State of New South Wales v Bujdoso

[2005] HCATrans 794

[2005] HCATrans 794

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S289 of 2005

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

PETER ANDREW BUJDOSO

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 OCTOBER 2005, AT 10.19 AM

Copyright in the High Court of Australia

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR P.R. STERNBERG, for the appellant.  (instructed by Crown Solicitor for New South Wales)

MR J.J. GRAVES, SC:   May it please the Court, I appear with my learned friend, MR R.J. DE MEYRICK, for the respondent.  (instructed by T.D. Kelly & Co)

GLEESON CJ:   Yes, Mr Sexton.

MR SEXTON:   If the Court pleases.  Your Honours, Mr Bujdoso was assaulted quite seriously in his room at Silverwater Prison late in the evening of 21 September 1991 or perhaps in the early hours of the morning of 22 September 1991.  At that time he was serving a sentence of three years and four months on three counts of sexual assault on male persons under the age of 18.  The minimum term, which was two years and six months, was due to expire on 15 August 1992. 

His room – it was not a cell – was in the units that housed prisoners taking part in the work release program and he had been in this accommodation for approximately two weeks.  If I could take your Honours to the aerial photograph of the prison complex, which is in the appeal book at 264, your Honours will see there on the right‑hand side of the page ‑ ‑ ‑

KIRBY J:   This looks like a photo on a bleak day.

MR SEXTON:   I think it might say more about the photo than about the day, your Honour.  On the left‑hand side of the right‑hand side of the page, if I can put it that way, your Honours will see five buildings in silver and there is a circle around them.  The four buildings closest to the right‑hand side of the page are the units in which the prisoners on work release were housed and the building slightly on the left of those is an administration block.  Going across the page, there is a building with a red roof right on the edge of the page which is Silverwater House.

GLEESON CJ:   It has “SH” written on it?

MR SEXTON:   Yes, that is right, your Honour.  Some of the work release prisoners were also accommodated in Silverwater House.  Normally that is where they started.  This was not true for Mr Bujdoso, but normally they started there and then went to one of the four blocks of units.  I will say something more about how they were set out later, but at this stage it is sufficient perhaps to note that your Honours will see that there is a fence that separates that zone of the prison from the rest of the complex.

KIRBY J:   I cannot see the fence, but maybe it does not matter.

MR SEXTON:   You will see, your Honour, that it runs not quite diagonally across the page behind the top two unit blocks and then not quite as visible along at the bottom of the units and down towards Silverwater House.

KIRBY J:   That white line is a fence, not a path, is it?

MR SEXTON:   That is a path.  The fence is above and below the units.  So that this particular part of the prison was to that extent separated from the rest.

KIRBY J:   Where was the solitary guard, reduced from two to one, maintained during the night?

MR SEXTON:   He was based in that administration block which is the ‑ ‑ ‑

KIRBY J:   That is the further one?

MR SEXTON:   The building furthest from the right.  That was an administration block.

GLEESON CJ:   Sorry, I have not followed that.  If you go to the left, there is a prison area surrounded by prison walls, you see on the left of the photograph?

MR SEXTON:   Yes, your Honour.

GLEESON CJ:   That is the women’s prison, is it?

MR SEXTON:   I am not sure, your Honour.

GLEESON CJ:   Then if you move to the right across the page, where do you come to the administration block?

MR SEXTON:   Your Honour sees the five silver buildings in a group in the middle of the left-hand side of the right-hand page?

GLEESON CJ:   Yes.

MR SEXTON:   It is the furthest left of those.  That is the administration block.  They all look the same pretty much, but the four closest to the right were the blocks of units where the prisoners were housed on work release and the one on the left was the administration block.

KIRBY J:   In my copy it has a round circle in blue.

MR SEXTON:   Yes, that is right, your Honour.  I will come back to that perhaps.

GLEESON CJ:   In which building was the respondent at the time of the assault?

MR SEXTON:   I think he was in the one at the bottom right.  There is a little blue mark there, just a small star which indicates the approximate location of his room I think.

KIRBY J:   He had asked to be in the one which is to the left of that and closer to the administration block where the solitary guard was stationed.

MR SEXTON:   Your Honour, he had been transferred to Silverwater in May 1991 after applying to be considered for the work release program.  This was the only place in New South Wales where it was available.  In July he was recommended, I think by the prison psychologist, for inclusion in that program.  That normally followed a period of 12 weeks observation by prison officers to assess the applicant’s suitability for the work release scheme and then inmates who were considered suitable at the end of that 12‑week period normally moved into Silverwater House where they were tested with two or three separate day leaves and then, if they were completed successfully, they formally started the work release program.

So say in the case of Mr Bujdoso, he seems to have bypassed Silverwater House and gone directly into that block of units that is indicated.  Normally, as I say, those on the work release program started in Silverwater House and when a room became vacant in the units then they moved out of Silverwater House and into the units.  So it really, in the case of the units, simply depended on vacancies occurring as to when and where a person finished up in one of those four blocks. 

Your Honours, in order to be part of the work release program it was necessary to be classified under the classification system as C3, and I will come to the system in a moment, but it is be noted that, in fact, all of the prisoners at Silverwater, if they were not C3, which was the lowest classification, because they were on the work release program, were C2, the second-lowest classification, because the only persons accepted at Silverwater were those who were either going to be on work release or there were some short-term inmates who were not in that category but, nevertheless, were required to have the C2 classification.  Your Honours, I think, have a copy of the regulation in force at the time which contains the list of classifications.

KIRBY J:   Is that the additional document you have sent in?

MR SEXTON:   Yes, your Honour.

KIRBY J:   That is objected to by the respondent who says it was not in evidence.

MR SEXTON:   It is in the statutory material, your Honour.  It does not need to be in evidence, in our submission.

KIRBY J:   Perhaps it explains some of the terms used.  Is this the document that explains the C2 and C3 categories?

MR SEXTON:   Well, it lists the categories.  It is the Prisons (General) Regulation 1989 and if your Honour looks at page 4, clause 8(1), you will see there a list of classifications from A1 down to C3.             Your Honours do not have the later regulations, but the system still basically is in this form, except that there is a AA category.

KIRBY J:   Terrorism has come in.  They are AA.

MR SEXTON:   The AA category came in I think, your Honour, in 2001 or perhaps it may have come in in 1995.  There are two categories of prisoners who have been convicted of escaping or attempting to escape – E1 and E2 – but otherwise these categories survive.  Your Honours will see that category C3 is:

those who, in the opinion of the [Director-General], need not be confined by a physical barrier at all times and who need not be supervised.

KIRBY J:   You have read out Director-General.  In my copy, in regulation 8 it talks of the Commissioner.

MR SEXTON:   My copy has the Director-General.

KIRBY J:   I am referring to page 12:

those who, in the opinion of the Commissioner, need not be confined –

Has the name and designation of the head of Corrective Services been altered, has it?

MR SEXTON:   It has.  It is the Commissioner now, your Honour, yes, but I thought it was the Director-General in ‑ ‑ ‑

KIRBY J:   I am just reading what is in my copy.

MR SEXTON:   Is your Honour looking at clause 8?

KIRBY J:   Clause 8.  It refers to the Commissioner.  What was it at the relevant time, Mr Solicitor?

MR SEXTON:   I think it was the Director-General.

GUMMOW J:   It had better be checked.  We have a document which says at the bottom of the page “Amended to:  14 August 1995”.

MR SEXTON:   My copy, which talks about the Director-General ‑ ‑ ‑

KIRBY J:   Well, you are one up on us.

MR SEXTON:   ‑ ‑ ‑ published in the Gazette of 15 September 1989.  I suspect it is the Director-General.  We will check that, your Honours.  The AA category was included in 2004, your Honour Justice Kirby.  Now, the four blocks of units which are shown in the photograph each had a corridor running down the centre of the block and there were approximately nine rooms on each side, one person to each room.  Each of these rooms had a lock that could be snibbed from the inside and required a key to be opened from the outside.  The administration had a master key.  There was considerable evidence about the lock at the trial of these proceedings and it figures in the judgment of the Court of Appeal.

In our submission, the lock is really a false issue in this case.  The rooms were not cells and the lock was not designed, obviously, to keep anyone in or, if they were in any way determined, to keep persons out.

KIRBY J:   That might be correct, but as I understand it the respondent contends that he had been warned of the risks and had threats and therefore, although the lock was not so important from a cell point of view, it was important from a protection point of view.  If he could lock it, he was safe at night from those who were threatening him.

MR SEXTON:   Well, your Honour, we would say the evidence is that the lock was not designed and was certainly not capable of keeping out a person who was determined to enter the room.  It simply was not that kind of lock.  What actually happened to it is, on the evidence, uncertain.  Mr Bujdoso gave evidence that the lock was smashed to pieces but the police officer who investigated the assault gave evidence that he did not see any signs of damage to the lock and the locksmith who gave evidence looked at the photos and said that they did not show that the lock had been smashed. 

It is possible that Mr Bujdoso opened the door, although the trial judge considered that this was highly improbable or – but the alternative assumes that the lock was not snibbed from the inside, the alternative being that the tongue of the lock was forced back by the insertion of a flat piece of some kind of stiff material, metal or plastic, where the tongue goes into the lock, the door jam.  The door, it would seem, could have never the less been smashed in even if the lock was snibbed, but that would had to have caused some damage to the lock and the evidence is that there was not any. 

So it seems on the evidence that perhaps the explanation is that the lock was opened from outside but not forcibly – it was not smashed but done by the use of a piece of material and that, therefore, it was not snibbed from the inside at that time, but the evidence about that is unsatisfactory.

GLEESON CJ:   What finding did Judge Cooper make about how the people got in?

MR SEXTON:   He did not make, we would say, a finding in terms, your Honour.  There was some suggestion that the door had been opened by Mr Bujdoso.  He said that was highly improbable, so that can be perhaps taken as a finding that in his view that did not occur, but after that he noted the evidence about the way in which the lock could be opened from outside by the insertion of a piece of metal or plastic, but there is really no formal finding on that question.

KIRBY J:   The respondent said that suddenly two or three persons entered the room.  That was his version.

MR SEXTON:   Yes, and he said the lock was smashed, but apart from the fact that there was an obvious entry the evidence ‑ ‑ ‑

GLEESON CJ:   Judge Cooper made a finding on page 364 that the lock was not there for the purpose of keeping people out.  It was just there for the purpose of privacy.

MR SEXTON:   That is right, your Honour, yes.  As I said, the evidence is uncertain but we would say really, in line with that finding of Judge Cooper, that it is a false issue, that however entry was gained that someone determined to do it would have been able to deal with this lock, because its purpose was not to keep persons out, as it was not to keep prisoners in.

KIRBY J:   That begs the question of what the Court of Appeal said, which was that there ought to have been a lock, at least for some facilities, for people who were under threat.  These are, to some extent, dangerous people who have been convicted of offences and these were people who were threatening him and he was frightened.

MR SEXTON:   But that presupposes, your Honour, in effect that the prisoners would be in cells.  In other words, that ‑ ‑ ‑

KIRBY J:   Not really.  It presupposes that there be a facility for protecting people who cannot otherwise protect themselves whilst they are in your custody.

MR SEXTON:   Your Honour, we would say that the real issue is one of supervision and how that fits in with the classification system.  Why I say the lock is a false issue is because short of having persons in what would normally be described as cells with the sort of locks that would keep them in and keep other persons out, as they are normally so in the prison system, that it would not be possible to avoid a determined person breaking in in some form.  So it really depends on the view that is taken of this particular part of the prison and the work release program because that kind of system was incompatible with what was happening in this part of the prison.  So it really depends on what the risk is of this kind of system.

KIRBY J:   When I moved to Canberra, in my apartment there was a lock, which was common to all the apartments, but being a rather cautious type I thought there should be another one and I put it in.  It did not cost very much.  It gives me greater security.  The question that the Court of Appeal poses is whether you should have paid the relatively small amount of having some facility for people who were under threat, as this man was, whilst he is in your safety and whilst he cannot protect himself except through you.

MR SEXTON:   Your Honour, of course there is a duty to protect, but it is not to be achieved in this situation, we would say for the reasons that Judge Cooper said, by the lock.  The protection lies, we would say, in the classification system – and I will come to that – what it meant for the persons in this program.

GLEESON CJ:   I just do not know one way or the other, but is it part of any prison system that prisoners should not be able to lock themselves in in a way that would prevent entry by the prison authorities.

MR SEXTON:   I imagine that is so, your Honour.  The doors here had a small glass panel at about eye-height so that it was possible to look in and I suppose to look out, but, as I say, the lock could be snibbed from inside.  We would say it was not, seemingly, but ‑ ‑ ‑

GLEESON CJ:   The only reason I ask that is that hotel rooms commonly have devices attached to the doors that enable people inside the room to prevent people outside from gaining entry.  They are not very elaborate or high tech or expensive devices, but then I wonder whether prisoners are supposed to be able to do that.

MR SEXTON:   I think the evidence is there was a master key, but if the snib is down I presume the key does not turn the lock. 

KIRBY J:   I think what the Court of Appeal was suggesting in answer to the Chief Justice’s question was that there were more modern locks, not very expensive, that would have been accessible to the prison authorities but not to fellow prisoners.  That is it, is it not, that is what they were suggesting?  What is wrong with that?  It seems a very simple solution to a problem of great peril for people.  People in prison are sometimes surrounded by people who might enter into a bureaucratic classification but who have danger in their hearts.

MR SEXTON:   If you look at the nature of the attack, really it would require a different locking and a different cell type of system, in our submission.  Apart from that, there are times when the inmates would be outside of their rooms attending the bathroom, showers, et cetera.  There are obviously times when they would be vulnerable to persons who were determined to attack. 

KIRBY J:   Curfew was at 10.30 pm and the event occurred at 11.00 pm, is that correct?

MR SEXTON:   There is some evidence about it being in the early hours of the morning.  I do not think the time is really identified, your Honour, but presumably late – 11, 12, 1 – one could perhaps draw that inference from the evidence. 

GLEESON CJ:   You may be right or you may be wrong, but a point of departure between the primary judge and the Court of Appeal is to be found, is it not, in the first complete sentence on page 364?

MR SEXTON:   Yes, your Honour.  We would certainly agree that that was the nature of the lock, but I think it is implicit in what Judge Cooper said earlier in his judgment that a more substantial lock would not have been effective against these intruders, that it would require a different system and one that was not compatible with the work release program where these persons were coming and going and were considered, and historically – I will take your Honours to that – generally accurately, to not create a risk for their fellow prisoners. 

Your Honours, as to the question of the system itself and Mr Bujdoso’s interest in being on work release, he himself in his evidence considered that he would be in the safest position on that program and in this part of the prison.  The evidence of the prison officers was that the incidence of violence in the units was very low, lower than in other sections of the prison and Silverwater lower than in other institutions because of the nature of the prison that it was at that time.

KIRBY J:   He was in a bit of a cleft stick, was he not?  He was concerned about losing the mortgage on his home and that was important to him.  His parents were retired and they were standing in for him and he wanted to get out to see his de facto and, more especially, his son and he therefore wanted to have the benefits of this, but without, one would think, the risks.  He was conscious of the risks because of the threats.

MR SEXTON:   But that would have been true anywhere in the system, your Honour, and not only in his case.  There seems to be agreement that because of the offences for which he had been convicted that he was particularly at risk but, of course, almost any prisoner in the prison system generally is at risk from his or her other ‑ ‑ ‑

KIRBY J:   But especially “dogs” and “rock spiders”.  The “dog” got it, and that warned you, but the “rock spiders” were equally at risk.

MR SEXTON:   But unfortunately, your Honour, it is a risk of all prison systems, assault by other prisoners.

KIRBY J:   If it is, then arguably you have to do something about it.

MR SEXTON:   Well, that is the question we say the Court of Appeal did not ask, what should be done about it?  It would be possible to have everyone in isolation cells in those sort of secure environments.  It is not practical and we would say it is not desirable either from the point of view of prison administration.  The point about the work release program was that it was a final staging of these inmates back into the community and an important aspect of rehabilitation, so that that is a responsibility of prison authorities as well as the protection of prisoners.  It is a question of balancing all of those things.  That is really what goes to the question of whether the duty of care, which obviously existed, has been breached and that is where we take issue with the judgment of the Court of Appeal. 

KIRBY J:   Are the threats relevant to the duty that you owed to this particular plaintiff?

MR SEXTON:   Not, we would say, to this breach, your Honour.  There were threats – when Mr Bujdoso was at his previous prison, there was an incident which he quite naturally perhaps did not report, nothing like this, nothing of this nature.  Then when he was initially in Silverwater he was moved into the drug and alcohol unit and there was a suggestion of a threat, but that did not eventuate, and then he moved into the work release program.  As I say, he thought that was where he would be safest.  He appreciated that there was no entirely safe environment in the prison system.

I had said, your Honours, that a number of the prisoner officers gave evidence, Mr Edwards, that the incidence of violence was extremely low in the units, lower than in the rest of the prison and that was lower than in the prisoner system generally, and Mr Lehn, who was another prison officer at that time, said that the incidence of assaults in the units prior to September 1991 was virtually nil.  Mr Mercer, who was the assistant superintendent, said there had been one serious assault in the units prior to this one.  There does not seem to be a date as to when that occurred, whether it was slightly earlier or considerably earlier, which was committed against a prisoner who had supplied information to prison authorities, I think in another prison, and had been the subject of a contract for $20,000 which had been put on his head in the prison system.

GLEESON CJ:   I do not want to take us into possibly controversial areas about the usefulness of expert evidence, but was there evidence of standards of prison safety against which the conduct of the authorities in this case were capable of being measured?

MR SEXTON:   I do not think so, your Honour.

GLEESON CJ:   I hesitate to use the words “best practice”, but it is surprising perhaps that there are not objective measures of conduct on the part of prison authorities by way of taking care of prisoners.

MR SEXTON:   I suspect that in part, your Honour, the answer to that is that differences between prisons and between groups of prisoners have some common characteristics but a lot of differences, hence the notion of the classification system which indicates varying degrees of – or the notion of varying degrees of supervision.

GLEESON CJ:   But if there were no litigation on foot – forget about court cases.  Suppose somebody said, “I am in charge of the New South Wales prison system and I would like to design a secure, safe and healthy environment so far as it’s reasonably practicable”, are there no standards or prescriptions to which one can look, no recognised standards of practice in this regard?

MR SEXTON:   Not that I am aware of, your Honour.  This may be one area that standards has not invaded in common ‑ ‑ ‑

GLEESON CJ:   Certainly there is no evidence of it in this case.

MR SEXTON:   No.

KIRBY J:   It is not entirely true to say standards have not invaded these cases.  I remember in Cekan, which was a case in the New South Wales Court of Appeal, there was very considerable evidence called in that case from the United States about best practice and standards for police lock-ups.  That claim was rejected.  It was a case of a man who was heavily intoxicated in the Sydney Police lock-up who suddenly took it on himself to get up on the bench and dive at the floor as if he were diving into a pool.  It was rejected because there was no real warning that he would do that and to modify the Sydney lock-up would be a major enterprise and it was not thought to be reasonable.  But that is not what the Court of Appeal said in this case.  There was warning, there was an indication of some danger and the modifications were relatively modest.

MR SEXTON:   It really raises two questions, which I will come to, about breach of duty and causation if one is talking about the lock.  In our submission, the Court of Appeal ‑ ‑ ‑

KIRBY J:   Not only the lock, also the supervision and the placement of the prisoner, as he asked, close to the guardhouse.

MR SEXTON:   In our submission, the Court of Appeal has not really made the assessment that is required in relation to breach of duty.  The paragraph of the judgment in which they deal with these issues simply proceeds to find a breach on the basis of a risk having occurred.

GLEESON CJ:   Where do we see the error?

MR SEXTON:   Your Honour, it is towards the very end of the Court of Appeal’s judgments, at 388 of the appeal book.

GUMMOW J:   Does that not have to be measured with the grounds of appeal that they had before them?

MR SEXTON:   Yes, your Honour.  I will come back to this paragraph but your Honours will see that it deals with the questions of supervision and the question of the lock.

GUMMOW J:   You have to start at paragraph 3 on page 374.  That was the task which the court was given by the notice of appeal and they resolved it at paragraph 64.  You say there was something else they should have done?

MR SEXTON:   What we say about paragraph 64 is, your Honour, that it does not, for example – I will come to this – consider what might have been done to deal with this risk and whether that was practical and whether it conflicted with other responsibilities that the prison authorities had.

KIRBY J:   The existence of a duty of care was not in contest between the parties?

MR SEXTON:   No, your Honour.

KIRBY J:   So all of this endeavour on the part of Judge Cooper and the Court of Appeal was necessarily addressed to the issue of breach and causation?

MR SEXTON:   Yes, your Honour.

GUMMOW J:   Just breach, is it not?

MR SEXTON:   In the case of the Court of Appeal, yes, and Justice Gummow is quite right, in the trial as well.

GLEESON CJ:   There was no notice of contention in the Court of Appeal seeking to uphold Judge Cooper’s decision on the ground of causation?

MR SEXTON:   No.

GLEESON CJ:   Or seeking to justify his decision because he dealt with it at the level of breach.  If you look at the declaration made in paragraph 65, there is a declaration “that the respondent breached the duty of care” and the matter is then remitted to the District Court.  Perhaps a small technical problem, since proof of damage caused by the breach of duty is the gist of the action of negligence, unless you deal with an issue of causation, either expressly or by implication, there is no conclusion on liability, is there?

MR SEXTON:   The two questions are separate, although they are certainly closely connected here because in one sense, in relation to breach, one question is what measures might have been taken, practically and reasonably, to alleviate the risk.  In the case of causation, it is whether any measures taken would have made a difference in this case.

GLEESON CJ:   How do you judge that where the risk is the risk of criminal conduct?  In paragraph 64 the Court of Appeal assigned two specific breaches, I would have thought.  One is failing to inform the guard of a certain fact and another was failing to provide a more secure lock.  Now, that may or may not be persuasive, but they were findings.  Where the risk against which you are seeking to guard is violent criminal behaviour, how do you go about deciding whether giving somebody some information or providing a more secure lock would have prevented that behaviour?

MR SEXTON:   Well, that is an assessment that has to be made in this as in any particular case.

GLEESON CJ:   How do you do it?

MR SEXTON:   It really requires looking at the nature perhaps of the attack in this case as to what would have deterred it and what sort of system could have prevented it.

HAYNE J:   Well, as to that, what was the status at trial of the report of Mr Ryan which commences at 222 and following, Mr Ryan giving as his curriculum vitae that he had been a general manager of detention services for a private organisation and had held a number of senior positions in the Victorian Government Service concerning matters of corrections.  In particular, what was the status of what appears at pages 228 to 229, where he describes his conclusions?

MR SEXTON:   The report was submitted.  As your Honour sees, there were objections and there are some passages that have simply been taken out.  The trial judge did not accept Mr Ryan’s conclusions.

HAYNE J:   Is the position the same about the report from the locksmith, Mr McCaskill, page 234 and following, in particular, Mr McCaskill’s evidence that the lock, an early generation lock, could have been manually deadlocked by the person inside the room?  That was before the judge?

MR SEXTON:   Yes, your Honour.

HAYNE J:   What did the judge do with it?

MR SEXTON:   He does not seem to have made a finding on that question, your Honour.  As I say, if one accepts that the lock was not smashed, which was the evidence of the police officer and the locksmith who looked a photograph, then that suggests strongly that it was not locked from the inside.

KIRBY J:   I did not hear your last words.  It suggests strongly what?

MR SEXTON:   That it was not locked or snibbed from the inside.

KIRBY J:   Well, either that or it was very easy to open.  This was a man who was frightened.  He had a window that he could see who was coming in.  The people coming in were wearing beanies as balaclavas.  He was not likely to open the door and bow and welcome them.

MR SEXTON:   Perhaps not, your Honour, but the evidence was that the lock could have been opened possibly from outside by the insertion of a piece of plastic or metal but not if it were snibbed from the inside.  If it was snibbed from the inside, it would have to be kicked or knocked in, and that does not seemed to have happened on the evidence. 

GUMMOW J:   What do you want us to do?  I am just looking at 395.

GLEESON CJ:   Concerning the disposition of this case.

MR SEXTON:   The appeal allowed, your Honours, and the ‑ ‑ ‑

GUMMOW J:   What, action dismissed?

MR SEXTON:   In accordance with the trial judge’s judgment.

GUMMOW J:   Because ground 2.2 on page 395?

MR SEXTON:   Amongst others.

GUMMOW J:   The Court of Appeal was not asked to deal with the question of causation.  Why should we deal with it?

MR SEXTON:   Because it is part of the same exercise, your Honour.  We would say they do not have to be specifically asked to deal with that.

GUMMOW J:   Anyhow, are you saying we should deal with it?

MR SEXTON:   We say your Honours are able to deal with it, that all the material is here but, as I said, it is closely allied, in this case, to the question of breach of duty.  It really involves essentially the same facts and to some extent not entirely the same inquiry.

GLEESON CJ:   Is what Judge Cooper said on the top of page 364 a finding about, amongst other things, causation?

MR SEXTON:   It is in part, your Honour, yes, because one question is whether a different form of lock but along the same lines or an additional degree of supervision but not constant supervision would have or could have prevented an assault of this kind.  We would say within the context of the work release accommodation the answer is no.

GLEESON CJ:   Did the evidence show that it is the fact that you can have a lock that could be locked from the inside by an inmate in such a way as to make it difficult for other inmates to get in but that would not make it difficult for prison officers to get in who are in possession of a key?

MR SEXTON:   As I understand it, your Honour, if the lock is snibbed from the inside, that would mean that for anyone trying to gain entry it would have to be smashed in or kicked in, that it could not be done by the insertion of a piece of plastic or metal.  Assuming that that could be done here – the evidence is perhaps not entirely certain about that because it was not based on the actual lock.  The prison officers had a key but it is my understanding that no key would work from the outside, the prisoners or the prison officers, if the lock was snibbed from the inside. 

GLEESON CJ:   That just at the moment seems to me to be fairly important because I can understand why you would not permit prisoners to exclude prison officers.  I can think of a dozen reasons offhand why you would not permit that, including reasons relating to personal safety.  But did the Court of Appeal contemplate that the more secure lock to which they were referring on page 388 would be a lock that would be more secure against other prisoners, even though it would not exclude prison officials with a key, for example?

MR SEXTON:   I am not sure that they analysed it in that way, your Honour.

KIRBY J:   But is this not common knowledge?  I mean, the added deadlock I have on my door, I cannot lock out a person who has a key from the outside, but I can lock out anybody else and do lock out anybody else who does not have a key and wants to get in.  That is just a standard deadlock.

GUMMOW J:   We had a patent case about this called Doric v Lockwood.

KIRBY J:    I suppose you can have, and some hotels have, as the Chief Justice has said, sort of chains and things that go across doors and that presents an extra obstacle, but no one is suggesting that.  What the Court of Appeal, as I understand it, is suggesting is just another lock, the more modern kind that is not easily removable.  That is why some people put an extra lock in, a deadlock.  These locks I think are readily available.

MR SEXTON:   There is no suggestion that the intruders had a key, your Honours.

GLEESON CJ:   No.  I am very conscious of the possibility of bringing to bear misinformation or misunderstanding on my own part on this, but as a matter of common sense it seems to be the case, does it not, that there is some virtue in having a lock, provided it would not exclude prison officials, which is of such a kind that if somebody wanted to break in they would have to make a big noise about it which is likely to attract attention?  In other words, in terms of protecting an inmate against other prisoners, it may be that you cannot prevent them breaking the door down, but if you can put them in a position where they have to break the door down or kick it in to get in you are going to reduce substantially the prospect of them entering.

MR SEXTON:   There is two points about that in this case, your Honour.  One is that, as I have said, it seems, if the evidence be accepted about the lock not being damaged, that it was not locked from the inside, so that it may have been opened from the outside in a way that did not require the door to be knocked in.  However, having said that, these units were premised really on the fact that because of the classification that these prisoners had and the incentives they had to be on this program and to get through this program that there was not going to be this kind of incident in these units.  In fact, subject to one exception, there had not been and that was a very unusual case.  So that is why Judge Cooper said that the lock was a question of privacy.  It was not designed to withstand a forced entry.

GUMMOW J:   Yes, but maybe it should have been, that is the problem.

MR SEXTON:   Well, your Honour, in other parts of the prison that would be so, but that is why I say that it really depends on the view that is taken of this part of the prison and of this classification and of the significance of the work release program.

GLEESON CJ:   Yes, Judge Cooper, whether he was right or wrong, seems to have thought that it was all right to have a lock that was merely designed for purposes of privacy.

MR SEXTON:   In effect, because these were not cells, they were rooms, there was not any real security about them – I have to accept that.  That is why I say that even the sort of lock that Justice Kirby is talking about would certainly respond to a serious assault, and in fact very quickly, so that people would gain entry to the room.  Now, as your Honour the Chief Justice points out, that would perhaps attract more attention but ‑ ‑ ‑

GLEESON CJ:   Was there any evidence of what they have on the locks now, what they have on the doors now?

MR SEXTON:   I do not think there is ‑ ‑ ‑

KIRBY J:   I think they have pulled the facility down, have they not, or they have removed the ‑ ‑ ‑

MR SEXTON:   Well, it is a different – the prison complex has been ‑ ‑ ‑

GLEESON CJ:   Yes, but they must have some device for keeping the doors shut, that is all I meant.

MR SEXTON:   Yes.

GLEESON CJ:   Is there any evidence of what kind of devices they now use for keeping the doors shut?

MR SEXTON:   No, there is not, your Honour.  Not in this case, no.

GUMMOW J:   All this assumes a perfect operation of the classification system, which the facts indicate is imperfect.

MR SEXTON:   But had seemingly worked quite well.  The system may not have been perfect but there had been these two incidents, and one ‑ ‑ ‑

GLEESON CJ:   But the people that are being classified are criminals.  They are not nice people in many cases, and that is part and parcel of the classification system.

MR SEXTON:   But these were the lowest classification in the system and they were at this stage coming and going to an external working environment during the course of the day.

KIRBY J:   They all clammed up after the incident, did they not, I think?  In any case, there was no criminal proceeding brought, notwithstanding the very serious assault on the prisoner in your care.  So there was no criminal redress, and according to you there is no civil redress; we just have to cop it.

MR SEXTON:   Well, it is obviously, in terms of the appellant, it is a very serious event but the question is whether or not it would mean that this classification system in effect could not operate, that it is not possible to have some prisoners or perhaps any prisoners on the work release program.  It happens that Mr Bujdoso was a ‑ ‑ ‑

KIRBY J:   I do not think anybody is suggesting that, and I do not read the respondent’s submissions to suggest that.  Can I explain to you something about the classification system so that you can respond to it?  It is not only, as Justice Gummow said, that your submission assumes a perfect and highly filigreed classification system instead of the categories which are very broad, but (a) you know of the culture of danger in relation to people convicted of offences such as the respondent; (b) you knew of the specific threats to the respondent; (c) you knew of his concern about those threats and request that was related to those threats; (d) the classification, whilst relevant, cannot override your continuing duty to him in the light of the knowledge that you had and the foreseeability of a possible injury to him, and (e) what you are asked to do is relatively modest and seems prudent, (f) especially because you knew that a prisoner, admittedly for a different type of offence to the prison culture, had been seriously bashed and the subject of a contract in the so‑called low security environment.

MR SEXTON:   That was the only recorded incident on the evidence.  But, the question is whether - perhaps I should start by saying that every prisoner in the prison system is at risk – almost every prisoner – of assault unless they are in some form of isolation or protection.  Mr Bujdoso did not want to go on protection.  That does not absolve the prison authorities of their responsibilities, of course, but short of that kind of isolation there is going to be some risk.  The question is the magnitude of the risk and what should be done to address it.

In the context of the work release program, which we would say is an important rehabilitative exercise and a way of staging prisoners back into the community the classification system is designed to minimise the risk in relation to prisoners who were on that program and by and large it seemed to have worked.  It did not work in this particular instance and the question is what might have been done that would have and is practically reasonable in relation to Mr Bujdoso.

In our submission, the steps that would have to be taken would be inconsistent with the work release system that it is not possible to run this program in a way where prisoners are confined in the way that they are in the rest of the prison system.  Because of the program that persons had to go through to get on to this work release scheme and because of the incentives they had to complete it, it would seem, on the face of it, that this kind of conduct was unlikely and so it had proved in the past, except in one case.

HAYNE J:   The core of the conclusion reached in the Court of Appeal must be, I suggest, that the reasonable prison authority should have taken more steps than it did to prevent wrongful intrusion into the plaintiff’s accommodation when lodged in the unit of the kind he was lodged in the circumstances that prevailed in that unit.  What are the steps that the Court of Appeal take in reasoning to the conclusion that the reasonable prison authority should have done that?

MR SEXTON:   Your Honour, in our submission, that is the deficiency in the judgment, that if one looks at the matters that are mentioned in the quotation from Justice Mason in Shirt – we have set it out in our written submissions.

HAYNE J:   Just before you go to Shirt, does the Court of Appeal interfere with the findings made at trial that lodging the plaintiff in this unit was itself a step that was not wanting in reasonable care?  I think that that is a step that the trial judge took, is it not?

MR SEXTON:   No, your Honour, that is one of the complaints that we make about the judgment, that the Court of Appeal does not say that the system itself of work release and prisoners being on the lowest classification before they can gain entry into the program ‑ ‑ ‑

HAYNE J:   It was more refined than that, the point I was trying to put to you.  I had in mind paragraph 112 of the trial judge’s reasoning at page 361, or his conclusion at paragraph 112. 

I am not satisfied on the balance of probabilities that the defendant was in breach of its duty of care in transferring him to works release unit.

Now, does the Court of Appeal address that question?

MR SEXTON:   We would say not, your Honour, that it assumes that the work release system is desirable and should stand, but that certain measures should have been taken in relation to this particular prisoner or this particular situation and ‑ ‑ ‑

KIRBY J:   Whereas your submission is everyone is in category C3?

MR SEXTON:   Well, that is one part of our submissions, but one of our complaints about the Court of Appeal’s judgment is that once one makes that assumption or starts from that premise that there will be this kind of system, then the real question is how can it operate in a practical sense and what steps could have been taken to deal with the risk, and should have been taken to deal with the risk, in relation to Mr Bujdoso’s case.  We say, and I will come to Shirt in a moment, that those are the questions that were not addressed properly in the judgment of the Court of Appeal.

Your Honours, if I can just take the four matters that are referred to by Justice Mason in Shirt in considering the question of breach of duty.  He talks about the magnitude of the risk.  Well, we would say here that we would have to accept the magnitude of the risk was significant in the sense that an assault could obviously be a serious one, but in relation to the other three we would say that they have not been ‑ ‑ ‑

KIRBY J:   Well, it could - you would have to accept that the magnitude of the risk would extend to death of the prisoner.  I mean if people are struck on the head with a bar and where the bar came from and how they could get access to a bar in a prison I do not know, but if they are struck on the head with that many people will die.

MR SEXTON:   Some suggest it may have been a shower railing but I do not think the evidence is clear about that, your Honour.  Magnitude of the risk, we note that.  The second factor is the degree of probability of the occurrence of the risk.  We would say that that was slight on the evidence ‑ ‑ ‑

CALLINAN J:   With all the previous taunts?  It was not a slight risk at all, was it?

MR SEXTON:   In terms of ‑ ‑ ‑

CALLINAN J:   He had been taunted, had he not?

MR SEXTON:   Yes, but in terms of this happening in these units ‑ ‑ ‑

CALLINAN J:   By violent people.  Some of them had records of violence, did they not?

MR SEXTON:   Yes.  I am looking at the probability of occurrence of an assault in this part of the prison and the evidence is, we would say, that that probability was slight.

CALLINAN J:   Might it not have been different for this respondent having regard to the crimes that he had committed and the attitude of other prisoners to those crimes?  I am not talking about the official categories but it put him in a special category, did it not?

MR SEXTON:   Seemingly that is so in the prison system, your Honour.  There is no evidence of this, but one might assume that he was not the only person in this who had been convicted of such offences who had ever been on the work release program.

CALLINAN J:   There do seem to be people who are singled out in prisons.

MR SEXTON:   There is evidence of that, your Honour, but again there was evidence that he was not the first person in this category to have been on the program of work release. 

KIRBY J:   But you did have notice, I think, of some specific threats to him that were brought to your notice before his injury, is that correct?

MR SEXTON:   Yes, that is so, your Honour.  They were not threats while he was in this part of the prison.

KIRBY J:   Is it permissible for me to take into account, in judging this issue, the evidence after his injury where you put him back into the area and a prisoner got in touch with you and said, “What on earth are you doing?  I’m a Christian man, I’ve heard in the toilets talk that they’re going to do him over again.  Remove him.”  Is that a permissible thing to take into account, an ex post development?

MR SEXTON:   We would say not, your Honour.  It does not, as I have said, determine the responsibilities for the prison authorities but he wanted to go back but then the prison authorities did remove him on that occasion, but there had been other persons in this category who had been on the work release program earlier.  As I say, dealing with those items in order, the magnitude of the risk, the degree of probability of the occurrence of the risk we would say was slight on the evidence. 

The third matter that was mentioned by Justice Mason was the expense, difficulty and inconvenience of taking alleviating action.  We would say that the only real system, of course, that would completely protect a prisoner is an impractical one of isolation.  It is, of course, pursued with some high‑security risk prisoners but the answer to that question really depends, again, on the value that is attached to the work release scheme and whether - the evidence is I think there were 80 or 90 prisoners on the work release scheme at any given time here – that the measures that would deal totally with this kind of risk would cut completely across that kind of scheme so, to that extent, the difficulty and inconvenience of alleviating action is, we would say, quite considerable.  One would lose the value of that scheme.

GLEESON CJ:   This is a conceptual problem, as it seems to me, in evaluating negligence or causation in a situation where you accept that a person has a duty to take reasonable care to protect somebody from criminal behaviour.  That is common ground here.  Once you get into that area there are certain types of criminals and certain types of behaviour against whom only extreme measures will constitute some form of protection.  On the other hand, there are some types of criminal who could be put off by relatively modest measures of protection.  You can put airport security at the front door of a court and that will keep out a certain kind of nuisance, but it is certainly not going to keep out a determined terrorist.  How do you then make a judgment about issues of breach and causation?

MR SEXTON:   Your Honour, the judgment here was made, rightly or wrongly, by the prison authorities about the prisoners who went into this particular classification and into this scheme, the judgment being that they would not want to take the risk of conduct that would get them out of the scheme and back into the general prison system.  Now, on the evidence by and large those judgments seem to have been right, but we would say that you cannot have that system without some scope for, on occasions, perhaps making a misjudgment about – there are 80 or 90 persons who were on the program at any given time and in this case seemingly two or three of them – not clear about the numbers – were prepared to take the risk that prison authorities had assessed them as not being prepared to take.

Now, the classification system we would say is important to the general system of prison administration.  The work release program is important for a range of reasons.  If in fact some prisoners cannot be put on that program, for example, someone in Mr Bujdoso’s situation, then that would have an effect on it.  But the reality is that the risk exists in the whole of the prison system, even in much more secure parts of it, and that is why we say that the question is – that the Court of Appeal did not address – as to what was a practical response to – and a practical response within the context of the work release program which the Court of Appeal seemed to accept – they did not find people should not be put on this program.  What they found was that in this particular case seemingly that there could have been other steps taken, although, in our submission, those steps, both from a point of view of breach and a point of view of causation, would not have dealt with the problem.

Now, it is important for the administration of prisons, we would say, that these programs be available and that there is a real difficulty about having these sorts of programs if, in fact, the duty that is placed upon prison authorities is at such a high level that in a practical sense that they are unable to at least continue them.  On the evidence in this case, this was a largely isolated incident, which is why I talk about the degree of probability and the difficulties of doing something about it.

The other matter that Justice Mason mentioned was the other conflicting responsibilities of the defendant. We would say here that the prison authorities have a responsibility to provide for rehabilitation whenever it is practical, in the case of everyone in the prison population, to stage persons back towards the community and that work release is an important part of that.  So that if one analyses those elements Justice Mason refers to in assessing whether there has been a breach of duty, we would say here that one would come to the same conclusion as the trial judge.

HAYNE J:   That seems to place the chief weight of your argument upon the proposition that the risk was minimal.  Is that right?

MR SEXTON:   No, we look at the difficulties of dealing with the risk, the degree of probability of its occurrence and the other responsibilities that the prison authorities had.

KIRBY J:   If there was some evidence that your client had gone through a procedure of the kind that Justice Mason suggested is to be taken into account, one would perhaps feel more comfortable, but I get an impression – maybe you can respond to this – that your client took the view that is hinted at in your submissions, there is a classification.  The classification is the end of the matter.  If they are classified as C3 there is nothing extra we need to do, but in this case there were additional facts about this person, and arguably about people in his class, that meant that though in C3 he was requiring, under the common law duty of care, of some extra attention and that the classification was not the end of the issue.

MR SEXTON:   Your Honour, the classification was not in a sense just a formal exercise.  Everyone who came to Silverwater was C2, the second lowest classification.  Then they had the 12‑week program; a number of separate day leaves before they were accepted, and they became C3 on the work release program.  It was quite a rigorous assessment of the risk of these prisoners.

Now, we know that that assessment is not completely free of error, but the question is whether the system in a sense should be overturned because of those isolated events.  Now, your Honour raises the particular situation of Mr Bujdoso.  That raises the question in turn of whether certain categories of prisoners should be excluded from the work release program, and in his case someone who was very anxious to be involved in it.  I know that does not, as I have said, answer the question entirely but it is relevant that some prisoners would be excluded.

It is true that he may have been at a somewhat greater risk because of the offences for which he had been convicted, but it is true that for various personal reasons, interaction between prisoners, someone else might be also at risk in a less supervised environment.  As I say, the important aspect we would say about here is that once one accepts that the environment – because there is going to be a less supervised environment – then there is a risk of this kind of incident but – it makes it much more difficult to deal with this kind of incident.  The risk is lowered, we would say, but if it transpires then of course there would be perhaps different consequences from if it had been in another part of the prison system, although there is a general risk in the whole of the prison system, except in the most secure parts.  So these are all matters that the prison authorities have to balance.

Your Honours, can I just say something about the actual system of supervision that existed in the work release area.  The inmates went to work during the day at different hours.  When they came back their bags would be checked, they would be breathalysed and required to empty their pockets and be patted down.  After 9.30 they were only to leave their rooms to go to the bathroom complex and, as your Honours know, there was a 10.30 curfew.  There was a prison officer who patrolled Silverwater House and the units on a watch that started at 10.30 and ended at 6 o’clock the following morning.  Obviously, he could not be in all of those places at the same time but he was moving around.

GUMMOW J:   What was he watching for?

MR SEXTON:   He conducted checks to see that the prisoners were in their rooms, amongst other things, your Honour, and I suppose he was just simply doing a watch for anything that might be out of the ordinary.

KIRBY J:   There had been two such officers but that had been reduced some time before the injuries to the respondent, is that correct?

MR SEXTON:   Your Honour, as I say, whether it was one or two officers, they could not occupy the whole landscape.  It is simply a question of whether that ‑ ‑ ‑

KIRBY J:   No, but it halves the occupation of the landscape, as you put it, that can occur.

MR SEXTON:   Whether it would make a difference or would have made a difference we would say that that is unlikely, your Honour.  It, obviously, again is a question of personnel.  In prison administration it might be desirable to have many more personnel but there is a question of logistics and means that are involved there.

KIRBY J:   There was no evidence about security cameras.  I suppose in 1991 that was something still in the future, was it?

MR SEXTON:   There is no evidence that there was anything in that way, your Honours.

KIRBY J:   Because, they, as we have seen in the London bombings, can be very useful and can be a deterrent.

MR SEXTON:   Your Honours, can I just say one final thing about causation.  We would say that even if one were to have posited removing Mr Bujdoso from the work release environment, from denying him a C3 classification, that it is not a guarantee of safety within the prison system.  You only achieve that by, as I say, putting someone on protection or in isolation.

The two factors mentioned by the Court of Appeal, a different kind of lock and a somewhat increased system of – or another person doing the inspections, we would say on the evidence, and the trial judge’s finding of the determination of the assailants that it does not address that question of causation as we would say it does not address the question of breach so that to that extent we would say that the Court of Appeal has not made the assessment in either of those areas that was required in this case.

KIRBY J:   That is equivalent to saying that though the existence of the duty of care was conceded and though the matter was determined by Judge Cooper on the basis of breach and though the Court of Appeal in paragraph 3 said that the issue was whether your client had breached the duty of care and though in paragraph 64 Justice Ipp listed a number of specific matters which might be interpreted as a breach, the Court of Appeal failed to examine the issue of breach.  It is not very persuasive to me.

MR SEXTON:   Your Honour, because it did not make the sort of assessment that Justice Mason refers to in Shirt.  It might have taken one of those factors into account but it simply did not address them, in our submission.  They were very real factors here, the responsibilities of the prison authorities and the practicality and the likely effectiveness of any measures that might have been taken.

KIRBY J:   Yes, but Justice Ipp’s point is, at paragraph 64 on the last line, “Nothing was done.”

MR SEXTON:   But that is said in the context of ‑ ‑ ‑

KIRBY J:   Despite the fact that you had specific warnings in relation to this particular person in your care.

MR SEXTON:   Well, it was known that there was a risk involved with the prisoner.  He thought, and the prison authorities thought, that he would be in the safest position on this program.

KIRBY J:   Because he was C3.

MR SEXTON:   No, because the other persons were C3 who were on the program.

KIRBY J:   Though they had been taunting him and threatened him.

MR SEXTON:   Well, it was not those persons.  He was in the general prison system when that occurred, in the rest of Silverwater.  Unless there are any other matters at this time, those are our submissions, your Honours.

GLEESON CJ:   Yes, thank you, Mr Sexton.  Yes, Mr Graves.

MR GRAVES:   Thank you, your Honour.  Your Honours, what I would like to do firstly is to provide your Honours with some assistance as to where the critical findings lie and then go to some of them in some little detail with some references to the reasons in the courts below and some of the evidence.

Firstly, your Honours have heard mentioned and read a portion of a document annexed to the appellant’s submissions, namely some regulations made under the Prisons Act, the Prisons (General) Regulation 1989.  The respondent’s opposition, as indicated in its written submissions, is maintained.  It is maintained for this reason, your Honours, that, in our submission, there is a real risk that if your Honours take account of the regulations, reasons for judgment may be written in this Court that have a determining emphasis on an outcome which was never before the trial judge or before the Court of Appeal.  If I can illustrate the point in one way, by reference to the definition of a C3 classification on page 12, I think we found it, regulation 8(1).  Your Honours will see there that the C3 classification is described as:

those who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised.

It is the last words, your Honours, in which there is a sting so far as the respondent is concerned.  Replete through the trial judge’s reasons, the trial record and the Court of Appeal is the notion that prisoners of the C3 category once admitted to work release and specifically in the units were able to be and were justified as being only minimally supervised.  The question is what your Honours may make of the C3 actual classification that asserts that prisoners in C3 need not be supervised.

GLEESON CJ:   ‑ ‑ ‑ best custodial practice.

MR SEXTON:   I was going to say they do not go to the sorts of things that your Honour the Chief Justice was raising; your Honour can be confident of that.

KIRBY J:   We have Mr Michael Ryan who had some experience in prisons and who was very critical of your management of this prisoner.

CALLINAN J:   But he got a lot of the facts wrong, did he not?  That is why the trial judge rejected him.

MR SEXTON:   I have just put the proposition that if one accepts the program – and I should just quote one on that subject.  If your Honours look at page 275 of the appeal book, you will see there the conclusion of the psychologist’s report on 12 July 1991 where he recommends work release for Mr Bujdoso and says:

He is in need of opportunities to establish acceptable grounds for his self-respect and for respect from others.  These are highly unlikely to be found within prison confines.

I mean, these are difficult questions and the prison authorities did not make this judgment lightly in terms of this program.  They thought the benefits – they were thinking of the prisoner in this case rather than their own interests.

KIRBY J:   I think there is a lot of wisdom in Judge Cooper’s dismissal of the complaint of the respondent at trial, that the mistake was to put him in this system anyway because that would not be a good conclusion to make about liberty for people, including people like the respondent.  But that does not release you, nor do the categories, from the ongoing duty of reasonable care.

MR SEXTON:   It does not, your Honour, but once you accept the system with its relative lack of supervision which is inherent in the system then it follows not only that Mr Bujdoso but that perhaps nobody could be placed on this kind of system if prison authorities were liable for this kind of assault. 

GLEESON CJ:   Judge Cooper, rightly or wrongly, seems to have said, “The work release system is as it is.  Tinkering with some aspects of the system is not going to materially alter the physical safety of people who are within the system so I will treat as the critical issue whether or not he should have been put in that system in the first place”.  That seems to have been an approach that he took. 

MR SEXTON:   We think that is right, your Honour.

KIRBY J:   That was inevitable given the fact that the plaintiff was running at trial the complaint that he was put in the system in the first place.  The judge had to respond to that and pretty convincingly I think he knocked that on the head and that would have been a very bad conclusion to take that every sex offender, whatever the nature of their offence and so on, was disqualified, eo nomine, from being put in that system but that still then left the other grounds of complaint and they had to be dealt with and the Court of Appeal thought differently to the trial judge.  You have to show error.

MR SEXTON:   I have been through that, your Honour, but it is important to note that we say that the Court of Appeal – the matter is identified by the Court of Appeal and as your Honour has just said, would not - and the Chief Justice has suggested - would not really address the problem that is inherent in the system that there is an element of risk because of the lack of supervision.

KIRBY J:   There is an element of risk but there ought not to be an unreasonable element of risk.

MR SEXTON:   That is so.

KIRBY J:   That is the question.

MR SEXTON:   On the evidence here we say that it was not unreasonable.  If the Court pleases, those are ‑ ‑ ‑

CALLINAN J:   Mr Solicitor, I am sorry, there is one matter.  In paragraph 106 at page 359 the trial judge says:

As mentioned earlier, the plaintiff’s case is –

Can you tell me where the earlier of what the plaintiff’s case is appears, where it appears?

MR SEXTON:   I am told that it is not mentioned earlier.

CALLINAN J:   No.

MR SEXTON:   I should say, my learned friend has drawn my attention to the fact that the plaintiff says that he locked the door.  It is at AB 65 at line 10, but, in our submission, one would not draw that inference given the lack of damage to the lock because there would have been damage required if, in fact, it had been locked from the inside.  Mr Sternberg has drawn my attention to an answer to Justice Callinan to paragraph 4 on page 337 where there is an earlier reference to that question.

CALLINAN J:   It is not alleged in the statement of claim in that way.  I think this could be quite important myself.  The particulars of negligence are at page 1.

MR SEXTON:   I know it is not in the statement of claim but apparently it is the way the trial was conducted.

CALLINAN J:   You say that, but the opening does not suggest that to me.  It is touched upon but then it is heavily qualified by the circumstances of the supervision there.  The expert report does not seem to – even whether you reject it or not, it might give you some indication of what the issues were thought to be.  It does not dwell upon this as a separate head of negligence.  I think it may be relevant for the reasons I put to Mr Graves.  I think to treat it as a discrete particular of negligence is really to set up a false issue and to cause ‑ ‑ ‑

GUMMOW J:   I think his Honour may have set it up at the top of page 10.

CALLINAN J:   Yes, and really, to cause undue weight to be placed upon the plaintiff’s own desires to be rehabilitated and to go into that unit for that purpose.

MR SEXTON:   I think the way in which that was used or referred to, your Honour, was to emphasise, in a sense, the importance of the program to rehabilitation and therefore to the plaintiff ‑ ‑ ‑

CALLINAN J:   I have no doubt ‑ ‑ ‑

MR SEXTON:   But we quite accept that the plaintiff’s own wishes cannot determine the issue.

CALLINAN J:   You accept it.  I am not too sure that it did not play, perhaps, too large a part in the trial judge’s reasons, that is all I am suggesting.

MR SEXTON:   We would say that his Honour was pointing to that in that the plaintiff was extremely anxious to go on the program because he thought that it would be beneficial to him.  That is all.

CALLINAN J:   I assume there is a provision in whatever the Sentencing Act (NSW) that places some emphasis upon rehabilitation.  Is that so?  It probably is, is it not?

MR SEXTON:   Yes, your Honour.

GLEESON CJ:   They talk about preparing people for release into the community. 

KIRBY J:   I am lost now because I took Mr Graves to concede that the trial was conducted by reference to the wrong classification and that it was not run in the Court of Appeal.  That was repeated several times, nor was it relied on in this Court.  Now, I am not so sure that it was run by the plaintiff at the trial but that the judge seemed to have thought that was a complaint and if it was, very correctly, the judge was going to knock it on the head because it is in the public interest and is part of a law if they are fit for the early release, work release, they are not disqualified by reason of that particular class of offence.

MR SEXTON:   As your Honour knows, we say that once one accepts that then it really becomes a question of the measures that can reasonably be taken.  Those are our submissions, your Honours.

GLEESON CJ:   Thank you, Mr Solicitor.  We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow morning.

AT 3.28 PM THE MATTER WAS ADJOURNED