Fyfe v The State of South Australia
[2007] SASC 272
•23 July 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
FYFE v THE STATE OF SOUTH AUSTRALIA
[2007] SASC 272
Judgment of The Honourable Justice Kelly
23 July 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT
Application for judicial review of a decision not to revoke an order to keep applicant separate and apart from other prisoners – decision made pursuant to s36 Correctional Services Act 1982 (SA) – whether there was jurisdictional error – whether procedural fairness was afforded to the applicant – complaint of inhumane treatment of applicant.
Held: Decision maker exercised discretion according to the law – procedural fairness was afforded to the applicant – conditions of incarceration not relevant to the exercise of decision maker’s discretion - in any event applicant has not been subjected to inhumane treatment -no jurisdictional error. Application dismissed.
Correctional Services Act 1982 (SA) s36(2)(c), s36(6)(b), referred to.
Fyfe v Bordoni & Ors (1998) 199 LSJS 401; Fyfe v The State of South Australia [2000] SASC 84; Page v The State of South Australia (1997) 95 A Crim R 25; Kioa v West (1985) 159 CLR 550, applied.
FYFE v THE STATE OF SOUTH AUSTRALIA
[2007] SASC 272Criminal:
KELLY J:
Introduction
The applicant seeks judicial review of a decision not to revoke an order made on 16 January 1995 to keep him separate and apart from other prisoners. This decision was made by the General Manager of Yatala Labour Prison (“Yatala”), exercising his discretion under s36(6)(b) of the Correctional Services Act 1982 (SA) (“the Act”).
On 16 January 1995 the applicant murdered a fellow prisoner. On the same day, the General Manager of Yatala directed that in the interests of protecting other prisoners the applicant be kept separate and apart. That direction has never been revoked. Prior to the hearing of this application the last determination under the section by the General Manager not to revoke the direction was made on 12 April 2007 (the relevant decision).
Grounds
The applicant has brought two previous applications of a similar nature. The matters relevant to those applications can be found in the judgments of Olsson J in Fyfe v Bordoni & Ors[1] (the 1998 review) and Martin J in Fyfe v The State of South Australia[2] (the 2000 review).
[1] (1998) 199 LSJS 401.
[2] [2000] SASC 84.
At the hearing of this application the applicant was unrepresented. The grounds he identified for seeking judicial review of the General Manager’s decision were put in the following way:
1.The conditions that apply to the applicant in G Division are unacceptable and more restrictive than in the past.
2.There are errors in some of the documentation relied on by the General Manager in reaching the decision not to revoke the order made. Therefore his continued separation from the mainstream prison population is not authorised.
3.Procedural fairness has been denied to the applicant in a number of ways including:
(i) Prisoner complaint procedures to visiting inspectors;
(ii)The applicant’s absence from a meeting in relation to an individual management plan being developed for him;
(iii)The review of separation forms completed weekly by management do not reflect any genuine consideration by the management of the continuing need to keep the applicant separate and apart;
(iv)The failure of management to develop a management plan for the applicant;
(v)Ongoing prejudice to the applicant over unfounded previous allegations concerning possession of contraband and alleged escape plots.
I infer from the documentary material tendered by the applicant that he also complains that the conditions in G Division are contrary to international covenants which prohibit inhumane treatment of prisoners.
The relevant principles
The decision was made by the General Manager under the provisions of s36 of the Act. That section provides:
(1)A prisoner must not be kept separately and apart from all other prisoners in the correctional institution except in accordance with this section.
(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
(b) in the interests of the safety or welfare of the prisoner; or
(c) in the interests of protecting other prisoners; or
(d) in the interests of security or good order within the correctional institution.
(3)A direction given pursuant to subsection (2)(a) has effect for such period, not exceeding 30 days, as may be specified in the direction.
(4)Any other direction under subsection (2) has effect until revoked by the Chief Executive Officer.
(5)A direction cannot be given more than once pursuant to subsection (2)(a) in respect of the incident giving rise to the alleged offence.
(6) A direction given under subsection (2)—
(a) must be in writing; and
(b) may be revoked at any time by the Chief Executive Officer.
…
Section 36(2)(a) to (d) set out the matters that are relevant to the exercise of the General Manager’s discretion under s36(6)(b). In the applicant’s case, the General Manager specifically relied on s36(2)(c) of the Act. As pointed out by the applicant, some relevant forms refer to the decision being based on s36(2)(b). In evidence the General Manager explained this to be a typographical error. I do not consider that this error alters the character of the decision as one based on s36(2)(c).
Previously this Court has held that the exercise of the discretion vested in the Chief Executive Officer under s36 of the Act is judicially reviewable. In Page v The State of South Australia[3] Bleby J stated:
Several points need to be made about that section. The discretion placed upon the Chief Executive Officer is expressed in broad terms, being dependent upon his or her opinion that it is desirable to make the order. However, it is at once limited by the consideration that must be given to the matters referred to in sub-paras (a) to (d) inclusive. It is to be contrasted with s24(2) which vests in the Chief Executive Officer an absolute discretion to place any particular prisoner in such part of the correctional institution and to establish in respect of a particular prisoner such 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.
That latter section was the subject of consideration by Perry J in Bromley v McGowan and Vardon (1994) 178 LSJS 1 where it was held that there were only very limited grounds on which the Court could intervene in relation to a decision made under that section. Whether the Court, in considering a determination under s36, is similarly limited, was not argued before me on this occasion. There can be little doubt, however, that, as in the case of s24(2), the exercise of power under s36 must be bona fide and not for a purpose unrelated to the grounds stated in subs (2).
It was not suggested that the decision was not reviewable at all by this Court; c/f Bromley v Dawes (1983) 34 SASR 73; 10 A Crim R 98, dealing with the predecessor to this section in a rather different form. Finally, it would be noted that a direction under subs (2) other than for a reason referred to in para (a), is of indefinite duration, and is not necessarily subject to any review by the Chief Executive Officer. For that reason, and for the serious consequences which follow for the prisoner, where a challenge of this nature is made, a court will need to scrutinise carefully the reason said to justify the determination, in order to ensure that no extraneous considerations have influenced the Chief Executive Officer in forming his or her opinion.
[3] (1997) 95 A CrimR 25 at 27.
In the course of his judgment in Fyfe v Bordoni & Ors[4] (the 1998 review), Olsson J commented:
Whether or not the rules of natural justice apply in relation to a s36 direction may be a moot point. But what can be said is that a non observance of them may lead to obvious conclusions either as to bona fides or, alternatively, whether a direction given or maintained is so unreasonable a use of the power of management as to amount to an abuse of that power, warranting intervention by the court (cf Macrossan J in McEvoy v Lobban [1990] 2 QdR 235 at 236-7). That a power of intervention exists and may be exercised in proper cases is beyond question. One situation which might justify intervention could, for example, be the raising of quite unreasonable, distorted, unfounded, or patently unfair reports bearing adversely on a prisoner. The potential for such a situation being asserted, absent adherence to principles of natural justice, is obvious.
[4] (1998) 199 LSJS 401 at 414.
In Fyfe v State of South Australia[5] (the 2000 review) Martin J said:
There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the Court’s jurisdiction must be carefully observed and the Court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of the court surroundings.
[5] [2000] SASC 84 at [18].
I respectfully agree that I should apply these principles to the determination of this application.
The relevant decision
Mr Gary John Oxford, in his position as the current General Manager of Yatala, is the delegate of the Chief Executive Officer. Mr Oxford explained the basis of his decision to keep the applicant separate and apart from other prisoners in affidavits sworn on 18 August 2006 and 30 March 2007. These affidavits were supplemented by oral evidence at the hearing.
According to Mr Oxford, the applicant continues to present an unreasonably high level of risk of harm to other prisoners. He told the Court that he had taken a number of factors into account in reaching this conclusion. His considerations included a psychological assessment of the applicant’s likelihood of re-offending if reintegrated into the prison population, the applicant’s behaviour since the last judicial review (the 2000 review) and subsequent behavioural responses of the applicant to Department attempts to implement the recommendations in the Bambonye report.
In assessing the applicant’s behavioural responses, Mr Oxford reviewed documentation concerning interactions between the applicant and various officers of the Department for Correctional Services over a considerable period. Those documents are held electronically on the Justice Information System (JIS). Each Correctional Services Officer makes entries on the JIS more or less contemporaneously with any significant interaction with the applicant.
In light of his quite recent appointment as General Manager of Yatala in November 2004, Mr Oxford explained that it was necessary for him to review documentation held by the Department to inform himself adequately of the history of the applicant’s incarceration in G Division.
Mr Oxford gave evidence that he relied on specific material related to occasional threats made by the applicant towards Correctional Services Officers and others between 1999 and 2004. The applicant submitted that he had made no threats to anyone since 1999. However, there are a number of reports of allegations made by various Correctional Services staff. There are also a number of threats contained within letters written by the applicant himself to various authorities. It is true that the threats over the period of time appear to have diminished and sometimes are quite non-specific. Nevertheless, the material upon which Mr Oxford relied, as set out in his affidavit of 18 August 2006[6] was all relevant material to be considered by him in making the relevant decision.
[6] Affidavit of Gary John Oxford dated 18 August 2006, para 83.
In addition to this material, Mr Oxford also relied on a psychologist’s report of 1 September 2004. A matter of ongoing concern has been the failure in the past of the applicant to proffer any reasons for his earlier violent offending. At the hearing of this application, the applicant did proffer some reasons for the commission of the offences of both murder and attempted murder, for which he has been convicted. However, his explanation for murdering the police officer appears to be at odds with the explanation he proffered to the psychologist in 2004. Whether that explanation approximates to the truth is a matter of conjecture. However, the applicant’s evidence on this topic in my view demonstrates the accuracy of the psychologist’s conclusion in the September 2004 report that the applicant continues to demonstrate little insight into his offending behaviour.
There can be no question that in arriving at the relevant decision, these were all relevant matters for the General Manager to consider.
The Bambonye Report
Following the 2000 review, the previous General Manager, Ms Bordoni, commissioned an assessment by two psychologists to determine the level of risk presented by the appellant to other prisoners and to make relevant recommendations for any suitable treatment.
That report, (the Bambonye report) dated 12 December 2003, included detailed recommendations as to the work required to be undertaken with the applicant to reduce the risk level to a satisfactory level and permit reintegration into the general prison population. The authors proposed an integrated step by step program to be followed by the applicant and the Department. This program was proposed partly on the basis of the applicant’s indication at that time that he was ready to participate in the process of preparing a contract for reintegration.
The report concluded with an opinion that if the treatment team, after progressing through the various stages, gave the applicant a minimum of 70% accomplishment of the treatment objectives, the team would elaborate the plan for the applicant to be returned to the maximum security general population or to be transferred to an interstate institution. Given the personality characteristics of the applicant, the authors noted that the treatment objectives needed to be very realistic, concrete and short term. They were to be reviewed every six months until the global plans were completed. Significantly, the authors wrote that the stages of the plan required motivation and full collaboration on behalf of the applicant.
The authors noted that the applicant presented a high risk of re-offending for violent and non-violent offences (assessed as 100% likelihood of re-offending on release). However, notwithstanding such a bleak assessment, it was concluded:
Despite the current risk for re-offending for Mr Fyfe, there is no reason to conclude that in time he could not be transferred from G Division. He holds the relevant skills and personality attributes necessary to integrate into the maximum security general prison population (Port Augusta, Yatala Labour Prison or an equivalent interstate institution). At present, however, Mr Fyfe’s goals are inconsistent with the normal progression through the correctional system. Mr Fyfe will need to adapt his goals, encompassing more realistic and progressive aims, to access the advantages available to most prisoners.
Mr Oxford told the Court that the applicant disagreed with the findings of the report. The applicant maintained that Mr Bambonye had indicated to him that the work detailed in the report could be done in B Division rather than G Division. Further, he refused to accept any proposal in the report for psychiatric intervention or medication. Indeed, according to the applicant the suggestion of psychiatric intervention and possible medication was never put to him during interviews for the preparation of that report. Due to these disagreements, tension arose between the applicant and correctional staff which escalated almost immediately upon the applicant being given that report.
The applicant’s first response to the report appears to have been to apply for a transfer to a Western Australian prison to serve the balance of his sentence. The Department supported that application, particularly since one of the purposes of the application was to enable him to participate in a violent offender treatment program. Almost immediately thereafter the applicant withdrew his request for transfer to Western Australia.
It is clear that the previous General Manager commissioned the Bambonye report in an endeavour to find some basis to work towards allowing the applicant to reintegrate into the general prison population. Mr Oxford reiterated his position in a telling exchange in the course of his cross-examination.[7]
[7] Transcript of proceedings 24 April 2007 pp 120 - 121.
QIf for example – is there any reason why not that I cannot be transferred – the separation order be revoked and transferred to another division and yet do programs, do the required programs that you are seeking in that division; is there a need that I have to do it in G Division before.
ATo best answer that question, I don’t believe it is appropriate to just stop the separation today, transfer you into B division. Certainly I can engage that intervention part of it, but the issues that are stuck right at the forefront of my mind is the psychological assessments that have done testing, that say, you know, you’re as high as100% likely to injure or do some serious damage to another prisoner, hence, your separation and, at the same time, I recognise that some of those psychological reports have said. However, with some intensive intervention they believe you can be ultimately or eventually transferred back into a mainstream environment. Certainly those reports don’t give a time frame, of the day, month or year, but to answer your question I‘ve got concerns for the safety and wellbeing of other prisoners. Hence, you are still separated in G Division and I would, I think I would not be providing duty of care to yourself and a whole heap of other people if I just signed off your separation order today and let you go into a mainstream prison, accommodation unit and then work in that intervention plan.
Later Mr Oxford was even more explicit as to his state of mind.[8]
QDo you understand that from time to time, because I get frustrated at the circumstances for which I am detained and that I choose not to communicate as not to communicate is my only tool as a way to deal with the circumstances for which I am in.
AYour Honour, if I may direct it to Mr Fyfe, I do understand your frustrations but I’ve still got a duty of care to try and provide you with some assistance to address a number of issues because, at the end of the day, it’s in my power to be able to give you that opportunity to get you back into normalisation within the prison system but I do appreciate and understand your frustration, but I’m stuck within parameters of how I’m to work. Stock (sic) one, case management, clearly tells me and my staff that we must treat each prisoner that we have as an individual and on an individual basis, not put them all in the same basket. I’m frustrated and so are my staff so I can appreciate how frustrated you are.
QThat’s all I’ve got, thanks.
[8] Transcript of proceedings 24 April 2007 pp 122 – 123.
Given the applicant’s inconsistent behaviour since the Bambonye report, Mr Oxford maintained that it has been impossible to effect the types of intervention required to reduce his level of risk to other prisoners. Such intervention would include sustained cooperation between the applicant and the prison psychologist. Mr Oxford pointed out that that further delays have resulted from the applicant’s lack of cooperation both with the social worker and the prison psychologist, appointed in late October 2004 for the specific purpose of working with him. Evidently the recommendations of the report have been difficult to implement.
Conditions in G-Division
One of the applicant’s main complaints is that the conditions in G Division are very restrictive and harsh. He submits that his detention in that Division for over twelve years indicates in itself that the manager’s decision not to revoke the order made on 16 January 1995 is unreasonable. In his evidence at the hearing, he further contended that the conditions in G Division are now so abnormally harsh and punitive that his continued incarceration in the Division amounts to inhumane and unlawful treatment.
The conditions applying in G Division were thoroughly documented in the judgment of Olsson J in Fyfe v Bordoni & Ors.[9] It is therefore not necessary to repeat in any detail the daily circumstances of prisoners incarcerated in that Division.
[9] (1998) 199 LSJS 401.
During the course of the hearing I viewed the conditions in G Division and the Adelaide Remand Centre. The description of the conditions as spartan and restrictive is accurate. However, there is nothing I saw or heard in the evidence to suggest that the applicant has not been treated in as humane a manner as possible given the necessary restrictions imposed on him by virtue of his placement in that Division. His limited capacity for movement beyond his cell and his limited contact with other prisoners is necessarily so because of the danger he has presented to others in the past.
There has been a great deal of debate in the literature about what amounts to “inhumane treatment” in the context of prisoners.[10] In Fyfe v The State of South Australia[11] Martin J outlined some extreme conditions which might render the decision of a Chief Executive Officer to incarcerate a person in G Division unreasonable. In my view, the hypothetical situation postulated by Martin J does not arise in the applicant’s circumstances.
[10] See, e.g. Garland v Chief Executive, Department of Corrective Services [2006] QCA 568.
[11] [2000] SASC 84 at [21].
I was told that the regime to which the applicant is currently subjected in G Division is very similar to the regime which applies in B Division. It does afford some additional privileges to those on longer regimes in acknowledgement of the length of duration of their separation. Apart from temporary demotions when his behaviour warranted it, the applicant has remained on the long term regime since November 2000. Occasionally the applicant has had particular privileges, no doubt arising out of his unique circumstances as the longest serving prisoner in G Division.
In any event, I accept the respondent’s submission that the conditions of incarceration in G Division are not relevant to the exercise of the discretion exercised by the General Manager when determining whether or not to revoke a direction to keep the prisoner separate and apart. As Martin J in Fyfe v State of South Australia[12] observed:
The formation of the opinion that it is desirable to keep the applicant separately and apart from all other prisoners and the decision to give a direction to that effect are different from the decision to detain the applicant in G Division. The distinction should be borne in mind. The latter decision is a decision as to the means by which effect can be given to the antecedent decision that the applicant be kept separately and apart from all other prisoners. Considerable emphasis has been given to the harshness of the conditions in G Division and of the regime put in place with respect to the applicant. Those matters do not directly impinge upon the issue as to whether it is unreasonable in the legal sense to have arrived at the decision to keep the applicant separately and apart from all other prisoners.
[12] [2000] SASC 84 at [21].
In theory, the decision to keep a prisoner separate and apart could be achieved by accommodating a prisoner in a number of different regimes. However, for various logistical reasons, detention of the applicant in G Division has been determined as the most appropriate means by which to keep the applicant separate and apart. Undoubtedly one of the primary reasons is that there is simply no other accommodation available in the prison system appropriate for that purpose.
Procedural Fairness Issues
The applicant complained that the General Manager had relied on a number of historical, unfounded and unproven allegations of misconduct whilst incarcerated in G Division. In the main these allegations related to the applicant’s possession of contraband in his cell and the discovery of specified items in areas largely frequented and occupied by him. Several of these incidents were referred to in the previous judgments of Olsson and Martin JJ.
I accept the evidence of Mr Oxford who specifically disavowed any reliance on those historical matters. Generally I found Mr Oxford to be a truthful and credible witness. There is simply no reason to disbelieve his explicit statement that he did not place any reliance on those matters.
Part of the material relied on by Mr Oxford is contained in weekly separation review forms. On those forms staff place any relevant comment. The applicant also has the opportunity to make any submissions to the General Manager. Some of the weekly separation review forms tendered at the hearing contain comments by both staff and the applicant. However, there are a large number of forms which contain no comment whatsoever by the applicant. I was told by him that he no longer bothers to make any comment as he has formed the view that there is no genuine decision based on any of the information contained in those forms.
The applicant nevertheless complained that he has been denied procedural fairness in that part of the material relied on by the General Manager is contained within the Justice Information System (JIS). While he does not have access to some information contained in the JIS, anything of significance is noted on the weekly separation review forms.
I am satisfied that the applicant has been notified at all relevant stages of the essential information relied on by the General Manager in making the decision to continue to detain him separately and apart from the other prisoners.
I am also satisfied that the applicant clearly understands what he must do to satisfy the General Manager that he is a suitable candidate to be transferred back to the mainstream prison population. He has been made fully aware of the need to engage in a sustained therapeutic relationship with the psychologist and the social worker assigned to him. Nothing which was relied on by the General Manager as the basis for continuing to keep the applicant separate and apart has been withheld from the applicant. While the applicant takes a different view about these requirements, he is aware of them and the basis for them.
The doctrine of procedural fairness does not require that the applicant be provided with exact copies of all documentation that the General Manager relied on in exercising his discretion. What it does require is that the applicant has sufficient information to understand the case he must meet. A clear statement of that principle is to be found in the judgment of Mason J, Kioa v West:[13]
The need to bring the person’s attention to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.
[13] (1985) 159 CLR 550 at 587.
Conclusion
The central purpose of s36(2)(c) is clear, namely to safeguard other prisoners. The evaluation of the material and the assessment of the risk to the safety of other prisoners posed by the applicant was conferred on the General Manager by virtue of the provisions of s36. He informed the Court of the matters he relied on in making the decision not to revoke the order to keep the applicant separate and apart from other prisoners. There was ample material upon which he could have reasonably formed the opinion that the applicant still poses a serious threat to other prisoners unless confined in the G Division.
In all of the circumstances I am satisfied that the General Manager has exercised the discretion under s36(6)(b) according to law. It follows that he has not fallen into jurisdictional error and the application must therefore be dismissed.
In concluding I add the following observation. A number of violent offenders have spent significant periods in G Division. It appears they have moved on to other divisions after demonstrating that the level of risk they present has been reduced to an acceptable level. The applicant is the only prisoner who has spent as long as he has in G Division.
It is profoundly regrettable that the applicant has now spent over 12 years there. However, the evidence supports the conclusion that he has within his grasp the means to end his incarceration in G Division. The fact that he has not yet availed himself of the opportunity available to him to progress towards transfer to the mainstream prison population is largely a matter of his own choosing.
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