Kirkman v Moore - [2001] NTSC 33

Kirkman v Moore [2001] NTSC 33
PARTIES:MARCUS JOSEPH KIRKMAN

v
DAVID MOORE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:67 of 2001 (20105174)
DELIVERED:  11 May 2001
HEARING DATES:  4 May 2001
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Plaintiff:J.C.A. Tippett
Defendant:A.H. Silvester
Solicitors:
Plaintiff:Central Australian Aboriginal Legal Aid Service
Defendant:Withnall Maley & Co.
Judgment category classification:    B
Judgment ID Number:  ril0108
Number of pages:  19

ril0108
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Kirkman v Moore [2001] NTSC 33
No. 67 of 2001 (20105174)

BETWEEN:
MARCUS JOSEPH KIRKMAN

Plaintiff
AND:
DAVID MOORE

Defendant

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 11 May 2001)

In the Northern Territory there are two adult correctional centres; one situated at Darwin and the other, some 1500 kilometres away, at Alice Springs. Each centre has a maximum capacity of 400 prisoners. On occasion it is necessary to transfer prisoners between the two centres. There are many more persons sentenced to terms of imprisonment in Darwin than is the case in Alice Springs and when the number of prisoners approaches the maximum at the Darwin Correctional Centre the Director of Correctional Services (the defendant, David Moore, hereinafter “the Commissioner”) must consider the transfer of prisoners from that centre to the Alice Springs Correctional Centre.

The Transfer of Prisoners

The legislative authority for the Commissioner to remove a prisoner from one prison to another is to be found in s 58 of the Prisons (Correctional Service) Act. The exercise of the statutory power of removal is the subject of a Directive issued by the Commissioner the terms of which have been developed over a period of time. The Directive is number 2.4.1 and, relevant for present purposes, has been modified on three occasions with effect from 20 August 1998, 22 January 2000 and 27 February 2001. In its most recent form the purpose of the Directive is said to be:
“2.1To ensure that prisoners have an opportunity to object to being placed on a list of prisoners eligible for transfer.
2.2To ensure that subject to security and operational considerations prisoners’ family are informed of impending transfer.”

The initial decision that a transfer of some prisoners is necessary is made by the Commissioner based upon his knowledge and experience regarding prison operations and security. There is an assessment procedure followed by the Department and that was described in the unchallenged evidence of the Commissioner. When it becomes necessary to effect a transfer officers of the Department of Corrections prepare a list of prisoners who are eligible and available for transfer. That list identifies the prisoners who are suitable for transfer from the total pool of prisoners at the Darwin Correctional Centre. The list does not include prisoners who are ineligible for transfer because they have matters pending before the court in Darwin, have less than 3 months to serve, are involved in prisoner rehabilitation programs, are involved in essential services…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kirkman v Moore

Details

AGLC: Kirkman v Moore [2001] NTSC 33
Case: [2001] NTSC 33
Decision Date: 11 May 2001

CaseChat Overview and Summary

In the case of Kirkman v Moore, the plaintiff, Kirkman, challenged the decision of the Commissioner of the Northern Territory Correctional Services to transfer him from the Darwin Correctional Centre to the Don Dale Juvenile Detention Centre. The primary issue before the court was whether the Commissioner's decision was unreasonable, given the plaintiff's submission that the Commissioner failed to take into account certain considerations, including Recommendation 168 and the Articles of the United Nations Convention on the Rights of the Child, as well as the plaintiff's mental and emotional state, and the support provided by his family visits.

The court found that the Commissioner had indeed taken into account the relevant considerations, including the provisions of Recommendation 168 and the Articles of the Convention, as well as the plaintiff's mental and emotional state and the support provided by his family visits. The court held that the plaintiff had no legitimate expectation that he would spend the entirety of his imprisonment at the Darwin Correctional Centre. Furthermore, the court noted that it was not clear what specific enquiry the Commissioner should have undertaken, nor what additional information he would have obtained that he did not already know. The Commissioner had already considered the submissions made by the plaintiff and the available psychological reports, and re-assessed the situation in light of new information but remained unpersuaded to change the original decision.

The court concluded that the Commissioner's decision was not unreasonable, and the plaintiff's challenge was unsuccessful. As a result, the plaintiff's appeal was dismissed and the Commissioner's decision to transfer the plaintiff to the Don Dale Juvenile Detention Centre was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion the plaintiff was not denied procedural fairness.Was the Decision Unreasonable? It was submitted that no reasonable person would have come to the decision to transfer that was reached by the Commissioner. The basis of that submission was in the following terms:“1. The legitimate expectation that Recommendation 168 and the Articles in the United Nations Convention on the Rights of the Child would be taken into account in arriving at the decision. The evidence and, in particular, the psychological evidence supports the conclusion that each of those matters is directly relevant to this case. 2. The Commissioner had a duty to enquire and in this case there was material directly relevant to the decision to be made ie mental and emotional state of the plaintiff and the support provided by the regime of visits by his immediate family that he did not take into account. The material supports the conclusion that the plaintiff was greatly concerned about the loss of direct contact with his family. He became a “prisoner at risk” once he was told he would be transferred. The psychological evidence equally supports that conclusion. The failure of the Commissioner to proceed to enquiry has resulted in an exercise of his decision making power in a manner that is so unreasonable no reasonable person would have exercised it.” The submission of the plaintiff in relation to the expectation arising out of Recommendation 168 and the Articles in the United Nations on the Rights of the Child ignores the clear indication made by the Commissioner that he took those matters into account when making his decision. His evidence in that regard was unchallenged by other evidence or by submissions. From his evidence it is known that the Aboriginal population of the Darwin Correctional Centre is said to be 60 to 65 percent of the total prison population. The provisions of Recommendation 168 will apply to each of those Aboriginal persons. In addition the needs and requirements of families including children must logically apply to many prisoners held at the Darwin Correctional Centre. The fact that the plaintiff may have held a legitimate expectation that Recommendation 168 and the Articles of the Convention would be taken into account in arriving at the decision does not mean that a decision cannot be made that is inconsistent with that expectation. The plaintiff had no legitimate expectation that he would spend the period of his imprisonment in the Darwin Correctional Centre. Mr Tippett did not submit on behalf of the plaintiff that either of those considerations precluded a decision to transfer but rather he said that they were matters that must be taken into account. On the evidence before me they were taken into account. As to the submission that there was a duty on the part of the Commissioner to enquire it was not made clear what that enquiry should have been nor what would have been learned by the Commissioner that he did not already know had enquiry been undertaken. The Commissioner had the submissions made by the prisoner as to the situation of his family and as to the plaintiff’s own assessment of his psychological condition when each decision was made. As time went on further information was provided to the Commissioner. That information expanded upon but did not alter the effect of the information already to hand. On each occasion he re-assessed the position in light of the new information (including the psychological reports) but was not persuaded to change the original decision made.

Ratio Decidendi

Legal Principle Established

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