Peninche v McDonnell and Secretary to the Department of Justice [1999] VSC 221

5. Mrs Hampel, one of Her Majesty's counsel who appeared for both applicants informed the court that the first applicant's name is Carlos Cabal and the second applicant's name is Marco Pasini. The applicants are related by marriage.

8. The first named respondent is employed by Group 4 Correction Services Pty Ltd as the Director of Port Phillip Prison where the applicants are currently held in custody pending the outcome of extradition proceedings in the Magistrates' Court and proceedings in the Federal Court. The plaintiffs have been denied bail and are likely to remain in custody for some time.

11. The second named defendant is the Secretary to the Department of Justice. By virtue of s.4(1) of the Corrections Act 1986 all persons detained in custody in a prison are deemed to be in the custody of the Secretary.

14. The remedy sought in the Originating Motion and on the Summons is for declaratory relief and orders as follows:

"1. A declaration that it is unlawful to apply 'restraints' to the applicants other than in accordance with Regulations 14(1) and (2) of the Corrections Regulations 1998 (Statutory Rules No. 52 of 1998). 2. A declaration that the application of restraints upon the applicants on the basis alone that they have been classified as 'high security' is unlawful. 3. A declaration that the routine application of restraints upon the applicants without the respondent forming the belief on reasonable grounds that the application of the instrument of restraint upon the applicants is necessary to prevent the escape of the applicants or the assault of, or injury to, any person is unlawful."

18. By s.112 of the Corrections Act 1986, sub-s.(1) the Governor in Council may, subject to disallowance by Parliament, make regulations for or with respect to any of the following matters - paragraph (f): "How and for what purposes prisoners and people detained in police gaols may be placed in restraint and how, where, for how long and in what circumstances prisoners and people detained in police gaols or classes of prisoners and people detained in police gaols may be separated from each other".

21. Corrections Regulations 1988 (CR 1988) made under s.112 of the Act were revoked and replaced by Corrections Regulations 1998 (CR 1998) which came into operation on 12 May 1998. In neither the Act nor the regulations is "restraint" defined.

24. Division 3, Part 3, of CR 1998 regulations 13 to 16 are concerned with Restraint. The CR 1988 dealing with Restraint were regulations 35 to 39. The earlier regulations will be compared to the 1998 regulations later.

27. Regulation 13 - "Prescription of instruments of restraint and their manner of use" provides:

"A prison officer may apply an instrument of restraint to a prisoner only if -

(a) the instrument, or type of instrument, is approved by the Secretary; and

(b) the instrument is used in the manner determined by the Secretary."

34. Secretary means Secretary to the Department of Justice under the Public Sector Management Act 1992.

37. Regulation 14 - "Use of restraint during transport":

"(1) A prison officer may apply an instrument of restraint to a prisoner for the duration of a transfer of the prisoner under escort from one place to another if the Governor believes on reasonable grounds that the application of the instrument of restraint is necessary to prevent the escape of the prisoner or the assault of, or injury to, any person. (2) A prison officer may apply an instrument of restraint to a prisoner during a transfer of the prisoner under escort from one place to another if the prisoner's conduct during transfer has been such that it is reasonable to believe that the application of the instrument of restraint is necessary to prevent the escape of the prisoner or the assault of, or injury to, any person."

41. Regulation 15 is not relevant to this proceeding.

44. Regulation 16 - Report to Governor by prison officer -

"A prison officer must report to the Governor the use of an instrument of restraint on a prisoner as soon as possible after the instrument is applied to the prisoner."

48. Prior to 9 June 1999 the Secretary to the Department of Justice had not formally approved under regulation 13 of CR 1998 instruments of restraint for use by prison officers employed by the Office of Corrections now known as "CORE" - the Public Correctional Enterprise. The Secretary did so on 9 June, approving Handcuffs, Restraint Belts, Escort Belts, Hobbles and Body Chains and the manner of their use.

51. Regulation 35 of CR 1988 provided: "A prison officer authorised by a Governor may apply an instrument of restraint to a prisoner only if -

"(a) The instrument, or type of instrument is approved by the Director-General; and (b) the instrument is used in the manner determined by the Director-General."

55. The Director-General issued Director's Instruction No. 2.15 pursuant to Regulations 35-39 CR 1988 - "Subject. Use of Restraint".

58. By clause 1.1 instruments of restraint approved included handcuffs, restraint belts, hobbles and body chains.

61. By clause 1.2 the purpose of use of restraints included "the safe custody and welfare of prisoners".

64. By clause 1.3 the method of use of restraints was specified.

67. The first named applicant was arrested on 17 November and the second named applicant was arrested on 4 December 1998 pursuant to warrants issued under the Extradition Act 1988 (Cth). They are in custody without bail pending the hearing of extradition proceedings.

70. The applicants' solicitor made an affidavit in which he deposed neither applicant has a history of violence or of escaping from lawful custody. He deposed that he has observed them being brought into the Melbourne Custody Centre handcuffed to a waist belt and shackled around their ankles with a chain between the leg shackles. The applicants are embarrassed about being shackled and assert through their solicitor that the application of restraints is unlawful. The applicants have no prior criminal history.

73. Between 17 November 1998 and 31 March 1999 the applicants have been transported from Port Phillip Prison to courts to attend hearings on five occasions but restraints were not used until 15 February 1999. Transport is undertaken by the Security and Emergency Services Group, a unit of CORE, which is the public correctional enterprise. CORE is engaged by the Correctional Services Commissioner to transport prisoners. Shortly before the applicants leave the prison they are placed in the custody of escorting officers from the Security and Emergency Services Group who are responsible for their security and safety from and to the prison.

76. Within the office of the Correctional Services Commissioner (s.8A) is a unit called Service Management Unit (SMU). One of the functions of SMU is to classify prisoners - pursuant to Regulation 21 of the CR 1998 for security purposes. The applicants have been placed on a "high security escort list" to identify them as prisoners who pose in the assessment of the officers of the Secretary a greater security risk whilst in transit than other prisoners. Prisoners on the "high security escort list" are only taken from the prison by the Security and Emergency Services Group. This group is commanded by a Prison Governor, Mr W. Allgood.

79. Since 21 January 1999 the applicants have been on the "high security escort list" and are transported by the Security and Emergency Services Group.

82. Mr Allgood made an affidavit in which he deposed that, in his experience, the time of transporting prisoners by vehicle is a high risk of escape time. Mr Allgood deposed that from information provided to him he is aware that the applicants have evaded police wishing to execute warrants of arrest for offences allegedly committed in Mexico from, Mexico in September 1994, the United States of America, Switzerland, Monaco, France, Spain, Italy, the Dominican Republic, Argentina and Uruguay. From Uruguay the applicants came to Australia where they were arrested. The offences relate to embezzlement of US$700M and carry maximum penalties of 10 to 12 years' imprisonment.

85. Mr Allgood deposed that it is his responsibility to decide the level of restraint appropriate to each person being transported from the prison on the high security list. Mr Allgood deposed that he relies upon four grounds in determining the level of restraint appropriate for the applicants.

1. Their ability to depart promptly from a number of countries to evade police arrest.

2. Their access to a considerable amount of money not accounted for.

3. Their access to a sophisticated telephone system operated via a computer.

4. Intelligence at Port Phillip prison that the applicants or their associates have offered money to those willing to effect their escape.

92. Mr Allgood deposes that he believes the full regime of restraints, a body belt attached to handcuffs and leg restraints attached between ankles is necessary to prevent the applicants escaping lawful custody.

95. Mrs Hampel submitted that the use of restraints is unlawful for three reasons.

29 First, there has been no approval of the use of restraints under Regulation 13 of the CR 1998 by the Secretary to the Department of Justice (prior to 9 June 1999).

99. On 9 June, the Secretary approved instruments of restraint for use by prison officers pursuant to Regulation 13, the argument of Mrs Hampel can only apply to events prior to 9 June.

102. Mrs Hampel submitted that, because the restraints applied to the applicants before 9 June had not been approved by the Secretary or any authorised delegate before they were used, no prison officer had the power or authority to apply them to the applicants or to direct a prison officer to apply them to the applicants in the period between 21 January and 31 March 1999.

32 Second, that the Governor of Port Phillip prison where the applicants are detained has not formed a belief on reasonable grounds that the application of restraints is necessary to prevent the escape of the applicants. "The Governor" referred to in Regulation 14, who has to form the requisite belief and give the direction, is the Governor of Port Phillip prison, Mrs Hampel submitted, and he has not formed a belief.

106. Mrs Hampel submitted that for the purposes of Regulation 14 Mr Allgood, who says he is a prisoner governor, is not "the Governor" and is not authorised to give a direction to a prison officer to apply restraints.

34 Third, Mr Allgood's belief that the application of restraints was and is necessary to prevent escape by the applicants is unreasonable in the circumstances and amounts to using his discretion out of an abundance of caution.

110. The first named applicant deposed that he is the Director of Port Phillip Prison, a correctional service provided by Group 4 Correction Services Pty Ltd, and plays no role in authorising any person to apply restraints to a prisoner being transported from the prison to a court.

113. Mr McDonnell believes that the applicants are not in the custody of the prison once they are placed in the custody of the escorting officers from the Security and Emergency Services Group.

116. Mr Wheelahan of counsel submitted that the first named respondent is not a necessary party and was joined out of an abundance of caution.

119. Mr Hurley of counsel, who appeared for the second respondent, submitted, in reply to Mrs Hampel's first point, that the primary source of power given to a Governor is ss.20 and 21 including an implied power to impose restraints. "Officer" is defined for the purposes of Part 5 to mean, inter alia, "A Governor; or a prison officer". An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners (s.20(2)). In Binse v. Williams (1998) 1 VR 381 the Court of Appeal referred to "positive obligations" imposed on a Governor and that implied in s.20(1) and (2) and s.21(1) is a power to impose restraints.

122. Mr Hurley submitted that Mr Allgood is a Governor for the purposes of the Corrections Act although he is not Governor of a particular prison (s.12). For the purposes of the Corrections Act a Governor means "the Governor of a prison" (s.3). Mr Allgood has been a Prison Governor since 16 September 1988. Since 4 September 1992, when Allgood was appointed Manager of the Security and Emergency Services Group, a position that can only be held by an appointed Governor, he has been empowered by Regulation 36 (SR 1988) to authorise prison officers in the Group to apply an instrument of restraint to a prisoner under escort from one place to another if the Governor believes that the application of the instrument of restraint is necessary to prevent the escape of the prisoner. Relying upon Regulation 36 and the Director's Instruction No. 2.15 approving instruments of restraint Mr Hurley submitted that the application of restraints to the applicant's while they were under escort from a prison to a court and while in detention in the court cell and during the return journey was lawful at all material times.

125. Mr Hurley submitted that approval for the purposes of Regulation 13 (SR 1998) continued after the 1988 regulations were revoked in May 1998 by s.30(b) of the Interpretation of Legislation Act.

128. Section 30(b) provides:

"Where a subordinate instrument or a provision of a subordinate instrument is repealed and re-made (with or without modification) then, unless the contrary intention expressly provides -

(a) not relevant

(b) insofar as any subordinate instrument made or other thing done under the repealed subordinate instrument or provision, or having effect as if so made or done, could have been made or done under the re-made subordinate instrument or provision, it shall have effect as if made or done under the re-made subordinate instrument or provision."

135. Mr Hurley submitted that it was unnecessary for the Secretary to approve instruments of restraint under Regulation 13 of SR 1998 for Regulation 35 of SR 1988 was re-made in the form of Regulation 13 and approval by the Director-General, issued as Director's Instrument No. 2.15, had effect as if done under Regulation 13, there being no contrary intention expressed in the 1998 regulations.

138. Mrs Hampel submitted that SR 1998 differ in subject matter and matters covered by the 1988 regulations. Mrs Hampel carefully compared the old and the new Corrections Regulations.

141. In my opinion, Regulation 13 (SR 1998) is a mirror image of Regulation 35(SR 1988). The heading to each regulation is the same: "Prescription of instruments of restraint and their manner of use". The regulations deal with the same subject matter and, save that the Director-General approves instruments of restraint and their manner of use in Regulation 35 and the Secretary does so in Regulation 13, the subject matter and scheme are the same. The latter, Regulation 13, is a re-enactment of the former, Regulation 35.

144. Consequently, in my opinion, the first limb of Mrs Hampel's argument is unsuccessful. If I am wrong, since 9 June 1999 approval under Regulation 13 by the Secretary to the Department of Justice has effectively cured any past defect so far as the applicants are concerned and it would be inappropriate to declare that the use of restraints was unlawful when the applicants were restrained on three occasions: 15 February, 19 February and 31 March 1999 (affidavit of McDonnell dated 8/6/99) during transport from a prison to a court cell. In the future, Mr Allgood as Prison Governor may rely upon the approval given on 9/6/99 by the Secretary.

147. The second limb of the argument is that the Governor of Port Phillip Prison (Mr McDonnell) must form the requisite belief for the purposes of Regulation 14 and he has not done so because he does not regard the applicants as being in the custody of the prison once they are placed in the custody of escorting officers from the Security and Emergency Services Group. Mr McDonnell deposed in paragraph 8 of his affidavit sworn 9/6/99 that he has not had any occasion to consider whether instruments of restraint should be applied to the applicants during transport to courts.

150. At issue is whether the words "the Governor" in Regulation 14(1) mean the Governor of the prison in which the applicants are detained or means a Prison Governor, such as Mr Allgood. Mr Allgood was Governor of Geelong, Ararat and Melbourne Remand Prisons between 10 September 1988 and 3 September 1992 when he was appointed Manager of the Security and Emergency Services Group. He is a Prison Governor within the Office of Corrections but is not the Governor of a particular prison.

153. In my opinion for the purposes of Regulation 14(1) Mr Allgood is the Governor who must form the requisite belief. In the Corrections Act Governor means "the Governor of a prison". By s.12 there may be appointed such Governors as are necessary for the purposes of the Act. The regulations speak of "a Governor", "the Governor of a prison" and "the Governor" as the context requires. For the purposes of Regulation 14 the words "the Governor" may apply to Mr Allgood because he is an appointed Prison Governor managing the Security and Emergency Services Group. The second limb of Mrs Hampel's argument fails.

156. The third limb of Mrs Hampel's argument is that Mr Allgood did not form the requisite belief, namely, a belief on reasonable grounds that the application of instruments of restraint to the applicants was and is necessary to prevent their escape.

159. It is not the function of the court to determine for itself whether the application of restraints was and is necessary to prevent the escape of the applicants. The court has a more limited role of reviewing Mr Allgood's belief. The court may determine whether it is reasonable for Mr Allgood to believe on reasonable grounds that restraints are necessary to prevent escape but may not determine the question for itself.

162. It was not suggested by Mrs Hampel that Mr Allgood is not acting in good faith. Her argument was that there are no reasonable grounds upon which Mr Allgood could reasonably form the requisite belief.

165. Mr Allgood relies upon three principal grounds:

2. Access to considerable funds to effect an escape with assistance.

3. Prison intelligence showing that money has been offered by the applicants or their agents to assist and support an escape attempt.

171. Was Mr Allgood's belief so unreasonable that no reasonable Governor would have formed such a belief? The question may be answered by inquiring whether Mr Allgood took into account all relevant matters or gave too much weight to information provided to him or failed to take into account a relevant matter.

174. It was not suggested that Mr Allgood failed to take into account some relevant matter. Rather, it was suggested that he gave too much weight to "prison intelligence".

177. In my opinion, Mr Allgood was required to evaluate the prison intelligence in the circumstances that the applicants were a step ahead of police officers all around the worked for four years, that they have the financial means to effect an escape and that during transport from prison to court and return the opportunity to escape lawful custody is increased. In these circumstances, "prison intelligence" has greater credibility and may more readily be acted upon by a person in Mr Allgood's position of responsibility as manager of the Security and Emergency Services Group.

180. The decision-making power is entrusted to Mr Allgood and this court may not intervene unless it is shown that he has formed the requisite belief unreasonably. This has not been shown, in my opinion.

183. The use of restraints is an extreme measure in the case of persons who have not been convicted of any crime in this country and are awaiting extradition proceedings in custody. The use of restraints in the case of the applicants is not for the purposes of punishment but simply for security reasons. Their use, in the circumstances is lawful.

186. The Originating Motion is unsuccessful and will be dismissed with costs.