Murielle v Moore - [2000] NTSC 23

Murielle & Ors v Moore & Anor [2000] NTSC 23
PARTIES:CHRISTOPHER MURIELLE, MATHEW LALARA, HAMILTON LALARA, CAMPSON LALARA AND JAMES BISHOP

v
DAVID MOORE AND ERIC HOLT

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY
FILE NO:56 of 1999
DELIVERED:  14 April 2000
HEARING DATES:  13, 14, 17 & 22 March 2000
JUDGMENT OF:  Mildren J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiffs:C Howse and D Beckett
Defendants:M Spargo
Solicitors:
Plaintiffs:North Australian Aboriginal Legal Aid Service
Defendants:Withnall Maley
Judgment category classification:    A
Judgment ID Number:
Number of pages:  33

IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Murielle & Ors v Moore & Anor [2000] NTSC 23

No. 56 of 1999

BETWEEN:
CHRISTOPHER MURIELLE, MATHEW LALARA, HAMILTON LALARA, CAMPSON LALARA AND JAMES BISHOP

Plaintiffs
AND:
DAVID MOORE AND ERIC HOLT

Defendants

CORAM: Mildren J
REASONS FOR JUDGMENT
(Delivered 14 April 2000)
MILDREN J:

Each of the plaintiffs, having been sentenced to serve terms of imprisonment, and having been committed to prison, were initially taken into custody at the Darwin Correctional Centre at Berrimah. The defendant Moore is the Commissioner for Correctional Services and the Director of Correctional Services, appointed pursuant to s6(1) of the Prison (Correctional Services) Act (the Act) who, pursuant to s6(2) has the control of all prisons and the custody of all prisoners in this Territory. On 23 March 1999 the plaintiffs were transferred from the Darwin Correctional Centre (colloquially known as "Berrimah") to the Alice Springs Correctional Centre. Both of the aforementioned Correctional Centres are prisons declared under s10 of the Act. The defendant Holt was, at the relevant time, the assistant Commissioner-Operations for the Northern Territory Correctional Service and the delegate of Commissioner Moore for the purposes of the management of the policy relating to the transfer of prisoners from one prison to another.
The power to transfer prisoners is contained in s58 which provides:
58.     PRISONER MAY BE REMOVED
A prisoner shall -
(a)     on the order of a Judge of the Supreme Court; or
(b)     at the written direction of the Director,
be removed from a prison or police prison to another prison or police prison or be brought before a court or taken to such other place as required.
The plaintiffs seek certain declarations that the transfers were unlawful and beyond power and for orders in the nature of certiorari and mandamus quashing the decisions to transfer them and requiring those decisions to be reconsidered on four grounds:
1.   the decisions to transfer were made without according to the plaintiffs' procedural fairness;
2.   the transfer did not comply with s58 as there was no written direction by Commissioner Moore or his delegate authorising it;
3.   the decisions to transfer were made without taking into account considerations relevant to the decisions to transfer;
4.   the transfer had the effect of cancelling the right of each of the plaintiffs to receive visitors.
Christopher Murielle
The plaintiff Christopher Murielle is serving a sentence of…

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 Murielle v Moore

Details

AGLC: Murielle v Moore [2000] NTSC 23
Case: [2000] NTSC 23
Decision Date: 14 April 2000

CaseChat Overview and Summary

In the case of Murielle v Moore, the plaintiffs, prisoners at Darwin Correctional Centre, sought relief from their transfer to Alice Springs Correctional Centre, claiming the defendants failed to accord them procedural fairness and took into account irrelevant considerations in the decision to transfer them. The defendants, who had custody of the plaintiffs, argued that the transfer was lawful and did not require procedural fairness or consideration of the specified factors. The court was tasked with determining whether the decision to transfer the plaintiffs was subject to judicial review and, if so, whether it was made in accordance with the applicable legal principles.

The court examined the legal precedents to determine whether the duty to accord procedural fairness arose in this case. It noted that the decision to transfer prisoners is typically considered an administrative decision not subject to judicial review. However, the plaintiffs argued that the transfer affected their rights, interests, and legitimate expectations, thus requiring procedural fairness. The court found that the decision to transfer was indeed subject to judicial review, as it affected the prisoners' rights and interests. Furthermore, the court concluded that the defendants were required to take into account relevant considerations, such as the impact of the transfer on the plaintiffs' right to receive visitors and their prospects of rehabilitation.

The court found that the transfer of the plaintiffs was unlawful as it was not made in accordance with the written direction of the Director, as required by s58 of the relevant legislation. Additionally, the court held that the decision to transfer was made without taking into account relevant considerations, such as the impact of the transfer on the plaintiffs' right to receive visitors and their prospects of rehabilitation. Consequently, the court found in favour of the plaintiffs.

The final orders of the court declared that the transfer of the plaintiffs to Alice Springs Correctional Centre was unlawful and invalid, and the defendants were directed to take appropriate steps to remedy the situation. The plaintiffs were also awarded costs of the proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CPO Hoskins gave evidence that he personally has interviewed every prisoner at the Darwin Correctional Centre who has been sentenced to serve more than six months' imprisonment and informed them that because of this, they may be transferred to Alice Springs. He said, in cross-examination, that he also would have told them about their right to appeal. None of the prisoners, except James Bishop, remembers being told anything like this prior to the Thursday or Friday before they were transferred. If they were told this, there is no evidence that any were personally told in February or March that they were actually placed on a list of prisoners eligible to be transferred until the list was finalised. James Bishop must have been aware prior to then that he had been placed on such a list, given that his instructions to his lawyers were, initially, that he wished to be transferred.Was the decision to transfer one requiring the defendants to accord procedural fairness to the plaintiffs? The plaintiffs' submission was that notwithstanding authority to the contrary, the duty to accord procedural fairness to prisoners arose in this case because the decision to transfer them affected their rights, interests and legitimate expectations. There is a long line of authority in this country, both before and after the seminal decision of the High Court in Kioa and Others v West and Another (1985) 159 CLR 550, dealing with the question of whether or not decisions made by persons having the custody of prisoners are subject to judicial review. The usual starting point is a passage in the judgment of Dixon J (as he then was) in Flynn v The King (1949) 79 CLR 1 at 8:It is pointed out in the case of Horwitz v Connor that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer fixed legal rights upon prisoners it would result in applications to the courts by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain. Such a construction of the regulation-making power was plainly never intended by the legislature and should be avoided. An interpretation of the power to make prison regulations and of the regulations made thereunder as directed to discipline and administration and not to the legal rights of prisoners is in my opinion supported by the decision of this Court in Horwitz's Case and the decision of Horridge J in the case of Morriss v Winter and by the observations made upon the Prison Regulations by Goddard LJ in De Laessoe v Anderson in the second column.In Bromley v Dawes (1983) 34 SASR 73, the Full Court refused to interfere with a decision to transfer a prisoner to another part of the same prison. At p107, Mitchell ACJ said, with the concurrence of Legoe and Mohr JJ:I respectfully agree with White J [the Judge appealed from] that Flynn's case is not a complete answer to the respondent's claim. Further I respectfully agree with him that "the principles of natural justice apply whenever the institutional head is called upon to make a judicial decision". But the courts will not review an administrative decision of the Director: see Reg v Hull Visitors; Ex parte St Germain, especially per Walker LJ at p466. A breach of duty in administering prison regulations has long been held not to confer a right of action upon a prisoner: See Horwitz v Connor; De Laessoe v Anderson; Smith v Commissioner of Corrective Services, especially at p328; Becker v Home Office. In Reg v Institutional Head of Beaver Creek Correctional Camp; Ex parte McCaud, an authority to which White J referred in extenso and upon which Mr Doyle placed some reliance, the Ontario Court of Appeal said, at p551, in reference to a prisoner: "Since his right to liberty is for the time being non-existent, all decisions of the officers of the Penitentiary Service with respect to the place and manner of confinement are the exercise of an authority which is purely administrative," and which it follows does not give the prisoner any right of action. See also Reg v Classification Committee; Ex parte Finnerty.

Ratio Decidendi

Legal Principle Established

Counsel for the defendants, Mr Spargo, submitted that s58 is irrelevant. His submission was that s58 does not prescribe that the written direction of the Director is a condition of a transfer; instead it made compliance with s58 mandatory by those to whom such a direction was addressed. He submitted that the power to transfer was derived from s6(2) which gave the Director custody of all prisoners. That submission in my opinion ignores the history of s58 which derives, as I have said, from the Habeas Corpus Act, and the provisions of the various South Australian Acts and of the Prisons Ordinance to which I have previously referred. It has never been the law since 1679 that mere custody of a prisoner was sufficient to authorise his removal. I consider that the purpose of s58 was to confer such a power, as well as require those to whom the written direction was directed, to obey it. The transfer of the plaintiffs was therefore unlawful.Was the decision to transfer made without taking into account relevant considerations? It was submitted by Mr Howse that the defendants were bound to take into account four matters which were not taken into account:1. whether the transfers would substantially impair the plaintiffs' right to receive visitors;2. whether the transfers would substantially impair the plaintiffs' prospects of rehabilitation;3. the expectations of the community;4. the content of the relevant recommendations of the Royal Commission. The principles of administrative law upon which this submission rests were summarised by Mason J, (as he was then) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42. The question for the Court is in the first place to identify which factors a decision-maker is bound to consider as a matter of construction of the Act. Where the power confers a discretion which is in its terms unconfined, those factors must be determined by implication from the subject matter, scope and purpose of the Act. Mr Howse referred me to a number of provisions of the Act, viz., ss10(2), 20, 40, 45, 50, 51, 63, 85 and 91. Section 91(1) is interesting in that it requires the Director to ensure that every prisoner upon reception into a prison is "...informed in general terms of his or her rights, duties, responsibilities and liabilities under this Act..." There is no doubt, for example, that s40 confers a right upon a prisoner to receive visitors, subject to the provisions of Part XI of the Act. Mr Howse submitted that the Act evinced an intention that the scope and purpose of the Act included the protection of prisoner's rights with respect to the continuation of the prisoners' personal lives to the extent that this was compatible with the necessary constraints required for the good management and security of a prison. It was submitted that the transfer of a prisoner to a prison some considerable distance out of Alice Springs may, in a practical sense, be an effective barrier to a prisoner's right to receive visitors, in cases where the potential visitors were unlikely to have the financial means to travel to the prison, or were otherwise precluded or deterred by distance from making a visit. I accept the general thrust of this submission.