Tazroo v Correctional Services No. Scgrg-98-467 Judgment No. S6767

[1998] SASC 6767

OMID TAZROO V CORRECTIONAL SERVICES

Criminal
Debelle J

This is an application for an injunction.  When he made the application, the plaintiff was a prisoner on remand at the Adelaide Remand Centre awaiting sentence for offences of breaking and entering and assault.  He has now been sentenced by a magistrate to a period of imprisonment for 2 years, 9 months and 22 days for the offences with which he had been charged.  A non parole period of 12 months was ordered.  The sentences are to commence on 22 May, 1998.  The plaintiff has appealed against the sentence. 

The plaintiff's application is for an order that he not be transferred to a penal institution from the Adelaide Remand Centre.  In effect, he is seeking an injunction to require the Department of Correctional Services to detain him at the Adelaide Remand Centre for the whole of the period of his sentence. 

There are some procedural issues.  The plaintiff has called the defendant “Correctional Services”.  There is no such person.  Presumably he means the Department of Correctional Services and the matter has proceeded on that footing without any objection from the defendant.  Given the observations in R v Strickland; Ex parte Bartsch (1986) 133 LSJS 468, there is a question whether the proper defendant should have been either Mr John Paget, the Chief Executive Officer of the Department of Correctional Services, or the State of South Australia. In addition, there is an issue whether the relief which the plaintiff seeks is in the nature of a mandatory injunction and whether, in all the circumstances, a mandatory injunction could be ordered: see s.7(2) of the Crown Proceedings Act, 1992. It is unnecessary to stay with these matters as the application must, in any event, fail on the merits.

The plaintiff seeks the injunction because he fears for his life if he is transferred to Yatala Labour Prison or another prison.  He alleges that, when he was imprisoned in Yatala Labour Prison in March 1996, he was assaulted by three prison officers.  The assault, he says, stems from some correspondence he had had with another prison officer.   He says that he was told by those three prison officers who assaulted him that if he lodged a complaint against them, they would arrange for him to be stabbed by inmates and that it would be made to appear to be an accident. 

The plaintiff did in fact institute a complaint.  The matter was investigated by the police.  The police have found no satisfactory evidence and have not pursued their enquires.  According to the plaintiff, three prison officers were involved in the assault, and there was a fourth with whom he had been corresponding.  Three of those officers, including the officer with whom he had corresponded, have, at separate times, left the Department of Correctional Services and none of them have been employed at Yatala Labour Prison since 27 January 1997.  The fourth officer was not identified.  As to the plaintiff's concerns he will be killed, it should be noted that he was held in custody at Yatala Labour Prison from 11 September, 1996 to 6 December, 1996 and no attack upon him occurred during that time. 

While I can understand the plaintiff's concerns, I do not think he has demonstrated that there is any reason why he should not follow the usual course.  That course involves the following.  When a male person is sentenced he is first sent to Yatala Labour Prison for assessment.   Yatala Labour Prison is divided into separate divisions and provision can be made for arranging for a prisoner to be protected.  There is no need for me to go into the details of those steps.  They are set out in the respective affidavits which have been sworn on behalf of the Department of Correctional Services.  It is sufficient to note the following. On arrival at Yatala Labour Prison a prisoner is assessed; he undergoes an admissions interview as well as a medical interview and other interviews.  An assessment is made of his compatibility to share accommodation.  Regard is had to material gleaned in the interview with the prisoner as well as other information held in relation to the prisoner.  One particular matter which is examined is whether the prisoner requires protection.  In addition, a prisoner is invited to identify any matters of concern.  Provision can be made, as I have said, for protected prisoners. 

The Department of Correctional Services is aware of the difficulties the plaintiff experiences and has experienced in the prison system or while on remand.  He has been held at the Adelaide Remand Centre for the greater part of 1997 and for the whole of the period since 29 December, 1997.  While at the Adelaide Remand Centre he was located in units under the management of Mr S.G.  Proctor, the unit manager of the upper level of the Adelaide Remand Centre.  While at the Adelaide Remand Centre, the plaintiff was held in unit 7, a high security separation area designed to hold prisoners for a short period of time when they need to be kept separate from other prisoners.  The Adelaide Remand Centre does not have a unit reserved for the accommodation of protected prisoners, as does a number of prisons.  Mr Proctor is aware of the problems which the plaintiff has encountered whilst at the Adelaide Remand Centre.  The plaintiff has been involved in fights with other inmates, although fortunately none have involved any significant physical injury to the participants.  It is difficult to determine who provoked the fights.  Mr Proctor reports that the plaintiff is disliked by other inmates.  He has been called names.  He has been called a 'dog', an expression of hatred and contempt for protected persons which is used in the prison system.  As a result of his observations of the plaintiff and his knowledge of what has occurred while the plaintiff has been in the Adelaide Remand Centre, Mr Proctor has formed the view that the plaintiff requires to be protected.  In para.10 of his affidavit he says 'I consider it be prudent not to permit the plaintiff to mix with mainstream prisoners so as to avoid incidents'.  He considers that the plaintiff should be treated as a protected prisoner:  see para.14 in his affidavit. 

Facilities are available at Yatala, and at other prisons, for the plaintiff to be held as a protected prisoner.  At the end of the day, the position is that the plaintiff fears for his life be he held in the Adelaide Remand Centre or at Yatala Labour Prison or at any other penal institution.  The kind of steps which have been implemented at the Adelaide Remand Centre can be put in place at the Yatala Labour Prison or at any other prison to which he might be sent.  Indeed, the facilities available at prisons to provide for protected prisoners are better than can be provided at the Adelaide Remand Centre. 

I do not think that the plaintiff has shown why he should not be sent to Yatala Labour Prison for assessment and why he should not be placed in custody in one or other of the penal institutions.  However, as I have said, I understand the plaintiff's concerns.  Indeed, the concerns expressed by the plaintiff are supported by the observations made by Mr Proctor.  Mr Proctor's observations emphasise the need for a careful assessment of the plaintiff to be made when he is transferred to Yatala Labour Prison for assessment.  It appears that it is highly desirable for the plaintiff to be treated as a protected prisoner.  The decision whether he will be so treated is of course a matter to be decided by the appropriate officers at the Yatala Labour Prison.  However, it is obvious that a good deal of weight should be given to the views of Mr Proctor, an experienced prison officer.  I ask that the Department of Correctional Services has regard to them, and I note the undertaking of Mr Parker, who appears for the Department, to draw these comments to the Department's attention. 

These remarks will be available shortly for delivery to the Department, but I ask that Mr Parker telephone immediately upon the adjournment to advise these views. 

The circumstances in which this court will interfere with a decision of the Department of Correctional Services concerning the custody of a prisoner, have been examined in a number of decisions:  see Bromley v Dawes (1983) 34 SASR 73, Sandery v South Australia (1987) 48 SASR 500, 513, Fricker v Dawes (1992) 165 LSJS 464, 472, R v Bromley (1994) 178 LSJS 1 and McEvoy v Lobban [1990] 2 Qd R 235. It is unnecessary in the circumstances to review those decisions in detail. It is apparent there must be sound reasons for interfering with the management of prisoners by those in the Department of Correctional Services to whom Parliament has entrusted the responsibility of securing them.

Further, the effect of the plaintiff's application is to prevent any assessment being made at Yatala Labour Prison and I do not think it appropriate to make such an order. 

In all the circumstances the plaintiff's application is dismissed. 

The plaintiff has instituted a like application for an injunction in similar terms in action No.424 of 1997.  That application has been adjourned from time to time.  Both parties have agreed that I should also deal with that application.  The issues are the same.  For like reasons I dismiss the application which is dated 18 March 1997, as well as the application dated 20 March 1998.  I note that in that action there is an application dated 28 July 1997 in which the plaintiff seeks orders for compensation for injuries received in assaults.  I have not in any respect dealt with that application.  If the plaintiff wishes to pursue it, he must arrange for it to be listed and proper notice given to the department. 

The effect of all of that is, Mr Tazroo, is that you will have to go to Yatala Labour Prison to serve your sentence in the ordinary way, or to such other prison as is decided after you have been through the process of assessment at the Yatala Labour Prison.  Do you understand?

PRISONER:  Yes.