Knight v General Manager, HM Prison Barwon [2017] VSC 135

2 By application filed 6 January 2016, the applicant seeks leave, pursuant to s 54 of the VP Act, to commence an action seeking a declaration in the following terms:

The strip-searching of visitors to Victorian prisons on the basis of positive ion scanning readings is in breach of s 10(b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), as it amounts to degrading treatment and serves no law enforcement or other legitimate purpose.

3 The applicant deposes that on 9 November 2015, an elderly visitor (the visitor) attended the HM Prison Barwon at Lara to visit him in the Acacia High Security Unit. The visitor was instructed to pass through an Ion Scanner and was then told that the scanner detected illicit drugs on the visitor's person. The visitor was then asked to submit to a strip search and informed that refusal would result in the visitor being required to leave the prison. The visitor submitted to the strip search and no illicit substances were found. The visitor was then allowed to attend a non-contact 'box' visit with the applicant.

(a) the positive ion scan did not provide a reasonable basis for a suspicion that the visitor was concealing an unauthorised substance;

(b) the positive ion scan result did not justify a strip search of the visitor; and

(c) in the circumstances the unjustified strip search of the visitor amounted to degrading treatment in breach of s 10(b) of the Charter.

5 The material available to the Court relevant to this application was:

(a) affidavit of the applicant affirmed 30 December 2015; and

6 The above material enables me to determine this application in accordance with s 63(1) of the VP Act. I will determine the application without conducting an oral hearing. There are no exceptional circumstances which render it appropriate in the interests of justice that an oral hearing occur.

7 Section 56(1) of the VP Act requires an applicant subject to a general litigation restraint order to disclose by affidavit the following details when making an application for leave to proceed:

(a) details of each application for leave to proceed made by the person;

(b) details of each application for leave to commence or continue a proceeding made by the person under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;

(c) details of each interlocutory application made or proceeding commenced or conducted by the person -

(i) that is a vexatious application or a vexatious proceeding; or

(ii) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(iii) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);

(iv) all other facts material to the application, whether in support of or adverse to the application, that are known to the person.

8 The applicant requires the leave of this Court in order to commence the proposed proceeding. Pursuant to s 55 of the VP Act the Court may grant leave only if satisfied that:

(a) the proceeding is not a vexatious proceeding; and

(b) there are reasonable grounds for the proceeding.

9 A 'vexatious proceeding' is defined in s 3 of the VP Act as:

(a) a proceeding that is an abuse of the process of a court or tribunal;

(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c) a proceeding commenced or pursued without reasonable grounds;

(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or to achieve another wrongful purpose.[2]

10 The applicant bears the onus of proving the proposed proceeding is not vexatious and that it has reasonable grounds.[3] The latter element requires that the applicant establish a real or reasonable prospect that his claim for relief can succeed.[4]

Corrections Act 1986 and Corrections Regulations 2009

11 In s 5 of the Corrections Act, 'scanning search' is defined to mean:

A search of a person ... using an electronic or other device, during which the person is not touched.

Pursuant to s 44 a visitor must, if asked, submit to a search for drugs by an electronic or mechanical device. Section 45 of the Corrections Act provides that a prison Governor 'may for the security or good order of the prison' require a person wishing to enter the prison 'to submit to search and examination of the person ...'. Pursuant to s 39, the Governor of a prison may prohibit a visitor from entering or remaining in a prison '... if the Governor believes on reasonable grounds that the person's entry into the prison or visit to the prisoner might endanger the good order or security of the prison or the safety of the prisoners'.

12 The Corrections Regulations 2009 contain the following definitions:

scanning search means a search of a person, or of the property of a person, using an electronic or other device, where the person is not touched;

strip search means a search of a person that requires -

(a) the person to remove any or all of the person's clothing; and

(b) an examination of the person's body and of that clothing -

but does not require the person to be touched by the person or persons conducting the search.

Regulation 33(1) deals with unauthorised substances or articles, and provides:

(1) For the purposes of the management, good order and security of a prison, entry of the following unauthorised substances or articles to a prison is prohibited -

...

(b) drugs of dependence; ...

(1) Before conducting a search of a person other than a prisoner under section 45 of the Act, the prison officer authorised by the Governor must -

(a) inform the person of his or her authority to conduct the search; and

(b) inform the person of the reason for the search in that particular case; and

(c) inform the person that the person may refuse the search; and

(d) inform the person of the consequences of refusal, which may include -

(i) refusing the person's participation in contact visits with a prisoner; or

(ii) refusing any visits by the person with a prisoner for a fixed time; or

(iii) refusing any visits to any prison or any prisoner for a fixed time.

(2) If a person other than a prisoner consents to a search, the prison officer authorised by the Governor must -

(a) ask the person if he or she has in his or her possession an article or substance which may threaten the good order or security of the prison; and

(b) ask the person to produce any article or substance referred to in paragraph (a); and

(c) provide the person with the opportunity to respond to the requests referred to in paragraphs (a) and (b); ...

(5) The Governor, or an officer authorised by the Governor, may direct a prison officer or an escort officer to strip search a person under this regulation at any time if the Governor or authorised officer suspects, on reasonable grounds, that the person is concealing anything that -

(a) is an unauthorised substance or article; ...

(6) A strip search of a person under this regulation may be conducted immediately after any scanning search, garment search or pat down search.

14 The applicant relied on various policy directives regarding the use of ion scanning technology in prisons and the conduct of strip searches in prisons. I understand the applicant to submit that these policy directives are relevant to the exercise of authority to require the visitor to undergo a strip search. The policy directives include:

- Commissioner's Requirement 1.2.3 Strip Searches in Prisons;

- Commissioner's Requirement 1.2.5 Use of Ion Scanning Technology;

- Commissioner's Requirement 1.4.3 Maintenance and Testing of Technological Systems in Prisons;

- Commissioner's Requirement 3.2.1 Management of Visits to Prisoners;

- Deputy Commissioner's Instruction 3.04 Visits - Personal - Professional - Adult Parole Board; and

- Deputy Commissioner's Instruction 1.05 Searches and Patrols.

15 These policy documents were not available to the court. In an affidavit sworn by him the applicant deposes that paragraph 3.1 of Commissioner's Requirement 1.2.5 notes that 'Ion scanning equipment is not an absolute indication that a prisoner or person has, or has had, a prohibited substance in his or her possession', and that paragraph 3.2 of the same document notes that 'A positive reading must be considered on a case-by-case basis'.

The Charter of Human Rights and Responsibilities Act

16 Section 10(b) of the Charter provides:

10 Protection from torture and cruel, inhuman or degrading treatment

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

(c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

17 The application for leave to commence proceedings filed 6 January 2016 is accompanied by an affidavit affirmed on 30 December 2015. The applicant was invited to file further written material addressing the following questions which go to salient points of law regarding the standing of the applicant and the adequate formulation of the legal question:

(a) What is the real (as opposed to hypothetical) question between you and the Defendant that you wish to have determined? What is the real consequence, for you, of the determination of that question?

(b) What is the real (as opposed to hypothetical) interest to you in making this application?

18 In response to this invitation the applicant filed an outline of submissions dated 10 June 2016. Included in that outline is the following submission:

The [applicant's] visitor was told that [a ban] would be imposed if [the visitor] did not undergo a strip search. The [applicant's] visitor agreed to be strip searched due to this threat... It is submitted that, given the [applicant's] life sentence, such a threat amounts to a threat that the visitor would not be permitted to ever again see the [applicant].

I understand this to be a submission that the applicant's interest lies in the potential that, if the visitor did not submit to a strip search, the applicant may not receive further visits from this particular visitor.

19 The applicant was also invited to address matters which must be disclosed by a person subject to a litigation restraint order so as to address the s 56 requirements of the VP Act.

20 The applicant deposes that prior to filing the application which is the subject of this judgment, he wrote a letter of complaint to the Victorian Ombudsman regarding the strip search of the visitor, and that by return letter dated 23 November 2015 the Ombudsman's office stated that the strip search of the visitor was reasonable and that the complaint would not be investigated. The applicant deposes that he also wrote a letter of complaint, dated 30 November 2015, to the proposed defendant regarding the strip search, and that the written response dated 16 December 2015 noted that there are 'a number of options available following a positive Ion Scanner indication' and, in relation to the strip search of the applicant's visitor, the defendant was 'satisfied that the outcome was appropriate'.

21 Mr Knight's affidavit of 30 December 2015 lists eleven judgments of this court relating to applications made by him since 16 October 2014. In each of the listed applications, leave to proceed was refused. This affidavit does not comply with the requirements of s 56(a) - (c) of the VP Act as it does not disclose the details of those applications as required by the VP Act. Further, the accompanying affidavit does not include details of the applications for leave to commence proceedings made under s 21 of the Supreme Court Act 1986,[5] nor does it disclose any applications for leave to commence proceedings made prior to February 2015. Finally, the application only cursorily engages with requirement s 56(d) of the VP Act in stating that it is a 'unique application with a unique set of facts'.

22 Notwithstanding the applicant's failure to provide comprehensive information as to his previous leave applications as required by s 56 of the VP Act, I am satisfied that the application under consideration raises new matters which have not been the subject of any previous application by the applicant.

23 There are a number of hurdles which would need to be overcome by the applicant for him to establish a real or reasonable prospect that his claim for relief can succeed. First, the applicant does not, by the declaration he seeks, identify a real legal controversy between the proposed parties. The declaration is expressed in very broad terms. It is not directed to the circumstance of the strip search of the visitor or to any other matters in issue between the parties. The rights identified by the terms of the declaration which might hypothetically be breached are not those of the applicant but of unidentified visitors to Victorian prisons. In the Commissioner, Corrections Victoria v Knight & Anor,[6] Nettle JA, with whom Maxwell P agreed, stated:

A proceeding for declaration must involve the determination of a question that is more than abstract or hypothetical and the declaratory relief must be directed to a real legal controversy. An applicant for declaratory relief does not have standing if the declaration is 'claimed in relation to circumstances that [have] not occurred or might never happen'. The facts alleged must show that there is 'a substantial controversy between the parties having adverse legal interests of sufficient immediacy and reality to warrant' the declaration sought.

The proposed proceeding for declaratory relief does not satisfy the requirements identified by Nettle JA.

24 Second, the provisions of the Corrections Act and Corrections Regulations do not support the proposition that strip searches conducted on the basis of positive ion scan readings serve 'no law enforcement or other legitimate purpose'. The Governor of a prison is responsible for the management, security and good order of the prison.[7] For that purpose unauthorised substances, which include drugs of dependence, are prohibited.[8] A person who wishes to enter or remain in a prison may be required to submit to a formal search.[9] An ion scan is a search to detect the presence of drugs and is a formal search as contemplated by s 44(2) of the Corrections Act. The ion scan is conducted specifically to ensure that unauthorised substances such as drugs of dependence are not brought into the prison, and more generally for the management, security and good order of the prison. For that same general purpose the Governor of a prison may, in addition to the ion scan, require a visitor to submit to a search and examination of the visitor's person.[10] Common sense and the scheme of the Corrections Act suggest that an ion scan reading which positively indicates the presence of an unauthorised substance on a visitor is a matter which would properly be taken into account by a Governor of a prison when considering whether or not to require, in addition to the ion scan search, that the visitor submit to a strip search. This conclusion is reinforced by reg 71(6) which provides that a strip search may be conducted immediately after a scanning search. The applicant relies on the acknowledgement in Commissioner's Requirement 1.2.5 that a positive ion scan is not an absolute indication that the person scanned has in his or her possession an unauthorised substance to support a submission that a positive ion scan reading does not justify proceeding to require a strip search. There is no merit in that submission. If a positive ion scan was an absolute indication that a visitor to a prison had an unauthorised substance in his or her possession, there would be no need for a strip search. The scan result would justify the Governor in prohibiting that visitor from entering or remaining in the prison. Because the positive ion scan does not give an absolute indication, but does raise the possibility of possession by the visitor of an unauthorised substance, the Governor has the option of requiring a strip search. In those circumstances the Governor might properly require a strip search for the security or good order of the prison.

25 Third, the evidence does not establish that every strip search required on the basis of a positive ion scan reading but otherwise conducted in accordance with reg 71 of the Corrections Regulations amounts to degrading treatment for the purposes of the Charter. Section 10(b) of the Charter is modelled on Article 7 of the International Covenant on Civil and Political Rights[11] (ICCPR) which states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Section 10(b) also shares textual similarities with Article 5 of the Universal Declaration of Human Rights[12] and Article 3 of the European Convention on Human Rights[13] (the Convention) both of which state:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

There is no definition of what constitutes 'cruel, inhuman or degrading' treatment or punishment in the Charter, ICCPR or Convention. In Ireland v The United Kingdom,[14] the applicants alleged that their ill-treatment at the hands of British interrogators contravened Article 3 of the Convention. In rejecting that contention the European Court of Human Rights held:

... ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim, ect.[15]

In Wainwright v United Kingdom,[16] the European Court of Human Rights reasoned that conducting a strip search is not in and of itself degrading. The Court described the test for degrading treatment as follows:

In considering whether a treatment is "degrading" within the meaning of [Article] 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with [Article] 3... the suffering and humiliation must ...go beyond the inevitable element of... humiliation connected with a given form of legitimate treatment... for example, measures depriving a person of their liberty.[17]

The circumstances and manner in which the search is conducted are likely to be relevant when considering whether a strip search amounts to 'degrading' treatment. In Wainwright the Court unanimously found that requiring a strip search of a prison visitor following a positive ion scan detecting illicit drugs on her person may be considered as a legitimate preventive measure'[18] and does not contravene Article 3 of the Convention if it is 'conducted with rigorous adherence to procedures and all due respect to their human dignity'.[19]

where the manner in which a search is carried out has debasing elements which significantly aggravate the inevitable humiliation of the procedure, [Article] 3 has been engaged: for example, where a prisoner was obliged to strip in the presence of a female officer, his sexual organs and food touched with bare hands.[20]

In Wainwright 'it was clear that the prison officers had failed to comply with relevant regulations and procedures' when carrying out the strip search.[21] However, 'the behaviour complained of fell short of the minimum level of severity prohibited by [Article] 3'.[22] In Wotton v Queensland (No 5),[23] Mortimer J reasoned that for treatment to be regarded as degrading:

It must involve more than official conduct which is excessive or disproportionate. For example, excessive use of pepper spray by police was held not to be "degrading" in Falwasser v A-G [2010] NZHC 410; [2010] NZAR 445. Handcuffing a person for a court appearance may not amount to degrading treatment if there is adequate justification: Raninen v Finland (1998) 26 EHRR 563.[24]

The foundation of the declaration sought by the applicant is that every strip search of a visitor to a Victorian prison conducted on the basis of a positive ion scan reading amounts to degrading treatment of the visitor in breach of s 10(b) of the Charter. The applicant provided no evidence in support of that proposition. The cases to which I have referred do not support the conclusion that every strip search of a visitor to a Victorian prison required on the basis of a positive ion scan reading constitutes degrading treatment of the visitor in accordance with s 10(b) of the Charter.

26 For the above reasons, I conclude that the applicant has not discharged the onus of establishing that the proposed proceeding is not a vexatious proceeding and that there are reasonable grounds for the proposed proceeding. The application to commence a proceeding will be dismissed.

[1] Attorney-General (Victoria) v Knight [2004] VSC 407 (19 October 2004); Attorney-General (Victoria) v Knight [2014] VSC 549 (16 October 2014); Attorney-General (Victoria) v Knight [2016] VSC 488 (30 August 2016).

[2] Vexatious Proceedings Act 2014, s 3.

[3] Knight v Thomas [2015] VSC 283 [25] (3 July 2015).

[4] Knight v Money [2015] VSC 105 [12] (24 March 2015); Knight v Thomas [2015] VSC 283 [21] (3 July 2015).

[5] Knight v Department of Justice [2016] VSC 7 [8] (27 January 2016).

[6] [2010] VSCA 203 [13] (13 August 2010) (citations omitted).

[7] Corrections Act s 21(1).

[8] Corrections Regulations reg 33(1).

[9] Corrections Act s 44(1).

[10] Corrections Act s 45(1)(b).

[11] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[12] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd session, 183 plen mtg, UN Doc A/810 (10 December 1948).

[13] European Convention on Human Rights, opened for signature 4 November 1950, ETS No 5 (entered into force on 3 September 1953).

[23] [2016] FCA 1457 (5 December 2016).