R v Byster

McKINNON v PAGET & ORS
[2001] SASC 343
Nyland J:

This is an application for judicial review. The plaintiff is a prisoner currently serving a sentence of imprisonment at Yatala Labour Prison (‘Yatala’). On 24 March 1997, he was returned to prison after breaching parole for various offences, including the offence of armed robbery. He will be eligible for parole in March 2002.
Since 6 October 2000, the plaintiff has been held in segregation in G Division, a high security unit of the prison, pursuant to a separation order made on this date. Reviews of that placement were conducted on about a weekly basis thereafter. As at the date of hearing of this application there had not been any variation or revocation of the separation order.
The first defendant named in the summons is John Paget, the Chief Executive Officer of the Department for Correctional Services. The second defendant is Maria Bordoni (‘Ms Bordoni’), the General Manager of the Yatala Labour Prison. The third defendant is the State of South Australia.
The application for judicial review was supported by a lengthy affidavit filed by the plaintiff, which sets out in some detail the history of his incarceration. On the hearing of the application, the plaintiff gave evidence and produced a number of documents in support thereof. He subsequently filed a further affidavit which canvassed the history of incarceration since 1997. I was also provided with an affidavit of Ms Bordoni and she gave oral evidence.
Throughout these proceedings, the plaintiff appeared in person. The defendants were represented by Ms Gray of counsel. In the course of the hearing, Ms Gray objected to a number of matters raised by the plaintiff, but in light of the plaintiff’s lack of representation and the nature of the application, I permitted the plaintiff considerable latitude and did not strictly apply the rules of evidence. I should add, however, that notwithstanding his lack of legal training, the plaintiff was able to present his argument in a reasonably articulate and forceful manner.
Before turning to the legal issues which arise for determination, I propose to summarise my understanding of some of the factual background giving rise to these proceedings. I do not, however, intend to refer to all of the matters which were put to me in the course of lengthy submissions and documentation.
At the date hereof, the plaintiff is aged about 26 years. He has spent about ten years of his life in prison. Shortly after the revocation of his parole in 1997, the plaintiff was transferred to B Top at Yatala after requesting protective custody. B Top is a protective unit in B Division. On 30 May 1997, the plaintiff was transferred to G Division for assaulting a prison officer. He remained there for a week. He was returned to the mainstream population of B Division on 6 June 1997. He was, however, returned to G Division that same day for allegedly making threats. He remained there until 9 September 1997, after which he spent about one month at Port Augusta Prison. On 10 October 1997, the plaintiff was again accommodated in G Division until 16 April 1998. From this date until 16 May 1998, he spent further time at Port Augusta Prison, after which he returned to G Division pursuant to a separation order of 15 August 1997.
On 2 October 1998, the plaintiff made an application for judicial review of the separation order dated 15 August 1997. According to the plaintiff, he had been told that the order was made as a result of a perceived risk to the safety of other prisoners and staff. It appears, however, that about five days after the hearing of that application, the plaintiff’s protective status was approved and he was to be relocated to a new division called the Intensive Case Management Unit (ICM) which was due to open in late November or early December 1998. On 25 November 1998, Wicks J made an order striking out the summons on the ground there was no reasonable prospect that the court would make an order granting the relief claimed. The plaintiff did not, however, move to ICM as had been intended. He remained in G Division from 7 October 1998 until 12 February 1999. He was then moved from G Division to B Top. On 11 March 1999 he was transferred back to G Division pending an investigation into an assault on Correctional Services officers. This transfer was pursuant to section 36(2)(a) of the Correctional Services Act 1982 (‘the Act’) which empowers the Chief Executive Officer to direct that a prisoner be kept separately and apart from all other prisoners if, in his opinion, it is desirable to do so “in the interests of the proper administration of justice when an investigation is to be conducted into an offence alleged to have been committed by the prisoner”.
Four days later the plaintiff returned to B Top. It appears that the plaintiff was involved in an altercation with another prisoner on 11 April 1999. On this occasion, he was relocated to G Division pursuant to section 36(2)(b) of the Act which enables the Chief Executive Officer to make a separation order “in the interests of the safety or welfare of the prisoner.” He was then transferred to Port Augusta prison on 29 April 1999 and remained there, but in separation, until 11 May 1999. He then returned to G Division at Yatala. He thereafter spent almost five and a half months in G Division as a result of threats against his life.
At his request, the plaintiff was transferred to Mount Gambier Prison for two weeks in October 1999, for what Ms Bordoni referred to as “time out”. On the trip back from Mount Gambier, an incident occurred. It was alleged that the plaintiff had attempted to escape from the prison van. The plaintiff subsequently pleaded guilty to a charge of wilful damage. Upon his return to Yatala, the plaintiff went to G Division for 30 days, after which he was transferred to B Top on 24 November 1999. The following day, he was returned to G Division for allegedly threatening an officer. He remained there until 14 August 2000. He was then transferred to B Top until 3 October 2000. On 3 October 2000, the plaintiff was transferred to Port Augusta gaol. According to the plaintiff, the transfer to Port Augusta prison was part of his sentence plan. He understood he was to serve a period of about three months in high security and complete a course for violent offenders before being transferred to a medium security facility for the completion of his sentence. Ms Bordoni stated that a prisoner’s sentence plan is the responsibility of the prisoner assessment unit, rather than the general manager of the prison, an therefore could not comment on past or current sentence plans.
In his affidavit, filed on 18 May 2001, the plaintiff described the circumstances relating to an incident which occurred with a prison officer which led to him being charged with the offence of assault occasioning actual bodily harm. The plaintiff claimed that he had acted in self defence as a result of the officer touching him in a threatening manner. The plaintiff eventually pleaded guilty to the charge against him which resulted in him receiving a sentence of nine months imprisonment cumulative upon the sentence that he was then serving on 3 August 2001. His non-parole period was extended by one month.
On the day of the assault, the plaintiff was transferred back to Yatala’s G Division. He was served with the separation order dated 6 October 2000 (Exhibit MB1 to the affidavit of Ms Bordoni, sworn on 8 June 2001). The order was made pursuant to section 36 (2)(d) of the Act, that is, “in the interests of security or good order within the correctional institution”. The ground on which the direction was given was “that on Friday 6 October 2000, you assaulted a correctional officer at Port Augusta Prison”.
Each of the weekly review forms filed thereafter until 21 December 2000 contained the same form and wording, that is, that the plaintiff was to be kept separate and apart pursuant to section 36(2)(d) of the Act as a result of his assault on the Correctional Services officer at Port Augusta prison. On 21 December 2000, however, the review form recommending that the plaintiff remain separated pursuant to section 36(2)(d) of the Act stated “placed in G Division for assaulting Correctional officer at Port Augusta prison on 6 October 2000 and his history of assaulting staff.” All of the review forms thereafter were similarly endorsed.
The plaintiff queried the addition of the “history of assaulting staff” in the separation review form of 28 December 2000. There was a note on the bottom of that document signed by Ms Bordoni which stated “the matter re Port Augusta cannot be viewed in isolation in regard to previous behaviours towards staff…”
One of the grounds upon which the plaintiff seeks to review the decision to keep him in separation relates to the amendment made to the order on 21 December 2000. The plaintiff argued that this was contrary to System Operating Procedure 12. System Operating Procedure 12.4.8 provides that:
“Where it is recommended that a prisoner will remain separated for reasons other than those detailed in the original direction], the original direction is revoked and a new direction issued.”
The plaintiff submitted that the addition of the “history of assaulting staff” constituted a change in the reasons for separation which required the issue of a new order. Ms Bordoni acknowledged that the System Operating Procedure for the separation of prisoners required a new direction to be issued when a prisoner was to remain separated for reasons other than those detailed in the original direction. She maintained, however, that as the plaintiff was to continue to be separated in the interests of security or good order of the prison in accordance with section 36(2)(d), a new order had not been required.
Ms Bordoni maintained that the plaintiff did not fully appreciate or understand the weekly review sheets which were designed to monitor performance. The addition of the extra ground had been included on the form in order to expand on the order and to explain to the plaintiff that he was not being maintained in G Division solely as a result of the one incident, that is, the incident at Port Augusta. Although the investigation in relation to the Port Augusta incident had been completed, she believed the order continued to be valid. In evidence she said that if the plaintiff had been accommodated in G Division as a result of the Port Augusta incident only, then the separation order would not have been made pursuant to section 36(2)(d), but rather 36(2)(a) which provides that the prisoner be kept separately and apart “in the interests of the proper administration of justice where an investigation is to be conducted into an offence alleged to have been committed by the prisoner”.
Ms Bordoni further maintained that the placement of the plaintiff in G Division was not directed at punishing him for his prior treatment of officers, but rather for the good order and security of the prison. She maintained that the plaintiff’s behaviour had not improved since he had been in G Division to enable her to form the view that he was suitable to be accommodated in another part of the prison.
Annexure MB3 to Ms Bordoni’s affidavit, sworn on 8 June 2001, contains a copy of the plaintiff’s case notes from the period 3 November 2000 to 29 May 2001. This records incidents involving the plaintiff throughout that period. The plaintiff did not dispute the accuracy of the matters contained in the case notes and conceded that his conduct had at times been inappropriate. He disputed Ms Bordoni’s evidence that he had been involved in nine assaults on Correctional Services officers since 1997, but conceded that in that period he had been charged for six incidents involving assaults on staff (which included the Port Augusta incident). He maintained, however, that his conduct had improved. He had commenced seeing a social worker on a regular basis in March 2000 for sessions on communication skills.
The plaintiff argued that his continued detention in G Division constituted bad faith on the part of the defendants. In so doing, he referred to the comments of Mullighan J in Fricker v Dawes (1992) 57 SASR 494 wherein he said (at p 503):
“…it is for the Manager to make a judgment as to where to place a prisoner within the prison and that judgment may not, in any view, be reviewed by the courts in the ordinary case, and perhaps only if it has been exercised in such a way or upon such grounds that it is inconsistent with other provisions of the Act or has been exercised in bad faith.”
Ms Gray submitted that there was nothing raised in these proceedings to indicate that any of the defendants had exercised their powers other than in good faith and in a manner consistent with the Act.
Ms Gray submitted that it was the responsibility of Ms Bordoni to determine where the plaintiff should be accommodated within the prison and that the court should be reluctant to intervene in the exercise by her of that discretion. She referred to Mullighan J’s further comments in Fricker v Dawes wherein he said (at p 504):
“… Parliament has entrusted the responsibility for the making of those decisions to the first defendant or his delegate.
In the scheme of things, they are the persons best qualified to make those decisions.”
In the course of argument the plaintiff referred t the comments of Olsson J in Fyfe v Bordoni & Ors (1998) 199 LSJS 401. Fyfe, who was also acting in person, made an application for judicial review. He was serving a sentence of life imprisonment for murder. The defendants were the same as in the present case.
Olsson J, in the course of considering the application, visited the prison and described G Division as housing prisoners “in a special and restrictive regime.” Olsson J went on to say (at p 403):
“This Division is a very high security area located outside the main area of the prison, as a virtual self contained unit. It houses a number of prisoners in a totally internalised environment. There is no external perspective. Individual cells are very small and extremely spartan, each having a concrete bed base, seat and ‘table’ fixture. There are stainless steel hand basin and toilet fixtures. The building has no external windows and the only natural light in cells is by means of opaque glass bricks high up near the roof. Only one prisoner is permitted to move around a specific unit of the Division at any given time and then, usually, only under the escort of three correctional services officers. The Division includes several fully enclosed exercise yards with steel mesh roofs, open to the sky. The majority of these are of quite limited size.
Compared with other Divisions of the prison, G Division is very spartan and restrictive. It is an extremely claustrophobic, restricted and oppressive environment which one would expect, normally, to be employed, more often than not, for disciplinary reasons. This is the more so as B Division now has a unit which holds so called ‘protectee’ prisoners. A prisoner in G Division has no real social intercourse with other prisoners. The only persons with whom he interacts in any meaningful fashion are prison staff. He can, at times, speak, from a distance, with a prisoner who may be exercising in an adjacent yard.”
The plaintiff adopted these remarks and argued that he was being punished for the Port Augusta incident as well as past assaults on officers. This was contrary to Olsson J’s comments where he said (at p 418):
“It is, in a very real sense, an abnormally hard, almost a penal, environment (in the disciplinary sense) which has now persisted for a very long time. A stage may well be reached at which it could well be said that it is an abuse of power to continue to subject him to it, provided that he co-operates as reasonably required of him. He is not, in effect, to be punished twice for the one offence.” [emphasis added]
The plaintiff further argued that he was further being punished not only by being kept in separation from the general gaol population, but he was also being maintained on a handcuff regime. The plaintiff said that he was handcuffed behind his back whenever he was escorted out of his cell. He was unable to pick up the phone handset to speak to visitors behind glass and said he was forced to yell through the glass to communicate. In addition, as he was on a handcuff regime he was not entitled to the same privileges as were extended to other long term inmates of six months or more. This included the inability to access the gym. He was not allowed to have a Playstation, mat or kettle in his cell, and he was not allowed to put photos or posters on the wall of his cell.
In the course of giving evidence, Ms Bordoni appeared reluctant to concede that G Division was a restrictive regime. She reiterated on a number of occasions that G Division served a purpose in that it kept prisoners alive. She described its role as being to facilitate some of the state’s most difficult or dangerous prisoners. She considered that it would be a disservice to place them in environments in which they would not be equipped properly to communicate with others. She eventually acknowledged, however, that in G Division a prisoner was required to be in his cell for about 22 hours a day and that the plaintiff was the only prisoner at that time who was subject to a handcuff regime. She indicated that she was not confident to take him off that regime. She said that he had incited others to light fires and to take risks with their own lives, there had been incidents where he had refused to come back from the yard and prison staff had been obliged to use a chemical agent to manage his behaviour. She considered there had not been a long enough period when she could be confident that the staff could be safe.
Although the plaintiff was prepared to concede that he had from time to time been guilty of inappropriate behaviour he maintained he had been treated badly for a long period of time. The plaintiff raised the issue of his re-socialisation on a number of occasions throughout the proceedings. He pointed out that he would eligible for parole in a matter of months. He was not undergoing a re-socialisation program and was conscious of the need to acquire the necessary skills for a successful integration back into society. He maintained that his inappropriate conduct was a direct result of frustration, particularly given that he was handcuffed every time he left his cell, whether it be to take a shower or make a phone call.
The plaintiff argued that he should be accommodated in a minimum security institution for a remainder of his sentence. He pointed out in his affidavit, sworn on 16 August 2001, that he had no recorded assaults on occasions that he had been accommodated in B Division, where he had access to an oval and a gym and significantly more time outside of his cell. He was concerned that unless he had physical and mental space and was removed from the anxiety of the restricted environment of G Division he would not change his behaviour.
Ms Bordoni acknowledged in evidence that the plaintiff had specific needs and conceded that the reintegration process was very important. She said in evidence (at p 58):
“The challenge is even now greater given that currently Mr McKinnon does not have too much longer to serve on his sentence. That raises some real concerns for me in terms of our responsibility and what we will be sending out of the door from the prison system into the community.”
Ms Bordoni acknowledged the plaintiff’s concerns changing his behaviour but did not agree with his comments and considered that he was simply trying to justify why he behaved in a certain way.
This is not an easy matter to resolve. The situation with which I am confronted in this matter is not unlike that which confronted Olsson J in Fyfe wherein he said (at p 418):
“It must be recognised that the prison management is, in a very real sense, faced with a catch 22 situation. On the one hand it clearly has a duty of care to other prisoners, in light of the applicant’s past conduct and more recent threats expressed by him. On the other, the applicant’s emotional and mental health state seems not likely to improve dramatically unless he is progressively released into a more general prison environment.”

It is clear that intervention by way of judicial review will only be exercised in circumstances where prison management have acted in bad faith. I can well understand the plaintiff’s complaint that his angry outbursts are a direct result of his frustration and the stress of being on a restricted handcuff regime in G Division for what is now well over a year. It is, however, in the discretion of the management to determine the best circumstances in which to accommodate a prisoner. Although some of the matters which are the subject of complaint in this case are of varying weight, there is sufficient evidence of misconduct on the part of the plaintiff to support the decision of the defendants to maintain the order for separation and to rebut the suggestion that the defendants are acting in bad faith.
In my opinion, however, a fresh separation order should have been issued on 21 December 2000, if it was intended at that time to continue the separation on the basis of the plaintiff’s history of assaulting staff as opposed to the Port Augusta matter. The Port Augusta incident had in effect been finalised as a result of the penalty imposed upon the plaintiff in court when he was sentenced on 3 August 2001, and the plaintiff was entitled to expect that his punishment by the courts for that offence would have brought the separation order to an end. Ms Bordoni gave evidence that as the Port Augusta incident had since been finalised “it was deemed inappropriate” for the reference to it to be retained on the weekly review sheets. The plaintiff was still, however, being kept separate and apart pursuant to section 36 (2)(d) of the Act, although the circumstances were now different but the reason, namely the good order and security of the prison, had not changed. The fact that the separation order continued to be in force pursuant to section 36 (2)(d) is not to the point. The purpose of the form is to ensure that a prisoner clearly understands the reason for such a draconian order being made and he should therefore be given proper particulars with respect to it. This does not, however, provide a basis for intervention in this case as the history of the plaintiff’s prior history of assaulting staff even if only as admitted by him in the course of these proceedings was sufficient to found the basis for a further order for separation being made on that date. There has not, therefore, been any consequent injustice to the plaintiff as a result of the defendants’ failure to issue a new form.
In my view the plaintiff has failed to establish bad faith on the part of the defendants which would require this court to intervene by way of judicial review. The application is therefore refused.

[2001] SASC 343

19 October 2001