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Supreme Court of the ACT |
Last Updated: 26 October 2009
HUMAN RIGHTS ACT
MORRO, N & AHADIZAD v AUSTRALIAN CAPITAL TERRITORY
[2009] ACTSC 118 (10 September 2009)
CATCHWORDS
HUMAN RIGHTS – unlawful detention – breach of s 18(7) of the Human Rights Act 2004 (ACT) – whether s 18(7) creates an independent statutory right to compensation – Explanatory Statement denies intent to create a new remedy for breach – s 18(7) consistent with the purpose of the Act – extrinsic material not to substitute the text of the legislation – s 18(7) confers statutory right to compensation – public law remedy be treated as co-extensive remedy to common law
TORTS – false imprisonment – unlawful arrest or detention – invalid cancellation of periodic detention
DAMAGES – general damages – compensatory – injury to liberty – humiliation and indignity and hurt to feelings – measure of damages
DAMAGES – aggravated damages – circumstances not warranting aggravated damages
DAMAGES – exemplary damages – conscious wrongdoing in contumelious disregard of one’s rights – circumstances not warranting exemplary damages
Human Rights Act 2004 (ACT), ss 18, 23, Pts 3, 4, 5, 5A
Human
Rights Amendment Act 2008 (ACT), s 7
New Zealand Bill of Rights Act
1990, s 21
Legislation Act 2001 (ACT), ss 139, 140
Crimes
(Sentence Administration) Act 2005 (ACT), ss 7, 66, 68, 73, 75, 79,
82A
Crimes (Sentencing) Act 2005 (ACT), ss 4, 10(2), 16
Periodic
Detention Act 1995 (ACT), s 26
Human Rights Bill 2003 (ACT) Explanatory Statement
Human Rights
Bill 2003 (ACT) Presentation Speech, Hansard 18 November 2003
International Covenant on Civil and Political Rights. Opened for Signature 16 December 1966, 999 UNTS 171, art 2, art 9 and art 14 (entered into force 23 March 1976) (ICCPR)
Canadian Charter of Rights and Freedoms, s 24(1)
Laws of Australia, (LCB) Vol 33.8 International
Torts
Harvey McGregor, McGregor on Damages, (16th
ed, Sweet & Maxwell, 1997)
Pollock on Torts,
(15th ed, P.A. London, 1950)
Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR
667
Project Blue Sky v Australian Broadcasting Authority (1988) 194
CLR 355
Minister for Immigration and Ethnic Affairs v Tang Jia Xin
[1994] HCA 31; (1994) 69 ALJR 8
Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380
Taunoa
v Attorney-General [2008] 1 NZLR 429
Danlea v Attorney-General
[2000] 3 NZLR 136
Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 CLR
514
Goldie v Commonwealth of Australia (No. 2) [2004] FCA
156
McDonald v Coles Myer Ltd (t/as K-Mart Chatswood (1995) Aust Torts
Reports 81-361
Spautz v Butterworth & others (1996) 41 NSWLR
1
New South Wales v Delly [2007] NSWCA 303; (2007) 177 A Crim R 538
New South
Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638
New South Wales v Bujdaso
[2005] HCA 76; (2005) 227 CLR 1
Lamb v Cologno [1987] HCA 47; (1987) 164 CLR 1
Myer Stores
Ltd v Soo [1991] 2 VR 597
Ruddock v Taylor [2005] HCA 48; (2003) 222 CLR
612
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
No. SC 916 of 2007, SC 220 of 2008, SC 535 of 2008,
Judge: Gray J
Supreme Court of the ACT
Date: 10 September 2009
IN THE SUPREME COURT OF THE ) SC 916 of 2007
) SC
220 of 2008
AUSTRALIAN CAPITAL TERRITORY ) SC 535 of 2008
BETWEEN: PAUL BRIAN MORRO,
N, and
TOORAGE ANDREW AHADIZAD
Plaintiffs
AND: AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Gray J
Date: 10 September 2009
Place: Canberra
THE COURT ORDERS THAT:
Paul Brian Morro
1. Be awarded the sum of $95,000.00 by way of general damages (which sum
includes any economic loss sustained by him). The sum of
$6,083.00 is allowed
for the legal costs incurred in respect of his application for habeas
corpus.
N
2. Be awarded the sum of $40,000.00 by way of general damages
(which sum includes any economic loss sustained by him). The sum of
$7,697.12
is allowed for the legal costs incurred in respect of his application for habeas
corpus.
Toorage Andrew Ahadizad
3. Be awarded the sum of $55,000.00 by way
of general damages (which sum includes any economic loss sustained by him). The
sum of
$4,906.00 is allowed for the legal costs incurred in respect of his
application for habeas corpus.
1. By consent, these proceedings were heard together. The proceedings involve
three separate plaintiffs, Paul Brian Morro, a plaintiff
designated as N whose
name has been suppressed from publication, and Toorage Andrew Ahadizad. Each of
the plaintiffs seeks redress
for being falsely imprisoned by the defendant, the
Australian Capital Territory (ACT). The ACT admits liability for this tort.
In
the case of N, he also claims that whilst in detention, he was assaulted by
another prisoner and the ACT admits that the assault
occurred as a consequence
of its breach of duty of care to him.
2. The fundamental issue in these
proceedings involves the proper assessment of the damages or compensation
payable to each of the
plaintiffs.
3. That issue raises the question of
whether s 18(7) of the Human Rights Act 2004 (ACT) gives an
independent statutory right to compensation or is only declaratory of a right to
compensation. If it is the
former, then there is the issue of whether the
quantum of compensation differs from whatever compensation is available under
the
general law.
4. As this matter involved the application of the Human
Rights Act 2004 (ACT), I gave the Human Rights Commissioner leave to intervene
pursuant to s 36(1) of that Act.
The Human Rights Act 2004 (ACT)
5. The Human Rights Act 2004 (ACT) (“the ACT Act”) was the first Australian jurisdiction to enact a charter of Human Rights on 2 March 2004, which came into force on 1 July 2004. It is an Act expressed to respect, protect and promote human rights. The preamble to the ACT Act provides:
6. The civil and political rights described in Part 3 of the ACT Act are not
exhaustive of the rights that individuals may have under
domestic or
international law (s 7). The civil and political rights dealt with by the ACT
Act are:
▪ recognition and equality before the law (s
8);
▪ right to life (s 9);
▪ protection from torture and
cruel, inhuman or degrading treatment etc (s 10);
▪ protection of the
family and children (s 1);
▪ privacy and reputation (s
12);
▪ freedom of movement (s 13);
▪ freedom of thought,
conscience, religion and belief (s 14);
▪ peaceful assembly and freedom
of association (s 15);
▪ freedom of expression (s
16);
▪ taking part in public life (s 17);
▪ right to liberty
and security of person (s 18);
▪ humane treatment when deprived of
liberty (s 19);
▪ children in the criminal process (s
20);
▪ fair trial (s 21);
▪ rights in criminal proceedings (s
22);
▪ compensation for wrongful conviction (s 23);
▪ right
not to be tried or punished more than once (s 24);
▪ retrospective
criminal laws (s 25);
▪ freedom from forced work (s
26);
▪ rights of minorities (s 27).
7. By Part 4 of the ACT Act, it
is applied to all Territory laws (s 29). Section 30 of the ACT Act originally
provided:
30 Interpretation of laws and human rights
(1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.
(2) Subsection (1) is subject to the Legislation Act, section 139.
Note Legislation Act, s 139 requires the interpretation that would best achieve the purpose of a law to be preferred to any other interpretation (the purposive test).
(3) In this section:
working out the meaning of a Territory law means—
(a) resolving an ambiguous or obscure provision of the law; or
(b) confirming or displacing the apparent meaning of the law; or
(c) finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the law in any other case.
8. Section 30 was substituted by the Human Rights Amendment Act 2008 (“the Amendment Act”) to provide:
30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
9. Part 4 of the ACT Act also empowers this Court to make a declaration of
incompatibility, if satisfied, that a Territory law is
not consistent with a
human right set out in the ACT Act (s 32).
10. Part 5 of the ACT Act
requires that the Attorney-General prepare a compatibility statement in respect
of the bills presented to
the Legislative Assembly by a Minister and a relevant
standing committee report to the Legislative Assembly about human rights issues
raised by bills presented to the Assembly (ss 37, 38).
11. Although the
original ACT Act did not so provide, section 7 of the Amendment Act inserting
Part 5A of the ACT Act which came into
force on 1 January 2009, provides for
public authorities (excluding the Legislative Assembly and the courts when these
bodies are
not acting in an administrative capacity) to act consistently with
the human rights set out in the ACT Act (s 40B). Proceedings
may be taken in
this Court against a public authority relying upon an individual’s rights
under the ACT Act (s 40C). Section
40C(4) authorises the grant of relief
considered appropriate, except damages.
12. The amendments made by the
Amendment Act highlights the fact that the original ACT Act is silent on the
question of remedies for
breach of its provisions.
The International Covenant on Civil and Political Rights and the ACT Act
13. The source of the human rights referred to in the ACT Act is the
International Covenant on Civil and Political Rights (“ICCPR”)
adopted by the General Assembly of the United Nations (see Schedule 1 of the ACT
Act). The Australian Capital Territory is, of course,
not a State Party to the
ICCPR, but part of the federation of States and Territories that comprises
Australia, which is a State Party.
Australia, whilst a signatory to the ICCPR,
has not enacted specific legislation by way of an Act, Charter or Bill of
Rights.
14. There are two State Parties to the ICCPR that have enacted
similar legislation with similar features to the ACT Act – Canada
and New
Zealand. Canada has provided for the enforcement of the provisions of the
Canadian Charter of Rights and Freedoms by s 24(1)
which provides:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
15. The New Zealand Bill of Rights Act 1990 does not have an enforcement provision. However, the courts in New Zealand have been prepared to infer a power to enforce its provisions. In Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667, the New Zealand Court of Appeal, Cooke P, Casey, Hardie Boys, McKay JJ, Gault J dissenting, held that the New Zealand Bill of Rights Act 1990 (“the NZ Act”) implied that effective remedies should be available for breach of the rights that are set out in the NZ Act. The right which was said to have been breached was that contained in s 21 of that Act which provided:
21 Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
16. As far as the matter before me is concerned, the right under consideration is that contained in s 18(1) of the ACT Act. The counterpart to the right to liberty is set out in s 18(2). Particular aspects of the right to liberty and security of the person are thus dealt with in the succeeding subsections to s 18. Section 18 provides:
18 Right to liberty and security of person
(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
(3) Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her.
(4) Anyone who is arrested or detained on a criminal charge—
(a) must be promptly brought before a judge or magistrate; and
(b) has the right to be tried within a reasonable time or released.
(5) Anyone who is awaiting trial must not be detained in custody as a general rule, but his or her release may be subject to guarantees to appear for trial, at any other stage of the judicial proceeding, and, if appropriate, for execution of judgment.
(6) Anyone who is deprived of liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful.
(7) Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
(8) No-one may be imprisoned only because of the inability to carry out a contractual obligation.
17. These provisions are essentially derived from art 9 of the ICCPR which provides:
Article 9
18. It should also be noted that art 2 cl 3 of the ICCPR provides:
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
19. There is no general enforcement provision in the ACT Act. Based on the reasoning in Baigent’s Case, the fact that the ACT Act contains no general provision for enforcement of the rights does not mean that such a remedy may not arise by necessary implication. However, there are a number of distinguishing factors that apply to the ACT Act that do not apply to the NZ Act. As I have earlier observed, the Australian Capital Territory is not a State Party who is signatory to the convention. The ACT Act does not “affirm” the ICCPR as the NZ Act does. The long title of the NZ Act is:
An Act—
(a) To affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
(b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights
20. The ACT Act is an Act to “respect, protect and promote human
rights”. The NZ Act, by s 3 of that Act, applies it
to the legislative,
executive and judicial branches of the government as well as to persons and
bodies performing any public function,
power or duty. The ACT Act does not have
a corresponding provision.
21. It is also significant that the
Attorney-General expressly said in the Explanatory Statement to the Human Rights
Bill 2003 (ACT)
(“the Bill”) which became the ACT Act:
The Bill does not incorporate Article 2 of the Covenant because the Bill is not intended to create a new right to a new remedy for an alleged violation of a Part 3 right.
22. It may also be noted that the Chief Minister in presenting the Bill that was to become the ACT Act said:
The covenant and related instruments, case law and materials which form part of the jurisprudence of civil and political rights, would inform the interpretation of the rights protected by the bill. And I reiterate, lest there is any confusion on the point, the bill does not invalidate other territory law, nor does it create a new cause of action.
(Hansard, 18 November 2003, p 4248)
He further said:
The bill I introduced today does not create a new right of action against a public authority on the ground that conduct is inconsistent with human rights as recommended by the consultative committee. My government considers that at this time creating a new right of action would not be appropriate. However, an action that is allegedly based on an incorrect interpretation of the law will be open to judicial review and administrative law remedies. These remedies are already available.
(Hansard, 18 November 2003, p 4249)
23. These are all matters to be considered as to whether a general implication may be drawn from the ACT Act that this Court should have jurisdiction to provide compensation for any breach of the rights respected, protected and promoted by the ACT Act.
The specific references in the Act to compensation
24. There are two provisions in the Act which refer to compensation.
25. As
set out earlier, s 18(7) of the Act provides for compensation in the case of the
infringement of the right set out in s 18(1)
that no-one may be arbitrarily
arrested or detained. Art 9 cl 5 of the ICCPR, upon which s 18(7) is
based, has also set out
above.
26. Further, s 23 of the ACT Act
provides:
23 Compensation for wrongful conviction
(1) This section applies if—
(a) anyone is convicted by a final decision of a criminal offence; and
(b) the person suffers punishment because of the conviction; and
(c) the conviction is reversed, or he or she is pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.
(2) If this section applies, the person has the right to be compensated according to law.
(3) However, subsection (2) does not apply if it is proved that the nondisclosure of the unknown fact in time is completely or partly the person’s own doing.
27. The ICCPR source of the above provision is art 14 cl 6, which states:
6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
28. Were it not for the extrinsic materials declaring an intention not to create a cause of action, the words of s 18(7) and s 23(2) of the ACT Act are apt to declare a remedy by way of compensation in the circumstance predicated in those subsections. If those sections have that effect, it is unnecessary to consider whether a more general remedy for breach of any of the rights set out in Part 3 of the ACT Act may be implied (cf Baigent’s Case).
The defendant’s submissions
29. The defendant not only submits that no general right should be implied but, in particular, the apparent meaning of s 18(2) of the ACT Act does not provide a statutory right to compensation. The defendant places reliance upon s 139 of the Legislation Act 2001 (ACT) which provides:
139 Interpretation best achieving Act’s purpose
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act’s purpose is expressly stated in the Act.
Note The Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
It is also said that s 140 of that Act, which requires that the provisions of
the Act must be read in the context of the Act as whole
should govern the proper
interpretation of s 18(7).
30. In addition, the defendant calls in aid
the observations of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v
Australian
Broadcasting Authority (1988) 194 CLR 355 at [69] –
[70]:
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [Footnotes omitted]
31. The supposition upon which the defendant seems to rely is that the
provisions of an Act are intended to give effect to harmonious
goals. That
depends, to a considerable extent, on the viewpoint that the person construing
the Act takes as to what those goals
are. It does not assist in the present
case because the objectives expressed in the long title of the ACT Act encompass
a range
of desired outcomes consistent with a provision of this
nature.
32. In construing the ACT Act the defendant’s initial premise
is that there is no general cause of action created by the ACT
Act. However,
the apparent meaning of s 18(7) (and, for that matter, s 23(2)) is to
provide for an independent cause of
action in the circumstances specified by
those sections. Those provisions appear, on their faces to provide for remedies
in the
circumstances that they predicate. It does not seem sensible to deny
that effect because there is no general enforcement provision.
33. It is also
submitted on behalf of the defendant that the structure of the ACT Act denies a
substantive application to s 18(7).
Parts 4 and 5 of the ACT Act apply the
civil and political rights to Territory laws and to the circumstance where there
is parliamentary
scrutiny of future laws. The defendant’s submission
would confine the expression of the rights set out in the ACT Act to be
measured
only in the application of those rights to existing or future territory laws.
That would give a forced and unnatural operation
to a very specific provision
that provides for compensation where a right has been infringed.
34. Such a
restriction also does not give effect to the tenor of art 9 cl 6 of the ICCPR
which is the source of the provision in s
18(7) of the ACT Act. The Article
refers to an “enforceable right to compensation”. The word
“enforceable”
is not replicated in s 18(7) of the ACT Act but
that would seem to be explicable if what s 18(7) gives is a substantive
right to compensation. In any event, art 9 cl 6, is not declaratory of a right
but is concerned with an enforceable remedy.
35. It seems to me that when a
party, not being a State Party to the ICCPR, legislates to give effect to such a
provision, it is not
merely declaratory of a right but is intended to give
effect to a substantive remedy where the right to which such a remedy is
directed
has been contravened.
36. I referred earlier to the
Attorney-General’s presentation speech and the explanatory statement.
These extrinsic materials
are adopted by the defendant as the premise upon which
the defendant’s submissions are based. However, the use of these
materials
is not to be determinative or a substitute for the text of the
legislation (Minister for Immigration and Ethnic Affairs v Tang Jia
Xin [1994] HCA 31; (1994)
69 ALJR 8 at [11]). I also have regard to the following observations made in
Harrison v Melhem (2008) 72 NSWLR 380 where Spigelman CJ said:
12 ... Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, “capable of assisting in the ascertainment of the meaning of the provisions” within s 34(1) of the Interpretation Act 1987. I only refrain from using the word “never” to allow for a truly exceptional case, which I am not at present able to envisage.
13 Of course, other statements in the course of a Second Reading Speech by a minister, bearing in mind the fact that s/he will almost always be speaking on behalf of, at least, the Lower House of Parliament by reason of the operation of our party system, will be of use on matters such as the purpose, which used to be referred to as mischief.
14 However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute.
15 The authoritative determination of the meaning of a statutory provision is an exercise of the judicial power, not of the legislative power, let alone of the executive power. In the Australian system of the separation of powers, it is the courts which determine what the legislative intention when enacting a particular provision was.
16 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. [Citations omitted]
37. In the same case Mason P also said:
168 On my understanding, the law is clear in Australia that a minister’s understanding of the effect of a statute or the state of the common law cannot give the Bill he or she is promoting an effect inconsistent with its terms as construed by the court. In Re Bolton; Ex parte Beane [(1987) [1987] HCA 12; 162 CLR 514 at 518], three justices of the High Court of Australia went further in refusing to give any weight to a minister’s unambiguous second reading speech that contradicted the text. Mason CJ, Wilson J and Dawson J stated (at 518):
The words of a Minister must not be substituted for the text of the law. ... It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
38. Whilst I accept the Chief Minister’s comments in the Explanatory
Statement and the Presentation Speech as representing
an overall view relevant
to whether a general enforcement remedy might be implied, those statements are
not consistent with at least
the apparent meaning of s 18(7) of the ACT Act
which on its face gives a statutory right to compensation.
39. Whether a more
general remedy can be implied as a consequence of giving effect to the ACT
Act’s purpose is not to the point
and not necessary for me to determine.
It is enough that amongst the general purposes of the ACT Act reflected in the
long title
is the protection of human rights. A specific provision in the ACT
Act which gives effect to the protection of a particular right
by providing for
compensation in the event of it being breached gives effect to that expressed
purpose, in my view, should be interpreted
accordingly.
40. In a similar way,
it is intrinsic to the ICCPR provision concerning arbitrary arrest and detention
that it be protected by an
enforceable right to compensation. It is for this
reason that State Parties to the ICCPR are required by art 2 to undertake to
ensure
an effective remedy.
41. The NZ Act made no provision in terms of art
9 cl 5 of the ICCPR. In the event of a breach of the right set out in the NZ
Act,
the remedy is that implied by the Court of Appeal in Baigent’s Case.
Even if no general remedy is to be implied in the ACT
Act, the specific
provision for compensation in s 18(7) of the ACT Act should be read as to give
substantive effect to the right
that it protects.
42. In my view s 18(7)
confers a substantive statutory right to compensation.
The rights to compensation
43. The fact that the legislature has provided for compensation in the specific
circumstances where the right predicated by s 18(7)
of the ACT Act against
arbitrary arrest or detention may provide a public law remedy in one sense but
it can also be treated as a
co-extensive remedy to that provided at common
law.
44. At common law, compensation is by way of an award of damages to
redress a wrong. Because of the specific provision of a right
to compensation
in the ACT Act for unlawful arrest or detention and in the absence of an express
right to compensation generally
for infringement of the other rights set out in
Part 3 of the ACT Act, I do not think that I am justified in necessarily
construing
s 18(7) of the ACT Act as merely confirming a public law species of
compensation.
45. I accept that a clear distinction has been made in New
Zealand between the public law rights that the NZ Act protects and what
have
been described as the private rights, founded in tort and contract under the
general law. In Taunoa v Attorney General [2008] 1 NZLR 429
(“Taunoa”) the Supreme Court of New Zealand generally accepted that
a different approach should be adopted in fixing
compensation for a breach of
the NZ Act in circumstances where there was already an available remedy in it
arising from the same
facts. In so doing the court preferred the approach taken
by Thomas J dissenting in Dunlea v Attorney General [2000] 3 NZLR 136 at [66]
to [72] to a tentative view to the contrary expressed by Richardson P,
Gault, Keith and Blanchard JJ at [37] to [38]
in that case. At [72] Thomas J
observed:
As recommended in Baigent’s Case the question of compensation under the Bill of Rights can be approached globally. Where the breach is both a tort and a breach of the Bill of Rights, however, compensation for the latter must include compensation for the intrinsic value to the plaintiff of a right having constitutional significance. There is no other effective method of vindicating and affirming that right.
46. The approach adopted in Taunoa by all of the judges on this aspect is
heavily influenced by the “constitutional”
nature of the rights
provided in the NZ Act. It was accepted that the declaratory nature of relief
provided for in the NZ Act may
not be sufficient to vindicate the rights
protected by that Act. Indeed, this was the very reason for the Court of Appeal
in Baignet’s
Case to imply a remedy for breach.
47. In addition the
comments of Elias CJ in Taunoa are instructive (at [108]):
The principles upon which damages for breaches of rights are to be assessed are not greatly developed in New Zealand or in comparable jurisdictions. I do not think this case calls for any elaborate discussion or prediction of developments. In particular, I do not think it appropriate to consider the usefulness of a dichotomy between ‘private law’ and ‘public law’ damages without further consideration of how such a division fits within the New Zealand legal tradition. This is not a case where the Court is concerned with injury for which the compensation available under another cause of action is adequate remedy, leaving only the need to consider any additional remedy to vindicate the independent wrong in a breach of right. It is not a case like Manga v Attorney-General or Dunlea v Attorney-General where there were parallel tortious causes of action. Where remedies for other wrongs arising out of the same facts are provided under separate claims, they may need to be taken into account in considering what is required for effective remedy of the independent Bill of Rights Act violation. I do not think it is appropriate however to take from this circumstance that the availability of damages for breach of a right is a ‘residual’ remedy. The measure of any compensatory damages may overlap in some cases but may not be the same at all in others.
48. I observe that the ACT Act does not have the same
“constitutional” significance as the NZ Act does, I consider that
the fact that express provision for compensation has been made by s 18(7) of the
ACT Act does not necessarily require a notion of
public law vindication to be
imported into the expression of a right to compensation if the existing remedy
at common law would achieve
that vindication.
False imprisonment
49. False
of wrongful imprisonment is founded upon the common law action of trespass to
the person. It is committed when the voluntary
conduct of one person directly
subjects another to total deprivation of freedom of movement without lawful
justification. Special
damage is not required (see, Laws of Australia, (LBC),
Volume 33.8 Intentional Torts).
50. The unlawful detention referred to s
18(7) of the ACT Act can be remedied by recourse to this action. In Re Bolton;
ex parte
Beane [1987] HCA 12; (1987) 162 CLR 514 Deane J said [at 528-529]:
The common law of Australia knows no letter de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody. The lawfulness of any such administrative direction, or of actions taken pursuant to it, may be challenged in the courts by the person affected: by application for a writ of habeas corpus where it is available or by reliance upon the constitutionally entrenched right to seek in this Court an injunction against an officer of the Commonwealth. It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny. They provide the general context of the present case.
cited with approval of Ruddock v Taylor [2005] HCA 48; (2003) 222 CLR 612 by McHugh J at [120]
and Kirby J at [138].
51. The scope of the damages available to a plaintiff
who has been falsely imprisoned embraces both general, aggravated and exemplary
damages. As far as damages are concerned, in Goldie v Commonwealth of Australia
(No 2) [2004] FCA 156 French J at [14] said:
Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions.
52. In McDonald v Coles Myer Ltd (t/as K-Mart Chatswood (1995) Aust Torts Reports 81-361 at [62,690] in the NSW Court of Appeal, Powell JA said:
Further, as the tor of false imprisonment is derived from trespass, a plaintiff need not prove actual damage, although any pecuniary loss which is not too remote is recoverable (see, for example, Childs v Lewis (1924) 40 TLR 870). The principal heads of damage to which, in the past, regard appears to have been paid are, the injury to liberty, the injury to the plaintiff’s feelings, i.e. the indignity, mental suffering, disgrace and humiliation, with any attended loss of social status, and, where it can be demonstrated that the imprisonment has had a deleterious effect on the plaintiff’s health, any resultant physical injury, illness or discomfort (Lowden v Goodrick (1791) PEAKE 64 Pettit v Addington ((1791) PEAKE 87).
53. In the same case Clarke JA paid special attention to the categories of available damages at [62,683] of that case. In Spautz v Butterworth & others (1996) 41 NSWLR 1 at 14 he elaborated upon and repeated those comments:
...In order to examine this question and the relationship between general compensatory damages and aggravated compensatory damages it is useful to refer to some general principles concerning the awarding of ordinary, and aggravated, compensatory damages.
McGregor on Damages, 15th ed (1988) par 1619 says:
“The details of how damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but a loss of dignity and the like, and is left much to the jury’s or judge’s discretion. The principal heads of damage would appear to be the injury to liberty, ie. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, ie. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general damages which are usually awarded in these cases: no breakdown appears in the cases.”
A difficulty in the assessment of damages arises because the distinction between ordinary and aggravated compensatory damages may become blurred in defamation and false imprisonment cases. I have previously discussed the relevant principles in the context of defamation in Australian Consolidated Press Ltd v Ettingshausen (Court of Appeal, 13 October 1993, unreported), and I returned to the topic in McDonald, which was, as I have already said, another case involving wrongful arrest and false imprisonment. As indicated in both those cases, the passage I find most useful in explaining the complexities in this area is to be found in the speech of Lord Diplock in Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1124-1126, where his Lordship said:
“The three heads under which damages are recoverable for those torts for which damages are ‘at large’ are classified under three heads: (1) compensation for harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in many torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it. This Lord Devlin calls ‘aggravated damages’. (3) Punishment of the defendant for his anti-social behaviour to the plaintiff. This Lord Devlin calls ‘exemplary damages’...”
54. On the question of aggravated damages applying to circumstances like the present case, Tobias JA in New South Wales v Delly [2007] NSWCA 303; (2007) 177 A Crim R 538 (“Delly”) cited the High Court in a joint judgment in New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at [31] for the general proposition:
Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from circumstances and manner of the wrongdoing.
Tobias JA went on to say [at 555-556]:
It was nevertheless common ground that the relevant principles to be applied in determining whether an award of aggravated damages was appropriate were articulated by Hodgson JA, with whom on the question of damages Sheller JA and Nicholas J agreed, in New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 where, after observing (at [1271]) that ordinary compensatory damages are supposed to be an amount adequate to compensate a plaintiff for all consequences of the defendant’s wrongful conduct that are not too remote, his Honour asked himself: what room is there for additional damages, which although dependant on some aggravating feature of the defendant’s wrongful conduct, are still supposed to do no more than compensate for the consequences of that conduct? His Honour responded to his own question in the following terms:
131. In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt [feelings] neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
55. In Delly Basten JA considered the aspect of exemplary damages in these terms [at 562-563]:
Circumstances of aggravation do not necessarily demonstrate conduct of a kind warranting an award of exemplary damages. Such an award is justified by reference, not to the effects on the plaintiff, but to the knowledge, intention or recklessness of the tortfeasor: see Port Stephens Shire Council v Tellamist Pty Ltd (2004) 135 LGERA 98 at [401] (Ipp JA), applied in New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [231]. An award of exemplary damages may be justified by ‘conscious wrongdoing in contumelious disregard of the plaintiff’s rights’: see Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [14]. On the other hand, actual subjective advertence to wrongdoing is not necessary, at least, it would seem, in circumstances where the conduct is objectively outrageous so that the tortfeasor can properly be described as reckless: see New South Wales v Ibbett at [35]-[49] Spigelman CJ).
One purpose of an award of exemplary damages is to deter both the wrongdoer and others who may be in his or her position from a repetition of the kind of conduct under scrutiny. In the present case, it is the State of New South Wales, rather than the individual police officers who will suffer the financial burden of an award. Such an award is, nevertheless, permissible under s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW), as this Court held in New South Wales v Bryant [2005] NSWCA 393; (2005) 64 NSWLR 281. Further, as noted in Ibbett, such an award may indirectly have a deterrent effect on the police officers concerned through the response of the Police Service. It is, therefore, important to preserve the deterrent effect of such an award. That effect will tend to be diminished if the preconditions for an award are not tightly controlled. No doubt it is important that police officers know and observe the limits of their powers: however that desirable end will not make a careless or mistaken exercise of power outrageous or high-handed.
The fact that an award of exemplary damages constitutes an expression of the Court’s disapproval of the conduct does not mean that the Court’s disapproval is a sufficient reason to make an award.
Paul Brian Morro – Background
56. On 13 July 2006 in the ACT Magistrates Court, Mr Morro entered pleas of
guilty to four charges arising out of an incident that
had occurred on
13 May 2006 when he was observed by police slumped over the steering wheel
of a vehicle stopped in the middle
of Barlow Street, Scullin, in the Australian
Capital Territory. Mr Morro refused a request for a breathalyser test, the
vehicle
was unregistered and uninsured and Mr Morro’s licence had
been cancelled. On 13 July 2006, the Chief Magistrate found
all these charges
proved and adjourned the sentencing proceedings to 15 August 2006.
57. On 15 August 2006, in respect of the charges before him, the Chief
Magistrate firstly recorded a conviction or imposed a sentence
of nine months
imprisonment for the charge of failing to submit to a breathalyser test. He
ordered that the sentence of imprisonment
be served by way of 36 periods of
periodic detention. In respect of the charge of driving an unregistered
vehicle, he recorded
a conviction and fined Mr Morro $200.00 and in respect
of the charge of driving an uninsured vehicle he also recorded a conviction
and
imposed a fine of $200.00 with court costs. On the charge of driving with a
licence that had been cancelled, the Chief Magistrate
remanded that matter to
18 May 2007 on bail of $1,000.00 with conditions as to probation
supervision as well as a condition
that he not consume alcohol.
58. Between
18 August 2006 and 10 November 2006, Mr Morro completed 12 periods of periodic
detention.
59. On 16 November 2006, Mr Morro was arrested for breach of a
bail condition that he was not to consume alcohol. He was brought
before the
Chief Magistrate who remanded him in custody to 20 November 2006. On that
date, he was brought on for sentence on
the charge of driving with a licence
that had been cancelled.
60. Noting that Mr Morro had been in custody for
four days, the Chief Magistrate apparently took no further action on the alleged
breach of bail. He did, however, proceed to sentence Mr Morro for the driving
with a licence that had been cancelled. On that charge,
he convicted Mr Morro
and imposed a sentence of six months imprisonment which he suspended forthwith
on a good behaviour order on
Mr Morro’s own recognizance of $1000.00
for two years. He also imposed a condition for supervision on probation for a
period of nine months.
61. From 24 November to 15 December 2006 Mr Morro
attended and completed a further four periods of periodic detention.
62. On
27 November 2006, the Deputy Superintendent of the Symonston Periodic Detention
Centre (“Symonston PDC”) submitted
to the Sentence Administration
Board of the ACT (“the Board”) notice of a “Breach
Inquiry” in which it was
alleged:
Paul Brian MORRO has been in custody on further charges since the weekend of the 17th of November 2006 and was bailed from court on the 24th November 2006.
63. On 19 December 2006 the Board minutes recorded the following:
The board noted that in its self the fact that Mr Morro was remanded in custody was not a breach of his periodic detention obligations. The board further noted that on 20 November 2006 Mr Morro was convicted in the ACT Magistrates Court for the offence of ACT – Drive While Licence Cancelled. The court imposed a term of imprisonment of six months and suspended that term upon Mr Morro entering into a two year recognizance.
Decision and reason for action taken
Pursuant to s 70 of the Act the imposition of the further sentence obliged the board to CANCEL Mr Morro’s periodic detention order that was made on 15 August 2006.
64. At that time, s 70 of the Crimes (Sentence Administration) Act 2005 (ACT) (“the CSA Act”) provided:
70 Cancellation of periodic detention on further conviction etc
(1) This section applies if the board decides that, since an offender was sentenced to serve periodic detention, the offender has been convicted or found guilty of –
(a) an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment; or
(b) an offence outside Australia against a law of a place outside Australia that, if it had been committed in Australia, would be punishable by imprisonment.
(2) Without limiting section 68, the board must cancel the offender’s period detention as soon as practicable under that section.
65. On 1 June 2007 by letter from the Australian Government Solicitor ACT the
Board subsequently admitted that the order that it
had made was invalid and
based on an “incorrect interpretation” of the CSA Act.
66. In the
meantime, as a consequence of the Board’s order, police took Mr Morro into
custody when he was at home on 30 December
2006.
67. Mr Morro gave evidence
before me of his feelings, the hardships he underwent in the course of his
imprisonment and the difficulties
both mental and physical that he had to
endure.
68. Generally, I accept that Mr Morro had a very unpleasant period of
72 days in prison which significantly affected him. An application
by way of
habeas corpus was made on 9 March 2007. He was released on bail on 12 March
2007.
Morro – assessment of damages
69. Mr Morro is now 58 years of
age and has an offending history that goes back to when he was before the Court
on charges of driving
with over two times prescribed concentration of alcohol at
age 21. He also has a number of other alcohol related driving offences.
In
1980 he drove a motor vehicle whilst his drivers licence was cancelled. He was
imprisoned for four months in 1983 for a breach
of recognizance apparently given
in respect of the offence of driving with a licence that had been cancelled. He
served another
period of four months imprisonment in 1988. At various times a
number of other sentences of imprisonment were imposed, but suspended
before the
order to serve imprisonment by way of periodic detention was imposed which has
given rise to the present proceedings.
70. At the time he was taken into
custody on 30 December 2006 he was conscious of the fact that he had not been
charged and convicted
of an offence committed during the period of his periodic
detention. He sought assistance from the Officer in Charge of the Symonston
Periodic Detention Centre but to no avail.
71. A week or so after his
imprisonment he telephoned the Sentencing Administration Board again but was
told to do his “time”.
Probably the colourful expletive
“stiff shit” that accompanied this advice was added to
Mr Morro’s aggravation.
72. He kept an extensive diary over the
period of his time in prison. He was transferred from the Belconnen Remand
Centre to the
Goulburn Correctional Centre on 10 January 2007. He
describes the strip searches and medical difficulties with his right foot.
He
had medical attention for stress insomnia and poor memory as well as
difficulties with renorphine that had been prescribed for
his opiate dependence.
He was threatened by inmates, justifiably feared attack from others and had
items of his property stolen on
one occasion. He lost his Centrelink payments
and had housing, telephone and financial troubles as a result of his
imprisonment.
73. The two expert reports on the effect of his imprisonment
were not challenged by the defendant.
74. Dr William Knox, a consultant
psychiatrist in his report of 3 October 2007, is to this effect:
I do not believe that any psychological or psychiatric treatment is likely to be of benefit for Mr Morro. The important consideration is resolution of any outstanding sentencing matters so that Mr Morro can put his mind at rest about the risk of any future imprisonment.
75. Professor James R P Ogloff the Director of the Centre for Behavioural Science in his report of 28 August 2008 said:
Mr Morro exhibits a particularly high degree of concern, even outrage, about his perceptions of the wrongful detention. While Mr Morro had experience of being in prison when he was younger, he found it particularly exasperating that he was being under grounds that he perceived as unlawful. Mr Morro gave examples of when he would try to explain is circumstances to prison officers who would essentially dismiss or ignore them as being the typical complaints made of prisoners alleging that they should not be in prison. In short, he believed that they thought he was lying and he found this frustrating.
Since having been released from custody and commencing the legal action, Mr Morro has seen himself as essentially battling for a just outcome. As a result of these very strong feelings of having been treated wrongfully, Mr Morro’s degree of stress and anxiety as a result of his sense of perceived unfairness and unjust treatment is significant. Despite the time that has elapsed, Mr Morro continues to ruminate on these matters and experiences a high degree of psychological distress as a result.
As noted above in his report, Mr Morro’s life essentially revolved around his flat, his pets and what I described as relatively simple life. As such, he experienced a significant difficulty with adjustment to ongoing prison life as a result of his loss of freedom. He was distressed about matters in his residence including the care of his animals. As a result of these factors, Mr Morro’s loss of freedom again caused considerable distress to him leading to an exacerbation of his psychological state.
Mr Morrow has detailed in his diary the experiences of incarceration and the concerns that he experienced during that time. As indicated in the medical notes available from Justice Health in New South Wales, from the point of admission to custody Mr Morro exhibited a high degree of symptoms of stress and depression and, as a result, was place on a mental health watch. He sought periodic medical attention during his period of incarceration, however, as diary entries show and the complaints he made to medical staff corroborate, Mr Morro felt that his medical matters were not being properly dealt with during the period of incarceration. Doubtless, some of the somatic complains he had were a manifestation of the psychological stress he was experiencing.
As a result of these matters, Mr Morro’s experiences of incarceration were particularly negative and he has been significantly affected by his wrongful arrest and detention for 73 days in custody in New South Wales.
76. The effect of these reports is to place Mr Morro in the higher category of
persons affected by their deprivation of liberty.
Although Mr Morro had
previous experience in the gaol system, the sense of wrong and injustice that he
experienced can be said to
have a similar impact on him similar to those
experiencing the system for the first time. I take this into account in his
favour.
77. The Board’s “incorrect interpretation” of the
CSA Act is a matter of concern. There appears to have been no
consideration of
the fact that the offence for which Mr Morro was sentenced on 20 December 2006
was part of the original sentencing
proceedings which had resulted in his
periodic detention. However, I do not regard the Board’s actions as
falling within the
requirements for an award of exemplary damages (see Delly and
comments of Bastian JA cited at [55] of these reasons). As to aggravated
damages, Mr Morro’s situation could seem to call for an assessment
based also upon the comments of Basten JA when he said
in that same case at 560
[105]:
The term ‘aggravated damages’ is something of a misnomer. It refers to a component of compensatory damages referrable to circumstances of aggravation: see, eg Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 655 (Gaudron and McHugh JJ). Thus false imprisonment may be accompanied by threats, with rudeness or with appreciable contempt: or it may be carried out courteously but in error. It may continue after it is challenged: or it may occur without challenge. The question is how to assess the effect of the circumstances of aggravation, once established, on the plaintiff: New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at [33] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). Damages attributable to the circumstances of aggravation are primarily awarded for injury to the plaintiff’s feelings caused by insult or humiliation.
N – Background
78. On 17 March 2006, N was sentenced in the Magistrates
court to 24 periods of periodic detention after admitting to charges of five
acts of indecency towards a fifteen year-old girl with whom he worked. The
offences occurred in a period over mid 2005. At the
time N was 32 years of
age.
79. Between 24 March and 3 June 2006, N attended the Symonston PDC on
ten occasions. During this time N was subject to name calling
and on one
occasion was hit on his temple by a rock whilst having lunch.
80. On 3 June
2006, whilst at the Symonston PDC, N was assaulted in his cell. He was knocked
from his chair, punched and kicked repeatedly
whilst on a bed by a male
detainee. As a result of the assault he was taken to Canberra Hospital. He was
kept in the hospital for
some five hours and his arm was x-rayed. There was no
fracture. N was given a leave pass for the rest of the weekend and did not
return to detention.
81. On 9 and 16 June 2006, N was excused from attending
periodic detention on medical grounds. Then on the following two weekends,
namely 23 and 30 June 2006, N did not attend periodic detention. As a result, a
breach report was filed by Mr Giucci, Deputy Superintendent,
on 1 July
2006.
82. By letter dated 7 July 2006 Ms Helen Hayunga a solicitor from Legal
Aid requested that the Board hold an inquiry pursuant to s
73 of the CSA Act
based on the fears of N for his personal safety. The Board was asked to
exercise its powers under s 75 and
direct that no action be taken on the
breaches. The letter also sought directions as to supervision to protect
N’s personal
safety.
83. On 25 July 2006, the Sentence Administration
Board resolved to direct the Chief Executive that leave be granted to the
plaintiff
for the period commencing 9 June 2006 up to and including the period
commencing 28 July 2006.
84. N was required to report to Symonston PDC on 4
August 2006.
85. On 4 August 2006, N was excused from attendance for reasons
of work. Between 11 August and 15 September 2006 N did not attend
periodic
detention resulting in a breach report on 18 September 2006. On 26 September
2006, the Board indicated their intention
to convene an inquiry into the breach
report of 18 September 2006 to be held on 10 October 2006.
86. On 3 October
2006, N received the notice of inquiry and wrote to the Sentence Administration
Board. Neither N nor his solicitor
were given the opportunity to comment on the
fresh material set out in the submissions to the Board.
87. On 9 October 2006
he telephoned the Secretary of the Board. There was no discussion about his
attendance at the inquiry the next
day and he was asked to telephone him again
on 11 October 2006. He also signed an acknowledgement of receiving the notice
of inquiry:
I would just like to say that the reasons for not attending pdc are, I am very afraid for my safety, every Friday I have had my bag packed to go, but have been uncontrollably shaking due to fear. I am also waiting to hear from my lawyer about the Supreme Court, to find out what we can do.
88. On 10 October 2006 the Board cancelled the periodic detention order under s
79 of the CSA Act required that the remainder of
N’s sentence be served by
way of fifteen weeks full-time detention.
89. On 11 October 2006, N again
telephoned the Secretary of the Board and was informed of the Board’s
decision to terminate
the order.
90. On 17 October 2006, N attempted to
surrender himself to police but eventually he was told to come back the
following day. On
18 October 2006, he again surrendered himself to Tuggeranong
Police Station. He was taken to Civic Police Station and then to the
Magistrates Court holding cells. At that time he believed that he would appear
before a magistrate and be released. It was in those
holding cells that N was
told he will be serving full-time custody and will not be appearing before a
magistrate. In this sense
N’s imprisonment was peremptory. He was then
transferred to the Belconnen Remand Centre, the Metropolitan Remand Reception
Centre in New South Wales and then to Silverwater Correctional Complex on
20 October 2006. He was placed in the special management
area at
Silverwater as he feared for his safety. On 26 October 2006, N was moved again
to Parklea Correctional Complex in NSW.
Then again on 31 October 2006, he was
moved to Kirconnell Correctional Centre in NSW.
91. As a result of the
movement between prisons, N was unable to purchase toiletries or cigarettes or
have access to the underwear
that his wife had purchased for him. N lost
fourteen kilograms in the first fourteen days of his incarceration due to fear
and stress.
He was strip-searched on each of the occasions when moved between
the institutions and before visits from his family. I am satisfied
that the
experience has clearly affected him physically and emotionally. He suffered a
number of incidents where he felt humiliated
in respect of his relationship with
his wife and daughters.
92. The journey to Silverwater was particularly
traumatic for him. It was with six other handcuffed prisoners, for around four
hours
in a pitch black compartment. There was no food or drink and at one stage
a prisoner urinated on the floor during the journey.
93. On 3 November 2006,
a writ of habeas corpus was sought on N’s behalf and on 7 November
2006, N was brought to the Supreme
Court and released on bail after 20 days
of imprisonment.
94. On 27 April 2007, the ACT Government Solicitor admitted
failure to accord with procedural fairness on behalf of their client by
not
providing N with a copy of submissions to the Board on 1 October 2006 and not
allowing N the opportunity to comment on the fresh
material set out in the
submissions to the Board dated 1 October 2006. On 15 June 2007, the ACT
Supreme Court made an order
for certiorari to quash the decision of Board on 10
October 2006. The Board took steps to re-hear the inquiry that had been quashed
and ultimately a hearing was fixed for 28 August 2007. At that hearing,
pursuant to s 75(1)(f) of the CSA Act the matter was
then referred to the
Magistrates Court. On 11 October 2007, N was re-sentenced to 208 hours of
community service, a three month
suspended sentence and a two year good
behaviour order. N completed his community service order on 17 July
2008.
95. The incident of assault at the Symonston Periodic Detention Centre
on 3 June 2006 found N’s claim for breach of a duty of
care owed by the
defendant to N. The defendant has admitted liability in respect of this breach.
In view of that admission, it seems
to me to be unnecessary to traverse the
detailed submission on the duty of care owed by prison authorities to prisoners
in their
care. It is sufficient to refer to New South Wales v Bujdaso
[2005] HCA 76; (2005) 227 CLR 1 where Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ
said (at 13-14):
It is true that a prison authority, as with any other authority, is under no greater duty than to take reasonable care. But the content of the duty in relation to a prison and its inmates is obviously different from what it is in the general law-abiding community. A prison may immediately be contrasted with, for example, a shopping centre to which people lawfully resort, and at which they generally lawfully conduct themselves (29). In a prison, the prison authority is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a great degree, often on the cards. No one except the authority can protect a target from the violence of other inmates (30). Many of the people in prisons are there precisely because they present a danger, often a physical danger, to the community. It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners. (footnotes omitted).
The court after referring to United States and English authorities concluded (at 15):
As the respondent was a known likely target of other prisoners, the appellant was under a duty to adopt measures to reduce the risk of harm to the respondent.
96. N as a convicted sex offender for an offence involving a young person required particular measures to be taken to reduce the risk of harm to him. I also accept for these purposes that the statutory duties imposed on the prison authorities inform that duty of care. Particular reference may be made to s 7 of the CSA Act which provides:
Treatment of sentenced offenders
(1) Functions under this Act in relation to a sentenced offender must be exercised, as far as practicable, as follows:
(a) to respect and protect the offender’s human rights;
(b) to ensure the offender’s decent, humane and just treatment;
(c) to preclude torture or cruel, inhuman or degrading treatment;
(d) to promote the offender’s rehabilitation and reintegration into society.
(2) Also, functions under this Act in relation to an offender serving a sentence of imprisonment (whether by full-time or periodic detention) must be exercised, as far as practicable, to ensure –
(a) the offender is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention; and
(b) the offender’s conditions in detention comply with the requirements under the Corrections Management Act 2007.
(See, too, now Chapter 2 Corrections Management Act 2007).
N – assessment of damages
97. As a result of the assault N had pain in
the front and side of his head, left arm, left ear and lower leg and suffered
from dizziness.
The hospital notes recorded left arm swelling and tender in the
lower radius. He was treated with Panadol. He had a headache and
a minor
contusion on the external left ear two days later when he saw his GP. He missed
a day’s work.
98. N’s wife gave evidence when he came home from
the hospital after the incident that he was distraught and shaking the whole
time when telling her of the event. He was unable to sleep properly. The
defendant concedes N’s fear and anxiety and further
expressly concedes
that between 3 January 2006 and 10 October 2006, N was in fear of being further
assaulted and for his personal
safety if he were to attend the Periodic
Detention Centre. This fear and anxiety was intensified during the period of
his actual
imprisonment.
99. Professor Ogloff in a comprehensive report
describes N’s symptoms as being consistent with Acute Stress Disorder. I
note
the following from his report of 27 August 2008:
Despite the current positive presentation, [N] did report that he experienced considerable difficulty from the point at which he was arrested for the acts of indecency when he was forced to quit his job in September 2005. As noted above, he experienced considerable difficulty initially upon his periodic detention when he was threatened and later assaulted in retaliation for his sexual offending. The experiences and symptoms he described at that time satisfy the criteria for an Acute Stress Disorder which is a short term, highly stressful reaction to a particular situation. The stressors identified were related to his detention at the periodic detention Centre and later while incarcerated on an ongoing basis in the New South Wales prison service. While he experienced no physical assault or threats at Silverwater, the remnant fear and anxiety that carried over from his experiences at the Periodic Detention Centre made his stay in prison over the 21 days particularly difficult.
As noted above, [N] has recovered from the vast majority of symptoms that he would have experienced related to threats, assaults and experiences in periodic and ongoing detention.
However, he continues to have some remaining symptoms that have lingered following his experiences in 2006. The symptoms as discussed include intrusive experiences and defensive avoidance. It is impossible to separate out the cause of the continuing problems since they are likely the product of an interaction between the assault while in PDC and the wrongful incarceration.
100. Professor Ogloff added:
As noted, the psychological effects of wrongful incarceration can be considered to fall into three broad domains: (1) sense of unfairness and injustice; (2) loss of freedom; and (3) experiences of incarceration, per se. In my opinion, the experiences that [N] had as a result of the wrongful arrest and detention in the New South Wales prison system were difficult. I will review his experiences and their psychological effects within each of the three factors noted. First, as explained above, [N] believed that he would have a chance to explain his situation and felt wronged by being placed into ongoing custody in the NSW prison system. Second, [N]’s loss of freedom resulted in him being removed from his home community and from his supports. He reported that since he was in a new relationship, with his now wife, he feared that he would lose her when he was incarcerated in NSW. Finally, the normal difficulties experienced as a result of wrongful arrest and detention were exacerbated in [N]’s case by his previous experience of having been assaulted and threatened while in periodic detention at the Symonston PDC. While it is impossible to differentiate the relative effects of the stressors on [N] (i.e. being threatened and assaulted in the Symonston PDC, being incarcerated in NSW on an ongoing basis, it is clear that the subsequent detention in the New South Wales prison system served to exacerbate and lead to return of [N]’s acute stress disorder experiences.
101. What is also of concern in N’s case is the way that the Board dealt
with his matter. It was not challenged that prior
to the Board meeting on 10
October 2006 which resulted in the cancellation of N’s periodic detention
he had spoken to the Board’s
secretary. He had also signed an
acknowledgement and gave an explanation for the Board to consider. The
Board’s date stamp
on both these documents is 20 October 2006. In other
words either the Board proceeded to determine N’s matter without formal
ascertainment that he had received the notice of hearing or, if the date stamp
is inaccurate, then without considering the explanation
that N had forwarded to
them.
102. Whichever way the procedure which the Board undertook in N’s
case is viewed it is clear that he could entertain a justifiable
sense of
grievance about his wrongful detention. Similarly to Mr Morro’s
situation, the Board’s actions do not call
for an award of exemplary
damages rather their actions have engendered a justifiable grievance as far as N
is concerned and he is
entitled to be compensated accordingly.
Toorage
Ahadizad – Background
103. On 21 November 2005 in the ACT Magistrates
Court Mr Ahadizad was sentenced to three months imprisonment to be served by way
of
twelve periods of periodic detention on the charge of driving while
disqualified. At the same time, he was sentenced to five months
imprisonment on
a charge of possessing a drug of dependence (methamphetamine). That sentence
was to be served by way of twenty periods
of periodic detention. Both periods
of periodic detention were to commence on the same date, 25 November
2005.
104. Mr Ahadizad attended thirteen periods of periodic detention before
he appeared again in the ACT Magistrates Court on a charge
of driving whilst
disqualified which he committed on 9 November 2005 (twelve days before his
sentence on 21 November 2005).
On 17 March 2006, he was sentenced to a
further period of periodic detention for twelve periods with eight periods being
cumulative
on “existing sentences” imposed on 21 November 2005. The
assumption must be that on this charge the magistrate sentenced
him to three
months imprisonment to be served by way of twelve periods of periodic detention.
The partial accumulation may not have
been authorised but it is fair to say that
the intent was that, in all, Mr Ahadizad complete twenty-eight periods of
periodic detention.
105. On 19 May 2006 he was sentenced to a further
twenty-six periods of periodic detention for yet again another driving whilst
disqualified
charge that had been committed on 4 January 2006 (but, before the
most proximate sentence had been passed). No period of imprisonment
seems to
have been specified to which the twenty-six period of periodic detention were to
relate but it would equate to six months
and two weeks imprisonment.
106. It
was during the sentencing hearing on 17 March 2006 that the pre-sentence report
referred to a psychiatric treatment order
applying to Mr Ahadizad.
Mr Ahadizad suffers from schizophrenia, attention deficit disorder,
substance abuse disorder and close
head injury with frontal lobe damage
resulting from a car accident.
107. By 2 July 2006, Mr Ahadizad had attended
periodic detention twenty times. Between 7 July and 2 September 2006 Mr
Ahadizad
attended a further five times. During this same period he recorded two
positive urine tests and was not permitted to attend. After
2 September
2006, Mr Ahadizad did not attend periodic detention.
108. A report concerning
Mr Ahadizad’s breaches of his periodic detention obligations was made by
the Deputy Superintendent
of the Periodic Detention Centre to the Board on 8
September 2006. This report was apparently not provided to Mr
Ahadizad.
109. Notwithstanding, the Board’s procedures which led to the
Board determining that Mr Ahadizad’s periodic detention
order be
cancelled were seriously flawed.
110. Mr Ahadizad responded to the breach
report by raising the issue of his schizophrenia, attention deficit disorder,
substance abuse
disorder and closed head injury with frontal lobe damage. He
claimed to be severely disabled and required ongoing case management
by Mental
Health Services.
111. On 10 October 2006, notwithstanding Mr Ahadizad’s
response, the Board proceeded with its inquiry into Mr Ahadizad’s
absence
and took into consideration a further breach report of the Deputy Superintendent
dated 2 October 2006 which had clearly not
been given to Mr Ahadizad. The Board
proceeded to cancel Mr Ahadizad’s periodic detention and by warrant
ordered that he be
imprisoned for 29 weeks.
112. On 14 October 2006, Mr
Ahadizad was arrested at his home and taken to the City Watch House holding
cells. On 18 October 2006,
he was taken to the Belconnen Remand Centre and on
20 October 2006 to the Metropolitan Remand and Reception Centre. He was
transferred
to Goulburn Prison on 8 November 2006 but it was not until 17
December 2006 that he was placed in minimum security at that prison.
113. On
21 December 2006, an application for habeas corpus was made on Mr
Ahadizad’s behalf and he was released on bail the
next day, 22 December
2006.
114. By letter dated 27 April 2007, the ACT Government Solicitor
admitted a failure to accord procedural fairness to Mr Ahadizad and
consent
orders quashing the Board’s decision of 10 October 2006 were made on 15
June 2007.
115. After the order was quashed, Mr Ahadizad did not subsequently
report for periodic detention and on 20 July 2007, the Deputy Superintendent
put
in a breach report for three failures to report from 22 June 2007 to 20 July
2007. Mr Ahadizad claimed that he was not notified
of his obligation to report.
On 14 August 2007, the Board held two further inquiries. One under s 66 of the
CSA Act and the other
under s 73 of the CSA Act.
116. Section 73 of the CSA
Act provides for the Board to conduct an inquiry to review an offender’s
periodic detention including
whether periodic detention is suitable for an
offender. On such an inquiry s 75(5) of the CSA Act provides:
(5) This subsection applies if the board decides that the offender is, for any reason, unlikely to be able to serve the remainder of the offender’s periodic detention period by periodic detention, having regard particularly to –
(a) the offender’s health; and
(b) any exceptional circumstances affecting the offender.
(6) To remove any doubt, if an inquiry under section 73 in relation to an offender is conducted in conjunction with another inquiry under this Act in relation to the offender, the board may exercise its powers under this division with any other powers of the board in relation to the other inquiry.
117. Section 75(1)(f) of the CSA Act provides:
(1) After conducting an inquiry under section 73 (Board inquiry – management of periodic detention) in relation to an offender, the Board may do 1 or more of the following:
...
(f) if subsection (5) applies – refer the offender to the offender’s sentencing court to be dealt with under section 82A (Re-sentencing offender etc – referral to court).
118. In Mr Ahadizad’s case the Board noted “the exceptional circumstances and health reasons” and resolved that Mr Ahadizad be referred to the sentencing court to be dealt with under s 82A of the CSA Act. Section 82A(1) and (2) of the CSA Act provides:
(1) This section applies if the board refers an offender to the sentencing court under section 75 (Board powers – management of periodic detention).
(2) The court may –
(a) if satisfied that the offender should serve the remainder of the offender’s sentence in accordance with section 79(4) (Periodic detention – effect of suspension or cancellation etc) – cancel the offender’s periodic detention; or
(b) in any other case – re-sentence the offender for the offence (the relevant offence) for which the offender was ordered to serve periodic detention.
119. Section 82A(2)(b) of the CSA Act gives the sentencing court power to
“re-sentence” the offender for which periodic
detention was ordered.
Further, section 82A(3) provides for the Crimes (Sentencing) Act 2005 (ACT) to
apply to the resentencing in the same way that it applies to the sentencing of
an offender on a conviction for that offence.
120. Section 66 of the CSA Act
provides for the Board to conduct an inquiry to decide whether an offender has
breached any of the
offender’s periodic detention obligations. The Board
had before it the earlier breach reports that were the subject of the
decision
that had been quashed and the further breach report of 20 July 2007. In view of
what the Board had resolved in the preceding
s 73 inquiry, the Board resolved to
take no further action in respect of the breach reports.
121. The
significance of the Board not taking action on the breach reports is that
Mr Ahadizad did not become liable for the
usual consequence of cancellation
of the periodic detention order which would result in Mr Ahadizad having to
serve the whole of
the remainder of his sentence (s 79(4) of the CSA Act). To
do so would not take into account the 69 days that Mr Ahadizad had served
as a
consequence of the Board’s order that had been quashed.
122. On 31
October 2007, the ACT Magistrates Court dealt with the application that had been
referred to it by the Board under s 82A
of the CSA Act. There was some
confusion in the Magistrate’s approach to this matter and in fact the
Magistrate purported
to cancel the orders for periodic detention. However, in
doing so the Magistrate allowed for the ten weeks that Mr Ahadizad had
spent in
full time custody between 14 October 2006 and 22 December 2006. That could only
be done if the Magistrate was in fact re-sentencing
Mr Ahadizad for the offences
the subject of this periodic detention order and taking into account all of the
sentencing principles
embodied in the Crimes (Sentencing) Act 2005 (ACT). In
the result Mr Ahadizad was ordered to serve 17 weeks imprisonment to commence on
the day that the Magistrate made the
order.
123. On 1 November 2007, Mr
Ahadizad filed his own Notice of Appeal. On 28 November 2007, he was
released on bail, having spent
29 days in full time detention.
124. On 6 June
2008, Mr Ahadizad’s appeal was heard in the ACT Supreme Court by Higgins
CJ. It was conceded by counsel for
the Director of Public Prosecutions that the
Magistrate was in error in taking the course that she did. Higgins CJ
re-sentenced
Mr Ahadizad to a total of 38 weeks imprisonment to commence on 24
July 2007 taking into account the time spent in custody and noting
that the time
spent in custody had already expired.
125. Mr Ahadizad’s pleadings
sought to include the 29 days served as a result of the Magistrates order on 31
October 2007 as
part of his unlawful detention. By error, the defendant’s
defence admitted this period of detention as being causally related
to the
Board’s order on 10 October 2006. On the hearing of this matter and,
ultimately, by consent, I permitted the defendant
to amend its defence and deny
the allegation.
126. The amended defence also claimed that as to the period
spent in custody Mr Ahadizad “was eventually sentenced in respect
of
the conduct that led to the detentions by the Chief Justice ... and was
sentenced to serve the time of the actual detentions and
by reason thereof if
the process followed by the Sentencing Administration Board had altered natural
justice to the plaintiff he
would have been imprisoned for the periods he was
detained in any event”.
127. Although Mr Ahadizad submits that this
latter period of detention arises out of the Board’s order of 10 October
2006, I
do not regard that as being so. It is put that there is a real issue as
to whether the periodic detention orders could have been
made in light of the
doubts about Mr Ahadizad’s suitability and issues of consent to such an
order. This, however, is a matter
for the courts not the Board. It is for the
Board to manage the orders that are made.
128. In respect of the charges
faced by Mr Ahadizad, each of the courts in respect of which he had appeared,
had determined that imprisonment
was the only appropriate penalty (Crimes
(Sentencing) Act 2005 (ACT) s 10(2)). The courts had also determined that as an
alternative
to full time custody that sentence could be served by way of
periodic detention (Periodic Detention Act 1995 (ACT)) (repealed, now
see Crimes
(Sentencing) Act 2005 (ACT) s 11).
129. The procedures available to Mr
Ahadizad under the Periodic Detention Act 1995 (ACT) (repealed) to seek relief
from the periodic
detention order remained open to him. The procedure that
permitted re-sentencing under the CSA Act was not available at the time
of the
Board’s order on 10 October 2006. It was open on a re-sentencing under
the CSA Act to have not imposed a sentence of
imprisonment or to have fully
suspended the sentence on a good behaviour order which may or may not have
included a community service
condition. The fact that in Mr Ahadizad’s
case the magistrate imposed a sentence of imprisonment, in my view, cannot be
causally
related to the Board’s order of 10 October 2006.
130. The fact
that Higgins CJ adopted a course of re-sentencing by taking into account
“time served” does not, in my view,
entitle the defendant to a
discount from the proper damages to be awarded on the basis of the
defendant’s written submission
that “the harm he suffered in gaol
was inevitable given the length of the terms he was eventually
given.”
131. I do not consider that Mr Ahadizad would necessarily have
been imprisoned had the Board accorded him procedural fairness. Under
the CSA
Act as at 10 October 2006, there was no provision for reference to a court to
enable the court to resentence Mr Ahadizad.
However, s 68(2)(a) and s
75(1)(a) of the CSA Act do make provision for the Board to take no further
action in respect of a breach
inquiry or a general management inquiry. That was
particularly important because s 26 of the Periodic Detention Act 1995 (ACT)
(before
its repeal and replacement by the CSA Act) permitted the court that made
the order for periodic detention to vary the sentence on
health or other
compassionate grounds. Mr Ahadizad’s mental illnesses that have not been
the subject of detailed reports provide
a reason why this perhaps should have
occurred in Mr Ahadizad’s case.
132. In my view, the action taken by
the Chief Justice on resentencing Mr Ahadizad does not confirm that Mr
Ahadizad would inevitably
have been imprisoned.
Mr Ahadizad –
assessment of damages
133. Mr Ahadizad’s mental health issues made him
particularly vulnerable to the effects imprisonment might have on him. His
mother also gave evidence of the after effects of full-time imprisonment had on
him. I accept what Dr Knox, his psychiatrist, in
a report of 8 June 2008
says:
MR AHADIZAD’S TIME IN PRISON
Your client told me that his experience of prison was ‘horrible ... I was thinking of my mother being alone ... I had bad depression’.
Your client told me of his tedious existence living either in his cell or in the prison exercise yard. His sleep was disturbed. He received his anti-psychotic medication, and additionally had other oral anti-psychotic medication (Seroquel) to assist his disturbed sleep.
Your client told me how he felt ‘ashamed and useless’, although he was unable to find the language to fully explain the distress of his life in prison. He did however go on to tell me that he felt like ‘a victim’, and how he had felt further persecuted by the authorities (additional to the police apprehending him for driving offences). Such persecution has been a theme of Mr Ahadizad’s since his motor vehicle accident, and while it does contain some truth is also probably in part linked to paranoid processes in his deteriorated mental health.
SUMMARY
It is my impression from the history provided by your client and mother, and from my reading of the available file, that there has been a deterioration in Mr Ahadizad’s general quality of life due to his exposure to prison. He already led a poor quality of life due to his head injury and chronic mental illness even before his time in prison. Clearly an individual with his vulnerabilities would have coped poorly with the distress of time removed from his mother and in the unfamiliar and harsh environment of a prison.
134. Professor Ogloff’s psychological assessment of 26 August 2008 reports:
The psychological effects of wrongful incarceration can be considered to fall into three broad domains: (1) sense of unfairness and injustice; (2) loss of freedom; and (3) experiences of incarceration, per se. the first pertains to the sense of unfairness and injustice in being wrongfully detained. People have a strong sense of justice and a long line of research shows that people are as concerned with procedural fairness as they are in the outcome of hearings (Tyler, 2006). That is, people can often accept the consequences of their behaviour if they believe that the system that prosecuted them is fair. Consequently, when people perceive that they have been wrongfully arrested and incarcerated, their sense of procedural fairness is detrimentally affected. Individuals with high degrees of procedural fairness are more affected by these experiences.
...
While Mr Ahadizad’s mental state may have been a protective factor for the sense of injustice and wrongfulness in his ongoing detention, his mental illness and cognitive state significantly increased the detrimental effects of both the loss of freedom he experienced and his experiences of incarceration. While Mr Ahadizad was able to cope with periodic detention, apparently without incident, he found the 69 day period of ongoing incarceration to be very difficult. In my opinion, this is largely due to his mental illness, impaired level of cognitive functioning, and the lack of certainty over his detention. He has a limited capacity for abstract reasoning. As a result, while he could understand at some level that he would return home to his mother after the weekend of period detention, the uncertainty of ongoing detention was much more difficult. He experienced a great deal of worry and fear over not returning home.
135. I also received a short supplementary report of Professor Ogloff dated 17 September 2008. It appears that Mr Ahadizad was back in custody in the Belconnen Remand Centre. I was not given any details of that event. Professor Ogloff reported:
Mr Ahadizad’s mental state has deteriorated considerably from the last time I assessed him in May 2008. His mood is lower, his agitation has increased, and he has revealed a degree of suspiciousness in his thinking that was not present when I last saw him. His presentation is both distressing and in some ways illuminating. Mr Ahadizad suffers from a substance use of dependence disorder which I believed was complicating his mental illness in the past. His fortnightly injections of Rispiridone (Rispiridol Consta), an atypical antipsychotic, have continued. At this point, though, when he has been drug-free for more than six weeks, his true mental state has been revealed. It is distressing, therefore, that his mental state has deteriorated despite the absence of substances.
As I noted previously, given Mr Ahadizad’s now chronic psychiatric illness, acquired brain injury, and the experiences he has had with drugs and with incarceration, it is impossible to sort out exactly what conditions or experiences have caused his current presentation. Nonetheless, it is clear that even though he has been drug-free for several weeks, his mental state has deteriorated. This is despite the fact that he has been medicated as he was in the community during his period on remand. Given that he has been in custody for that period of time, it is evident that incarceration does have a deleterious effect on his mental well-being. This is unsurprising and confirms what I have reported previously.
136. I consider that I can have regard to the period of wrongful imprisonment as
having a deleterious effect on Mr Ahadizad’s
mental wellbeing but I accept
that what has happened subsequently to Mr Ahadizad has contributed to his
present state. However,
that places him in the situation where considerations
related to his present mental state complicated the appropriate award of
damages.
I am not prepared to accept that his present deteriorated mental state
is attributable to his period of wrongful imprisonment whilst
accepting that the
period of wrongful imprisonment did have a deleterious effect on his mental
state as Professor Ogloff reports
in his assessment of 26 August
2008.
Aggravated or exemplary damages
137. I have in the course of these
reasons indicated why I do not regard the Board as acting in each of these cases
in a conscious
and contumelious disregard for the individual plaintiff’s
rights so as to justify an award of exemplary damages (see Lamb v
Cologno [1987] HCA 47; (1987)
164 CLR 1 at 8-10). I am also of the view that the defendant’s conduct is
not so lacking in bona fides or otherwise unjustifiable so
as to aggravate the
injury done to the plaintiff and justify an award of aggravated damages, (Coyne
v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 237-238).
138. I do, however,
take into account the fact that the Board’s conduct has had a particular
effect on each of the plaintiffs
which has exacerbated the injury to feelings of
indignity, disgrace, humiliation and mental suffering. I have regard to this in
each of the plaintiff’s cases with particular regard to Professor
Ogloff’s reports on the individual plaintiffs.
139. In each of the
plaintiffs’ cases I am satisfied that my approach to this matter gives
full effect to the statutory right
to compensation for unlawful detention that
is conferred by s 18(7) of the ACT Act.
General damages
140. In Ruddock v
Taylor [2005] HCA 48; (2003) 222 CLR 612 at [140], Kirby J referred to the approach to general
damages in respect of false imprisonment at [138]:
The principal function of the tort is to provide a remedy for ‘injury to liberty’ (156). It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se (157).
(156) Trindade and Cane, The Lawof Torts in Australia, 3rd ed (1999), p 302.
(157 Balkin and Davis, Law of Torts, 3rd ed (2004), p 62 [3.27]. Contrast the tort of negligence, where damages are awarded to compensate for loss or damage.
141. As far as the heads of damages recoverable in a claim for false imprisonment, McGregor on damages (16th ed 1997) at [1830] states:
cited by MacDonald J in Myer Stores Ltd v Soo [1991] 2 VR 597 at 633 and by Clarke JA in Spautz v Butterworth (supra) at [14G]. In Myer Stores Ltd v Soo Murphy J summarised the position at [603]:
The damages in an action for false imprisonment are generally awarded not for a pecuniary loss but for a loss of dignity, mental suffering, disgrace and humiliation. Any deleterious effect on the plaintiff’s health will also be compensated.
142. He also cited Pollock on Torts, 15th ed, p142 that “the estimate of
damages may be coloured so to speak by disapproval
of the defendant’s
conduct (and in the opinion of the court legitimately so) though it be not a
case for vindictive or exemplary
damages in the proper sense.”
143. In
Goldie v Commonwealth of Australia (No 2) [2004] FCR 156 at [14] French J
said:
False imprisonment trenches not only upon a person’s liberty but also on his dignity and reputation, and this is reflected in the calculation of damages.
J Fleming, The Law of Torts, 8th ed, LBC (1992) at [29]:
The compensatory damages are assessed by reference, inter alia, to the duration of the deprivation of liberty and to hurt or injury to the plaintiff’s feelings, that is to say the injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment – Trindade and Cane, The Law of Torts in Australia, 3rd Edition, OUP (1999) at 302.
144. In Spautz v Butterworths (supra), Clarke JA considered it permissible to compare awards in other false imprisonment cases. He said at [13D]:
It seems to me that if it is permissible to compare awards of damages in defamation cases with those in personal injury cases, equally it must be permissible to have regard to awards approved by this Court in other defamation cases or, as here, other false imprisonment cases. Two of the latter category have recently been before this court. In McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) [1995] HCA 17; [1995] Aust Torts Reports 62,682 the Court increased an award of general damages in circumstances in which the plaintiff had never been incarcerated in a prison to $25,000. In Wooley v Philips (Court of Appeal, 26 August 1996, unreported) the plaintiff complained of an assault, wrongful arrest and false imprisonment. She had not spent any time in a prison. Notwithstanding, Judge Bell awarded her $30,000 damages and this Court rejected the plaintiff’s complaint that the damages were inadequate. Obviously the circumstances in each of those cases bore little resemblance to the present one but, as it seems to me, reference to two cases in which neither plaintiff was incarcerated in a prison and yet received general damages far greater than those awarded to the appellant, supports my conclusion that the provisional award in this case bore no rational relationship to the injury (the losses may be a more sensible description) suffered by the appellant. It follows that this Court should disregard his Honour’s assessment.
145. As far as damages in that case were concerned, Clarke JA said (at 18B):
Matters such as the indignity, mental suffering, disgrace and humiliation suffered by the appellant as a result of the false imprisonment are to be included in general damages. Any conduct of the first respondent which may have had the effect of increasing the injury to the appellant’s feelings is also to be included in the general compensatory damages.
His Honour concluded at 18D:
Having regard to those factors and the fact that the appellant had no criminal record when he was unceremoniously cast into a prison in which he was to remain for fifty-six days it seems to me that an appropriate award of general damages is $75,000 (to include the sum of $200 for economic loss).
146. Each case, of course, turns on its own facts. I have regard generally to
the approach taken by Clarke JA in Spautz v Butterworth
and I individually
assess each of the claims by the plaintiffs in light of that
approach.
Miscellaneous matters
147. Our unsatisfactory aspect of this
matter is the claim that the plaintiffs make as to costs of the proceedings that
were taken
to obtain their release from gaol as a consequence of their unlawful
detention. That is not disputed by the defendant that the defendant
is liable
for such costs but the payments have not been made to the legal service
provider. Despite the suggestions that I made
that the defendant pay those
costs direct to that provider and thereby remove that aspect from the
plaintiff’s claim, that
has not been done. Accordingly, I include in my
assessment of the damages payable to each of the plaintiffs a component to cover
such costs. I do not understand that interest is to run on this amount.
Mr
Morro
148. In the case of Mr Morro, I award the sum of $95,000 by way of
general damages. I include in that sum the fact that Centrelink
payments to Mr
Morro were not made between 2 January 2007 and 11 March 2007.
149. In
addition, I allow the sum of $6,083 for the legal costs incurred in respect of
his application for habeas corpus.
N
150. In the case of N, I award the
sum of $40,000 by way of general damages (which sum includes any economic loss
sustained by N).
It also includes the sum of $3,000 that is referable to the
assault on N whilst he was undergoing periodic detention.
151. In addition, I
allow the sum of $7,697.12 for the legal costs incurred in respect of his
application for habeas corpus.
Mr Ahadizad
152. In the case of Mr
Ahadizad, I award the sum of $55,000 (which sum includes any economic loss
sustained by him).
153. In addition, I allow the sum of $4,906 for the legal
costs incurred in respect of his application for habeas corpus.
154. If
necessary, I will hear the parties on the orders to be made and as to interest
and costs.
I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 10 September 2009
Counsel for the plaintiffs: Mr F J Purnell SC with Mr D Mossop
Solicitor
for the plaintiffs: Ken Cush & Associates
Counsel for the defendant: Mr
B Meagher SC
Solicitor for the defendant: ACT Government
Solicitor
Counsel for the Human Rights Commissioner: Mr CS Ward
Dates of
hearing: 15, 16, 17, 18 September, 14 October 2008
Date of judgment: 10
September 2009
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