Sleiman v Commissioner of Corrective Services - [2009] NSWSC 304

CITATION: Sleiman v Commissioner of Corrective Services & Anor; Hamzy v Commissioner of Corrective Services & Anor [2009] NSWSC 304

HEARING DATE(S): 24, 25 November 2008

JUDGMENT DATE :
24 April 2009

JURISDICTION: Common Law Division

JUDGMENT OF: Adams J at 1

DECISION: Leave granted to commence proceedings for administrative relief and damages

CATCHWORDS: Prisoners - segregation - whether segregation direction under s 10 essential - effect of non-compliance - placement in special units - restriction on residual liberty - prison within a prison - leave to commence proceedings - whether administrative law relief available - whether false imprisonment

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation 2001
Crimes (Sentencing Procedure) Act 1999
Felons (Civil Proceedings) Act 1981
Prisons Act 1952
Uniform Civil Proceedings Rules 2005

CATEGORY: Principal judgment

CASES CITED: Behrooz v Secretary, Department of immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486
Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616
Cobbett v Grey (1849) 4 Ex 729
Collins v Downs & Ors (unreported, NSWSC 14 December 1982
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469
Hunter Area Health Service & Anor v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22
May & Ors v The Warden ofFerndale Institution & Ors [2005] 3 SCR 809; (2005) 261 DLR (4th) 541
Osborne v Millman (1886) 17 QBD 14
Miller v The Queen [1985] 2 SCR 613; (1985) 24 DLR (4TH) 9
Precision Products (NSW) Pty Limited v Hawkesbury City Council [2008] NSWCA 278
Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622
Ruddock and Ors v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269
R v Deputy Governor of Parkhurst Prison; Ex Parte Hague; Weldon v The Home Office [1992] 1 AC 58
Sleiman v Commissioner, NSW Department of Corrective Services [2008] NSWSC 617
Soh v Commonwealth of Australia (2008) 231 ALR 425; [2008] FCA 520 (Madgwick J),
Yorke v Chapman (1839) 113 ER 80

PARTIES: Emad SLEIMAN (Plaintiff)
The Commissioner, NSW Department of Corective Services (First defendant)
The State of New South Wales (Second defendant)
Bassam HAMZY (Plaintiff)
Commissioner of Corrective Services, New South Wales (First defendant)
General Manager, Lithgow Correctional Centre (Second defendant)

FILE NUMBER(S): SC 2008/30061; 30110/07

COUNSEL: Mr M A Robinson (Plaintiffs)
Mr J Kirk with Mr S Free (Defendants)

SOLICITORS: Yazbek Lawyers (Emad Sleiman)
Bassam Hamzy (unrepresented)
I V Knight (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ADAMS J

24 April 2009

30061/08 Sleiman v Commissioner of Corrective Services and the State of New South Wales;
30110/07 Hamzy v Commissioner of Corrective Services and the State of New South Wales

JUDGMENT

HIS HONOUR:
Introduction

1 On 27 August 1999 Emad Sleiman, having been convicted of the offences of murder and contempt, was sentenced to a term of twenty-one years’ imprisonment with a non-parole period of sixteen years and…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2009] NSWSC 304
Decision Date: 24 April 2009

CaseChat Overview and Summary

In the case of Sleiman v Commissioner of Corrective Services, the appellant, Mr. Sleiman, sought judicial review of decisions made by the respondent, the Commissioner of Corrective Services, concerning his segregation under section 10 of the Corrective Services Act. Mr. Sleiman challenged the legality of his segregation, arguing it was not essential and that the effect of non-compliance with the segregation direction was unlawful. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the segregation direction issued under section 10 was essential, as well as the legality of Mr. Sleiman's placement in special units and the extent to which his residual liberty was restricted. Additionally, the court examined whether Mr. Sleiman's confinement in these units constituted a "prison within a prison" and whether administrative law relief was available to him. Furthermore, the court assessed if Mr. Sleiman had been falsely imprisoned by being kept in these units.

The court found that the segregation direction was not essential, and the effect of non-compliance did not amount to an unlawful restriction of liberty. It was determined that Mr. Sleiman's placement in the special units did not constitute a "prison within a prison" but rather a reasonable measure to manage his behaviour. The court held that administrative law relief was available to Mr. Sleiman, and he was not falsely imprisoned. Consequently, the court dismissed Mr. Sleiman's application for judicial review.

Orders