Kaddour and Turkmani v Commissioner for Corrective Services

[2003] NSWSC 808

CITATION:	Kaddour and Turkmani v Commissioner for Corrective Services [2003] NSWSC 808
HEARING DATE(S):	22 August 2003
JUDGMENT DATE:	22 August 2003
JUDGMENT OF:	Sully J at 1
DECISION:	Summons dismissed. No order as to costs
LEGISLATION CITED:	Crimes (Administration of Sentences Act) 1999
PARTIES :	Kalid Kaddour Bassam Turkmani Commissioner for Corrective Services
FILE NUMBER(S):	SC 30074/03
COUNSEL:	J. Doris - Plaintiffs R. Lancaster/A. Seward - Defendant
SOLICITORS:	Galloways - Plaintiffs I. V. Knight - Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

22 August 2003

30074/03 - KALID KADDOUR AND BASSAM TURKMANI v COMMISSIONER FOR CORRECTIVE SERVICES

JUDGMENT

1 HIS HONOUR: By Summons filed in Court by leave this afternoon, Mr Kalid Kaddour and Mr Bassam Turkmani seek the following orders:

“1. That leave be granted to the Applicants for filing and short service of this Summons.
2. An order that this Summons be returnable instanter.

3. A review of the decision made by the Respondent on 21 August 2003 refusing an application made by the Applicants pursuant to section 26 of the Crimes (Administration of Sentences) Act 1999 .

4. An order that the Respondent issue a permit to the Applicants allowing the Applicants to attend the burial service of Mohammad Kaddour subject to such conditions as are deemed necessary.

5. An order of Mandamus requiring the Respondent to take the Applicants to the funeral service of Mohammad Kaddour.

6. Such further or other order(s) as this Honourable Court deems appropriate.”

2 The whole of the evidence in connection with the Summons has been given by affidavit. In support of the Summons two affidavits have been read: one by Mr Ahmed Kaddour; and the other by Miss Bannister, the solicitor for the plaintiffs in the Summons. The defendant against whom relief is sought by the Summons is the Commissioner of Corrective Services of this State. For him there has been filed and read an affidavit by Miss Christa Anne Ludlow, a Solicitor, who has in practical terms the conduct of this litigation on the Commissioner's behalf.

3 The relevant facts can be shortly stated as follows.

4 On the eighteenth of this month one Mohammad Kaddour died. He is to be buried at or about midday tomorrow. He is to be buried in accordance with the religious and cultural observances and obligations of the Muslim faith of which he was an adherent. Mr Kalid Kaddour, the first plaintiff in the Summons, is the deceased's brother; and Mr Bassam Turkmani, the second plaintiff in the Summons, is the deceased's nephew. Both of the plaintiffs are at present serving sentences of imprisonment in correctional centres for which the Commissioner is the responsible public authority in accordance with the relevant statutory provisions. Both of the plaintiffs wish to be present at the interment tomorrow of their late relative.

5 The affidavit of Mr Ahmed Kaddour explains in completely clear detail those Muslim religious and cultural observances and obligations which are said to underlie the wish of the two plaintiffs to be present at tomorrow's obsequies. It should be said at once that religious and cultural observances and obligations of the kind which are described by Mr Ahmed Kaddour in his affidavit are deserving of every proper and serious respect; and there ought to be no doubt in anybody's mind that the Court accords them precisely such respect and consideration.

6 The questions that are committed to the Court by the Summons are, however, questions which cannot turn upon considerations of religious and cultural observance and obligation. The questions which arise for the Court by reason of the Summons are legal questions; and their proper determination turns upon the proper construction and application of precise statutory provisions.

7 At the core of the present application are certain of the provisions of section 26 of the Crimes (Administration of Sentences Act) 1999. Put very simply, section 26 gives the Commissioner of Corrective Services a discretionary power to issue a permit allowing a prisoner to be absent from a correctional centre. Such a permit is described as a local leave permit. It may be granted by the Commissioner subject to conditions, or it may be refused by the Commissioner. The Commissioner may authorise the issue of the local leave permit for any purpose that he considers appropriate (see section 26(1)(b)). Section 26 (2) does not limit the power given to the Commissioner by section 26(1)(b), but does define a number of particular circumstances, or categories of circumstance, the demonstration of any one or more of which will establish purposes for which the Commissioner may authorise the issue of the local leave permit. One of those stipulated situations, and that which is nominated by subsection (2)(c), contemplates the authorising of a permit "enabling an inmate to attend a funeral service or burial of a member of the inmate's immediate or extended family.”

8 Both of the plaintiffs have made application to the Commissioner for the authorising by him of a local leave permit such as would enable each of them to attend tomorrow the funeral obsequies of their late relative. The only formal communication of the Commissioner's decision is that which is notified in a letter dated yesterday's date and addressed to Miss Bannister, the solicitor for the plaintiffs. The letter, on its face, is not signed by the Commissioner in person, but it is, I think, an inescapable inference from the form of the letter, that it is signed by the clear authority of the Commissioner and I approach the content of the letter upon that basis.

9 The substantive parts of the letter are as follows:

“I wish to advise that it is not possible to approve your request for Mr Kaddour or Mr Turkmani to attend the funeral.
Departmental policy provides for inmates to attend the funerals of immediate family members, such as spouses, parents, children, and siblings only. Additionally, attendance is also subject to any concerns about security being satisfied.”

10 I do not think that it is untoward to observe of that letter that it could scarcely be less helpful in indicating in any clear and truly informative way any process of reasoning put forward as justifying the refusal of the two requests of the plaintiffs.

11 It was submitted for the plaintiffs that the first of the two paragraphs which I have quoted evinced clear error of law in that it conveyed an impression on the part of the Commissioner that he did not have the power to approve the requests of the plaintiffs. I do not so read that particular paragraph. I agree that it is opaque, indeed clumsy, in its expression; but I think that read in context, it means no more than that the Commissioner, having considered the applications, has come to the conclusion that it is not possible for him responsibly to approve them.

12 It seems to be clear that the Commissioner, or whoever actually wrote the letter for the Commissioner, accepted that it would be seemly, to say the least, to offer at least some explanation for the refusal of the applications. Hence, I infer the inclusion in the letter of the second of the two paragraphs which I have quoted. A fair reading of the language of that paragraph seems to me to convey next to nothing, in terms of a coherent explanation likely to be understood by people in the position of the two plaintiffs, of the reasons leading the Commissioner to his decision to refuse the applications.

13 There is no doubt wisdom in the old saying: "There is no point in crying over spilt milk." I think, however, that it might be useful if the Court were to indicate that in the future, when applications of the present kind are being dealt with, it would be not only correct and sensible from a general administrative point of view, but would be timely and helpful from the point of view of the Court itself, if there were to be placed simply and clearly and promptly onto the relevant record a clear, simple and precise statement of the reason or reasons put forward as justifying the refusal of applications of the kind with which the Court is now dealing.

14 As matters stand, the Court has been placed in the position of having to do the best it can by incomplete materials which did not even include until quite late this afternoon anything in the form of an affidavit attempting to explain, in the way that I have suggested ought to have been done, the reasons put forward as justifying the refusal of the applications of the plaintiffs.

15 The third of the prayers for relief in the summons seeks a review of the Commissioner's decision. The first question arising is whether a decision has in fact been taken by the Commissioner. It was argued for the plaintiffs that it was at least open to be found that no decision had been taken. But I am of the opinion that a fair reading of the whole of the material now in hand cannot support that bald proposition. I think that it is clear that the Commissioner, or somebody acting sufficiently with the authority of the Commissioner, did in fact consider these applications and decide that they should be refused.

16 That being so, it is necessary to consider with some care what courses might be open to the Court in terms of effecting a review of the Commissioner's decision, as sought by the third prayer for relief.

17 In a case of the present kind two questions will always arise. The first is whether the particular decision has been taken according to law. The second is whether the particular decision, if taken according to law in terms of the substantive and procedural formalities, can stand as a reasonable exercise of the relevant discretion of the primary decision maker.

18 I have no doubt that this Court has power to review in the first of those two senses the decision of the Commissioner; that is to say, I have no doubt the Court is empowered to look for itself at the question whether the Commissioner, having purportedly exercised his discretionary power under section 26, has in fact exercised it according to law.

19 I do not think that the Court has power to review in the second of the two senses the Commissioner's decision; that is to say, I do not think that the Court has power to act as though it were, for example, the Commonwealth Administrative Appeals Tribunal, and so a body specifically invested with jurisdiction to replace with its own administrative decision the administrative decision of another primary decision taker. That view of the relevant powers and functions of the Court necessarily constrains what the Court can now do.

20 As I have said, the Court is in my view entitled to consider whether the Commissioner has exercised his discretionary power according to law; or, to put the point another way, whether there has been a clear infringement by the Commissioner of either the Act or the relevant regulations in connection with the making by him of a discretionary decision pursuant, relevantly, to section 26 of the Act.

21 In the end, the only evidence upon which the Court can act in that connection is the evidence contained in Miss Ludlow's affidavit and in the materials annexed to it.

22 Paragraphs 11 through to 16 of the affidavit are in point and they read as follows:

“11. I am informed by Mr Keller and verily believe that the policy regarding granting such permits is contained in the document annexed hereto and marked "H" which is from the Operations Procedures Manual.
12. I am informed and verily believe that security concerns were considered about each applicant as follows.
13. In relation to Kaddour, it was noted that he was classified A2 and designated an extreme high security inmate. It was considered that he had been suspected of planning an attempt to escape in 1999. Intelligence received that the plaintiff has resources outside the prison system which might assist in such an escape was also considered and in this regard I refer to the annexures to this affidavit.
14. In relation to Turkmani, his classification and designation were considered. The information that he had the resources in the community to assist in an escape attempt, had made threats against the life of a staff member, and the disposition to escape, were among the matters considered and in this regard I refer to the annexures to this. Intelligence also suggested that he was involved in the 1999 escape plan referred to in paragraph 13.
15. I am informed and verily believe that in relation to each the security risks in relation to corrections officers were considered in relation to the request. Relevant matters included that Corrective Services officers would not be able to secure the area of the funeral; also that under Departmental policy for persons of their classification and security designation four officers would be required to accompany Kaddour while three officers would be required to accompany Turkmani.
16. In relation to the proposal referred to by Justice Sully in these proceedings, I have sought instructions and am informed that the following matters were relevant to refusing this request - the number of guards that would be required, the inability to secure the area, and the fact that such trucks being fixed and sealed, the inmates would not be able to touch the body from the truck and would have to be allowed to leave the vehicle.”

23 Learned counsel for the plaintiffs has pointed, and correctly if I might say, to a number of apparent inconsistencies and obscurities in various of the departmental materials which are annexed to Miss Ludlow's affidavit. I think, however, that the reality is that a fair reading of what is said in the affidavit itself, and in the entirety of the materials which are annexed to the affidavit, entails a conclusion that the real reason why the Commissioner has refused the applications of the plaintiffs is that he considers that it would be dangerous to allow them to be at large, even under a fairly strict police or correctional service escort; and that he holds that view for reasons which seem to me to be completely clear from a reading, overall, of the departmental materials coupled with the contents of the affidavit itself.

24 I think, in other words, that the Commissioner has exercised his discretion; has in fact applied his mind to the essential issues posed by the making of the applications of the plaintiffs; and has come to a decision of which it cannot be said that it involved a clear infringement of the Act or of the regulations. Those conclusions entail that a review of the kind sought by the third prayer for relief in the Summons cannot, in my opinion, be granted. It must follow, as a matter of fact, that the relief sought in the fourth and fifth prayers of the Summons, also, cannot properly be granted.

25 It is a distasteful thing to have to say that close relatives of a deceased person cannot be permitted such a conditional release from their present incarceration as would permit them to attend tomorrow's funeral. But applications of the present kind, it needs to be stressed, cannot be determined properly according to law upon any basis of distaste, or sympathy otherwise, for the very understandable family concerns of the plaintiffs. As I said earlier in these reasons, the questions that are tendered by the Summons are legal questions and they must be decided strictly according to law.

26 Approached in that way, I am not persuaded that the claims for relief, any of them, have been made good, and the Summons is dismissed.

27 The defendant Commissioner applies for an order for costs. I acknowledge at once that the norm in that respect is that costs follow the event. That norm is, of course, subject to exceptions in any case where the Court feels that the interests of justice, properly understood and balanced, justify the making of some other order.

28 The view to which I have come is this: first, I think that it is incontestable that the plaintiffs were entitled to make the applications; secondly, I think that it was incumbent upon everybody who had anything to do with the applications to understand that in the nature of things the timeframe within which anything could be done was very constrained; thirdly, I think that in that context the letter of 21 August is, and for the reasons which I have earlier expressed and need not repeat, wholly inadequate as a reasonable communication to people in custody of a reasoned exposition of a process of reasoning said to justify the refusal of their applications.

29 I think that in all the circumstances of this matter justice would be done if the Court made no order as to costs, leaving the parties to pay respectively their own; and that is the order I propose to now make.

30 The summons is dismissed. No order as to costs.

**********

Last Modified: 09/05/2003