Re: Abott

[1995] QSC 180

IN THE SUPREME COURT

OF QUEENSLAND

No 233 of 1995

Before Mr Justice de Jersey

[Re:  Abott & Ors]

BETWEEN:

BRENDEN JAMES ABBOTT

Applicant

AND:

ROBERT L CORK

First Respondent

AND:

QUEENSLAND CORRECTIVE SERVICES COMMISSION

Second Respondent

AND:

G J HOWDEN

Third Respondent

REASONS FOR JUDGMENT - de JERSEY J.

Judgment delivered 21/07/1995

The applicant, Brenden James Abbott has been detained on remand at the Arthur Gorrie Correctional Centre since 27 March, 1995.  The prison authorities have treated him as a maximum security prisoner, and have detained him in what might be called isolation cells.
           Until about 24 May, 1995, he was held in a "punishment cell" which lacked its own power controls.  Since then, following a recommendation by the Official Visitor, he has been held in a "special treatment" cell which does have such controls.  In each case, the dimension of the cell is or was three metres square, with an adjoining exercise area of the same size with natural light entering through a mesh grill in the roof.  Throughout his detention, he has been substantially segregated from other prisoners and staff.  He is presently allowed two hours exercise in a separate yard each day. 
           The affidavit material before me shows ample justification for deep concern in the prison authorities about the possible compromising of prison security, should appropriate steps not be taken with relation to the applicant.  I offer the following matters - some of them allegations - as illustrations.  The applicant escaped with an accomplice from Fremantle Prison on 24 November, 1989 by manufacturing and wearing a prison officer's uniform with which he deceived the authorities.  While in that jail previously, he had on one occasion during a riot taken six prison officers hostage and assaulted them.  When recaptured in March, 1995, the applicant had possession of a large number of weapons together with ammunition.  He also had $76,000 in cash.  He was charged with a large number of armed robberies which had allegedly netted him more than $5 million.  On the day after his admission to the Arthur Gorrie Centre, he told the Acting Operations Manager and another:- "I won't be here long.  They couldn't keep me in Fremantle."  He has been said to have offered another prisoner $75,000 to facilitate his escape, and to have spoken of seeking out potentially corrupt prison officers for the purposes of bribery.  He has been described as a master of disguise and an expert in security electronics.  The affidavit material is much more comprehensive than the above summary may suggest:  paragraph 18 of Mr Howden's affidavit of 19 July, 1995 helpfully summarizes other relevant matters.  Suffice it to say for the present, in summary, that the whole of the material graphically confirms that the presence of the applicant within the jail gives rise to very serious security concerns.  He is a dangerous man, and his security calls for extraordinary measures.  The question for me is whether they have been lawfully implemented.
           By this application under the Judicial Review Act 1991, the applicant challenges each of the decisions said to authorize his being detained in the isolation cells. Those decisions are reflected in the orders collected together as ex.3. They were made under s.39 of the Corrective Services Act, 1988.  That section provides that:

"(2)The general manager of a prison may by instrument order that a prisoner receive special treatment -

(a)for the security or good order of the prison; or

(b)for the safety of the prisoner."

The term "special treatment" is defined as "the segregation or partial segregation of a prisoner from other prisoners under conditions prescribed by rule" (sub-s.(1)).  The General Manager is however not entitled to order that a prisoner receive "a period of special treatment exceeding seven days" unless the General Manager obtains "the approval of the Commission".  The precise terms of sub-s.5 are as follows:

"(5)  A general manager shall not order a prisoner to receive a period of special treatment exceeding seven days without the approval of the Commission."

The reference to the "Commission" is to the second respondent, the Queensland Corrective Services Commission.  The particularly applicable period of "special treatment" has consequences with relation to review by the Official Visitor, as appears from sub-s. (6) and (7):

"(6)  A prisoner ordered to receive a period of special treatment exceeding three days may require the general manager to refer the order to an official visitor for review and the general manager and the official visitor shall comply with the requirement as soon as is practicable.

(7)  Where a prisoner is ordered to receive a period of special treatment exceeding one month, the official visitor shall review the order as near as is practicable to the expiration of the first month and thereafter at intervals not exceeding one month in any case, until the period expires."

Sub-s.(10) makes provision for the medical examination of prisoners under a regime of "special treatment", as follows:

"(10)A medical officer shall examine a prisoner -

(a)as soon as is practicable after the prisoner commences a period of special treatment; and

(b)if the period allows, within seven days after the first examination and thereafter at intervals not exceeding seven days in any case, until the period expires; and

(c)as soon as is practicable after the period of special treatment expires."

The then Acting General Manager, Mr Cork (first respondent) signed the first challenged order for special treatment on 4 April, 1995.  It purported to order that the applicant receive special treatment from 6.06 p.m. on 3 April, 1995 to 6.06 p.m. on 5 May, 1995, which is of course more than seven days, so it required Commission approval.  Mr Cork has sworn that he made that order on 4 April.  He has also sworn that the Commission, through a Mr Corcoran, approved it on 7 April.  It was an approval in terms running from 3 April to 1 May.  One infers that Mr Corcoran signed the document in the form presented by Mr Cork, and that the reference to 1 May may very well have been Mr Cork's error.  In any case, the points taken for the applicant are that the order could not lawfully operate without the Commission's prior (or simultaneous, or concurrent) approval, and consistently with that, only prospectively.  This order, made by the General Manger on 4 April, and not approved by the Commission until 7 April, purportedly authorised "special treatment" for the applicant from 3 April.
           The submission for the applicant, from Mr Sofronoff QC, focused on the language of sub-s.(5):  ordinarily construed, he submitted, it does not contemplate a retrospective approval.  Mr Robinson, who appeared for the first and third respondents, submitted that in any event, prior to the grant of Commission approval, the detention could be justified as falling within the General Manager's own "up to seven day" authority, and he pointed out that the approval did eventuate within that period.  Ms Holmes, who appeared for the Commission, contended that the General Manager did not in fact act on the order until Commission approval was received, and that therefore no problem arose. 
           Ordinarily construed, sub-s.(5) would require that the approval be obtained before the order could take effect.  There should be no particular practical difficulty about that.  In situations of emergency, the General Manager has his own powers, to run up to seven days.  Merely specifying the need for Commission approval for the longer term orders confirms that as being a matter of significance.  Why take a liberal construction and regard a nunc pro tunc approval as enough?  The longer term order can place a prisoner into a much more burdensome and potentially difficult situation.  Without wishing to be seen as unduly dramatic, I do observe that it might be regarded as removing otherwise fundamental rights and liberties.  That being so, there is no particular warrant for adopting a construction of the section unduly generous to the Commission and the General Manager.  See, as generally helpful, the approach taken by the High Court in Coco 120 ALR 415.
           As to Mr Robinson's submission, it ignores the nature of the order.  There is some formality required in this process.  Sub-section (2) requires there to be an "instrument" e.g.  This particular instrument purports to embody an order operating for more than one month.  It cannot sensibly be "read down" to operate as an order for a lesser period. 
           As to Ms Holmes' submission, the fact is that the General Manager should be seen as having acted on the order as from 3 April.  As Mr Howden said in his evidence, as to the later period, the applicant was held continuously on a "special treatment" regime while he was General Manager (p.41), and I observe that that was also the case during Mr Cork's management. As from 3 April, that regime could only have been justified by reference to this particular order.  No other order was put forward as justifying the detention from 3 April.  Ms Holmes referred to Mr Howden's evidence about informing the staff of the orders at morning briefings (p.40).  That was simply a matter of communication to staff.  I did not accept the characterization drawn from Mr Howden's evidence that it was only from the point of Commission approval (or that communication) that an order was "put into effect" (p.40).  It must be taken to have been acted on, in truth, from the moment the manager signed it, and I would see the same as applying to Mr Cork's orders.  As explained earlier, that is the only basis upon which in this particular case detention from the date specified in the order, 3 April, could conceivably have been justified.
           There should therefore be an order setting aside the first respondent's order for "special treatment" in relation to the applicant, dated 4 April, 1995, and the second respondent's purported approval of that order on 7 April, 1995, and a declaration that that order and approval did not lawfully authorize the "special treatment" accorded the applicant in the period to which they related. 
           Ms Holmes opposed my making any declaration, on the basis that declarations were not claimed in the application.  I am however satisfied that that declaration flows as a natural consequence from the order setting aside the order and approval, and that because of its potential utility I should make it as requested.  I see no basis for prejudice towards the respondents if I proceed to make declarations in this case.  I note also that para.(iv) of the application does seek "such further or other orders or declarations as may be necessary to give effect to the court's ruling".
           The next challenged order, signed on 9 May, 1995 by Mr Cork, referred to "special treatment" for the applicant from 5 May, 1995 to 2 June, 1995.  Mr Corcoran, for the Commission, approved this order on 10 May, 1995.  It follows from my views expressed above that I should order that this order and approval be set aside, with a supporting declaration.  In particular, the approval of the Commission could not retrospectively operate to authorise the General Manager's order, itself defective, in addition, for its purported retrospective operation between 5 and 9 May.
           The next order signed by Mr Howden, the new General Manager of the Arthur Gorrie Centre, on 2 June, provides for "special treatment" for the applicant from 6.06 p.m. on 2 June, 1995 to 6.06 p.m. on 30 June, 1995.  That was approved by a Mr Wright for the Commission on 2 June, 1995.  The evidence from Mr Howden is that he would sign the order and then send it on to the Commission (p.40).  This order is not necessarily infected with the problem of retrospective operation. That is because it purported to operate only from 6.06 p.m. on the day it was signed, 2 June, and it was on that day also that the Commission approved it.  I am not prepared to infer from the evidence that the Commission approval was granted later than 6.06 p.m. on 2 June.  I am left in the position where the applicant has simply not satisfied me, with respect to this order and approval, that they should suffer the fate of the two preceding orders because of any purportedly retrospective operation.
           I turn finally to the orders signed by Mr Howden as General Manager on 30 June, 1995 providing for special treatment from 6.06 p.m. on that day to 6.06 p.m. on 28 July, 1995.  This is the order under which the applicant is currently being subjected to "special treatment".  I am prepared to infer that Mr Howden was not, when he signed this order, purporting to act with respect to any earlier period.  But the Commission did not approve this order until 3 July, 1995, and the approval related back to the period from 30 June.  The approval was therefore not an effective authorisation of the General Manager's order of 30 June.  There should therefore be an order setting aside the third respondent's order for "special treatment" in relation to the applicant, dated 30 June, 1995, and the second respondent's purported approval of that order on 3 July, 1995, and a supporting declaration. 
           The challenge to the orders and approvals was not limited to the question of retrospectivity, and I need to deal with the other aspects of the challenge especially because they may bear on the validity of the order of 2 June, with its approval of the same date.
           Mr Sofronoff submitted that the rationale of a "special treatment" order was the need to segregate a prisoner for, as relevant here, the security or good order of the prison.  See sub-s.(2).  He referred to sub-s.(1) and the terms of the Commission's Rule, ex.4.  He referred then to Mr Howden's evidence that these isolation cells were the only part of the prison adequate for the secure detention of this very high risk prisoner: see para.31 affidavit 19 July, 1995, transcript pp.32-3.  One should therefore see the purpose of this particular "special treatment" accorded him as not to segregate him, it was submitted, but "because the detention unit is the strongest lock-up in the prison and the prison is otherwise inadequate".   Mr Sofronoff submitted that the fact that he was also thereby kept segregated from other prisoners was "merely incidental". 
I do not uphold this submission. Segregation is the mechanism of a "special treatment" order. The motivation for the order, the consideration which justifies it, is, as relevant here, security and good order in the prison. If, as I would readily accept, segregation of the applicant is necessary for that security, and the only way effectively to segregate him in this prison is by detention in these isolation cells, then a "special treatment" order leading to that detention was warranted. It was not, in short, irrelevantly or improperly motivated or based (cf. s.23 Judicial Review Act).  Other factors bearing directly on a need for segregation, to aid security, were the allegations of attempts to bribe a fellow prisoner and talk of seeking out corrupt officers for the same purpose.
Mr Sofronoff also challenged the apparently limited material put before the Commission by the General Managers when seeking Commission approval. He pointed to an intention that the Commission play a meaningful role in the process, and submitted that it had here "relied solely upon the fact that the General Manager wanted an approval and had made a purported order". I regard that as an unduly cynical analysis, though it must be said that the material put by the General Managers before the Commission was certainly limited. The form (apparently "in-house") headed "Extension of Special Treatment - s.39(5)" stated, as the reason for each request, that the applicant was "considered to be such an escape risk that he should be treated as a prisoner classified maximum security until ratified by the QCSC". Under the other heading, "Detail perceived risks to the security or good order of the prison ... which warrant the continuance of special treatment", the General Managers stated:-

"For the good order and ... security of the prison it is considered that he be treated as a prisoner classified maximum security."

- and that was of course assertion rather than particularization.  One would hope that in future cases the forms might be completed rather more helpfully for the Commission.  But for all that, there is I think a sufficient answer for present purposes.
           Ms Holmes submitted, for the Commission, that in order to consider whether it should grant an approval, the Commission could legitimately take the view that it need only be satisfied that the General Manager - in whom presumably it had basic confidence - had assigned a sufficient reason.  It would be entitled to rely on his own assessment of the facts grounding that reason, and not necessarily embark, itself, on a further investigation of those facts, so that detailed information to facilitate such an assessment need not have been furnished.  I accept that submission.  (I add that the Commission must be taken to have known of the applicant's status since admission and his notoriety as a dangerous prisoner with a propensity for escape.  I conclude that as a matter of plain commonsense, in light of the Commission's function (s.13(1) Corrective Services Act) and notwithstanding an absence of direct evidence before me from its officers.)
           Finally, Mr Sofronoff submitted that the Commission should be regarded as having ignored the potential effect on the prisoner's health of this protracted regime of special treatment.  I do not accept that.  The Commission must, again, as a matter of commonsense, have been alive to that possibly deleterious consequence.  Mr Howden's evidence was that there was a multi-disciplinary nurse on his advisory team.  A counsellor and medical practitioner have examined the prisoner from time to time.  The Commission could presumably have relied on the General Manager to communicate any particularly relevant, special feature emerging from those consultations.  (No particular such special feature was suggested here.)  Beyond that, it should, of course, have taken account of the potential, generally debilitating psychological effect of this sort of detention, but because to my mind that is a matter of such plain commonsense, I am not prepared to infer that the Commission did not take account of that in its approach to the question of approval.
           I do not therefore uphold any of the other bases for the challenges to the orders and approvals made.
           It is most unfortunate for the community that these orders need to be set aside, because I am satisfied that there was ample practical justification for this form of detention.  On the other hand, the applicant was entitled to have such important orders made in accordance with the procedural requirements of the law, and since that was not done, he is now entitled to have that declared in his favour.           There will therefore be an order that the "special treatment" orders made by the first respondent on 4 April, 1995 and 9 May, 1995, and by the third respondent on 30 June, 1995, and the second respondent's corresponding approvals dated respectively, 7 April, 1995, 10 May, 1995 and 3 July, 1995, purportedly under the Corrective Services Act 1988, be set aside; and a declaration that those orders and approvals did not lawfully authorise the "special treatment" accorded the applicant in the periods to which they related.