Sleiman v Commissioner of Corrective Services & Anor; Hamzy v Commissioner of Corrective Services & Anor

The proceedings so far 5 On 21 May 2008, Sleiman filed a summons seeking a declaration to the effect that, being in the HRMU he was held in "segregated custody" within the meaning of s 10 of the Act and orders in substance requiring his release from that form of imprisonment. Section 4 of the Felons (Civil Proceedings) Act 1981 (Felons Act) prohibits a person who is in custody following conviction of a serious indictable offence from instituting civil proceedings except by leave of the court which (under s 5) shall not be given "unless the court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings". On 1 July 2008, Hall J gave leave (Sleiman v Commissioner, NSW Department of Corrective Services [2008] NSWSC 617). If I may respectfully say so, this conclusion is plainly right. Indeed, the defendants did not seek to argue otherwise. 6 On 4 August 2008, Sleiman was reclassified as A2 pursuant to the Administration Regulation and the defendants transferred him from the HRMU to custody in a "standard maximum security facility". 7 On 24 October 2008, Sleiman filed a further notice of motion seeking to join the State of New South Wales as a defendant and leave to amend the summons filed on 21 May 2008 to enable him to file a statement of claim, in substance, continuing his application for administrative law relief but adding a claim for damages. In respect of the amendments, if required, a further order under s 4 of the Felons Act is sought. There is no opposition to the joinder of the State of New South Wales but the defendants, in general terms, submit that, if leave is required under the Felons Act to permit the enlargement of the claim for relief it should be refused or, if granted, that the proceedings be dismissed under r 13.4 of the Uniform Civil Proceedings Rules 2005 as being frivolous and vexatious. 8 The language of the tests applicable to the question of leave and summary dismissal is not identical but the matter has been argued before me upon the basis that there is no material difference. Since Sleiman bears the onus under the Felons Act but the defendants bear the onus under the Rules, it is theoretically possible that, even though the claim for damages would not be summarily dismissed, Sleiman might fail to persuade me that he should have leave. It seems to me that the parties have approached the question upon the basis that, if I am persuaded that, on the alleged facts - as to which there are prima facie grounds for acceptance - there is an arguable case in law for the awarding of damages for unlawful imprisonment, leave should be granted under the Felons Act for the proceedings to be instituted since they would not then constitute an abuse of process and they should not be summarily dismissed. I have adopted this approach. 9 It is not necessary for present purposes to deal with the precise terms of the proposed statement of claim. In substance, Sleiman claims a declaration that his imprisonment in the HRMU was impermissible or unlawful because there was no applicable valid segregated custody direction made under s 10 of the Act in circumstances where such a direction was mandatory. In that respect the defendant does not now seek to argue that if leave is necessary under the Felons Act it should be refused and concedes that such a claim ought not to be struck out or summarily dismissed under r 13.4. On the face of it, the argument that it is unlawful to place a prisoner in segregated custody without following the requirements of the Act specifically directed to that form of custodial disposition is a strong one. Thus, one necessary element of a claim for damages is, certainly at a prima facie level, very likely to be established. 10 It is otherwise, however, as to the orders for the payment of damages - including aggravated and exemplary damages. As to the latter, I would simply observe that, if damages are payable and it is proved that the Regulation was deliberately resorted to as a device for avoiding the requirements of the Act and depriving the prisoner of the rights given him by Parliament, there appears to be a strong case for their imposition. The crucial question, then, is whether in the alleged circumstances damages can be awarded at all. If, in point of law, it is arguable that damages can be awarded, the case should be permitted to proceed. 11 On 16 November 2007 Hamzy filed a summons seeking leave under the Felons Act to institute proceedings to set aside a segregation direction made on 22 April 2007 and a continuation of that direction made on 23 July 2007 and injunctive relief. The grounds for relief were that the first direction was made for an improper purpose and he was denied natural justice in respect of the decision. He also alleged that the direction, contrary to s 13 of the Act, was not made in writing and did not contain the grounds upon which it was made. Bell J was informed on the hearing of the application for leave that, if leave were granted, it was proposed to amend the summons to confine the scope of injunctive relief sought and to seek a declaration that no segregation direction was made on 22 April 2007. On 11 December 2007 her Honour granted leave to commence the proceedings: Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469. 12 On 7 April 2008, Hamzy filed a Third Amended Summons. Amongst other things, the summons alleges that, on 2 January 2008, the defendants purported to revoke the (allegedly non-existent) segregation order that was the subject of the proceedings before Bell J and removed Hamzy from the assessment stage of the STGIP to Stage 1 of that Programme, that this had the effect of placing him in segregation in the segregation unit in Lithgow prison and that there is no segregation direction in effect in respect of this detention. Hamzy alleges that the orders which had this effect were unlawful as having been made for an improper purpose and void for want of procedural fairness and should be set aside. He seeks, in addition, the issue of a writ of habeas corpus and his return to the general prison population. 13 By a proposed fourth amended summons served on 3 October 2008, Hamzy gave notice that he wished to seek leave also to claim damages for wrongful imprisonment. The draft statement of claim has been tendered. It alleges that from 16 March 2001 to 21 April 2007 and 19 September 2008 to date Hamzy was detained in the HRMU, from 22 April 2007 to 3 July 2008, he was held in the STIGP and from 3 July 2008 to 19 September 2008 in the Multi-Purpose Unit at Goulbourn prison (the MPU) without a segregation direction although he was in segregated custody during these periods. Segregation directions were purportedly made on 22 April 2007 and 11 June 2008 but, it is alleged, these were invalid as made for an improper purpose and without affording him procedural fairness. He alleges that all these periods of detention were unlawful and seeks the issue of a writ of habeas corpus in respect of his current custody to effect his release into the general prison population and (I think, though the draft statement of claim is not altogether clear) for declarations that his prior custody was unlawful. He also alleges that decisions having the effect of withdrawing privileges were void and seeks, I think, declarations to that effect. It will be seen that these matters are sufficiently cognate with the allegations made in the initial summons for leave for Bell J's grant to cover the commencement of proceedings for this relief and the defendants did not seek to contend otherwise. 14 However, Hamzy also seeks damages in respect of his allegedly wrongful detention in segregated custody. This claim is not covered by the earlier grant of leave and the defendants contend that leave should not be granted for Hamzy to make it. 15 During the hearing Hamzy was unrepresented - having withdrawn the retainers of his solicitor and counsel - and sought to amend his statement of claim to add particulars alleging, in effect, that the conditions of detention in the HRMU are intolerable for various reasons that, he claims, may reasonably be regarded to have detrimental effects on his mental and physical health and are otherwise unlawful. The same considerations in respect of the application of the Felons Act relevant to Sleiman apply to Hamzy. 16 In discussing the issues in the cases, I have used Sleiman's as the template, since the issues in his case are the same as those in Hamzy's (with one exception which I will discuss in due course)

17 The Act provides, by s 10, that the Commissioner may direct that an inmate be held in "segregated custody" if he or she is of the opinion, in substance, that his association with another inmate might threaten the personal safety of another person, or the security of or good order and discipline within, the prison. The General Manager of the prison exercises the Commissioner's functions in this respect. 18 Although "segregated custody" is not defined, its meaning is clear enough from the specified effect of a segregation direction - " 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." 19 (This case does not concern protective custody and I have omitted all other references to it.) Section 13 requires the direction to be made in writing and include the grounds on which it is given. The direction remains in force until it is revoked: s 17(1). Section 16 provides for the review of a segregated custody direction by the Commissioner. The general manager of the relevant prison must submit a report about the direction to the Commissioner within fourteen days, whether the direction was given by the Commissioner or by the general manager. Within seven days the Commissioner must review the direction and revoke it, confirm it or amend its terms. In the first eventuality, a further report must be made to the Commissioner by the general manager within three months and thereafter each three months. Within seven days after each such report is made the Commissioner must review the direction again. Section 18 of the Act requires the Commissioner, as soon as practicable after confirming it pursuant to s 16, to provide written notice to the Minister giving reasons for that direction if the confirmation would result in subjecting the inmate to a total continuous period of segregated custody exceeding six months or, if he or she has already been subject to a total continuous period of segregated custody exceeding six months. 20 Section 19 provides that an inmate whose total continuous period of segregated custody exceeds fourteen days may apply to the Serious Offenders Review Council for a review of the direction. The Council must review it unless the application review does not disclose substantial grounds for a review or it has previously determined a review of the same direction and the new application does not disclose substantially different grounds. It cannot refuse to review a direction even then if more than three months has elapsed since it determined a review of the direction. Interim matters are dealt with by ss 20 and 21, while s 22 gives the Review Council power to revoke, confirm or amend the direction under consideration. 21 As I have mentioned, the Regulation deals with the classification and management of prisoners. Regulation 22 requires every male inmate to be classified "for the purposes of security and the provision of appropriate developmental programs". Of particular relevance are Categories AA (who represent in the opinion of the Commissioner "a special risk to national security"') and A1 ("a special risk to good order and security"). Prisoners in these categories "should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment". A Category A2 prisoner is one who should, in the Commissioner's opinion, "be confined by a secure physical barrier that includes towers, other highly secure perimeter structures or electronic surveillance equipment". It will be seen that these requirements deal only with the physical environment of detention. Nothing is said about the segregation of prisoners. 22 Regulation 25 authorises the Commissioner to designate a prisoner as a "high security inmate" if of the opinion that he or she constitutes " a danger to other people [or] a threat to good order and security". An inmate who, in the Commissioner's opinion, constitutes "an extreme danger to other people [or] an extreme threat to good order and security" may be designated "an extreme high security inmate". Regulation 25 empowers the Commissioner to make determinations "with respect to placement in correctional centres" of these prisoners, and as to their movement, the imposition of "additional security arrangements", their "case plans" and "any other matter that is relevant to [their] management." 23 There is nothing in the Regulation that justifies departure from the requirements of the Act if it is desired to segregate any prisoner, whether high security, extreme high security or otherwise and it is difficult to see how it might be thought otherwise. If the Regulation were thought to be inconsistent with the Act, then it is patently obvious that, to that extent, it must be invalid; if, it were understood to be consistent, then the regime in the Act must have been applied. In either case, the regime in the Act must prevail.

The factual allegations 24 Up to 25 January 2001 Sleiman was classified as a Category A2 prisoner but on that day he was classified as Category A1 and on the following day transferred from Lithgow to Goulburn prison. On 2 May 2001, he was reclassified as Category A2 and, on 11 March 2002, returned to Category A1. In the meantime, on 29 December 2001, he was placed in the HRMU. 25 It is alleged that he was taken there by force and without his consent. Whilst there, although there was no segregation direction, he was in segregated custody in that he was held in isolation from most other prisoners, permitted to associate only with such other prisoners as the defendants permitted and then with only one other inmate at any time and, on occasions, no association at all was permitted (a form of detention reflecting with some exactitude the provisions of s 12 of the Act.) During these periods, in addition, there was imposed on him repeated restrictions on and removal of privileges and rights usually available to other prisoners within the prison, relating to the availability of possessions, access to areas of the prison such as the day yard, the day room and so on, visits, educational opportunities and religious materials. Furthermore, Sleiman was locked in his cell for a significantly longer period each day compared with other prisoners, was permitted association only with a very limited number of other prisoners as permitted by the general manager and, occasionally, was held in complete isolation from all other prisoners. In short (as alleged), imprisonment in the HRMU was synonymous with segregated custody, no less because the word "segregated" was not used by the authorities to describe his placement: "held in HRMU" being doublespeak for "held in segregation". 26 On 1 February 2006 Sleiman was transferred from the HRMU to the maximum security section of Goulburn prison, but was returned to the HRMU on 6 April 2006. On 4 August 2008, three days before the date fixed for trial, he was reclassified as category A2 and the Commissioner determined that he would be transferred from the HRMU to standard maximum security. On 6 August the trial date was vacated by consent and the summons stood over for directions. On 13 August he was transferred to maximum security. 27 The proposed statements of claim alleges that Sleiman's and Hamzy's custody in the HRMU in the absence of any segregation direction amounted to wrongful imprisonment, by which they were deprived of their liberty or "residual liberty", and trespass and that, as a consequence, they should have damages. 28 The factual allegations in Hamzy's case are sufficiently stated above.

The essential issue 29 On the face of it, the factual context of Sleiman's claim is not complicated. In substance it does not appear to be in issue, although of course the defendants may ultimately wish to establish other relevant facts, such as those justifying Sleiman's classification and his placement in the HRMU. The defendants might seek to contend that, even if a segregation direction was an essential prerequisite to segregating Sleiman, the circumstances would have justified making such a direction and the Review Council would not have varied or cancelled it, so that - even if damages might be payable - they should be minimal since, had the requirements of the Act been complied with, the outcome, namely Sleiman's segregation, would have been the same. One line of defence outlined in written submissions but sensibly not pressed before me surprisingly contended, in effect, that "management" amounting in fact to segregation was not segregation within s 12 of the Act. However, all this is speculative at present and I say no more about it. The fact that there might be a defence to a case sought to be made does not mean that it should not be permitted to be undertaken. 30 The tort of false imprisonment is directed to safeguarding personal liberty and the tort of trespass to the person to safeguarding personal integrity. The law will compensate a victim of these torts with damages and, on occasion, punish the wrongdoer by imposing exemplary damages. Often, these torts also amount to crimes. Of course, some imprisonment is lawful, as can be the threat or application of force. The legal incidents of law enforcement - arrest and imprisonment - are examples. However, even prisoners have rights to personal liberty and personal integrity as against other prisoners, for example, and also against prison officers who, say, unjustifiably detain or assault them. 31 It has been suggested that the question here is whether, where custodians exercise powers of control over prisoners in a particular way without legal authority, with the effect of rendering their imprisonment more harsh, and use force or the threat of force to do so, the torts of false imprisonment or trespass to the person are committed. However, this to my mind casts the question too widely. Here, Sleiman claims he was subjected to a regime that was, in substance, prohibited unless certain prerequisites were first satisfied and that he was placed in a particular physical environment that was, as a matter of fact, necessary for that unlawful regime to be effected, so that detaining him in that place was also prohibited. Hamzy's claim is not quite so limited but, again, the suggested question does not focus on it. 32 It does not seem to me that this case should be approached on the basis that mere unlawful segregation of itself amounts to false imprisonment - although perhaps it might. To my mind, the issue of whether, on the alleged facts, the torts have been committed must be considered in light of the allegations that both Sleiman's segregation and his placement in the HRMU was prohibited by law. Likewise with Hamzy, adding his detention in the MPU and under the STIGP. The arguments 33 Mr Robinson of counsel for Sleiman points to the nature of the detention characterised as "segregated" in s 12(1) of the Act as demonstrating that a direction was a necessary prerequisite of his being detained in the HRMU since that detention was virtually identical. Mr Kirk of counsel for the defendants did not seek to argue for the purposes of the present application that Sleiman was not in segregated custody that required a s 10 direction but, rather, that on the assumption that such a direction was a necessary prerequisite to his being held in segregated custody, nevertheless no claim for damages could arise out of the fact that he was indeed held in that form of custody. In short, he accepted for the purpose of argument (but only for that purpose) that it was unlawful to keep Sleiman in segregated custody in the HRMU. The same arguments applied to Hamzy's detention in the HRMU, the MPU and under STIGP.

Can a prisoner sue for unlawful imprisonment? 34 This debate focused on whether a prisoner in Sleiman's situation had a right to what has been called in some cases "residual liberty", unlawful interference with which rendered his imprisonment unlawful and therefore compensable by damages. Mr Robinson referred to R v Deputy Governor of Parkhurst Prison; Ex Parte Hague; Weldon v The Home Office [1992] 1 AC 58 and relied on Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622, Soh v Commonwealth of Australia (2008) 231 ALR 425; [2008] FCA 520 (Madgwick J), Miller v The Queen [1985] 2 SCR 613; (1985) 24 DLR (4TH) 9 and May v Ferndale Institution [2005] 3 SCR 809; (2005) 261 DLR (4th) 541. I take them up in chronological order. 35 In Hague (the two appeals involving the prisoners Hague and Weldon were heard together) the House of Lords considered whether a convicted prisoner who, in the course of serving his sentence, had been treated in a way which the rules did not permit has in any and what circumstances a cause of action in private law sounding in damages against the prison governor or the Home Office on the ground either of a breach of statutory duty or of the tort of false imprisonment: [1992] 1 AC at 155. The facts are relatively simple. Hague was at Parkhurst Prison serving a long sentence. He was ordered to be transferred to another prison to be held there for twenty-eight days in segregation from other prisoners. The relevant Prison Rules provided for removal of a prisoner from association with other prisoners at the instance of the governor of the prison where he is being held. In this case, however, Hague was transferred to another prison and was there held in segregation, not because of any decision made by the governor of that prison but under the decision made by the governor of Parkhurst Prison. The Court of Appeal held that the governor of one prison had no power under the Rules to order the segregation of a prisoner after his transfer to another prison: that power could only be exercised by the governor of the serving prison. Furthermore, the court determined that the mode by which the original decision was made was itself flawed. The Court of Appeal gave effect to these conclusions by making appropriate declarations but held that in the circumstances an action for damages for false imprisonment did not lie. An appeal was taken to the House of Lords. 36 Lord Bridge of Harwich ([1992] 1 AC at 162) identified the "primary and fundamental issue" as - "Whether any restraint within defined bounds imposed by a convicted prisoner whilst serving his sentence by the prison governor or by officers acting with the authority of the prison, and in good faith, but in circumstances where the particular form of restraint is not sanctioned by the Prison Rules, amounts for that reason to the tort of false imprisonment." 37 His Lordship commenced his consideration of this question by noting the prison legislation which gave lawful authority for confining a prisoner within the bounds of a prison and giving legal custody of his person to the governor or prison officer acting with the governor's authority and went on to state (ibid at 163) - "Can the prisoner then complain that his legal rights are infringed by a restraint which confines him at any particular time within a particular part of the prison? It seems to me that the reality of prison life demands a negative answer to this question. Certainly in the ordinary closed prison the ordinary prisoner would at any time of day or night be in a particular part of the prison not because that is where he chooses to be, but because that is where the prison regime requires him to be. He will be in his cell, in the part of the prison where he is required to work, in the exercise yard, eating meals, attending education classes or enjoying whatever recreation is permitted, all in the appointed place and at the appointed time and all in accordance with a more or less written rigid regime to which he has to conform. Thus the concept of the prisoner's 'residual liberty' as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to me quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the work shop, dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another. … In my opinion, to hold a prisoner entitled to damages for false imprisonment on the ground that he has been subject to a restraint upon his movement which was not in accordance with the Prison Rules 1964 would be, in effect, to confer on him under a different legal label a cause of action for breach of statutory duty under the Rules. Having reached the conclusion that it was not the intention of the Rules to confer such a right, I am satisfied that the right cannot properly be asserted in the alternative guise of a claim to damages for false imprisonment." 38 An alternative argument was proposed to the effect that a person lawfully held in custody who is subjected to intolerable conditions should have a remedy at law without it being necessary as a prerequisite to characterise the detention itself as unlawful. Lord Bridge dealt with this argument as follows (ibid at 166) - "Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the detainee. If the custodian negligently allows, or a fortiori , if he deliberately causes, the detainee to suffer in any way in his health he will be in breach of that duty. But short of anything that could properly be described as a physical injury or impairment of health, if a person lawfully detained is kept in conditions that cause him for the time being physical pain or a degree of discomfort which can properly be described as intolerable, I believe that could and should be treated as a breach of the custodian's duty of care for which the law should award damages. For this purpose it is quite unnecessary to attempt any definition of the criterion of intolerability. It would be a question of fact and degree in any case which came before the court to determine whether the conditions to which a detainee has been subjected were such as to warrant an award of damages for the discomfort he had suffered. In principle I believe it is acceptable for the law to provide a remedy on this basis … In practice the problem is perhaps not very likely to arise." 39 Lord Ackner agreed (ibid at 166) with Lord Bridge that a person lawfully held in custody who is subjected to intolerable conditions must, of course, have a remedy against his custodian - "… [which] clearly can include the following: (a) an action in tort against a prison authority for damages for negligence where, for example, the intolerable conditions cause him to suffer injury to his health; (b) where the facts fit, an action in tort for damages for assault; (c) where malice can be established, an action for misfeasance in the exercise of a public office; and (d) the termination of such conditions by judicial review." 40 His Lordship however, did not consider that otherwise lawful imprisonment is rendered unlawful by reason only of the conditions of detention and, accordingly, a prisoner did not have in that situation a potential action for the tort of false imprisonment. His Lordship, however, (at 166-7) rejected the notion that a prisoner, being lawfully deprived of part only of his liberty, cannot sue in tort for false imprisonment if he or she were unlawfully deprived of the residue or balance of that liberty by, say another prisoner as distinct from the lawful custodian. 41 Lord Jauncey of Tullichettle reviewed a long history of cases dealing with breach of statutory duty as a basis for the grant of damages - rejecting the submission that such a breach could give rise to damages in the present case and then went on to consider the tort of false imprisonment dealing in particular, with the notion of residual liberty. His Lordship dealt with the particular facts (at 176) - "It is perhaps instructive to examine once more the circumstances which in each of the two cases were said to constitute false imprisonment. In Weldon it was said that his removal to and confinement in a strip cell constituted the tort. In Hague the Court of Appeal held that his continued segregation in the prison to which he was transferred on the orders of the governor of the transferring prison was unlawful and in breach of r 43. This unlawful segregation, it was argued, amounted to false imprisonment. No complaints were made about his presence in the second prison and no complaint about segregation could have been made had the governor of that prison independently ordered and obtained leave for it. Thus in each case what was said to constitute false imprisonment was not the confinement in the particular prison but rather the treatment therein or, as Goddard LJ put it in Arbon v Anderson [1943] KB 252, 254, the conditions and not the nature of the imprisonment. The alteration in the conditions infringed the residual liberty possessed by the two men and thus constituted false imprisonment." 42 His Lordship concluded that a prisoner does not have the residual liberty, as against the custodian, amounting to "a right protectable in law". His Lordship pointed out that, by virtue of his lawfully being committed to a prison, a prisoner's whole life is regulated by the regime so that placing the prisoner in a strip cell or segregating a prisoner "altered the conditions under which they were detained but did not deprive them of any liberty which they had not already lost when initially confined". Dealing with the situation where a prisoner was constrained under intolerable conditions of detention, rendering the detention unlawful, his Lordship was of the view that he or she would have a public law remedy and, if injury to health was sustained, a private law remedy as well but this remedy would lie in negligence rather than in false imprisonment: (ibid at 177). Taking up one point by way of interpolation, of course when Sleiman and Hamzy first went into custody, they could not (on their cases) lawfully have been segregated and could not lawfully have been sent to the HRMU in the absence of a segregation direction "when initially confined". The liberty they had lost was that which saw them detained in other parts of the prison. Whether this is a distinction with a difference lies, of course, at the heart of this case. 43 In Collins v Downs & Ors (unreported, NSWSC 14 December 1982) Roden J considered an application brought by the Commissioner for Corrective Services and other relevant government officers to strike out a statement of claim made by a prisoner who claimed to have been unlawfully detained in segregation in Goulburn Gaol in April and June 1979. He alleged that this form of detention was unlawful and not authorised by the provisions of s 22 of the Prisons Act 1952, which authorised the segregation of prisoners where certain conditions were fulfilled. The plaintiff sued both for breach of statutory duty and false imprisonment. Roden J rejected the contention that, once a person is lawfully imprisoned nothing his gaoler does with him during the authorised term of that imprisonment can constitute a trespass or false imprisonment, referring to Cobbett v Grey (1849) 4 Ex 729, Osborne v Millman (1886) 17 QBD 14 and Yorke v Chapman (1839) 113 ER 80. His Honour concluded that "there is a right of action for false imprisonment available to a convicted prisoner if, during the term of the sentence imposed upon him when his imprisonment would otherwise be lawful, he is wrongly subjected to imprisonment of a nature or in a place not authorised", the distinction between these characteristics and the conditions of his imprisonment being, his Honour thought, "critical". His Honour concluded that whether the plaintiff's imprisonment fell into the former categories or the last category required evidence and, therefore, could not be determined until findings of fact had been made. In the result, his Honour concluded that, whilst the plaintiff had no right of action in respect of the alleged breach of statutory duty, he was not debarred from proceeding against the defendants for false imprisonment. (The authorities to which Roden J referred were distinguished in Hague in terms which exclude their present relevance.) 44 In R v Miller the prisoner, following a disturbance in the gaol, was transferred to another institution and placed in a "special handling unit" reserved for particularly dangerous prisoners and characterised by more restrictive confinement than applied to the general prison population, together with a loss of several privileges and amenities. The question for the Supreme Court was whether the prisoner could question the unlawfulness of his detention by way of a writ of habeas corpus. It was contended, amongst other things, that habeas corpus would not lie to determine the validity of the confinement of a prisoner in a particular place, such as the special handling unit and obtain release from such confinement to normal association with the general population in the prison. Delivering the judgment of the Court, Le Dain J adopted the notion of a "prison within a prison" as reflecting the significant degree of deprivation of liberty that might occur within a penal institution and concluded (24 DLR(4th) at 27) - "In effect, a prisoner has the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution. Any significant deprivation of that liberty, such as that effected by confinement in a special handling unit, meets the first of the traditional requirements for habeas corpus , that it must be directed against a deprivation of liberty." 45 The Court went only to hold that habeas corpus can be used not only to secure, where appropriate, the complete liberty of the subject, but (ibid at 28) - "to release a prisoner from an unlawful form of detention within a penitentiary into normal association with the general inmate population of the penitentiary..." 46 The judgment went on went on to say (ibid at 30) - "Confinement in a special handling unit or in administrative segregation … is a form of detention that is distinct and separate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought. … I can see no sound reason in principle … why habeas corpus should not be available for that purpose … it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution."

If I may respectfully say so, this discussion at least deals with the possibility that laws that developed in different times when the environment to which they were directed differed markedly from that of the present, both in point of fact and law (prisons and their statutory organisation are now very different to the position a century ago) may need to reflect that difference and may carry within their genes, as it were, the potential for application to the changed circumstances. 47 The applicability of habeas corpus to the conditions in which prisoners were confined was considered by the Court of Appeal in Prisoners A-XX Inclusive v State of New South Wales. The prisoners commenced proceedings by statement of claim which, in substance, sought relief designed to ensure they would have access to condoms whilst in gaol. The State of New South Wales applied for orders for summary dismissal of the proceedings as disclosing no reasonable cause of action. Part of the relief sought was by way of the issue of a writ of habeas corpus. In this respect, it was contended by the prisoners that the writ will run where the conditions of detention are so harsh or "intolerable" as to be unlawful. The prisoners did not contend that their case depended upon the notion of confinement in a "prison within a prison", involving recognition of a prisoner's "residual liberty". Their case involved the argument that refusing to permit possession and use of condoms exposed prisoners to the risk of contracting HIV or hepatitis thus subjecting them to unlawful imprisonment. At first instance, it was concluded that the prisoners were unable to challenge in the courts policy decisions made by the Commissioner with the concurrence of the Minister and that habeas corpus could not be used to question the conditions of internment applying generally to all prisoners in the gaols of the State. However, the trial judge held that individual prisoners might be entitled to injunctive or other relief if it could be shown that the refusal of permission to use condoms constituted a breach of the duty of care owed to them. 48 In the Court of Appeal, Sheller JA (with whom the other judges agreed), having set out extensive passages from the speeches in Hague, noted (38 NSWLR at 627) that their Lordships rejected the propositions that a prisoner retained a form of residual liberty as against the confining authorities or that conditions of detention, however intolerable, made the detention itself unlawful, but pointed out that in Miller the Supreme Court of Canada accepted that infringement of a prisoner's residual liberty would support the writ of habeas corpus. His Honour went on (at 633) -

"In the present case it is unnecessary to consider whether a prisoner enjoys a right of 'residual liberty' vis-à-vis the State and whether the writ of habeas corpus runs where a person is illegally held in a prison within a prison. The Supreme Court of Canada provides powerful authority in support of that proposition. There is no such compelling authority to support the 'intolerable conditions' submissions. Le Dain J did not go so far and the question remains open in the United States. The difficulty of the proposition, to which [in Hague ] Lord Bridge and Lord Jauncey refer, are indeed formidable and as their Lordships pointed out there are elsewhere remedies by an action for negligence or for administrative review. In Australia authority dictates that this Court cannot go so far. In my opinion the availability of other remedies makes it unnecessary to do so." 49 Mr Robinson relies heavily on the opening sentences of this passage. He submits, with some force as it seems to me, that the Court of Appeal here has, in effect - albeit in obiter dicta - differentiated between the situations where, on the one hand, a prisoner is unlawfully detained in a prison within a prison, being a place from which he can be released by writ of habeas corpus and thus his rights of "residual liberty" vindicated and, on the other hand, where conditions are unlawfully imposed on him. This distinction, though capable (as Roden J observed in Collins) of involving matters of degree, is real. Once the notion of unlawful detention in a place is accepted - the unlawful restriction of residual liberty by placing a prisoner in a prison within a prison - so that the writ of habeas corpus would run to vindicate the prisoner's violated rights, the contention that this is indeed false imprisonment strikes me as at least fairly arguable. It will be recalled that, in Hague, it was not suggested that the appellant's transfer to the receiving prison where he was held in segregation was unlawful: he contended that his segregation in that prison at the behest of the governor of Parkhurst Prison was unlawful. 50 In Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, an unlawful non-citizen left a detention centre without permission and was charged under the Migration Act 1958 with escaping "immigration detention". He argued that conditions within the centre were so intolerable as to go beyond anything necessary for immigration purposes and thus, he was not held in "immigration detention". By majority, the High Court held that the conditions of detention were immaterial to the legality of detention. The question was one essentially of statutory interpretation of the phrase "immigration detention" but their Honours referred with approval to Hague and Prisoners A-XX, making it clear, however, that they were dealing with the "intolerable conditions" case. Gleeson CJ summarised the point thus (219 CLR at 496) - "It is one thing to challenge the lawfulness of conditions of confinement, or of practices adopted by those in charge of prisons; it is another thing to assert a right to be freed by court order, and it is another thing again to assert a right to escape."

Behrooz asserted the last of these rights. Neither Sleiman nor Hamzy do. They assert the penultimate right. That right may be - as has been found in Canada - vindicated by habeas corpus . However, in: Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616, the New Zealand Court of Appeal concluded that habeas corpus was not available to release prisoners from maximum security or non-voluntary segregation in an isolation cell where they were subject to a sentence lawfully imposed but, in relation to one of the prisoners, the Court indicated that, if he "had sought judicial review instead of restricting himself to habeas corpus we would have ordered that his cell confinement should cease immediately". The Court was of the view that "a change to the conditions on which an inmate is being detained either by segregation, reclassification or transfer to another institution does not create a new detention for the purposes" of the writ of habeas corpus: ibid at 633. Miller was distinguished on the ground that in Canada, as distinct from New Zealand, other forms of prerogative or injunctive relief were not available, necessitating an extension of the traditional application of habeas corpus : ibid at 634-5. The Court of Appeal declined to follow Miller "primarily because it is unnecessary to do so". 51 Although much has been made of the significance of the scope of the writ of habeas corpus, it seems to me that the crucial questions are the underlying issues of whether the detention is unlawful and, of course, if unlawful, in what sense is it unlawful. Analysis of the applicability of the writ is, no doubt, illuminating but, as Bennett shows, is affected by procedural and policy considerations that are not, or not clearly, material to determining whether detention is unlawful and whether the character and effect of that unlawfulness give rise to such an unjustified restriction of a prisoners residual liberty as to attract, if not habeas corpus, the grant of injunctive relief requiring the prisoner's release from the place of his unlawful detention. 52 The significance of Miller and of the approval of that approach in Prisoners A-XX, lies as it seems to me, in the use in the former and the endorsement in the latter of the significance of the concepts of residual freedom and prison within a prison for the analysis of the character of unlawful detention in the prison context and the rejection of the alternative view, arising from a simpler age, that liberty is all or nothing. In one sense, of course, this is true: the tort of false imprisonment will lie where only part of one's liberty is unlawfully restricted. The Miller approach recognizes the real and legal existence of the obverse: that a person whose freedom is partially and legally restricted is left with a residue of freedom that will be protected one way or another, where it is unlawfully restricted in a prison within a prison by habeas corpus in Canada and, perhaps, New South Wales and by injunction in New Zealand. The question here is whether the legal existence of that freedom is arguably sufficient to constitute the tort of false imprisonment. Even if, for the reasons stated in Bennett, the writ will not issue, I do not think it follows the unlawful detention cannot give rise to the tort of false imprisonment. As suggested above, the assumption that the notion of liberty protected by the writ is necessarily identical with that vindicated by the tort may not be correct. It seems to me at least arguable that an unlawful detention that can be ordered to cease may well be detention that constitutes the tort. 53 In Canada, the reasoning in Miller has been followed and extended in May & Ors v The Warden of Ferndale Institution and Others, a number of prisoners serving life sentences were involuntarily transferred from the Ferndale Institution, a minimum security institution to medium security gaol, which involved a significant deprivation of liberty for inmates. The prisoners sought, amongst things, relief by way of habeas corpus directing the responsible official to transfer them back to the Ferndale Institution. The prisoners contended that the transfers were arbitrary, and were made without considering the merits of each case and in breach of the rules of procedural fairness. The majority held that the law in Canada, resting in part on Miller, established the fundamental principle that habeas corpus will lie to determine the validity of the confinement of an inmate's administrative segregation and, if such confinement is found unlawful, to effect release into the general inmate population of the gaol. As the majority point out (at [74]) two conditions must be satisfied before a writ will be issued: first, a deprivation of liberty; and second, that the deprivation be unlawful. The majority held ([76]) that the decision to transfer an inmate to a more restrictive institutional setting constituted a deprivation of his or her residual liberty and, accordingly, the first condition was satisfied. The decision to transfer the prisoners was, of course, an administrative decision. Such decisions must also be made in accordance with the common law duty of procedural fairness and requisite statutory duties ([77]). The majority rejected the prisoners' contention that the decision to transfer them was arbitrary. However, they held that non-disclosure of certain relevant scoring mechanisms used to assess the desirability of transfers "constituted a major breach of the duty to disclose inherent in the requirement of procedural fairness" ([117]). They concluded that, in concealing "crucial information" the authorities "violated their statutory duty" with the consequence that the "transfer decisions were made improperly and, therefore, they are null and void for want of jurisdiction … [and it] follows that the [prisoners] were unlawfully deprived of their liberty" ([120]). The Court therefore ordered that the prisoners who were still incarcerated in a medium security institution pursuant to the impugned decision to be returned to a minimum security institution. The minority dissented on the ground that there was no material non-disclosure and hence no procedural unfairness. They did not suggest that the statements of principle contained in the majority judgment were mistaken as to the propriety and significance of the notion of residual liberty in the context of unlawful placement of a prisoner. 54 This decision, I think, provides significant support for Mr Robinson's submission that the necessary elements of an action for false imprisonment are present when a prisoner is unlawfully transferred to a prison within a prison. He argues that the HRMU is precisely such a prison and placing Sleiman in the HRMU for the purpose of unlawful segregation is itself unlawful. As I understand him, Mr Kirk argues that the unlawfulness of the segregation and the place where it occurs are but accidentally linked, so that the fact that Sleiman was held in the HRMU is immaterial to considering whether his imprisonment is unlawful. I find this argument difficult to accept. It was not accepted by the Canadian Supreme Court in Miller where the Court concluded, albeit in the context of the requirements for the issue of a writ of habeas corpus, that the unlawful transfer to the special handling unit was an unlawful deprivation of liberty, (see the passage cited above in [34]) and it was implicitly rejected (albeit in obiter dicta) in Prisoners A-XX. Where the very purpose of Sleiman's incarceration in the HRMU was to effect his segregation, acceptance of Mr Kirk's argument would be to engage in fiction. When dealing with the civil rights of the subject, fictions are best avoided. 55 In Soh v The Commonwealth, Mr Soh was an unlawful non-citizen who was detained in an immigration centre but, following an incident, was transferred to a New South Wales State prison where he was held for about nine months before being returned to the detention centre. He was not the subject of any criminal charge nor under any sentence imposed by a court. Madgwick J held that the Migration Act 1958 (Cth) authorised the detention of an unlawful non-citizen on the prison which was not rendered unlawful by denying him, for a short time, procedural fairness. In doing so, his Honour pointed out that he had assumed, rather than decided, that "illegal imprisonment of one kind when, in any case, the applicant would be liable to imprisonment (detention) of another should be held to be within the tort of false imprisonment" and adding, "it strikes me, as the probably preferable route for development of the common law", citing amongst other cases, Prisoners A-XX, Hague and Miller. 56 Although it might be a "development" of the common law to hold that Sleiman and Hamzy can, if the allegations in their proposed statement of claim are made out, maintain an action for false imprisonment, this is only true in the sense that such an action has not yet been undertaken and there is, as yet, no decision in the courts of this country on the question. This is not to say that the common law must change to accommodate such an action. But, at all events, that such a "development" might be necessary before the proposed action is maintainable cannot, I think, be regarded as an insuperable barrier. 57 Mr Kirk submits that, to permit an action for false imprisonment in the present circumstances would be to introduce incoherence into the law. I am sceptical that the notion is relevant to the law of trespass. For example, the discussion in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, at 596-597 (per Gummow and Hayne JJ), cited by Spigelman CJ in Hunter Area Health Service & Anor v Presland [2005] NSWCA 33 at [20] ff; (2005) 63 NSWLR 22 at 29) concerned the question of whether a public authority owed a duty of care to the putative plaintiff for the purpose of an action in negligence; see also Precision Products (NSW) Pty Limited v Hawkesbury City Council [2008] NSWCA 278. There can be no doubt that the prison authorities have a duty of care to prisoners. Here there is no question of "positing a duty to exercise reasonable care not to make a flawed decision" (per Allsop P, Precision Products at [120]): the exercise of reasonable care is immaterial to the commission of the tort and it is not a defence where a prisoner is kept in prison after his term has expired: 58 At all events, the crucial question here is whether Sleiman was unlawfully detained in the HRMU. Whether detention is unlawful in any particular case cannot depend on policy considerations, though it might of course depend on statutory interpretation. If his detention were unlawful, certainly a declaration to that effect would be made, unless there were present some (unlikely) grounds for refusing it in the exercise of the discretion. I am unable to see how questions of coherence arise for consideration in determining whether Sleiman's detention in the HRMU was unlawful or the ensuing issue whether that detention, being unlawful, amounted to a trespass.

Conclusion 59 The importance of the protection of personal liberty as a fundamental purpose of the common law and the tort of false imprisonment as one of the ways in which the law has extended this protection to individuals can scarcely be overstated. It was recently emphatically reaffirmed by the Court of Appeal in this State: Ruddock and Ors v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269. Of course, there are limits to such liberty and it is necessary, in the interests of society, to imprison, sometimes for long periods and sometimes in segregation, some persons who break the law. But the courts must insist that even that restriction of liberty - as justifiable as it may be - cannot occur unless and cannot go one inch further than the law strictly permits.

60 So far as prisons are concerned, the Parliament has instituted a structure of laws to govern the responsibilities of those to whom is delegated the custodianship of prisoners of the State. They are given great power and considerable freedom of action. But it is not untrammelled. It is self evident that the isolation of a person from communication with others is a severe and possibly dangerous step. It must be done with considerable care and only when it is truly necessary. It cannot be doubted that for these reasons the Parliament has made specific provision in the Act dealing with the exercise of this power. This demonstrates, amongst other things, that segregated custody is regarded by the Parliament as an exceptional form of custody and requires a unique system of implementation and control, in particular by necessitating a report to the Minister, regular reviews and giving the prisoner the right to apply to the Review Council for a review. In virtually every other aspect of managing a prisoner's custody the Commissioner has almost unfettered control and authority (albeit subject to various forms of supervision) except where the prisoner is to be segregated. 61 Having regard to the exceptional character of segregated custody so far as the well being of the prisoner is concerned and the unique regime instituted by the Parliament as a safeguard, it is obvious that compliance with its requirements is no mere matter of legal technicality but of fundamental importance. To place a prisoner in segregation without such compliance and set at nought the safeguards of the Act is a serious departure from the law. 62 This case is about what the law will do to require obedience to and redress departures from the obligations it imposes. It has nothing to do with the personal merits, or lack of them for that matter, of the prisoner. The law is blind to such considerations. The law will be enforced, not because of what is owed to the prisoner, but because of what it owes itself and the community it serves. 63 How, then, is the law to be enforced? First, by recognizing the mandatory character of the requirements of the Act; second by permitting a prisoner who alleges that the Act has not been obeyed in his case to approach the Court for relief, providing there is a prima facie case and it is not an abuse of process to take proceedings; and, third, by recognizing, though much of a prisoner's liberty is taken, yet some is retained and that, though it might not be great, yet it is important and will be protected. In my view, such liberty - at least arguably - is protected by, and its unlawful restriction is the commission of, the tort of false imprisonment. 64 Accordingly, leave is granted under the Felons Act for Sleiman to institute proceedings as envisaged in the statement of claim marked "C" and filed with the papers. The defendants' notice of motion is dismissed. 65 So far as Hamzy is concerned, leave is granted for the commencement of proceedings for relief by way of declaration and ancillary orders in respect of both the place and conditions of his imprisonment. The allegations in the proposed statement of claim concerning effects on his physical and mental health are insufficiently particularised to permit a grant of leave at this stage in respect of any claim for damages for negligence or (vide Lord Bridge and Lord Ackner in Hague as quoted above) an action in trespass. Rather than refuse leave at this point, it seems to me that the convenient course is to permit this part of the case to proceed for the present and leave it to the trial (or case management) judge to determine whether leave ought to be granted when and if proper particulars are provided. In respect of his segregation in the alleged absence of lawful authority, leave to institute proceedings for false imprisonment is granted. The notice of motion is dismissed. 66 Although the defendants have succeeded in respect of the "conditions" case, so far as Hamzy is concerned, this was but a small part of the whole argument. The defendants must pay the costs of both plaintiffs.

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