Collins v Paget
[2004] SASC 206
•23 July 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COLLINS v PAGET & ORS
Judgment of The Honourable Chief Justice Doyle
23 July 2004
CRIMINAL LAW - ADMINISTRATION OF PRISONS - CIVIL LIABILITY
CRIMINAL LAW - ADMINISTRATION OF PRISONS - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA
Plaintiff serving a sentence of imprisonment - search conducted of plaintiff's cell - order made directing that plaintiff be kept separate and apart from other prisoners - plaintiff transferred from F division to G division - whether search authorised by s 37(1) of the Correctional Services Act - whether order made to keep plaintiff separate and apart from other prisoners authorised by s 36 - whether duration of separation unreasonable - whether procedural requirements of s 36 satisfied - decision allowing plaintiff to have computer in cell revoked - whether revocation authorised under the Correctional Services Act - whether decision unreasonable - stamps removed from plaintiff's mail by prison management - whether removal of stamps from plaintiff's mail authorised by s 33 - whether plaintiff had right to have stamps placed in property - plaintiff authorised to subscribe to journal - journals and other mail items returned to the sender by prison management - whether return of journals amounted to conversion.
Correctional Services Act 1982 (SA) s 23, s 23(3)(b), s 24, s 24(2)(b), s 30, s 32, s 33, s 33(4), s 33 (12), s 33A, ; Correctional Services Act 1982 (SA) s 33A(4), s 33A(5), s 36, s 36(1), s 36(2)(a), s 36(2)(d), s 37(1), s 37(1)(b); Correctional Services Act 1982 (SA) s 36(3); Correctional Services Act Regulations 1985 reg 6, reg 40(1); International Covenant of Civil and Political Rights article 2(3), article 3, article 5(1), article 10(3); Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 6(1), referred to.
Minogue v Williams (2000) 60 ALD 366; Collins v The State of South Australia (1999) 74 SASR 200, considered.
COLLINS v PAGET & ORS
[2004] SASC 206
DOYLE CJ Mr Collins has brought proceedings against the State. He challenges the legality of certain aspects of his treatment while imprisoned. He claims damages.
Facts
In April 1994 Mr Collins began to serve a sentence of imprisonment for 9 years 3 months for offences of fraudulent conversion and false pretences. Mr Collins was released in March 2003 to serve the balance of his sentence on home detention.
During his imprisonment Mr Collins was subject to the regime of control provided for by the Correctional Services Act 1982 (SA) (“the CSA”): see in particular s 24 of the CSA (set out below). He spent periods of time in various correctional institutions, including Yatala Labour Prison, Cadell Training Centre, Mobilong Prison and the Adelaide Pre-Release Centre.
In 1994 Mr Collins was given approval to purchase a computer and keep it in his cell, and in 1997 to commence certain education programs at his own expense. He was allowed to upgrade his computer and purchase various software packages from time to time. In 1997 Mr Collins began studies in a computer aided drafting course, called AutoCAD, which he hoped would enable him to gain employment in the building industry once released from prison.
In May 1999 Mr Paget, the Chief Executive Officer (“CEO”) of the Department for Correctional Services, directed that managers of correctional institutions should make rules (presumably under s 83 of the CSA) under which they would cease to approve the issue of “personal owned computers” and computer related equipment: see exhibit D31. I assume such rules were made. Prisoners possessing their own computers and equipment prior to the issue of this directive were given dispensation from the general prohibition, and accordingly Mr Collins was allowed to keep his computer and related items in his cell.
On 4 August 2000 Mr Collins was convicted of the offence of being knowingly concerned in the importation into Australia of a prohibited import, compressed cannabis. This offence was committed while Mr Collins was in Mobilong prison serving his sentence. Mr Collins was sentenced to imprisonment for a further 2 years 6 months, and his non-parole period was extended by 18 months. The trial Judge referred in his sentencing remarks to Mr Collins’ use of the computer in the commission of the offence.
By letter dated 5 September 2000, the CEO wrote to Mr Collins informing him that he was considering whether or not he should be allowed to have his computer in his cell. The CEO said that he had been concerned for some time about the use which Mr Collins is making of his computer and that these concerns had been confirmed by the remarks of the trial Judge. Despite these concerns the CEO informed Mr Collins that he was prepared to let Mr Collins retain his computer until the completion of his appeal against the conviction.
In April 2001, Mr Collins was being detained in F division, a medium security division of Yatala Labour Prison. On 28 April 2001 a search of F division was conducted. The search was made at the direction of Ms Bordoni, the then general manager of the prison. Ms Bordoni had reason to suspect that a sim card associated with a mobile phone has been smuggled into the prison and was concerned that it might be used by a prisoner with a computer in his cell to interconnect to the telephone system. In Ms Bordoni’s mind this raised the further question of what else might have been brought into the prison. For these reasons the search was instigated. Mr Collins was one of only two prisoners in F division who had been allowed to have a personal computer in his cell, and she considered a computer to be “high risk”.
In the initial search of Mr Collins’ cell a number of items were found. Some of these items, medication, scissors and a tool kit, were regarded by prison officers as prohibited items even though permission had been given or might have been given for Mr Collins to have them in his cell. Mr Collins’ computer was taken from him and arrangements were made for it to be searched (to see if anything was hidden in it) and for the information stored in the computer to be checked.
Ms Bordoni made the decision that Mr Collins should be kept separate and apart from other prisoners and transferred to G division, a high security division within the prison. She made that decision so that he could be kept apart from other prisoners while she investigated the smuggling in of the mobile phone, its possible use in connection with his computer, and until Mr Collins was interviewed, should that occur. Section 36 of the CSA regulates the power to keep a prisoner “separately and apart from all other prisoners”.
About 4.30 pm of the same day Mr Goodall, a case management coordinator, completed a separation order under s 36 (2) (a) of the CSA. Section 36 (1) of the CSA provides that: “A prisoner must not be kept separately and apart from all other prisoners in the correctional institution except in accordance with this section.” Pursuant to section 36 (2):
“(2)The Chief Executive Officer may direct that a prisoner be kept separately and apart from all other prisoners in the correctional institution if the Chief Executive Officer is of the opinion that it is desirable to do so –
(a)in the interests of the proper administration of justice where an investigation is to be conducted into an offence alleged to have been committed by the prisoner; or …
(d)in the interests of security and good order within the correctional institution.”
The fact that the separation order was made by Mr Goodall exercising delegated authority is not in dispute.
The separation order stated that the direction had been made “in the interests of the proper administration of justice where an investigation is to be conducted into an offence alleged to have been committed.” The alleged offence was described in the order in the following terms: “Namely that on 28 April 2001 at F Division you did: Have in your cell prohibited items that will require further investigations.” Mr Goodall said in evidence that he was told that the search of Mr Collins’ cell had produced items considered to be prohibited, and further searching needed to be done.
Mr Goodall presented the order to Mr Collins and asked him to sign it. Mr Collins was unable to read the notice as he did not have his glasses, and refused to sign it. In his evidence Mr Goodall said that the document was then read to Mr Collins in its entirety. This was at about 5.10 pm. In a letter dated 13 May 2001 Mr Collins states that the details of the notice were read to him. However he maintains that he was not read the document in its entirety, but only informed that there were prohibited items found in his cell and that he would be in G division for 30 days. Mr Goodall signed and dated the proof of service at this time, 5.10 pm 28 April 2001.
In evidence Mr Collins agreed that a copy of the order was left in his cell at approximately 10.00 am the following morning, 29 April 2001. Mr Collins said that at this stage he still did not have his glasses and was unable to read the notice.
Mr Collins remained in G division until a revocation order was made on 25 May 2001, when he was transferred to B division briefly before being returned to F division. Once Mr Collins was returned to his cell in F division all items were returned to him except for the computer and related equipment, three pairs of scissors and the tool kit.
Mr Collins’ computer was the subject of an investigation. After the investigation Ms Bordoni formed the opinion that the computer had been misused. Ms Bordoni decided that Mr Collins should not have access to his computer and revoked the dispensation previously given to Mr Collins concerning his computer. She did so after consulting with the CEO. No charges for any breaches of prison rules were brought against Mr Collins. Ms Bordoni said that the decision to lay no charges for having prohibited items reflected the fact that the items in question had probably been seen (before the search) by officers, the fact that Mr Collins had spent time in G division and the explanation that he offered for having the items.
By letter dated 12 October 2001, once Mr Collins’ application for leave to appeal against conviction had been dismissed, the CEO wrote to Mr Collins advising him that he would not be allowed access to his computer for the remainder of his sentence. Mr Collins was however given after hours and weekend access to a computer in the educational unit at Cadell Training Centre (when he was later moved there) and allowed to continue his educational courses. Mr Collins’ computer was not returned to him until he was released on home detention on 25 March 2003.
Mr Collins makes a number of complaints relating to his treatment while in prison and has brought proceedings against the CEO, the Department for Correctional Services and the State of South Australia. The proper defendant in these proceedings is the State of South Australia.
Mr Collins’ first complaint relates to his transfer from F Division of Yatala Labour Prison to G division. The second complaint relates to the defendant’s decision to revoke the decision to allow Mr Collins to keep his computer in his cell. The third involves the alleged failure of the defendant to provide Mr Collins with a smoke-free environment. The final complaint concerns the removal of stamps from incoming mail and the return to sender (or non-delivery to Mr Collins) of posted items without proper notification to Mr Collins.
Transfer to G division
At trial an issue arose as to the power to search Mr Collins’ cell. This issue was not raised on the pleadings and Mr Collins did not challenge the lawfulness of the search until the issue was raised at trial by the counsel for the State.
Mr Lines, counsel for the State, submitted that power to search Mr Collins’ cell was derived from section 37 (1) of the CSA which provides:
“37 (1) The manager of a correctional institution may cause a prisoner or a prisoner’s belongings to be searched in any of the following cases:
…
(b) where the manager has reasonable cause to suspect that the prisoner has in his or her possession in the correctional institution an item prohibited by the regulations. ...”
The Regulations referred to in section 37 (1) are the Correctional Services Act Regulations 1985 (“the Regulations”). Prohibited items are identified by regulation 6 (see below).
Ms Bordoni’s evidence was that the search was instigated as there was reason to suspect that a sim card was within the prison, and this raised a concern about its possible misuse. At the time of this incident, reg 6 of the Regulations made no reference to a sim card as being a prohibited item.
However Ms Bordoni explained that the possible presence of a sim card within the prison also gave rise to concerns as to what else had been brought into the prison. As she said in evidence, she was looking for “anything and everything…anything that would pose a risk to the security and good order of the institution.” That clearly would encompass items prohibited by the Regulations. I accept her evidence. I consider that Ms Bordoni had reasonable cause to suspect that Mr Collins had possession of a prohibited item. I am satisfied that the search was authorised by s 37 (1) of the CSA. The fact that Mr Collins had a computer in his cell was a sufficient basis for the search.
It may be that the search was justified on the basis of the wide powers exercised by the CEO over prisoners, under provisions such as s 24 of the CSA. I doubt whether it is necessary to resort to s 37 to authorise a search of a prisoner’s cell.
I turn to the direction to transfer Mr Collins and whether it was lawful.
In the light of her evidence, which I accept, Ms Bordoni’s decision that Mr Collins be removed to G division was authorised by s 36 (2) (d) (above). Good order and security required a thorough search and the conduct of appropriate investigations, with no ability for Mr Collins to “compare notes” with other prisoners. But for reasons that are not clear the direction to transfer Mr Collins to G division by Mr Goodall was made pursuant to s 36 (2) (a) of the CSA. The offence relied upon concerned prohibited items found in Mr Collins’ cell that would require further investigations.
Mr Collins argues that the items in question were not prohibited, in fact all were authorised, and had been checked by prison officers and allowed to remain in his possession a few months before. He argues that he had not committed any offence, thus the transfer pursuant to s 36 (2) (a) was unlawful.
Regulation 40 (1) of the Regulations at that time provided that: “A prisoner must not possess, or supply to another prisoner, an item referred to in regulation 6.”
Regulation 6 lists prohibited items. Relevantly this list includes:
“any dangerous substance;
a prescription drug for the purposes of the Controlled Substances Act 1984;
a drug of dependence for the purposes of the Controlled Substances Act 1984;
a prohibited substance for the purposes of the Controlled Substances Act 1984;
…any device or instrument designed or commonly used or which has been or is capable of being adapted or modified as an instrument or device for inflicting any kind of bodily injury or harm to any person or assisting a prisoner to escape from correctional institution.”
The items found in Mr Collins’ cell, namely medication, scissors and a screwdriver, were or might be (depending on further enquiries) classed as prohibited items under these items in regulation 6. I consider that s 36 (2) (a) should be read as embracing a situation in which a prisoner is suspected of having committed an offence, and not as limited to a situation in which a formal charge has been made. Although not well expressed, it appears (as one would expect) to be intended to enable appropriate investigations to be conducted into the possibility that an offence has been committed.
In his evidence Mr Goodall said that Mr Collins was transferred to G division to allow the search of Mr Collins’ cell to be completed, in order to identify whether other prohibited items or a mobile phone were in his cell and to allow an investigation to be conducted into those apparently prohibited items already found. Mr Goodall was aware that Mr Collins’ possession of the items might have been approved, but said this was why investigations were to be carried out and why Mr Collins was not charged immediately with an offence for possessing these items.
In her evidence Ms Bordoni also agreed that she was aware that these items may have been authorised, however she did not know at the time of her decision to transfer Mr Collins, whether they were authorised, and therefore needed to carry out investigations to determine this and ascertain if it was appropriate that the items, if authorised, should continue to be so.
I accept this evidence. The transfer to G division was authorised by s 36 (2) (a), because it was made to enable Mr Collins’ possession of the items in question, and a possible offence, to be investigated.
I find also that the procedural requirements of s 36 were satisfied. I accept the evidence from Mr Goodall about that. The order was served, as required, within 24 hours. Mr Collins knew that it was placed in his cell. His inability to read it does not mean that it was not served on him. It had, in any event, been read to him the previous evening.
Mr Collins also argues that the duration of his transfer to G division was unreasonable.
Section 36 (3) of the CSA provides that: “A direction given pursuant to subsection (2) (a) has effect for such period, not exceeding 30 days, as may be specified in the direction.” The direction stated that it would expire on 28 May 2001. The direction was revoked on 25 May 2001. Mr Collins was kept in G division for 27 days.
On the basis of the evidence I heard, the investigation into the prohibited items, or possibly prohibited items, should not have taken more than a few days. I accept that other investigations took longer, but they were not the basis of the direction. A direction under s 36 (2) (d) would have been more appropriate in the circumstances.
Although the direction should have been revoked sooner than it was, that does not render the direction invalid. The section leaves it to the relevant officer to decide on the duration of a direction. If it is not established that it was made other than in good faith, the later failure to revoke it in a timely way does not invalidate the making of the direction. Accordingly, the direction was valid, even though viewing things objectively it should have been revoked sooner than it was.
Mr Collins did not establish any loss flowing from his removal to G division for 27 days. Even if the removal was not authorised, his imprisonment remained lawful. In the circumstances it is not necessary to explore the issue of whether his claim, if made out, would entitle him to damages.
The decision to remove the personal computer
Mr Collins argues that the decision to refuse to permit him to keep his personal computer in his cell did not comply with sections 23, 30 and 32 of the CSA.
Section 23 requires the CEO to have prisoners assessed. Section 23 (3) (b) requires the assessment of prisoners to have regards to education needs. Section 30 requires the CEO to arrange for such courses of instruction or training as the CEO thinks fit to be made available to prisoners. Section 32 provides for the purchase of items of personal use by prisoners.
Mr Collins argues that he purchased the computer and software to advance his education and training, and that the CEO was obliged to allow him to keep them and use them for that purpose.
The CEO or his delegates may have made decisions pursuant to these sections, allowing Mr Collins to purchase and have access to his computer in his cell for educational purposes and undertake a course of training. The decisions made in this respect were not proved. It does not follow that the CEO, having made a decision in respect of education and training, and more specifically to allow access to a personal computer, cannot revoke it. Pursuant to s 30 the CEO must arrange for such courses of instruction or training as he thinks fit. This does not mean that having allowed a prisoner to embark on a course of instruction or training the CEO cannot vary or revoke the decision.
Section 24 (2) (b) of the CSA provides:
“24 (2) Subject to this Act, the Chief Executive Officer has an absolute discretion- …
(b)to establish with respect of any particular prisoner, or prisoner of a particular class, or in respect of prisoners placed in any particular part of the correctional institution, such a regime for work, recreation, contact with other prisoners or any other aspect of the day-to-day life of prisoners,
as from time to time seems expedient to the Chief Executive Officer.”
Under s 83 the manager of a correctional institution has the power to make rules relating to the management of the institution.
I am satisfied that these provisions give the CEO and the manager of the correctional institution in question power to regulate or control the things that prisoners have and keep in their cells. The power is not limited to creating a regime of prohibited items the presence of which will attract sanctions. It is inherent in the concept of imprisonment, and implicit in the provisions of the CSA, that the CEO has control over the possessions of prisoners. Any decision by the CEO about participation by a prisoner in courses of education and training would properly be subject to and affected by decisions about what property a prisoner could have access to or keep in his cell.
The CEO had power to give the direction that he gave in May 1999 (above). I am satisfied that Ms Bordoni, as the manager of Yatala Labour Prison had power to end the dispensation that allowed Mr Collins to have a computer. The removal of the computer was not unlawful, or in breach of the requirements of the CSA.
Mr Collins claims the loss of the use of his computer and software meant that his education and rehabilitation programs had been frustrated or stalled. As a result Mr Collins said that he has lost the chance of employment as a CAD contractor upon his release. Mr Collins claims reimbursement for all funds spent on the computer, software and educational courses, loss of future earnings and general damages. Even if I were of the opinion that the Ms Bordoni did not have the power to end the dispensation given to Mr Collins in relation to his computer, Mr Collins has not proved any loss flowing from this decision. Mr Collins still has his computer, computer related equipment and software. There was no evidence before the Court relating to the amount Mr Collins would have earned as a CAD contractor, nor relating to his prospects of obtaining employment in this field upon his release. The possibility of any loss flowing from the removal of his computer is speculative.
Mr Collins also argues that the loss of the use of his computer frustrated his education and rehabilitation programs and that this constitutes a breach of the International Covenant of Civil and Political Rights (“the ICCPR”). He relies in particular on article 2 (3), article 3, article 5 (1) and article 10 (3). The only provision that warrants a reference is Article 10. Article 10 (3) provides that: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” The ICCPR has not been enacted into Australian law despite it being a schedule to the Human Rights and Equal Opportunity Commission Act (Cth) 1986: Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366 at [24]. In any case s 6 (1) of the Act does not bind the Crown in right of the State: Collins v The State of South Australia (1999) 74 SASR 200. The State is not bound by the ICCPR. In any event even if the State were bound, Mr Collins has not proved the decision to refuse to allow Mr Collins to keep his computer in his cell had the consequence that the essential aim of the treatment of prisoners did not meet the requirements of the ICCPR. The provisions on which he relies states a general objective, not a rule that governs each decision made in relation to a prisoner.
Failure to provide a smoke-free environment
Mr Collins argues that the defendant has breached a duty of care owed to Mr Collins by not providing him with a smoke-free environment.
Mr Collins complains about the period he was detained in Yatala Labour Prison from 25 November 1997 to 27 September 2001 less the period from 30 November 1999 to 26 May 2000 when he was in the Adelaide Pre-Release Centre.
Mr Collins was the sole occupant of his cell in F division during this time. By Managers Rule No 16 smoking was permitted in cells and outdoor areas only and was not permitted in any other area inside F division. Prisoners breaking the rules were subject to disciplinary action.
In 1999 Mr Collins pressed for a smoke-free wing in F Division. On 22 April 1999 Mr Mann, the unit manager of F division, sent a memo to prisoners inviting expressions of interest from those interested in establishing a smoke-free wing.
In evidence Mr Collins acknowledged that the wing in question held 25 to 27 people. To have a smoke-free wing would require 25 to 27 prisoners who could be placed in that wing and who were willing to refrain from smoking. In evidence Mr Mann said that there were not sufficient prisoners interested in residing in a smoke-free wing to fill the wing. Ms Bordoni gave evidence that she was aware of attempts to establish a smoke-free wing, but said that the high prisoner number required, and the design and configuration of units, made it impossible to establish a completely smoke-free unit without having unoccupied cells. I accept this evidence. It was not reasonably practicable to make this wing a smoke-free wing.
Mr Collins argues that the rules relating to smoking were not adhered to by prisoners nor enforced adequately by prison officers. He said that smoke drifted between cells. In addition Mr Collins argues that he was exposed to smoke in workshops where there was no policy in relation to smoking. Mr Collins complains that he has suffered nausea, headache and sinus problems as a result of exposure to side-stream smoke.
There is no dispute that the defendant owed Mr Collins a duty of care, requiring it (subject to necessary consequences of a regime of imprisonment), to take reasonable care for his health.
Mr Collins was the sole occupant of his cell. The unit had air-conditioning and windows to the outside. Rules existed which prevented prisoners from smoking anywhere in the division except in their cells and in the outside yard. From Ms Bordoni’s and Mr Mann’s evidence there was an expectation (which I accept) that there would be a practical approach to the enforcement by officers of rules relating to smoking. According to Mr Mann prisoners were reported for breaching the rules. The education unit was smoke-free. Efforts were made to establish a smoke-free wing, however, the number of non-smokers required meant that it was not practical. Prisoners may not have adhered strictly to the rules relating to smoking, however it is not clear from the evidence how often this occurred, nor is the amount of smoke that Mr Collins was exposed to clear. That side-stream smoke or passive smoking can adversely effect one’s health has become more evident in recent years. I am of the opinion that the measures taken by the defendant at this time aimed at limiting the exposure of non-smokers to side-stream smoke were reasonable in the circumstances, and the defendant has not breached its duty of care.
Mr Collins argues that as a result of exposure to side-stream smoke he has suffered health problems in particular nausea, headaches and sinus problems. In support of this Mr Collins points to the fact that he has complained of the effects of side-stream smoke on his health to prison medical officers on a number of occasions. He points to his medical records as evidence of his complaints. However these records do nothing more than record a number of complaints. Even if I were of the opinion that the defendants had breached the standard of care expected in the circumstances, there is no evidence to show that the cause of Mr Collins’ complaints is smoke related. No entitlement to damages was made out.
Removal of stamps from incoming mail and return of goods without notification
Mr Collins argues that the defendant has failed to comply with s 33 and s 83 of the CSA in that stamps were removed from his incoming mail but, were not placed with his property in storage. He complains that he was not notified of the removal of stamps from letters, which he argues was required by s 33 (12). Mr Collins claims the value of the stamps removed from his letters.
A direction that stamps be removed from incoming mail was given in Yatala Labour Prison in April 2001. According to Ms Bordoni the direction was given because of the risk of drugs or prohibited substances being glued to the back of stamps. In her evidence Ms Bordoni said it was not practicable to keep the stamps removed from letters and to put them with a prisoner’s property in the property storage area.
In response to this, Mr Collins pointed to the fact that the adhesive part of an envelope has a larger surface area on which to hide illicit substances, then does a stamp. That may be so, but it does not show that the decision to remove stamps had no reasonable basis. I accept the evidence explaining the reason for removing stamps from envelopes. The failure to remove parts of envelopes with an adhesive surface does not demonstrate that the decision to remove stamps was not properly made.
As I have previously commented it is inherent in the concept of imprisonment and implicit in the provisions of the CSA, that the CEO and prison manager have general control over a prisoner’s property.
Section 33 of the CSA relates to prisoners’ mail, the entitlement of prisoners to receive and send letters and the power of a manager and authorised officers to examine and deal with letters.
The section uses the word “letter” sometimes to refer to an envelope containing a letter (for example, in references to opening a letter) and sometimes to refer to the letter itself (for example, translating a letter). It is not clear that the section requires that prisoners be given the envelopes in which letters are sent. In any event, I can find nothing in the section that would prohibit the removal of a stamp from a letter, as part of the process of examining a letter under s 33 (4). In any event, s 83 of CSA gives managers the power to make rules relating to the management of the correctional institution and this would include the power to make rules with respect to the removal of stamps on letters sent to prisoners.
Section 33 (12) provides: “The manager must advise a prisoner in such manner as the manager thinks fit of any action taken under this section in respect of a letter, or anything contained in a letter, sent to or by the prisoner.” In my view removal of stamps from a prisoner’s mail is not an action taken under s 33 in respect of a letter. Therefore the manager was not obliged to advise Mr Collins of the removal of stamps from his mail.
Therefore I find that removal of stamps from envelopes was not prohibited by the CSA, nor did the CSA require that stamps once removed be placed with a prisoner’s property. Even if I were of the opinion that the defendant had not complied with the CSA in removing stamps, Mr Collins has not given any evidence as to the value of the stamps removed.
Mr Collins also complains that he was authorised to purchase a subscription for a natural health journal for $240.00. Mr Collins received one issue of the journal, however the remaining issues were, he says, returned to the sender. Mr Collins claims that he was not advised that the books were returned to the sender, which he argues was required by s 33 (12) of the CSA. Mr Collins also claims that photographs, legal articles and information sent from his family were returned to them without proper notification under s 33 (12). Mr Collins claims damages reflecting the value of the journal subscription and other articles.
Ms Bordoni could not give any evidence relating to items sent to Mr Collins but returned to the sender. She acknowledged, however, that there were problems concerning the returning of items which had been authorised. She seemed to accept that mistakes had been made.
Section 33A of the CSA deals with prisoners’ rights to send and receive goods. It appears to be the relevant provision. Section 33A gives the manager “absolute discretion” to deal with goods sent to a prisoner which are “goods in respect of which permission is not given”: s 33A (4). There is no requirement under this section to inform a prisoner if goods are dealt with under the section.
There was no evidence before the Court, other than that from Mr Collins, that he had purchased or had been given approval to purchase the journal in question. Mr Collins said that he realised the journals had been returned to the sender when he contacted the company upon his release and was informed by the company that the journals had been returned to it. Apparently Mr Collins asked for re-imbursement but was told it was “too late”. Again there is no evidence before the Court of this other than Mr Collins’ assertions. I accept Mr Collins’ evidence about this. It was not challenged. I consider that in respect of this matter he be entitled to damages, on the basis that the prisoner manager failed to deliver to him goods that he had been given permission to buy. Mr Collins was entitled to be given the journals: s 33A (5). The return of them to the sender was, I consider, conversion of the journals. The value of the goods was not established, but the price paid ($240.00) is a reasonable measure of value. Accordingly, I award him that amount.
In relation to mail containing family photographs and legal articles and information, sent by Mr Collins’ family, there is no evidence of this other than Mr Collins’ evidence. In any event Mr Collins agreed that he received these items when he was released on home detention. No loss has been proved.
Conclusion
With the exception of the claim for failure to deliver the journals, all other claims against the State should be dismissed. Accordingly judgment will be entered in favour of Mr Collins for the sum of $240.00. I will hear the parties as to costs.
The issues raised in this case suggest that in some respects the provisions of the CSA relating to prison management warrant review. The evidence also suggests that in some respects prison officers, at least at the time of the events in question, were not as clear as they needed to be about the practical application of the provisions of the CSA relating to the management of prisoners.
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