Supreme Court of the ACT|2016-02-25|Before: Mossop AsJ

Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27 (25 February 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Islam v Director-General Justice and Community Safety Directorate (No 3)

HUMAN RIGHTS - right to equal protection of the law without discrimination - allegation of discrimination because of religion - multiple incidents in prison - whether direct discrimination - whether indirect discrimination through failure to prevent discriminatory environment or culture - causation - no breach established - Human Rights Act 2004 (ACT), s 8(3).

HUMAN RIGHTS - protection from being treated or punished in a cruel, inhuman or degrading way - concepts of "cruel, inhuman or degrading" treatment require threshold level of severity to be met - no breach established - Human Rights Act 2004 (ACT), s 10(1).

HUMAN RIGHTS - right to education - right to enjoy right without discrimination - no breach simply because arrangements for access to education are imperfect - Human Rights Act 2004 (ACT), s 27A.

Islam v Director-General of Justice and Community Safety Directorate (No 2) [2015] ACTSC 314

Islam v R [2013] ACTCA 10

Kalashnikov v Russia [2002] ECHR 596; (2003) 36 EHRR 34

Kuyken v Chief Commissioner of Police [2015] VSC 204

R v Islam [2011] ACTSC 32

R v Islam [2015] ACTSC 99

Re Lifestyle Communities Ltd (No 3) [2009] VCAT 1869

Director-General of Justice and Community Safety Directorate (Defendant)

1. These proceedings involve claims by a detainee at the Alexander Maconochie Centre for orders against the Director General responsible for the management of that facility. The claims for relief are based principally on the Human Rights Act 2004 (ACT) ('HR Act').

2. The plaintiff is a sentenced prisoner. On 2 March 2011 the plaintiff was found guilty of intentionally inflicting grievous bodily harm: R v Islam [2011] ACTSC 32. On 25 May 2011, he was sentenced to nine years imprisonment with a non-parole period of four years and six months. An appeal to the Court of Appeal against his conviction and sentence was dismissed: Islam v R [2013] ACTCA 10. Whilst in prison he committed a further offence of recklessly inflicting grievous bodily harm on a fellow detainee, Darren Cassidy. He pleaded guilty to the charge and was sentenced to a further six years imprisonment which was to be served consecutively upon his earlier sentence. His non-parole period was reset so that it was, in total, a period of nine years and six months commencing on 4 July 2009 and expiring on 3 January 2019: R v Islam [2015] ACTSC 99.

3. These proceedings were commenced by originating application filed 21 May 2015. By orders made on 10 July 2015, I permitted the amendment of the originating application so that it was in the form annexed to the application in proceeding filed 19 June 2015. I ordered that the document so amended be treated as having been filed. On 25 September 2015, I struck out the following aspects of the amended originating application:

(a) those grounds identified in paragraphs 1 and 2 under the heading "grounds of application"; and

(b) the prayer for relief number three.

See Islam v Director-General of Justice and Community Safety Directorate (No 2) [2015] ACTSC 314.

4. The effect of those orders was to leave in place the application which seeks the following orders:

That the defendant (Chief Executive) ensure, as far as reasonably practicable that Officer CO1 Goggin no longer have professional interactions with the Plaintiff.
That the defendant (Chief Executive) make arrangements that Officers CO1 Goggin and CO2 Ward undergo remedial training and are briefed as to proper protocol and procedure within the Alexander McConnachie Centre (AMC) regarding discrimination, unlawful search and seizure and inmate safety.

...

4. That the defendant (Chief Executive) takes reasonable steps to ensure that Corrections Officers employed at AMC and civilian contractors (namely the Auswide Projects manager, Arthur Huggins) do not breach the Human Rights Act 2004 by discriminating against, making jokes or inappropriate comments about the Plaintiff concerning the religion of Islam.

5. That the defendant take reasonable steps to remove from the AMC Case Note system unsubstantiated allegations made by Corrections Offices against the plaintiff that are not supported by evidence or due process.

6. Any other orders the Court considers appropriate.

5. The grounds of the application set out in the amended Originating Application contain a substantial amount of material that is in the form of written submissions. However, the substance of the grounds that were not struck out are as follows:

3. That a Public Authority has acted in a manner incompatible with a Human Right; namely the Plaintiff submits that there is a documented and clear history of serious issues relating to, what the plaintiff asserts is discrimination and religious vilification on behalf of CO1 Goggin, other Offices and civilian contractors in that inappropriate comments and actions are carried out against the plaintiff and he is not treated the same as the other detainees accommodated at Management (please refer detainee request forms 15707; 17669; 17674; 15727:14171; 14173; 14177; 5948; 5950; 15706; 15720; 15714; 15702) and that these issues were known about but not addressed or actioned in a reasonable manner by AMC management. The plaintiff asserts the fact he is a practising Muslim is the reason for this discrimination on behalf of CO1 Goggin, other Offices and contractors and he submits this is in clear breach of s7 (c)(d), s9 (a)(b)(c) of the Corrections Management Act, 2007 and, also in clear breach of s8 (2)(3) s10(1)(b), s14(1)(a)(b)(2) and s19 (1)of the Human Rights Act, 2004.

4. The plaintiff asserts the contravention of these provisions provides a cause for action and ensures jurisdiction under Part 5A of the Human Rights (HR) Act, 2004 dealing with the obligations of public authorities in the ACT (of which the AMC is a part), s40A describing the functions of public authorities, s40B (1)(a) which makes it unlawful for a public authority to act in a way inconsistent with a human right, and finally s40C which enables the plaintiff by these proceedings to complain of conduct inconsistent with a human right, including the right under s40C(4); to seek such relief as the court considers appropriate, excepting damages.

The plaintiff asserts the specific provisions are actionable in this case under the Corrections Management Act, 2007, s 7(c) and (d) specifying certain general objectives of the CM Act ((c) ensuring that detainees are treated in a decent, humane and just way; and(d) promoting the rehabilitation of offenders and their reintegration into society, and to s 9 (a) (b) (c) dealing with the treatment of detainees. Generally, s 9 directs that functions under the CM Act in relation to a detainee must be exercised, inter alia, 'to respect and protect the detainees human rights', (subclause (a)) and 'to ensure the detainees decent, humane and just treatment' (subclause (b)) and 'to preclude torture and cruel, inhuman or degrading treatment' (subclause (c)).

6. The balance of the grounds are submissions which elaborate upon these basic contentions.

7. The essence of the plaintiff's claim is, therefore, that:

(a) There was a "documented and clear history of serious issues relating to ... discrimination and religious vilification";

(b) These issues "were known about but not addressed or actioned in a reasonable manner by AMC Management";

(c) This amounted to a breach of the Corrections Management Act 2007 (ACT) ('CM Act') and the HR Act;

(d) The plaintiff is entitled to relief under the CM Act or HR Act.

8. There were a variety of allegations set out in the affidavits. I will summarise the nature of those allegations and sequentially number them below.

9. The substance of the allegations in the affidavit of 15 May 2015 are:

1. That on 21 April 2015 CO1 Goggin unlawfully seized the plaintiff's property namely "one blue plastic A4 protector" and then surreptitiously returned the property as he was delivering a lunchtime meal without informing the plaintiff. This allegation is also supported by detainee request form 14171 and 14177.

2. That on 22 April 2015 CO1 Goggin permitted detainee Bender to have time out of his cell at the same time as the plaintiff allowing the mixing of two detainees. This allegation is also supported by detainee request form 14173 and 14177.

3. On 25 December 2014 the plaintiff submitted an inmate request form because "CO1 Fiorre" (the reference should be to CO1 Fior) let another inmate out of his cell while the plaintiff's cell door was open and the other inmate, with whom he had argued repeatedly, walked to the plaintiff's door and insulted him. This is also supported by detainee request form 15731.

10. The first affidavit filed on 2 July 2015 alleges that:

4. CO4 Rushton approved and inmate request form granting the plaintiff access to the block "buy-up" as he was accommodated at Management for accommodation reasons only. CO3 Baynham later then removed his access to this block buy up when the plaintiff had done nothing wrong to deserve the removal of access.

11. The second affidavit of 2 July 2015 contains a number of different allegations. These can be summarised as follows:

5. That on unspecified dates CO1 Goggin said to the plaintiff "when are you going to join I.S Isa?" even after he was verbally requested not to.

6. That on an unspecified date CO1 Goggin was present when other inmates yelled out to the plaintiff "he's a terrorist" and did not take any action to address or document the incident.

7. That on an unspecified date "CO1 Bloom" (the reference should be to CO1 Plume) was present when inmate Schuster said to the plaintiff in the Management unit, "So Isa, when are you going to join I.S?" and that no action (written or verbal) was taken against that inmate.

8. That on an unspecified date the plaintiff spoke to CO3 Frame about inmate Cassidy "putting on a Muslim head covering and laughing, 'I'm a Muslim I get fucked up the ass'" and that CO3 Frame "did not investigate the matter or take any action against inmate Cassidy."

9. That CO3 Frame "illegally punished the Plaintiff by cancelling the Plaintiff's Christmas buy-up (Christmas 2013) without first charging the Plaintiff with any disciplinary breach/charge." This appears to be a repeat of the complaint at [10] above.

10. That on an unspecified date CO3 West moved the plaintiff into the protection classification accommodation area without gaining the plaintiff's written consent/signature in accordance with the CM Act.

11. That on an unspecified date CO3 Gibson "accused the Plaintiff of abusing a member of staff (Lynne Fowler - Case Manager) without any evidence, and, when the plaintiff refused to sign and acknowledge the charge offence of verbal abuse, CO3 Gibson processed the paperwork anyway and left it on the Case Note system without charging the plaintiff in contravention of the [CM Act]".

12. That numerous corrections officers (more than 4) have asserted verbally to the plaintiff they are doing or thinking about doing a Counterterrorism PhD at Murdoch University and would like the plaintiff to talk to them about the religion of Islam and that this is a lie and an excuse to ridicule the plaintiff about his religious beliefs and an opportunity to present the plaintiff as a terrorist and a threat to national security through unsubstantiated allegations logged onto the AMC internal Case Note system. The plaintiff submitted an internal request form requesting that officers not verbally engage with him regarding his religion, but that it still occurs and that reasonable steps have not been taken to address his complaints made in internal request forms.

13. That on unspecified dates "Mr Arthur Huggins, manager at the education section [of] AMC, has consistently demonstrated a pattern of non-compliance with simple but important tasks on behalf of the Plaintiff; namely refusing to process and pick up legal printing or coming up with implausible excuses why the printer is, allegedly, not working that day, refusing to send education faxes for the Plaintiff and generally conducting himself in a recalcitrant manner in contravention of s 22 (2) (b) and s 27A (2) of the [HR Act]."

12. Additional complaints documented in detainee request forms and referred to in the grounds for the Amended Originating Application are summarised as follows:

14. Detainee request form 15707, dated 27 November 2014, alleging that officer Goggin permitted an inmate to spend 10 minutes talking to another detainee outside the plaintiff's cell door and complaining about the inconsistent application of rules on detainee interaction.

15. Detainee request form 17669, dated 18 February 2015, alleging that on 16 February 2015 officer Goggin asked the plaintiff to test his intercom in circumstances which were "bordering on discrimination/harassment".

16. Detainee request form 17674, dated 29 February 2015, alleging that on 28 February 2015 officer Goggin only allowed the plaintiff five minutes time out and then refused to allow him to clean his room demonstrating personal dislike for the plaintiff and "discrimination and harassment".

17. Detainee request form 15727, dated 23 December 2014, alleging that officer Goggin informed him that exercise had to be undertaken outside, but later allowed other detainees to exercise inside which involved rules not being applied equally.

18. Detainee request form 5948 (dated 22 November 2014) and 5950 (dated 27 September 2014) complaining that a pin number had been installed on the plaintiff's television and he was not able to access certain channels; also detainee request form 15706 dated 27 November 2014 repeating this complaint and asserting that the restriction of channels is "clearly discrimination and harassment".

19. Detainee request form 15720, dated 10 December 2014, identifying that the plaintiff had asked numerous officers not to talk to him about Islam and it has continued to occur. He requested that it be case noted that he does not wish to discuss religion with anyone and also that staff are made aware that joking about Islam is inappropriate.

20. Detainee request form 15714, dated 4 December 2014, complaining that the plaintiff only got 30 minutes out of his cell, whereas some inmates got time out in the morning and the afternoon.

21. Detainee request form 15702, dated 26 November 2014, complaining that he was "forcibly moved yesterday" into another cell and that this move could result in a danger to himself, other detainees and/or members of staff.

13. The proceedings were heard on 16 and 17 February 2016. The plaintiff relied upon the following affidavits that he had sworn: an affidavit sworn 15 May 2015 and two undated affidavits filed 2 July 2015. The defendant relied upon the following affidavits:

(a) Affidavit of Craig Goggin sworn 27 November 2015;

(b) Affidavit of Damian Fior affirmed 27 November 2015;

(c) Affidavit of John Plume sworn 8 February 2016;

(d) Affidavit of Ian Frame affirmed 27 November 2015;

(e) Affidavit of Gail Robertson affirmed 27 November 2015.

14. There were also a number of exhibits. They were:

(a) A bundle of Case Notes in relation to the plaintiff for the period 01 January 2014 to 16 February 2015 (Exhibit 1);

(b) 12 Detainee Request Forms which the plaintiff asserted supported his claims of a pattern of discrimination against him (Exhibit 2);

(c) Two Prisoner Request Forms and a Detainee Request Form relating to the operation of the plaintiff's television (Exhibit 3).

15. The plaintiff was cross-examined. Mr Plume, Mr Goggin, Mr Huggins and Mr Frame were cross-examined.

16. During the hearing, the plaintiff sought to rely upon the contents of Case Notes that had been tendered by the defendant as disclosing additional causes of action. He identified some particular incidents where those Case Notes recorded threatening or unpleasant conduct by other inmates directed towards him. The plaintiff wished to contend that the response of the officers of the defendant to these incidents was inadequate and that this failure to adequately respond amounted to a breach or breaches of the HR Act. The defendant objected to reliance upon this material as disclosing separate causes of action, because the incidents described in the material were not identified in either the amended originating application or the affidavits filed in support of the application. As a consequence, the defendant had not had the opportunity to investigate the circumstances surrounding these incidents in the light of a claim that the response was inadequate and hence amounted to a breach of the plaintiff's human rights. The plaintiff contended that the defendant should not be able to make this complaint because he had subpoenaed the defendant to produce the Case Notes several months ago, but they had not been produced. The material before me, however, was not sufficient to demonstrate that there had been failure by the defendant to produce documents in accordance with a subpoena.

17. I indicated that the Case Note material was evidence that might be relevant to the allegations that had been identified in the amended originating application and affidavits in support, but I would not, in the absence of an application to amend the originating application, permit them to be used to establish additional causes of action. No application was made to amend the amended originating application to permit the matters in the Case Notes to be relied upon.

The main objects of this Act are to promote public safety and the maintenance of a just society, particularly by -

(d) promoting the rehabilitation of offenders and their reintegration into society.

Functions under this Act in relation to a detainee must be exercised as follows:

(a) to respect and protect the detainee's human rights;

(b) to ensure the detainee's decent, humane and just treatment;

(2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.

(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.

Discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Protection from torture and cruel, inhuman or degrading treatment etc

(b) treated or punished in a cruel, inhuman or degrading way.

Freedom of thought, conscience, religion and belief

(1) Everyone has the right to freedom of thought, conscience and religion. This right includes -

(a) the freedom to have or to adopt a religion or belief of his or her choice; and

(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private.

(2) No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

(2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:

(b) to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her;

(2) Everyone has the right to have access to further education and vocational and continuing training.

(3) These rights are limited to the following immediately realisable aspects:

(a) everyone is entitled to enjoy these rights without discrimination;

20. The provisions of the HR Act relating to the making of orders to remedy breaches of the Act by public authorities are contained in Part 5A. It is not necessary to set them out.

21. The Management Unit is an area within the prison where detainees who require particular management are housed. The need for particular management can be because of disciplinary issues or because they are on protection. The Management Unit is divided into what is referred to as a "hard" side and "soft" side. The hard side generally accommodates detainees with disciplinary issues and the soft side generally accommodates detainees on protection. However, operational issues mean that this simple division is not consistently able to be adhered to.

22. Between the two sides of the Management Unit is a secure perspex wall into which is built the officer station from which corrections officers may observe the area in front of the cells on both sides of the unit.

23. There are two forms of internal prison documentation which featured significantly in the evidence in this case. The first is electronically maintained records made by corrections offices in relation to the circumstances, behaviour activities and well-being of detainees. These are referred to as Case Notes. There was no evidence as to the formal protocols dictating what is or is not to be recorded in Case Notes or when such records may or must be made.

24. The second form of documentation is that which permits detainees to make formal requests of corrections officers. Those request forms are headed either "Prisoner Request Form" or "Detainee Request Form", there being no difference of substance between the two forms. The form is divided so that at the top of the form is a space for the detainee to record a request. There is then space for comments to be made by corrections officers, starting with comments by the corrections officer who receives the request and then, when appropriate, comments by higher level corrections officers. The corrections officer who would usually receive the form would be a correctional officer grade 1 (CO1). It would then be dealt with by a correctional officer grade 2 (CO2, also referred to as a Supervisor) and passed up the chain to a correctional officer grade 3 (CO3, also referred to as an Area Manager) and possibly to the Operations Manager of the prison. A decision is made at the appropriate level as to whether or not the request is either approved or declined. There is space on the form for the detainee to sign it after a decision has been made, so as to acknowledge being told that the request has either been approved or declined.

25. The Case Notes and request forms for the plaintiff for the relevant period, 1 January 2014 to 16 February 2015 were in evidence. They contain a significant amount of material most of which is not relevant to the present case. However, the Case Notes do demonstrate a detailed system of record keeping in relation to the plaintiff. The 338 request forms in evidence, indicate that the plaintiff made extensive use of this process to both make requests and raise grievances. It is clear that the plaintiff recognised the value of the documentary records created by a detainee request and the making of records in the Case Notes, both for the assessment of his conduct during detention and as a means of documenting any grievances or concerns that he had in relation to the operation of the prison. On 16 occasions the request forms make reference to the possibility of the plaintiff bringing proceedings in the Supreme Court to address an issue of concern to him.

General observations about the evidence of the plaintiff

26. The plaintiff was clearly intelligent. He was at pains to emphasise the number of tertiary qualifications that he has obtained while in prison. As a result of the number of cases in this Court which he has run, he appears to be reasonably familiar with court processes.

27. He appeared to relish the opportunity to cross-examine those correctional officers or other staff, notably Mr Goggin and Mr Huggins against whom he had made a series of allegations. During the course of his cross-examination, there were occasions where his questioning sought to belittle the witnesses and I was required to disallow a number of his questions. The plaintiff certainly conducted the cross-examination with particular emphasis on how many university degrees he had, as though that indicated that he was intellectually superior to some of the correctional staff. .

28. Having regard to the whole of the evidence and my impressions of the plaintiff as a result of the evidence that he gave, it appears to me that he has a variable capacity to get on with corrections officers and other detainees. On occasions he appears to get on well, yet on others he does not.

29. Some of the evidence in the case demonstrates that he often interprets events only from his own perspective and has a propensity to attribute a persecutory explanation to the events which are otherwise explained. He certainly has demonstrated a tendency to unreasonably assert discrimination or harassment in an attempt to get what he wants within the prison. None of this is particularly remarkable in a prison context, although having regard to his intelligence, the plaintiff probably has a greater than usual capacity to make use of the processes of documentation and review within the prison. However, I treated is evidence with considerable caution because:

(a) in some cases the allegation was undocumented or in very general terms;

(b) where the allegations were documented, that documentation was affected, in my view, by the tendency on the part of the plaintiff to be self-focused and to attribute a persecutory explanation to otherwise explainable conduct; and

(c) some of his claims were so weak that the maintenance of them reflected poorly on the reliability of his evidence.

General observations about the evidence of Mr Goggin

30. CO1 Goggin was the focus of a number of complaints by the plaintiff. There was some animosity directed to him by the plaintiff. Mr Goggin denied any particular animosity towards the plaintiff, indicating in his oral evidence that he considered the plaintiff to be just like any other detainee.

31. During cross-examination, the plaintiff put a number of propositions to Mr Goggin.

(a) He referred Mr Goggin to a conversation in which they had discussed their trade qualifications, the plaintiff as a fitter and turner and Mr Goggin as a refrigeration mechanic. The plaintiff contended that he had shown to Mr Goggin his trade certificate and when Mr Goggin refused to show the plaintiff his trade certificate, the plaintiff had called him a liar. He suggested that this upset Mr Goggin and that this formed the basis for a pattern of behaviour by Mr Goggin directed against the plaintiff. Mr Goggin said that he was a correctional officer, was not obliged to argue with the plaintiff over trade qualifications and was not angry in any way as a result of their interaction. In relation to the suggestion that he was angry or embarrassed at being called a liar he said "I've been called a lot worse than that as part of my job. That's part of my job."

(b) The plaintiff suggested that because Mr Goggin had said he owned a farm, but was not in fact the registered proprietor of the land on which the family farm was run, that he was a liar and further, that he was a habitual liar. Mr Goggin denied this. The putting of such a suggestion on such a slender basis reflected poorly on the plaintiff's judgment and, in my view, demonstrated a willingness to misuse his entitlement to cross-examine the witness.

(c) The plaintiff also suggested to Mr Goggin that he was jealous of him because the plaintiff had six university degrees and Mr Goggin had none.

32. The number of incidents in which Mr Goggin was the focus of a request or complaint by the plaintiff indicates that there was at least some animosity or ill feeling directed by the plaintiff toward him.

33. There was nothing in the manner of giving or content of the evidence of Mr Goggin which would indicate to me that I should treat his denial of any discrimination against the plaintiff on religious grounds as being unreliable.

On the morning of 21 April 2015, between 0730 and 0810 hrs, CO1 Goggin did unlawfully seize my personal property, namely one blue plastic A4 protector which I use for University studies without informing me he was seizing this item or giving me a receipt regarding seizure. Moreover, between 1030 and 1100 hrs CO1 Goggin returned the property surreptitiously as he was delivering the lunchtime meal, again without informing me. In the morning after the initial seizure and its return CO1 Goggin and CO2 Ward talked to me about not responding to Muster in the morning, I ask them about the seizure of my property and CO1 Goggin denied it had occurred. There is a CCTV camera in my cell and outside my cell in management and I submitted an internal request form #14171) that morning (21 April 2015) requesting the CCTV footage be set aside for possible court action. Furthermore I submitted a second jail request form on the 26 April 15 (#14177) again requesting the CCTV footage for that incident and a second incident be retained by staff (detailed in this affidavit) in preparation for possible court action.

35. This allegation was an allegation which was struck out as part of my earlier decision (referred to at [17]) in so far as it provided a separate basis for relief. However, the affidavit containing the allegation was read without objection and I give consideration to it only insofar as it might, in combination with other incidents, form a basis for the allegation of discrimination and religious vilification.

36. In relation to this allegation, the evidence of Mr Goggin may be summarised as follows:

(a) He recalled the incident.

(b) He had contact with Mr Islam at about 8.00am because the plaintiff had not responded to "muster". He obtained assistance from CO2 Ward to open the door. When the door was open, a number of plastic bottles fell down from the bench and bedside table inside the cell, spilling water on the floor. The plaintiff had a habit of rigging plastic bottles of water above his cell door to spill on anybody entering the cell. It was not the first or last time that water had been spilt in this way.

(c) Officer Ward kicked away the bottles and rubbish immediately surrounding the doorway to allow him into the cell. The officers confirmed that Mr Islam was awake by observing movement underneath the sheets.

(d) Lunch was delivered at about 11.30am through a hatch in the cell door.

(e) He had neither seized nor returned any property to the plaintiff that day. He did not see CO2 Ward remove any property, other than excess rubbish, or return any property later in the day.

(f) It would be very difficult for a person to "surreptitiously" return property while delivering lunch, because the delivery of lunch requires a detainee to collect their lunch through the "latch" at the cell door, allowing them to see anything else left behind by staff.

(g) He recorded that the plaintiff did fill out a Prisoner Request Form 14171, which was investigated.

I request the management CCTV footage for my cell # 7 at management for the times 0730 to 0810 on 21 April and 1030 hrs to 1100 hrs is kept by intel or management of AMC relating to pending civil legal litigation against CO1 Goggin RE: unlawful seizure of property.

38. Mr Goggin's comment recorded on the form is "forward to CO2 Ward as he was the one who removed rubbish."

Excess rubbish was removed from cell whilst conducting muster, I explained to detainee that a property seizure sheet does not need to be issued for these items.

No further action - officers consulted - satisfied no property was removed - Detainee has not identified any property. Officers stated it was rubbish.

41. I am not satisfied that the evidence establishes that any blue plastic A4 folder was removed from or returned to the plaintiff's cell. Further, in my view, the making of this allegation by the plaintiff who was, on the evidence, under his bed sheets at the time when the officers entered, the demand that CCTV footage be retained and the threat of legal action all demonstrate a willingness to make allegations based on mere suspicion and the invocation of the remedial procedures available to a detainee without any consideration of whether or not the invocation of those procedures is reasonable in the circumstances.

42. The evidence of the plaintiff on this issue was:

On the morning of 22 April 2015, at approximately 1445 hrs, CO1 Goggin let inmate Bender (who I have previously submitted paperwork in about us arguing) out of his cell while I was also out and then proceeded to walk back in to the office, leaving both of us standing in the same area next to each other against standing orders (I am down as not mixing and am apparently so violent it takes two Officers to move me around the jail). This extremely dangerous incident could have very easily resulted in serious injury and/or death to one, or both of us. I immediately informed CO1 Goggin and he finally secured inmate Bender in his cell. I have only recently been sentenced for intentionally inflict Grievous bodily harm (sentenced to seven years) for an assault in jail on another inmate and, frankly cannot believe and Officer could do something so stupid. I do not need to be placed in these kind of dangerous situations by Officers given my history, especially given the large amount of paperwork I have submitted recently detailing the arguments and problems I have been having with other inmates housed in the same area.

43. The evidence of Mr Goggin in relation to this incident was:

I recall the incident referred to at paragraph 2 of the Detainee Islam's affidavit, dated 2 July 2015, that refers to Detainee Bender being out of his cell at the same time that Detainee Islam was out of his cell.

This incident occurred when myself and CO Paterson went over to Detainee Bender's door to resolve an issue for him, during which we opened his door and spoke to him. When the conversation was completed Detainee Bender pulled his door shut.

Detainee Bender's door did not fully close and as myself and CO Paterson went back to the officers' station, he stepped out of his cell, which is right in front of the kitchen, and proceeded to cook noodles. Throughout this whole period Detainee Islam was in the exercise yard outside, which is at least 5 meters away and around a corner from the kitchen.

About ten seconds after Detainee Bender entered the kitchen, Detainee Islam yelled out to me "Chief, I can't mix". I immediately secured Detainee Bender in his cell with no incident. I submitted an officer's report about the incident to the area manager on the same day.

On 23 April 2015, Detainee Islam filled out a request form, complaining about the incident (Blue Request Form 14173). The complaint was investigated on 23 April 2015. No further action was required."

44. I accept Mr Goggin's evidence. It is consistent with the facts disclosed in the plaintiff's evidence, but not the plaintiff's characterisation of those facts. The incident appears to result from a minor operational oversight and resulted in no adverse consequences. It does not evidence or support an allegation by the plaintiff that he has been discriminated against.

45. The plaintiff's evidence in relation to this was:

That Officer CO1 Goggin has previously said to the Plaintiff 'when are you going to join I.S Isa?' in a highly inappropriate fashion on more than one occasion, even after he was verbally requested not to.

I deny that I have ever said to Detainee Islam "When are you going to join I.S., Isa?" referred to at paragraph 3 of his affidavit of 2 July 2015.

I do not recall ever having referred to Detainee Islam by his first name; it is my practice to address detainees by their last name. On that basis I was surprised that he accused me of using that particular form of words. They are not the form of words I would use.

I do not remember ever having a conversation about Islam with Detainee Islam. I do not remember ever having a conversation with him about his religious beliefs.

I do not remember ever having a conversation with Detainee Islam about "I.S." or Islamic Extremists generally.

I do not remember Detainee Islam ever asking me not to discuss religion generally, or Islam specifically, with him.

I do not recall other detainees making comments to Detainee Islam about his religion.

47. In cross examination, Mr Goggin denied ever asking the plaintiff about Islam.

48. There is no contemporaneous record of this alleged incident. It has been denied on oath by Mr Goggin. Mr Goggin appeared to me to be a straightforward witness. The cross examination of him did not, in my view, in any way adversely affect the reliability of his evidence. I consider it quite possible, having regard to the animosity towards Mr Goggin demonstrated by the plaintiff, that Mr Goggin has responded to the plaintiff in a manner which, with the benefit of hindsight may have been less than ideal. However, I cannot find on the balance of probabilities that that has been the case or that he said the words that the plaintiff attributes to him.

49. The plaintiff's evidence in relation to this allegation was:

Officer Goggin was present when other inmates yelled out to the Plaintiff, 'he's a terrorist' and did not take any action to address or document the incident.

50. Mr Goggin did not specifically address this allegation in his affidavit. The allegation was not put to him during the course of cross examination.

51. It is not possible, on the basis of the plaintiff's evidence, to make any finding as to when this incident occurred. On the assumption that Mr Goggin was present and heard other inmates yell out to the plaintiff, whether or not any action was required or any documentation of the incident was appropriate, would involve, in the context of the Management Unit, an exercise of judgment. There is nothing in the plaintiff's evidence to indicate that, if the incident occurred, Mr Goggin's judgment was exercised inappropriately. There is no evidence that the plaintiff made any complaint or request about any such incident, even though the plaintiff was obviously familiar with the capacity to make a request to the custodial officers.

Allegation 14: Inmate let out of cell (Detainee Request Form 15707)

52. Detainee Request Form number 15707 is dated 27 November 2014. It records the plaintiff's request as:

Officer Goggin yesterday (26 Nov 14) in the pm hours informed me the policy was that all detainees were to be in their cell, on the phone or in the outside exercise yard during their [indecipherable] time out. Yet at 1620-1640 hrs an inmate spent 10 min talking loudly to another detainee outside my door. Suggest Officer Goggin is counselled regarding consistency in applying rules - the same rules have to apply to everyone. Feel free to check this on camera.

53. The supervisor (CO2) recorded the following comment:

The changes in the MU are recent and will be consistent in the near future. There will always be situations when for operational practicalities it may "appear" to a Detainee that it is not perfect. I will have a discussion with the officer. CO3 for info/comment.

54. The area manager (CO3 Baynham) noted the detainee's comments. The request was marked as approved and the form was shown to and signed by the plaintiff on 29 November 2014.

55. During cross-examination, Mr Goggin said that CO3 Frame gave a direction that all detainees were to exercise outside. He said that had he noticed a detainee come back in he would "put them back outside". Mr Goggin said he treated all detainees the same and there had in fact been a big issue with other detainees over directing them to go outside.

56. The evidence was limited in that there was no plan in evidence showing the location of staff and detainees at the point where the detainees were meant to be exercising outside. It is thus difficult to assess the suggestion, implied by the plaintiff's allegation, that Mr Goggin should have identified the other detainee and sent him back outside. The evidence does not establish that the protocols applicable in the Management Unit were deliberately infringed. Further, they do not establish that any infringement of the protocols was other than as a result of the "operational practicalities" relating to the operation of the Unit. The evidence does not establish that there was differential treatment because of the plaintiff's religious convictions or that there was any intentional differential treatment of the plaintiff.

Allegation 15: Intercom testing (Detainee Request Form 17669)

57. The allegations of the plaintiff are contained in detainee request form 17669, dated 18 February 2015.

58. The complaint made by the plaintiff is recorded as follows:

On the 16th Feb 15 (Monday) at 1250 hrs and 1300 hrs Officer Goggin directed me to activate/test my intercom as Chubb had phoned him and told him to do it. I do not believe him as you cannot fault find an electrical circuit when you [unreadable] even in the building. This is bordering on discrimination/harassment, clearly Officer Goggin has personal issues with myself by lying to me in order to annoy me. Request this issue Case Noted and investigated (Did Chubb actually phone?)

59. An unidentifiable corrections officer then recorded:

cell intercoms in MU area routinely checked to ensure detainee safety. [Forward] to CO2 for comment.

60. The CO2 requests Mr Goggin to comment and Mr Goggin's comment is:

As per case note (99914 16/2/15) Andreas Wullen called me at approx 1300 to press sell 7 intercom.

61. A senior officer (Mr Heidtmann) then records "officer was complying with request to test intercom." The request was ultimately declined. The evidence of Mr Goggin was:

On 16 February 2015, we had a technical issue with the intercom system in the Management Unit. Regular detainee observation is an essential aspect of good order and security within the Management Unit, given the nature and circumstances in which prisoners are placed in the Management Unit. The intercom system is an important tool in performing observations. On that day, our systems administrator requested that the system be tested. I asked Detainee Islam to "buzz" the Control Room on the intercom system and advised that I had been asked to do so by our systems administrator. Detainee Islam refused to do so, stating words to the effect: "I was a radio technician in the Navy, I know that you do not need me to buzz the control room in order to do the testing. You are just fucking with my head."

62. He then referred to the completion of Detainee Request Form 17669 which I have set out above.

63. On this issue I accept the evidence of Mr Goggin. There appears to me to be nothing out of the ordinary with the request made by officer Goggin. There is no reason to not accept his evidence that he was requested to test the intercom. The fact that the plaintiff would refuse to cooperate and suspect that the officer was making such a simple request in order to discriminate against him or harass him as a result of "his personal issues with myself" demonstrates a degree of suspicion or paranoia on the part of the plaintiff. The exercise engaged in by making the complaint in the detainee request form demonstrates the plaintiff's willingness to invoke formal request or complaint mechanisms over issues which would not reasonably warrant them.

Allegation 16: Time out of cell (Detainee Request Form 17674)

64. Detainee Request Form 17674 records as the plaintiff's complaint:

On Saturday 28 Feb 15, on afternoon shift, Officer Goggin only allowed me 5 minutes time out, and then refused to allow me to clean my room (access to mop) by saying CO2 Shaka had informed me inmates were only allowed phone calls [in] time out. This, in my view is another example of CO1 Goggin's personal dislike of me and represents discrimination and harassment. Request I be treated the same as other inmates when he is on duty.

65. There are then comments by a corrections officer, the supervisor and the area manager which were respectively as follows:

CO1 Goggin was directed to secure yard at 1700 hrs and be re-deployed to health by A/CO2 Sciacca. CO2 to confirm.

CO1 Goggin was directed by myself to lock-in at 1700 due to a staff shortage.

I redirected MU officer to Health and ordered MU locked down to accomplish this. Blue forms are request forms not complaint forms. Please use the appropriate form.

66. The Detainee Request Form having been filled out in this manner was then shown to the plaintiff who signed it.

67. On this issue the evidence of Mr Goggin was as follows:

On 29 February 2015, we were short of staff in the afternoon and I was directed to secure the exercise yard in the Management Unit and redeploy to the Health Building at 17:00 hours. Detainee Islam was in the exercise yard at the time, having been let out a short time earlier."

68. He then refers to the completion of the request form and its investigation.

69. The evidence overwhelmingly reveals that the reason that the plaintiff was locked in his cell was as a result of a direction given by Mr Goggin's supervisor to do precisely that, because, due to a staff shortage, offices were required to be redeployed to a different section of the prison. The plaintiff was told precisely this at the time, but chose not to believe it and instead to imagine a conspiracy against him by Mr Goggin. It is notable that, notwithstanding the circumstances disclosed on the completed detainee request form, that the plaintiff then chose to put forward this incident in this Court as one demonstrating discrimination against him.

Allegation 17: Location of exercise (Detainee Request Form 15727)

70. Detainee Request Form 15727, dated 23 December 2014, records the plaintiff's request as:

On the afternoon of 22 Dec 14, Officer Goggin informed me exercise had to be undertaken outside - then later on other detainees (including detainee Nguyen) were allowed to exercise inside - my concern is rules are not being applied equitably and this may be in breach of the ACT discrimination act - Suggest Officer Goggin is counselled regarding this issue (again).

Detainee was correctly informed that exercise is to be undertaken outside in fair weather. Detainees are only allowed inside if weather is inclement.

72. The plaintiff was informed that his request had been declined and signed the request form on 23 December 2014.

73. There is nothing in this request which indicates that there was discrimination on improper grounds against the plaintiff.

Allegation 18: Restriction of television channels (Prisoner Request Forms 5948, 5950, Detainee Request Form 15706)

74. Prisoner Request Forms 5948, 5950 and Detainee Request Form 15706 all relate to the availability of television channels on a television which appeared to be located in the plaintiff's cell. In relation to each of the forms, the only copy that was in evidence was the plaintiff's carbon copy version, which either did not contain correctional officer comments or included illegible records of those comments. The request in Prisoner Request Form 5948, dated 22 November 2014, was:

Noticed today my TV has mysteriously been installed with a PIN (ID#). Also the last few days has resulted in me not being able to access certain channels. I don't know who has placed the PIN # on my TV. But I want it removed ASAP so I can access all channels. Would suggest a Philips screwdriver to remove the back and remove the battery would fix the problem.

75. There appears to be a comment on this form that the CO1 will speak to somebody about that request, but no other entries are legible on the form.

76. The request in Prisoner Request Form 5950, dated 27 November 2014, was:

Spoke to Officer Goggin this morning about my TV - Someone has placed a PIN # on the TV and restricted my channels (cannot access ABC) I showed Officer Goggin all of this and he told me 'no one will fix it anyway'. I do not know why my ABC channels have been removed but it seems to me bordering on harassment and discrimination to not request activities remove the PIN so I can access all channels on my TV.

78. Detainee Request Form 15706, dated 27 November 2014, records the plaintiff's request as:

Yesterday (26 Nov 14) spoke to Officer Goggin about my TV [illegible] still restricting my functions - I have now lost the ABC channels for 5 days and now Channel 7 for 2 days. Goggin said all TVs in the jail are the same and experiencing the same problems. I asked him to confirm that in writing - he refused. I want the PIN removed or my TV replaced, or this matter investigated - this matter of restricting allowed TV channels is clear discrimination and harassment - I have done nothing wrong to be punished in this way.

79. The corrections officer comments are "forward to activities to get PIN changed or replacement T.V."

80. Mr Goggin gave oral evidence about this issue. His evidence was that televisions in the whole of the Management Unit suffered the same problem, namely missing the ABC and some other channel. He had obtained information from another officer at the prison that there were some upgrades that involved taking the aerial from the Management Unit and using it elsewhere and that was the source of the problem. The plaintiff put to Mr Goggin that he had removed the channels from the plaintiff's television. Mr Goggin denied that he did and said he would not even know how to do it.

81. On this issue I accept the evidence of Mr Goggin. There is no evidence that would support the plaintiff's assertion that Mr Goggin was somehow responsible for deliberately interfering with the plaintiff's television. It appears to me to be more likely that it was some institutional issue such as that described by Mr Goggin that led to the television channels becoming temporarily unavailable.

Allegation 3: Officer Fior allows detainee out of cell

82. The evidence of the plaintiff in relation to this was:

On the 25 December 14 I submitted and inmate request form (# 15731) detailing a very similar incident when CO1 Fiorre [reference should be to Fior] let another inmate out of his cell while my cell door was open and the other inmate (who I had argued with repeatedly) walked to my door and insulted me. At that time I wrote 'This is a clear breach of safety protocol - especially given my previous application # 15702 where I expressed possible safety concerns resulting from my move'. Given my security classification (Medium), my submitted paperwork detailing security concerns and the fact it takes two Offices to move me around the jail these lapses in procedure are unforgivable and could easily result in injury and / or death. How many times do some Officers have to be warned to take reasonable care before they begin to act competently and exercise their responsibilities regarding duty of care and discrimination (a failure to treat all inmates in the same way)?

On 24 Dec 14 - 1700 hrs Officer Fiorre allowed the inmate from Cell 12 to approach my open cell and engage me in conversation even though we are both listed as Not mixing! This is a clear breach of Safety Protocol - especially given my previous Application # 15702 where I expressed Safety concerns resulting from my move. CO2 Demello stated he would Case Note this incident & I suggest the Officer is briefed on protocol & procedure. Feel free to check CCTV of this incident.

84. The request form notes that the above was case noted on 24 December 2014.

85. The text of the case note is referred to at [140 (a)] below.

86. The evidence of Mr Fior was that he did not recall the incident referred to in the plaintiff's affidavit.

87. Having regard to the contemporaneous complaint made by the plaintiff and the absence of any evidence to the contrary, I find that there was an occasion on 24 December 2014 when an inmate approached the plaintiff's open cell and engaged him in conversation. I cannot find that Officer Fior deliberately allowed that to occur. I accept that both men were somehow listed as being detainee's who should not mix.

88. I do not find that any action on the part of Mr Fior was deliberate or that it was in any way affected by the plaintiff's religion.

89. On this issue the evidence of the plaintiff was:

that CO4 Rushton approved an inmate request form from me (number 15379, dated 17 Mar 14) granting access to the Block buy up as I was accommodated at Management for accommodation reasons only. CO3 Baynham then later removed my access to this block buy up when I had done nothing wrong to deserve the removal of this access.

90. The Detainee Request Form number 15379 provides:

Discussed with Officer yesterday the issue of access to Block buy-up (as 3 other inmates have) as its [sic] been 3 months as of tomorrow (18 Mar 14) that I've been in management, he suggested I put in a request for a Review regarding my behaviour over that 3 month period.

91. The comment of the corrections officer (CO1) was:

last review 28th Jan 2014 Next was Due 11th Feb 2014 Detainees behaviour has been very good whilst housed in management unit, very polite.

92. The comment of the supervisor was "refer to CO4/ Operations Manager."

93. The comment of Deputy General Manager Rushton was "support request".

94. The plaintiff was informed that his request had been approved and signed the request form on 21 March 2014.

95. In the absence of any evidence to contradict the assertion that the plaintiff's buy-up was cancelled, I find that it was. There is no evidence about why it was cancelled or describing any protocols surrounding buy-ups or their cancellation. Having regard to the limited evidence on this issue, I am not satisfied that the cancellation of the buy-up reflects discrimination on the basis of the plaintiff's religion or was otherwise improper.

... the Plaintiff spoke to CO3 Frame about inmate Cassidy putting on a Muslim head covering and laughing, 'I'm a Muslim I get fucked up the ass' and that CO3 Frame did not investigate the matter or take any action against inmate Cassidy.

97. Mr Frame's evidence was that he did not recall the incident referred to in the plaintiff's affidavit. He said:

... I think it is unlikely that Detainee Cassidy would have made the comment to the plaintiff as the plaintiff used to intimidate Detainee Cassidy and there was some animosity between them while they were both housed in Cottage 1.

If Detainee Cassidy did make the comment to the plaintiff, in my experience it seems unlikely that the plaintiff would have made an informal complaint about it. The plaintiff would have in my experience lodged a written complaint as he has a good understanding of the complaints process at the AMC and undertakes this process on a regular basis.

98. It will be recalled that detainee Cassidy was the detainee seriously assaulted by the plaintiff which led to his conviction and sentence to an additional six years imprisonment.

Islam v Director-General Justice and Community Safety Directorate

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (319 paragraphs)

Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27 (25 February 2016)

Parties

Legislation Cited (8)