Reg v The State of South Australia
[2020] SASC 36
•18 March 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
REG v THE STATE OF SOUTH AUSTRALIA
[2020] SASC 36
Judgment of The Honourable Justice Doyle
18 March 2020
TORTS - MALICIOUS PROCEDURE AND FALSE IMPRISONMENT - FALSE IMPRISONMENT
The plaintiff seeks damages from the defendant (the State of South Australia) for false imprisonment and misfeasance in public office.
The plaintiff’s claim arises out of his imprisonment at the Adelaide Remand Centre (the ARC) for five days in April 2009. The imprisonment occurred following the issue of a warrant of remand by a Magistrate that specified “Correctional Institution: Glenside Campus of the Royal Adelaide Hospital.” The Glenside Campus of the Royal Adelaide Hospital (Glenside) is not a correctional institution under the Correctional Services Act 1982 (SA).
The plaintiff claims that as the warrant specified that he be remanded to Glenside and not the ARC (or, indeed, any correctional institution) there was no lawful basis for him to have been imprisoned at the ARC for five days. He claims that in the circumstances the defendant is liable both for false imprisonment and misfeasance in public office.
The defendant denies any liability to the plaintiff. It does so on the basis that the Magistrate was only empowered to order that the plaintiff be detained at a correctional institution or in custody, and did not have power to order that the plaintiff be detained at Glenside. The defendant contends that while the warrant of demand was thus defective in specifying Glenside, under s 182(1) of the Summary Procedure Act 1921 (SA), this did not invalidate the warrant. The defendant further contends that the Magistrate ordered that the plaintiff be detained in custody, and as the Correctional Services Act entitles the Chief Executive of the Department of Correctional Services to determine the correctional institution in which a person remanded in custody is to be placed, the plaintiff’s detention at the ARC was lawful. The defendant contends that as the detention was lawful, then both of the plaintiff’s claims must fail.
Held, per Doyle J, dismissing the plaintiff’s claims:
1. The Magistrate’s intention in issuing the Warrant of Remand on 23 April 2009 was to remand the plaintiff in custody, as opposed to bail, under s 59 of the Summary Procedure Act. Section 22(1) of the Correctional Services Act then authorised the detention of the plaintiff in any correctional institution. This is so regardless of whether the Magistrate intended to identify a particular location for the plaintiff’s custody.
2. The reference to Glenside as the correctional institution in the warrant was a defect which, under s 182(1) of the Summary Procedure Act, did not render the warrant invalid.
3. Accordingly, the warrant was valid and there was a lawful basis for the imprisonment of the plaintiff at the ARC. The plaintiff’s claim of false imprisonment must therefore fail.
4. The plaintiff’s claim for misfeasance in public office also fails at the threshold as the warrant was valid and his imprisonment lawful.
5. Alternatively, the plaintiff’s claim for misfeasance in public office must also fail as the plaintiff failed to establish the requisite of malice or recklessness on the part of any public officer involved in the plaintiff’s imprisonment at the ARC.
6. In the event that the plaintiff’s claims had succeeded, damages would have been assessed in the amount of $100,000. The plaintiff did not make out a basis for any award of aggravated or exemplary damages.
Bail Act 1985 (SA) s 5(2)(b); Correctional Services Act 1982 (SA) s 4, s 21A, s 22(1), s 22(4); Criminal Law (Sentencing) Act 1988 (SA) s 19(4); Criminal Law Consolidation Act 1935 (SA) s 269; Mental Health Act 1993 (SA) s 12(1); Summary Procedure Act 1921 (SA) s 58, s 59, s 60, s 103, s 112, s 182(1), referred to.
Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653; Cornwall v Rowan (2004) 90 SASR 269; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; Gazal Apparel Pty Ltd v Davies [2007] SASC 91; Northern Territory v Mengel (1995) 185 CLR 307; Obeid v Lockley (2018) 98 NSWLR 258; Poniatowska v Channel Seven Sydney Pty Ltd (No 2) [2020] SASCFC 5; Radmanovich v Nedeljkovic [2002] NSWSC 212; Sanders v Snell (1998) 196 CLR 329; South Australia v Lampard-Trevorrow (2010) 106 SASR 331; White v State of South Australia (2010) 106 SASR 521, considered.
REG v THE STATE OF SOUTH AUSTRALIA
[2020] SASC 36Civil
DOYLE J: The plaintiff seeks damages from the defendant (the State of South Australia) for false imprisonment and misfeasance in public office.
The plaintiff’s claim arises out of his imprisonment at the Adelaide Remand Centre (the ARC) for five days commencing on 23 April 2009. The imprisonment occurred following the issue of a warrant of remand by a Magistrate that specified “Correctional Institution: Glenside Campus of the Royal Adelaide Hospital.” The Glenside Campus of the Royal Adelaide Hospital (Glenside) is not a correctional institution under the Correctional Services Act 1982 (SA).
The plaintiff claims that as the warrant specified that he be remanded to Glenside and not the ARC (or, indeed, any correctional institution) there was no lawful basis for him to have been imprisoned at the ARC for five days. He claims that in the circumstances the defendant is liable both for false imprisonment and misfeasance in public office. The additional matters said to support the latter cause of action are detailed later in these reasons.
The defendant denies any liability to the plaintiff. It does so on the basis that the Magistrate was only empowered to order that the plaintiff be detained at a correctional institution or in custody, and did not have power to order that the plaintiff be detained at Glenside. The defendant contends that while the warrant of demand was thus defective in specifying Glenside, under s 182(1) of the Summary Procedure Act 1921 (SA), this did not invalidate the warrant. The defendant further contends that the Magistrate ordered that the plaintiff be detained in custody, and as the Correctional Services Act entitles the Chief Executive of the Department of Correctional Services (referred to in these reasons as ‘DCS’ or ‘Corrections’) to determine the correctional institution in which a person remanded in custody is to be placed, the plaintiff’s detention at the ARC was lawful.
The defendant contends that once it is accepted that the detention was lawful, then both of the plaintiff’s claims must fail.
For the reasons which follow I have accepted that the plaintiff’s detention at the ARC was lawful and hence that the plaintiff’s claims must fail.
The trial
The trial of these proceedings took place over six days. The plaintiff gave evidence in his case. The defendant called evidence from four people employed within DCS at the time of the relevant events. The parties each called evidence from a psychiatrist on the issue of damages.
The evidence also included a substantial number of documents, largely comprised of records in relation to the plaintiff obtained from the Magistrates Court, SA Police, DCS, SA Prison Health, the Royal Adelaide Hospital and Glenside.
Given the time that had elapsed since the relevant events, it was not surprising that the witnesses called at trial were not able to add substantially to the contemporaneous documentary record of the relevant events. This was particularly so in relation to the defendant’s witnesses.
I found each of the defendant’s lay witnesses to be honest and reliable. But, as each acknowledged, none of them had any independent recollection of the events surrounding the plaintiff’s imprisonment at the ARC back in 2009, and so their evidence was largely confined to matters arising out of the contemporaneous documentation, and in the nature of evidence of their usual practices.
The plaintiff was able to recall some aspects of the relevant events, although even he had very little recollection of the detail. I am satisfied that the plaintiff’s evidence was generally honest and reliable. The general effect of his evidence as to the timing and sequence of events was consistent with the contemporaneous record. However, I have not accepted some aspects of the plaintiff’s evidence. While he appeared to me to be attempting to give honest and accurate evidence, I became concerned that the plaintiff had a tendency to exaggerate and dramatise, particularly in relation to some of the detail and consequences of his period of imprisonment at the ARC. I formed this view based in part upon an overall impression of the plaintiff’s evidence, and some general personality traits that emerged during the course of his evidence. My view in this respect was also based in part upon my consideration of the contemporaneous records that exist, particularly of the plaintiff’s time at the ARC.
There is no doubt that the plaintiff’s admission to the ARC, and time spent in detention at the ARC, was a traumatic experience for him. And I accept that the general effect of his evidence as to his time in the ARC was consistent with the contemporaneous records. However, I am not satisfied that the plaintiff’s evidence in relation to the detail of that stay was reliable. I suspect that, as often happens, the plaintiff may have come to believe the detail of his version of those events, despite that detail being exaggerated in some respects. For these reasons, I have not generally relied upon the plaintiff’s evidence as to his time in the ARC to the extent it goes beyond what is contained in the contemporaneous records.
As I will develop later in these reasons, I also experienced some difficulties with the plaintiff’s evidence in relation to the ongoing effects upon him of his imprisonment at the ARC. In particular, some inconsistencies emerged in terms of his description of the circumstances surrounding the cessation of his nursing agency business.
In structuring these reasons, I propose to commence by setting out my findings in relation to the plaintiff’s background, based largely upon the plaintiff’s own evidence. I will then set out my findings as to the circumstances leading to the plaintiff’s detention, most of which are uncontroversial and emerge from the contemporaneous documentary records. The next section of my reasons will address the evidence, and then my findings, in relation to the period the plaintiff spent at the ARC. I will then address the plaintiff’s two causes of action, and conclude with a consideration of the issues arising on an assessment of damages.
The plaintiff’s background
I make the following findings in relation to the plaintiff’s background, and the circumstances more generally, based primarily upon the plaintiff’s evidence.
The plaintiff was born in 1959, and so was 60 years of age at the date of trial. He has been married for about 35 years. He and his wife have three sons and a daughter.
The plaintiff had an unsettled childhood. His family moved around, including spending periods overseas, and as a result he went to a number of different primary schools. His parents separated when he was young, and he was brought up by his mother. But it would appear that his mother struggled with the responsibility of parenthood, and so he spent a lot of time in the care of others, including interstate relatives. He also spent a period as a ward of the State.
The plaintiff’s mother married again, and he lived with her and his step-father from the age of about 12 through to 16. He said that his step-father brought him up well, but he described it as a “hard” upbringing. His step-father would discipline him physically.
For his secondary schooling the plaintiff attended Adelaide Technical High School. He did so through to the end of year 11. He described his schooling as being easy for him; to the point that he found it boring.
From the age of about 15, the plaintiff worked in a couple of Coles supermarkets. He was promoted quickly, and by the age of 18 he was a night manager in charge of about 20 people. At the age of 21 he spent a couple of years travelling around Australia, doing odd jobs as he moved around. This included spending periods working as a croupier, a geologist’s assistant, an explosives technician, a gardener and a cook.
The plaintiff eventually returned to Adelaide at the age of about 23 or 24 with a view to settling down, getting married and having children. Within about a year he married his wife, whom he had met several years earlier through a church group he had been part of before leaving Adelaide. He worked as a manager with Woolworths, and she worked as a nurse. They bought a house and managed to pay it off within a few years. They had four children together. As at the date of trial their three sons were aged 32, 30 and 28, and their daughter was aged 17.
While he worked hard to provide and care for his children, and to prevent them having to endure the instability and insecurity that he experienced as a child, the plaintiff acknowledged that at times he could have been a better father. He also acknowledged that he and his wife had had some marital difficulties over the years. But he said that he now considered that their difficulties were resolved, and that they were back together.
Returning to the plaintiff’s work history, he worked as a manager at Woolworths until he was about 27 or 28. He then spent about a decade working as a marketing representative for Bushells, which was eventually taken over by the international company Unilever. He had a team of 28 people working for him.
The plaintiff then went back to university and did a nursing degree. At the age of about 41 he set up his own business, essentially operating a call centre to supply registered and enrolled nurses to the aged care industry. He said that he had up to 98 employees working for him at a time, and that he also did some of the nursing work himself. In his evidence, the plaintiff said that he continued with this business until about 2010 or 2011; that is, until about a year or two after his detention at the ARC which is the subject of these proceedings. I shall return to the circumstances in which he ceased to operate his business later in these reasons, when considering the issues that have arisen in relation to the plaintiff’s claim for damages.
In terms of the plaintiff’s medical history, the plaintiff said that when he and his wife experienced difficulties in their relationship, it hit him extremely hard. He came to believe that he was bipolar, and eventually had this diagnosis confirmed by a Dr Patterson. He thought this was in about 2007 or 2008, although other documentation suggests it may have been earlier than this and in about 2005. The plaintiff went on to explain that Dr Patterson had said to him that he was actually unipolar because he was not experiencing the depressive symptoms associated with bipolar, but that as unipolar was not a recognised condition he used the label bipolar. The plaintiff was given medication (valproate), which he took for a number of years.
Late 2008 and early 2009 was a particularly difficult period for the plaintiff. He attempted suicide on three occasions. These attempts occurred at a time when his relationship with his wife had deteriorated, and they had separated. He spent brief periods in hospital following these suicide attempts. He attributed his suicide attempts to the breakdown of his relationship with his wife, and his feeling that his life was “falling apart”. In giving a history to Dr Begg for the purposes of his report in these proceedings, the plaintiff said that with the benefit of hindsight he now considers that his suicidal behaviour was manipulative and attention-seeking; that it was motivated by an intention to impact his wife, or to get back at her.
On 29 December 2008, an incident occurred between the plaintiff and his son which resulted in the plaintiff being arrested and charged with assaulting his son. As elaborated upon below, he was granted bail and indeed was on bail when he missed the April 2009 court appointment that led to his arrest and then detention at the ARC.
Throughout the first few months of 2009, the plaintiff continued to experience difficulties associated with the breakdown in his relationship with his wife and family. His mental health deteriorated to the point where he was admitted to the Royal Adelaide Hospital (RAH) for psychiatric assessment and care on multiple occasions during that period. The hospital notes from those admissions are in evidence. Those notes make multiple references to the plaintiff experiencing ‘situational crises’, primarily as a result of his marital difficulties, and against a background of a bipolar mood disorder and a narcissistic personality disorder. He was described as being unstable in mood, aggressive, paranoid and suicidal.
Circumstances leading to the plaintiff’s detention at the ARC
There is no dispute about most of the basic facts leading to the plaintiff’s detention at the ARC in late April 2009. I make the following findings of fact, based largely upon the documentary records in evidence.
As mentioned, on 29 December 2008, the plaintiff was arrested and charged with assaulting his son. After spending the night in the city watch house, the plaintiff appeared the following day in the Magistrates Court, before Magistrate Baldino. He did not enter a plea, and was granted bail.
On 2 January 2009, the plaintiff appeared again in the Magistrates Court, this time before Magistrate Ackland. He again did not enter a plea. While the terms of the initial grant of bail were varied, the plaintiff’s bail was continued. The plaintiff attended a further directions hearing before Magistrate Ackland on 10 February 2009. The matter was adjourned, with the plaintiff on continuing bail, to enable the plaintiff to obtain legal advice pending a further hearing scheduled for 14 April 2009.
The plaintiff failed to attend the hearing on 14 April 2009. Magistrate Bolton issued a warrant of apprehension, and adjourned the hearing to 23 April 2009. The warrant was issued under s 58 of the Summary Procedure Act, and was endorsed with a note under s 5(2)(b) of the Bail Act 1985 (SA) to the effect that the plaintiff was excluded from bail, and not to be released on bail.
The plaintiff’s evidence was that he simply forgot to attend the hearing on 14 April 2009. This evidence was not challenged, and I accept it. His evidence in this respect is supported by the reference in the DCS paperwork to the plaintiff telephoning the subsequent day and apologising for missing the hearing. It is also consistent with the evidence to the effect that the plaintiff was suffering from significant stress around this time as a result of difficulties in his relationship with his wife.
In the evening of 18 April 2009, and following another suicide attempt, the plaintiff was examined by a Dr O’Donnell, who made an order under s 12(1) of the Mental Health Act 1993 (SA) that the plaintiff be admitted and detained at the RAH. The order provided for that detention to continue until 21 April 2009.
On the morning of 19 April 2009, the plaintiff was examined by a psychiatrist (Dr Loukas) at the RAH. Dr Loukas described the plaintiff as depressed and suicidal, and recommended that he be transferred to the Glenside Campus of the RAH. In accordance with this recommendation, the plaintiff was then transferred to Glenside.
The plaintiff was further examined during the morning of 21 April 2009, and the decision was made to extend the detention of the plaintiff for a period of 21 days (this being the maximum permissible period). The notes of this examination record that the plaintiff was experiencing suicidal thoughts, and that there had been an escalating succession of potentially lethal suicide attempts. The case notes and discharge summary from the plaintiff’s admission to Glenside made reference to his previous diagnosis of a bipolar mood disorder, although noting the absence of any present features of mania. They also made reference to numerous aspects of his presentation that were said to support a diagnosis of a narcissistic personality disorder.
The plaintiff said that while in Glenside he had his own room, and was free to wander around the facility, to watch television and read newspapers, and to eat with others in the dining room. He was able to make telephone calls, and have visitors at any time. He could walk in the gardens, and while in one sense he was not free to leave the place, he was nevertheless able to leave for short periods (for example, to go to the shops) subject only to the permission and supervision of staff from Glenside.
The documentation in evidence then reveals that on the morning of 23 April 2009, a medical officer reviewed the plaintiff. The medical officer’s notes record that the plaintiff presented as calm and sensible, and as having some insight in relation to his difficulties. While recommending private psychiatric follow up, and psychological therapy, the medical officer concluded that the plaintiff did not currently require inpatient psychiatric treatment; that he was fit to be discharged from Glenside and into the custody of the police (who had made telephone contact and indicated an intention to arrest the plaintiff upon his discharge from Glenside). Later that day, the order detaining the plaintiff at the Glenside Campus of the RAH was revoked.
While it appears from the plaintiff’s evidence that he may have believed he was being released from any form of detention, he was collected by the police from Glenside (pursuant to the warrant of apprehension issued by Magistrate Bolton). The police documentation records that the plaintiff was transported to the city watch house, where he was arrested and taken into custody. Consistently with the endorsement on the warrant of apprehension, the plaintiff was not granted bail. He was interviewed and assessed, and then placed in a cell for a short period of time. He was then transported to the cells of the Adelaide Magistrates Court, from where he attended the hearing before Magistrate Baldino that occurred on the afternoon of 23 April 2009.
There is no transcript of that hearing. Apart from the plaintiff’s evidence (see below), the only evidence of what occurred at that hearing is the record of outcome generated by the Magistrates Court, and signed by the Magistrate. That document records that the plaintiff attended ex custody and was represented by a duty solicitor. It also records that the Magistrate requested a bail enquiry report “to address [the plaintiff’s] previous supervision whilst on bail … [and] to address [his] mental health issue under Dr Alison Ford at Glenside.”
The record of outcome states that the plaintiff was then remanded to a further hearing on 28 April 2009. It then states:
Warrant Issued WARRANT OF REMAND (SUMMARY PROCEDURES ACT) Remanded to GLENSIDE CAMPUS OF THE ROYAL ADELAIDE HOSPITAL
The warrant itself was on a Magistrates Court form headed ‘Warrant of Remand’, and made reference below this heading to ss 59, 103 and 112 of the Summary Procedure Act 1921 (SA) and s 19(4) of the Criminal Law (Sentencing) Act 1988 (SA).
The body of the document consisted of five sections or panels. After three panels setting out various formal details in relation to the proceedings, the fourth and fifth panels recorded the following:
The plaintiff’s detention at the ARC
In relation to the circumstances of the plaintiff’s detention at the ARC, I shall commence by summarising the evidence before then setting out my findings.
The plaintiff’s evidence
The plaintiff had only a very limited recollection of the hearing before Magistrate Baldino on the afternoon of 23 April 2009. His recollection was that the police had taken him to the Adelaide Magistrates Court cells, and that he entered the court room from the cells, sat in the dock during the hearing, and then returned to the cells once the hearing had concluded.
The plaintiff’s recollection, while very vague and general, was that the hearing last about 10 to 15 minutes. He said that once the Magistrate had been informed of the hearing that he had failed to attend, and the location from which he had come (i.e. the Glenside campus of the Royal Adelaide Hospital), he told the plaintiff that he would be going back to Glenside, or remanded to Glenside, to enable a bail report to be prepared, and to return to Court on 28 April 2009 to see whether he was suitable for bail. The plaintiff recalled discussion of a report that would take into account an assessment from a doctor from Glenside.
Having returned to the cells, the plaintiff was then placed in a van operated by Group 4. There were a number of other prisoners in the van. At that stage he was not anxious, stressed or upset. He had been calm in the court room, and remained calm, because he thought he was going back to Glenside, and that there would be no issue with his bail report given that he had simply missed a court appointment. He was not handcuffed.
However, things changed when they arrived at the sally port of the ARC and he realised that that was where he was being taken. He said that he told the Corrections officers who were present that he was not meant to be there; that he was meant to be going to Glenside. He understood that the Corrections officers then discussed this with the Group 4 officers who had brought him there. According to the plaintiff, a Group 4 officer said “We haven’t got time to take him to Glenside”. He said that the Corrections officers went back inside, apparently to work out what would happen to him.
After what seemed like about five or ten minutes, the Corrections officers came back out into the sally port area, and one of them said “You’re coming in here”. He protested and said again that he was not meant to be there; that he was meant to be at Glenside. He was then told by the Corrections officer “Shut the fuck up, Skippy. This is where you’re staying.” He said again “I’m not meant to be here”, and was told “Just shut the fuck up”. When he continued to protest, the Corrections officer said that it could be sorted out next week.
The plaintiff did not know the name of the Corrections officer who made the comments in the preceding paragraph. The best description he could give was a male who was about 6 foot 2 inches tall with a solid build (approximately 85 to 90 kilograms), with dark straight hair, and in his late 30s or early 40s.
The plaintiff said that he became extremely upset and stressed at that point, and was crying. He was really worried because he knew he was not meant to be there. He said he felt immediately under threat, intimidated and scared. He kept on saying that he was not meant to be there, and was meant to be at Glenside, but he felt he was just being ignored.
The plaintiff had only a limited recollection of the admission process at the ARC. He thought there were about half a dozen prisoners to be admitted, and about half a dozen Corrections officers involved in the process. He recalled being made to strip, and to squat and cough. He understood why this process was occurring and so did not question the process itself. He just did what they said. Once inside he protested again, and was again told to “Shut the fuck up”. He was interviewed by a Corrections officer, but could not remember the detail of this. He said that he did recall saying during his initial interview that he was fearful of being beaten up or raped while in prison, and indeed said that he was told by the Corrections officer that he might be raped whilst in prison.
The plaintiff said that he was familiar with the ARC as he had worked as a registered nurse in various of the prisons around South Australia, including the ARC. He was scared of being placed in with the general prison population, as he thought there might be some prisoners who would recognise him and not like him, given that he had declined some of them medication on occasions, and that he had put some of those who had abused him on report.
The plaintiff said he was initially taken into the infirmary area. He was interviewed by the prison nurse. He complained to the prison nurse that he was not meant to be there, but again to no avail.
The plaintiff said that he was then placed in a cell within the infirmary. He wanted to read a bible, but was not able to do so because his glasses were taken away from him. He was scared and petrified, and thought that no one knew where he was. He did not feel able to contact anyone because the prison telephone system worked on the basis that they would phone ahead to see if the person you wanted to speak to was happy to take the call. He said that he felt that he could not make a call, or that they would not let him make a call. He wanted to call his wife, but his request to do so was ignored.
From his cell the plaintiff could see an area for the Corrections officers, and beyond this the entrance to the television room and to a courtyard. He was not given access to either. Despite his complaints, they left the lights on in his cell for 24 hours a day. He had nothing to do in his cell – no books, no television and no radio – and so he just lay there, curled up on the floor. He was fed in his cell, and had to use the toilet in his cell in plain sight, with only a glass wall between him and the Corrections officers.
While the plaintiff said he was in “solitary confinement”, he explained that by this he meant that he was in a cell within the infirmary section, but that it was in the circumstances he described above and did not involve contact with anyone else. It was only on the third day that he was allowed to leave his cell and have a cigarette in the courtyard. He said that he only spent eight minutes out of his cell during the first three days.
The plaintiff said that when visiting the courtyard he caught sight of a prisoner on the other side of a glass wall making a crude gesture. When he queried with the Corrections officer what it meant, he was told that the other prisoner thought the plaintiff was a paedophile and that he was indicating that he was going to rape him.
The plaintiff’s evidence was that he was left in his own clothes (or at least prison-issued clothes) for the first few days, and was only given a shower on about the third day. He was then made to wear what he described as a canvas sack with a hole for his head. He was not given underwear to wear under the canvas sack.
The plaintiff spent a total of five days in the ARC. He said he spent the five days just lying in his cell with nothing to do. He was upset and crying, and scared. While his time within the infirmary was traumatic, at the same time he was petrified of being moved into the general prison population.
The plaintiff said that this was the first time he had been in a prison cell, although he later qualified this by acknowledging that on a few previous occasions he had spent short periods of time in the city watch house, and the holding cells of the Magistrates Court.
The defendant’s evidence
The defendant led evidence from four people employed within the DCS and working at the ARC at the relevant time, being Melissa Nguyen (administration supervisor and warrants clerk), Michael Hedger (admissions supervisor), Paul Stichel (admissions officer), and John Burnell (general duties correctional officer). It also relied upon the documentary records of DCS and the prison health service.
Ms Nguyen – warrants clerk
Ms Nguyen commenced work within DCS in 2005. As at 23 April 2009, she was an administration supervisor, but on that particular day she was working as the warrants clerk.
Ms Nguyen explained that she was one of three or four people who regularly assisted the full-time warrants clerk (Raelene Sweeney). She did so about once a week. When performing this role, one of her tasks was admitting prisoners to the ARC, including prisoners either returning to the ARC from court attendances, or who had been sent to the ARC from court. Ms Nguyen summarised her role in this respect as involving entering the prisoner’s name onto the computer system, matching the prisoner to the relevant warrant, and then preparing and printing a case file to be given to the admissions supervisor. She would also enter the details of the warrant onto the system, including the date of the warrant, the charges and the next court appointment.
Ms Nguyen’s evidence was that she processed the plaintiff’s admission to the ARC on 23 April 2009. She said that while she did not recall the plaintiff or the warrant involved, she believes she processed his admission in accordance with the usual admission procedures.
As to the validity of the warrant, Ms Nguyen said that she considers (and believes she would at the time have considered) it to be a valid warrant because “it looks like all the other remand warrants that I process”. She noted the reference to Glenside, but said “this to me is irrelevant because warrants will often state a Correctional Institution other than the Remand Centre”. She gave as an example warrants referring to Yatala Labour Prison, explaining that despite this reference, prisoners were often brought to the ARC.
During cross-examination, Ms Nguyen said that she could not remember whether she had ever processed any warrants referring to places other than a prison. She did not think she had ever processed any warrants referring to other hospitals, although she was not able to recall whether that was so in relation to the RAH. But she did not think she had ever declined to process someone arriving at the ARC on the basis that their warrant was invalid. So far as she was concerned, as long as the warrant had the correct details of the person, and the correct dates and file number, then it was valid.
Ms Nguyen acknowledged that she had only received limited training as a warrants clerk, being essentially what she had been told or taught by Ms Sweeney. She said that if she needed advice about a particular warrant, or was unsure about its validity for some reason, then she would have contacted Ms Sweeney. But she said she had no recollection of whether she did so in the case of the plaintiff’s warrant, adding that it “was a long time ago”.
Mr Hedger – admissions supervisor
Mr Hedger was the admissions supervisor at the ARC as at 23 April 2009, and was working in the arrivals area (referred to as ‘the bunker’) when the plaintiff arrived. He did not have any independent recollection of the events of that evening, or indeed of the plaintiff.
Based upon his usual practice, Mr Hedger gave evidence that he would have checked the plaintiff’s warrant of remand. He did not think that Glenside was a correctional institution, and so, given the reference to Glenside on the plaintiff’s warrant, he said that he would have queried this with the warrants clerk working that evening, when giving her the warrant. But he said that he would also have noted the last paragraph on the warrant (i.e. the fifth panel), which directed that the plaintiff be detained unless and until bailed. He would thus have understood that the plaintiff was to be held in custody. He would have assumed it was a valid warrant unless the warrants clerk told him otherwise.
Mr Hedger explained that if he had thought the warrant was invalid, then he would have understood that they had no legal basis to hold the plaintiff. He would have arranged for the plaintiff to be taken back to Court to sort the position out, or to correct the paperwork. If the warrants clerk had said the warrant was invalid, then he would have “sent the person straight back with the escorting agency that brought them in.” Mr Hedger said that he had declined to admit a prisoner occasionally, although he said that these occasions generally related to situations where police did not have valid warrants, as opposed to prisoners arriving in a van from the Court.
Mr Hedger said that he could not recall ever seeing another warrant referring to Glenside. He thought he had seen warrants referring to a hospital, although he acknowledged that these were mental health warrants under s 269 of the Criminal Law Consolidation Act 1935 (SA). But he repeated that if he had any concerns about a particular warrant, then this was something he would raise with the warrants clerk. And if the warrants clerk had an issue, then he would have expected her to take it “up the line” to the general manager. He did not recall any issue with the plaintiff’s warrant.
Mr Hedger recalled there being an operating procedure that governed the admission of prisoners at the ARC as at April 2009, although he was not able to recall the content of that document.
The document in question was produced by the defendant in the course of Mr Hedger’s evidence, and was entitled Local Operating Procedure No 13, ‘Prisoner Admission and Court Movement’. It had an issue date of 20 April 2002, and according to Mr Hedger was still in force in April 2009. The document was in very general terms, and so of very limited significance in the present case. The document did not say anything about warrants, or anything about the procedures for determining their validity. In addition to some information about staffing requirements, the document provided for newly admitted prisoners to be strip searched before commencing the admissions process, and to then be processed one at a time. It also provided that each prisoner must undergo a prisoner stress screening, and a health assessment; and that they must have their property recorded and receive a first issue of clothing.
Mr Hedger also explained that there was a process by which they generally received a phone call from the Group 4 van transporting prisoners to the ARC from court to let them know they were on their way. The details of the number and names of the prisoners heading to the ARC would then be entered onto a hand-written running sheet, called an ‘admission/discharge sheet’. But he did not think this running sheet had any formal status; it was just a courtesy to let them know what was coming.
In terms of the plaintiff’s admission on 23 April 2009, Mr Hedger could not recall the plaintiff arriving at the ARC. He could not recall whether the plaintiff’s name was on the relevant running sheet, but said that it must have been. He could not recall a prisoner saying to him that he was meant to be detained at Glenside. He denied ever telling the plaintiff to “shut the fuck up”.
There is a note in Mr Hedger’s name in the DCS case notes for the plaintiff, dated 23 April 2009 at 19:17 hours. The note records:
Admitted to Adelaide Remand Centre, stress score 24, copies of DCS and SAPol screening forms given to PMS. Has been placed on a Yellow Sheet Status. Admitted to the Infirmary for observation.
Mr Hedger explained that he would have obtained this stress score of 24 either by reading it on the prison stress screening form completed by Mr Burnell (see below), or by being told this score by Mr Burnell. Mr Hedger said that this was quite a high score and indicated that the prisoner was anxious.
Mr Hedger denied that he ever told the plaintiff that he may be raped or assaulted while in prison.
Mr Hedger said that there was a protocol for making phone calls at the point of admission, for example, to let family know where they were. Essentially it involved a Corrections officer initiating the call and making sure the person at the other end was prepared to take the call. But the prisoner was then allowed to make a five minute call. Mr Hedger expected that the plaintiff would have been given this opportunity to make a call, but said that this is a matter that would have been attended to by the admissions officer (in this case, Mr Burnell).
Mr Hedger gave some general evidence about the conditions in which prisoners were kept in the infirmary. He said that there were about four or five cells in the infirmary, and that the area was usually attended by one Corrections officer, although there was often another one in the vicinity. He said that when a person was in solitary confinement within the infirmary, they did not have access to a television or radio, although they might be able to have a book or magazine.
He said that even when in solitary confinement within the infirmary, prisoners were generally allowed out of their cells for a minimum of 30 minutes each day, and up to two hours if possible. But he said that this was subject to any operational needs at the time, and the prisoner’s security rating. Difficulties might arise, for example, in the case of prisoners who are on close observations. He expected that prisoners would generally be allowed out of their cells for more than eight minutes a day, but could not say anything about the operational needs at the time of the plaintiff’s detention.
Mr Hedger said that prisoners in the infirmary were generally seen by a nurse on a daily basis, and would also have the opportunity to see a doctor, psychiatrist, or social worker, depending on their needs. He expected that there would be something recorded by way of a daily case note while the prisoner was in the infirmary, but he could not recall the procedures from back in 2009, and so could not comment on the notes (or lack of notes) in relation to the plaintiff.
Mr Burnell – admissions officer
Mr Burnell was a Corrections officer working in the admissions area at the ARC on 23 April 2009.
He described the usual procedure for new detainees arriving at the ARC as involving the following steps: (i) they come out of the bus and are let into the ARC by the bunker supervisor; (ii) they are patted down; (iii) they see a property officer, who enters information about their clothing and possessions into the computer system; (iv) they are issued with prison clothing and shoes, as well as a kit bag containing personal items such as a razor, toothbrush and soap; (v) they are strip searched in the presence of two officers (i.e. they are required to strip down to their underwear for an officer to examine their hands, underarms, feet, mouths and bodies generally, before then removing their underwear, squatting and coughing); (vi) their clothing and possessions are taken from them and they get dressed into their prison clothes; (vii) their induction forms are completed; (viii) they see a nurse; and (ix) they are then processed through to a Unit within the ARC.
Mr Burnell said that by the time he saw the plaintiff on 23 April 2009, the plaintiff would have already been processed by the admissions supervisor, gone through a metal detector, been pat searched and taken to a holding cell pending further processing.
Mr Burnell’s role in the admission process was to prepare a case management folder with the prisoner’s forms. The folder would include the paperwork from the police and the prison stress screening form.
Mr Burnell completed the reception checklist and prison stress screening form that were in evidence. The latter recorded the plaintiff’s answers to a series of questions. In this respect, I note that the plaintiff answered “very much” to questions enquiring whether he had any concerns about losing anyone close to him, and whether he was worried about his health or wellbeing, and his employment. The form also included notations to the effect that the plaintiff had recently received treatment from Glenside; that he had been diagnosed as being “bi-polar”; that he had previously overdosed; that he had previously tried to harm himself; and indeed that he presently had thoughts about doing so. The form included reference to the plaintiff being agitated and confused, having an inability to focus attention, and being distressed.
The answers given to the various questions resulted in a score of 24 for the plaintiff. The form indicated that a person was ‘at risk’ if their score was greater than eight. Mr Burnell explained that ordinarily a prisoner with a score greater than eight would be sent to the infirmary.
The additional notes to the form included reference to the plaintiff having overdosed intentionally on two occasions, being a week earlier and a month earlier. They referred to the plaintiff’s wish to attend prior appointments that had been made at Glenside. They also referred to information from the police paperwork to the effect that the plaintiff was suicidal and at risk of self-harm. The prison stress screening form also included reference to the plaintiff saying that he had fears for his safety in prison, and in particular that he feared being beaten and raped.
The DCS paperwork signed by Mr Burnell noted the plaintiff’s risk score of 24, and provided for him to be taken to the infirmary for ‘yellow sheet’ observations. I understand ‘yellow sheet’ observations to be a reference to the close observations appropriate for a person at risk of self-harm.
Mr Burnell explained that he would have photocopied the prison stress screening form for the nurse. He believed that he told her the plaintiff scored 24 on the stress screening, and advised her that she would need to see him straight away as he might be at risk.
Mr Burnell said that he believed that the plaintiff was then taken to the infirmary and placed on a ‘yellow sheet’ because of his high stress score, and because he was at risk of self-harm. He believed the plaintiff would have been kept under constant surveillance, including through closed-circuit television, and would only have been issued with a mattress, a canvas smock and a canvas blanket. There was a toilet / basin in the cell, but nothing else – this being so that the prisoners cannot harm themselves. In cross-examination, Mr Burnell acknowledged that he did not recall whether in fact the plaintiff was placed in a canvas smock at the point of his admission, or whether this only occurred later in his time at the ARC.
According to Mr Burnell, prisoners were generally permitted to make a phone call to notify family that they are in custody if that is necessary. He said there was a phone in the infirmary that the prisoners could use for this purpose; all it took was a request. However, he added that there might be exceptions to this if the staff in the infirmary considered the prisoner might behave dangerously. There were also sometimes issues with high demand for the phone, leading to phone calls being delayed to the following day. Mr Burnell said that prisoners were generally told about their ability to use the phone during the interview for the prisoner screening process, and during the induction. But he did not have any recollection of what the plaintiff was told in this respect.
While he worked in the admissions area, Mr Burnell said that he did not have any role in considering warrants. His very general recollection was that back in April 2009 there were usually about four staff working in the admissions area in the afternoon/evening, plus a supervisor.
Mr Burnell denied saying to the plaintiff that he may be raped or assaulted while in prison. He also denied ever telling him to “shut the fuck up”. While accepting that the plaintiff said to him the things recorded on the prisoner screening form to which I have referred, Mr Burnell did not recall the plaintiff telling him he was meant to be at Glenside. He said if the plaintiff did say something to this effect to him, it is something he would have raised with his supervisor.
Mr Stichel – admissions officer
Mr Stichel was working as the admissions officer on 23 April 2009. As part of that role, and the usual procedure, he directed new detainees through the metal detector, patted them down and took their photographs. The detainees would then be placed in a holding cell while their property was logged. They would next be issued with prison clothing and placed in another holding cell. The detainees were then strip searched (which he described in similar terms to Mr Burnell). He would then interview the detainee before they were checked by a nurse.
Mr Stichel explained that they always worked in pairs, and that on the evening of 23 April 2009 he was working with Mr Burnell. He said they would have been together at all times. He said that he would have been present when Mr Burnell conducted the prison stress screening interview and completed the paperwork, but that he may well have been off to the side and just observing rather than participating or listening closely.
He noted that the plaintiff had a stress score of 24, and so was held in the infirmary on a ‘yellow sheet’. This meant that he was considered to be at risk of self-harm. Any score over about eight was considered to be ‘at risk’.
Mr Stichel’s understanding was that the plaintiff was kept in an observation cell within the infirmary; that he would have been given a mattress, a canvas blanket and a canvas smock to wear. He would not have had a pillow due to the risk of self-harm. He said that detainees who were at risk of self-harm were given minimal furnishings to try and ensure that they did not use the contents of their cell to harm themselves.
Mr Stichel said that he conducted the plaintiff’s induction interview. According to the paperwork, this did not occur until 26 April 2009. The interviews normally took place the day after admission. However, according to Mr Stichel, it was not uncommon for interviews to occur several days after admission. The purpose of the induction interview was to explain the relevant rules and regulations to the prisoner, and the conduct that was expected of them.
Mr Stichel’s evidence was that when conducting an induction interview, he would explain the rules to the prisoner, as well as the role of the Corrections officers. Detainees were told that if they had any concerns, they should raise them with the Corrections officers. He would also explain the various processes within the prison, including the request forms that they could complete if they wanted something (for example, to see a social worker), and the grievance procedure if they had any complaints.
Mr Stichel’s case note of the induction interview recorded that the plaintiff “though anxious appeared to understand the information given.” It also included reference to Mr Stichel being told (presumably by the plaintiff) that “[a]t the time of the induction [the plaintiff] had not yet been interviewed by the doctor and had some issues which would have been dealt with by medical staff.”
Mr Stichel was not able to recall the plaintiff saying to him that he was in the wrong place of detention, although he added that this was not an uncommon thing for prisoners to say. He denied ever telling him that he may be raped or assaulted while in prison, or telling him to “shut the fuck up”.
Mr Stichel said that in his experience working in the infirmary, it was not usual for someone to be kept in their cell, and not let out into the exercise yard, for a period of three or four days. Indeed, he was not aware of anyone being kept continuously in their cell for this period of time. But he said it would be a judgment call, depending on the particular issues in relation to an individual prisoner. A risk assessment would be made. He could not comment on the circumstances of the plaintiff’s detention, and whether or why he was kept in his cell for three or four days.
Mr Stichel said that the lights in a cell may be left on for 24 hours a day for the purpose of observing a prisoner requiring regular observations.
Mr Stichel said that ordinarily prisoners wore prison-issued clothes rather than their own clothes. But he added that this was not always the case. As for why someone might be placed in a canvas smock a few days after admission, he said this might happen where they were assessed with an increased risk of self-harm. It would be a judgment made in consultation with the nursing staff and other Corrections personnel.
DCS paperwork
I have mentioned the prison stress screening form and other admission documentation.
In addition to these documents, the evidence included the DCS case notes for the plaintiff. They contained five entries during the period of the plaintiff’s imprisonment.
The first entry, dated 23 April 2009, was attributed to Mr Hedger and recorded the fact of the plaintiff’s admission to the ARC, his stress score of 24, and that he had been placed on ‘yellow sheet’ status and admitted to the infirmary for observations. The second entry, dated 24 April 2009, related to the notification of Centrelink that the plaintiff had been imprisoned at the ARC. The third entry was dated 26 April 2009. It was attributed to Mr Stichel and recorded that the induction interview had been completed. The fourth entry was also dated 26 April 2009. It was attributed to a Mr Markham and recorded that the plaintiff “was placed back in canvas today after expressing thoughts of self-harm. Prisoner to remain in obs cell 1.” The final entry was dated 28 April 2009 and recorded that the plaintiff had returned to Court.
The evidence also included the SA Prison Health records in relation to the plaintiff. Those records include a number of formal matters, as well as noting that the plaintiff had been experiencing marital/domestic problems, had been at Glenside earlier on 23 April, had previously overdosed on prescription medication, and was continuing to have thoughts of self-harm. The records noted a recommendation upon admission that the plaintiff be placed on “constant observation”.
The SA Prison Health case notes included a number of entries during the period of the plaintiff’s imprisonment at the ARC.
The first of these was a note at 1900 hours on 23 April 2009. It recorded the plaintiff’s admission to the ARC, his risk score of 24, and his attempted overdoses on 17 April 2009 and in March 2009 due to his marriage breakdown. It referred to his admission to Glenside.
The next entry was timed 0610 hours on 24 April 2009, and stated “settled night”.
Later in the same day there was an entry apparently relating to an attendance by a medical officer. The entry included reference to a phone call with a doctor from Glenside in which that doctor had said the plaintiff had experienced a situational crisis and suicidal behaviour; that his wife had taken out a restraining order; and that he was not bi-polar. The medical officer’s notes of his own observations of the plaintiff included that he had a very depressed affect, was weepy and holding his head in his hands and sobbing “I shouldn’t be here; I should be in Glenside”. The notes included reference to the plaintiff saying that the Magistrate had said he was to return to Glenside, but that he had been brought to the ARC instead. The plaintiff was described as very upset about this situation, very emotionally unstable, and feeling suicidal. The medical officer recommended “continue same – infirmary obs, yellow sheet”. It was also recommended that he be referred to a psychiatrist/psychologist “if time allows”.
There is a further nursing note from the night of 24 April 2009 (2140 hours), which included reference to the plaintiff suffering from a situational crisis, and “perplexed as to why he is in here – feels he was the last case of the Magistrate’s list.”
The nursing note early in the morning of 25 April 2009 recorded “settled night.” Another note later in the day recorded that the “situation appears unchanged.” The note continued “still states he cannot understand why he is here and that the system is wrong. Presents as arrogant then emotional at times.” Later that evening there was a further nursing note stating “settled evening.”
The nursing note early in the morning of 26 April 2009 again recorded “settled night.” Another nursing note later in the day (1100 hours) recorded the plaintiff having suicidal ideation with intent but no definite plan. It also described the plaintiff as maintaining poor eye contact, and being “dismissive, grandiose and not entirely believable.” The nursing note from later that night (2007 hours) recorded that the plaintiff was “on canvas”, but that he had had a settled evening.
The nursing note early in the morning of 27 April 2009 stated “settled night.” Reference was made in a further note later that day to an expectation the plaintiff would be discharged to court the following day, but that he remained a high risk of self-harm. It suggested he remain where he was for now. The plaintiff was noted later in the day as being upset and agitated, and “pacing in the day room.” He requested to see the doctor again. A nursing note from the night of 27 April 2009 (2045 hours) noted that the plaintiff stated he was experiencing weird dreams; that he had not had them before.
The nursing note early in the morning of 28 April 2009 was again “settled night.” The entry from later in the day stated that the plaintiff was angry; that he had been due for court this morning; and that he should see Dr Raeside if he came back from court early enough. There is then a final entry indicating that the plaintiff had been taken to court.
Findings
I have earlier mentioned my general acceptance of the evidence of the defendant’s DCS witnesses, as summarised above. At the same time, I noted the limitations upon that evidence, based as it was upon documentary records and usual practices, rather than any actual memory of the witnesses’ dealings with the plaintiff. I have also mentioned my reservations about the plaintiff’s evidence, or at least the reliability of some aspects of the detail of that evidence.
I accept the plaintiff’s evidence, as summarised above, in relation to the hearing in the Magistrates Court on 23 April 2009, and his transportation to the ARC. His evidence in this respect is consistent with the documentary evidence to which I have referred, and indeed does not take the matter much further than the documentary evidence.
Turning to the plaintiff’s evidence as to his admission to, and imprisonment within, the ARC, I accept the general effect of his evidence. It is again consistent with the documentary evidence. But I do not accept all of the detail of his evidence in relation to these matters. It is perhaps not surprising that some of the detail of his evidence in relation to these matters is unreliable given the stress and distress that he was experiencing, and the time that has passed. In the circumstances, it is appropriate that I set out the findings that I am prepared to make in relation to these matters.
I accept that upon arrival at the ARC, and when it became clear to him that he was going to be left there rather than Glenside, the plaintiff became stressed, upset and indeed scared. I also accept that he made it clear to both the Group 4 officers who had taken him there, and the DCS officers present upon his arrival and admission, that he believed that he was meant to be taken to Glenside and not to the ARC; and that this is what the Magistrate had said would happen to him.
In these circumstances, I infer that the discrepancy on the face of the warrant (that is, the reference to Glenside as the correctional institution to which the plaintiff was being remanded) came to the attention of one or more of the DCS officers present. A decision was nevertheless made by those DCS officers to admit the plaintiff to the ARC. While the evidence does not permit me to make any finding as to what discussion occurred, or what advice was taken, or indeed who made the decision, it is likely that Mr Hedger (as the admissions supervisor) and Ms Nguyen (as the warrants clerk) were involved at least to some extent in that decision.
I accept that the plaintiff considered that his concerns had not been properly considered, and that his treatment by the DCS and Group 4 officers was harsh and perfunctory. However, I am not prepared to make a finding that any of those officers made the particular remarks attributed to an (unidentified) DCS officer by the plaintiff. Given my general concerns about his evidence, the time that has passed, and the denials of the DCS officers who gave evidence, I am not satisfied that it is appropriate to make findings at this level of detail.
I find that the plaintiff was then admitted to the ARC in accordance with the usual procedure. This included being strip searched in the manner described in the evidence, and a prison stress screening interview. As a result of the information elicited during that interview, the plaintiff was assessed as having a very high stress score (24), and as being at risk of self-harm. He was accordingly referred to the infirmary within the ARC for the purpose of being assessed by a nurse, and being closely monitored.
I accept that the plaintiff made plain during this admission process that he was distressed and frightened, and that he continued to state that he did not think he was meant to be at the ARC. I accept (based upon the information on the stress screening form) that the plaintiff said that he was fearful of being beaten or raped within the prison, and that this was a genuine concern on his part. But I do not accept that any DCS officer said anything to him to indicate that there was a likelihood or risk of this occurring. Again, this was a matter denied by the DCS officers who gave evidence, and a matter of detail upon which I am not satisfied it is appropriate to rely.
I accept that the plaintiff was then assessed by the prison nurse (leading to the nursing note recorded at 1900 hours on 23 April 2009), and placed in a cell within the infirmary. I am satisfied that it was appropriate that the plaintiff be kept within the infirmary given the state he was in, and indeed I do not understand this to be challenged by the plaintiff.
I accept that the plaintiff then spent the vast bulk of the next five days through to his release on 28 April 2009 in that same cell, and that the very basic nature of the cell was as the plaintiff (and DCS witnesses) described in the evidence. I also accept that for at least some of this time the plaintiff was required to wear the canvas smock described in the evidence. The very basic nature of the cell, and the canvas smock, while of course adding to the discomfort and trauma of the plaintiff’s experience, were nevertheless appropriate given the assessment of the plaintiff’s risk of self-harm.
It would seem from the documents that the induction of the plaintiff did not occur until 26 April 2009. While this delay in the induction is unfortunate, I do not think anything turns on it. It appears from the evidence that there are sometimes good reasons for delay of this nature. While the delay may have resulted in the plaintiff being unclear about his ability to use the telephone, or to lodge a grievance or complaint, I do not think these things are of much significance in the scheme of things.
It appears from the record of the induction interview on 26 April 2009 that the plaintiff complained that he had not been reviewed by a doctor or medical officer. However, based upon the prison health service notes, and in particular the quite detailed notes made by a medical officer, I am satisfied that he was reviewed by a medical officer on 24 April 2009. I am also satisfied from the nursing notes that he continued to be reviewed by the prison nurse during his stay.
I accept that the plaintiff spent the vast bulk of the five days he was in the ARC confined to his cell within the infirmary. But given my concerns about the plaintiff’s evidence, I am not prepared to find that he spent the entirety of at least the first three days (other than eight minutes) in the cell. While the plaintiff may have come to believe that that is what occurred, I consider it likely that this is an exaggeration of the position. In this respect, I note that the plaintiff denied being permitted to leave his cell to use the television room (or day room). However, as set out earlier, the prison health service records include a nursing note that made reference to him pacing around in the day room.
I accept that the plaintiff spent most of the five days he was at the ARC in his cell with nothing to do. While the prison health notes suggest he was clam and “settled” throughout this period, I accept that the plaintiff found the experience traumatic. I accept that he continued to complain that he should not have been at the ARC, but to no avail. I accept that he was distressed and frightened throughout his period of imprisonment.
The plaintiff’s release on bail
The Magistrate Court record establishes that the plaintiff attended a hearing before Magistrate Tracey on 28 April 2009. The plaintiff was represented by a duty solicitor. He was granted bail on various conditions, including that he not approach or communicate with his wife other than by telephone.
The evidence before me includes a bail report dated 27 April 2009, which I infer was placed before the Magistrate. The report was prepared by an officer from the ‘DCS Courts Unit’, and consisted mainly of a very high level summary of the plaintiff’s condition and circumstances, apparently taken from documents to which I have referred.
The plaintiff said in his evidence that he has only a very general recollection of his release from the ARC. He remembers being granted bail, and (despite the terms of his bail) being collected by his wife. He also remembers being so angry during the drive home that his wife eventually got out of the car and walked home.
The plaintiff’s causes of action
As mentioned at the outset of these reasons, the plaintiff seeks damages from the defendant for false imprisonment and misfeasance in public office.
At times the plaintiff made reference to, or asserted, negligence by those involved in his detention at the ARC. However, the plaintiff did not ultimately pursue any claim in negligence.[1] He confined his claim to allegations of false imprisonment and misfeasance in public office.
[1] Or at least accepted that it did not rise any higher than his claim of false imprisonment.
The plaintiff accepts that both of his causes of action are predicated upon the invalidity or unlawfulness of his detention at the ARC, and hence that both would fail if that detention was valid and lawful. It is thus appropriate to commence by setting out the legislative provisions relevant to the parties’ contentions in relation to this issue.
Relevant legislative provisions
The parties relied upon various provisions of the Correctional Services Act 1982 (SA) and Summary Procedure Act 1921 (SA). It is appropriate to set out the relevant sections of those Acts (as they existed in April 2009), before considering the competing constructions the parties contended for.
Correctional Services Act
The following definitions appear in s 4 of the Correctional Services Act:
correctional institution means a prison or police prison;
police prison means premises declared to be a police prison under Part 3;
prison means premises declared to be a prison under Part 3;
prisoner means a person committed to a correctional institution pursuant to an order of a court or a warrant of commitment;
remand prisoner means a person remanded in custody awaiting trial or sentence;
Part 4 of this Act is headed ‘Imprisonment’. In Division 1 (‘Admission and assignment of prisoners’) of that Part, ss 21A and 22 provide as follows:
21A—Documentation to be presented upon admission of a prisoner to a correctional institution
A person who is to be detained in a correctional institution pursuant to an order of a court or a warrant of commitment cannot be admitted to a correctional institution for detention except on presentation of—
(a) a written statement that contains particulars of the order of the court; or
(b) the warrant of commitment, which must contain particulars of the order of the court on which it is founded.
22—Assignment of prisoners to particular correctional institutions
(1) A person who is remanded in custody awaiting trial or sentence will be detained in such correctional institution as the Chief Executive Officer may determine.
(2) Subject to this section, a person who is sentenced to imprisonment or committed to prison will be imprisoned in such correctional institution as the Chief Executive Officer may determine.
(3) Subject to this Act, a person who is sentenced to a term of imprisonment exceeding 15 days must not be imprisoned in a police prison.
(4) A person may be detained in a particular correctional institution pursuant to this section notwithstanding that the warrant of commitment by virtue of which the person is detained in custody directs that he or she be detained in some other correctional institution.
Summary Procedure Act
Under s 58 of the Summary Procedure Act, the Court may issue a warrant to have the defendant arrested and brought before the Court. Section 59 then provides for a defendant who has been arrested pursuant to any such warrant to be brought before the Court, and then remanded in custody or bail. It provides:
59—Defendant to be brought before Court
(1)A defendant who has been arrested under a warrant must be brought before the Court.
(2)If it is not practicable to deal immediately with the matter for which the defendant has been brought before the Court, the Court may remand the defendant in custody, or on bail, to appear before the Court at a time and place fixed in the order for remand.
And s 60 provides for the Court, when remanding a defendant, to commit him or her to various forms of custody. It provides:
60—Forms of custody etc
(1)When a defendant is apprehended under a warrant or is remanded upon any adjournment of the hearing, the Court may commit the defendant—
(a) by warrant to the nearest prison or to some place of security; or
(b) verbally to the custody of the constable or other person who has apprehended him; or
(c) verbally to such other safe custody as the Court deems fit,
and the Court must order the defendant to be brought before the Court at some stated time and place, of which order the complainant shall have due notice.
(2)In any such case, the Court may, instead of committing the defendant to prison or some other form of custody, release him on bail.
Defects in warrants are addressed in s 182, which provides:
182—Orders, warrants etc
(1)An order, summons, warrant or other process of the Court is not invalid by reason of any defect of substance or form.
(2) A court may—
(a) amend an order, summons, warrant or other process of the Court in order to correct a defect of substance or form; or
(b) if the person against whom an order, summons, warrant or other process has been made or issued has been, or may be, substantially prejudiced by the defect—revoke the order, summons, warrant or other process.
False imprisonment
There is no dispute that the plaintiff was imprisoned at the ARC for a period of five days from 23 to 28 April 2009. That being so, the only issue that arises in relation to the plaintiff’s allegation of false imprisonment is whether his imprisonment was lawful.[2]
[2] White v State of South Australia (2010) 106 SASR 521 at [415]-[422].
The plaintiff’s contention is that the Magistrate intended to, and did, order that he be detained at the Glenside campus of the RAH; that this was not a ‘prison’ or ‘correctional institution’ under the Correctional Services Act; and that there was thus no lawful basis, under the Correctional Services Act or Summary Procedure Act, for him to have been detained at the ARC.
The defendant accepts that neither the RAH, nor the Glenside campus of the RAH, was a prison or correctional institution for the purposes of the Correctional Services Act. It was never declared to be so under Part 3 of that Act, and did not ever function as a prison.
There was only very limited evidence adduced at trial as to the nature of the Glenside campus of the RAH. The evidence established, and it is in any event common knowledge, that Glenside was an inpatient facility for the provision of psychiatric or other mental health care. While there were areas within Glenside which were referred to as ‘secure’, and which involved placing limitations upon the movements of patients, Glenside was part of a hospital, and was not equipped to, and did not, function as a prison even in the ordinary sense of the word (as opposed to its defined meaning under the Correctional Services Act).
As such, the defendant accepts that the Magistrate did not have the power to detain the plaintiff at Glenside. The defendant accepts that the only power to detain a person at this facility was the power that existed under s 12 of the Mental Health Act 1993 (SA). As it happens, this power had been exercised on 18 April 2009 when Dr O’Donnell made an order detaining the plaintiff. That order was extended, but then ultimately revoked at 1.55pm on 23 April 2009. There was, however, no basis for the Magistrate to make an order under s 12 of the Mental Health Act, and the Magistrate did not purport to do so. Under s 12 of the Mental Health Act, only a medical practitioner had power to order the detention of a person to an approved treatment centre (such as Glenside).
In seeking to sustain the lawfulness of the plaintiff’s detention, the defendant relied upon the following propositions:
(i)that the Magistrate was empowered to remand the plaintiff in custody under s 59 of the Summary Procedure Act;
(ii)that the Magistrate was also empowered under s 60 of the Summary Procedure Act to commit the plaintiff by warrant to a particular prison (or “place of security”);
(iii)that, properly understood, the warrant issued by the Magistrate was an exercise of these powers;
(iv)that while the Glenside campus of the RAH was not a prison or place of security, this was a mere defect of substance or form in the warrant that, under s 182(1) of the Summary Procedure Act, did not render it invalid; and
(v)that having been validly remanded in custody, ss 22(1) and (4) of the Correctional Services Act empowered the plaintiff’s detention at the ARC despite the warrant of remand having specified a different location.
While the focus of the dispute between the parties was proposition (iii), it is appropriate to address each of the five propositions individually.
As to propositions (i) and (ii) of the defendant’s case, I am satisfied that the Magistrate did have power to remand the plaintiff in custody, and commit him by warrant to a prison (or ‘place of security’) under ss 59 and 60 of the Summary Procedure Act. The plaintiff was brought before the Court pursuant to a warrant for his arrest following his failure to attend Court on 14 April 2009. Under s 59(2) of the Summary Procedure Act the Magistrate was then empowered to remand him in custody, or on bail, to appear before the Court at some future time, and under s 60 to commit him by warrant to a particular prison or ‘place of security’.
While apparently accepting the matters in the preceding paragraph, when it came to the Magistrate determining the place of custody, the plaintiff contended that the Magistrate was entitled to order that the plaintiff be detained at Glenside of the RAH, despite this not being a prison or correctional institution under the Correctional Services Act. The basis for this contention was the reference in s 60(1)(a) of the Summary Procedure Act to the power to commit a person by warrant to “the nearest prison or to some place of security”. The plaintiff contended that “place of security” should be construed broadly, and as extending beyond a prison under the Correctional Services Act, and indeed beyond a prison in the ordinary sense of the word. He contended that it should be construed as extending to a hospital, or at least a ‘secure’ area or facility within a hospital, and hence as extending to the Glenside campus of the RAH.
I do not accept the plaintiff’s contention. I accept that the notion of a “place of security” under the Summary Procedure Act may not coincide precisely with the definitions of prison or correctional institution under the Correctional Services Act. I allow for the possibility that there may be one or more “place of security” that has not been declared to be a prison or police prison under Part 3 of the Correctional Services Act. I allow for that possibility both conceptually, and as a matter of fact given that I do not have any information before me as to what facilities exist and which of them have been declared prisons. But it does not follow that the notion of a “place of security” would extend to a hospital, or even a secure area within a hospital, just because it has some measures in place that operate to limit the movement of inpatients. Even if it were conceptually possible for a hospital to qualify as a “place of security”, I am not satisfied on the evidence before me that Glenside had the necessary attributes.
It follows that while the Magistrate had power under s 59 of the Correctional Services Act to detain the plaintiff in custody, and under s 60 to nominate a prison or place of security for that custody, the latter did not include the power to nominate Glenside as the place for that custody.
Turning to proposition (iii), the issue is whether, properly understood, the warrant issued by the Magistrate involved an exercise of his powers under ss 59 and 60 of the Summary Procedure Act.
The plaintiff contends that in construing the warrant, the focus should be on the Magistrate’s references during the hearing, and in the warrant, to the Glenside campus of the RAH. He contends that the Magistrate’s intention was to send the plaintiff to that particular location, and that because this was not a prison or correctional institution, there was simply no order for the imprisonment of the plaintiff at a prison or correctional institution; and hence simply no scope for the operation of s 182 of the Summary Procedure Act or ss 22(1) and (4) of the Correctional Services Act. While the plaintiff acknowledges the references in the panels of the warrant which I have extracted above to ‘Correctional Institution’, he contends that these are, in effect, subordinate to the reference to the Glenside campus of the RAH in the fourth panel.
While I accept that the Magistrate likely had a subjective intention that the plaintiff be detained at Glenside, I do not think this is determinative of the proper construction of the warrant issued by the Magistrate. In my view, consistently with the defendant’s submissions, it is appropriate to have regard to a broader objective intention that emerges from both the terms of the warrant and the context in which it was issued.
In construing a court order or warrant, the task is one of ascertaining the objective intention conveyed by the words used. It is not a matter that turns in any way upon the subjective intention or understanding of either the judicial officer who made the order, let alone the parties.[3] As such, and consistently with the approach taken in construing any other document or words, resort may be had to the context in which the order was made. This context may include not only the nature of the proceedings and issues in dispute, but also the legislative framework within which the order was made.[4]
[3] Radmanovich v Nedeljkovic [2002] NSWSC 212 at [7]; Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655.
[4] Gazal Apparel Pty Ltd v Davies [2007] SASC 91 at [38]; Tarrant J, ‘Construing Undertakings and Court Orders’ (2008) 82 ALJ 82.
The context in which the warrant of remand was issued was the hearing on 23 April 2009. The plaintiff appeared at that hearing ex custody, pursuant to the warrant for his apprehension that had been issued when he failed, in breach of his bail, to attend the hearing on 14 April 2009. The immediate issue for the Magistrate at that hearing was whether to remand the plaintiff in custody or on bail. It is apparent that the Magistrate determined that the plaintiff should be remanded in custody, with consideration of whether bail might be appropriately deferred to a subsequent hearing after obtaining a report as to the plaintiff’s suitability for bail.
Thus, at this very general level, the Magistrate’s intention was to remand the plaintiff in custody, as opposed to bail, under s 59 of the Summary Procedure Act.
Having reached this conclusion, namely that the Magistrate remanded the plaintiff in custody under s 59 of the Summary Procedure Act, it seems to me that s 22(1) of the Correctional Services Act then authorised the detention of the plaintiff in any correctional institution (including the ARC). This would be so regardless of whether the Magistrate also intended to identify a particular location for the plaintiff’s custody under s 60 of the Summary Procedure Act and hence also without having to have recourse to s 182 of the Summary Procedure Act. All that was required to enliven the power to detain the plaintiff at the ARC under s 22(1) was an order that he be remanded in custody.
The plaintiff’s evidence was that he has experienced ongoing difficulties with his sleep and concentration; and that he has also experienced feelings of anxiety and panic, which have at times appeared without any warning.
The plaintiff said that he has also experienced recurring dreams related to his imprisonment at the ARC. He said that he started experiencing these dreams back in 2009. They would initially occur every few months, perhaps every four months or so, although sometimes more frequently than that. After a while he began to record the date and content of his dreams. The dreams varied, but generally included him being poorly treated in a prison, including to the point of being sexually and physically assaulted. When he experienced these dreams he was sometimes moody or withdrawn for a day or so. He accepted that in more recent times the frequency of his dreams appeared to be slowing down. While he had experienced about seven in the first half of 2019, he had not experienced any dreams for a few months leading up to the trial.
In addition to feeling down after experiencing dreams, the plaintiff also described generally feeling less motivated, and more solitary, in his life. He at times became quiet and withdrawn. But he said that he nevertheless continued to force himself to socialise so that he did not spend too much timing moping around or getting upset. He said that he had continued to travel, and indeed to organise some group holidays.
The plaintiff also said he continued to be affected in various other ways. These included not watching crime shows, being a bit hesitant when seeing police, and steering clear of old buildings that might give him a reminder of the old buildings that he associated with prisons. However, the plaintiff said that he no longer took any medication, and did not think he needed any help from a psychiatrist.
The plaintiff said he had not told many people about his experience. He told his wife, although even in her case he did not tell her all the details (such as that he was in solitary confinement and forced to wear a canvas sack) until a couple of years prior to the trial. He told his parents, and he also told a friend. At times in his evidence the plaintiff suggested that he had experienced some embarrassment about having been imprisoned, and that this had affected his behaviour. However, on other occasions in his evidence the plaintiff did not seem particularly concerned from a reputational point of view, saying that he was not embarrassed or ashamed, and did not think other people would be prejudiced against him.
I accept the general effect of the plaintiff’s evidence as to the impact of his period of imprisonment upon him, as summarised above. That said, in assessing damages I have also had regard to the evidence of Dr Begg and Dr Clarke, summarised later, to the effect that at least some proportion of the plaintiff’s ongoing difficulties are a manifestation or product of his pre-existing mental health difficulties rather than his period of imprisonment.
While the plaintiff has not undertaken any significant paid work since his imprisonment in April 2009, I do not understand him to have pursued a claim for economic loss. Nor did he adduce any evidence of a financial nature that would have provided me with a proper basis to embark upon a meaningful assessment of any economic loss that he might have suffered.
That said, the plaintiff did give some evidence that in places appeared to be intended to attribute his lack of paid work since 2009 to his imprisonment at the ARC. However, for the reasons I shall explain, I found the plaintiff’s evidence on this topic to be inconsistent. His evidence as to why he did not work after 2009 seemed to differ according to the context in which he was giving it, and was in my view an illustration of the difficulties that led to my reservations about some aspects of his evidence more generally.
I have earlier mentioned the plaintiff’s evidence in relation to the nursing agency business that he operated from when he was about 41 years of age. When initially describing this business, the plaintiff’s focus was upon his skills as the owner and manager of that business. He said that this business continued until about 2010 or 2011, and that the reason it came to an end was because there was a relatively sudden influx of foreign nurses over about a six month period. This influx of foreign nurses meant that there was no longer a shortage of nurses in South Australia, and hence his work dried up. Having given this reason for the cessation of his business, the plaintiff said that by that point in time, he and his wife were in a sufficiently strong financial position that he was able to choose to do some volunteer work rather than seek alternative paid work. His volunteer work included spending about three days a week over a period of a few months helping a quadriplegic man who lived down the road, and a few years coordinating the sourcing of school supplies for a number of schools in Vanuatu. The plaintiff’s wife was working about three and a half days a week at that point in time.
However, at other times, the plaintiff’s evidence on this topic differed somewhat, or at least took on a different focus or emphasis. In particular, he later said that after his period in the ARC in April 2009, he attempted to resume running his agency business, but that there were very few bookings. He also said that he was having trouble concentrating and focusing on the business, to the point where he would either let work go, or arrange work and then not get round to sending out the bills. He said that he went from being a great manager to a pathetic manager, and just let his business die slowly.
I accept that the plaintiff has had ongoing difficulties with his concentration and motivation that have likely contributed to the fact that he has not undertaken any paid work since 2009. However, as both Dr Begg and Dr Clarke have suggested (see below), it is not at all clear that the plaintiff’s lack of work can be linked to his period of imprisonment.
For these various reasons, I have not included any component in the plaintiff’s damages for economic loss.
Psychiatric evidence
Both Dr Begg and Dr Clarke prepared reports, and gave evidence, in relation to the ongoing impact of the plaintiff’s period of imprisonment upon him. It is convenient to summarise the opinions of each, before identifying and addressing the areas of agreement and disagreement in their evidence, and then setting out my own conclusions.
Dr Begg’s report and evidence were based upon a consultation and examination of the plaintiff in July 2018. In his report, Dr Begg recounted a fairly detailed history given to him by the plaintiff. That history was broadly consistent with the plaintiff’s evidence, as summarised by me earlier in these reasons.
Dr Begg described the plaintiff as having a mixture of obsessional and narcissistic personality traits, as well as some signs of depression. In his opinion, the plaintiff is also suffering from PTSD as a result of his incarceration at the ARC. He attributed about half of the plaintiff’s ongoing disability, or mental harm, to the PTSD. He described the PTSD as permanent and stable.
Dr Begg’s views are set out in more detail in the following summary of his conclusions taken from his report:
In my opinion [the plaintiff’s] personality has a mixture of obsessional and narcissistic traits. The unusual feature in the history is the long-term nature of a very mild mood elevation, characterised by fast thinking, energy, and high motivation. Not surprisingly, a number of psychiatrists have had concerns that there was an undiagnosed bipolar illness. These symptoms persisted up until the time when there was the crisis admission to the Royal Adelaide Hospital in 2011, thereafter [the plaintiff] has described a loss of motivation, difficulty with concentration, and a capacity to slow down his thinking and not be as impulsive. His presentation now is dominated by depressive symptoms, although he does not describe a depressed mood of sadness, rather he describes a lack of mood (which can be a feature of severe depression), but in this case I think it is more likely a feature of his obsessional personality traits. The diagnosis is Major Depressive Disorder. Prior to 2011 the more typical signs of depression were masked by his personality, which tended to hyperactivity.
When under stress there has been a deterioration in the personality traits, with extreme distress, including suicide attempts. As there has been a sustained recovery from such extreme distress, I did not consider that the personality type should be diagnosed as a disorder, but rather I consider he has traits of obsessional personality type.
He described a very frightening event when he was incarcerated in the Remand Centre. The memories of this event have intruded into his mind, both during the day and also at night through dreams. He is distressed by these re-experiencing memories. He actively avoids reminders of the event. He described a persistent reduction in motivation consistent with a mild depressive disorder.
The diagnosis is Post-Traumatic Stress Disorder. This arises from his period of incarceration.
I do not believe that all of his depressive symptomatology at the present time can be attributed to the Post-Traumatic Stress Disorder.
There is no clear scientific methodology to differentiate the causation of his depressive symptoms between the two disorders, in my view half of his disability can be attributed to the Post-Traumatic Stress Disorder, with the remainder to the Major Depressive Disorder.
The mental harm as a result of incarceration occurred due to the interplay of factors within [the plaintiff] i.e. his distressed mental state at the time of incarceration combining with the intrinsic dangers of incarceration. He was unsure how long he would be kept incarcerated. He was frightened of being assaulted. He felt quite powerless.
The prior diagnosis of Depression does not significantly increase the risk of Post-Traumatic Stress Disorder.
If the Post Traumatic Stress Disorder was going to resolve it would have done so within the first two years. There is a persistence of symptoms, although the intrusive symptoms are no longer as frequent. There are still problems with concentration, motivation, avoidance of reminders and fear when reminded of the trauma. These symptoms will persist.
The condition is permanent. The condition is stable.
Finally, Dr Begg did not think that the plaintiff’s mental health difficulties were sufficient to prevent him working. He said:
[The plaintiff] has not worked for many years, which I found surprising. Whilst he subjectively describes difficulty with his concentration, his capacity on mental state examination was adequate. His level of depression is not so severe as to impair participation in employment. He would be able to advocate adequately for himself in the open labour market.
As mentioned, the plaintiff has not pursued a claim for economic loss. However, this opinion is nevertheless relevant in assessing the significance of the plaintiff’s ongoing mental health difficulties.
Turning to Dr Clarke, his report and evidence were based upon two attendances upon the plaintiff, in September and October 2018.
The history set out in Dr Clarke’s report was also in terms broadly consistent with the plaintiff’s evidence. While the plaintiff challenged some relatively minor aspects of that history, I have not found it necessary to resolve the asserted discrepancies. It was not established that they materially affected Dr Clarke’s opinions, and I do not think they were inherently likely to have done so.
In summary, Dr Clarke considered that the plaintiff had been suffering from a pre-existing personality disorder with narcissistic, borderline and obsessional aspects to it. While accepting that the plaintiff’s period of imprisonment at the ARC in late April 2009 was having an ongoing impact, Dr Clarke stopped short of classifying this as PTSD. In his view, the more appropriate diagnosis was Adjustment Disorder with Anxiety. In Dr Clarke’s view, the plaintiff’s Adjustment Disorder as a result of his imprisonment was only one aspect of the plaintiff’s current psychiatric presentation. His pre-existing personality disorder had also continued to contribute to his “prolonged emotional reaction” to his imprisonment. But Dr Clarke stopped short of any attempt to apportion causative responsibility for the plaintiff’s ongoing difficulties between his pre-existing condition and his Adjustment Disorder as a result of the plaintiff’s imprisonment. In Dr Clarke’s view, the plaintiff will continue to experience similar psychiatric symptoms for the foreseeable future.
Dr Clarke’s views are set out in more detail in the following passage from his report:
In my opinion, [the plaintiff’s] history and presentation indicates that he has had a prolonged emotional reaction to the events of 2009 when he spent a period in the Adelaide Remand Centre. He described a preoccupation with what he considers to have been very unjust treatment of him and he is distressed by memories of feeling very frightened and helpless. He is also sensitive to reminders of that time. He feels ashamed of having been in custody and very fearful of this fact being exposed. This has contributed to him avoiding employment in case his forensic history is exposed. [The plaintiff] did not describe what I consider to be flashbacks nor did he describe currently experiencing nightmares directly connected arising from his experiences in 2009. While he described some post-traumatic symptoms arising from the subject incident, his overall history and presentation, in my opinion, is not consistent with him suffering from a Post-traumatic Stress Disorder (PTSD) in relation to that incident. Accepting the limitations of any system of psychiatric diagnostic classification, I consider the most appropriate diagnosis is that of an Adjustment Disorder with Anxiety. The DSM-5 criteria for an adjustment disorder indicates that the diagnosis is not applicable without qualification if the reaction to a particular stressor continues beyond six months after the particular event or events causing the reaction. It is more than nine years since [the plaintiff] had his period in ARC and he indicated that it continues to affect him. I consider that this is in part due to his feelings of shame for having a history being in custody and a belief that there is a prejudice against him for having such a history.
I consider that [the plaintiff’s] adjustment disorder has occurred on the background of his longer term psychiatric problems. He has a history of significant mood instability and episodes of self-harm in the period up to the subject incident. After some initial uncertainty regarding the appropriate diagnosis, I note from the material provided that it was thought the most likely explanation for [the plaintiff’s] repeated presentations was that he was suffering a personality disorder. This is indicated by [the plaintiff’s] own admission that his dramatic and disturbed behaviour had an element of manipulation in response to rejection and conflict with his family.
[The plaintiff] indicated that he has gained some insight into the past pattern of his behaviour and he reported showing less erratic behaviour over recent years. He has not required further hospital admission since the subject incident. He mentioned that his wife has told him that their marital relationship has been a great deal better over the past eight or nine years compared to previously. I consider it likely therefore that [the plaintiff’s] overall condition has improved rather than deteriorated compared to prior to the subject incident and his adjustment disorder in relation to it is not severe nor a predominant aspect of his presentation.
I do not consider that [the plaintiff’s] pre-existing problems have simply resolved over recent years as it is likely that they have an influence on his approach to his life now, including his reaction to the subject incident affecting his ability to adjust to his experience of the subject incident. In my opinion, narcissistic and obsessive aspects of his personality have contributed to him remaining preoccupied by the subject incident as well as him feeling the need to protect himself from any possible negative view or rejection as a result of his forensic history. I consider that this has contributed to him being withdrawn and avoidant of employment. I also consider that he has been better able to manage his day to day behaviour because he has led a controlled and somewhat avoidant lifestyle whereas he would be more challenged if he did have a greater level of interaction or if he attempted employment.
Dr Clarke also expressed reservations as to whether the plaintiff’s lack of any meaningful paid work or employment since his imprisonment could be attributed to his Adjustment Disorder. He said that the plaintiff’s capacity to work was unclear; that while the plaintiff had concerns about his focus and concentration, he nevertheless reported functioning reasonably well on a day to day basis at home. In Dr Clarke’s view, the plaintiff had at least some basic work capacity, with the issue being more one of motivation. He suggested that the plaintiff’s avoidance of employment was likely related to his longer term issues.
I was impressed by both Dr Begg and Dr Clarke. Both are highly qualified psychiatrists, with significant experience. While the plaintiff mounted a challenge to Dr Clarke’s independence, there was nothing in this point and I reject it. In the case of both Dr Begg and Dr Clarke, their opinions were well reasoned. They each gave evidence in a thoughtful and considered manner, making concessions where appropriate.
At one level there was a relatively clear difference between the opinions expressed by the two experts. Dr Begg did not think that the plaintiff had any pre-existing psychiatric disorder (preferring to describe him as merely having narcissistic and obsessive personality traits), but concluded that he was now suffering from PTSD as a result of his imprisonment. Dr Clarke, on the other hand, thought that the plaintiff had been suffering from a pre-existing personality disorder (with narcissistic, borderline and obsessive aspects), but was ‘only’ suffering from an Adjustment Disorder, rather than PTSD, as a result of his imprisonment.
Based on this summary of their respective opinions, it can be said that Dr Begg considered the impact of the plaintiff’s imprisonment on him to be more severe than Dr Clarke considered to be the case; and that in apportioning the plaintiff’s ongoing difficulties between the impact of his imprisonment and his pre-existing condition, Dr Begg would tend to apportion a greater proportion to the former than Dr Clarke.
However, as Dr Begg observed in his evidence, the experts were closer in their views than may first appear from a focus upon the labels used by them in their conclusions. Significantly, both accepted that the plaintiff suffered a psychiatric disorder, within the meaning of DSM-5, as a result of his imprisonment at the ARC in late April 2009. Both also accepted that the plaintiff continues to suffer from that disorder, and hence to suffer a level of distress and impairment going beyond the ordinary level of emotional response that one might expect from a traumatic event. Both also accept that the plaintiff’s pre-existing condition has contributed to his current level of distress and impairment, and that it is not possible to be at all precise in apportioning causal responsibility between that pre-existing condition and the disorder resulting from the plaintiff’s imprisonment.
While accepting that the labels used by the two experts do connote different conditions, with PTSD being a more severe disorder than an Adjustment Disorder, both experts acknowledged the degree of clinical judgment, if not discretion, inherent in applying these labels. While both PTSD and Adjustment Disorder are the subject of various diagnostic criteria in DSM-5, which the experts both purported to adhere to, those criteria nevertheless leave room for clinical judgment and discretion. This is so at two levels; both in interpreting the criteria, and in forming a view as to the nature and extent of the trauma and symptoms experienced by the patient.
So far as the criteria are concerned, Dr Begg said that he suspected he took a broader view of PTSD than Dr Clarke; and Dr Clarke said that in his view other psychiatrists tended to over-diagnose PTSD.
So far as the patient’s trauma and symptoms are concerned, it appeared to me that the experts took slightly differing views as to the plaintiff’s trauma event and symptoms, and that this affected their application of the diagnostic criteria in DSM-5.
During the course of the cross-examination of the two experts, it became apparent that Dr Begg attached a greater significance to the plaintiff’s reference to a fear that he would be beaten or raped while in prison in concluding that the plaintiff had been subjected to a traumatic event of the nature required for a diagnosis of PTSD (relevantly here, threatened serious injury or sexual violence). While both accepted that the threat was one perceived by the plaintiff, Dr Clarke considered that the notion of a traumatic event for the purposes of PTSD tended to connote something more acute or significant than what the plaintiff reported experiencing.
During cross-examination, it also became apparent that Dr Begg had attached a greater significance to the plaintiff’s dreams in concluding that the plaintiff had been experiencing intrusion symptoms of the type required for a diagnosis of PTSD. While acknowledging that the diagnostic criteria for PTSD made express reference to dreams, Dr Clarke drew a distinction between dreams of the type he understood had been experienced by the plaintiff, and flashbacks that involved the re-living of the traumatic event. While Dr Clarke appeared not to have appreciated that the plaintiff was continuing to experience the dreams (albeit not as frequently), he nevertheless did not think they were of a type that would satisfy the diagnostic criteria. In his view, it was significant that some of the plaintiff’s continued rumination over his imprisonment related to consequential or related matters, rather than the trauma of the event itself.
Dr Begg and Dr Clarke also differed slightly in their approach to the level of impaired functioning inherent in a diagnosis of PTSD. While Dr Clarke acknowledged that a person might still be able to function in some aspects of their life while nevertheless being impaired to the degree contemplated by the diagnostic criteria of PTSD, he did not think the plaintiff’s history suggested a sufficient level of impairment.
In my view, some minor criticisms could be made of the approaches of both experts. In the case of Dr Begg, I think there is some force in the defendant’s submissions (as demonstrated through cross-examination), that he tended to assume symptoms and impairment on the part of the plaintiff that were a bit more significant than was established in the plaintiff’s evidence. On the other hand, in the case of Dr Clarke, it might be said that he tended to take a more limited view of PTSD than the wording of DSM-5 requires, and did not adequately reflect the significance of the references in the diagnostic criteria to Adjustment Disorder being a condition which was generally not expected to last longer than six months after exposure to the traumatic event.
In the end, I do not think it is necessary for me to choose or prefer the evidence of one over the other, or to otherwise reach a concluded view as to the correct label to be applied to the plaintiff’s psychiatric condition. The quantum of damages to be awarded does not turn on the use of a particular label. It turns upon the nature and extent of the plaintiff’s impairment as a result of that condition. As to this matter, I consider that the two experts’ views are relatively consistent. Having regard to the evidence of both, I am satisfied that as a result of the plaintiff’s period of imprisonment at the ARC in late April 2009, he suffered mental harm in the form of a recognised psychiatric condition. Regardless of whether that condition is better characterised as PTSD or an Adjustment Disorder, it is a condition that has continued to impact the plaintiff to a material extent, and will continue to do so.
Conclusion as to damages
I have had regard to all of the matters mentioned above. Ultimately, however, the appropriate award of damages is largely a matter of impression. It is not susceptible of any detailed analysis, let alone calculation. On the assumption that the defendant either falsely imprisoned the plaintiff, or is liable for misfeasance in public office, it is significant that the imprisonment of the plaintiff was not fleeting. It continued for five days, and given the nature and circumstances of that imprisonment was undoubtedly a very traumatic experience for the plaintiff. It had a significant impact upon the plaintiff at the time, and has continued to have a material impact upon him. Wielding the broad axe that I consider is appropriate, I would have assessed the plaintiff’s damages in the amount of $100,000.
I do not think the plaintiff has made out a basis for any award of aggravated or exemplary damages. On my findings, the plaintiff has not established any conduct on the part of the DCS officers involved in his imprisonment that was either lacking in bona fide or otherwise unjustifiable in the relevant sense. Nor has he established any conscious wrongdoing in contumelious disregard of the plaintiff’s rights.[13]
[13] White v State of South Australia (2010) 106 SASR 521 at [430]-[454]; Lamb v Cotogno (1987) 164 CLR 1.
Orders
For the reasons I have set out, I dismiss the plaintiff’s claims, and enter judgment in favour of the defendant.
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