in G Division is, at this point, solely that of the General Manager of the prison.

Placement of a prisoner is, in practical terms, determined at two levels.

Under s23 of the Act periodic assessments are required to be made by the Departmental Prisoner Assessment Committee. Due notice of these must be given to a prisoner, and he is entitled to make written representations. The assessments must be made at intervals not exceeding twelve months. Such assessments take into account the accumulated reports on a prisoner's case file.

The applicant availed himself, in relation to a review conducted in March 1997, of making representations to the committee. He complains that, despite the specific requirements of s23 no subsequent review has been made. Despite Dr Manetta's explanation that the internal prisoner assessment panel documentation raised with Yatala Labour Prison is used as a basis for the annual s23 assessments, I am by no means convinced that at least the last such assessment has been carried out in respect of the applicant in the manner envisaged by the section. This is, in my opinion, a matter that may need some further investigation.

However, it must be stressed that the role of the committee is limited to determining in which prison a prisoner will be held for the time being.

Decisions as to the detailed regime of a particular prisoner, within a specific institution, are the responsibility of its General Manager. At Yatala Labour Prison, the assessment process is dealt with on a two stage basis, at least in so far as G Division is involved.

First, the Unit Manager raises regular, so-called, weekly separation review reports, which go to the General Manager. These report on the prisoner's conduct and progress. They make specific recommendations as to whether separation should, or should not, be continued. Second, a formal six monthly review is conducted by a prisoner assessment panel within the prison. The prisoner is entitled to be interviewed by a member of the panel unless he declines that right.

It is not in dispute that the applicant has availed himself of such right in the past, although he declined it when reviewed in May last, because he felt that this might prejudice his present, then pending, application for judicial review. The assessment was therefore completed in his absence.

It is fair to say that these reviews have, over time, led to a gradual grant of extended privileges to the applicant, beyond those afforded to shorter term inmates of G Division.

In her affidavit Ms Bordoni had this to say apropos the last review:-

"15. An outcome of the review was a recommendation that he be given frequent escorted visits to the E Division aviaries, this has occurred previously but it was recommended that this be increased. This will give him, among other things, the opportunity to walk barefoot on grass and to give him a wider perception of areas. Presently those visits are being organised and it is anticipated that they will occur about once per month, subject to staff availability.

16. It was also recommended that he be allowed to get a budgerigar to help him form a relationship as he usually has no direct physical contact with other prisoners. The bird would, at first, be kept in a cage in yard 3, which prisoner Fyfe looks on as his space, it is the only yard with shrubs and trees. The budgerigar programme may then progress to him being permitted to keep the bird in his cell. There are occupational health and safety matters to be further considered.

17. There are two other prisoners whose programmes have taken them to E division aviary, but no other prisoner is permitted a budgerigar."

I pause to mention that there are a number of potted trees and plants in Yard 3, which the applicant is permitted to tend. On one occasion some or all of these were deliberately poisoned by a prison staff member, who is said to have been disciplined for his conduct.

Although Ms Bordoni does not always do so, she has, not infrequently, herself both participated in prisoner assessment panel deliberations related to the applicant and also interviewed him personally. He has, on various occasions, made requests for transfer to "normal" divisions, but these have been refused because of his past volatile conduct and general (at times, unpredictable) attitude.

On 17 April 1997 Ms Bordoni wrote to the applicant in these terms:-

In response to your request of the 15 April 1997, I wish to advise you that your request for a transfer to another Division is denied. I make this decision for reasons of duty of care to yourself and to the prison population in general.

As you are aware, you are currently housed in 'G' Division under a separation order, Section 36.2.c. of the Correctional Services Act 1982, which states that the order is made in the interests of the protection of other prisoners. It is not necessary for me to outline to you the reasons for its initial imposition, however I will outline the reasons for its continued imposition.

You have throughout your time in 'G' Division, made your intentions known with regard to causing injury or death to other persons including staff should you be given the opportunity to do so. Threats when made in isolation may not constitute a need to act in the form of a separation order, however when combined with your history of enacting upon those threats, it provides little discretion but to manage those threats as we currently do.

The opportunity for a recommendation to revoke your separation order, lies in a well documented and consistent demonstration of appropriate behaviour and program participation by yourself whilst in 'G' Division. This process will be monitored through local reviews, case conferences and regular case notes involving your case worker and other staff within 'G' Division. I will be kept appraised of your progress and we will continue to meet on occasions to discuss issues affecting you and your future placements.

It is fair to say that this remains her present attitude.

In the course of his submissions the applicant was quite frank in conceding that, at times, his conduct had not been appropriate - he had declined to interact with professional staff and participate in certain programmes; he had, in anger and frustration, made some unfortunate threatening statements; and he had, as he put it, "spat the dummy" on occasions. However, he had made no actual move to commit violence towards anyone.

In essence, he feels unduly oppressed by his separation and virtual complete isolation over a long period of time. He says, and I can readily understand, that, at times, he is overcome by the restricted and oppressive regime of G Division. The associated frustration has caused him to react by acting out his pent up resentment. He contends that the present system of weekly reports sent by his Unit Manager without any opportunity to comment on them is unfair and a denial of natural justice.

As to this lastmentioned aspect I feel constrained to comment that, given the applicant's circumstances and the very long time for which he has been on separation, the present system seems both unfortunate and almost certain to produce tension counter productive to the applicant's progress. It is no real solace to him to say that he sees the reports after a determination has been made in respect of them. He is to be pardoned for thinking that, at that point, it would be somewhat futile to make any representations. The system in vogue seems inherently illogical and likely to breed or maintain unnecessary frustration and anger which is counter productive to rehabilitation.

Be that as it may, I am not able to conclude that, at the present time, the approach of the prison administration has been so unfair and unreasonable as to constitute an abuse of power warranting the interference of this Court.

The applicant himself concedes that, in various respects, he has not been co-operative - although my impression is that there has been a distinct improvement in his conduct in more recent times. That has been reflected in gradually extended privileges granted to him.

I am particularly mindful of the medical evidence which has been placed before me and the professional opinions expressed that unrespited, long term, continuous exposure to the somewhat stifling environment of G Division could well lead to the development of an adverse psychiatric condition which currently does not exist - even given the presently diagnosed personality disorder and periodic episodes of deep depression which the applicant experiences. Clearly his continued retention in a very restricted regime will tend to inhibit his mental health progress and may precipitate periods of intense frustration resulting in mood swings and very aggressive outbursts. Furthermore, I accept the applicant's contention that the G Division regime does not appear ever to have been designed for very long term inmates and it is, inherently, oppressive, doubly punitive and potentially counter productive to his rehabilitation and return to mainstream prison environments.

It must be recognised that the prison management is, in a very real sense, faced with a catch 22 situation. On the one hand it clearly has a duty of care to other prisoners, in light of the applicant's past conduct and more recent threats expressed by him. On the other, the applicant's emotional and mental health state seems not likely to improve dramatically unless he is progressively released into a more general prison environment.

Perhaps more importantly for present purposes, it seems to me that the practical effect of what is occurring is that, because no other prison environment seen to be appropriate is available, the applicant is being subjected to an abnormally harsh, almost punitive prison regime (for what are, essentially, non disciplinary reasons) on a very long term basis - when there is no suggestion of recent violent behaviour or serious misconduct on his part. It is, in a very real sense, an abnormally hard, almost a penal, environment (in the disciplinary sense) which has now persisted for a very long time. A stage may well be reached at which it could well be said that it is an abuse of power to continue to subject him to it, provided that he co-operates as reasonably required of him. He is not, in effect, to be punished twice for the one offence.

However, having said that, it is clear that the General Manager is doing her utmost, progressively, to relax the applicant's environment as and when his conduct warrants such action. It is true that, in a practical sense, the future lies very much in the applicant's hands.

I have already pointed out that he is mistaken in his belief that he is predestined to remain in G Division until at least late 2000. That is not the decision of the prisoner assessment committee, or any other body. Once he appreciates that fact it may become easier for him to see the obvious way forward.

It seems to me that, on the evidence, that the true attitude of prison management is that, if the applicant is genuinely prepared to co-operate by participating in programmes designed to address his personality problems; to accept the professional assistance which the authorities wish to make available to him; and, with such assistance, to controlling his understandable frustration and cease making threats - and that this continues over a reasonable space of time - then there is every possibility that a change in environment will become possible. The applicant, not unreasonably, complains that he is not clear as to precisely what programmes he is expected to undertake. In this regard I would strongly suggest that he be provided with some written intimation of precisely what is expected of him in this regard, so that his actual future conduct can be tested against a specific set of criteria which he is expected to satisfy. This would provide a stable basis for assessment of his future conduct. It would also meet his contention that the absence of such criteria can, in the long term, constitute an abuse of power, because of his inability to understand and attempt to achieve standards expected of him.

The applicant is, in my opinion, a not unintelligent person. If he will only continue his recent trend towards a less confrontationist stance and meet the authorities half way, then many of his present difficulties are likely to resolve. The future is, indeed, very much up to him, given a fair and reasonable approach to his present problems.

I am not satisfied that, at this point in time, a situation has arisen whereby judicial intervention can be justified, conformably with established legal principle. However, I am prepared to monitor the position in order to ensure that the applicant's rights are fully protected and all reasonable steps are taken to ensure that his continued incarceration in G Division does not amount to an abuse of his rights. If his conduct is satisfactory (as meeting reasonably established criteria as above referred to) on a sustained basis and his situation is not improved in proper recognition of that fact, then my attitude may well change. I reiterate, I accept that the G Division regime was not, on its face, ever intended to accommodate extremely long term inmates on a non disciplinary basis; and its environment is scarcely suited to that purpose. The point made by the applicant as to quality of life is not without force. On the other hand, he cannot expect the protection of the Court if he is not prepared to do his part to earn it.

I do not propose to dismiss the present application. I will adjourn further consideration of it until Monday, 29 March next at 9.30 am, at which time I will review the factual position as it then stands. In the meantime, the onus will be very much on the applicant to put his best foot forward.

Correctional Services Act 1982

FYFE v BORDONI & ORS No. SCGRG-98-484 Judgment No. S6860 [1998] SASC 6860 (15 October 1998)

Correctional Services Act 1982 s7(2), s23, s24, s36;
Ombudsman Act 1976 s11, referred to.
Page v State of South Australia (1997) 192 LSJS 375;
Bunwell v Gatterwald [1978] VicRp 26; [1978] VR 253;
Reference under s11 of Ombudsman Act 1976 for an Advisory Opinion; ex parte Director General of Social Services (1979) 2 ALD 86;
G H Michell & Sons (Australia) Pty Ltd v Minister of Works (1974) 8 SASR 7;
Evans v Sparrow (1973) 6 SASR 519;
Barton v Croner Trading (1984) 54 ALR 541;
Owendale Pty Ltd v Anthony [1967] HCA 52; (1966-7) 117 CLR 539, applied.
Fricker v Dawes & Anor (1992) 165 LSJS 464;
Bromley v McGowan and Vardon (1994) 178 LSJS 1;
McEvoy v Lobban [1990] 2 Qd R 235, distinguished.

FYFE v BORDONI & ORS No. SCGRG-98-484 Judgment No. S6860 [1998] SASC 6860

At a glance

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Judgment (140 paragraphs)

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Cases Cited (6)

FYFE v BORDONI & ORS No. SCGRG-98-484 Judgment No. S6860 [1998] SASC 6860 (15 October 1998)