The first order
3The parties' competing positions have to be considered in the light of the applicable statutory regime and the approach discussed in Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87 - 8). The Court must generally exercise restraint in reviewing managerial decisions made within a prison, unless for example where bad faith or improper purpose is shown.
4Mr Patsalis is kept in custody in accordance with the provisions of the Crimes (Administration of Sentences) Act 1999 ('the Act'), which includes:
"10 Segregated custody of inmates
(1) The Commissioner may direct that an inmate be held in segregated custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to:
(a) the personal safety of any other person, or
(b) the security of a correctional centre, or
(c) good order and discipline within a correctional centre.
(2) The general manager of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given.
(3) A segregated custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre.
(4) Subsection (3) is subject to section 15.
11 Protective custody of inmates
(1) The Commissioner may direct that an inmate be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate.
(2) The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so.
(3) The general manager of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the protective custody direction was given.
(4) A protective custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre.
(5) Subsection (4) is subject to section 15.
12 Effect of segregated or protective custody direction
(1) An inmate subject to a segregated or protective custody direction is to be detained:
(a) in isolation from all other inmates, or
(b) in association only with such other inmates as the Commissioner (or the general manager of the correctional centre in the exercise of the Commissioner's functions under section 10 or 11) may determine.
(2) An inmate who is held in segregated or protective custody:
(a) is not to suffer any reduction of diet, and
(b) is not to be deprived of any rights or privileges other than those determined by the Commissioner (or the general manager in the exercise of the Commissioner's functions under section 10 or 11), either generally or in a particular case, and other than those the deprivation of which is necessarily incidental to the holding of the inmate in segregated or protective custody."
...
14 Information concerning review of segregated or protective custody direction
As soon as practicable after an inmate is directed:
(a) to be held in segregated custody under section 10, or
(b) to be held in protective custody under section 11 (other than at the inmate's request),
the general manager of the correctional centre is to provide the inmate with information concerning the inmate's rights to a review of the segregated or protective custody direction.
15 Transfer of inmate held in segregated or protective custody
(1) If an inmate held in segregated or protective custody under a segregated or protective custody direction given by the general manager of a correctional centre is transferred to another correctional centre, the segregated or protective custody direction applies:
(a) in relation to the correctional centre to which the inmate is transferred (the receiving correctional centre), and
(b) in relation to the conveyance of the inmate to the receiving correctional centre, including custody of the inmate in any correctional centre in which the inmate is held during the course of being conveyed to the receiving correctional centre.
(2) Within 72 hours after the arrival of the inmate at the receiving correctional centre, the general manager of the receiving correctional centre must review the segregated or protective custody direction, having regard to the grounds referred to in section 10 or 11, and give one of the following directions:
(a) a direction revoking the segregated or protective custody direction,
(b) a direction confirming the segregated or protective custody direction,
(c) a direction confirming the segregated or protective custody direction but amending its terms.
(3) A direction given under subsection (2) has effect according to its terms.
(4) A segregated or protective custody direction that is subject to a direction under subsection (2) (b) or (c) is, on and after the giving of that direction, taken to be a segregated or protective custody direction given by the general manager of the receiving correctional centre.
(5) A direction by the general manager of a receiving correctional centre revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section.
16 Review of segregated or protective custody direction by Commissioner
(1) The general manager of a correctional centre where an inmate is held in segregated or protective custody must submit a report about the segregated or protective custody direction to the Commissioner within 14 days after the date on which the direction is given (the relevant date), regardless of whether the segregated or protective custody direction was given by the Commissioner or by the general manager of a correctional centre.
(2) Within 7 days after receiving the report, the Commissioner must review the segregated or protective custody direction and give one of the following directions:
(a) a direction revoking the segregated or protective custody direction,
(b) a direction confirming the segregated or protective custody direction,
(c) a direction confirming the segregated or protective custody direction but amending its terms.
(3) If the direction is confirmed, the general manager of the correctional centre where the inmate is held in segregated or protective custody must submit a further report about the direction to the Commissioner within 3 months after the relevant date, and within each subsequent period of 3 months after that period.
(4) Within 7 days after each occasion on which the Commissioner receives any such further report, the Commissioner must review the segregated or protective custody direction and give one of the directions referred to in subsection (2) (a)-(c).
(5) The confirmation of a segregated or protective custody direction by the general manager of a correctional centre under section 15, or by the Review Council under section 22, does not affect the requirements for reporting about and reviewing a segregated or protective custody direction under this section.
(6) A direction by the Commissioner revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section.
(7) In this section:
report , in relation to a segregated or protective custody direction, means a report recommending whether or not the segregated or protective custody direction should be revoked, confirmed or amended.
Mr Patsalis' position
5Mr Patsalis' application was supported by three affidavits, to which were annexed various documents. He also gave oral evidence about matters deposed to in an affidavit sworn by Mr Aaron Baril, who is employed in the Crown Solicitor's Office.
6Particulars of his claim have been provided by Mr Patsalis. He seeks to establish that his life and safety are under threat; that his psychological and mental health and wellbeing have been harmed; that he has been regularly victimised, because of a belief held by other prisoners that he is an ex-police officer; and that he has reported ongoing threats and victimisation since his incarceration in 1999.
7Mr Patsalis is an inmate at Junee Correctional centre. On 14 October 2011, Mr Patsalis says that he was separated from the pod where he had been housed and placed in the segregation pod of the Correctional Centre, because he was then considered to be under threat from other inmates. This was the result of a request he had made on 13 October, when another inmate told other prisoners that Mr Patsalis was an ex-police officer. That day he had raised a complaint about failures to deal with a number of 'Inmate Request Forms', which he had submitted and had not been registered, in accordance with the applicable practice. He was asked to make a further request, which he supplied on the basis that it was not to be disclosed to other inmates. He believes that this request was not honoured.
8Mr Patsalis understands that there are a number of non-association alerts in place in respect of him and various other prisoners and that this was why he was placed into segregation. He has also since been informed that he would be reclassified and moved to another facility.
9Mr Patsalis is concerned that his reclassification on such a transfer will not be properly undertaken and that it would not be suitable for him to be housed at any other correctional centre, other than Junee or the Dawn de Laos Centre. This concern rests in part on numerous non-association orders which apply to him. He is concerned about the consequences which would follow for his safety, if transferred.
10Mr Patsalis also understands that in order for him to be placed at the Dawn de Laos Centre, he would have to be reclassified from a 'B' to a 'C1' security classification. The alternative, being housed elsewhere in protective custody as a Protection Restriction Non Association ('PRNA') inmate, Mr Patsalis opposed as involving a regime of solitary confinement, which was cruel and not healthy for his mental state and which would involve him losing a number of rights and privileges to leisure, work and access to the telephone and education.
11Mr Patsalis relies on the provisions of s 263 of the Act, to argue that there is a mandatory legal obligation falling upon the defendant to act in good faith in determining matters such as his classification and placement, given also the duty of care which it has for him, his safety and mental and physiological wellbeing. He submitted that obligation supported the grant of the relief sought.
The Crown's position
12The Crown opposed the orders sought.
13On Mr Baril's evidence, Mr Patsalis is now classified as a PRNA inmate and is the subject of protective custody directions made under s 11 of the Act. That direction is due to be reviewed on 13 January 2012. Otherwise, Mr Patsalis is managed as a 'Special Management Area Placement' ('SMAP') inmate. The SMAP area is an area where inmates who are vulnerable, fearful and have similar needs are housed. Inmates such as fomer police officers, paedophiles and other sex offenders and transsexual inmates are housed in that area. SMAP inmates may choose whether to remain in the area at all times, or to associate with other inmates. Mr Patsalis explained that he in fact preferred to be housed as a SMAP inmate at Junee, rather than as a PRNA inmate.
14Mr Patsalis' classification is also due to be reviewed by the Commissioner. The Serious Offender's Review Council has recommended his reclassification to C1. Such a reclassification would permit Mr Patsalis to be transferred to the to Dawn de Laos Centre. That is a matter to be determined by the Commissioner.
15The Crown submitted that it is apparent that Mr Patsalis has already achieved part of the relief which he seeks by his summons, which I described in the July judgment as:
"2. Amongst other relief, orders in the nature of mandatory injunctions and mandamus to compel the defendant to house him in a facility which houses inmates who are ex-police officers, ex-prison officers, ex-lawyers and the like, at an identified correctional facility are sought. In the alternative, orders compelling the defendant to give him 'Protections Restriction Non Association' inmate status is sought."
16It was urged that the Court would accept that Mr Patsalis' safety is a matter of ongoing concern and that steps would not be taken by the Commissioner, which would jeopardise his safety. In the circumstances, the onus falling on Mr Patsalis, to permit the grant of the interlocutory order sought, had not been met.
The order must be refused
17The test which Mr Patsalis must satisfy is concerned both with the question of whether there is a serious question to be tried, and the balance of convenience. Given his changed circumstances, that there remains a serious question to be tried, is questionable, but in any event, the balance of convenience does not favour the grant of the relief sought.
18On the evidence, Mr Patsalis achieved aspects of the final relief which he pursues, in practical terms, by application of the statutory regime to which I have referred. Also to be considered is that s 23 of the Act gives the Commissioner the power to order the transfer of prisoners for reasons there specified. The case put for the Crown is that if Mr Patsalis is reclassified as C1, consideration will then be given by the Commissioner as to his transfer to the Dawn de Laos Centre, as he seeks. Otherwise there is no present intention to transfer him away from Junee, prior to the hearing of these proceedings. It follows that his concerns about transfer and the risks which would follow, cannot now sensibly be accepted as a proper basis for the relief sought.
19Section 263, on which Mr Patsalis relies, provides:
"263 Exclusion of personal liability
(1) An act or omission:
(a) by a body constituted by this Act, or
(b) by a person who is a member of such a body or a member of staff of such a body, or
(c) by a correctional officer or by any other person on whom functions are conferred or imposed by or under this Act, or
(d) by any person acting under the direction of a body or person referred to in paragraph (a), (b) or (c),
does not subject a person referred to in paragraph (b), (c) or (d) personally to any action, liability, claim or demand if the act or omission was done or omitted to be done in good faith in the administration or execution of this Act or of any other Act that confers or imposes any functions on a correctional officer.
(2) In particular, such a person is not personally liable in respect of:
(a) anything properly and necessarily done by the person in the course of carrying out a medical examination or medical test if the person believed on reasonable grounds that the examination or test was authorised or required to be carried out by this Act or the regulations, or
(b) the disclosure, in accordance with the regulations, of information obtained in the course of any such examination or test.
(3) In this section:
correctional officer includes a person holding an authority under section 240 to perform custodial duties."
20I cannot see that this provision provides a basis for the interlocutory relief sought.
21On the evidence, I am not able to conclude that the order sought in respect of his placement should be made. At the moment Mr Patsalis may imminently achieve the final relief sought in his summons, namely transfer to the Dawn de Laos Centre. That his safety is at risk in the meantime, has not been established. Mr Patsalis has the concerns he has explained, but it seems to me that the evidence shows that at Junee those concerns have been addressed, given his current placement. That is presumably why he presses for an order requiring that he not be transferred from Junee, if he is not relocated to the Dawn de Laos Centre, pending hearing of his application. Such a transfer will shortly come under active consideration and there is no intention otherwise to transfer him away from Junee.
22In those circumstances, it must be concluded that the onus falling upon Mr Patsalis in respect of the order sought has not been met and should be refused.