Knight v Minister for Corrections [2003] VSC 412

In Matters 4003/2003, 7945/2002, 4002/2003, 4596/2002

1 In any civilised society prisoners' rights are important. A measure of our society is how persons without power are treated by the law and by the community. Prisoners have a right to be treated properly and humanely within the necessary confines of the custodial system.

2 If prison administrators and officers are behaving properly and fairly, they should not be subjected to the burden and pressure of nit-picking complaints and enquiries. They do a very difficult job in very difficult circumstances. That job is hard enough without gratuitous burdens being placed upon them.

3 Before me are five proceedings in which Mr Julian Knight is the plaintiff. The proceedings, although distinct, raise related issues. They are:

(1) Proceeding no. 4003 of 2003 filed on 2 January 2003 in which the defendants are Mr Paul Spadano and Mr Andrew Walker, senior managers, Barwon Prison;

(2) Proceeding no. 7945 of 2002 filed on 30 October 2002 in which the defendants are Mr Andrew Walker and Ms Cheryl Smith, Operations Manager and Prison Supervisor respectively at Barwon Prison;

(3) Proceeding no. 4002 of 2003 filed on 2 January 2003 in which the defendant is Mr Bernard Clements, Operations Manager, Barwon Prison;

(4) Proceeding no. 4596 of 2002 filed on 27 February 2002 in which the defendants are the Correctional Services Commissioner (first defendant), Mr Andrew Walker, Operations Manager, Barwon Prison (second defendant) and Mr Bernard Clements, then Operations Manager, Barwon Prison (third defendant); and

(5) Proceeding no. 8621 of 2002 filed on 13 December 2002 in which the defendants are named as the Minister for Corrections (first defendant), the Correctional Services Commissioner (second defendant), and the Manager of Sentence Management (third defendant).

4 I have listed the five proceedings not in chronological order but in the sequence in which the Master fixed them and the parties have treated them.

5 Each of the five proceedings concerns incidents of the plaintiff's custody. The first four proceedings raise like matters. In those proceedings the plaintiff represented himself. I heard those proceedings together. Those proceedings seek relief in the nature of certiorari and mandamus, injunctions and declaration. In the fifth proceeding, which sought relief in the nature of certiorari and mandamus, the plaintiff was represented by Senior Counsel. I heard that proceeding separately. It is convenient to deal with all five proceedings in the one judgment.

6 The plaintiff is a serving prisoner having in 1988 pleaded guilty to seven counts of murder and 46 counts of attempted murder and having on 10 November 1988 been sentenced on each of the murder counts to life imprisonment with a minimum term before eligibility for parole of 27 years' imprisonment: R v. Knight.[1] On each of the counts of attempted murder the plaintiff was sentenced to ten years' imprisonment to be served concurrently with each other and with the sentences on the counts of murder. On the 1988 plea psychological evidence was received that the intelligence quotient of the plaintiff was 132, putting him in the top three percentile of the population.

7 I turn to the first four proceedings, those in which the plaintiff represented himself. Each seeks prerogative or like relief. The plaintiff drew the documents himself.

8 In the first proceeding, no. 4003 of 2003, the factual substratum was the opening of legal practitioner mail by Barwon Prison officers on or about 18 December 2002, being in particular two letters namely a December 2002 letter to the plaintiff from the Darebin Community Legal Centre and a December 2002 letter to the plaintiff from the Supreme Court (the latter strictly speaking not within s.47(1)(m))(iii). By originating motion the plaintiff seeks:

"1. An order in the nature of a mandatory injunction directing the defendants to only inspect legal mail sent to or by the plaintiff according to the procedure laid down in s.47B of the Corrections Act 1986 Victoria."

Second, by leave, amended and in substitution of the original second relief sought:

"2. A declaration that certain legal mail was seized and opened contrary to s.47(1)(m)(iii) of the Corrections Act 1986."

9 The statutory rights of prisoners are set out in s.47 Corrections Act 1986. Those rights are additional to prisoners' rights at common law or under other legislation (s.47(2)). These rights are important and are to be secured and implemented. They are not to be deflected, avoided or ignored.

10 Relevant to the first proceeding, prisoners' rights as to sending and receiving mail are enshrined legislatively in s 47(m) and (n) Corrections Act 1986. Particularly in relation to legal mail, s.47(1)(m), inserted by s.32(b) Corrections (Custody) Act 2001 to operate from 1 March 2002, provides:

"(m) Subject to ss.47A and 47B the right to send letters to and receive letters from the following people without those letters being opened by prison staff - ... (iii) a legal practitioner representing the prisoner or from whom the prisoner is seeking legal advice."

11 In the scheme introduced by s.33 of that amending Act, provision was made for letters reasonably suspected by the Governor of containing an article or substance that could pose an immediate danger to any person to be disposed of (s.47A), threatening letters to be stopped or censored (s.47D), and a letter register to be kept (s.47E). By s.47B(1), if the Governor reasonably suspects that a letter may contain an unauthorised article or substance (but not within s.47A), a procedure is laid down for the handling of such mail. By s.47B(2)(b) the Governor, in the presence of the prisoner and a representative of the legal practitioner (if legal mail) may open and inspect the letter but must not read or censor the letter. By s.47C a prison officer may open and read any letter not within s.47(1)(m) to determine its safety. All these provisions are very sensible, secure prisoners' rights while ensuring safety, and are to be complied with, not avoided.

12 The evidentiary material pertaining to this matter is contained in affidavits of the plaintiff affirmed on 24 December 2002, 3 January 2003 and 11 August 2003; and in affidavits of Ms T.A. Bedson, Casual Prison Officer, sworn 3 February 2003, Ms L.A. White sworn 4 February and resworn 13 February 2003, Prison Officer Mr J.P.M. Bell sworn 4 February 2003, Mr M. Brandich, Senior Prison Officer, sworn 4 February 2003, Mr A.D. Walker, Operations Manager, sworn 4 February 2003, Mr S. Batchelor, Chief Prison Officer, sworn 4 February and re-sworn 13 February 2003, and Mr K. Bell, Prison Officer sworn 4 January 2003; and in exhibits to some of those affidavits. Ms Bedson and Ms White also gave evidence before me, as did Mr J.C. Taylor, Mail Officer, Barwon Prison, and Mr R.A. Kaylor-Thompson, Prison Officer, Barwon Prison.

13 The plaintiff was cross-examined on the four proceedings but on the one occasion, at the end of all the other evidence in the proceedings, as a matter of fairness to the plaintiff.

14 Numerous exhibits were tendered in evidence before me in that proceeding.

15 The second proceeding, no. 7945 of 2002, relates to the finding in the cell of the plaintiff on 21 August 2002 of one three-inch metal length or nail and one eight-inch metal length or nail, sharpened and concealed in pens in the plaintiff's cell. In that matter the plaintiff seeks:

"An order in the nature of certiorari quashing the decisions of the first defendant made at a General Manager's hearing on 19 September 2002 that the plaintiff had committed the prison offence of breaching Regulation 44(1)(e) of the Corrections Regulations 1998 Victoria and sentencing him to seven days' loss of privileges on the ground that:

(b) the disciplinary officer (the second defendant), did not, when investigating the alleged prison offence in question, give the plaintiff an opportunity of making an explanation before charging the plaintiff with the prison offence, in contravention of s.50(2) of the Corrections Act 1986;

(c) the second defendant did not give the plaintiff written advice of the charge, include details as to the alleged offence, in contravention of regulation 46(a) of the Regulations; and

(d) the first defendant did not invite the plaintiff to make a plea concerning penalty, in contravention of the plaintiff's common law rights to natural justice."

16 Section 50(2) Corrections Act 1986 provides:

"The disciplinary officer must make proper investigation of all alleged prison offences which come to the officer's notice and must give the prisoner alleged to have committed an offence an opportunity of making an explanation."

"A charge for a prison offence must be in writing ..."

18 Regulation 44(1)(e) Corrections Regulations (1998) provides:

(e) have in his or her possession an article or substance not issued or authorised by an officer ... or permitted under the Act or these Regulations."

"A Governor ... must give the prisoner written advice of -

20 The evidentiary material pertaining to this matter is contained in affidavits of the plaintiff affirmed on 23 October 2002 and 7 January 2003; and in affidavits of Ms T. Egan, Prison Officer, sworn 10 December 2002, Mr T. Wyley, Prison Officer, sworn 10 December 2002, Mr M. Reeves, Prison Officer, sworn 12 December 2002, Ms M. Psaila, Acting Senior Collator, sworn 12 December 2002, Mr A. Walker, Operations Manager, sworn 13 December 2002, and Ms C. Smith, Prison Supervisor, sworn 13 December 2002; and exhibits to some of those affidavits. Mr Reeves, Mr Wyley, Ms Smith and Mr Walker gave evidence before me. Mr Knight was cross-examined as I have said. Numerous exhibits were tendered in evidence before me in that proceeding.

21 The third matter, proceeding no. 4002 of 2003, derives from the finding on 22 November 2002 of scissors secreted in Mr Knight's socks in his cell. In that proceeding, by originating motion the plaintiff originally sought, first:

"An interlocutory prohibitory injunction restraining the defendant from enforcing the penalty of seven days' full loss of privileges, to commence on 23 December 2002, imposed on the plaintiff at a General Manager's hearing on 19 December 2002, until such time as the second remedy sought by the plaintiff is determined by the court."

At the hearing before me the plaintiff did not pursue this remedy as the event had overtaken it. He did pursue the second remedy sought, namely:

"(2) An order in the nature of certiorari quashing the decision of the defendant at a General Manager's hearing held at Barwon Prison on 19 December 2002 that the prison charge laid against the plaintiff was proven and to impose a penalty of seven days' full loss of privileges to commence on 23 December 2002, on the grounds that: (a) no offence had been committed. (b) the plaintiff was denied procedural fairness in that the defendant received evidence relevant to the charge prior to the hearing of the charge in the absence of the plaintiff, and without notice to the plaintiff at the time that the evidence was received or subsequently at the hearing of the charge, in contravention of s.53(2) of the Corrections Act 1986, Regulations 48(a) and (c) of the Corrections Regulations 1998 and the plaintiff's common law right to natural justice. (c) the decision was based upon a mistake of fact; and (d) the defendant acted ultra vires in that he imposed a delayed penalty when no statutory provision existed which allowed for the imposition of such a penalty."

22 In relevant part, s.53(2) Corrections Act 1986 provides:

"At a hearing a Governor must allow the prisoner reasonable opportunity to call relevant witnesses and to cross-examine the person conducting the case against the prisoner and witnesses called by that person."

23 Regulation 48 of the Corrections Regulations 1998 provides:

(a) the informant must present evidence to support the charge; and ...

(c) the prisoner or the prisoner's representative must be given a reasonable opportunity to cross-examine the informant and the informant's witnesses (if any) ..."

24 The evidentiary material pertaining to this matter is contained in the affidavits of the plaintiff affirmed on 20 December 2002 and 9 February 2003; and of Mr B. Clements, Operations Manager, sworn 3 February 2003 and exhibits thereto, Mr G. Martin, Senior Prison Officer, sworn 4 February 2003, and Mr B. Freeman, Prison Officer, sworn 4 February 2003. Mr Clements gave evidence before me. Mr Knight was cross-examined as I have said. Various exhibits were tendered in evidence before me in that proceeding.

25 Finally, in this group of four there is proceeding no. 4596 of 2002 deriving from three separate incidents including the finding on 21 July 2001 of a sharpened prison issue knife that had been secreted between pages in a magazine in the cell of the plaintiff. In that proceeding by originating motion the plaintiff seeks (after extension of time which I granted):

"An order in the nature of certiorari quashing the decisions of the third defendant made at a Governor's hearing on 9 May 2001, that the plaintiff had committed the prison offences of breaching Regulation 44(1)(g) and 44(1)(o) Corrections Regulations 1998 Victoria and sentencing him to 14 days' loss of privileges on each charge, on the grounds that: (a) no offence had been committed, or alternatively, that if an offence had been committed, the plaintiff had been charged twice for the one offence. (b) 72 hours' notice of the time, date and place of the Governor's hearing was not given to the plaintiff in contravention of s.53(1) of the Corrections Act 1986 Victoria and Regulation 44 of the Regulations; and (c) written advice of the procedure to be adopted at the Governor's hearing was not given to the plaintiff, in contravention of Regulation 46 of the Regulations.

An order in the nature of certiorari quashing the decisions of the third defendant made at a Governor's hearing on 4 August 2001, that the plaintiff had committed the prison offences of breaching Regulation 44(1)(e) twice, and sentencing him to three days' loss of privileges on the first charge and seven days' loss of privileges on the second charge on the grounds that:

(a) 72 hours' notice of the time, date and place of the Governor's hearing was not given to the plaintiff in contravention of s.53(1) of the Act and Regulation 46 of the Regulations; and

(b) the informant did not produce the two items alleged to have been in the possession of the plaintiff in order to support the two charges, in contravention of Regulation 48(a).

An order in the nature of certiorari quashing the decisions of the second defendant made at a Governor's hearing on 15 August 2001, that the plaintiff had committed the prison offence of breaching Regulation 44(1)(e) and fining him in the sum of $40, on the ground that:

(b) 72 hours' notice of the time, date and place of the Governor's hearing was not given to the plaintiff in contravention of s.53(1) of the Act and Regulation 46 of the Regulations; and

(c) written advice of the procedure to be adopted at the Governor's hearing was not given to the plaintiff, in contravention of s.46 of the Regulations.

(5) A declaration that the withdrawal of prisoner's privileges pursuant to s.53(4)(c) or 54A(1) of the Act does not include the imposition of solitary confinement or detention in other than normal accommodation.

26 In relevant part s.53 Corrections Act 1986 provides:

"(1) If a charge is to be heard ... the Governor of the prison must-

(a) not less than 72 hours before the hearing .. give notice to the prisoner of the time, date and place of the hearing ...

(4) If at a Governor's hearing the Governor finds that the prisoner is guilty of the prison offence or the prisoner admits the truth of the charge, the Governor may impose any of the following penalties -

(c) withdrawal of one or more of a prisoner's privileges for a period not exceeding 14 days for each prison offence committed, but not exceeding in total 30 days."

27 Under s.54A(1) it is provided that if the Secretary is satisfied of the matters there set forth, the Secretary may withdraw one or more of the prisoner's privileges for such period as the Secretary thinks fit.

28 By Regulation 44(1)(e) Corrections Regulations 1998 it is provided that:

(e) have in his or her possession an article ... not issued or authorised by an officer ... or permitted under the Act or Regulations ...

(g) ... send or receive a letter ... containing an article or substance the prisoner knows to be an unauthorised article or substance; ...

(o) commit an act or omission that is contrary to the good order, management or security of the prisoner or the security of the prisoners."

(a) the informant must present evidence to support the charge ..."

31 The evidentiary material pertaining to this matter is contained in an affidavit of the plaintiff affirmed on 1 February 2002; and of Mr A. Walker, Operations Manager, sworn 26 April 2002, Ms S. Heffernan, Prison Supervisor, sworn 26 April 2002, Mr D. Hall, Prison Officer, sworn in April 2002 (undated), Mr D. Roach, Acting Correctional Services Commissioner, sworn 29 April 2002, and Mr B. Clements, Operations Manager, sworn 30 April 2002 and exhibits to that latter affidavit. Before me, Mr Walker, Mr Clements and Mr B.F. Money, Director of Prisons, gave evidence. Mr Knight was cross-examined as I have said. Various exhibits were tendered in evidence in that proceeding.

32 In relation to those first four matters I consider that the complaints of the plaintiff are wholly unmeritorious. The plaintiff's complaints, in my view, are unjustified and at best nit-picking. The conduct of the defendants was justified. In nearly all instances it was entirely correct and at worst, it was at times, technically deficient.

33 In the first matter, proceeding no. 4002 of 2003, the opening of legal practitioner mail (from the Supreme Court - strictly speaking not within s.47(1)(m)(iii) - and the Darebin Community Legal Centre and both envelopes visibly so) just before Christmas 2002, it is plain on the evidence before me which I accept of the defendants' witnesses, that the letters in question were opened in innocent error in a highly busy Christmas period. Each of the defendants' witnesses called in this proceeding impressed me as honest and straightforward. It is further plain that the officers were properly trained and instructed as to their lawful duty not to open legal mail. Further, there existed a properly recorded process as to the procedure and tracing of legal mail. The matter of opening was fully disclosed. The plaintiff was not denied access to the documents. There was no policy of snooping on the plaintiff's legal mail. There is no evidence that the plaintiff's legal mail generally was opened; on the contrary, the evidence is it was not opened. The majority of the plaintiff's legal mail was not opened (T.249 l. 10-14). There was no recklessness involved. In my view, the evidence clearly establishes that the mail was opened in entirely innocent error in a busy Christmas period.

34 That is looking at the matter on the merits. Both on the merits and given the restricted enquiry that normally one makes on an application such as this, I am entirely satisfied that the plaintiff has not been wronged. I refuse the relief sought and dismiss the motion.

35 On the second matter, proceeding no. 7945 of 2002, the sharp metal lengths or nails found concealed in the plaintiff's pens on 21 August 2002, I am satisfied on the evidence given before me that an offence by the plaintiff was committed. The objects - notably one 3 inch sharpened metal length or nail and one 8 inch sharpened metal length or nail, each concealed in a pen - were found in the plaintiff's cell on 21 August 2002.[2] On that day the plaintiff was given the opportunity before being charged of making an explanation of the presence of the items in his cell: Prison Supervisor Smith's affidavit para. 4. Although Ms Smith's evidence at T.120 l.29-121 l. 5 appears absolute it should be read in the light of her affidavit para. 4 and her re-examination at T.127 l.12-14. It may be that Ms Smith understood the question at T.120 l.25-29 to relate to her personally giving the opportunity, which she did not. Mr Wyley did in her hearing. That is sufficient. The plaintiff was then charged with an offence contrary to Regulation 44(1)(e) Corrections Regulations 1998 of having an unauthorised article in his possession (exhibit D). The charge set out (in stamp form) the offence, following the words of Regulation 44(1)(e) (incorrectly stated to be Regulation 44(e)). It did not specify the objects found. It specified the time, date and place of finding. The plaintiff knew precisely what the charge was and what it related to; although he has feigned blindness in relation to that. Notice was given by the stamp on the charge sheet. In my view it would be preferable in future if the offending items were typed or written out on the charge sheet also, as indeed Mr Shepherd acknowledged in submissions. The hearing was to be on 25 August 2002 but was adjourned to 19 September 2002. The plaintiff was informed of the adjournment and adjourned date and consented to it: s.53(1)(b) Corrections Act 1986. At the hearing the objects were produced.[3] The procedure following at the hearing is set out in the affidavit of Presiding Governor Walker of 13 December 2002[4] and other parallel affidavits. I accept the evidence of the officers Reeves, Wyley and Smith who gave evidence before me and who impressed me as truthful. I accept the evidence of Mr Walker who gave evidence before me who impressed me as truthful and fair. His answer at T.130 l. 23-26 was plainly a logical exposition upon the premise articulated by the plaintiff in the plaintiff's question, not a statement that at the inquiry on 19 September 2002 he had a closed mind. The plaintiff was given, in my view, a full opportunity of making an explanation as required by s.50(2) Corrections Act 1986. The Governor invited the plaintiff to say what he wanted to say in explanation and in mitigation.[5] There is no sequential requirement in s.50(2) of opportunity to make an explanation between finding of guilt and penalty, unlike in a court of law. Regulation 49(c) requires the Governor upon a plea of guilty to "invite the prisoner to make a plea concerning penalty". There is no such requirement in Regulation 48 (procedure on plea of not guilty). However after a plea of not guilty and a finding of guilt, generally, as a matter of fairness, a Governor should give that opportunity to a prisoner, unless the conduct or explanation by the prisoner at the hearing or other circumstances make the opportunity inappropriate. The plaintiff was not denied natural justice and was not wronged by the inquiry. I refuse the relief sought in that matter likewise.

36 Next, in proceeding no. 4002 of 2003, the scissors secreted in the plaintiff's socks, I am satisfied on the evidence before me that the scissors were unauthorised at and not issued at Barwon Prison, which was where the prisoner was held and where the scissors were found and where they could be dangerous. Any earlier conversation with Mr W. Decis as to the position at Port Phillip (T. 160 l. 27-31) was inconsequential because the test was the status of the object at Barwon, not Port Phillip. There was ample evidence before the Governor to support the finding.[6] The Governor's hearing was fair and proper: Mr Clements' affidavit, para. 9. I accept the evidence of Mr Clements given before me. Security of the prison was a matter of the highest priority. Consecutive penalties were competent both in common law and under the Act. Clearly it would detract from the basal duty of the Governor under s.20 to take all reasonable steps for the security of the prison (ss.(1)) and for the safe custody and welfare of the prisoners (ss.(2)) if, no matter how persistent and continuous the offending by an individual prisoner, the Governor could only impose concurrent sentences. There is no provision in the Corrections Act 1986 similar to s.16(1) Sentencing Act 1991 as to the presumption of concurrency. The provisions of sections 16 and 17 Sentencing Act 1991 do not apply. These regulatory offences are akin to summary offences.[7] At common law there was power to order consecutive sentences for misdemeanours but not for felonies. I refuse the relief sought in that matter.

37 Finally of these first four matters, proceeding no. 4596 of 2002. This proceeding relates to three separate incidents: first, the provision on 1 May 2001 by the plaintiff to another prisoner for removal from Barwon Prison of two computer disks; second, the finding on 21 July 2001 in the plaintiff's cell of a sharpened prison-issue knife secreted in a magazine; and third, the finding on 7 August 2001 in the plaintiff's cell of a pocket radio issued in and to another unit (Acacia Unit). As to the 1 May 2001 matter (the computer disks) the plaintiff on 3 May 2001 was, on the one charge sheet, charged with an offence contrary to regulation 44(g) (correctly 44(1)(g)) following the words of the regulation, as to sending an unauthorised article. The Governor's hearing was stated to be on 7 May 2001. On 7 May the plaintiff was told that the hearing would be on 9 May, which it was. The plaintiff on 9 May 2001 at the Governor's hearing pleaded guilty to this first offence. The second offence charged was an offence contrary to regulation 44(o) (properly 44(1)(o)) of committing an act contrary to the good order, management and security of the prison. The plaintiff at the 9 May 2001 hearing pleaded not guilty to that charge. It was competent to specify the two offences on the one charge sheet. It was competent to lay two charges, as the actions of the plaintiff had two distinct characters: one the physical act and the second the security risk. As I have previously said, it would be better to state in writing the relevant fact of the offence as well as state the regulatory offence; but that does not invalidate the proceeding: the plaintiff knew precisely what was charged, and he pleaded differentially to the charges. The proceeding at the Governor's hearing on 4 May 2001 is set out in Mr Clements' affidavit paragraph 9. The plaintiff was fairly and properly treated. The unauthorised sending out of computer disks was a serious breach of security. As to notice, the plaintiff was given 72 hours notice (s.53(1)(a)) of the proposed hearing on 7 May; at the hearing on 9 May the plaintiff did not request an adjournment or demur from the hearing proceeding then and there (the plaintiff being articulate); and the plaintiff suffered no prejudice thereby. There is nothing in the plaintiff's now complaint about notice. As to the lack of written statement of procedure, it is true that no such statement was provided as it should have been under Regulation 46(b). But the plaintiff well and fully knew, from previous familiarity, the procedure to be followed, which procedure also was orally stated at the commencement of the hearing; and the plaintiff was not prejudiced or disadvantaged in any way by the written deficiency. In the circumstances this is a technical deficiency only. However a Governor henceforth should ensure that the procedure is in print and provided prospectively to prisoners. As to the second matter, the 4 August 2001 Governor's hearing as to the finding on 21 July 2001 in the plaintiff's cell of a sharpened prison-issue knife secreted in a magazine (and a $5 note, inconsequential before this Court) like considerations apply to notice and I shall not repeat them. The knife was prison issue but its sharpening was not and was a serious breach of security. The circumstances of the Governor's hearing are set out in Mr Clements' affidavit paragraphs 11 and 14. It would have been wholly inappropriate for a demonstration of the sharpened knife to have been performed in the limited spatial confines of the hearing room. The Governor under Regulation 45(c) was entitled to be informed in such manner as he thinks appropriate. The evidence to support the charge (Regulation 48(a) was oral and the knife was inspected by Mr Clements outside the hearing room. This was proper in the circumstances. In my view the procedure followed was fair and regular. As to the third matter, the finding on 7 August 2001 in the plaintiff's cell of a pocket radio issued in another unit (Acacia Unit), this matter falls far short of the two other serious security breaches (the computer disks and the sharpened knife). However for the proper and safe conduct of a prison, officers need to know where items are and regularity needs to be observed in that regard. As to notice of the Governor's hearing on 15 August 2001, like considerations as stated above in relation to the 4 May hearing apply and I shall not repeat them. Likewise as to the lack of written notice as to the procedure of the hearing. The offence (of having the pocket radio in Banksia Unit where it was not authorised) contrary to Regulation 44(1)(e) was made out.[8] In conclusion as to these three matters the subject of proceeding 4596 of 2002, the complaints of the plaintiff have not been made out, either to the strict level appropriate for the relief he seeks or on the merits (which in fairness to all the parties I also have considered on the evidence). I refuse the relief sought in each instance.

38 As to the declaration sought by the plaintiff in proceeding no. 4596 of 2002 (paragraph 5 of the motion), the grounds for this also have not been made out and I refuse it. Like considerations arise in the fifth proceeding and I shall deal with the no. 4596 declaration issue when giving my reasons in the fifth proceeding, to which I now turn.

39 In the fifth matter, proceeding no. 8621 of 2002, the plaintiff was represented by senior counsel. This was heard in the same timeframe as the other four matters but separately and apart from them. In this matter the first defendant is named as the Minister for Corrections, the second defendant the Correctional Services Commissioner, and the third defendant the Manager of Sentence Management.

40 By summons and originating motion of 13 December 2002, the plaintiff seeks:

"An order in the nature of certiorari quashing the decision to classify the plaintiff as a long-term placement in Acacia High Security Unit at Barwon Prison contrary to Regulation 22(1) Corrections Regulations 1988, the principles of sentence management, and Operational Procedures 1.17, 2.2 and 2.3 of CORE Operating Procedures;"

"an order in the nature of mandamus commanding the defendants to re-classify the plaintiff to a normal accommodation unit."

By amendment made by my leave on 25 August 2003 the relief in each instance sought was amended to comprehend separation as well as classification.

41 The evidentiary material pertaining to this proceeding is that of the affidavits of the plaintiff affirmed 10 December 2002, 12 January 2003 and 12 February 2003; and of Ms N. Sahinidis, solicitor, sworn 5 February 2003, Mr Kelvin Anderson, Correctional Services Commissioner, sworn 18 February 2003, Mr Dennis Roach, Director of Sentence Management, sworn 18 February 2003 and a further affidavit of his of 19 July 2003, and of Mr Trevor Pickering, Assistant Manager Sentence Management Unit, sworn on 21 July 2003; and exhibits to some of those affidavits. Before me, Mr Roach and Mr Pickering gave evidence. Mr Knight was cross-examined. Various exhibits were tendered in evidence in that proceeding.

42 Initially, there were four decisions which were complained of but upon argument ultimately this narrowed down to the final one of 20 December 2002. The inquiry related to the finding on 18 November 2002 of a sharp metal spike secreted behind a cork board in the plaintiff's cell in Banksia Unit at Barwon Prison. The first decision was on 18 November 2002, a pro tem decision by Mr Roach to place the plaintiff into the Acacia Unit by way of separation until the matter was investigated. On 22 November 2002 a temporary decision was made by the Sentence Management Panel to like effect by way of classification. On 20 December 2002 a decision on the recommendation of the Sentence Management Panel in relation to long-term placement of the plaintiff was made by Mr Roach, Director of Statewide Services Corrections, Victoria and the third defendant, to classify the plaintiff as a long-term placement in a management unit. That management unit was Acacia Unit, within Barwon Prison which itself is a maximum security prison. A management unit involves a much higher ratio of staff to prisoners than other units in a prison. It is the 20 December 2002 decision which is the decision now the subject of consideration.

43 By s.21(1) Corrections Act 1986 the Governor of a prison -

"is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoner."

By s.20(1) an officer in charge of a prison -

"must take all reasonable steps for the security of the prison ..."

and by s.20(2) -

"must take all reasonable steps for the safe custody and welfare of the prisoners."

It is thus evident that under the legislation (as at common law) there is upon Governors and officers a duality of obligation: security and welfare. Each is important. Welfare is an objective entity and to be assessed in the light of the necessary custodial setting. These are serious and onerous responsibilities.

44 Division 6 of the Corrections Regulations 1998 deals with classification. Division 7 deals with separation. They are different Divisions. Regulation 21 deals with classification and constitutes Division 6. Regulation 22 deals with separation and constitutes Division 7. Regulation 22(1) provides:

"(1) The Secretary may, in writing, order the separation of a prisoner from other prisoners for a specified term if -

(a) the separation is necessary or desirable for the safety of the prisoner or other persons, or the security, good order or management of the prison; and

(b) the prisoner is only separated from other prisoners while the safety of the prisoner or other persons, or the security good order or management of the prison is at risk."

Regulation 22 separation is a physical matter able to be effected orally. Regulation 22 is permissive. Regulation 21 classification is a more structured, articulated and considered process than Regulation 22 separation. The differential procedures reflect the differential incidents and purposes.

45 Ultimately, the issue here devolves upon the final decision, that of 20 December 2002. It was submitted on behalf of the plaintiff in relation to that decision that it was ultra vires and was in breach of natural justice.

46 In my view the submissions made on behalf of the plaintiff in this matter are entirely misconceived. Classification is an holistic process as indeed are sentencing and the administration of the sentence imposed. Classification is not merely a physical, geographical matter but is an holistic process involving a raft of considerations. In my view the submission made on behalf of the plaintiff that classification is a process whereby prisoners are given security rankings is inadequate and erroneous. The evidence of the third defendant makes that plain. Mr Roach stated that the plaintiff should have been given an A1 security rating and that that would have been justified and appropriate. I do agree with counsel for the plaintiff that the regime is a very strict regime. On the other hand it was properly put by counsel for the defendants that it is necessary in the operation of a prison to have a sufficiently tight level of security to contain prisoners who are of the gravest risk to the security of the prison and to the security of the community.

47 Regulation 22 is made under s.112(1)(f) _Corrections A_ct. There is no intention in that provision that once the separation power is exercised no other separation may follow as a consequence of classification. Section 112(1)(f) refers to the power to make regulations with respect to:

"how, where, for how long and in what circumstances prisoners ... may be separated from each other."

48 In reviewing the arguments on behalf of the plaintiff I have found of special use three journal articles and I commend their authors: Gillian Triggs "Australia's Ratification of the International Covenant on Civil and Political Rights: its domestic application to prisoners' rights" (1982) 3 Human Rights Law Journal 64; Terry Birtles "Prisoners' Rights in Australia" (1989) 22 A.N.Z. Journal of Criminology 202; and Richard Edney "Judicial deference to the expertise of correctional administrators; the implications for prisoners' rights" (2001) 7 Australian Journal of Human Rights 1991. Bearing in mind the criteria in the cases and the matters set forth in those articles, I have listened carefully to the submissions on behalf of the plaintiff that he is subject to cruel and unusual punishment. In my view he is not. There is a regime of monthly review. The plaintiff exercises daily with other prisoners. He is permitted to make telephone calls and to receive a weekly visit. He can undertake self development programs. He is not in solitary confinement. The placement on separation of the accused was made by prison authorities upon proper data because he was considered an unacceptable risk in the light of his immediate and entire history.[9] An holistic view was adopted and in my view properly adopted. It would be inadequate to adopt any atomised or partial view of the material. I consider that under the general principles of judicial review there is no basis upon which the material and decision could properly be called to review. Indeed I am satisfied, given the history of the plaintiff both within the prison and the sentences which were imposed upon him, and the requirements, which are heavy requirements, upon the defendants to safely and properly and securely run a prison, that the decisions made were wholly justified. There is a heavy responsibility upon the defendants to safely and properly run a prison. In my view they exercised that responsibility properly.

49 As to the suggestion that the statement of the Minister may have had some effect, it is plain from Mr Roach's evidence that he was not contacted by the Minister or anyone from the Minister's office in relation to the placement of the plaintiff and Mr Roach exercised his decision in accordance with relevant and proper criteria. I accept the evidence of Mr Roach in this and generally. Mr Roach impressed me as a responsible, straight and honest person with a proper sense of his responsibilities and of the welfare of prisoners.

50 The decision of 18 November 2002 was a decision for a specified term. It was made on Monday 18 November to run to Friday 22 November 2002. There was substantial compliance with the Act in the circumstances there arising and any nit-picking complaints in relation to that, in my view, have no substantial validity.

51 As to the decision on 20 December 2002 there was no denial of natural justice.

52 In proceeding no. 8621 of 2002 the real issue is the ultimate decision of 20 December 2002, which as I have said I consider was properly made. Certainly in terms of the criteria applicable to judicial review and intervention it has not been shown to be erroneous. On the contrary I am affirmatively satisfied it was correct. For those reasons I refuse the relief sought in this proceeding.

53 Like considerations as in paragraph 48 above apply to the declaration sought by the plaintiff in proceeding no. 4596 of 2002 and which for like reasons I refuse. In that matter the privileges were removed under s.53(4)(c) Corrections Act 1986, not s.54A(1).

54 I conclude as I began. In any civilised society prisoners' rights are important. Prisoners have a right to be treated properly and humanely within the necessary confines of the custodial system. There is nothing in these cases to show that the plaintiff has been treated otherwise.

55 For those reasons I refuse the relief sought in each of these five proceedings and in each instance dismiss the summonses and motions therein.

[1] [1989] VicRp 62; (1989) V.R. 705.

[2] Egan affidavit para. 3, Wyley affidavit para. 4, Reeves affidavit para. 3 and exhibit MPR1.

[5] Walker affidavit, para. 5, 4th last line.

[7] Henderson v Beltracchi & Ors [1999] VSC 135; (1999) 105 A. Crim. R. 578 at 589 per Mandie J.; semble Steward & Anor v Crowley (2001) VSCA 201 at para. 28 fn. 11 per Winneke P.

[8] Walker affidavit para. 16 and evidence T.194; Clements affidavit para.17; and Heffernan affidavit para.16.

[9] Mr Roach's persuasive reasons, and the plaintiff's persistent history of security and other prison breaches, are set out in Mr Roach's affidavit of 19 July 2003 at paragraphs 18-21 (18 November 2002 decision and continuing) and paragraphs 29-32 (20 December 2002 decision).