ID, PF and DV v Director General, Department of Juvenile Justice

[2008] NSWSC 966

Reported Decision: [2009] ALMD 5438
[2009] ALMD 5284
[2009] ALMD 5288
[2009] ALMD 5286
[2009] ALMD 5285
188 A Crim R 165
73 NSWLR 158

New South Wales

Supreme Court

CITATION:	ID, PF and DV v Director General, Department of Juvenile Justice and Anor [2008] NSWSC 966
HEARING DATE(S):	27 August 2008, 28 August 2008
JUDGMENT DATE :	19 September 2008
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Declaration that the First Defendant failed to accord each of the Plaintiffs ID, PF and DV, procedural fairness prior to directing his transfer under s.28 Children (Detention Centres) Act 1987 from a juvenile detention centre to an adult correctional centre. 2. Order that the direction of the First Defendant that each of the Plaintiffs, ID, PF and DV, be transferred from a juvenile detention centre, to an adult correctional centre is set aside. 3. Order that unless and until a lawful and valid determination is made under s.28 Children (Detention Centres) Act 1987 directing his transfer to an adult correctional centre, each of the Plaintiffs, ID, PF and DV, is to be returned to the Juvenile Justice Centre from which he has been moved. 4. The First Defendant to pay the costs of the Plaintiffs, ID, PF and DV.
CATCHWORDS:	ADMINISTRATIVE LAW - judicial order under s.19 Children (Criminal Proceedings) Act 1987 that sentences of Plaintiffs be served as juvenile offenders - administrative order made for transfer of Plaintiffs under s.28 Children (Detention Centres) Act 1987 from juvenile detention centre to adult correctional centre - proceedings for judicial review - whether Plaintiffs entitled to procedural fairness before transfer - whether Plaintiffs were accorded procedural fairness - whether failure to have regard to relevant factors - whether regard had to irrelevant factors - whether transfer decision vitiated by inflexible application of policy - relief granted
LEGISLATION CITED:	Supreme Court Act 1970 Children (Detention Centres) Act 1987 Civil Procedure Act 2005 Children (Criminal Proceedings) Act 1987 Felons (Civil Proceedings) Act 1981 Evidence Act 1995 Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Prisons Act 1952 Prisons Regulations 1968 Correctional Centres Act 1952 Correctional Centres (General) Regulation 1995 Children (Detention Centres) Regulation 2005 Interpretation Act 1987
CATEGORY:	Principal judgment
CASES CITED:	R v GDP (1991) 53 A Crim R 112 KT v R [2008] NSWCCA 51 R v Tran [1999] NSWCCA 109 CM v R [2008] NSWCCA 195 CTM v R (2007) 171 A Crim R 371 R v CK [2002] NSWSC 942 R v DN [2004] NSWSC 426 R v KT [2007] NSWSC 83 R v PB [2008] NSWCCA 109 R v MD (2005) 156 A Crim R 372 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Kioa v West (1985) 159 CLR 550 Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 Jarratt v Commissioner of Police for NSW [2005] 224 CLR 44 Smith v Commissioner for Corrective Services (1979) 1 NSWLR 317 Flynn v The King (1949) 79 CLR 1 Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 Panayotov v Commissioner of Corrective Services (10 November 1999, unreported) Vezitis v McGeechan (1974) 1 NSWLR 718 McEvoy v Lobban [1990] 2 Qd R 235 Re Walker [1993] 2 Qd R 345 JMR v Department of Juvenile Justice [1999] NSWSC 169 Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 221 CLR 1 Annetts v McCann (1990) 170 CLR 596 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Commissioner of Police v Ryan [2007] NSWCA 196 South Australia v O’Shea (1987) 163 CLR 378 Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1 Renton v Bradbury [2001] QSC 167 Mobil Oil Australia v Federal Commissioner of Taxation (1963) 113 CLR 475 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] 214 CLR 1 Johns v Release on Licence Board (1987) 9 NSWLR 103 Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 R v Rymer [2005] NSWCCA 310 Baba v Parole Board (1986) 5 NSWLR 338 New South Wales v Canellis (1994) 181 CLR 309 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Saville v Health Care Complaints Commission [2006] NSWCA 298 Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [1999] 197 CLR 510 Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323 Sean Investments Pty Limited v MacKellar (1981) 38 ALR 363 Croft v Minister for Health (1983) 45 ALR 449 PW Adams Pty Limited v Australian Fisheries Management Authority (1995) 60 FCR 387-402 Australian Fisheries Management Authority v PW Adams Pty Limited (1995) 61 FCR 314 Wacando v Commonwealth of Australia [1981] 148 CLR 1 R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Green v Daniels (1977) 13 ALR 1 Rendell v Release on Licence Board (1987) 10 NSWLR 499 Hot Holdings v Creasy [2002] 210 CLR 438 Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 Khan v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 11 December 1987, BC8702232) [1987] FCA 457 Bignell v New South Wales Casino Control Authority (2000) 48 NSWLR 462 Ex parte 2HD Pty Limited (1979) 144 CLR 45 Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 Masters v Chief Executive, Department of Corrective Services (2001) 121 A Crim R 173 Russo v Aiello [2003] 215 CLR 643 Tickner v Bropho (1993) 114 ALR 409 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565 Re Yanner (2000) 100 FCR 551 Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
TEXTS CITED:	Pearce and Geddes, “Statutory Interpretation in Australia”, 6th edn, 2006 Bennion, “Statutory Interpretation”, 4th ed, 2002 Aronson, Dyer and Groves, “Judicial Review of Administrative Action” 3rd ed, 2004
PARTIES:	ID, PF and DV (Plaintiffs) Director General, Department of Juvenile Justice (First Defendant) Commissioner for Corrective Services (Second Defendant)
FILE NUMBER(S):	SC 30054/08
COUNSEL:	Mr AC Haesler SC; Ms R Graycar (Plaintiff) Mr MJ Leeming SC; Mr TH Barrett (First Defendant) Submitting Appearance (Second Defendant)
SOLICITORS:	SE O'Connor, Legal Aid Commission of NSW (Plaintiff) IV Knight, Crown Solicitor (First Defendant) IV Knight, Crown Solicitor (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Johnson J

19 September 2008

30054/08 ID, PF and DV v Director General, Department of Juvenile Justice and Anor

JUDGMENT

1 JOHNSON J: By Amended Summons filed 27 August 2008, the Plaintiffs, ID, PF and DV, seek relief in the nature of prerogative and declaratory relief under ss.69 and 75 Supreme Court Act 1970 with respect to decisions of the First Defendant, the Director General, Department of Juvenile Justice, ordering their transfer under s.28 Children (Detention Centres) Act 1987 (“CDC Act”) from a juvenile detention centre to an adult correctional centre.

2 At the hearing of the Amended Summons, Mr Haesler SC and Ms Graycar appeared for the Plaintiffs. Mr Leeming SC and Mr Barrett appeared for the First Defendant. A submitting appearance was filed on behalf of the Second Defendant, the Commissioner for Corrective Services.

The Grounds for Relief

3 The grounds for relief contained in the Amended Summons contend that the First Defendant:

(a) failed to accord the Plaintiffs procedural fairness prior to making the decision to transfer each Plaintiff from a juvenile detention centre to an adult correctional centre;

(b) took into account irrelevant considerations;

(c) failed to take into account relevant considerations;

(d) made the decision by the inflexible application of policy.

Procedural Background

4 The present proceedings were commenced on 12 May 2008 by the filing of a Summons in which six Plaintiffs were nominated - the current Plaintiffs, together with UT, AM and KT. In addition, five Plaintiffs sought relief in separate proceedings (JM and Ors v Director General, Department of Juvenile Justice and Anor - 30055/08).

5 On 21 May 2008, McCallum J made orders pursuant to s.72 Civil Procedure Act 2005 that the Plaintiffs, including ID, PF and DV, be referred to in these proceedings by their initials. I observe, in any event, that s.11 Children (Criminal Proceedings) Act 1987 (“CCP Act”) applies to prohibit publication of the names of the Plaintiffs.

6 On 26 June 2008, Kirby J granted the Plaintiffs leave to continue with the proceedings under s.4 Felons (Civil Proceedings) Act 1981.

7 By the time the Amended Summons was called on for hearing on 27 August 2008, the only Plaintiffs pressing a claim for relief were ID, PF and DV.

The Judicial Discretion to Make an Order Under s.19 CCP Act

8 As will be seen, ID, PF and DV, were each sentenced to terms of imprisonment by different Judges of the District Court on various dates between 25 January and 30 August 2007. In each case, the sentencing Judge made an order under s.19(1) CCP Act, directing that the term of the sentence of imprisonment be served as a juvenile offender. In each case, the sentencing Judge was satisfied there were “special circumstances” justifying the detention of the Plaintiff as a juvenile offender after the age of 18 years (s.19(3)(a)) by reference to matters referred to in s.19(4) CCP Act.

9 At the times when ID, PF and DV were sentenced, s.19 CCP Act was in the following terms:

“19 Court may direct imprisonment to be served as a juvenile offender

(1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender.

Note. The effect of such an order is that the person to whom the order relates will be committed to a detention centre (see subsection (6)). There he or she will be detained as specified in the order. In certain circumstances, he or she may subsequently be transferred to a correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987.

(2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless:


(a) in the case of a sentence for which a non-parole period has been set - the non-parole period will end within 6 months after the person has attained that age, or

(b) in the case of a sentence for which a non-parole period has not been set - the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

(3) A person who is sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless:


(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or

(b) in the case of a sentence for which a non-parole period has been set - the non-parole period will end within 6 months after the person has attained that age, or

(c) in the case of a sentence for which a non-parole period has not been set - the term of the sentence of imprisonment will end within 6 months after the person has attained that age.


This subsection is subject to subsection (2) .

(4) In determining whether there are special circumstances for the purposes of subsection (3), the court may have regard to the following matters:


(a) the degree of vulnerability of the person,

(b) the availability of appropriate services or programs at the place the person will serve the sentence of imprisonment,

(c) any other matter that the court thinks fit.


(5) A person who is subject to an order under this section that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order under this section. Any such application requires the leave of the court.

(6) The warrant of commitment that is issued under section 62 of the Crimes (Sentencing Procedure) Act 1999 in relation to a sentence of imprisonment the subject of an order under this section:


(a) must indicate that the sentence is the subject of such an order, and

(b) must specify how much of the sentence is to be served as a juvenile offender, and

(c) must, despite the provisions of that section, commit the person to whom it relates to a detention centre.

(7) Nothing in this section, or in any order under this section, limits the operation of section 28 of the Children (Detention Centres) Act 1987.”

10 A body of jurisprudence has built up with respect to s.19 CCP Act in the sentencing context. In these cases, Courts have considered and applied the range of statutory and common law principles which are to be considered when sentencing a person who has committed crimes when under 18 years of age. Regard would be had to the principles in s.6 CCP Act. Regard would be had to the principles in cases such as R v GDP (1991) 53 A Crim R 112 at 115-116 and KT v R [2008] NSWCCA 51 at [21]-[24] where it was observed that considerations of punishment and general deterrence have less significance in cases involving young offenders than in cases involving adult offenders and that individual treatment aimed at rehabilitation is of greater significance with such offenders than with adult offenders. Of course, this principle may have less application where the offending behaviour has demonstrated that the young offender has conducted himself in a way that an adult does: R v Tran [1999] NSWCCA 109 at [9]; KT v R at [25]-[26].

11 It has been observed that the reconciliation of the principles relevant where a very serious offence is committed by a child creates difficulties in passing sentence: CM v R [2008] NSWCCA 195 at [25]. These difficulties include those of balancing the need for deterrence on the one hand and the fact that general deterrence is a matter of less significance when sentencing a juvenile offender: CM v R at [32].

12 Before a sentence of imprisonment can be passed on a juvenile offender, the Court must have considered a background report prepared by Department of Juvenile Justice (“DJJ”) officers for the purposes of s.25(2)(a) CCP Act: CTM v R (2007) 171 A Crim R 371 at 405 [153]. A background report must deal, at least, with such of the following matters as are relevant to the circumstances of the offence - the offender’s family background, employment, education, friends and associates, the nature and extent of his or her participation in the life of the community, disabilities and antecedents: cl. 6 Children (Criminal Proceedings) Regulation 2005. Such a report was considered by the sentencing Judge concerning each of the Plaintiffs in these proceedings.

13 Having determined the appropriate sentence of imprisonment in each case, the Court comes to the question whether a s.19 order ought be made where the offender is over 18 years old at the time of sentence. Before a s.19 order can be made, the Court must find “special circumstances” under s. 19(3)(a) by reference to the matters in s.19(4). Reasons for such findings include:

(a) physical and emotional vulnerability as well as better prospects of rehabilitation if the person remains in a juvenile detention centre: R v CK [2002] NSWSC 942 at [32];

(b) vulnerability of the offender personally and in relation to his rehabilitation, together with the fact that the person’s rehabilitation will be substantially enhanced by his continued detention in a juvenile detention centre and would be positively handicapped by transfer to an adult gaol, particularly having regard to the relative lack of rehabilitative programs available in adult gaols when compared to those available in a juvenile detention centre: R v DN [2004] NSWSC 426 at [57];

(c) vulnerability in the adult prison system, the person not being a threat to staff or detainees in a juvenile detention centre, the person’s rehabilitation being substantially enhanced by continued detention in a juvenile detention centre and the need to maintain relationships with DJJ staff and others involved in his rehabilitation in the juvenile detention centre: R v KT [2007] NSWSC 83 at [128]; KT v R , above; R v PB [2008] NSWCCA 109 at [58]-[59].

14 It has been accepted that service of a sentence within a juvenile detention centre has significant benefits for an offender as against serving a sentence within the adult prison system: R v MD (2005) 156 A Crim R 372 at 384 [49].

15 Findings of the general type referred to at [13] were made by the sentencing Judge concerning each Plaintiff. A finding of “special circumstances” was made and an order under s.19(1) was pronounced.

16 Section 19 CCP Act provides for this course to be taken by way of judicial order as part of the sentence. It is not a recommendation, but an order of the Court pronounced as part of the sentence. Of course, a sentencing Judge is required by law to give reasons for passing sentence and this was done here, including the delivery of reasons for making a s.19 order in each case.

17 No appeal was brought to the Court of Criminal Appeal by the Crown or the offender concerning the sentences and orders of the District Court in each of the Plaintiffs’ cases.

The Administrative Discretion to Make an Order Under s.28 CDC Act

18 On various dates between 29 March and 23 April 2008, the Acting Director-General, DJJ, made orders under s.28 CDC Act directing the transfer of ID, PF and DV from juvenile detention centres to adult correctional centres. In this judgment, I will refer to these as decisions of the First Defendant, although it was the Acting Director-General who was the actual decision maker. At the time when these orders were made, s.28 CDC Act was in the following terms:

“28 Transfer of older detainees from detention centres to correctional centres

(1) The Director-General may, by order in writing made with the consent of the Commissioner of Corrective Services, direct the transfer of an older detainee from a detention centre to a correctional centre.

(1A) An order may be made under subsection (1) not only in relation to a detainee who is currently detained in a detention centre but also in relation to:


(a) a detainee who is absent from a detention centre, whether pursuant to leave of absence or otherwise, or

(b) a detainee who is being returned to a detention centre following revocation of his or her parole under Part 7 of the Crimes (Administration of Sentences) Act 1999 (as applied by section 29 of this Act), whether pursuant to a warrant in force under section 181 of that Act or otherwise.

(2) In the case of a detainee who is under the age of 18 years, an order may not be made under subsection (1) unless:


(a) he or she is a person on remand or a person subject to control by reason of an order in force under section 10, or

(b) he or she is a person on remand in relation to a serious children’s indictable offence within the meaning of the Children (Criminal Proceedings) Act 1987 , or

(c) he or she is a person subject to control by reason of an order in force under section 19 of the Children (Criminal Proceedings) Act 1987 , or

(d) the Director-General is satisfied that the detainee’s behaviour is or has been such as warrants the making of such an order.

(2A) In the case of a detainee who is of or above the age of 18 years, but under the age of 21 years, an order may not be made under subsection (1) unless:

(a) the Children’s Court makes an order authorising the making of such an order, or

(b) the detainee applies to the Director-General in writing for the detainee’s transfer to a correctional centre, or

(c) one or more of the circumstances referred to in subsection (2) applies in relation to the detainee.


(2B) An order under subsection (1) with respect to a detainee who is under the age of 18 years may only be made for the purpose of transferring the detainee to a juvenile correctional centre.

(3) When a detainee is transferred from a detention centre to a correctional centre pursuant to an order under this section:


(a) he or she ceases to be a detainee and becomes an inmate, and

(b) in the case of a detainee who, having been a person subject to control, becomes a convicted inmate within the meaning of the Crimes (Administration of Sentences) Act 1999 , the period for which he or she was required, under this Act, to be detained in a detention centre when the order was made is taken to be the unexpired portion of a sentence of imprisonment to which he or she is subject.”

19 The exercise of the administrative discretionary power of the First Defendant to order a transfer under s.28 CDC Act of an “older detainee” (defined as a detainee aged over 16 years) from a juvenile detention centre to an adult correctional centre has not been the subject of previous challenge by way of judicial review giving rise to a judgment of this Court.

20 That it is open to the First Defendant to order the transfer of a detainee, despite the existence of an order under s.19 CCP Act is clear: s.19(7) and note after s.19(1) CCP Act. A s.28 transfer order may not be made in the case of a detainee aged between 18 and 21 years unless one of the requirements in s.28(2A) is met. Section 28(2A)(c) merely refers the reader back to s.28(2). Accordingly, a s.28(1) order may be made with respect to a detainee aged between 18 and 21 years if:

(a) the Children’s Court makes an order authorising the making of such an order: s.28(2A)(a);

(b) the detainee applies to the First Defendant in writing for the detainee’s transfer to an adult correctional centre: s.28(2A)(b);

(c) the detainee is on remand in one or other of the circumstances identified in s.28(2)(a) or (b): s.28(2A)(c) applying s.28(2)(a), (b);

(d) the detainee is a person subject to control by reason of an order in force under s.19 CCP Act: s.28(2A)(c) applying s.28(2)(c);

(e) the First Defendant is satisfied that the detainee’s behaviour is or has been such as warrants the making of such an order: s.28(2A)(c) applying s.28(2)(d).

21 The present Plaintiffs do not fall into any category listed in the preceding paragraph apart from (d). The Plaintiffs did not apply for transfer but opposed it. The First Defendant did not purport to order transfer because of the Plaintiffs’ behaviour. I construe the word “behaviour” in s.28(2)(d) as meaning bad behaviour. It is difficult to see that s.28(2)(d) could operate to permit transfer to an adult correctional centre of a detainee who was well behaved. In any event, the evidence in this case reveals that each Plaintiff was well behaved and was making very substantial progress with respect to rehabilitation, education, training and counselling and had been doing so for some months prior to transfer.

22 The only statutory class which exposed the Plaintiffs to consideration for transfer to an adult correctional centre was the fact that each was subject to a s.19 order of a Court.

23 The Court of Criminal Appeal has referred to the s.28 transfer process in the context of appeals before that Court. In CM v R, above, Blanch J (McClellan CJ at CL agreeing) at [31] observed that it might be expected that, in considering the exercise of the s.28 power to transfer to an adult prison, regard would be had to the continuing education of the detainee. In the same case, Grove J at [6] observed that the existence of the s.28 transfer power was irrelevant to the performance of judicial function in assessing sentence, determining a non-parole period and whether or not to make a s.19 order.

24 The powers under s.19 CCP Act and s.28 CDC Act were touched on in R v PB, above. The Crown appealed against the adequacy of sentence imposed in the District Court. The sentencing Judge had made an order under s.19 CCP Act that the sentence be served as a juvenile offender. By the time the Crown appeal came on for hearing, the offender had been transferred under s.28 to an adult prison. The evidence established (at [43]) that the substantial educational and rehabilitative resources available to, and utilised by, the offender in juvenile detention were not available in adult prison. Bell JA (McCallum J and myself agreeing) said at [47]-[48]:

“47 The Crown made inquiries of the inmate classification section of the Department of Corrective Services concerning the reasons for the decision (despite the order made by the Judge) to transfer the respondent to an adult institution. Mr Stephens, State Co-ordinator of the Young Adult Offender Program, advised that the respondent had been transferred pursuant to an order made under s 28 of the Children (Detention Centres) Act 1987. Notable in Mr Stephens’ response to the request made by the Director of Public Prosecutions is the absence of an explanation of the reasons why the order was made.

48 Section 28 empowers the Director General by order in writing, made with the consent of the Commissioner of Corrective Services, to direct the transfer of an older detainee from a detention centre to a correctional centre. The respondent is an older detainee. There is no suggestion either that the respondent applied to the Director General seeking a transfer to a correctional centre or that his behaviour had been such as to warrant the making of an order transferring him. It may be that the order was one made under s 28(2A)(c), a provision which appears to confer a broad power to make such an order in respect of a person who is subject to control by reason of an order in force under s 19 of the Children (Criminal Proceedings) Act.”

25 In allowing the Crown appeal and increasing the sentence, the Court determined (at [58]-[59]) that, despite the fact a s.28 transfer had occurred, an order ought be made under s.19(1) that the offender serve the sentence of imprisonment as a juvenile offender until his 21st birthday. “Special circumstances” were found by reference to the availability of services and programs to assist the offender in juvenile detention and the capacity to complete educational studies and to maintain contact with DJJ officers whose guidance was an important feature of his rehabilitation.

26 None of the cases referred to so far deal directly with the issues which I must decide in this case. However, they provide some understanding of the practical operation of s.19 CCP Act and, to a lesser extent, s.28 CDC Act.

27 The First Defendant has an undoubted power under s.28 to order involuntary transfer of a well-behaved detainee from a juvenile detention centre to an adult correctional centre. However, s.28 says very little about the circumstances in which the statutory discretion may be exercised.

Evidence Adduced in the Proceedings

28 I now turn to the evidence adduced at the hearing. It will be necessary to make findings of fact as part of the resolution of the legal and factual questions falling for determination.

29 There were a number of objections to evidence tendered by the Plaintiffs which required determination at the hearing.

30 The evidence admitted in the Plaintiffs’ case was as follows:

(a) a tender bundle comprising a range of documents concerning the Plaintiffs, including DJJ documents relating to their sentencing, detention and transfer from juvenile detention centres to adult correctional centres (Exhibit A);

(b) an affidavit of ID affirmed 13 August 2008 (excluding paragraphs 31-38);

(c) an affidavit of DV affirmed 7 August 2008 (excluding paragraphs 32-38);

(d) an affidavit of PF affirmed 7 August 2008 (excluding paragraphs 43-50);

(e) an affidavit of Rebecca Cowper sworn 9 May 2008 (paragraphs 1, 2 and 18 only);

(f) a further affidavit of Rebecca Cowper sworn 9 May 2008 (seven pages in length);

(g) a third affidavit of Rebecca Cowper sworn 9 May 2008 (paragraphs 1-2, 13 and 15 and Annexures G and H only) admitted in the Plaintiffs' case in reply.

31 I observe that the parts of the affidavits of ID, PF and DV which I excluded concerned events which had occurred after their transfer to adult correctional centres. I took the view that this evidence was not relevant to the issues to be determined in claims for prerogative and declaratory relief.

32 However, as indicated to counsel during the hearing (T67-69), I will approach the resolution of the present proceedings upon the basis that the statutory framework in the CDC Act and the CCP Act (in particular, s.19) reflects the reality that juvenile detention is likely to be more suitable for vulnerable persons, and that a wider range of educational and other facilities, which may serve to foster rehabilitation, are more likely to be available in a detention centre than an adult prison. This approach is supported by statements in the authorities referred to at [13]-[14] and [24]-[25] above.

33 This accords with the commonsense reality that the environment, conditions, facilities and population of an adult prison are different to that of a juvenile detention centre, irrespective of efforts which might be made by the relevant authorities in this regard. I indicated to Mr Leeming SC that, if he was to submit to the contrary, I would reconsider my decision to reject the evidence of ID, PF and DV concerning their post-transfer experiences. Mr Leeming SC indicated that he did not advance such a submission, so it was unnecessary for me to reconsider the admissibility of the Plaintiffs’ post-transfer experiences in adult prisons. If the First Defendant had not adopted this stance, then the evidence of post-transfer events would have been admissible, not in the sense that those matters should have been taken into consideration, but rather as showing that the probability of the subsequent events happening was one that could be taken into consideration: Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 93-94. The likely detriment to a person transferred from a juvenile detention centre to an adult correctional centre bears upon several issues in these proceedings and, in particular, the procedural fairness question.

34 None of the deponents of the affidavits listed at [30] above, were required by the First Defendant for cross-examination.

35 The Plaintiffs also sought to read, over objection, an affidavit of Timothy Shaun Keogh sworn 19 August 2008. Dr Keogh is a clinical and forensic psychologist. He was retained by the solicitor for the Plaintiffs in August 2008 to provide a report for the purpose of these proceedings. He had not examined the Plaintiffs for that purpose. Rather, he had perused a range of documents provided to him and provided a report dated 19 August 2008. It was submitted for the Plaintiffs that Dr Keogh's report was admissible in these proceedings even though it had been brought into existence after the decisions under challenge were made. It was submitted that Dr Keogh's report was relevant to the issues to be determined. The First Defendant submitted that Dr Keogh's affidavit ought not be admitted as it was not relevant to any issue to be determined in these proceedings.

36 I determined that Dr Keogh's evidence ought be admitted provisionally under s.57 Evidence Act 1995 with a determination to be made on its admissibility in the final judgment. Although it did not seem to me that Dr Keogh's evidence could satisfy the test of relevance in s.55 Evidence Act 1995, there were, at least, arguments in support of its admission by reference to the ground based upon alleged failure to have regard to relevant factors. Further, Mr Leeming SC wished to cross-examine Dr Keogh on one issue and Dr Keogh's availability was limited. Having admitted provisionally Dr Keogh's evidence, he gave oral evidence and was cross-examined (T48-55).

37 Having had an opportunity to reflect on the submissions made with respect to the admissibility of Dr Keogh's evidence, I am ultimately not persuaded that it ought be admitted into evidence. The present proceedings involve a claim for relief in the nature of prerogative and declaratory relief. They do not involve an appeal whether by hearing de novo or in the strict sense. The function which I am performing in these proceedings is not, of course, a sentencing function (at which psychological evidence may be admitted) nor a merits review of the First Defendant's decisions which might permit Dr Keogh's report to be relied upon. The grounds for relief are set out at [3] above.

38 Dr Keogh's affidavit is a type of commentary on the documents provided to him which included documents which were before the First Defendant and other documents.

39 In the result, I am not persuaded that Dr Keogh's evidence is relevant and admissible in the present proceedings. I will decide the Amended Summons without reference to Dr Keogh’s affidavit. If relief is granted and the transfer decisions set aside, the First Defendant might again consider whether s.28 transfers ought be ordered. In that case, Dr Keogh’s affidavit may be relevant to that process. However, that is not the function which I am discharging in these proceedings.

40 The First Defendant relied upon the affidavit of Valda Rusis affirmed 26 August 2008 and Ms Rusis gave oral evidence and was cross-examined (T56-72). Mr Rusis is the Acting Deputy Director General (Operations) of DJJ.

Factual Matters

41 At one level, there is little factual controversy in these proceedings. Although the First Defendant objected to parts of affidavits (some parts were excluded, but the bulk was admitted), only Dr Keogh was required for cross-examination and even then, on one aspect only. Ms Rusis was cross-examined, but she had played no part in the decision-making process concerning ID, PF and DV and could speak in general terms only concerning a number of issues in the proceedings.

42 Accordingly, what follows constitutes a recital of largely undisputed facts. It may be taken that this recital constitutes my findings of fact. Where there are areas of controversy requiring resolution of factual disputes, I will indicate that and make necessary findings. At times, this will involve the drawing of inferences from documentary evidence.

43 Of course, the Plaintiffs bear the onus of proving, on the balance of probabilities, facts grounding an entitlement to relief in the nature of prerogative or declaratory relief: Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 259.

General Evidence Concerning Consideration by the DJJ and DCS of Transfer of s.19 Detainees in 2008

44 The DJJ operates nine Juvenile Justice Centres located throughout the State. Juvenile Justice Centres accommodate both remand and sentenced detainees. The present collective operational bed capacity of Juvenile Justice Centres is about 416. There is a much higher staff-to-detainee ratio in juvenile facilities than in the adult correctional system, it being acknowledged that providing such support will decrease a detainee’s likelihood of re-offending (Exhibit A, page 68a).

45 The DCS conducts 31 Correctional Centres throughout the State, including one juvenile correctional centre.

46 During 2008, there has been increased demand for juvenile detainee beds. This has resulted in Juvenile Justice Centres being over capacity in terms of the numbers of detainees in them, notwithstanding that the collective operational bed capacity has been increased from around 338 to 416 over a 12-month period to June 2008. In January 2008, the number of young persons in DJJ capacity increased from about 370 to about 410.

Emails Between January and March 2008

47 On 16 January 2008, a list of 26 detainees was compiled within the DJJ showing detainees held under s.19 CCP Act orders who were over 18 years old with at least 12 months to serve on their sentence (Exhibit A, pages 1-3). ID, PF and DV were included in this list. On 8 February 2008, a more refined list was prepared inside DJJ, still containing 26 detainees, but with a focus on those with earliest release dates in 2009 (Exhibit A, pages 4-6).

48 On 25 February 2008, an email was sent from Kevin Harris, Director Transport, Placements and Drug Intelligence Branch, DJJ to Ana-Marija Ciko and Peter Reberger, both DJJ officers who will be mentioned later in this judgment, concerning “Transfer of Older Detainees to Adult Corrections”. The email commenced “Please note that the Department is transferring certain older detainees to adult corrections”. Reference was made to certain detainees, including ID, who were “to be interviewed by a [DCS] Classification officer to ascertain if there are any factors from the detainees perspective as to why they should not be transferred to prison” (Exhibit A, page 9).

49 On 1 March 2008, Ms Ciko sent an email concerning changes to occur in the s.28 process. For detainees who resisted transfer, each detainee was to complete a form and the Centre and Primary Worker had to provide a classification report that “only need to be brief, but cover all the information to Corrections so they can make an informed decision”. It was said that “none of the forms as they stand will do” and that reports, including that for ID, “will need to be redone”. Ms Ciko said “I have been informed so long as we keep them going to CS, even if one at a time, that will be fine! This is only the beginning and we will have to be doing these for the next few weeks by the look of it at least!” (Exhibit A, page 17).

50 Other emails shed light upon the nature of the process as between DCS and DJJ in March 2008. On 13 March 2008, Michael Stephens, a senior DCS officer, sent the following email to Jenni Byers, a DJJ officer (Exhibit A, page 28):

“Sorry about this but in [ID’s] report the counsellor Ann Harwood states that she strongly supports the detainees concerns about moving into the adult system and supports his request to remain in DJJ.
If at all possible can the wording of these reports be modified as not to present the the [sic] staffs personal view. If they have a gripe with DJJ about these moves I suggest they should be in writing to the DG and not to DCS. As a suggestion they could write that the DJJ has nominated detainee [ID] to be transferred to DCS under a section 28 order (older detainees).
I am just trying to make this process as smooth as possible.”

Given that it was the First Defendant who was the lawful decision maker under s.28 CDC Act, it is not at all clear why a DCS officer should be dictating the content of DJJ reports. The Plaintiffs contend that this provides considerable insight into the true nature of the decision-making process.

51 On 16 March 2008, Ms Ciko sent an email to DJJ personnel concerning the contents of s.28 reports (Exhibit A, page 29). The email included the following:

“Information should assist Corrective Services with classification and provide a treatment provider with information needed to assess and make an informed decision about services that need to be provided.
If there are any issues/concerns with the transfer, these need to be raised within your professional area of expertise and based on relevant assessments, treatment provided, psychometric testing carried out, or literature (appropriately document). Personal opinions, legal opinion or statements/comments about the Department are both inappropriate and beyond your roles and responsibilities.
If the young person has stated they would like to remain in DJJ and you support their position this needs to be done appropriately as per above.

Staff are reminded that their reports are there for both Corrective Services and the DG to make an informed decision. A number of staff have placed their personal opinions in reports and this does not assist the process and are inappropriate.
If you have concerns or unsure, please contact your clinical supervisor or myself, who would be happy to assist you. Please note reports need to be provided in a timely fashion so that they can be proofread and any changes made as needed. Staff have been providing reports at the last minute and this only delays the process.
Staff are further reminded that you are not permitted to send copies of any reports outside the Centre without the approval of myself and the Centre Manager, even if the detainee signs a release of information.”

52 Further insight into the role of DCS is found in an email from Mr Stephens to Ms Byers on 4 March 2008 (Exhibit A, page 18). Mr Stephens said with respect to another detainee, KT:

“Just to let you know that NSW Legal Aid forwarded a request for [KT] in regards to staying in DJJ. I called the Solicitor and informed her of what the process has been and that he will be going regardless of that request.”


According to the evidence, it was not until 6 May 2008 that KT was transferred to an adult correctional centre (Exhibit A, page 68).

The Evidence of Ms Rusis

53 Ms Rusis was the only witness called by the First Defendant. Prior to her employment with DJJ, she worked with DCS for 25 years, her last position with DCS being as Regional Director of Metropolitan Region. It must be said that I derived limited assistance from the evidence of Ms Rusis. She played no part in the transfer process of ID, PF and DV and had read very few documents relating to their transfer (T70-72). She said she was “happy to speak in generalities” (T70.47) about the matter, however, evidence of that type from a witness who played no part in the transfer process would not be of real assistance.

54 Ms Rusis denied that there was a policy whereby s.19 detainees who were over 18 years were generally transferred to the DCS unless there was a serious incapacity or the DCS did not consent to transfer (T56-57). As her cross-examination proceeded, it became apparent that Ms Rusis was saying there was no such written policy and, ultimately, she said that she was unable to say whether or not there was such a policy (T61).

55 Ms Rusis said that the DJJ provides funding for the Legal Aid Commission’s Children’s Legal Service to provide free legal advice and assistance to detainees, including access to a Hotline.

Comments by DJJ Officers to Ms Cowper in March and April 2008

56 I admitted into evidence in the Plaintiffs’ case, over objection, parts of an affidavit of Rebecca Cowper sworn 9 May 2008, which included conversations which Ms Cowper had with various DJJ employees. Ms Cowper is an employed solicitor of the Children’s Legal Service of the Legal Aid Commission of NSW.

57 I allowed that evidence upon the basis that the matters stated were admissions under s.87 Evidence Act 1995 (T34-35). Evidence admitted on this basis included what follows at [58]-[62]. Ms Cowper was not cross-examined and I accept that her affidavit truthfully and accurately states what was said to her by DJJ officers.

58 Ms Cowper had a discussion at the Frank Baxter Juvenile Justice Centre (“Baxter”) on 3 March 2008 with two DJJ officers, Ms Pat Palmer and another officer about their understanding of present policy concerning s.28 transfers. During this discussion, Ms Palmer and/or the other officer said words to the following effect to Ms Cowper:

(a) “The boys are being transferred because Juvenile Justice needs beds” .

(b) “It is not a [Baxter] centre decision. Centre staff have been directed by head office as to who was going" .

(c) "Only boys who will go to adult gaol anyway were to be transferred. That is, those who are on section 19s but whose sentences extend more than six months beyond their 21st birthday" .

59 On about 7 April 2008, Ms Cowper spoke to Mr Svante Forsberg, a DJJ officer in the Admissions Section of Baxter. Mr Forsberg said words to the effect, “Admissions staff don't get told until the day before or sometimes the actual day of the transfer … State-wide the Centres are 40 over maximum capacity. Baxter is five over right now and they have young people sleeping two to a single room and in holding cells … I don't understand why good kids are going”.

60 Following her discussion with Mr Forsberg, Ms Cowper had a discussion on 7 April 2008 at Baxter with Ms Ciko, Assistant Manager, Client Services to the following effect:

“Ms Ciko: I have no control over who goes. They [Head Office] give me a list and tell me to process these boys for transfer … 'Process' means prepare reports, not recommendations, more progress reports. We can raise issues like mental health or intellectual disability but we're not allowed to put recommendations in the reports.
Ms Cowper: Can you tell me you sic] told you that?
Ms Ciko: I can't tell you who said this, we're not allowed.”

61 During Ms Cowper's discussion with Ms Ciko described in the preceding paragraph, Ms Ciko also said words to the following effect:

(a) “These are our best boys … My guess, and it's only a guess, is they're sending the boys who won’t make a fuss in Corrections” .

(b) “All day leave has been cancelled … They have advice from Crown Solicitors that what they're doing is legal” .

62 On about 18 April 2008, Ms Cowper had a telephone discussion with Ms Ann Harwood, psychologist/counsellor at Baxter. During this conversation, Ms Harwood said words to the following effect:

(a) “I don't understand the way they [Head Office] are choosing which boys to send to gaol. The counsellors and psychologists as a team are concerned that there is no explanation or opportunity to assess who should go. We don't know what they're basing it on apart from being a section 19.”

(b) "The process is that we get told, 'A boy is going to be told tomorrow that he is going to gaol'. We are to write a report with no recommendations, but provide only enough information so that Corrections [Department of Corrective Services] can process them and classify them. By the time the boys get told, the decision to send them has already been made. Some boys are told they can fill out a form saying they don't want to go, but they go anyway, and by the time they are told and given the opportunity to fill out the form, the decision has already been made.”

(c) “ We were told in a general meeting, by Ana-Marija Ciko, who said she was directed by Head Office, that when we write reports, we are not to include personal recommendations of whether a boy should be transferred, nor are we allowed to refer to the remarks of the sentencing judge.”

(d) “Some reports have been changed to remove references to the remarks of the sentencing Judge, or to remove recommendations that a boy not be transferred.”

(e) “The reasons so many boys are going is because of the bed issue. We are so short of beds that we needed to get as many through as possible”.

63 From the evidence referred to so far, an inference is available that DJJ had identified a group of s.19 detainees who were to be transferred to adult correctional centres unless DCS decided to the contrary. In a submission to be referred to later in this judgment (at [278]), Mr Leeming SC pointed to two detainees who were not transferred and contended that their cases demonstrated that the policy alleged by the Plaintiffs had not been established. As will be seen, I have concluded that those two cases fortify the Plaintiffs’ submission rather than undermine it. I am satisfied that such a policy was applied by DJJ and DCS officers.

64 It is now appropriate to examine the substantial body of affidavit and documentary evidence concerning each Plaintiff. It will be apparent that unlike Ms Rusis, Ms Ciko and Ms Harwood (amongst others) were directly involved in the process concerning the Plaintiffs. The First Defendant did not call any witness other than Ms Rusis to give evidence in the proceedings.

The Case of ID

65 ID was born on 15 May 1988. On 6 March 2005, when ID was 16 years old, he committed a number of serious criminal offences. On 25 January 2007, he was sentenced to terms of imprisonment by his Honour Judge Nicholson SC for those offences. ID pleaded guilty to:

(a) robbery in company whilst armed with an offensive weapon and then breaking out of premises;

(b) at a time when he was in the company of a co-offender, having sexual intercourse (fellatio) with the victim without her consent knowing that she was not consenting and immediately before that sexual intercourse, threatening to inflict actual bodily harm upon her and her son by means of an offensive weapon;

(c) whilst in company of a co-offender, having sexual intercourse (fellatio) with the victim without her consent knowing that she was not consenting.

66 In lengthy remarks on sentence delivered on 25 January 2007 (confirmed in brief further reasons given on 16 February 2007), his Honour Judge Nicholson SC sentenced ID to a total effective sentence of imprisonment of nine years and 11 months to date from 16 May 2005 with a non-parole period of four years to date from 16 May 2005 and to expire on 15 May 2009. At the time of sentence, ID was aged 18 years and seven months. As required by law, a background report concerning ID was in evidence before the sentencing Judge for the purposes of s.25 CCP Act. At the time of sentence, there was evidence before the Court demonstrating substantial steps on ID’s part by way of education and other rehabilitative steps. Pursuant to s.19 CCP Act, his Honour found “special circumstances” and directed that the non-parole period of ID's sentence be served as a juvenile offender. ID had no prior criminal history.

67 Neither the Crown nor ID appealed to the Court of Criminal Appeal concerning sentence.

68 ID stated in his affidavit that, as a result of the order and sentencing remarks of his Honour Judge Nicholson SC, he expected that he would serve his entire non-parole period in juvenile detention and not be transferred to an adult correctional centre unless he misbehaved, requested a transfer or felt he no longer needed the services offered by the DJJ (paragraph 10, affidavit of ID, 13 August 2008).

69 ID was transferred to Baxter on or about 18 December 2006. Thereafter, he undertook Higher School Certificate studies through the Sydney Distance Education High School. At the end of 2007, he successfully completed Year 11, with subjects including mathematics, English, geography, environmental science and sports, life style and recreation. In 2008, ID began a two-year program of Year 12 studies. He completed TAFE courses in hygiene and food procedure at Baxter. In March 2008, ID was chosen to represent Baxter in the soccer competition against visiting teams.

70 ID participated in counselling at Baxter and was undertaking specialist programs, including the Sex Offender Program and the Improving Family Relationships Program. He stated that he had a close relationship with his Juvenile Justice Officer and that he felt he required services offered by the DJJ, in particular, counselling in the Sex Offender Program. ID received weekly visits form his mother, brother and sisters in Baxter. His father had died in 2006.

Events Leading to Transfer of ID

71 On about 3 March 2008, ID's unit manager at Baxter informed him that transfer to an adult gaol was under consideration and that “for you to have a better chance at staying, I suggest you fill in this form I'm going to hand out to you … You should put a case as to why you should stay in Baxter” (paragraph 24). ID completed a document on that day providing reasons why he did not wish to be transferred to an adult correctional facility. ID said:

“I do not want to go to gaol as since I have been at Baxter I have a good team of workers, teachers and counsellors who are helping me. I completed my Year 11 last year in Baxter and now I am doing my Year 12 in English, geography and environmental science studies. I will do business studies and sports lifestyle and recreation Year 12 subjects next year. I especially have two teachers who are giving me extra help so I can get through Baxter is my best chance of completing my HSC. I would be too stressed in gaol to do well in my studies. I hope to work in the fitness or environmental employment in the future. Doing well is very important for me as my father died recently and it's up to me to take care of my family. I have behaved really well in Baxter and have always been in the top section. I am also eligible for outings and getting involved in community activities before I get out will help me do well in the community. I do not want to go to gaol because I am afraid I would be picked for fights because of my charges. I would be always worrying about what might happen and then I wouldn't be able to study. I am also scared for my safety about my co-offender who is already in gaol. I worry he might target me. I do not want to be around him. Staying at Baxter is my best chance of studying and finishing my Year 12. I would also be safer and not at risk because of my co-offender and charges.”

72 On 20 March 2008, a Case Management Committee meeting was held at Baxter concerning ID. Present at the meeting were Fiona Ruscheinsky, Acting Assistant Manager at Baxter and two DCS officers - Mr Stephens, State Co-Ordinator, Young Adult Offenders Program and Deputy Manager of Classification and Placement, and Peter Townsend, Manager, Classification and Placement, Indigenous Offenders. ID attended the meeting. His family members were not present at the meeting. During the course of the meeting, ID was told by one of the DCS officers that, as he had been behaving well in juvenile detention, he would most likely be given a security classification of “C1” in the adult gaol system. ID was told that, because of his age, he could have gone to John Morony to do the Young Adult Offenders Program, but “because of the nature of your charges and length of time left to serve, parole would want you to do the CUBIT Sex Offenders Program which is only offered in Long Bay” and that “CUBIT has a waiting list of about one year”. According to ID's unchallenged evidence, he was told that “the bus will be here to pick you up next week to take you to adult gaol”.

73 It is ID's evidence that he did not have, nor was he given the opportunity to have, legal representation at the Case Management Committee meeting on 20 March 2008. After the meeting, Ms Harwood, a counsellor at Baxter suggested that he might want to ring the Legal Aid Hotline to get some legal advice. As 21 March 2008 was Good Friday, ID was unable to get through to a solicitor at Legal Aid.

74 On Tuesday, 25 March 2008, a briefing note was prepared for the Acting Director-General of DJJ concerning the proposed transfer of ID to an adult correctional centre under s.28 CDC Act (Exhibit A, Tab 30). The briefing note was prepared by Sharon Murphy, Operations Assistant Transport Placement and Drug Intelligence Branch within DJJ. The briefing note stated that ID “was identified earlier this year as a detainee who potentially meets the criteria for transfer to a correctional centre”.

75 I infer that the “criteria” here referred to are criteria mentioned in an email dated 25 February 2008 (Exhibit A, page 9). This was Mr Harris’ email referred to at [48] above. That email stated:

“Transfers of old detainees for management reasons will be selected against some or all of the following criteria;

· Over 18 years of age.

· Sentenced pursuant to sect 19.

· With DJJ on a sect 10 order.

· Part of the sentence will be served in adult corrections.

· Length of time to serve.

· Behaviour.

· Response to programs.

· Other factors to be considered are intellectual disability and/or vulnerability of being placed in the adult system.”

76 The briefing note recited that a Case Management Committee meeting had been held with ID on 20 March 2008 to discuss “the potential transfer”. It was noted that ID was almost 20 years of age, and was currently detained at Baxter. The briefing note included the following:

“* The department is currently experiencing high numbers in custody and a limited number of beds are available,

* given the nature of the offences that detainee [ID] has been charged with and his age, should detainee [ID] remain in juvenile detention there are some potential risks to the safety and well being of other detainees and potential OHS risks for staff in managing the high number of detainees.

* These potential risks should be balanced against the circumstances of the particular detainee and his demonstrated behaviour in the detention centre.”

77 The briefing note had earlier recited the nature of the offences for which ID had been sentenced by his Honour Judge Nicholson SC together with the sentences imposed. Under the heading “Comment”, the briefing note stated:

“* [ID] has been sentenced to imprisonment in relation to indictable offences of a serious nature.

* [ID] has requested that he not be transferred to an adult correctional centre as he believes his safety will be compromised due to his offences.

* [ID] is currently undertaking his HSC over a two-year period. He believes his ability to complete his current Year 12 studies will suffer due to being stressed in an adult correctional centre. He states that it is important to do well in his HSC as his father is recently deceased and it is up to him to take care of his family.

* [ID] will be C1 Classification … His pathway is the Metropolitan Regional Remand Centre at Silverwater for initial assessment, then the Sex Offender Program at Long Bay Correctional Centre.

* If the detainee has to wait for a bed at Long Bay he will go to the Young Offender Program at John Morony. Both John Morony and Long Bay have face-to-face teaching where his HSC can be completed. The HSC is also delivered via correspondence.

* In the detention centre [ID] is generally well-behaved and making positive progress towards his rehabilitation.”

78 The briefing note recommended that “for the reasons set out in this briefing … if the A/Director General is satisfied that [ID] is a person not suitable for detention in a Juvenile Justice Centre” then the Acting Director-General should order the transfer of ID to a Correctional Centre pursuant to s.28 CDC Act with the consent of the Commissioner for Corrective Services.

79 Attached to the briefing note, together with a number of formal draft documents, were the following:

(a) ID's letter dated 3 March 2008 requesting not to be transferred (see [71] above);

(b) a record of the Case Management Committee meeting held on 20 March 2008;

(c) a committal summary together with the report of Ms Harwood, counsellor, dated 5 March 2008 and a report of Ms Ruscheinsky, the Baxter Centre psychologist and Peter Reberger, the Baxter Acting Centre Manager, dated 18 March 2008;

(d) the remarks on sentence of his Honour Judge Nicholson SC dated 25 January 2007 and 16 February 2007.

80 The briefing note, together with the documents identified in the preceding paragraph, constituted the material before the Acting Director-General, Peter Muir, for the purpose of the s.28 decision concerning ID. Mr Muir signed the briefing note on Wednesday, 26 March 2008. I infer that, at this time, he had decided in principle to transfer ID to an adult correctional centre. The consent of the Second Defendant was obtained to this course on Saturday, 29 March 2008 and, on that day, Mr Muir directed that ID be transferred to an adult correctional centre pursuant to s.28(1) CDC Act.

81 No reasons were provided by the First Defendant for ordering the transfer of ID to an adult correctional centre.

278 Mr Leeming SC submits that the best test of whether there was such a policy is to consider what actually happened. He points to the case of two detainees (whom he referred to as Case Study 1 and Case Study 2) in the documents in Exhibit A (at pages 50-51) who were not ultimately transferred pursuant to s.28 orders. He submits that what in fact occurred with respect to these two detainees falsifies the proposition that there was a policy.

279 The First Defendant submits that the Court has direct evidence from Ms Rusis, together with actual cases negating the existence of such a policy. He contends that the Plaintiffs have confused the process of identifying potential candidates for transfer with the decision to select some, but not all, of those potential candidates for transfer. He submits that this confusion is understandable because the documents are not entirely clear on their face, but what is clear is that there is no evidentiary basis for relief as sought in the fourth ground.

Determination

280 It will be apparent from my findings of fact at [162] that I am satisfied that an approach was adopted within DJJ that s.19 detainees who had turned 18 with release dates in 2009 would be identified for s.28 transfers. The documentary evidence demonstrates, in my view, that the approach adopted was that these persons would be made the subject of s.28 transfer orders unless the DCS determined that transfer should not take place.

281 It is the case, as Mr Leeming SC submits, that the two detainees to whom he refers were not transferred. One had been previously remanded to Kariong Juvenile Correctional Centre, a DCS facility, where he alleged that he had been assaulted and he claimed he was subject to differential treatment by certain prison officers. A complaint was made to the Ombudsman and a fact-finding investigation was carried out by DCS. It was considered that the complaint may have some merit and legal action was pending. It was for these reasons that this detainee was not recommended for transfer to an adult correctional centre (Exhibit A, page 50). The second detainee who was not transferred had been assessed by a psychiatrist as not being currently competent to fully comprehend and evaluate a transfer decision. Following the Case Management Committee meeting concerning this detainee, Mr Stephens of the DCS indicated that he would recommend that the DCS not consent to transfer based on the detainee’s low-level functioning and resultant vulnerability (Exhibit A, pages 50-51).

282 I do not consider that the differential approach concerning these two detainees assists the First Defendant. To the contrary, in my view, it fortifies the Plaintiff’s contention on this ground. Further, I do not consider that the evidence of Ms Rusis is of any real assistance on this issue for reasons expressed at [53] to [55] above.

283 I accept that the First Defendant may have regard to overcrowding in Juvenile Justice Centres in considering a possible s.28 transfer of a detainee. Of course, this consideration must be considered against the background of the statutory object of ensuring that resources are available to administer the CDC Act: s.4. I have expressed the view earlier in this judgment that the evidence establishes, on the balance of probabilities, that decisions had been made to transfer ID, PF and DV by the time of the Case Management Committee meetings and before the First Defendant came to consider the documents presented to him.

284 I am satisfied, on the balance of probabilities that the decision-making process with respect to these three Plaintiffs involved the application of a policy that they would be transferred to adult correctional centres unless DCS indicated that such transfer should not take place. Consideration was not given to the individual circumstances of the three Plaintiffs and, in particular, the powerful body of material pointing to rehabilitative action, education and training which was highly pertinent before taking the large step of directing their transfer to adult prisons. Each Plaintiff was bound for transfer to an adult correctional centre once DCS officers had expressed their willingness to accept him.

285 I am satisfied that it was DCS officers who made the effective decision to transfer ID, PF and DV. Decisions which ought to have been based on the exercise of independent judgment by the First Defendant were dictated by persons not entrusted with the power to decide. In effect, the DJJ was acting under the dictation of another body or person, the DCS: Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs at 576.

286 I am satisfied that the policy applied in these cases was not consistent with the CDC Act. It served a purpose which was foreign to the purpose for which the discretionary power was created: Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640.

287 Accordingly, I am satisfied that the Plaintiffs have made good this ground for relief.

Conclusions and Relief

288 The duty and jurisdiction of the Court to review administrative action does not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the relevant power: Attorney-General (NSW) v Quin at 35-36.

289 I am satisfied that that the Plaintiffs were entitled to procedural fairness before any decision was made to transfer each of them to an adult correctional centre. I am satisfied that each Plaintiff was denied procedural fairness in the process adopted by the First Defendant.

290 I am satisfied that, in making the transfer decisions concerning each Plaintiff, the First Defendant failed to have regard to relevant factors which he was bound to take into account before making such a decision. I am also satisfied that the decision-making process involved application of an inflexible policy which did not have regard to the individual circumstances of each Plaintiff.

291 Accordingly, I am satisfied that the decision to transfer each Plaintiff under s.28 CDC Act was not made according to law. The consequences of this finding is that it nullifies the impugned decisions: Bignell v New South Wales Casino Control Authority (2000) 48 NSWLR 462 at 480.

292 As the s.28 transfer order with respect to each Plaintiff will be set aside, the operative order with respect to each of ID, PF and DV will be the judicial order under s.19 CCP Act. The First and Second Defendants must comply with those orders unless and until a lawful and valid s.28 CDC Act order is made.

293 I propose to make a declaration and orders in accordance with the Amended Summons.

294 I make the following declaration and orders:

(a) a declaration that the First Defendant failed to accord each of the Plaintiffs, ID, PF and DV, procedural fairness prior to directing his transfer under s.28 Children (Detention Centres) Act 1987 from a juvenile detention centre to an adult correctional centre;

(b) an order that the direction of the First Defendant that each of the Plaintiffs, ID, PF and DV, be transferred from a juvenile detention centre, to an adult correctional centre, be set aside;

(c) an order that, unless and until a lawful and valid determination is made under s.28 Children (Detention Centres) Act 1987 directing his transfer to an adult correctional centre, each of the Plaintiffs, ID, PF and DV, is to be returned to the Juvenile Justice Centre from which he has been moved;

(d) an order the First Defendant to pay the costs of the Plaintiffs, ID, PF and DV.

295 I will hear the parties concerning any order for costs with respect to the Plaintiffs, UT, AM and KT.

**********