DE v State of New South Wales

1. [1]

   In June 2016, DE, then aged 17 and with a prior criminal record, was charged with a number of further alleged offences including offences of violence. The Children's Court refused his bail application, with the result that he was lawfully held on remand at Cobham Juvenile Justice Detention Centre: s 9 of the Children (Detention Centres) Act 1987 (NSW). On the evening of Saturday 25 June 2016, while held at the Centre in the Mandela Unit, DE was involved in further violence which resulted in him being kept segregated from other detainees for some weeks. That violence also resulted in him later entering pleas and being sentenced for various offences committed in detention.

2. [2]

   What DE did on 25 June was captured on CCTV footage. DE attacked and assaulted one detainee, then joined in a brawl in which other detainees were attacking another detainee, who officers on duty had to protect while they restored order in the Mandela Unit. This footage shed light on the nature of the safety risks DE posed, which had to be managed while he remained on remand.

3. [3]

   DE brought these proceedings in 2022 claiming that he had been wrongfully imprisoned after the brawl when he was separated or segregated from other detainees until his segregation ended on 18 July 2016. Further, DE claimed that he had been assaulted when handcuffed and ankle cuffed during this time.

4. [4]

   Not all of DE’s claims were finally pressed and he did not give or call evidence from others, largely relying on evidence led by the State to establish claims he did press.

5. [5]

   DE’s case was that he did not pose any ongoing risk to safety which lawfully permitted his segregation after 25 June, or his hand or ankle cuffing. It depends on the State’s alleged repeated failures to comply with requirements of the Detention Centres Act and Children (Detention Centres) Regulation 2015 (NSW), which he claims entitle him not only to damages for wrongful imprisonment and assault, but also exemplary damages and declaratory relief.

6. [6]

   DE’s claims were resisted by the State, which called evidence from officers who worked at Cobham and were involved in the decisions made about his separation, segregation and handcuffing in 2016, there being no evidence that he was ever ankle cuffed.

7. [7]

   The officers’ evidence and contemporaneous records revealed that those who made the decisions about DE in 2016 had taken an entirely different view about the safety risks he posed than that which he pressed in these proceedings. Those decision-makers were responsible not only for the conduct of Cobham, but also for ensuring the safety of its detainees and those who worked at or visited the Centre.

8. [8]

   The decision-makers’ approach was reflected in DE’s risk classification. DE was initially assessed in 2016 to be A2, presenting a medium to high risk to security, safety and good order. However, after the brawl, he was reclassified to the highest risk category, A1: Detention Centres Act, s 16 and Detention Centres Regulation, r 7. The A1 classification identified DE as presenting a high risk to security, safety and good order.

9. [9]

   There was no issue that when the brawl was brought under control on 25 June, the entire Mandela Unit was locked down, with all detainees being placed into their rooms some time before the ordinary nightly Centre-wide lockdown, in order to restore order. DE and another detainee involved in the brawl were transferred that night to the Jamison Unit.

10. [10]

    DE finally made no complaint about those aspects of the response to the safety risks which had materialised on 25 June. They were authorised by Mr Rawlings, the Shift Supervisor, and Ms Scott, the Duty Manager, who then had operational control of the Centre. But what remained in issue was who made other decisions about DE’s ongoing treatment, which he did challenge and claimed had resulted in his wrongful imprisonment and assault.

11. [11]

    In the Jamison Unit, DE was kept segregated in his room until the risks he posed were assessed at a meeting called for the following Monday morning by a team of staff led by Mr Vita, the Centre Manager. A behaviour management plan known as a DRMP was developed for DE at the 27 June meeting. It provided for his further segregation in the Taralga Unit, where others whose behaviour had resulted in them being placed on such plans were ordinarily detained at Cobham.

12. [12]

    This plan contemplated both DE’s segregation and handcuffing when outside his room until 12 July, subject to a review at the next regular DRMP meeting on 5 July. DE challenged not only the 27 June decision, but all those which resulted in his ongoing segregation from 26 June until 18 July.

13. [13]

    It was on 5 July that the length and conditions of DE’s segregation began to be cautiously relaxed, while further risk assessments were pursued. On DE’s case, this approach to risk assessment was neither required nor lawful, because he had posed no heightened risk after 25 June.

14. [14]

    While DE disputed this and the evidence was unclear, for reasons which I will explain, I have concluded that it was Mr Vita who made all of the challenged decisions. As well as the decision on 18 July to bring DE’s segregation to an end.

15. [15]

    Whether the requirements of the Detention Centres Act had all been complied with, given the delegations which had been made under s 39A of that Act in 2016 (now s 101), was in issue. As was his claim for damages. DE’s case being that the statutory requirements had not been complied with as they had to be, with the resulting invalidity of the challenged decisions, as well as his wrongful imprisonment and assault, when he was handcuffed and also ankle cuffed.

16. [16]

    The State’s case was that DE was never ankle cuffed, always lawfully detained and never assaulted. The requirements of the Detention Centres Act having been complied with and even if any requirement had been breached, the challenged decisions not being invalid. With the result that DE was not entitled to the claimed damages, given that he had not been wrongfully imprisoned and that such damages were not contemplated by the Detention Centres Act.

17. [17]

    Further, that even if wrongful imprisonment was established for any period, DE was not entitled to anything more than nominal damages, given that he would have been kept in lawful detention anyway, even if he had not been segregated as he was. That being the result of the orders of the Children’s Court which had refused him bail.

18. [18]

    The State also challenged the utility of the declaratory relief DE pursued.

19. [19]

    What is disputed has to be resolved in light of there being no issue that, as part of the normal operation of Cobham, detainees were all kept in their rooms apart from other detainees at various times, over the course of every day, including overnight. DE finally did not claim that he was wrongfully imprisoned at such times.

20. [20]

    The Detention Centres Act also expressly permitted detainees to be kept either in confinement, separation or segregation in specified circumstances. Both the Act and the Regulations also provided for the use of force at centres, including by use of hand and ankle cuffs.

21. [21]

    Whether a detainee could ever be unlawfully imprisoned while held on remand as DE was, even when in segregation, was thus in issue.

22. [22]

    It should be noted that in Flynn v The King (1949) 79 CLR 1; [1949] HCA 38, in refusing an application for special leave to appeal from an order refusing a writ of habeas corpus, by an offender who had been sentenced to life imprisonment and claimed his custody had become unlawful, Dixon J referred to Horwitz v Connor (1908) 6 CLR 38; [1908] HCA 33. In relation to regulations made under the Prisons Act 1903-1918 (WA) it was observed at p 7-8, that:

23. [23]

    For reasons explained in Clark v Commissioner for Corrective Services [2016] NSWCA 186 at [5]-[14], however, it is now settled that under modern statutory regimes in this State, the Court can exercise a measure of control over conditions of imprisonment, although there are limits to its powers. In the case of allegedly invalid or unlawful imprisonment, prisoners are thus able to seek relief by way of habeas corpus.

24. [24]

    As explained in Clark at [10], this approach reflects that:

25. [25]

    Although ordinarily, such legislation should be interpreted so as “to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts”: at [84]. Further, “statutes governing discipline and control of prisoners in gaol should not be construed as if they were intended to confer fixed legal rights upon prisoners”: at [85].

26. [26]

    If the imposed conditions of imprisonment lead to injury, a prisoner can also sue in negligence for breach of the duty of care he or she is owed by the custodian. If the conditions of detention interfere unreasonably with the prisoner’s ability to obtain access to the courts or to conduct litigation, relief is available from a trial judge. But DE did not pursue such claims.

27. [27]

    It is also conceivable that a tort of breach of a statutory duty owed to a prisoner, of the kind explained in Vickery v The Owners – Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284, might possibly be pursued. But that was also not what DE pursued.

28. [28]

    DE rather now claims that the conditions of his detention in 2016, unchallenged at the time as involving a breach of statutory duty, or even now of the duty of care he was then owed, resulted in his wrongful imprisonment, assault and battery. DE said this entitles him to more than nominal damages, including exemplary damages and declaratory relief, which is available notwithstanding his acceptance that at all relevant times he was lawfully detained.

29. [29]

    Whether such claims can be pursued in the event of a breach of a provision of the Detention Centres Act, of the kind which DE pursues, is in issue. This raises both questions of statutory construction and the interaction between that legislative scheme and the Work Health and Safety Act 2011 (NSW), given the obligations which it imposed on those who made the challenged decisions, which the parties also addressed. DE accepting that the two statutory schemes had to operate harmoniously.

Conclusions

1. [30]

   It must be accepted that reasonable people could not want a young person to be isolated in their room in a detention centre for a moment longer than necessary, despite the obligations to ensure personal safety imposed by s 19 of the Detention Centres Act and the duties imposed in relation to safety by the Work Health and Safety Act.

2. [31]

   Despite my acceptance of this, for the reasons which follow, I have concluded that DE is not entitled to the relief he pursues, despite not having been able to entirely accept the case which the State pressed. Being satisfied that it must be found that:

   1. (1)

      The evidence does not establish that DE was ever ankle cuffed;

   2. (2)

      It was Mr Vita, Cobham’s Centre Manager, who made all of the challenged decisions which resulted in DE’s ongoing segregation from 26 June to 18 July 2016, all the while being held in lawful detention;

   3. (3)

      When he made each of his decisions Mr Vita:

   4. (4)

      Despite the established breaches of s 19(1)(b), none of Mr Vita’s decisions to segregate DE were invalid;

   5. (5)

      Even if I am wrong in these conclusions, with the result that one or more of the challenged decisions were invalid, DE is not entitled to damages for wrongful imprisonment, given that:

   6. (6)

      Even if DE was entitled to such damages, he could only be awarded damages of a nominal kind, as conceded by the State;

   7. (7)

      DE has not established any basis for an award of exemplary damages;

   8. (8)

      DE was not assaulted when he was handcuffed; and

   9. (9)

      Even if I am wrong in this conclusion, he would only be entitled to the limited damages conceded by the State.

Issues

1. [32]

   The parties initially did not agree on what, precisely, was in issue between them. They provided competing lists of issues, some of which fell away when the case was opened. Others were later not pressed and, after the evidence was received, a list of issues marked MFI 12 was produced. But it was also not entirely agreed.

2. [33]

   The issues DE addressed in final written submissions were:

3. [34]

   What was finally in dispute thus concerned certain facts; aspects of the applicable law, including the proper construction of the Detention Centres Act and its interaction with the Work Health and Safety Act; how they had to be applied when the challenged decisions were made in 2016; and the consequences of those findings, including for damages.

4. [35]

   The cases advanced addressed who made various decisions, what they were, as well as whether, when and by whom segregation decisions were approved. The cases also addressed:

   1. (1)

      Whether various claimed events occurred, including DE being ankle cuffed;

   2. (2)

      The nature of the risks which DE posed at various times;

   3. (3)

      Whether it is DE or the State who bore the burden of proof in relation to various matters;

   4. (4)

      Whether DE was ever wrongfully imprisoned, having the “residual liberty” he claimed while ever lawfully detained at Cobham;

   5. (5)

      The proper construction of provisions of the Detention Centres Act;

   6. (6)

      Whether ss 16 or 19 of that Act were complied with by the State;

   7. (7)

      Whether DE’s hand or ankle cuffing involved a breach of r 65 of the Children (Detention Centre) Regulation 2015 (NSW);

   8. (8)

      The consequence of any breach of the Act for the validity of the challenged decisions, it being accepted that if they were not invalid, wrongful imprisonment could not be established;

   9. (9)

      If the Detention Centres Act or Regulations were breached, whether DE is entitled to damages; and

   10. (10)

       The utility of any declaratory order made so long after the relevant events.

Agreed facts

1. [36]

   The parties agreed certain facts, which are annexed to this judgment.

The evidence and its assessment

1. [37]

   DE’s case challenged decisions made over 9 years ago, of which the State’s witnesses had limited recollection. They all properly explained those limits in their written and oral evidence, as well as how they had used contemporaneous records to explain what they believed had occurred and what they did at the time as a result.

2. [38]

   DE could have shed light on what he did on 25 June, as well as what happened to him subsequently, which would have been relevant to what was in issue. But he finally neither gave evidence himself nor called evidence from anyone else. He relied instead on the documents and cross-examination of the State’s witnesses to establish what happened, his claimed wrongful imprisonment and repeated assault, whenever he was handcuffed.

3. [39]

   There is no issue that DE’s decision not to give evidence, having made a statement, must lead to the inference being drawn that his evidence would not have assisted his case: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. A similar inference must be drawn against the State, given that it did not lead expected evidence, such as the register of handcuffing maintained at Cobham to which various witnesses referred. This register was called for but not produced.

4. [40]

   The operation of the Jones v Dunkel principle was explained in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75]-[96]. The three relevant considerations are: that the missing witness would be expected to be called by one party, rather than the other; that this evidence would elucidate a particular matter; and that the absence is unexplained.

5. [41]

   If those conditions are satisfied, then as discussed at [79], the inference may be drawn that the evidence would not have helped the party’s case. That inference may then be used in two ways. Firstly, in deciding whether to accept any particular evidence given, either for or against that party, which relates to a matter about which the person not called as a witness could have spoken. Secondly, in deciding whether or not to draw inferences of fact, which are open in relation to matters about which that person could have spoken.

6. [42]

   The records in evidence include the CCTV footage; incident reports created in 2016; CIMS records of segregation, separation and other decisions; the results of DRMP processes; various policy documents; the document which evidenced that DE later admitted his misbehaviour on 25 June, which resulted in him being dealt with criminally, rather than his misconduct having been dealt with internally under the Detention Centres Act.

7. [43]

   The evidence established that the policies in operation in 2016 were not all strictly adhered to when decisions were made about DE. It was properly not suggested that this established DE’s wrongful imprisonment, with the Detention Centres Act not requiring their adoption. While such policies were no doubt intended to improve decision-making and result in a consistent approach, not adhering to a particular aspect of them, when a decision was made about a particular detainee, could not of itself establish a breach of the requirements of s 19.

8. [44]

   The evidence the State led on which DE also relied to advance aspects of his case, has to be assessed in the usual way. That is, with regard being paid to matters such as:

   1. (1)

      The fallibility of human memory which increases with the passage of time: Watson v Foxman (1995) 49 NSWLR 315 at 318-319 and Turner v Richards [2025] NSWCA 83 at [58];

   2. (2)

      A court not being bound to accept even uncontradicted evidence, including for reasons such as its inherent implausibility, its objective likelihood, or the required state of actual persuasion not being arrived at: GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [59];

   3. (3)

      The seriousness of the allegation, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding being relevant, because “reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman at 319;

   4. (4)

      Contemporaneous documents thus generally furnishing the most reliable source of evidence as to what occurred or, at the very least, providing a generally reliable reference point from which to assess the reliability of witness’ testimony: ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [25]; (2021) 388 ALR 128;

   5. (5)

      Oral testimony may still be of value and importance, given the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness. This is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth: ET-China.com International Holdings Ltd at [27] referring to Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22]; and

   6. (6)

      Documents and events also must be understood in context, evidence of which will often be furnished in oral evidence. This is otherwise not necessarily apparent to a court many years later when hearing the case: ET-China.com International Holdings Ltd at [29].

9. [45]

   It was the cross-examination of the State’s witnesses which established the context in which the challenged decisions were made; shed light on what the records did and did not show; as well as on the shortcomings of the CIMS system and record keeping generally at Cobham in 2016.

10. [46]

    The records did not accurately capture when and by whom particular decisions were made, or the times when they were approved. This resulted in the parties joining issue about who made the challenged decisions and whether the statutory requirements had been complied with. This is not only because of the time limit imposed by s 19(1)(b), but because of delegations made under s 39A, which impacted the approval of segregation decisions.

Onus

1. [47]

   The lawfulness of DE’s detention is not in issue. It is rather the conditions under which he was detained for some weeks in 2016, on which he relied to establish breaches of relevant provisions of the Detention Centres Act, to establish the claimed wrongful imprisonment.

2. [48]

   There was no issue that the onus fell on the State to prove the lawfulness of handcuffing: Owlstara v State of New South Wales [2020] NSWCA 217; (2020) 285 A Crim R 53, at [67].

3. [49]

   When a claim of false imprisonment is pursued, the onus of proof:

   1. (1)

      In relation to the fact of imprisonment falls on the plaintiff: Cubillo v Commonwealth of Australia (2001) 112 FCR 455; [2001] FCA 1213 at [262].

   2. (2)

      In relation to the lawfulness of the imprisonment falls on the defendant: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [97] and Cubillo at [1150].

4. [50]

   It may be accepted that those who made and approved the challenged decisions believed they acted lawfully. But it is also settled that belief as to lawfulness is irrelevant: Watson v Marshall & Cade (1971) 124 CLR 621 at 630. Although that may be relevant to damages.

5. [51]

   In Ruddock, where the lawfulness of detention depended on an officer reasonably suspecting that a person was an unlawful non-citizen, the onus of establishing that the detention was made with lawful authority was found to fall on the State: at [97]. But in this case, there is no issue about the lawfulness of DE’s detention.

6. [52]

   It is the claimed breaches of s 19 of the Detention Centres Act, not the lawfulness of DE’s detention on remand, on which he relied to establish both his wrongful imprisonment and resulting entitlement to damages. They both turn on the proper construction of that Act, as well as on disputed facts, with the Act making no express provision for damages for any breach of s 19.

7. [53]

   DE relied on what was discussed in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223 at [53]-[54], to submit that given the nature of his claim there was an onus on the State, which it had not met, to establish that s 19 was not breached.

8. [54]

   That was disputed.

9. [55]

   McHugh was concerned with orders in the nature of habeas corpus, where the operation of the writ was explained as being intended to be direct and speedy, commencing from the simple expression of right and of freedom from unlawful Executive detention. The task of the Executive in such a case being a simple one — to prove the lawfulness of detention. The importance of the issue of personal liberty requiring proof to be clear and cogent, there being “no room for any presumptions in favour of the Executive”: at [53].

10. [56]

    But DE did not pursue habeas corpus.

11. [57]

    DE rather claimed that despite his lawful detention, the approach taken in McHugh had to be applied, the claim he pursued being that his imprisonment had become unlawful because he was kept in isolation. The tort he claimed the State had committed, protecting as it does the liberty of the subject.

12. [58]

    As a result, while the onus on a judicial review application would fall on him to prove the breaches of the Act his case depended on, because his claim was that they had resulted in his wrongful imprisonment, the onus fell on the State. The State disputed this, arguing there was no issue that DE’s detention was lawful and that his challenge to the administrative acts of those employed at Cobham, ordinarily required him on judicial review to prove conduct involving jurisdictional error.

13. [59]

    It seems to me that despite DE’s segregation being claimed to amount to wrongful imprisonment, the onus of establishing that it was unlawful because the requirements of s 19 of the Detention Centres Act were not all complied with, must fall on him.

14. [60]

    DE’s claims depend not only on who made the challenged decisions, but also on the existence of required beliefs held on reasonable grounds and whether required approvals of the decisions were obtained. What is in issue turns on the proper construction of s 19, including whether, if breach is established, the challenged decisions were as a result invalid, thereby entitling him to damages.

15. [61]

    Given the nature of DE’s challenge to the decisions made about the conditions of his detention in 2016, the onus must fall on him to establish his claims. As it would have, had he then sought judicial review of those decisions: Minister for Immigration and Border Protection v SZMTA (2019) 266 CLR 273; [2019] HCA 3 at [41], referring to Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616; [2011] HCA 1.

16. [62]

    It seems to me that this result is not altered by DE’s challenge to the conditions of his detention only years later, when he seeks to pursue considerable damages. That claim also turning as it does on the proper construction of the legislative scheme, as well as on its interaction with the Work Health and Safety Act, which also had to be complied with in 2016.

17. [63]

    That wrongful imprisonment is now claimed to be the result of the alleged breaches of the statutory scheme does not appear to me to warrant any alteration in the onus, which I consider would ordinarily fall on DE, to prove the legislative breaches on which his challenges to the disputed decisions depend.

18. [64]

    Even if I am wrong in that view, despite the difficulties which the assessment of the evidence presented, given that none of the witnesses any longer had a clear recollection of all of the relevant events, and that the contemporaneous records did not accurately reflect them all, I am satisfied that:

    1. (1)

       DE was always lawfully detained; and

    2. (2)

       the evidence established that the only breaches of s 19 in 2016 were the result of a failure to obtain the approval required of some of the challenged segregation decisions, within the time specified in s 19(1)(b).

19. [65]

    I have also concluded that despite these breaches, none of the challenged decisions were invalid, with the result that DE is not entitled to the damages he pursues.

What decisions were made about DE at Cobham in 2016?

1. [66]

   There was considerable dispute about who made the challenged decisions which resulted in DE’s ongoing segregation.

2. [67]

   In summary, despite what contemporaneous CIMS records contain and the limited recollections which those who gave evidence had, I find that from 25 June 2016 DE was kept in his room separated or segregated at times he otherwise would not have been locked down in his room as part of Cobham’s normal operations, as the result of the following decisions:

   1. (1)

      On 25 June:

   2. (2)

      On 26 June, the decision of that day’s Duty Manager, Ms Howell, not to disturb the segregation Mr Vita had decided on, she recording her approval of the segregation in the CIMS record she created that day;

   3. (3)

      Mr Vita’s decision at the 27 June DRMP meeting to keep DE segregated from other detainees from 11 am that day until 12 July, subject to review at the 5 July DRMP meeting, under the arrangements captured in the DRMP then adopted;

   4. (4)

      Mr Vita’s decision at the 5 July DRMP meeting to reduce the periods of DE’s segregation during the day and relax other arrangements on terms recorded in that day’s DRMP record, until further consideration on 12 July; and

   5. (5)

      Mr Vita’s decision at the 12 July DRMP meeting to adopt a new DRMP, which further reduced the periods of DE’s segregation during the day and further relaxed the arrangements imposed, on terms also reflected in that day’s DRMP and later CIMS records.

3. [68]

   The reasons for these findings follow.

4. [69]

   There were other decisions made about DE during his segregation by various staff which Mr Vita took into account as he continued making the challenged decisions. This included in relation to the use of handcuffs which the DRMP arrangements variously permitted and that his attendance at school would not be permitted, determined by the School Principal.

5. [70]

   Not all of these decisions were attacked as involving breaches of the Detention Centres Act or Regulations. I will deal separately with the decisions about handcuffing which were attacked.

What is wrongful imprisonment?

1. [71]

   To resolve what is in issue about the claimed wrongful imprisonment which resulted from the challenged decisions, what wrongful imprisonment is, must be appreciated.

2. [72]

   Such an imprisonment amounts to an intentional tort or civil wrong, involving the physical restraint of a person’s movement, without lawful justification. These elements require “proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment”. Further, “upon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification”: Darcy v State of New South Wales [2011] NSWCA 413 at [143].

3. [73]

   Wrongful imprisonment is thus a form of trespass to the person, committed when one person subjects another to total deprivation of freedom of movement without lawful justification or consent. It is for the defendant to prove there was lawful justification or consent: CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 573; [2015] HCA 1.

4. [74]

   Through that tort, the “right to personal liberty” is protected by the common law, “not from all restraints, but from those restraints for which ‘lawful authority’ cannot be shown”: Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 at [24]. A restrained person also being “entitled to expect that if, when, and for so long as, detention occurs in fact it will occur only in accordance with law”: at [25].

5. [75]

   The lawfulness of detention can be the result of a legislative scheme and may also depend upon compliance with the terms of a Court’s order: New South Wales v TD [2013] NSWCA 32 at [54].

6. [76]

   There was thus no issue that being held on remand as DE was did not involve wrongful imprisonment, and that in his case, the lawfulness of his detention was proven by the orders which had been made by the Children’s Court refusing his bail application. As a result, throughout his claimed wrongful imprisonment, DE was always lawfully held in detention in accordance with s 15 of the Detention Centres Act, including when all of the challenged segregation decisions were made.

7. [77]

   Still, on DE’s approach, the State’s breaches of that Act, which resulted in the segregation he challenges as having been unlawful, also resulted in his wrongful imprisonment.

8. [78]

   A claim for wrongful imprisonment must be approached in the context that lawful, involuntary detention of a citizen may be penal or punitive in character, existing as an incident of judicial power: Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; [2004] HCA 36 at [20].

9. [79]

   Lawful detention will not, however, necessarily be the result of the exercise of a judicial or punitive power. For example, when a non-citizen is detained pending a decision about whether to grant an entry permit or to remove them from the country, which is an incident of executive power pursuant to applicable statutory provisions and not involving a punitive purpose: Behrooz at [20]-[22].

10. [80]

    It follows that detention which results from a Court’s refusal of a bail application made under the Bail Act 2013 (NSW) is lawful, that being the result of the exercise of judicial power and not punitive. Such an order is protective of the community, in a similar way to extended detention ordered after a convicted offender’s completion of a sentence, following orders made by this Court under the Crimes (High Risk Offenders) Act 2006 (NSW).

The parties’ cases

1. [81]

   DE’s claim was pressed on the basis that confining children in their sleeping quarters for long hours in a detention centre was effectively to confine them in isolation. His case was that this must be characterised as an extraordinary measure which should only be implemented in rare or exceptional circumstances, relying on observations of Tottle J in VYZ v Chief Executive Officer of the Department of Justice [2022] WASC 274 at [71].

2. [82]

   In VYZ, his Honour considered the lawfulness of a detainee being confined to his sleeping quarters on particular days and declared that on the proper construction of the Young Offenders Act 1994 (WA), the confinement in question had been unlawful.

3. [83]

   DE contended that a similar conclusion would be arrived at here. Although it should not be overlooked that the suggested constraint, the existence of rare and exceptional circumstances, is not one imposed by the Detention Centres Act. The power to segregate it gives having to be exercised in accordance with its express terms, bearing in mind its objects and, as I will explain, the duties imposed by the Work Health and Safety Act.

4. [84]

   Even though DE was always lawfully kept in detention, his case was still that he continued to have a right to “residual liberty”. That is, a right not to be kept in a “prison within a prison”, and that he only be separated or segregated from other detainees if all of the requirements of ss 16 and 19 of the Detention Centres Act were complied with.

5. [85]

   DE claimed that they were not strictly complied with in 2016, rendering his imprisonment at the challenged times unlawful and thus resulting in his entitlement to considerable damages for his wrongful imprisonment.

6. [86]

   The State disputed this. Its case was that the detention in which DE was then lawfully held, following the Children’s Court order, was a complete answer to his wrongful imprisonment claim. DE always having been lawfully held in custody at Cobham, entirely deprived of his liberty.

7. [87]

   On the proper construction of the Detention Centres Act, it would be accepted that in DE’s case the powers granted by ss 16 and 19 were exercised to manage the risks he posed to the safety of others in the Centre, as well as the risks others posed to him, and in order to meet obligations imposed by the Work Health and Safety Act. He, as a result, did not have the right to residual liberty or damages which he claimed, even if it was concluded that not all of the requirements of s 19 were strictly complied with.

8. [88]

   That being because none of the challenged decisions were invalid and the Detention Centres Act not envisaging that a breach of the kind on which DE relied would sound in damages.

How DE sought to establish the claimed wrongful imprisonment

1. [89]

   To establish the claimed wrongful imprisonment, despite being lawfully held on remand, DE relied on the conditions of his detention, which he claimed breached the requirements of ss 16 and 19 of the Detention Centres Act. As a result, he was at various times of the day in 2016 wrongly kept in isolation apart from other detainees. This involving a breach of his right to residual liberty.

2. [90]

   To establish this, DE relied on the observation that even a convicted prisoner, “in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”: Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [88]. Minogue concerned a claimed right to parole, following certain legislative amendments.

3. [91]

   The State’s case was that despite this observation, because DE was lawfully being held in remand in 2016, he had no residual liberty of which he could unlawfully be deprived in detention. While its compliance with the provisions of the Detention Centres Act was required during his detention, a breach of ss 16 or 19 could not result in his wrongful imprisonment. His detention always remaining lawful, because it resulted from the order of the Children’s Court.

4. [92]

   Further, DE’s potential for unpredictable, impulsive violence had to be managed while he remained in detention. Not only in accordance with the provisions of the Detention Centres Act, but also with the State’s discharge of the duty of care which it owed to all detainees and with the duties imposed by the Work Health and Safety Act. Consequently, if the risk assessments, which had to be undertaken as a result, led to measures considered necessary to ensure safety at Cobham pointing in one direction — namely DE’s separation or segregation from other detainees — while DE’s welfare pointed in another, the balance the State was required to achieve had to favour safety.

5. [93]

   DE accepted that these obligations had to work harmoniously, but not that the correct balance had been achieved in his case.

6. [94]

   In considering these obligations and how the statutory schemes interact, it seems to me that it may not be overlooked that a detainee held on remand is generally in a similar position to a detainee who has been deprived of liberty as the result of conviction. Powers to separate or segregate under ss 16 and 19 of the Detention Centres Act apply in the same way to all detainees.

7. [95]

   This reflects that detainees can all pose risks to safety which the State has to manage, while they are held in a juvenile justice detention centre. This explains the classification process the Act and Regulations require on entry into detention: s 16.

8. [96]

   It is also relevant that duties in relation to ensuring safety under the Work Health and Safety Act are not only imposed upon the State, but also on those it employs to work at its detention centres. This includes when they have to deal with the risks which detainees may pose materialise. Light is shed on the nature of such risks by what s 16 of the Detention Centres Act and the applicable Regulations require.

9. [97]

   DE’s wrongful imprisonment claim turns on how the risks he posed in 2016, which materialised at Cobham on 25 June, were managed. His case being, essentially, that those who had to manage his risks were mistaken both in their assessment of and approach to those risks. Further, that they also failed to adhere to the requirements of ss 16 and 19 of the Detention Centres Act when he was kept isolated from other detainees from 26 June to 18 July, despite the gradual relaxation of those conditions.

10. [98]

    But still DE did not put in issue that both the requirements of the Detention Centres Act and the duties imposed by the Work Health and Safety Act, which have to operate harmoniously, all have had to be observed by those working at Cobham when they managed the risks to safety which he posed.

The claimed right of residual liberty while in lawful detention

1. [99]

   In Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88, it was explained that the fundamental right to liberty is the most elementary and important of all common law rights and an absolute right vested in the individual, which is never abridged without sufficient cause: at 292. Further, the right can only be impaired with lawful authority and then only “to the extent and for the time which the law prescribes”: at 292.

2. [100]

   DE’s case was pressed on the basis that “the clear course” of Australian authorities was that to be restrained while in detention in a more confined area than permitted by statute generally, sometimes referred to as “a prison within a prison”, involves an actionable false imprisonment.

3. [101]

   In DE’s case, that depends on the proper construction of the Detention Centres Act.

4. [102]

   This reflects that personal liberty is a right which may be confined by statute: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 explained in Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [63]-[65]. There, the provisions of the High Risk Offenders Act, which require the Court to consider whether certain offenders who served their sentences pose such safety risks, that further orders should be made for their ongoing supervision in the community, or their ongoing detention, arose to be considered.

5. [103]

   That Act requires consideration to be given to whether an offender still serving a sentence poses an “unacceptable risk” of committing another serious offence if not kept in detention or under supervision: ss 5B and 5E. The Court must be satisfied of this to “a high degree of probability”. This threshold requires an assessment of likelihood which does not permit consideration of the serious consequences of any order for the person to whom it applies: Kamm at [55]-[57]. This assessment must be undertaken in the context of the objects of that Act, which include ensuring “the safety and protection of the community”: s 3 of the High Risk Offenders Act.

6. [104]

   In DE’s case, the refusal of his bail application provided the required sufficient cause and lawful authority for his detention, with the Detention Centres Act being the authority for both his detention and his segregation, and the Work Health and Safety Act imposing a duty to ensure that available steps were then taken to ensure he and other detainees were kept safe while they were detained.

7. [105]

   The assessments of risk which the Detention Centres Act and the Work Health and Safety Act required be undertaken, including when separation or segregation of a detainee has to be considered, also required consideration of the likelihood of known or identified risks materialising. Those assessments have to be undertaken by decision-makers employed by the State at centres where detainees are held on remand.

8. [106]

   They must be undertaken in the context of the very different objects of the Detention Centres Act and the Work Health and Safety Act, which I will explain, as well as in accordance with the very different requirements of ss 16 and 19 of the Detention Centres Act, to which I will return. But it should be noted that there is every possibility that an offender who has to be dealt with under the High Risk Offenders Act, will at an earlier time have been held in detention under the Detention Centres Act. That sheds light on the nature of the risk assessments which may have to be undertaken under that Act.

9. [107]

   In Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67, it was explained that it is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on powers of arrest and detention be scrupulously observed: at 27.

10. [108]

    It is also settled that the detention of a prisoner in a place where he or she is not lawfully able to be detained is likely to be unlawful, and so could constitute wrongful imprisonment: Collins v Downs & Ors (Supreme Court of New South Wales, Roden J, 14 December 1982), referred to in State of New South Wales v TD (2013) 83 NSWLR 566; [2013] NSWCA 32 at [61].

11. [109]

    There is no suggestion, however, that even when DE was held in the Taralga Unit, where those on DRMPs providing for segregation were typically housed at Cobham in 2016, he was ever detained in a place where he could not lawfully be held.

12. [110]

    In Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622, the Court of Appeal found it unnecessary to consider whether a prisoner enjoys a right of “residual liberty” in relation to the State and whether the writ of habeas corpus runs where a person is illegally held in “a prison within a prison”. Notwithstanding the reference there made to the decision of the Supreme Court of Canada in Miller v The Queen (1985) 24 DLR (4th) 9 on which DE relied, which was acknowledged as providing powerful authority to support that proposition: at 633.

13. [111]

    Earlier, in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, it was noted at 328 that s 22 of the Prisons Act 1952 (NSW) authorised the segregation of prisoners under the conditions there specified. That implied that “prisoners will not be segregated, unless those conditions are fulfilled”: at 327. It was concluded that whether any segregation the section did not authorise implies rights to a civil remedy sounding in damages did not arise to be determined “because we are of the opinion there was in fact no segregation”: at 327.

14. [112]

    That is the question which is now squarely raised by DE’s case, in respect of s 19 of the Detention Centres Act, there being no issue that DE was in fact segregated as the result of the challenged decisions.

15. [113]

    In Sleiman v Commissioner of Corrective Services [2009] NSWSC 304, Adams J granted leave under the Felons Act 1981 (NSW) to permit Mr Sleiman to institute proceedings in which he sought relief by way of declaration. Adams J making ancillary orders in respect of both the place and conditions of his imprisonment, his segregation in the alleged absence of lawful authority, and false imprisonment: at [65].

16. [114]

    Adams J observed that, unlike other aspects of managing a prisoner’s custody in respect of which there was almost unfettered control, segregation was very differently regulated: at [60]. Concluding that the exceptional character of segregated custody, so far as the wellbeing of the prisoner was concerned, and the unique statutory regime which regulated it, meant that “compliance with its requirements is no mere matter of legal technicality but of fundamental importance. To place a prisoner in segregation without such compliance and set at nought the safeguards of the Act is a serious departure from the law”: at [61].

17. [115]

    In TD, the Court of Appeal also explained that the lawfulness of detention depends upon compliance with the terms of the Court’s order. TD had been required to be detained in a hospital, with the result that her detention in the prison where she was actually held was not authorised. It was concluded that the mere fact that she could and should have been detained in another place, did not prevent her actual detention being unlawful: at [76].

18. [116]

    But DE did not pursue such claimed unlawfulness, which reflects that it is always the Secretary’s role under the Detention Centres Act to determine where a detainee is to be held on remand after the Children’s Court refuses a bail application: ss 9 and 11.

19. [117]

    There was thus no issue that even if DE had not been separated, segregated or kept in in his room during the challenged times as he was, he would still have been kept in lawful detention and entirely deprived of his liberty as a result. While bail refused, he was always deemed to be “in the custody of” the Centre Manager, in his case Mr Vita: s 15 of the Detention Centres Act.

20. [118]

    While DE accepted that this was relevant to the assessment of his damages, his case was that s 15 could still not preclude his wrongful imprisonment claim.

21. [119]

    In TD, reference was also made at [55]-[57] to Regina v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58, on which the State relied. It was there concluded that the transfer of a prisoner believed to be a troublemaker to another prison, where he was held for 28 days in segregation from other prisoners, the legality of which was challenged, could not result in damages for false imprisonment.

22. [120]

    The result was that despite the conclusion that the segregation order had been invalid, damages for unlawful imprisonment were refused.

23. [121]

    In Ex parte Hague, the appeal to the House of Lords failed because it concluded that a prisoner lawfully within a prison could not complain that his legal rights were infringed by a restraint which confined him at any particular time within a particular part of the prison. The relevant question being whether it was the legislature’s intention to confer private rights, that is, rights giving rise to claims in tort if breached. The answer being that even if a particular provision of the Act in question was intended to protect individuals, this in itself was not sufficient to necessarily confer rights. Further, nothing in the regulatory scheme in issue suggested that a breach would confer a cause of action sounding in damages, with the Rules in question being regulatory and not intending to give prisoners a right of action: at 163 and 165-166.

24. [122]

    It was also concluded in Ex parte Hague that the “concept of the prisoner’s ‘residual liberty’ as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain” was illusory. The prisoner was “at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere”. This not being “the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another”: at 163.

25. [123]

    In TD, it was accepted at [73] that “other than in truly exceptional circumstances, lawful detention will not cease to be such because of the conditions in which the person is held.” Reference there being made to Cobbett v Grey (1850) 4 Exch 729 and Osborne v Milman (1886) 17 QBD 514, where prisoners had complained they were falsely imprisoned in a part of a prison where they could not lawfully be confined. Such decisions having been accepted in Arbon v Anderson [1943] KB 252, 254 as relating to the nature of the imprisonment, rather than to the conditions thereof.

26. [124]

    The questions arising for determination in DE’s case thus include whether he being held in segregation, as he was for some weeks in 2016 when all the requirements of s 19 had not been complied with, amount to “truly exceptional circumstances” of the kind contemplated in TD. And if that was established, whether his detention ceased to be lawful as a result.

27. [125]

    For reasons which I will explain, I am satisfied that this was not established on the evidence. DE not claiming to have suffered any particular injury as the result of the treatment he complains about and having chosen not to give evidence to advance his case, support that conclusion.

28. [126]

    In TD, it was also noted that the distinction between conditions of imprisonment and the nature of the imprisonment had been accepted in Hague. As a result, being imprisoned in the wrong part of a prison, where there is strict classification according to law, is false imprisonment for which damages may be awarded: at [61]. But DE did not advance such a claim.

29. [127]

    Under the Detention Centres Act, the centre where a detainee is housed on remand having to be determined by the Secretary: ss 9 and 11. That also requiring a consideration of the risks to safety which he or she poses: s 16. That first being assessed on entry into detention through the classification system. It follows that housing DE on the Jamison, Taralga and Carter Units during his segregation, rather than on the Mandela Unit, as he preferred, could not result in his detention becoming unlawful, or provide a basis for the damages he pursues.

30. [128]

    DE also relied on SU v The Commonwealth [2016] NSWSC 8; (2016) 307 FLR 357 to establish the claimed wrongful imprisonment. There it was concluded that the Migration Act 1958 (Cth) did not alter the result of an unlawful arrest. Namely, the plaintiff was unlawfully held on remand and entitled to damages for wrongful imprisonment, until the time that the detention became lawful pursuant to a later court order.

31. [129]

    DE claimed that he was kept in separation or segregation as the result of decisions which were not made by the required person, or which had not received the required approval, with the result that his imprisonment was unlawful. He also claimed the decision-maker did not hold the required beliefs on reasonable grounds, as the Act also required, arguing such beliefs were not capable of existing in his circumstances.

32. [130]

    DE relied on the explanation in TD at [64], that a person lawfully committed to a prison may later cease to be held in lawful custody: R v Templeton [1956] VLR 709; [1956] ALR 706 and Day v The Queen (1984) 153 CLR 475; [1984] HCA 3. This turning on “(i) the relevant statutory provisions, (ii) the terms of the order or warrant of commitment and (iii) the manner in which what had commenced as lawful custody may have become unlawful”: Powch v The Queen (1987) 163 CLR 496 at 498; [1987] HCA 41.

33. [131]

    DE also asserted that the process pursued at Cobham in 2016 did not adhere either to standard operating procedures applicable to all centres. Further, that the unlawfulness which resulted from the failures to adhere to the requirements of ss 16 and 19 were not cured by the approvals which were given, which were recorded only after the expiry of the required three hours of the decisions to segregate him.

34. [132]

    That, too, was disputed.

35. [133]

    In Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250; [2021] QSC 273, Martin J had to consider authorities here relied on by DE. His Honour noted that Canadian decisions support the idea of the existence of a “residual liberty” and a right inherent in a prisoner not to be subjected to further deprivation or harsher conditions, unless the statutory provisions which allow for such action have been fulfilled. Further, although United Kingdom and New Zealand authorities did not accept the existence of such residual liberty, some Australian single judge decisions did favour its existence: at [225].

36. [134]

    His Honour preferred the reasoning of the New Zealand Court of Appeal in Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616. There it was concluded that habeas corpus was not available to release prisoners from maximum security or non-voluntary segregation in an isolation cell where they were subject to a lawfully imposed sentence. A change to the conditions on which an inmate was being detained, either by segregation, reclassification or transfer to another institution, not creating a new detention: at 633.

37. [135]

    Although, it was observed that if one of the prisoners had sought judicial review instead of restricting himself to habeas corpus, “we would have ordered that his cell confinement should cease immediately”: at 619.

38. [136]

    The proposed construction of the statutory scheme in issue before Martin J was thus rejected. His Honour concluding that a person lawfully detained could not be released from prison. Nor could the Court engage in an assessment of various levels of imprisonment, to determine which was most appropriate for the prisoner, and potentially ordering his or her release into the general prison population: at [234].

39. [137]

    DE raised the undoubted difficulty of the Court having to examine decisions which were unchallenged in 2016. Decisions which the evidence established were made bona fide by the Centre Manager who had actual custody of DE and who was obligated under statute, at risk of the commission of an offence, to ensure safety at the Centre. A breach of which would have involved an offence, potentially a very serious one, if DE had injured another detainee when released from segregation.

40. [138]

    It is in that context that the claimed right to residual liberty has to be considered. The challenged decisions made after DE’s conduct on 25 June established the serious ongoing risks to safety which he then posed, having assaulted one detainee in an unprovoked attack and then joining a brawl in which other detainees were attacking another victim. The risks he posed while held in detention had thereby materialised.

41. [139]

    DE challenged the views arrived at in 2016 that, after the risks he posed had materialised, they had to be managed by his segregation until the Centre Manager was satisfied that they could again be safely managed when DE was released to mix with the general detainee population, without restriction.

42. [140]

    It is DE’s claim that the statutory requirements were not all strictly complied with, which thus now squarely raises the question raised in Ex parte Hague. Namely, did the Parliament intend that breaches of ss 16 or 19 of the Detention Centres Act of the kind which DE pursues, would confer on a detainee a cause of action for wrongful imprisonment, sounding in damages? His claimed right to residual liberty having wrongly been infringed.

43. [141]

    To establish this, DE relied on Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089; (2021) 295 A Crim R 1, where White J had to consider whether a period during which a young person was kept in isolation involved false imprisonment.

44. [142]

    That turned on the proper construction of the Youth Justice Act 2005 (NT). What had to be considered included whether the periods of isolation in question had been authorised; whether the young person had been placed under unauthorised additional restraint of a more stringent kind which was only permitted by that Act in limited circumstances, that involving “a more stringent form of detentions”: Campbell at [466]; and whether, absent the circumstances which permitted that form of detention, it lacked statutory authority: at [469].

45. [143]

    The result, White J concluded, was a form of false imprisonment which sounded in damages: at [471].

46. [144]

    DE urged that similar conclusions had to be arrived at in his case, which the State resisted. It contending that White J’s views about residual liberty were obiter and not available under the Detention Centres Act.

47. [145]

    In DE’s case, the respective requirements and necessary interaction between the provisions of the Detention Centres Act and the Work Health and Safety Act also having to be considered. These were not matters considered in Campbell. Nor were submissions there directed to the underlying principles, as White J explained. Further, the Northern Territory did not submit that keeping the applicant in isolation could not constitute unlawful imprisonment: at [472].

48. [146]

    The result, I accept, is that the decision in Campbell is of limited assistance in resolving what is in issue here about DE’s claimed right to residual liberty.

The nature of involuntary detention, separation and segregation in a detention centre following refusal of bail

1. [147]

   As I have explained, in resolving whether DE was ever wrongfully imprisoned, it must be borne in mind that, after bail is refused, involuntary detention of a detainee held under the Detention Centres Act is the result of a Court order. Those on remand are not being held for a penal or punitive purpose. Their detention is rather the result of a statutorily required consideration of the bail concerns which they pose, as well as an assessment of whether they pose unacceptable risks. This process is not concerned with their punishment for offences which are, then, still only alleged and not proven.

2. [148]

   There was no issue that the Detention Centres Act permitted a detainee to be kept in their room at specified times, every day, as part of the ordinary operation of the centre in accordance with procedures adopted to facilitate its proper control and management: s 14(1)(d). This occurs, for instance, overnight or during daily shower, pre-meal or pre-school routines. At such times a detainee is not held in separation or segregation, as DE finally accepted.

3. [149]

   The Detention Centres Act also permits a detainee to be placed in confinement as punishment for minor misbehaviour, in which event there is a punitive purpose being pursued: s 21(1)(d). But the Act does not permit either separation or segregation of a detainee for the purpose of punishment.

4. [150]

   It follows that the separation or segregation of a detainee lawfully held in a centre, whether on remand or after conviction, does not have a penal or punitive purpose. Separation is rather provided for the purpose of ensuring the security, safety and good order of the centre: s 16(3). Segregation is used “to protect the personal safety of detainees or other persons”: s 19(3).

5. [151]

   It is pertinent that on the witnesses’ evidence, for an individual detainee, there is no discernible difference between being kept in his or her room during normal lockdowns over the course of each day and being kept there during either separation, segregation or confinement. They all result in the detainee being confined in their room, often without access to other detainees. But that does not result in either separation or segregation being punitive.

6. [152]

   In 2016, in some Units at Cobham, detainees were kept in four-person rather than single rooms. The result was that during ordinary lockdowns, some detainees would be in a room with up to three other detainees. But if placed in separation, segregation or confinement, they would be placed alone in a single room.

7. [153]

   There was no suggestion that while in Mandela, DE had ever occupied a four-person room. The result of the challenged decisions was thus his considerably prolonged isolation from other detainees.

8. [154]

   When segregated DE was kept isolated from other detainees, initially for the most part of every day, rather than only during normal daily lockdowns. The arrangements imposed allowed him to be taken out of his room, initially while kept under the control of two staff, while handcuffed and not being allowed to mix at all with other detainees. These requirements were gradually relaxed.

9. [155]

   It was finally DE’s case that these arrangements permitted the conclusion that he had been impermissibly confined to his room from 25 June, in order to both punish him and control his behaviour, by providing him with incentives and disincentives. But, accepting Mr Vita’s evidence as I do, I am unable to accept that the challenged decisions were made to punish him. Even though he accepted that their intended results included encouraging DE to behave and to provide a disincentive for further misbehaviour. That this involved any breach of the Act was disputed.

10. [156]

    On all of the evidence I am satisfied that the nature and purpose of DE’s ongoing segregation was to ensure safety at Cobham, as both the Detention Centres Act and the Work Health and Safety Act variously required and permitted. And that the incentives and disincentives which resulted from his segregation under the conditions imposed, did not involve any breach of the Detention Centres Act.

The risks to safety posed by DE and other detainees which had to be managed at Cobham

1. [157]

   Much of what was in issue turned on the nature and seriousness of the risks which DE posed. He contended that both the view taken in 2016 about those risks and the responses to them were not properly available, despite his classification, what he did on 25 June and his resulting reclassification. On his case, his risks having been “spent” by 27 June.

2. [158]

   I do not accept this submission. That was not established by the evidence. The approach urged necessarily requiring a conclusion which does not appear to be available under the legislative schemes which were in operation at Cobham in 2016 and had to be observed by both the State and those it employed there.

3. [159]

   I am thus satisfied that DE’s case may not be accepted. It essentially being that he did not pose a safety risk as serious as that perceived by those who reclassified him and assessed his ongoing risks. Nor of the kind Mr Vita, who made the challenged decisions, variously concluded.

4. [160]

   Contrary to what was put to some witnesses and the case DE pressed, the evidence does not establish that he ever ceased posing a significant risk to safety while he was detained. The risks he posed always having to be managed at Cobham to ensure its safe operation, as well as his safety and that of others with whom he had contact there. His ongoing risk was fairly reflected by his reclassification from A2 to A1 after 25 June, given the serious risks which he was initially identified as posing in detention having actually materialised on 25 June.

5. [161]

   Having so materialised, it cannot be accepted that these risks rapidly dissipated, as was DE’s case, despite his relatively compliant behaviour during his segregation.

6. [162]

   Though DE’s violence on 25 June was not long in duration, that does not detract from this conclusion. His unprovoked assault on another detainee and the brawl he then joined, being relatively quickly controlled, reflects how the Mandela Unit was staffed on 25 June at a known dangerous time of the day and how well staff on duty responded. This no doubt reflected how they were trained, given how quickly they brought the detainees under control to restore the required order.

7. [163]

   The case DE pressed in final written submissions included that his involvement in the violent incidents on 25 June “does not mean that he remained a safety risk (much less an immediate and unacceptable safety risk) throughout the Sunday”. DE also contended that his segregation from 26 June did not accord with the risks he posed at that time or afterwards, given his ongoing compliant behaviour.

8. [164]

   His case essentially was that there had been an unrecognised change, overnight, in the risks he posed, contrary to his re-classification to A1 and the decisions made about him by Mr Vita on 27 June and at the later DRMP meetings. On that basis, he contended that his segregation on 26 June, or later, was not required to maintain safety.

9. [165]

   I am not persuaded that this was established by any evidence.

10. [166]

    DE’s ongoing compliant behaviour in segregation plainly reflected a desire that his segregation come to an end. This was taken into account, Mr Vita explained, in the assessments made about the ongoing risks which DE posed. First on 27 June and later, while his segregation continued under the relaxing conditions he explained. The evidence shed considerable light on the complexity and difficulty of those ongoing assessments.

11. [167]

    Such risk assessments had to be undertaken at Cobham in respect of all those detained there, throughout their detention. Given not only the risks which they each individually posed, but also those which arose when they interacted with each other.

12. [168]

    Since DE led no evidence to challenge the evidence led by the State, Mr Vita’s evidence about the complexity and difficulty of such assessments has to be accepted, consistent with his undisputed roles and experience in this State’s detention centres.

13. [169]

    DE’s approach ignored the nature of the risks he was assessed to pose in 2016 when initially classified and then when reclassified, which had to be managed throughout his detention at Cobham. It also ignored the practical consequences of the onerous duties imposed by the Work Health and Safety Act on the State and those who worked at Cobham, as well as the light his violence in detention had shed on the risks he continued to pose, even when his behaviour was compliant.

14. [170]

    Both the documentary evidence and that given by witnesses explained why a cautious approach was thus necessary to the management of the ongoing risks which DE posed. Regard having to be paid to his prior record of violence; resulting risk classifications; how he might safely mix with others given known affiliations and the retaliation he was at risk of; and to when known risks were more likely to materialise in detention, given past experience.

15. [171]

    This reflected a proper approach to the duties imposed by the Work Health and Safety Act and cannot be criticised in the way invited by DE’s case. Had prior experience been ignored when making decisions about safety under the Detention Centres Act, further violence and offences under the Work Health and Safety Act would undoubtedly have been risked.

16. [172]

    Mr Vita explained why decisions about risk management took account of relevant past experiences. His experience being that safety risks were more likely to materialise at dinner time, when detainees had access to cutlery which could be used as a weapon; that certain detainees had to be kept apart, for example, because of known gang affiliations; and that a detainee’s premature release from segregation could result in further violence, including as a result of retaliation.

17. [173]

    I am satisfied that there can be no criticism of account being taken of such relevant matters.

18. [174]

    DE’s earlier criminal record initially shed light on the nature of the safety risks which he would pose in detention. That was taken into account on his initial risk classification. Records maintained at Cobham shed light on his behaviour in detention, gang affiliations and interactions with psychologists and counsellors. His further offending in detention on 25 June then shed even more light on the real nature of the ongoing risks which he posed.

19. [175]

    The CCTV footage established that the risks DE posed were greater than initially identified. The result was the realisation that the approach adopted to DE had to alter, if safety was to be ensured. The CCTV footage showing that:

    1. (1)

       Less than 2 weeks after he was refused bail, the risks which DE posed materialised during evening recreation after dinner when, unprovoked, he attacked and assaulted another detainee;

    2. (2)

       This assault occurred immediately after DE left a conversation with a number of other detainees, proceeding by himself to where his victim stood alone speaking on the phone, and DE attacking him by throwing a flurry of punches;

    3. (3)

       After being pulled away from that detainee with some difficulty, DE still managed to join others, including those he spoke to earlier, who were then attacking another detainee nearby;

    4. (4)

       DE then tried to pull an officer away, having to be subdued and placed in a room away from others. Others involved in that brawl also resisted officers attempting to stop their attack on the second detainee;

    5. (5)

       Officers who worked to restore order expended considerable effort to restrain and move the attacking detainees away, their own safety being put at risk by detainees including DE; and

    6. (6)

       That like other detainees involved, DE was powerfully built, adult-sized and of physically similar stature to officers who had to subdue those involved in the brawl.

20. [176]

    This explained why the decisions later made about DE were also influenced by concerns he was at risk of retaliation for his conduct on 25 June. This contributed to the decision to remove him from the Mandela Unit, where he was not returned even after his segregation ceased, because that was assessed to be unsafe.

21. [177]

    The approach pursued also accords with DE providing differing accounts of why he assaulted and attacked another detainee on 25 June, which were also inconsistent with reports received by officers from other detainees. Such reports included that DE’s assault was a diversion for the attack begun by the other detainees, their victim being a detainee held on national terrorist charges, with whom DE, and others involved in the brawl, had issues.

22. [178]

    On 26 June, DE was asked by Mr Rawlings about his assault before police attended, with DE then accepting he was guilty of misbehaviour. Police later charged him with criminal offences which were eventually resolved by his entry of pleas to other offences, of which he was convicted and sentenced. As a result, he was not further dealt with internally for his misbehaviour.

23. [179]

    DE’s case, that despite this he was impermissibly segregated to punish him rather than to manage the safety risks he posed, does not accord with either contemporaneous records or the witnesses’ evidence. Despite how he might understandably have perceived being isolated in his room. That the real purpose of his segregation was punitive must, accordingly, be rejected, notwithstanding his challenge to the lawfulness of the decisions made to segregate him.

24. [180]

    The challenged decisions provided for DE’s segregation under increasingly relaxed arrangements and for shorter periods throughout the day, until 18 July. This reflected the results of the ongoing risk assessments Mr Vita pursued through the DRMP process. HIs decisions reflected altering views about the extent of the risks DE continued to pose, and how they could safely be managed, given how DE responded to his segregation and its gradual relaxation.

25. [181]

    The segregation only came to an end when Mr Vita was satisfied it was safe for DE to mix with other detainees throughout the day as he had before the 25 June brawl. Albeit returning DE to the Mandela Unit, as it appears he desired, was never judged to be safe, given the risks which he continued to pose, reflected in his reclassification to A1 and the ongoing risk of retaliation, it was considered he was subject to.

26. [182]

    Both the evidence and DE’s case did not suggest there was no reasonable basis for Mr Vita’s final decision, that his segregation could safely conclude on 18 July. Rather, DE’s case was that this decision ought to have been arrived at much sooner, as early as 26 June.

27. [183]

    I am satisfied that the evidence does not permit this to be accepted, given all it discloses about the nature of the risks DE posed throughout his detention; how they materialised; and the challenge of assessing and then managing them safely at Cobham. That this was achieved accords with there being no suggestion that once the segregation came to an end, the risks which DE continued to pose materialised again.

What was required of the State and those it employed when managing those safety risks?

1. [184]

   What lies in issue about the challenged decisions has to be resolved not only in light of the State’s powers, but also its various duties and obligations. These are imposed not only by the Detention Centres Act, but also by the common law and other statutory and regulatory requirements.

2. [185]

   The State had a non‑delegable duty to exercise reasonable care for the health and safety of all those it held in detention. It is recognised that a claimed breach of that duty may require account to be taken “of complex considerations, perhaps including matters of policy, resources, and industrial relations”: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [5]. It is also long recognised that the exercise of statutory powers can risk recovery of damages for negligence, if those who exercise them do not take reasonable precautions to prevent injury: Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14.

3. [186]

   Such considerations were also raised by the cases which the parties advanced in relation to DE’s claimed wrongful imprisonment.

4. [187]

   I am satisfied that the operational approach adopted at Cobham reflected heed being taken of such obligations.

5. [188]

   It was not DE’s case that there had been any negligence, or that he suffered particular injury as the result of the matters about which he complains. He relied, finally, on alleged breaches of the requirements of ss 16 and 19 of the Detention Centres Act to establish his claimed wrongful imprisonment and the claimed assault involved in his handcuffing.

6. [189]

   Both Ms Scott and Mr Vita agreed in cross-examination that they had adopted a cautious approach to the management of risks DE posed, influenced by his conduct on 25 June when those risks materialised. While DE criticised that approach, I consider that it accorded with the State’s common law duty, requirements imposed by the Detention Centres Act and the onerous duties imposed by the Work Health and Safety Act on the State, Ms Scott and Mr Vita, given their positions at Cobham.

7. [190]

   This reflects that those lawfully detained on remand at a juvenile justice centre may pose considerable safety risks to the community at large, which may be why they are bail refused. In detention, the risk they continue to pose may extend to themselves, other detainees, members of the community working at the centre where they are detained, and those who visit it.

8. [191]

   Such risks explain why the Regulations require that detainees refused bail and held on remand be classified on entry into detention: r 7. And why attention must be paid to this classification when decisions are made about where in a centre they are detained: s 16 of the Detention Centres Act.

9. [192]

   As I have explained, contrary to the case pressed by DE, he posed significant risks to safety during the entire time that he was detained. They were not removed by his transfer from the Mandela Unit on 25 June, as was his case. Nor did his behaviour while segregated in the Jamison, Taralga and Carter Units establish that he no longer posed risks to safety requiring his segregation, as early as 26 June, as was his case.

10. [193]

    Why DE was refused bail was not revealed by the evidence. However, detainees held on remand, like DE, are held in custody because it has been concluded by the relevant decision maker, in his case the Children’s Court, that he or she posed unacceptable risks and bail concerns of the kind specified in ss 17 and 19 of the Bail Act. These include risks of an alleged offender committing a serious offence or endangering the safety of victims, individuals or the community.

11. [194]

    Assessment of such risks requires the decision maker’s consideration of specified matters, including whether an accused person has a history of violence, as DE did: s 18(1)(d) of the Bail Act. The difficulty of such risk assessment is well known, as is the community’s concern when such assessments fail to identify risks which later materialise in the commission of further offending in the community.

12. [195]

    The evidence established that ongoing risk assessments in custody can be equally and perhaps even more demanding, despite how those refused bail are detained.

13. [196]

    DE’s record of past violent offending thus had to be taken into account when he went into remand and was classified, as well as throughout his detention, where he soon engaged in further violence on 25 June 2016.

14. [197]

    The risks DE posed had to be considered at Cobham whenever staff assessed and dealt with risks to safety arising from his behaviour, or that of other detainees towards him. It follows that DE’s violent assault and involvement in the 25 June brawl had to factor into all such subsequent decision making, no matter that his later behaviour may not have posed particular risks.

15. [198]

    This reflects the Legislature having regulated risks to safety not only by the provisions made in the Detention Centre Act, but also in the Regulations and the Work Health and Safety Act. In some extreme cases, even after conviction and service of a sentence, such ongoing risks are further regulated by the Crimes (High Risk) Offenders Act, when the Supreme Court may have to undertake further difficult risk assessments for offenders who continue to pose particularly high risks to the safety of the community, if released.

16. [199]

    In resolving what is in issue it is also pertinent to note that in detention centres, obligations to ensure safety and the resulting difficult risk assessments which have to be undertaken do not only arise in relation to children who are detained there, either on remand or after conviction. That is because some detainees are adults.

17. [200]

    This is the result of the Children (Criminal Proceedings) Act 1987 (NSW) empowering a sentencing court to direct certain convicted persons over 18 and under 21 years of age to serve the whole or part of their sentence of imprisonment as a juvenile offender: s 19. A child is defined in s 3(1) to mean a person under the age of 18. This accords with the definition in the Detention Centres Act of a “juvenile inmate” defined to mean “an inmate who is under the age of 21 years”: s 3.

18. [201]

    Section 9A of the Detention Centres Act also specifies circumstances in which those over the age of 18 may not be detained in a detention centre. The transfer of a juvenile inmate between a correctional centre and a detention centre is also provided for in s 10.

19. [202]

    As a result, the risks managed daily by staff at detention centres can be similar to those posed by adults held in prisons. The safe interaction of such adults with children detained there must also be managed. This underscores the complex nature of the risk assessments necessarily undertaken at detention centres, potentially even more complex than those undertaken in a prison.

20. [203]

    There was a risk assessment policy which applied at Cobham, but it is also not in evidence. It was no doubt directed at meeting the various obligations imposed on the State and those employed to work at detention centres, given the nature of the required risk assessments. The evidence that such assessments are complex and not foolproof must be accepted.

21. [204]

    As the Regulations required, while DE was initially classified by the Department as falling into the second highest category of risk, A2, after 25 June, his classification was reviewed and increased through an exercise of discretion to the highest risk level, A1. That decision was not made by officers responsible for DE’s day-to-day detention at Cobham, but a matter they then had to pay attention to whenever dealing with DE.

22. [205]

    It cannot be accepted that DE’s classifications were incorrect; that there was anything illogical or improper about his reclassification after 25 June; or that attention was wrongly paid to it, when later decisions were made about him, as was suggested to various witnesses.

23. [206]

    DE’s reclassification reflected that on 25 June, the risks he posed had actually materialised while he was detained, despite the strict supervision under which detainees were held. As a result, DE was dealt with criminally, rather than being dealt with internally for misbehaviour under s 21 of the Detention Centres Act, and rr 73 and 74 and schedule 1 to the Regulations. The latter only being available for less serious misbehaviour at a centre.

24. [207]

    DE’s conduct was not of this kind, as the CCTV footage and his later pleas established.

25. [208]

    In cross-examination, Mr Vita thus agreed that the risk factors considered on DE’s reclassification after 25 June included the “serious violence threat” it was considered he posed. He agreed the discretion to increase his classification to A1, despite his scores still falling within the A2 range, rested on the 25 June incidents and the resulting exercise of a discretion. Mr Vita accepted, however, that the incident description in the reclassification document was “a little bit confusing”, it not having been DE who had kicked and stomped on the victim attacked in the brawl. Nothing turns on this.

26. [209]

    The result, DE’s reclassification to A1 having to be taken into account whenever consideration was given to the management of the risks he posed, including during the DRMP process pursued after 25 June, cannot justly be criticised, given the requirements of the legislative scheme. The various units in which he was housed reflecting the requirements of s 16(2) of the Detention Centres Act, which required different classes of detainee to be detained separately from other classes of detainee, as far as reasonably practicable.

27. [210]

    Detainee classification also impacted a detainee’s access to the school operated at Cobham under policies of the Department of Education, although these were also not in evidence. It also influenced decisions about which detainees could safely mix and how their behaviour needed to be managed, in relation to access to sharps, for example.

28. [211]

    This must be understood in the context of how the Detention Centres Act and Regulations generally regulate the management and operation of centres. The Act requires adequate arrangements to be made for maintaining detainees’ wellbeing, promoting their development, maintaining discipline and good order, and facilitating the proper control and management of the centres: s 14.

29. [212]

    Such aims may obviously be difficult to reconcile and cannot rest on a sole focus on individual detainees’ needs from time to time.

30. [213]

    The Regulations also provide for matters such as:

31. [214]

    The management of the risks which DE and other detainees posed also had to account for the obligations imposed by the Work Health and Safety Act. Its objects include protecting workers and other persons against harm to their health, safety and welfare, through the elimination or minimisation of risks arising from work: s 3(a).

32. [215]

    While the objects specified in the Detention Centres Act are concerned with those on remand taking their places in the community as soon as possible, as persons who will observe the law and detainees preserving or developing satisfactory relationships with their families: s 4.

33. [216]

    By way of comparison, the purpose of the Bail Act is “to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions”: s 3.

34. [217]

    While the primary object specified in the High Risk Offenders Act is “to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community”: s 3(1). Another stated object is to “encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation”: s 3(2).

35. [218]

    All of these statutory schemes are in considerable part concerned with safety, given the risks which those charged with and/or convicted of offences may pose, both within and outside detention.

36. [219]

    In final oral submissions DE accepted that decisions made about safety had to be made consistently with all the statutory obligations which had to be observed at the centre.

37. [220]

    What DE did not accept was that the required balance, if the obligations imposed by the Detention Centres Act and the Work Health and Safety Act did not all point in the same direction, could necessarily result in the segregation of a detainee such as him, in order to prevent all risks materialising. On DE’s approach, caution could not permit continued segregation when a detainee no longer posed any danger or risk to safety, as established by his or her behaviour during segregation.

38. [221]

    I consider that this approach cannot be accepted. Behaviour in segregation alone being incapable of establishing that a detainee no longer poses any risks to safety which have to be managed by segregation.

39. [222]

    Decision-making about what safety requires, based on behaviour in segregation for a period, is too simplistic to result in the required compliance with the statutory and common law obligations owed to others. When a detainee has actually pursued violence while held in detention, resulting in his or her segregation, as was DE’s position, the approach he urged risks the commission of an offence.

40. [223]

    That is because of the onerous duties imposed by the Work Health and Safety Act upon individuals conducting businesses and undertakings where people work, including at detention centres operated by the State. The approach urged by DE would necessarily risk the commission of offences, including by those employed by the State. Because it would drive decision-makers to not pay necessary regard to all relevant considerations, which cannot be confined to behaviour in detention, particularly while segregated, although that is undoubtedly one important consideration.

41. [224]

    This conclusion flows from the nature of the duties imposed by the Work Health and Safety Act, to ensure, so far as is reasonably practicable, workers’ health and safety while they are at work: s 19(1). This duty includes ensuring, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out at such centres: s 19(2). Such persons include detainees.

42. [225]

    This also requires the provision and maintenance of safe systems of work, the provision of adequate facilities and of information, training, instruction or supervision: s 19(3).

43. [226]

    This Act also requires persons on whom duties are imposed to eliminate risks to health and safety, so far as is reasonably practicable and if elimination is not reasonably practicable, to minimise those risks so far as is reasonably practicable: s 17.

44. [227]

    What steps are reasonably practical to be taken by the State and those who work at a detention centre to meet these obligations, given the risks to safety which a particular detainee like DE may pose, will necessarily depend on what the Detention Centres Act and the Regulations permit.

45. [228]

    This flows from s 18 of the Work Health and Safety Act, which specifies some of the matters which must be taken into account and weighed, in determining “that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety”. They include “the availability and suitability of ways to eliminate or minimise the risk”: s 18(1)(d).

46. [229]

    There is no question that in a detention centre, those ways include the exercise of the powers to separate or segregate a detainee given by ss 16 and 19 of the Detention Centres Act. Section 19 requires, in the case of segregation, that it be as short as practicable and imposed only when there is no practicable alternative to protect the personal safety of the person or persons for whose protection the detainee is to be segregated: ss 19(1)(b) and 19(4).

47. [230]

    It follows that if a decision-maker forms the view that segregation must be imposed on a detainee, or cannot be brought to an end, because otherwise the commission of an offence under the Work Health and Safety Act will result, there is no practical alternative to its imposition or continuation.

48. [231]

    This conclusion reflects how the various complementary duties imposed by the Work Health and Safety Act on officers, workers and other persons at a workplace can be met: ss 27-28. The Act requiring that they take reasonable care for their own health and safety, and that they also ensure that their acts or omissions do not adversely affect the health and safety of other persons.

49. [232]

    It is these obligations which fell on those who worked at Cobham and were involved in day-to-day supervision of detainees. In the case of Mr Vita and others who made decisions about DE during his ongoing segregation, they could not be overlooked when deciding how the risks to safety which he posed could safely be managed day-to-day. In Mr Vita’s case, this necessarily required ongoing consideration of the likely consequences of relaxing DE’s conditions of segregation, and release from segregation and what practical alternatives there were, to protect others’ safety as well as that of DE.

50. [233]

    In resolving what is in issue it must also be remembered that offences are committed when a person with a relevant duty exposes an individual to whom a duty is owed to risk of death, serious injury or illness without reasonable excuse. That attracting very substantial penalties if an error is made in a risk assessment: ss 30-33 of the Work Health and Safety Act.

51. [234]

    It is relevant that while limited exceptions apply to a member of the NSW Police Force in specified circumstances, when they deal with detainees before they are bail refused, there are no exceptions provided for those who work at detention centres. Even though they have to deal with such alleged offenders while they are held on remand: s 34A of the Work Health and Safety Act. Further, unlike the State and those it employs, when Courts undertake their risk assessments in respect of such detainees, they are not at risk of the commission of offences, if they err.

52. [235]

    It follows that it will involve a serious offence if those working at a detention centre fail to pay proper regard to the nature of risks posed by a detainee while in detention. This is reflected by their classification, as well as by their conduct in detention, especially if the risks they pose actually materialise there.

53. [236]

    If a risk does materialise, as it did in DE’s case, steps thus have to be taken to prevent the further materialisation of that risk. It follows that focusing on a detainee’s later behaviour, including while segregated, rather than on the ongoing risks which have materialised and continue to be posed, would risk the commission of an offence.

54. [237]

    The result is that the Work Health and Safety Act necessarily influences how centres are organised, managed and staffed by the State; how those who work there undertake their functions; and how the risks which particular detainees pose are managed and dealt with daily, especially after their behaviour in detention risks the safety of others, as DE’s violence on 25 June did. DE’s behaviour establishing the nature and seriousness of the risks he continued to pose, which necessarily had to influence how those risks were then managed throughout his detention, in order to prevent them from materialising again.

55. [238]

    This explains why, after 25 June 2016, a cautious approach had to be adopted at Cobham to managing the risks DE posed, given the others involved in the brawl and those who might retaliate against them. That approach, which the witnesses explained, cannot sensibly be criticised. It involved:

56. [239]

    Still DE disputed the exercise of the powers granted by the Detention Centres Act, contending that the challenged decisions were neither necessary nor lawfully available.

57. [240]

    It seems to me that in resolving what is in issue regard must be had to the approach which the Legislature required those working at Cobham to take when ensuring the safety mandated by the Detention Centres Act, at risk of the commission of a range of serious criminal offences if they failed to do so. That risk must be understood in light of the substantial penalties which may result from a breach of the duties imposed by the Work Health and Safety Act.

58. [241]

    In the most serious cases, where death of a person to whom a duty is owed results from an individual’s failure to comply with such a duty because of gross negligence, the offence attracting a maximum penalty of 25 years imprisonment. In the case of a body corporate, such an offence attracts a $20,000,000 fine: s 34C of the Work Health and Safety Act.

59. [242]

    On the evidence, it cannot be doubted that this legislative regime has impacted how the State and individuals who work at detention centres approach the management of the risks posed by detainees. That is what they are intended to achieve.

60. [243]

    The State’s record of offending has also no doubt driven the approach adopted to meet these obligations, given the deterrence penalties imposed are intended to achieve. Its record includes offences under predecessor legislation, the Occupational Health and Safety Act 1983 (NSW), which is relevant to any penalty imposed for any further offending: s 18(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

61. [244]

    That history involves offending of the most serious kind in detention centres.

62. [245]

    In one case, an offence involving a staff member who was killed by a detainee at a school operated within the detention centre: Workcover Authority Of New South Wales (Inspector Stewart) v The Crown in Right of The State of New South Wales (Department of Education and Training, Department of Juvenile Justice and Tafe) [2002] NSWIRComm 259; (2002) 118 IR 207.

63. [246]

    The inadequacy of the Department’s established systems at the time of that offending, the breakdown in communication about the risks posed by the detainee and the steps later taken to address the deficiencies in the Department’s systems, were all there considered: at [31].

64. [247]

    Staunton J concluding that the State’s actions, through the Department of Juvenile Justice and the Department of Education and Training, which operated the school, had exposed its employees to great and foreseeable risk of harm. Risk which was both foreseen and had materialised: at [39]. At that time, the Juvenile Justice Department had no record of prior offending: at [64].

65. [248]

    On sentencing, the interaction between the Detention Centres Act and the Occupational Health and Safety Act arose to be considered for the first time, because of the cases which the parties then advanced.

66. [249]

    In resolving what was in issue about that interaction, Staunton J referred to views I had earlier reached in WorkCover Authority (NSW) (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44; (2002) 112 IR 245. There, I had to consider how obligations imposed by the Occupational Health and Safety Act in respect of the risk of patients violently assaulting staff and the obligations owed to patients under the Mental Health Act 2007 (NSW), needed to be balanced. I also considered where the Health Service’s obligations lay when that balance demanded competing considerations be taken into account.

67. [250]

    Staunton J concluded that in balancing all the applicable legislative requirements at a detention centre, what was required was that a detainee be “properly risk assessed, and, with that knowledge and relevant input from the school staff, she be placed within a learning environment which both diverts and educates her, while at the same time does not expose school staff to unnecessary and foreseen risk of harm”: at [46].

68. [251]

    The result was that the State’s offence was found to have been extremely serious, requiring the imposition of a fine involving an element of specific deterrence. The maximum penalty was then $825,000, with the sentence imposed before discount for the State’s plea being $420,000. This was despite evidence of the extensive steps taken after the offence to ensure that it could not reoccur and the profound legacy the death caused by the offence, had undoubtedly had for the State and its agencies: at [57]-[61].

69. [252]

    Staunton J’s conclusions were not challenged on appeal. I followed her Honour’s approach in Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97. There, I rejected the defence case that balancing the necessary statutory obligations required duties under the Occupational Health and Safety Act to give way to those imposed by the Detention Centres Act: at [144]-[150].

70. [253]

    An appeal against that decision failed: State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No. 2) [2011] NSWIRComm 33; (2011) 210 IR 112.

71. [254]

    The result was that the State was bound by that line of authority. The impact this had on its later approach to safety at detention centres, including Cobham, is apparent from the evidence, albeit by 2016 the Work Health and Safety Act was in operation.

72. [255]

    This explained the careful attention which was then being paid at Cobham to ensure the safety of detainees and staff, and that a cautious approach was pursued to managing risks to safety which detainees, including DE, posed. That approach, it must be accepted, was driven by the Work Health and Safety Act, part of a now national approach to ensuring safety at workplaces.

73. [256]

    The nature of the onerous duties that Act imposes were explained in Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 and Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36. In Silver City, Basten JA explained that:

74. [257]

    This explanation underscores the complexity of the various obligations which the regulatory regime imposed on the State and those who worked at Cobham and why Mr Vita pursued the cautious approach he explained to the assessment and management of risks which detainees posed.

75. [258]

    The Work Health and Safety Act does not replicate the even more onerous burdens previously imposed by the Occupational Health and Safety Act on employers and others in this State: see Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1. However, the imposition of significantly higher penalties than provided by the predecessor legislation cannot be overlooked. There was no industrial manslaughter offence, for example, under the Occupational Health and Safety Act, and penalties otherwise were much lower.

76. [259]

    These developments reflect that while our civil society intends those it detains in juvenile justice detention centres be cared for, educated, treated humanely and kept safe while deprived of their liberty, as the Detention Centres Act provides for, those are not its only important aims.

77. [260]

    The laws enacted by Parliament do not permit these admirable aims to be achieved at the expense of the safety of those who work at, visit or are detained in detention centres. Our society has not accepted that those who work there must risk injury, let alone death, as a result of the work they have agreed to perform. That is why it requires, even in detention centres, available steps be taken to protect others from the risks which detainees may pose, serious as they are at times.

78. [261]

    The regulatory arrangements thus aim to ensure that work can safely be performed at detention centres, and that those at such centres for other reasons are also kept safe. This not only requiring safety to be given constant consideration in the operation of such centres, but that it be ensured as far as reasonably practical. It is no coincidence that both legislative schemes focus attention on what is practical.

79. [262]

    The Detention Centres Act expressly contemplates that what is reasonably practical in a particular case may require the separation or segregation of a child, even for a lengthy period, if that is necessary, so that safety can continue to be maintained. Albeit imposing important conditions on such decision-making.

80. [263]

    That is no doubt because the outcome of a decision to segregate can be very unpleasant and difficult for a child, as it no doubt was for DE, given what records establish about his experience. It may even put the safety of the child at risk, although that was not established in DE’s case.

81. [264]

    A decision to impose or continue segregation will thus always raise the need for the decision-maker to carefully consider the risk of psychosocial injury to the child. As the evidence of the psychologist Ms Byrne revealed occurred in DE’s case.

82. [265]

    DE did not claim to have suffered any injury from his segregation, so it must be inferred that the risk of such injury was appropriately managed in his case. Injury not being established by the cross-examination of Ms Byrne about how his health was managed, or by the suggestion that other steps could or even should have been taken at the time, to manage his risks, given what came to be known about his situation during his segregation.

83. [266]

    It is not difficult to envisage circumstances arising in a detention centre where weighing the considerations specified in the two legislative schemes, which must operate harmoniously, as DE accepted in final submissions, will be difficult: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382; [1998] HCA 28. I will return to the issues concerning the proper construction of the Detention Centres Act. But I cannot see that its proper construction could ever require the risk of an offence under the Work Health and Safety Act being committed, having to be taken by the decision-maker.

84. [267]

    The submissions finally advanced for DE appeared to accept this. The dispute about the challenged decisions and the claimed breaches of the Detention Centres Act have to be considered in this context.

What is required of decision-makers such as Mr Vita?

1. [268]

   What was required of decision-makers such as Mr Vita is long settled to be “that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. The decision must be legal and regular, not arbitrary, vague or fanciful. The discretion must also be ‘exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself’”: Sharp v Wakefield [1891] AC 173 at 179 explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [65]-[66].

2. [269]

   I am satisfied that the evidence established that Mr Vita adhered to these long settled requirements, taking the required care in his approach to his decision making about DE and what safety required in the circumstances. As I have explained, what he was obliged to do so was also closely regulated by the Detention Centres Act and the Work Health and Safety Act, as well as by the common law.

3. [270]

   His careful approach was evidenced by his prompt decision on 25 June, when the conduct of DE and others on the Mandela Unit was first brought to his attention, as well as by the decisions he later took. This included keeping DE segregated, arranging a special DRMP meeting for 9 am on 27 June to gather his team and consider what DE and the other detainee, who he believed also required a period of segregation, had done. Mr Vita did not leave these decisions to be dealt with at the regular weekly DRMP meeting, but acted promptly to deal with the safety issues which had materialised.

4. [271]

   Mr Vita made his later decisions in light of the information gathered during DE’s segregation, considering the ongoing risks which had to be managed in light of the views of his DRMP team. The result was the imposed conditions being relaxed in DE’s ongoing segregation as Mr Vita became confident that safety could be ensured during DE’s increasing interaction with other detainees. This approach was pursued until Mr Vita was finally satisfied that his segregation could be safely brought to an end on 18 July, despite the nature of the risks DE still then undoubtedly continued to pose.

5. [272]

   On all the evidence, it cannot be concluded that any of Mr Vita’s decisions were arbitrary, vague or fanciful. Notwithstanding that others, or even Mr Vita himself, with the benefit of hindsight and further experience, might have made different decisions about DE and his segregation, as was suggested to witnesses in cross examination.

6. [273]

   The evidence also established that Mr Vita had regard to the requirements of s 19, as he explained. As well as that his resulting decisions were all approved by those more senior to him.

7. [274]

   But it also established that the process in operation in 2016 did not ensure that all of the requirements of s 19 and the applicable regulations were adhered to, given the time at which some of those approvals were obtained. That appears to have been the result of the way in which the record keeping system operated and the requirements of s 19 were then understood.

Problems with record keeping in 2016

1. [275]

   It is necessary to explain the problems with the record keeping, which gave rise to the dispute about who the relevant decision-makers were.

2. [276]

   DE’s case was that the records kept established that requirements of the Detention Centres Act were not complied with when decisions to separate and segregate him were made. Despite the problems with the records, I am satisfied that on all of the evidence, it must be concluded that it was Mr Vita who made the challenged decisions.

3. [277]

   The Department’s computerised record keeping system, the CIMS system, was plainly intended to maintain the required record of relevant decisions, including segregation decisions made and approvals given. But it did not achieve that aim, nor all that the Regulations required. This is because the system did not always capture who the decision-maker was; the time the decision was made; or when approvals, at times given orally and only later documented, were given.

4. [278]

   This outcome is the result of the way in which the system was designed, without adequate regard to the requirements of the regulatory scheme.

5. [279]

   There were also other handwritten records kept at Cobham. But they also did not always accurately record events which had occurred. The evidence also established that various applicable policies were not always entirely adhered to in practice at the Centre.

6. [280]

   The evidence did, however, establish how the DRMP process, by which required risk assessments were undertaken and decisions to segregate were made at Cobham, resulted in Mr Vita making the challenged decisions about DE. The decisions he made from 27 June having been informed by his consultation with members of his DRMP team.

7. [281]

   The result is that despite the record keeping deficiencies, DE’s case, that it was members of the DRMP committee, not Mr Vita himself, who actually made the decisions he challenged, cannot be accepted. Mr Vita’s denial of the committee having made the segregation decisions, I am satisfied, has to be accepted, despite the limits of Mr Vita’s memory and the way in which the CIMS system was kept.

8. [282]

   The result is, I am satisfied, that this is not a case where the evidence established a delegation of the core aspects of Mr Vita’s decision-making, of the kind dealt with in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs (2023) 279 CLR 1; [2023] HCA 10 at [18], as DE also contended.

Why the evidence established that it was Mr Vita who made the challenged decisions

1. [283]

   Despite the case pressed for DE and that advanced by the State, I have concluded that the evidence established that it was Mr Vita who made all of the challenged decisions which resulted in him being segregated from 26 June until his segregation was brought to an end on 18 July.

2. [284]

   Considerable time has elapsed since the challenged decisions were made. Those who gave evidence, including Mr Vita, readily acknowledged the limits of their memories about DE and the decision-making in issue. They also accepted how difficult segregation could be, particularly for detainees whose mental health could be put at risk as a result. Although some witnesses explained that there were a number of detainees who actually sought, and were provided with, the isolation which segregation or separation resulted in.

3. [285]

   Most of the witnesses had no recollection of DE, or the 25 June brawl, but gave evidence about the various practices which were in operation at Cobham in 2016. They also explained how the CIMS and DRMP systems functioned and what the contemporaneous records kept under then applicable policies, procedures and systems actually recorded. Evidence from other witnesses corroborated important aspects of the evidence given by Mr Vita.

4. [286]

   I am satisfied the witnesses’ evidence was honestly given and must generally be accepted. While the reliability of their evidence was challenged, their credibility was not. DE did not give or call any evidence in order to challenge any aspect of the evidence given by the State’s witnesses, that supporting conclusions I have reached about the acceptance of their evidence.

5. [287]

   Their evidence had to be assessed in light of both their explanations of the limits of their memories and their concessions about matters put to them, when warranted. This shed relevant light on the ordinary operation of Cobham, specifically in relation to: Mr Vita, then newly appointed, who was making various operational changes in 2016; how the risks DE and other detainees posed were managed; and how statutory obligations, in relation to ensuring safety, were met. This included through the DRMP process which Mr Vita and others explained.

6. [288]

   The State did not call evidence from various officers more senior to Mr Vita who approved various decisions made about DE’s segregation, nor from Mr Ferguson, who was involved in the decision-making on 25 June. Or from the 26 June Duty Manager Ms Howell. Nothing finally turned on this, given what is in evidence.

7. [289]

   In his oral evidence, Mr Vita explained that he did have an actual memory of some relevant events. This included being informed of what had occurred on the evening of 25 June by phone; deciding that night that some of those involved, including DE, had to be segregated until decisions could be made about them at the 27 June DRMP meeting; and speaking that night to the senior officers whose approvals of DE’s segregation were later recorded in the CIMS records.

8. [290]

   Mr Vita also made proper concessions about the limits of his memory and other matters put to him. His evidence was still challenged as not being reliable and he being mistaken in his recollection, which was descried to have been “murky and unclear”.

9. [291]

   I do not accept that description.

10. [292]

    Mr Vita having some recollection of these events accords with him being confronted with the need to manage the 25 June brawl on that Saturday night, having been Cobham’s Centre Manager for only about a month. He was already an experienced Centre Manager, then making changes to practices at the Centre, which others explained.

11. [293]

    The systems in operation at Cobham, whereby the obligations and duties imposed by the regulatory regimes in operation were met there, were explained by Mr Vita and other witnesses. The contemporaneous records corroborated aspects of this evidence.

12. [294]

    The lapse of time since the challenged decisions were made and the deficiencies of the CIMS system contributed to the parties’ disagreements about what decisions had been made about DE; who made them; and when and whether various decisions reflected in CIMS records, which required particular approval given delegations earlier made by the Secretary, had been approved within required times.

13. [295]

    Resolving these disagreements required an assessment of what the contemporaneous documents really showed, as well as what the evidence revealed about what had actually occurred. This explains why I have finally not been able to accept the case which either party pressed, in its entirety.

14. [296]

    That system was attacked as resulting, in DE’s case, in the impermissible use of segregation for the purpose of behaviour management and/or punishment. While the statutory intention was that it only be used to address an immediate and unacceptable risk of danger or harm.

15. [297]

    I am satisfied that this cannot be accepted, given both the evidence and the requirements of the legislative scheme.

16. [298]

    The contemporaneous records established that the challenged decisions were made and approved, even though not necessarily when approvals were given. That being because approvals often had to be given verbally and were only later documented, but the time of verbal approval was not captured in the CIMS system.

17. [299]

    Given the time which has passed since 2016, it is unlikely that Mr Ferguson, Ms Howell or those who approved Mr Vita’s decisions could have shed further light on the making or the timing of the approval of the challenged decisions.

18. [300]

    Emails sent by the Duty Manager Ms Scott on 25 June shed the most reliable light on the first decision to segregate DE made that night, at a time when CCTV footage had not yet been viewed. With all detainees then being placed into their rooms when the entire Unit was put into early lockdown so that order could be restored.

19. [301]

    The emails help establish that it was that night that Mr Vita decided that DE would be segregated until the DRMP meeting he called for the following Monday, when he and other team members would all be on duty again and he could make further decisions. This is despite the emails not identifying Mr Vita as having been the decision-maker.

20. [302]

    The DRMP records provide the most reliable insight into the later segregation decisions Mr Vita made. They, and the various CIMS records, each support aspects of Mr Vita’s evidence about the challenged decisions he made, which resulted in DE’s segregation until 18 July.

21. [303]

    What Mr Vita had to deal with was unarguably very serious. He was informed by phone that the Unit had already been locked down. He remembered receiving that call, albeit not who he then spoke to; also speaking with those more senior to him by phone and them approving the course he proposed, which included segregating DE. These approvals were later documented and DE was kept segregated. Mr Vita’s approach accorded with delegations then in place for approval of segregation which exceeded three hours.

22. [304]

    Mr Vita’s memory also accords with Ms Scott’s emails, which were not sent to him. She then had operational control of Cobham. By her second email, she took steps to inform other managers working at the Centre in coming days of the decision to segregate some detainees, including DE. Her first email was sent to Mr Ferguson, to whom she reported and had to speak to about the brawl. Such written email advice was not required by the system then in operation. But it was obviously an efficient way to convey the required information, her approach reflecting an understanding of the obvious limitations of the CIMS system.

23. [305]

    Ms Scott believed that it was Mr Ferguson who spoke to Mr Vita and then advised her of his decision, to which she then referred in her second email. She undoubtedly pursued a careful approach to the problems which fell to her to manage on 25 June. She had the obligation to hand over control of the Centre when she finished her shift, after order had been restored. That was why she remained that night after the time she would ordinarily leave, to ensure that she could meet her responsibilities.

24. [306]

    Ms Scott had sufficient delegation to have approved Mr Vita’s decision to segregate DE herself, but that is not what her emails or the CIMS records reflect. Both they and her evidence accord with her agreeing with Mr Vita’s decision to segregate DE, which she communicated to others who she considered needed to be aware of his decision, who would be involved in operating the Centre after she finished work.

25. [307]

    Despite the orderly approach pursued that night, Ms Scott, Mr Vita and other witnesses properly agreed that some steps taken that night and later, could have been better managed.

26. [308]

    The evidence of Mr Yagami, a Shift Supervisor as he then was at the Taralga Unit where DE was transferred on 27 June, showed, for example, that one CIMS record kept while he was segregated there was incorrect. But the correct events were recorded by staff on duty in the handwritten daily log which was also kept.

27. [309]

    That log also established another handwritten record of required 20-minute checks of DE in his room, as the applicable policy required, was also inaccurate, as Mr Yagami readily accepted. This was because the daily log established, for example, that DE had been taken out of his room on an occasion when he had a visitor and that he could not, accordingly, have had 20-minute checks undertaken in his room, during that 1.5 hour period, as had been recorded in the check record.

28. [310]

    On all the evidence, the daily log was the most reliable record of DE’s daily segregation. No analysis was undertaken of it to establish how many hours per day he was actually kept in his room. Nothing turns on this, DE challenging as he does the lawfulness of the decisions to segregate him at all times when he would ordinarily not be kept in his room.

29. [311]

    Other records did refer to verbal approval being given for decisions made about DE. The evidence explained how CIMS records made their way to required signatories, which occurred electronically under the automated system. That accorded with the witnesses’ evidence about practices then in operation.

30. [312]

    This evidence included the DRMP procedures which provided, for example, for the development of a DRMP within the first 12 hours of segregation, if it was to exceed a 24-hour period. That did not occur in DE’s case, but such a plan was not required by s 19 of the Detention Centres Act.

31. [313]

    The DRMP procedures did make limited reference to parts of s 19, but not to s 19(1)(b) and the requirement that approval be obtained for segregation for more than three hours.

32. [314]

    DE relied on departures from applicable policies, the Act and Regulations to advance his case that the challenged segregation decisions were invalid. But s 19 did not require the DRMP process to be pursued, nor other procedures to be adhered to during segregation. The conditions of segregation were left to the discretion of the decision-maker.

33. [315]

    Mr Vita’s approach to the management of risks DE posed was explained by his view that DE’s violence on 25 June was serious enough to require his segregation. The result was that it commenced on 26 June, when Ms Howell had no reason to interfere with Mr Vita’s decision. It continued under the conditions which were imposed on 27 June as the result of the DRMP process, they later being gradually relaxed, while ongoing risk assessments were undertaken by staff supervising DE and the DRMP process was pursued. This relaxation continued until Mr Vita brought the segregation to an end on 18 July.

34. [316]

    Mr Vita made his various challenged decisions with the input of what was discussed at the DRMP meetings, which were attended by supervising staff, the psychologist, Ms Byrne, who met with DE while he was segregated, and other team members, including the School Principal. I do not accept that the approach so adopted did not result in a proper assessment of whether reasonable grounds for his segregation existed. Nor that they resulted in the team impermissibly making the challenged decisions, rather than Mr Vita.

35. [317]

    Mr Vita’s evidence was that his cautious approach, taking account of the views of his team members, had been driven by his past experiences of removing a detainee from segregation too soon, with the result that detainees had then further assaulted others. He thus pursued a course of ongoing consideration of DE’s behaviour, as the conditions of his segregation were relaxed.

36. [318]

    Given Mr Vita’s past experience, which was not challenged, that approach was understandable. He had to determine whether the personal safety with which s 19 was concerned could continue to be protected as the Act required. This resulted in the length and times of DE’s daily segregation being relaxed, he increasingly being permitted to mix with other detainees and his handcuffing being reduced, until Mr Vita was satisfied that he could return to mixing freely with other detainees, albeit not in the Mandela Unit.

37. [319]

    Despite DE’s considerable violence on 25 June, which evidenced the risks which he posed, he contended that s 19 of the Detention Centres Act did not permit the course so pursued. On his approach, after 26 June, Mr Vita had to risk him pursuing further violence and himself being subjected to further assaults. DE said that Mr Vita’s past experience of other detainees’ premature release from segregation was not relevant, with what he had done on 25 June having been “spent”.

38. [320]

    That cannot be accepted. In my view, s 19 does not preclude account being taken of past experience of either the detainee or other detainees, when decisions have to be made about segregation and what is practicable, as s 19 requires. A detainee’s violence in detention helps establish the nature and seriousness of the risks to safety which they pose, which have to be managed by those in control of the centre. That prior experience has shown that such risks are heightened, or more likely to materialise again, at particular times of the day and in specific circumstances, must also be taken into account.

39. [321]

    Such considerations are also relevant to the determination of the nature and duration of any segregation imposed; what is “as short as practicable” in the circumstances; and whether there are practicable alternative means to protect the detainee’s personal safety, or that of others for whose protection he or she is segregated, when s 19 requires be considered.

40. [322]

    The fact that a detainee has not engaged in further violence in segregation will be relevant and must be taken into account when decisions are made about whether it should continue or be brought to an end. But alone, behaviour during segregation is incapable of establishing that a detainee no longer poses a risk to personal safety, or that there are means other than segregation available to protect personal safety.

41. [323]

    Section 19 requires a consideration of a wider mix of factors, about which Mr Vita gave evidence when he explained the complexity of the risk assessments he undertook when making decisions about segregation, particularly after a detainee had already engaged in violence in detention.

42. [324]

    I am also unable to accept the submission that the evidence established that a gradual reduction of segregation was always wrongly imposed at Cobham, no matter the ongoing risk a detainee posed, or how well the detainee had behaved.

43. [325]

    That did not fairly reflect all of the evidence, which included that a DRMP did not always provide for segregation although it often did when a detainee had engaged in violence. And when segregation was imposed, it formed part of a careful approach, which included the gradual relaxation of segregation while risk assessments continued to be undertaken.

44. [326]

    Mr Rawling had little memory of the events of 25 June, which the CCTV footage established. But his evidence helped explain the steps taken that day when violence broke out; why the view was taken that DE’s first assault of the other detainee had been a diversion for the other detainees’ attack on another detainee, in which DE finally joined; and why Mr Vita’s segregation decision was made.

45. [327]

    DE took issue with the conclusion which Mr Rawlings came to after speaking to other detainees, which Mr Vita came to share. Namely, that DE had assaulted the first detainee in order to provide a diversion for the attack in which he then joined with other detainees. The victim of this attack was being held in detention on national terrorism charges. On Mr Rawling’s evidence, it was understood from other detainees that those who attacked this victim had an ongoing issue with detainees who were then held on such charges.

46. [328]

    DE’s case was that, in order to ensure fairness, the view that he had attacked his first victim as a diversion had to be put to him before any decision was made to separate or segregate him.

47. [329]

    That cannot sensibly be accepted.

48. [330]

    As I have explained, the evidence was that DE was never isolated from others in order to punish him. The Detention Centres Act only permitted confinement for the purpose of punishment for 12 hours. And the Regulations required that a detainee be given procedural fairness in the event his misconduct attracted internal punishment. DE’s misconduct did not. Understandably, given what the CCTV footage showed and what he admitted on 26 June, he was dealt with criminally for the violence he pursued in detention.

49. [331]

    Procedural fairness requirements are not imposed by the Detention Centres Act in respect of decisions to separate or segregate detainees. This reflects the obligations imposed on those who have to ensure safety at detention centres and that such decisions may have to be made and implemented with considerable haste.

50. [332]

    It thus cannot be accepted that an obligation to give a detainee procedural fairness must be inferred when decisions to separate or segregate a detainee are made. This is not a requirement which the Act expressly imposes and not one which accords with the purpose of such decisions, to help restore order and maintain safety at a centre.

51. [333]

    I also accept, contrary to DE’s case, that staff who were required to make decisions about the safety risks which he posed, which had materialised, were entitled to have regard to relevant information obtained from other detainees. They having to consider what may have caused the violence which had erupted, in order to meet their ongoing obligations to ensure safety.

52. [334]

    This included Mr Vita, when he later made decisions about DE’s ongoing segregation. He was entitled to take into account what the CCTV footage showed; what DE had admitted about his violence when he spoke to Mr Rawlings; that he admitted to offending; what investigations had disclosed; as well as the explanations he gave for his conduct as the DRMP process was pursued. For example, when he spoke to Ms Bird on 29 June, which she conveyed to be considered at the next DRMP meeting.

53. [335]

    While in her first statement Ms Scott revealed she had no actual memory of the events in issue in 2016, Mr Vita’s decision that DE should be segregated until the 27 June DRMP meeting accorded with her evidence about the then usual practice when a serious incident occurred at the Centre. This practice involved:

    1. (1)

       The Shift Supervisor separating detainees to ensure safety and then notifying the Duty Manager, as the written incident advice Mr Rawlings prepared recorded.

    2. (2)

       At that point, separation which had been imposed could be approved or brought to an end by the Duty Manager. In DE’s case, the separation which resulted in the early lockdown was not brought to an end by Ms Scott, who approved it.

    3. (3)

       She acted to ensure that she could implement an orderly handover of the Centre, remaining there on duty while necessary steps to ensure that order was maintained were taken and relevant information about these steps could be conveyed to other staff.

    4. (4)

       Detainees involved being moved to other Units to reduce the risk of further incidents and disturbances in rooms on the Unit where the violence had occurred.

    5. (5)

       With segregation required on some occasions lasting for more than three hours. The Duty Manager having asked the Assistant Manager to inform the Centre Manager, then Mr Vita, to impose such segregation and on weekends, this being done by phone.

    6. (6)

       When incidents requiring police attendance occurred towards the end of a shift, police being called the following day when staff were on duty again, so their reports could first be completed and provided to police.

54. [336]

    This practice also accorded with the evidence Mr Rawlings gave in his statement, that the general practice in 2016 was for segregations to be verbally proposed by the Duty Manager, who advised the Assistant Manager, who then let the Centre Manager know. A record of segregation was then initiated on the CIMS system and sent to those whose approvals were required to be recorded.

55. [337]

    On 25 June, the result of this process was that DE was moved to the Jamison Unit that night and police attended at 2 pm on 26 June, after which he was charged. He later entered pleas to other charges, of which he was eventually convicted and sentenced.

56. [338]

    Ms Scott had made several statements and leave to clarify her evidence in chief was given. She then said that in 2016 she would not have called the Centre Manager directly, but when Mr Vita took up the position, his practice was always to ring the Centre to obtain additional information. This was when she may have spoken to him by phone on 25 June, although she would have spoken first to Mr Ferguson. While Mr Ferguson was not called, Ms Scott’s evidence accorded with Mr Vita’s evidence that he spoke to someone at the Centre on 25 June about the brawl.

57. [339]

    Whether it was Ms Scott herself, Mr Ferguson or both to whom Mr Vita spoke, is immaterial, given what the emails which she sent that night establish.

58. [340]

    Ms Scott was taken in cross examination to an earlier version of her statement, which she had signed but had not been relied on. She was taken to the differences between it and her later statement and asked about how the changes came to be made. She explained that she understood that they had resulted from an objection to something she had said in her first statement. While in different terms, it was not suggested that her second statement was incorrect or contradicted her first.

59. [341]

    The outcome was that nothing came of this and it provided no basis to doubt Ms Scott’s evidence. Nor did her cross examination, or the contemporaneous records.

60. [342]

    What cannot be doubted is that on the night of 25 June, Ms Scott sent her two emails, which explained what had occurred on the Mandela Unit and the results. The first to Mr Ferguson at 8.35 pm and the second at 9.50 pm to other managers, including the 27 June Duty Manager, Ms Howell, to which she attached the message she had sent to Mr Ferguson. They advised:

61. [343]

    These are contemporaneous records which establish the steps Ms Scott took after being made aware of the serious violence DE and others had pursued on the Mandela Unit, likely after being notified by Mr Rawlings. The immediate decision to place all detainees in their rooms early that night had been made and implemented when she heard from him, that being one which she approved and did not disturb. They also establish that the decision to segregate DE until the DRMP meeting was not made by Ms Scott. On all of the evidence the decision-maker must have been Mr Vita, Mr Ferguson having been asked to obtain his approval.

62. [344]

    The daily log kept in the Jamison Unit also reflected that when transferred there on 25 June, it was known that DE was to be segregated there the next day. Ms Scott’s email reflects that by that time, 7.20 pm, Mr Vita’s decision had not been communicated by the second email.

63. [345]

    It follows what was recorded in the Jamison log may have reflected a decision which was then expected to be made, unsurprisingly, given the reasons for DE’s transfer there and the practice then in operation at Cobham or that it had been communicated in some other way. Nothing turns on this.

64. [346]

    In cross examination, Ms Scott denied writing her email to Mr Ferguson to whom she thought she had spoken by phone, because she could not contact him. He was the Assistant Manager to whom she then reported. She could not remember if he had asked her to send him an email, but why she did is ultimately not important.

65. [347]

    Her emails were an obviously efficient way to convey the details of what had happened that night, initially to Mr Ferguson and then to other managers who would be on duty in the following days. The shortcomings of the CIMS system, which involved records of decisions being created only after they were made and required approvals having been obtained orally with such approvals only being recorded later, much later on some occasions, also help explain why Ms Scott sent her emails.

66. [348]

    Ms Scott also said that if she could not have reached the Assistant Manager on duty, she would have phoned Mr Vita herself. But the usual practice at that time was for Mr Ferguson to speak to Mr Vita, after she contacted Mr Ferguson by phone.

67. [349]

    But Mr Vita remembered speaking to someone on the evening of 25 June about what had occurred and deciding that DE had to be segregated until the DRMP meeting could take place the following Monday. This is what Ms Scott conveyed in her email and what occurred. That is why who Mr Vita spoke to that night is immaterial.

68. [350]

    Ms Scott’s second email supported Mr Vita’s evidence. She there referred to the decision which he remembers making, which she wanted to communicate to the other managers she wrote to. This is understandable given the seriousness of what had occurred.

69. [351]

    Ms Scott not sending her second email to Mr Vita casts no doubt on his evidence, or hers. There is no question that the DRMP meeting was arranged as he had decided and that it took place at 9 am on the Monday, while DE remained in segregation. That was when he and the team members all returned to work.

70. [352]

    Ms Scott also explained that the central log recorded important daily events and approvals of decisions made. She was taken to an extract from that log which contained entries about three assaults in Mandela on 25 June and the perpetrators being segregated in the morning, which had been made by other managers. They accorded with Ms Scott’s dissemination of Mr Vita’s decision by email.

71. [353]

    Ms Scott was challenged in cross examination, when she explained the role of a Duty Manager as ensuring the smooth operation of the centre, so that it could be easily handed over to the next Duty Manager. Her evidence included that the Duty Manager was the person in charge of the Centre for issues which arose while on duty, except to the extent that the Assistant Manager or Centre Manager might have to make decisions which had not been delegated to the Duty Manager.

72. [354]

    Ms Scott explained that separation was an immediate response to an incident and segregation could follow, as it did in DE’s case. She explained the CIMS system utilised forms often generated by a Shift Supervisor, which then flowed automatically to those with authority to approve decisions made, as they recorded their approvals.

73. [355]

    In her second statement, Ms Scott explained why she recommended segregation in her email to Mr Ferguson. This was likely the result of the information Mr Rawlings had provided about the serious incidents DE was involved in with multiple detainees. They included his unprovoked attack on a detainee.

74. [356]

    I am satisfied that in the regulatory environment I have explained, there can be no criticism of the approach to the decisions made about DE on 25 June. This is despite it being put to Ms Scott that her evidence involved a reconstruction of what had occurred, given that she had no actual memory of the events.

75. [357]

    Ms Scott agreed that what she was doing when she emailed Mr Ferguson was to give him as much information as she could, and that by that time, she likely had not seen the CCTV footage. It cannot be accepted that she would have come to any other decision had she seen this footage, given what it showed DE had done.

76. [358]

    DE’s case is that his violence ought not to have been considered as having been very serious. That cannot be accepted. Understandably, that was not how it was viewed by those responsible for the safe operation of Cobham. It being notorious that an unprovoked attack can seriously injure or even kill a victim. It was fortunate for DE that he did not actually inflict such injuries, but what was explained in Silver City precluded the approach he urged to his violence having been adopted in 2016.

77. [359]

    Ms Scott also agreed that the movement of detainees to other rooms on 25 June was necessarily temporary and the result of consultation with the Shift Supervisor, because the safety of the resulting mix of boys in the Units to which they were transferred had not been assessed. The aim on 25 June was to restore calm in Mandela by breaking up the group of boys involved in the violence which had broken out and to pursue a DRMP process for DE, given his behaviour and the segregation which it necessitated.

78. [360]

    Ms Scott agreed that she had no email response from Mr Ferguson on 25 June. Her normal shift finished at 7 pm, after which she was on call. But that night she remained to deal with the incidents, to ensure the ongoing safe operation of the Centre.

79. [361]

    Irrespective of how Mr Vita was informed of the incidents, or how the decision I am satisfied he made on 25 June about DE’s segregation until the DRMP meeting on 27 June was conveyed or documented, I am satisfied on all the evidence that it was he who made that decision. The decision made on Sunday, after the overnight lockdown came to an end, Ms Howell having no reason to depart from Mr Vita’s decision, which was to document it in the CIMS system. It thus continued to have effect on the Monday until Mr Vita had made his further decision about DE at the DRMP meeting.

80. [362]

    The 26 June CIMS record reflected DE’s segregation that day from 9 am, when overnight lockdown ended to 7.20 pm when lockdown began again. It referred to the reason being his unprovoked attacks the previous day. This record also reveals some of the deficiencies of the CIMS system, given that it does not identify Mr Vita to have been the decision-maker or when verbal approvals were given. Or that the decision was to segregate DE on 26 June until Mr Vita made further decisions at the DRMP meeting on 27 June.

81. [363]

    Mr Vita saw this record and approved it on 27 June when he returned to work. He did not remember Ms Howell calling him on 26 June about DE. This accorded with his 25 June decision, having been to continue DE’s segregation until the DRMP meeting on 27 June.

82. [364]

    The record which Mr Vita signed thus did not actually reflect his earlier decision. There are similar problems with other CIMS records. On all the evidence, I am satisfied that this record does not establish that it was Ms Howell, rather than Mr Vita, who made the first challenged segregation decision.

83. [365]

    The result of the process pursued was that all of the information which s 19(3) of the Detention Centres Act and r 10 of the Detention Centres Regulation required be kept of the 25 June decision was not captured by the CIMS record. While more was captured by the handwritten daily log, the regulatory requirements were still not all strictly adhered to.

84. [366]

    The 26 June record noted that the time of DE’s segregation did not exceed a period of 12 hours. Ms Howell’s approval was recorded at 5.48 pm, as the most senior delegate on site, with Mr Vita’s approval as Centre Manager noted at 8.35 am on 27 June. On his evidence, that was the first time he attended the Centre after making his 25 June decision, and so the first opportunity he had to record his decision electronically.

85. [367]

    Ms Scott explained that while it was important for required approvals of segregation decisions to be obtained, it was common for them to have to be obtained verbally and recorded later. The result was that a proper record of when such oral decisions were made and approvals were given was not necessarily kept. When a CIMS record was created later, it did not require the time of earlier oral decisions to be recorded, despite such particulars being required to be kept: Detention Centres Act, s 19(1)(b) and Detention Centres Regulation, rr 10(1)(f) and (g).

86. [368]

    Ms Scott was also cross-examined about her understanding of the consequences of the decision to segregate DE until he could be risk assessed on Monday at the DRMP meeting. She agreed that was a significant period while DE had not been risk assessed, longer than confinement permitted for misbehaviour. And that it was thus a decision not lightly reached.

87. [369]

    She also agreed that there had not been a prolonged riot on 25 June and that she would not have segregated DE as a result, just to avoid any risk materialising. She also agreed, in retrospect, that it would have been better to assess DE’s risk again on the Sunday morning and that segregation should only be used to deal with a detainee who posed an immediate and unacceptable danger or risk of harm.

88. [370]

    But the view which Ms Scott formed on the Saturday evening accorded with that which Mr Vita reached. Namely, that given the risks DE posed, his segregation until the Monday DRMP meeting was necessary, in order to manage the risks which had materialised. Otherwise, she said, she would not have recommended segregation as she did.

89. [371]

    Ms Scott’s evidence was also that Mr Vita would not always agree with her assessments. She agreed that was because reasonable people could reach different decisions, taking the view that different considerations were relevant to a particular decision and that slightly different information could lead to a different result, as could different experiences and backgrounds. Ms Scott also agreed that segregation which kept a detainee in isolation could have serious and detrimental effects on the detainee.

90. [372]

    But Ms Scott still considered that on 25 June she did not have other options, then having to ensure that DE and other detainees were all protected as required. But she also agreed that she could have asked another Duty Manager to take steps to begin his risk assessment before the Monday.

91. [373]

    But that was not what Mr Vita decided, understandably, given the DRMP process he concluded had to be pursued in DE’s case on the Monday.

92. [374]

    I am satisfied that Ms Scott’s evidence was honestly given and should be accepted. Her evidence accorded with that of other witnesses, including Mr Rawlings and Mr Vita, as well as with contemporaneous documents, despite the deficiencies which I have explained. I do not accept that her evidence helps establish that there were not reasonable grounds for Mr Vita’s initial 25 June decision to segregate DE, with which she agreed.

93. [375]

    To the contrary, her evidence, supported as it was by contemporaneous records and the CCTV footage, helps establish the serious risks to safety which staff on duty and Mr Vita had to deal with on 25 June, after they materialised. This included in DE’s case, as the result of his unprovoked attack and the brawl in which he involved himself. The approach pursued as a result that day accorded with the requirement to take practical steps available to those responsible for ensuring safety at Cobham, to protect detainee’s personal safety, as well as the safety of others.

94. [376]

    In his statement, Mr Vita explained that he had a memory of what he had learned and done on 25 June. He did not remember when he was first notified of the incidents that night, but he explained the practice he had then implemented in such serious incidents, which that night had involved seven detainees who he concluded all posed significant risks. This approach usually included segregation, until a DRMP meeting could be held.

95. [377]

    Given the regulatory environment I have explained, there can be no just criticism of that approach.

96. [378]

    In Mr Vita’s cross examination, he agreed that in part his evidence reflected a reconstruction of the available documents and what the CCTV footage showed. He also agreed the changes he had made by 25 June 2016 at Cobham included changes to written policies, as well as to unwritten work practices.

97. [379]

    He also explained the difference between a detainee’s separation — for factors such as gender, age or vulnerability or to restore order — and segregation imposed for the safety of a detainee or of others. He also explained what was involved in the development of a DRMP risk management plan, which could involve the ongoing imposition of segregation.

98. [380]

    Mr Vita also explained that while segregation was intended to deal with immediate and unacceptable risk, such risks could be ongoing. As a result, segregation could be imposed and continued for a time, given the need to be certain that the risk had abated when segregation was brought to an end. He explained because “you don’t want that assault to happen again”.

99. [381]

    Mr Vita also explained that he would not remove someone from segregation unless sure, to the best of his ability, that the risk which had to be dealt with had absolutely abated. He agreed that the critical issue was that segregation be linked to safety. Given the regulatory environment I have explained and the complexity of the risk assessments which necessarily had to be undertaken, that approach also cannot sensibly be criticised.

100. [382]

     Mr Vita was taken to the segregation policy, which required that approvals of a segregation be obtained as soon as the immediate risk was contained, and it was safe to do so. Further, that approvals be obtained promptly, which helped explain the practice of oral approvals being obtained and later recorded. He also explained he could make a decision about segregation when it was recommended to him. Or that he could be asked to approve such a decision already made by another manager.

101. [383]

     On 25 June, DE’s segregation had been recommended to Mr Vita. He said he remembered the phone call that night, but not who called or the time of the call. There was then no general practice of recording such a call. He thus accepted the call, which was then the only way to reach him, might not have been made by the Duty Manager, but by the Assistant Manager, to whom the Duty Manager had reported. That accorded with the evidence that Mr Vita was then in the process of changing practices at the Centre.

102. [384]

     Mr Vita had not seen the emails Ms Scott had sent Mr Ferguson, but they accorded with him having been advised of what had occurred and making the decision Ms Scott advised of in her second email. The information on which Ms Scott and Mr Vita both acted included the view which Mr Rawlings shared, that the detainees had collaborated in their attacks. Mr Vita said that his concerns included that there had been a premeditated attack and sophistication by DE, who had provided a distraction, while the other assaults were pursued.

103. [385]

     Ms Scott’s emails also accorded with Mr Vita’s recollection that he had been thoroughly filled in on 25 June, when he needed information to pass on to his superiors. He denied not having been informed of the incidents that night. He said that even on the weekend, he remained the person with overall responsibility for the Centre who needed to be informed of an incident of such magnitude, so that he could convey the information to those more senior to him.

104. [386]

     Mr Vita also agreed what he decided on 25 June intended that DE be held in segregation until both police attended on Sunday and the DRMP meeting on Monday could take place. He considered this to be a necessary risk mitigation strategy, pursued in order to prevent those events recurring. That was why he was certain that DE had to remain in segregation until the DRMP meeting could be held.

105. [387]

     Mr Vita also said he considered the risks DE then posed to be too high to permit his release from segregation on 26 June. I can see no basis on which that evidence could be rejected, despite DE’s case that by then he no longer posed a risk which required segregation. Mr Vita’s evidence accords with what the CCTV footage established he did, as well as DE’s then existing classification and resulting reclassification.

106. [388]

     I have thus concluded it must be found that it was Mr Vita who decided to keep DE segregated in his room when he was not in normal lockdown on 26 and 27 June, until his risks could be assessed at the Monday DRMP meeting when a plan was to be developed to manage the ongoing risks which he posed.

107. [389]

     That is not entirely reflected in the CIMS records later created and signed by Mr Vita and others, as I have explained. On all of the evidence, I am satisfied that this is the result of deficiencies in the system which then operated. Those deficiencies cannot result in a finding that it was not Mr Vita who made the decision which kept DE segregated as he was until Mr Vita made his further decision on 27 June, which he challenges.

108. [390]

     Nothing that Ms Howell did on 26 June had any impact on that decision.

109. [391]

     On 27 June, there was a further CIMS record created by Mr McCann, the Jamison Unit Manager, in relation to DE’s separation that morning until 9 am, which was also inaccurate.

110. [392]

     27 June was Mr McCann’s first day as Unit Manager of the Jamison Unit. He had received Ms Scott’s second email. He did not have time to create his CIMS record until after the further decision made by Mr Vita about DE’s ongoing segregation at that morning’s DRMP meeting. To that point, there had been no assessment of the risks to safety which DE posed while being held on the Jamison Unit. After the DRMP meeting he was transferred to the Taralga Unit after a risk assessment of him being held there.

111. [393]

     Mr McCann was thus aware of Mr Vita’s 25 June decision and the further consideration being given to DE at the DRMP meeting on 27 June, and of the resulting need to keep DE in his room while it took place.

112. [394]

     Mr McCann’s recollection was that he did not have time to create the CIMS record until the afternoon, after the DRMP meeting had concluded with Mr Vita’s decision that DE would continue to be kept in segregation in the Taralga Unit.

113. [395]

     But the result of all that occurred was that Mr McCann’s decision to separate DE until 9 am on 27 June had no practical effect. The Detention Centres Act does not contemplate that a detainee, who is already segregated as the result of a decision made in accordance with s 19, can at the same time be separated as the result of a later decision made by someone else under s 16.

114. [396]

     There was no issue that if a s 19 decision was ineffective, a further decision could be made under s 19. Or that in appropriate circumstances, a decision could be made under s 16. But the evidence does not establish that this is what occurred in DE’s case on 27 June. Mr Vita’s 25 June segregation decision was still in effect when Mr McCann purported to make his separation decision.

115. [397]

     The record Mr McCann created that day thus cannot be accepted as reflecting DE’s true position.

116. [398]

     Mr McCann explained the period of separation he approved ending at 9 am, when the DRMP meeting commenced and DE’s further segregation commencing only at 11 am. That reflected the then practice that detainees who did not attend school with other detainees being kept in their rooms on the Jamison Unit. There was no staff available to supervise such detainees outside their rooms while they were not at school. It was thus unnecessary to make a decision to separate DE during this time, because he was being kept in his room as part of Cobham’s normal operating procedures.

117. [399]

     This resulted in a two-hour gap in the CIMS record which Mr Vita acknowledged was not satisfactory and on DE’s case, resulted in his wrongful imprisonment. He having been kept in his room as he was between 9 am and whatever time the segregation decision was made at the DRMP meeting, having involved a breach of s 19 of the Detention Centres Act. DE also advanced arguments about the limitations of the delegation Mr McCann had to deal with the 25 June incident by his 27 June separation decision, which could not be imposed for the convenience of the DRMP committee.

118. [400]

     But I am satisfied that this does not reflect what actually occurred.

119. [401]

     Mr Vita could not recollect the lockdown system in operation in 2016 for those not attending school. But I can see no reason for rejecting Mr McCann’s evidence about how the Jamison Unit then operated, when detainees did not attend school, giving available staffing.

120. [402]

     In any event, on all of the evidence, it must be found that DE was kept in segregation on 27 June, as the result of Mr Vita’s 25 June decision, until the further decision he made, as I have explained, at the 27 June DRMP meeting, which was then implemented. It resulted in his transfer to the Taralga Unit, where he was also segregated.

121. [403]

     Despite what Mr McCann understood at the time, when he considered that he had to separate DE until the DRMP meeting commenced, but not needing to do so for the period from 9 to 11 am because of the ordinary operation of the Unit for those not attending school, Mr Vita’s 25 June decision remained in effect. The result was that the CIMS record Mr McCann later created to reflect his earlier decision did not accurately reflect the decisions in operation on 27 June.

122. [404]

     Mr McCann’s separation decision was incapable of displacing or altering Mr Vita’s 25 June segregation decision. It was that decision which had the result of keeping DE in segregation on 27 June until Mr Vita made his further segregation decision that day.

123. [405]

     Mr Vita explained how he came to make his 27 June decision, which was evidenced by a DRMP record as well as by a record of segregation. The decision was that DE’s segregation had to continue until 12 July, subject to review on 5 July. He could not remember attending this meeting or discussing it with those who had approved his decision, as was his practice. The timing of when his decision was made, or when their verbal approvals were given, were also not captured in the CIMS record.

124. [406]

     The decision was recorded as being supported by Mr Ferguson and was implemented after the meeting ended at 11 am on 27 June. The decision was electronically signed by Mr Vita in the afternoon and approved by the Regional Director and Director of Statewide Operations on 28 June.

125. [407]

     These records reflected what DE did on 25 June, as captured by CCTV footage which did not record sound. DE’s conduct included physically attacking the other detainee speaking on the telephone in a hall, without provocation, after leaving the group of detainees to whom he had been speaking; and then involving himself in the brawl where the other detainee and staff were being attacked by the detainees DE had previously spoken to, before assaulting his first victim.

126. [408]

     Mr Vita’s evidence included that his decision that day rested not only on the footage, but on other information discussed at the meeting, which he considered together with the views which his team members then expressed.

127. [409]

     DE’s case was also that Mr Vita’s participation in the DRMP meeting he chaired that day did not involve a proper exercise of the s 19 power. He contended that the evidence did not establish that the requirements of s 19 were then adhered to, because the decision was actually made by the DRMP team, not Mr Vita. DE argued that his evidence that he had made his decision, was contradicted by that of Mr Dowse, also an Assistant Manager who then reported to Mr Vita. Mr Dowse having explained that a vote was taken at such meetings about issues that were not agreed by the participants, with the majority vote then prevailing.

128. [410]

     But Mr Dowse did not attend the 27 June meeting. He remembered DE’s name, but nothing else about him.

129. [411]

     In his evidence, Mr Dowse explained matters such as how Cobham was staffed in 2016; his role; and the DRMP process, which involved regular Tuesday meetings and special meetings being called to deal with incidents such as those of 25 June. He also explained how the DRMP meetings were conducted to ensure that all attendees could have input into the development of a plan and the conditions imposed on a detainee. This included the input of a psychologist, who provided guidelines for staff to deal with an escalation of risky behaviour and how to best manage a detainee from a psychiatric perspective.

130. [412]

     Mr Dowse also explained:

     1. (1)

        How a Classifications Officer undertook detainees’ risk classification on entry into detention, when induction was undertaken;

     2. (2)

        How the plan devised at the 27 June meeting for DE was implemented, with DE being transferred to the Taralga Unit where he was not permitted to mix with other detainees, given high risk detainees such as him there having to take their recreation under the supervision of staff in one of three available recreation areas; and

     3. (3)

        The system of daily logs kept at Cobham.

131. [413]

     Mr Dowse was extensively cross examined about his role and responsibilities; those of other managers; staffing; rosters; how shifts operated; what separation and segregation involved; and the DRMP process, including how disagreements about appropriate conditions were discussed at meetings and resolved, sometimes with a vote and a majority view being adopted. As well as how the written record of a DRMP would later be created by one of the attendees and then approved after the meeting.

132. [414]

     Mr Dowse said that there were some 80 detainees at Cobham in 2016, and up to 6 on a DRMP which were reviewed weekly. Those posing higher risks being subject to segregation. He explained how detainee classification was taken into account in their placements. And he agreed that the approach then pursued was to manage their risks by reducing restrictions over time.

133. [415]

     Mr Dowse also said that the records indicated that DE had been involved in serious misbehaviour during a significant incident at the Centre, which had been referred to police. He explained how DE’s conditions limited the times he could be out of his room during segregation on Taralga, given staffing arrangements in place there. In DE’s case, handcuffing impacted his ability to enjoy such recreation and other conditions leaving him unable to use cutlery, thus limiting his food selection.

134. [416]

     Mr Dowse also explained DE’s access to the TV in his room was subject to him not misbehaving, that providing an incentive for good behaviour. He agreed that for segregated detainees, the risk of misbehaviour was sought to be minimised by encouraging behaviour modification through both incentives and disincentives.

135. [417]

     Ms Byrne, the psychologist, who attend the 27 June and other DRMP meetings explained: her role and how she came to prepare the records she kept of her meetings with DE, the details of which she no longer remembered; what she shared at DRMP meetings; and what she had recorded in the DRMPs, which she had input into, because of her meetings with DE during his segregation.

136. [418]

     Ms Byrne was also extensively cross examined about the practices in operation in 2016. This included why managers had no access to the entire records she kept about detainees and what DE’s records showed about his health. It had been noted on his induction that DE was awaiting the results of brain scans, although these were not obtained by the time decisions were made to segregate him. These records were not in evidence but were relied on to advance DE’s case.

137. [419]

     Ms Byrne explained the type of cognitive assessments undertaken at the time for those held on remand, as well as her interactions with DE and her involvement in the DRMP process. She did not have specific recollections of DE but explained that her role was to help others make decisions about how to address his involvement in serious violence at the Centre, including by providing guidelines for staff about how to safely interact with him to minimise risk.

138. [420]

     Ms Byrne explained that decisions such as isolating and handcuffing DE were not for her to make. That accorded with Mr Vita’s evidence, although he said that he took account of her input, as well as that of other team members. But she did not agree that if handcuffed and supervised by two staff, DE could not pose a risk to safety, believing he was still then able to hurt someone. She also explained that when segregation was imposed, she would not recommend it be removed entirely after a week. Further, she said that if mental health issues arose during segregation, she would give advice about what should be done differently.

139. [421]

     Ms Byrne agreed that segregation made conditions of custody more difficult for a detainee, and that it was common for detainees to feel like they were singled out and not treated the same as other detainees. She agreed that it was important for detainees to be asked about their version of events before being held in isolation, which she considered could help give them confidence in the DRMP process.

140. [422]

     She also agreed that DE had told her that he only punched the other detainee a few times as payback for an earlier assault, which was relevant to the assessment of the risk which he posed.

141. [423]

     Ms Byrne also explained how, in custody, dynamic risk assessments had to constantly be undertaken. This included assessments conducted informally in her own role, as well as through separate, formalised risk assessments of detainees. She also explained her approach, that DE’s good behaviour over time supported his gradual reintegration into the general detention population, which she recommended.

142. [424]

     She explained how appropriate conditions were assessed at the regular DRMP meetings, with planned ongoing counselling and other strategies being pursued to manage the risks DE continued to pose. She also explained why she saw merit in him having cognitive behaviour therapy, which a psychologist or counsellor could provide, and how this was utilised in her own interactions with him.

143. [425]

     All of this evidence established the administrative arrangements in place at Cobham in relation to assessing and managing detainees’ safety risks, including by utilising the DRMP process. This helped to ensure that relevant matters were considered when segregation decisions were made.

144. [426]

     That these arrangements did not result in the DRMP meeting being held on Sunday 26 June, in my view, is not capable of establishing any breach of s 19 of the Act. Despite it being put to various witnesses that this would have been preferable.

145. [427]

     There is no proper reason for rejecting the explanation Mr Vita gave of how he came to make his decisions, or how he conducted the DRMP process. With the result his decision that the question of whether DE’s segregation should continue, being made on the Monday, when relevant information could be provided by the team, when they all returned to duty, for him to consider.

146. [428]

     The evidence also does not permit, I am satisfied, a finding that it was the team, not Mr Vita, who made the challenged 27 June decision to continue DE’s segregation. Notwithstanding the input of those who attended the DRMP meeting, which the witnesses explained, of which Mr Vita took account in arriving at his decision.

147. [429]

     Nor does the way in which the DRMP document was produced establish that Mr Vita was not the decision-maker. The DRMP record described the 25 June incidents and detailed the reasons for DE’s detention, classification and alerts. It also contained a short description of the reasons for the concern I am satisfied Mr Vita held about DE’s antisocial and aggressive behaviour, and the risks he posed to the safety and security of the Centre. On Mr Vita’s evidence, while prepared by another team member, he usually wrote parts of such documents himself. The psychologist also wrote aspects of it and he only adopted the document when satisfied that the final product reflected his decision.

148. [430]

     This contemporaneous record thus sheds considerable light on the reasons for the decision to segregate DE, although s 19 did not require reasons for such a decision to be given. It was signed by Mr Vita, not all members of the team.

149. [431]

     On 27 June, before the meeting, Mr Vita viewed the CCTV footage and reviewed the relevant records in accordance with the practice he explained. In DE’s case, they included: his high risk classification; a list of alerts, including in relation to his gang affiliations; violence risk information maintained at the Centre; case notes about DE and his behaviour before 25 June, including those made by psychologists; and a case plan prepared by his community case worker. Mr Vita explained the concerns which that information raised about how safety could be ensured.

150. [432]

     At the time, DE was 17, powerfully built and similarly sized to adults working in the Centre. One explanation for his attack on his first victim was the victim had earlier challenged him to a fight, which he could not accept because of an injury to his hand. That provided no explanation for DE’s unprovoked assault on 25 June. Nor did a later explanation given to Ms Byrne that he acted in retaliation for an earlier attack on him. Whether that was the attack which had occurred soon after DE went into detention, or another, is not apparent.

151. [433]

     I am satisfied that Mr Vita’s denial that the team made the challenged decision must be accepted, even though the CIMS record also does not identify him to have been the decision-maker.

152. [434]

     The DRMP document reflected that what was known and considered on 27 June included input from the team and that DE’s immediate threat of further violence had been dealt with on 25 June, after order was restored at Mandela, as well as by his ongoing segregation from 26 June.

153. [435]

     What Mr Vita decided on 27 June was that DE had to continue being segregated on conditions specified in the DRMP, in order to protect others against the risks he continued to pose, there then being no practicable alternate means to ensure the required safety.

154. [436]

     The document described the arrangements for the segregation Mr Vita explained he was satisfied were then necessary, given his consultation with those who attended the meeting. It also contained the explanation provided by Ms Byrne of DE’s history; information he had disclosed about his problems with stress and emotional regulation; why he could not mix with others; and how the management of his behaviour should be approached by staff, given how he acted impulsively.

155. [437]

     Strategies for dealing with his violence, threats, body language which might suggest violence; how to diffuse such threats and provide him with positive feedback; and facilitating access to the psychologist, were all there explained. Advice was also given about how staff should communicate their directions; listen to DE’s concerns; and assist him. Risk reduction strategies were also outlined and psychological follow-up to be pursued explained, as were the program’s strategies.

156. [438]

     The DRMP also noted because segregation was to continue, s 19 required that the form be completed and approved before implementation. While it was signed by Mr Vita, this did not occur.

157. [439]

     Still, on all of the evidence it cannot be accepted that this document established that it was the team, rather than Mr Vita, who was the decision-maker.

158. [440]

     The records also do not capture the time when Mr Vita’s decision to continue segregating DE was made. Nor do they establish how long after the decision was made, that approval of continuing segregation was given. Mr Vita could not remember the time of his decision, there having been two detainees who were considered at the 27 June meeting. The records kept did indicate that DE’s segregation had commenced at 11 am.

159. [441]

     Mr Vita electronically indicated his support and approval of this plan later on 27 June. But Mr Wilson, the Director of Statewide Operations, only indicated his approval on 28 June.

160. [442]

     The decision Mr Vita made and implemented was to segregate DE until 12 July, subject to the planned review at the 5 July DRMP meeting, on the specified conditions.

161. [443]

     At the 5 July DRMP meeting, the 27 June DRMP was reviewed and the conditions imposed were relaxed. On Mr Vita’s evidence, he then decided that DE’s segregation had to continue, but under relaxed arrangements. I am also satisfied his evidence, that it was he who made that decision, must be accepted.

162. [444]

     The records reflected that DE was then to be moved to the Carter Unit, with his segregation continuing for shorter periods each day, despite him by then having been reclassified as A1. It was then noted that the relaxed plan facilitated his improved behaviour. The review document shed light on DE’s compliant behaviour in segregation in the Taralga Unit, as well as one incident of agitated behaviour.

163. [445]

     DE’s case was that by 5 July, his behaviour provided no proper basis for his ongoing segregation, even on the relaxed conditions. He also contended that if it was then safe for him to have been permitted to mix with those in the Carter Unit at some times, there was no reasonable basis for him to continue being segregated at other times. This was disputed.

164. [446]

     Mr Vita’s evidence included that the main consideration on this review had been what relaxation could be permitted, given DE’s improved behaviour and compliance with staff directions. DE’s reclassification to the highest risk classification was then of concern to Mr Vita, as was DE’s level of violence on 25 June. That remained at the forefront of his thinking and prompted his ongoing concerns about the safety of other detainees and staff having to be protected.

165. [447]

     Mr Vita explained that his strategy then was to allow staff to continue observing DE’s behaviour over another week, while giving him opportunities to mix with other detainees in the afternoons. This permitted the continued risks he posed to others, and those they posed to him, to be assessed as DE was gradually reintegrated, without getting into trouble or misbehaving. While Mr Vita said he took account of the requirement that segregation be as short as possible, he also considered his prior experience which had shown that a one-week period was the right amount of time for the necessary assessment of relaxing conditions to be undertaken, when a detainee had been violent.

166. [448]

     Mr Vita thus decided to pursue a “gradual step down” approach to the management of DE’s risks, which he still had to consider further, before segregation was brought to an end.

167. [449]

     The arrangements then imposed were also driven by practical considerations. They included the need to manage the risk of retaliation and the presence of cutlery at mealtimes, which could be used as weapons. As well as the risks which participation in recreation posed, giving DE the opportunity to run away, to climb on structures and refuse to return to the Unit. That resulted in DE requiring greater supervision compared to other detainees, who had access to self-development programs during recreation, which DE was still not approved to participate in, because of the higher degree of supervision he required.

168. [450]

     That also had an impact on when DE could safely be permitted to access the recreation areas of the Carter Unit. The use of these areas by other Units also made it preferable for DE then to remain within that Unit. The school also did not accept detainees while on segregation and Mr Vita did not consider it was safe to have DE mix with unsegregated detainees in the Unit, while others attended school.

169. [451]

     In cross-examination, Mr Vita said the nature of the violence which had taken place on 25 June, even over the course of no more than a few minutes, meant that DE still presented an immediate and unacceptable danger on 5 July. The segregation policy reflected that if this remained the position, a detainee could continue to be segregated.

170. [452]

     Mr Vita explained that to bring DE’s segregation to an end, he had to be satisfied that DE would not engage in violence of the kind he had pursued on 25 June, when he had engaged in an unprovoked and serious assault.

171. [453]

     By 5 July, there were still signs that the risks which the DRMP was designed to address remained. Since that was the position, Mr Vita decided DE’s segregation had to continue.

172. [454]

     Mr Vita accepted that it could take only a couple of days for someone to no longer exhibit such concerns. But he explained that reaching the required confidence about safety required took as long as it needed. The progressive relaxation of DE’s conditions enabling him to consider whether his concerns about his risks had been removed, and if the segregation imposed to protect against these risks, had succeeded.

173. [455]

     Mr Vita explained that while incentives for better behaviour and disincentives for worse being provided by conditions imposed during segregation might sound like punishment, they were rather intended to help deal with risks. He agreed that there were other ways to encourage or discourage behaviour. But he did not consider them suitable during the time that DE continued to be segregated, given the conclusions he had arrived at after consulting his multi-disciplinary team about the risks DE continued to pose and how they could be safely managed.

174. [456]

     Mr Vita also agreed that at times detainees had been segregated for days or even weeks in order to reduce the risk they posed. While behaviour modification could be one outcome of such segregation, he said that its purpose was to maintain the safety of detainees and staff.

175. [457]

     Mr Dowse did attend the 5 July review and explained in cross examination how DE’s increased classification was then taken into account, the Classifications Officer having attended that meeting. Given DE’s improving behaviour, in accordance with the DRMP practice, he was given increased recreation time as part of a cautious control of his risk level.

176. [458]

     The CIMS record later created was adopted and those who later indicated their approval on the relevant field did so by pressing a button. Mr Vita finally entering his approval, after the record was automatically sent to him.

177. [459]

     Ms Byrne also explained her involvement in the 5 July DRMP process, when DE’s behaviour since 27 June was again considered at the meeting. She understood that DE’s reclassification was the result of the exercise of a discretion, given his conduct on 25 June. In cross examination, she agreed that DE found his isolation difficult, which she had reported to the meeting.

178. [460]

     On all the evidence, I am satisfied that while Mr Vita again took the input of his team into account, it was he who made the 5 July decision to continue DE’s segregation.

179. [461]

     On 12 July, the final plan was adopted at the DRMP meeting, again on Mr Vita’s evidence, following a further decision he made after consulting with the team members who attended the DRMP meeting that day. This plan did not bring the segregation to an end, but relaxed its daily duration and conditions considerably more.

180. [462]

     Mr Vita’s evidence was that he made this decision, then having evidence of a real change in DE’s behaviour and a reduction in the risk posed. This resulted in his decision that DE needed only to be segregated for less than three hours each day, at the time of the daily shower and dinner routines. This was because Mr Vita concluded that DE still could not safely be permitted to mix with other detainees during those times.

181. [463]

     Despite his ongoing good behaviour, Mr Vita then had ongoing concerns about DE’s regulation of his emotions and his aggressive, demanding behaviour towards staff. This was referred to in records then kept in the Unit. He explained that DE remained segregated during the most dangerous times of the day across the Centre, which he judged posed the highest potential for DE to pursue further bad behaviour. Mr Vita then considered that the risks he posed still needed to be monitored and assessed further, in order to ensure safety.

182. [464]

     Mr Vita did not have concerns that such continuing daily periods of segregation could be unreasonable, given DE’s age, mental condition and development. Nor was that suggested by the psychologist’s input. He then wanted to be sure that enough time had passed since 25 June for DE to have stabilised, given the nature of his concerns about DE’s violence that day and the practical risks of him returning to mix with other detainees at known risky times of the day.

183. [465]

     Mr Vita then expected that if DE’s good behaviour continued, he would be able to bring even that limited segregation safely to an end, upon the next review.

184. [466]

     In cross-examination, Mr Vita agreed that from 12 July, apart from the end of the day, DE was treated like other detainees and that he had no safety concerns about DE mixing with detainees at other times of the day, including during meals. It was Mr Vita’s ongoing concerns about greater risks generally posed at Cobham at the end of the day, which then drove his decision to continue DE’s segregation at that time.

185. [467]

     The conditions imposed were also intended to impress on DE the need for his ongoing, orderly behaviour. DE risking them being continued or strengthened, if he did not behave well, there still being ongoing concerns about his aggression and temper.

186. [468]

     Mr Vita also agreed that this decision reflected his approach of gradual relaxation of DE’s segregation over some weeks, which he considered to be the appropriate response to serious risks of the kind he considered DE posed.

187. [469]

     He agreed that apart from meals, there was no reason why DE could not safely use the general recreation areas at other times of the day. By then, he had not formally been dealt with for misbehaviour since 25 June and he was engaging more effectively with staff. There had been a concern about his response when a lunch had been delayed. But Mr Vita agreed that the psychologist’s then observations about DE allowing aggression to build up was not unusual for some detainees.

188. [470]

     But Mr Vita explained that ongoing assessment was pursued in order to achieve a balance, with restrictions being released gradually, as had been his intention from 27 June, and conditions imposed providing incentives, rewards and disincentives, given his ongoing concerns about aggression building up, since DE had already pursued a very serious assault in detention.

189. [471]

     The stated reason in the record kept for the relaxed segregation continuing was the safety of self and others because DE had already assaulted in detention and the concern about an attack on him in the evening, when cutlery was to hand, still remained.

190. [472]

     Separate records of separation were created for each day after 12 July, which reflected the daily implementation of Mr Vita’s decision. They, too, had the deficiency that they recorded when approvals were recorded in the computer system, not when and by whom the relevant decisions were made.

191. [473]

     Mr Vita agreed that if events had occurred during that week, which required an alteration in the relaxed conditions imposed, that would have been considered outside of the weekly DRMP meeting.

192. [474]

     Mr Vita also said that in deciding to segregate a detainee, he always considered questions such as whether there was any practicable alternative to segregation. But his major consideration was how he could meet the risk of further violence, which required continued attention. He agreed that he was also concerned with disturbance to the good order of the Centre.

193. [475]

     Mr Vita also agreed that most detainees found continuing segregation made their detention more difficult, and that he had no reason to think this was not how DE was affected. Segregation decisions thus potentially having very serious consequences for the detainee.

194. [476]

     Mr Vita agreed that it was preferable for segregation to be revisited every day, given the risks to safety on which it depended. But he did not agree that the weekly DRMP process was inappropriate, given that assessments of and discussions about detainees in segregation were ongoing, occurring every day. He had himself visited DE on several occasions, but those assessments had not resulted in alterations to his segregation, between the DRMP meetings.

195. [477]

     Mr Vita also agreed that there came a point when DE ceased posing a risk which necessitated segregation. That was recognised on 18 July.

196. [478]

     Ms Byrne agreed that by 12 July, DE had been held in isolation for a long time for him, given what the DRMP record noted. She agreed that while it was distressing for him, segregation was not so psychologically damaging as to be inappropriate. She considered that DE agreeing to work on whatever she deemed necessary was positive, but he still had his own goals apart from leaving segregation. She also considered DE needed to pursue violence and anger management, thus referring him for more assistance.

197. [479]

     She agreed that DE’s noted behaviour of being disrespectful and demanding, when food had been delayed, was not unusual behaviour for detainees, but explained that aggression in detention was not necessarily common. She accepted that there were then positive signs of DE’s better engagement with staff, but she noted he still allowed aggression to build up and held onto it for long periods of time. That observation accorded with his claim that his 25 June assault had been motivated by payback.

198. [480]

     After 12 July, DE was allowed to have breakfast and lunch with other detainees and to be part of the general population until 4.45 pm, but not at dinner. But Ms Byrne did not agree he then no longer presented a risk to safety. She considered that his risk may have been lowered and that the approach pursued was part of his planned reintegration. She agreed his behaviour would improve when he no longer presented a risk to safety.

199. [481]

     Ms Byrne also identified that DE might have had neurological or memory problems, which she had considered should be pursued with his parents and the Department of Health. Any functional impairment required neuropsychological assessment and brain scans forming part of the overall information relevant to DE’s ongoing risk assessment. Her observations caused her to pursue DE’s parents, with DE also reporting a difference in his impulse control since a head injury before he went into detention. By 12 July, she was using elements of cognitive behavioural therapy in her interactions with him, appropriate for adolescents in custody.

200. [482]

     Ms Byrne also agreed she was considering whether segregation was unreasonable, from the perspective of DE’s age, mental condition or development. However, it was not her decision to determine whether segregation was necessary to protect anyone’s personal safety. She was instead providing information in the DRMP process about what she had observed, including in relation to any changed behaviours such as self-harm.

201. [483]

     In re-examination, Ms Byrne explained what type of matters she pursued with DE as part of her cognitive behaviour therapy approach, as well as the type of psychoeducation he was provided with in counselling sessions.

202. [484]

     I am satisfied that all of this evidence must result in the conclusion that it was Mr Vita, not the DRMP team, who also made the 12 July decision.

The challenged decisions were not made to punish DE

1. [485]

   In final submissions, DE contended that the State had not shown that his segregation was not impermissibly punitive in nature, which s 19(2) precluded. Further, that the conditions imposed on him were intended to ensure good order at Cobham, which s 19 also did not permit. These were both in issue.

2. [486]

   Mr Vita’s evidence was that DE was not being punished by the segregation imposed. His decision having regard to the nature of risks DE posed which still had to be managed, in order to ensure safety. But Mr Vita accepted that the segregation and conditions imposed as the result of the DRMP process were intended to encourage DE’s good behaviour and discourage inappropriate behaviour.

3. [487]

   I consider the safety which DE’s segregation sought to achieve, driven by arrangements intended to ensure that he maintained good behaviour, in order to prevent safety risks he posed from further materialising, did not offend s 19. The approach pursued helped contribute to maintaining good order at the Centre, of which safety is undoubtedly an important aspect. That cannot have involved any breach of s 19.

4. [488]

   The legislative scheme did not permit confinement for longer than 12 hours, when imposed on a detainee as a punishment. But there was no such limitation when safety concerns resulted in either a detainee’s separation or segregation under ss 16 or 19. Nor when detainees were kept in their rooms as part of the normal operation of a centre.

5. [489]

   None of the evidence, including the contemporaneous records, reflected that any of the decisions Mr Vita and other staff made about DE were imposed in order to punish him.

6. [490]

   His violence on 25 June resulted in the later pursuit of criminal offences for which he was eventually punished. Despite DE not accepting this, the evidence established that segregation was imposed and continued at the Centre until 18 July in order that the serious ongoing safety risks, which his behaviour on 25 June confirmed he posed when they materialised in the way the CCTV footage helped show, could safely be managed.

7. [491]

   I thus cannot find that the evidence established that punishment was the real purpose of any of the challenged decisions made about DE’s segregation. This is so notwithstanding what was pursued with the witnesses in cross examination and what they variously accepted about different approaches which could have been pursued at the time. They were also not capable of establishing DE’s claimed punishment.

8. [492]

   The evidence reflected that the statutory scheme does not expressly control how the assessment of safety considerations, which result in either a decision to separate or segregate a detainee, must be undertaken. Nor does it specify particular criteria on which such assessments and the resulting decisions made must be based.

9. [493]

   Section 19 permits segregation when required to ensure personal safety, on the formation of a belief held on reasonable grounds that it is required. Section 16 permits separation to ensure security, safety and the good order of a centre. Mr Vita’s evidence established that he bore such requirements in mind when making his decisions.

10. [494]

    Departmental policies provide decision-makers with guidance, to which Mr Vita also said he had regard, although they were not entirely adhered to. Given the views which he formed about the significant risks which DE’s conduct on 25 June established he posed and how they needed to be safely managed, given how they had then materialised, s 19 permitted the approach he adopted. This involved the exercise of his discretion, having considered and weighed the relevant available information in light of all the applicable regulatory requirements, including the duties imposed by the Work Health and Safety Act.

11. [495]

    The exercise of Mr Vita’s discretion could accordingly not turn only on a consideration of either DE’s best interests and behaviour in segregation, as was also his case. Mr Vita explained that while DE’s interests were taken into account, including the risk of retaliation which he then faced in making his decisions, he also had to factor in other considerations discussed at the DRMP meeting. I have no reason to doubt his evidence and thus am unable to accept that the challenged decisions were impermissibly made in order to punish DE. Nor, impermissibly, to maintain order, given the proper construction of s19, which I will turn to and what Mr Vita intended.

The proper construction of the Detention Centres Act

1. [496]

   In resolving whether any breach of this Act resulted in the claimed wrongful imprisonment, the proper construction of the legislative scheme, particularly s 19, must be considered.

2. [497]

   There was no issue about how the construction of the Act must be approached, the applicable principles being well settled. They include:

   1. (1)

      The task of construction begins, as it ends, with the statutory text, with it from beginning to end having to be construed in context, with an understanding of context having utility “if, and in so far as, it assists in fixing the meaning of the statutory text”: Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22], quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] referred to in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [37];

   2. (2)

      Integral to making a choice between a range of potential meanings is the discernment of the statutory purpose: SZTAL at [39]. But the objects provisions of an Act cannot control clear statutory language: Wacando v Commonwealth (1981) 148 CLR 1; [1981] HCA 60 at [16];

   3. (3)

      The internal operation of a statute must also be construed in a way which best achieves a harmonious result: Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [78];

   4. (4)

      When a statute confers a discretionary power on a decision-maker, it is necessary to look to its scope, purpose and real object, as part of the ordinary approach to statutory construction: Project Blue Sky and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [67];

   5. (5)

      Its construction requires reference to the language, subject matter and object of the statute as well as its statutory purpose, considered within the statutory scheme of which it forms part: Li at [26];

   6. (6)

      A statute may also impose essential preliminaries to the exercise of a power by the express terms adopted and the structure of the provisions in which it is conferred, which may mandate compliance with their requirements: Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510; [2017] HCA 30 at [63]-[64];

   7. (7)

      The necessary inquiry is whether the statutory purpose, considered within that statutory scheme, would or would not be advanced by holding an exercise of decision-making power affected by the breach to be invalid: Project Blue Sky at [91];

   8. (8)

      In determining whether it was intended that a consequence of non-compliance with a statutory condition be invalidity, the relevant considerations include any public inconvenience that might be expected to arise from invalidity; the imperative language of the provision; whether the statutory condition regulates the exercise of functions rather than imposing essential preliminaries to the exercise of functions; and the absurdity of an outcome, that being a strong reason militating against treating non-compliance as a source of invalidity;

   9. (9)

      Departure from any procedural steps, subject to any contrary intention, results in the implication that an act is not invalid if the non-compliance is immaterial: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [174];

   10. (10)

       A statute which contains an express or implied condition of a conferral of decision-making authority does not always deny legal force and effect to every decision made in breach of that condition. The limits of the statutory conferral of decision‑making authority permit the determination of “first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force)”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [4]; and

   11. (11)

       “Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged, in the statutory context within which the decision has been made”: LPDT at [5].

3. [498]

   Whether a failure to adhere to the requirements of ss 16 or 19 when imposing separation or segregation on a detainee resulted in no lawful justification for their imposition, was disputed. As was that a failure to adhere to all of the requirements they imposed resulted in invalidity, as well as the claimed right to damages for wrongful imprisonment.

4. [499]

   The case DE pressed was that the Detention Centres Act required decision-makers to adhere to all of the requirements of ss 16 and 19, failing which their decisions would be invalid. And that decisions made under either provision had to be driven by the paramount consideration, the welfare and interests of detainees on remand: s 4(2)(a).

5. [500]

   Further, that s 19 did not permit segregation to be used as a behaviour management tool, as the evidence established it had been in his case. While accepting that behaviour management could be “linked” to safety, it was argued that such management was “a more gradual task, which takes it outside the purpose of segregation under s 19”.

6. [501]

   Given that it had been envisaged from 27 June that DE would be subjected to further segregation, even if he behaved impeccably, on his case the challenged decisions could not have been based on reasonable grounds, as s 19(1) required.

7. [502]

   As I will explain, the case so advanced cannot be accepted.

8. [503]

   It is settled that when discretionary powers such as those given by ss 16 and 19 and the Regulations in respect of handcuffing are given, they must be exercised reasonably: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; [1990] HCA 21; Kruger v The Commonwealth (1997) 190 CLR 1 at 36; [1997] HCA 27; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650; [1999] HCA 21; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [15]; (2009) 259 ALR 429.

9. [504]

   Whether the challenged decisions were made reasonably was also disputed. But there was no issue that what was reasonable had to be considered in the context of all that the Detention Centres Act provided as well as what the Work Health and Safety Act required. Attention always having to be paid to the duties it imposed, when decisions were made about segregation.

10. [505]

    Not only was the construction of the discretionary powers given by ss 16 and 19 in issue, so was the impact of delegations made under s 39A. and the requirements of the Regulations.

11. [506]

    While regulations cannot dictate how an Act is to be construed, given all that is in issue and what the evidence revealed, it is pertinent to understand how the Regulations gave effect to aspects of the Detention Centres Act, including DE’s segregation under s 19. As well as how they regulated the records which had to be kept.

12. [507]

    In r 10, the Regulations specify the particulars s 19 required be kept about segregation decisions. They did not include the conditions of segregation imposed, although in DE’s case they were recorded in the DRMP records, as I have explained.

13. [508]

    The electronic records kept in 2016 reflected that the challenged decisions had been made and approved. What was not always kept in DE’s case, as r 10 required, was information about the decision-maker, the time the challenged decisions were made and the time when required approval of the segregation decision was first given. In DE’s case by those who had the authority to approve the decisions as the result of specific delegations.

14. [509]

    The Regulations also required general routines for each detention centre to be determined by the Secretary. The Centre Manager was required to ensure a notice outlining the general routine was exhibited in a conspicuous position, where it could be read by those in the centre or part of the detention centre to which it related: r 4. Detainees were also required to be supplied with food, exercise and sporting, recreational and leisure activities: r 9.

15. [510]

    There was no issue that Cobham’s general routine provided for detainees to be kept in their rooms at various times over the course of every day; to eat communally on some Units and in their room on others; and that the routine provided for both normal school and recreation times and when detainees could not access school or recreation. DE’s segregation arrangements paid regard to such routines.

16. [511]

    Part 7 of the Regulations deal with the maintenance of order, including in relation to the use of force, which is permitted “to protect the officer or other persons from attack or harm” and “to prevent or quell a riot or other disturbance”: rr 65(1)(b) and (h). Reports about use of force are also required to be kept: r 66. Regulation 65 also permits the use of force to prevent a detainee from injuring himself or herself.

17. [512]

    Rule 65(3) provides that “in dealing with a detainee, a juvenile justice officer must use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the detainee is to be avoided if at all possible.”

18. [513]

    Detainees must be classified in accordance with r 7. DE was initially classified as A2 and reclassified as A1 after 25 June, as earlier explained.

19. [514]

    Case plans are dealt with in Part 3 of the Regulations. They are required to be prepared as soon as practicable after the detainee is admitted into the detention centre and are to be periodically reviewed, to ensure they remain relevant to the detainee’s circumstances: r 20. What they may contain is specified in r 21. The regulations do not preclude arrangements of the kind imposed by DE’s DRMPs.

20. [515]

    Maintenance of order is dealt with in Part 7 of the Regulations, and misbehaviour in Part 8, with Schedule 1 dealing with misbehaviour which detainees should not engage in, including fighting.

21. [516]

    Unlike confinement, no time limit was imposed by the Act for either separation or segregation, both of which could only be used for purposes other than punishment: ss 16 and 19.

22. [517]

    Neither concept was defined in the Act. Those words take their ordinary meaning. While a policy cannot dictate the construction of a statute, it is pertinent to note that these concepts were explained in documents which the Department issued to staff. They helped explain the assessment processes pursued in relation to the risks which DE posed:

23. [518]

    The meaning of ss 16 and 19 must be gleaned from their statutory context, which begins with the objects of the Detention Centres Act specified in s 4. It also deals with administration, providing:

24. [519]

    DE relied on the requirements of s 4(2) to submit that whenever decisions were made about the separation or segregation of a detainee, his or her welfare had to be given paramount consideration.

25. [520]

    I am not persuaded that this is what the Act required. That is because s 4(2) is concerned with the administration of the Act, not with decisions made about individual detainees.

26. [521]

    Giving paramount consideration to the welfare and interests of all those on remand or subject to control in the administration of the Act, does not dictate that such consideration must also be given whenever any decision is made at a centre about a detainee. Logically, such decisions may have to be made by balancing what the welfare and interest of one detainee may require, with what the welfare and interest of other detainees may require, because they may conflict.

27. [522]

    Decisions about either segregation or separation, will also at times have to be made urgently, in order to restore order or ensure safety. The results impacting not only the separated or segregated detainees, but other detainees. A good example of the pressure under which such decisions may have to be made was provided by the violence which DE and others pursued on 25 June 2016 when they not only put the safety of other detainees at risk, but that of staff as well.

28. [523]

    As the parties agreed, the requirements of the Detention Centres Act have to operate harmoniously with other obligations, such as the duties imposed by the Work Health and Safety Act. That does not support a construction of the Detention Centres Act which requires the welfare of a detainee to be given paramount consideration whenever decisions are made about what safety requires, even if they result in segregation.

29. [524]

    Decisions about individual detainees must, of course, all be made in accordance with the express requirements of the Detention Centres Act and Regulations which apply, taking into account the objects of the Act. Regard also has to be paid to relevant policies adopted from time to time, which may not depart from or override express statutory or regulatory requirements.

30. [525]

    It is in Part 2 of the Regulations that administration is dealt with. Provision there is made for matters such as general routines at centres; admission of detainees at centres and how that must be managed, including by the provision of specified information to the detainees; their classification; the designation of those detained as a national security interest detainee and how they may be detained separately; health and medical attention; maintenance of detainees’ physical wellbeing; segregation for protection; wearing of uniforms; searches; property and various equipment; record keeping; education, and training and detainee access to programs.

31. [526]

    Such arrangements are where the requirement to give paramount consideration to the welfare and interests of persons on remand or subject to control, has an obvious role to play.

32. [527]

    But under the Detention Centres Act, it is for the Secretary of the Department to determine in which centre a person is to be detained: s 11. While on remand in a centre, detainees always being in the custody of the “centre manager”: s 9. That term is defined in s 3 to mean “the person for the time being in charge of” the detention centre. This reflecting the concept of custody explained in Day v The Queen (1984) 153 CLR 475 at 484; [1984] HCA 3.

33. [528]

    Control and management of all detention centres also being given to the Secretary, subject to s 26: s 6. Section 26 providing for the handling of riots and disturbances at detention centres under a Memorandum of Understanding entered with the Commissioner of Corrective Services.

34. [529]

    These sections cast light on the nature of what can arise to be managed at a centre. That driving decisions necessary to address safety risks posed by particular detainees, when they materialise in a centre, as they did on 25 June 2016 at Cobham. On such occasions, as was DE’s case, this may result in a detainee committing a criminal offence in detention, which will be dealt with criminally by police, rather than internally as misconduct.

35. [530]

    There was thus no issue that:

36. [531]

    The treatment of detainees is regulated by Division 2 of Part 3, which applies to persons on remand and persons subject to control. Section 14(1) provides that it is also for the Secretary to ensure that adequate arrangements exist:

37. [532]

    It is in the creation and implementation of such arrangements that s 4(2) also appears to have real work to do. The arrangements brought into existence in accordance with s 14(1) having to be formulated with paramount consideration given to the matters specified in s 4(2).

38. [533]

    On the evidence, the DRMP system, by which conditions for any segregation imposed were devised, formed part of the arrangements in place at Cobham for the management of safety. It also helped maintain discipline, good order, proper control and management of the Centre.

39. [534]

    The evidence also shed light on other administrative arrangements in operation at Cobham, including in relation to staffing. Although not all the relevant written policies were in evidence. Nor did the evidence establish how Cobham, its school and the various Units were all staffed at different times.

40. [535]

    But there was no issue that operating policies were intended to enable staff on duty to deal with the risks detainees posed. DE’s case being that in the decisions made to segregate him, sufficient attention was not paid to the requirements of s 19, the segregation policy, or other alternatives to segregation.

41. [536]

    One of them was separation, which was utilised on 25 June when the Mandela unit was put into early lockdown. Section 16 providing:

42. [537]

    Detainees may be dealt with in accordance with this section despite anything to the contrary in the Anti-Discrimination Act 1977 (NSW).

43. [538]

    Complaints about misbehaviour are regulated by s 20 and punishment for misbehaviour by s 21. Available punishments include caution, restriction from participation in sport or leisure activities and additional duties for a period not exceeding seven days of a constructive nature, designed to promote the welfare of detainees. Punishments include isolation for a limited time, permitting “exclusion from, or confinement to, a place for a period not exceeding 12 hours or, in the case of a detainee of or over the age of 16 years, not exceeding 24 hours”: s 21(1)(d).

44. [539]

    While such exclusion or confinement is permitted, s 22(1)(h) precludes segregation in contravention of s 19, consistent with s 19(2).

45. [540]

    Section 22(2) also provides that “a detainee shall not, without reasonable excuse, be handcuffed or forcibly restrained.” Whether there was always such a reasonable excuse when DE was handcuffed, was also in issue.

46. [541]

    Section 39A permits the delegation of the Secretary’s functions. The evidence established the delegations in place in 2016, in respect of the Secretary’s functions under ss 16 and 19. It was not the persons who approved the challenged decisions, but the timing of the approvals given, over which the parties joined issue.

47. [542]

    Given the conclusion which I have reached about who made the challenged decisions, what is in issue finally largely turns on the proper construction of s 19.

48. [543]

    I am not persuaded that it provides for, or has the result that, segregation which results from decisions which do not strictly adhere to all of the requirements the section imposes, gives the segregated detainee rights to a civil remedy sounding in damages for wrongful imprisonment. Nothing in the section itself, or the statutory scheme pointing to such a result.

49. [544]

    The section provides:

50. [545]

    The highlighted words are those over which the parties particularly joined issue. With much of the cross examination of witnesses directed to the arrangements put in place by the DRMPs by the challenged decisions which were implemented during DE’s segregation.

51. [546]

    The discretion to segregate conferred by s 19 must be exercised according to the rules of reason and justice, given the reason for which it is given: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [24], referring to Kitto J’s observations in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] HCA 27.

52. [547]

    The exercise of a discretion according to the rules of reason and justice stands in contradistinction to its exercise according to “private opinion”. Discretion must be exercised “according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”: Anderson at 189.

53. [548]

    The legal standard of reasonableness is “the standard indicated by the true construction of the statute”: Li at [67]. A decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and plausible justification: at [76].

54. [549]

    The test of unreasonableness is stringent “because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [11]. This is one constraint, the other being the practical difficulty of a court being satisfied that the test of reasonableness is met: Li at [105].

55. [550]

    Whether the requirements of legal reasonableness have been satisfied in a particular case requires “a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn ‘from the facts and from the matters falling for consideration in the exercise of the statutory power’”: Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [26].

56. [551]

    But a requirement of reasonableness is not “a vehicle for challenging a decision on the basis that the decision-maker … has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker”: Li at [30].

57. [552]

    Given the language in which s 19 is couched and how the Detention Centres Act must be construed harmoniously with the Work Health and Safety Act, I am satisfied that it must be concluded that properly construed:

    1. (1)

       Section 19 creates a discretion to segregate a detainee in order to protect personal safety of the detainee or others detained, as well as those working at or otherwise attending a centre;

    2. (2)

       The power to segregate can only be exercised by a “centre manager” as defined, of whom there can be more than one;

    3. (3)

       The segregation power cannot be exercised to punish a detainee;

    4. (4)

       When making the segregation decision the centre manager must:

    5. (5)

       The conditions imposed on the detainee during segregation must have regard to the requirements of ss 19(1)(a)-(d), which must be adhered to during the segregation, in order to ensure that:

58. [553]

    Contrary to DE’s case, while a detainee may only be segregated while ever the Centre Manager has reasonable grounds to believe that he or she should be segregated in order to protect the required personal safety, the fact that they appear to be calm or not misbehaving at a particular time during segregation, is not, alone, capable of establishing that reasonable grounds for the detainee’s ongoing segregation cannot, or do not exist.

59. [554]

    A detainee’s ongoing behaviour is but one of the matters, albeit an important one, which a Centre Manager must take into account when considering whether reasonable grounds for the required belief about segregation exists or continue to exist. Other matters which cannot be overlooked including the nature and seriousness of the risks to safety which a detainee poses and whether and how they may already have materialised in detention.

60. [555]

    What is practicable must also be determined in light of the nature of the risks which the detainee and/or other detainees are identified as posing; whether they have materialised; and how they can safely be managed, given available resources. But as I earlier explained, what is practicable must also have regard to the obligations and duties to ensure safety imposed by the Work Health and Safety Act and whether they can be met, without the imposition of segregation.

61. [556]

    While the duration of segregation must be as short as practicable, what is practicable will depend on what conclusions the decision-maker arrives at about the risks to personal safety which must be managed. Contrary to DE’s case, that does not depend alone on a detainee’s behaviour at a particular time, including when in segregation, although that will inevitably be an important consideration.

62. [557]

    A decision to segregate is only to be made if the Centre Manager is subjectively satisfied that there is no practicable alternative means to protect the personal safety of the person or persons for whose protection the detainee is to be segregated: s 19(4). That necessarily requires consideration of the detainee’s circumstances; how the centre is operated and staffed; and the duties imposed by the Work Health and Safety Act and how they can be met.

63. [558]

    It follows that while the decision-maker continues to have reasonable grounds for believing that it is not safe to end a detainee’s segregation without putting personal safety and the commission of an offence at risk, there will be no practicable alternative means to protect personal safety. Section 19(4) does not require the commission of an offence.

64. [559]

    It follows that the requirement that segregation be as short as practicable will not be breached if it is continued until the decision-maker is satisfied that release from segregation will not put personal safety at risk, or risk the commission of an offence.

65. [560]

    Further, contrary to the case DE pressed, s 19 does permit a decision to segregate a detainee for a week being made, in an appropriate case. The section itself does not impose the limitation urged by DE. Rather, it permits segregation to continue while ever reasonable grounds for the required belief exist. If the required grounds exist for the belief that segregation is required for a week, that will result in segregation which is as short as practicable, in the circumstances.

66. [561]

    It must also be accepted that in considering whether reasonable grounds for the required belief exist, a Centre Manager may have regard to relevant past experience. Including the results of premature release of other detainees who had then further pursued violent offending of the kind which DE had already engaged in, having been released too soon from segregation. As well as the times of day that it is more likely for further violence to materialise.

67. [562]

    Nor does s 19 preclude a decision-maker from concluding that segregation can only be relaxed gradually, in order to enable ongoing assessment of when it can safely be ended, as DE also urged.

68. [563]

    Lawful segregation always depends on the decision-maker having the required belief, on reasonable grounds. Gradually shortening the time of segregation or the conditions imposed, in order to test whether a belief previously held remains reasonable, is an obvious way for a Centre Manager to determine whether reasonable grounds for ongoing segregation continue to exist. And to ensure that an offence is not committed, as the result of the segregation being brought prematurely to an end.

69. [564]

    The evidence established that the risk assessment and decision-making involved in a segregation decision, including in relation to its length and conditions, were complex and difficult. This reflected the serious nature of the risks which detainees can pose on entry to detention, later being revealed to be even more serious than initially identified, when they materialise in detention. That is also why prior experience of the risks of relaxing segregation too soon had to be taken into account when Mr Vita made decisions about DE.

70. [565]

    In undertaking those challenging tasks, s 19 required Mr Vita to take into account identified risks, as well as DE’s actual behaviour, both good and bad, and how it changed over time. As well as relevant experience gained during his operation of Centres over time, including in relation to how and when risks of the kind which DE and others posed were likely to materialise again.

71. [566]

    DE’s case included that consideration being given to such matters involved an inversion of the statutory requirements which had to be observed. With the result that detainees were impermissibly required to demonstrate, by their ongoing behaviour, that they could safely be released from segregation.

72. [567]

    That also cannot be accepted.

73. [568]

    Section 19 does not seek to preclude segregation encouraging good behaviour or discouraging bad. The way in which centres are routinely organised no doubt always seek to achieve such important aims. Which are undoubtedly permitted by the Act, consistent with how the functions given to the Secretary are dealt with in s 14.

74. [569]

    Logically, detainee behaviour necessarily always has be considered and assessed during risk assessments continually undertaken at detention centres. It must also be managed, given the risks posed by detainees and how they may materialise from time to time. Even when segregation is not in place or being contemplated.

75. [570]

    Arrangements for segregation will inevitably encourage good behaviour and discourage bad. That helping to maintain discipline and good order among detainees, as well as the proper control and management of detention centres, as well as helping to ensure safety. The Act does not contemplate that these aims conflict or need to be abandoned, when segregation is imposed on a detainee, when the requirements which s 19 imposes have to be met.

76. [571]

    To the contrary, encouragement of good behaviour and discouragement of bad appears to be an inevitable by-product of any decision to segregate a detainee whose misconduct has put the safety of others at risk. In my view, s 19 thus permits the use of segregation as part of an approach to the management of safety risks at a centre, driven both by the Detention Centres Act and the duties imposed by the Work Health and Safety Act, which aims to encourage good detainee behaviour and discourage bad.

77. [572]

    That reflecting an approach to administration which has regard to the paramount consideration, the welfare and interests of all those held on remand or subject to control at the Centre.

78. [573]

    The parties joined issue over how s 19(1)(b) operates, which turns in part on the construction of s 39A and the delegations in place in 2016.

79. [574]

    The general principle is that where possible, all words in an Act should be given effect, with general provisions read as not derogating from special provisions dealing with particular matters, except where they cannot be reconciled as a matter of ordinary interpretation: Purcell v Electricity Commission of NSW [1985] HCA 54; (1985) 60 ALR 652 at 657.

80. [575]

    Here in issue was whether the condition that segregation not exceed three hours except with the approval of the Secretary, could be met by approval given only after that time had expired. As well as whether it could be given by the same person who had earlier made the segregation decision, if they had the requisite delegated authority.

81. [576]

    I am satisfied that contrary to the case advanced by the State, s 19(1)(b) requires, when a decision is made by a Centre Manager on reasonable grounds to segregate a detainee for more than three hours, that it be approved by the Secretary or a person other than the Centre Manager who made the decision, who has the required delegated authority, before that time expires.

82. [577]

    While s 19(1)(b) does not expressly require that the approval be given within three hours, that is the necessary implication of what it does require. The condition it imposes being breached, if the segregation continues beyond three hours without approval.

83. [578]

    This construction is driven by the requirement that two minds consider whether the detainee should be segregated for more than three hours, in the circumstances in which the segregation decision was made. The first, the decision-maker and the second, the Secretary or relevant delegate: s 39A.

84. [579]

    It also follows from the requirement that there will not only be a Centre Manager who makes the segregation decision, but that segregation not exceed three hours without the approval of a different person, that the inevitable result of segregation continuing beyond three hours without such approval, will be a breach of the s 19(1)(b) requirement that segregation “must not exceed three hours except with the approval of the Secretary”.

85. [580]

    The result is that whenever approval of a decision to segregate for more than three hours is not obtained within that time, the segregation must be brought to an end. As the parties accepted, a further segregation decision can then be made and the required approval obtained within the required time, if reasonable grounds for the required belief continue to exist.

86. [581]

    But I am satisfied that under this statutory scheme, it a decision is made to impose segregation for more than three hours and it is approved before segregation begins, the section will be complied with. For example, in DE’s case, when Mr Vita’s decision was made and approved on 25 June, with the segregation then only taking effect on 26 June, when the normal overnight lockdown ended.

87. [582]

    Such prior approval will satisfy the requirement that segregation not exceed three hours without approval.

88. [583]

    But approval of a decision to segregate which has not yet been made, being given “in principle”, which was also postulated, does not satisfy the requirements of s 19(1). That being because the approval required is of a decision that the Centre Manager has made, having formed a belief on reasonable grounds that segregation is required in order to ensure safety. It follows that approval of such a decision cannot be given, before the required belief is formed and the decision made.

89. [584]

    It must thus be accepted that s 19(1)(b):

    1. (1)

       Does not contemplate approval of segregation which exceeds three hours being obtained before the segregation decision is made;

    2. (2)

       Or approval only being obtained after three hours segregation has already elapsed, which cannot not cure the breach of s 19 which by then has already occurred, the segregation having already exceeded three hours;

    3. (3)

       permits a segregation decision to be approved before the segregation actually commences; and

    4. (4)

       If approval of segregation for more than three hours is not obtained within that time, the segregation must not continue beyond three hours, unless a further decision for segregation for more than three hours is made and it is approved before that time expires.

90. [585]

    In the case of DE, it follows that Mr Vita was able to make a decision on the evening of 25 June, after the brawl had been brought under control, for DE’s segregation from 26 June, after the overnight lockdown came to its normal end, until he made a further decision on 27 June, if reasonable grounds for such a decision existed on 25 June. Section 19(1)(b) permitted such segregation to continue after three hours on 26 June, if it was approved before that time expired.

91. [586]

    But s 19(1)(b) did not permit Mr Vita’s decision to segregate DE for more than three hours being both made and approved by him. In so far as s 39A appears to permit such a delegation, it must be read down.

92. [587]

    If the challenged decisions were not approved within three hours of the segregation commencing on 26 June, s 19(1)(b) requiring that the segregation be brought to an end. Failing which s19 was breached.

93. [588]

    It was s 39A in 2016, now s 101 of the Detention Centres Act, which permitted the Secretary to delegate to “any person” the exercise of any functions under the Act or Regulation other than those delegated by the Minister to the Secretary. That delegation power thus included those functions conferred by s 19. It was the delegation made to Centre Managers on which the State’s case, that Mr Vita could both make and approve a decision to segregate beyond three hours, rested.

94. [589]

    I am satisfied that this cannot be accepted.

95. [590]

    Given the definition of “centre manager” in s 3, it is possible that a decision to segregate for more than three hours made by one Centre Manager then in charge of a centre, might later be approved by another Centre Manager who was later in charge, given the delegations made.

96. [591]

    Sections 19 and 39A can be reconciled by reading s 39A as not empowering the Secretary’s delegation of the approval of a Centre Manager’s decision to segregate for more than three hours, required by s 19(1)(b), to the Centre Manager who made the segregation decision which requires the Secretary’s approval.

97. [592]

    In 2016 the delegations were organised by reference to 6 categories:

98. [593]

    Approval of segregation under s 19(1(b) was delegated to:

99. [594]

    These complex delegations were thus made to persons of increasingly higher levels of seniority, given the length of segregation imposed by a Centre Manager - from 3 to 12 hours, 12 to 24 and more than 24 hours.

100. [595]

     The CIMS system accommodated the recording of delegated approvals, but it did not always capture when approvals were given, rather than later recorded. With the result, as I have explained, that they alone were incapable of establishing compliance with s 19.

101. [596]

     This is what drove the issues about whether the evidence established that the challenged decisions had received the required approvals which s 19(1)(b) required.

Did the challenged decisions comply with s 19?

1. [597]

   There is no issue that DE was kept segregated in his room from when the early lockdown commenced on 25 June, until his segregation ended on 18 July, while ever the Centre was not in normal lockdown.

2. [598]

   As I have explained, the 25 June decision to separate DE was not challenged. I have concluded that Mr Vita’s 25 June segregation decision was in effect on 26 and 27 June and that there was no effective decision made under s 16 on 27 June to separate DE, despite what the CIMS record Mr McCann created that day recorded.

3. [599]

   It was also Mr Vita who made the other challenged segregation decisions.

4. [600]

   Mr Vita had the discretion to make segregation decisions in accordance with s 19, which was not limited by the standard procedures to which he had regard in making his decisions. The duties imposed by the Work Health and Safety Act also always had to be observed when he made his decisions.

5. [601]

   The evidence established that there some departures from the requirements of s 19, which accorded with the State’s view of how it operated. This helped explain why the CIMS system was not designed to accurately record who made a segregation decision, the time it was made and the time it was actually approved by those with the requisite delegation, given that approvals were often given orally and only later recorded.

6. [602]

   But it also establishes that:

7. [603]

   I am also satisfied that when Mr Vita made the challenged decisions, they each had “an evident and plausible justification”. Namely, to meet the duties which fell on the State and him to manage the risks which DE posed, in order to ensure the required safety. Further, that all of his segregation decisions were approved, albeit not necessarily within the time s 19(1)(b) required.

8. [604]

   Despite the case DE pressed, it must be accepted that the evidence established that Mr Vita had reasonable grounds on 25 June to believe, as s 19 required, for DE’s segregation until the 27 June DRMP process he had arranged, could be undertaken to ensure the required safety. They according with the serious risks DE posed which were established by the evidence.

9. [605]

   The State’s case was finally that approval of the decision was given on 25 June by Ms Scott, then in operational control of the Centre and thereby also the “centre manager”. She certainly agreed with the decision and conveyed it in her second email, as I explained, having earlier raised the need for segregation with Mr Ferguson. But I am satisfied that the evidence does not establish that she made the decision or exercised the delegated power to approve Mr Vita’s decision. That approval came from the senior officers who Mr Vita consulted that night, whose approvals were later recorded on the CIMS system.

10. [606]

    On all the evidence, it must be found that:

    1. (1)

       While he was held in detention, DE always posed serious risks to safety which had to be managed, as identified by his risk classification and reclassification after the 25 June incidents;

    2. (2)

       Those risks actually materialised on 25 June, when DE pursued the serious violence captured on the CCTV footage;

    3. (3)

       This behaviour resulted in him being charged and later admitting he had committed offences in detention, of which he was convicted and sentenced;

    4. (4)

       It was the serious risks DE continued to pose which drove Mr Vita’s segregation decision on 25 June, made in light of the arrangements in place at Cobham for the Centre’s normal operation, including as to staffing and how the risks he posed could safely be managed there;

    5. (5)

       That night, when he decided DE had to be segregated until the DRMP meeting on 27 June, Mr Vita had the beliefs required by s 19(1), that DE had to be segregated to protect his personal safety and that of others, on reasonable grounds;

    6. (6)

       Those grounds included the risks DE had been identified to pose when he entered detention; how they had materialised on 25 June; the risk of retaliation his conduct had given rise to; his known gang affiliations and behaviour in detention; and the resulting need to undertake a risk assessment, in accordance with the DRMP process, arranged to be undertaken on 27 June;

    7. (7)

       The resulting segregation until a further decision could be made on 27 June was as short as practicable in the circumstances Mr Vita then had to deal with. That reflecting the need for the police to be called; staff on duty on 25 June to make their reports and create required records; and further relevant information to be gathered and considered at the DRMP meeting, fixed for 9 am on 27 June when Mr Vita and the DRMP team were all again on duty;

    8. (8)

       There were then no practicable alternative means to protect the personal safety of those for whose protection DE was to be segregated, given: the risks he posed; how Cobham was operated and staffed; the need to move him out of the Mandela Unit, where he could no longer safely be housed, given the risk of retaliation he was then the subject of; a risk assessment of him being housed in other Units never having been undertaken, as it had to be; the risks to his safety which also had to be considered; and the duties imposed by the Work Health and Safety Act in relation to ensuring safety which also had to be observed;

    9. (9)

       The approval required by s 19(1)(b) for the decision to segregate DE until a further decision could be made on 27 June, having been for more than three hours, came from:

11. [607]

    On all of the evidence, it thus cannot sensibly be concluded that the approval required of the 25 June segregation decision was not given in the required time, the segregation having only commenced at 9 am on 26 June.

12. [608]

    Mr Vita explained his practice of seeking approval of segregation from those more senior to him before it was implemented. On 25 June, he reported to his superiors, the regional director and director of statewide operations by phone, informing them of his proposed segregation of DE, which they approved, he then considered in principle. But on the evidence, by then he had made and communicated his decision, which Ms Scott then conveyed by email. That does not accord with approval only being sought or given, in-principle. That it was only later captured electronically, did not change the approval given to merely in principle approval.

13. [609]

    Mr Vita also had a practice, after DRMP meetings, of speaking to his superiors when the outcome included segregation, with their approval also later being recorded. But that did not capture when it was actually given.

14. [610]

    On her evidence, Ms Scott agreed with, but did not make or approve, the 25 June decision to segregate DE which she advised other managers of in her second email. It was also reflected in the handwritten records earlier explained. This accorded with the practices which the witnesses described then operated, including when urgent decisions had to be made and approvals were given verbally and only later recorded in the CIMS system. There was no such record of Ms Scott’s approval.

15. [611]

    That the records kept did not accurately record Mr Vita’s 25 June decision or the approvals given reflected shortcomings in the design of the system. But that cannot justly lead to the conclusion that Mr Vita’s decision was not made or approved as s 19(1) required, given all the evidence I have explained.

16. [612]

    The gravity of a decision to segregate a detainee was certainly one which those who gave evidence appreciated, given how they acted. Despite the case pressed for DE, on all their evidence, I am persuaded that the better view is that the requirements of s 19 were not breached when the 25 June decision was made.

17. [613]

    I am unable to come to the same conclusion about the approval of Mr Vita’s 27 June decision, recorded in the DRMP and CIMS record as being to segregate DE from 11 am that day until 12 July, subject to the 5 July review at the next regular Tuesday DRMP meeting.

18. [614]

    Mr Vita could not remember attending the 27 June meeting or what then occurred but was able to shed light on the reasons for his decision, made as the result of his consultation with the Unit Manager, Assistant Manager, Specialist Staff and Putland ETU. The conditions then imposed were that DE was:

19. [615]

    DE contended this decision was reflective of an impermissible behaviour control approach to segregation, intended to train him in compliant behaviour, which was incapable of showing he was not being punished or that the requirements of s 19 were observed, his 25 June behaviour then having been “spent”. DE also claimed that the evidence was consistent with no consideration having been given to whether there were other practical means to protect personal safety without his strict isolation, or even a consideration of separating protagonists into different Units, without segregation.

20. [616]

    This cannot be accepted. Not only because of the proper construction of s 19 of the Act which I have explained, but because of my acceptance of Mr Vita’s evidence about the careful approach he adopted to the exercise of the s 19 power and the decision he made on 27 June, having pursued the DRMP process which he explained.

21. [617]

    In his statement, Mr Vita explained why he concluded that segregation was then required, so that DE’s risks did not eventuate again. Because of the seriousness of his conduct on 25 June, it having involved the type and level of violence shown by detainees which drove decision-making towards segregation being required. Although, account was also taken of mental health issues, when they were involved in such behaviour.

22. [618]

    Mr Vita also explained the concern he then had about DE from a risk perspective, having reviewed the CCTV footage and other information he had to consider. His view was that DE had been involved in what appeared to have been a planned attack, resulting in him not only assaulting another detainee, but then attempting to pull away officers trying to protect the other victim being attacked.

23. [619]

    Mr Vita reasonably considered that DE had a propensity for violence which had manifested both before and in custody, the latter raising a real risk of retaliation. There was also a risk that he had been involved in the planning of the violence which had been pursued on 25 June, as well as a risk that he would perpetrate further violence against staff and other detainees in detention, if released from segregation. Those views resulted in Mr Vita’s conclusion that DE was then not able safely to mix with other detainees.

24. [620]

    Mr Vita also believed what was required was a period of segregation sufficient to allow him to consider whether the risks DE posed had reduced to a level where he could be satisfied that it was safe for DE to mix again with the general detainee population.

25. [621]

    In my view, that reflected a correct approach to the obligations and duties which fell upon Mr Vita.

26. [622]

    Mr Vita considered documents which informed him about matters such as DE’s age, mental condition and development, he remembering DE’s stature when giving his evidence. His evidence, that he also took account of information provided by the psychologist, on whom he relied to raise any issues which segregation could raise for a detainee’s development and mental health, must be accepted. Notwithstanding that, in her cross-examination, Ms Byrne said that it was not her role to make segregation decisions when providing input into the DRMP process.

27. [623]

    Mr Vita’s review of DE’s case notes confirmed there was then no evidence of such concerns. DE gave no evidence of their existence and so it cannot sensibly be concluded that such concerns were overlooked.

28. [624]

    DE was transferred to the Taralga Unit, one of the older Units at Cobham, dedicated to housing more dangerous detainees while subject to a DRMP. The result was that he was not permitted there to mix with other detainees, even during meals. But housing in such a Unit was expressly contemplated by s 16 and cannot, of itself, establish a breach of s 19.

29. [625]

    Nor did the conditions which precluded DE having access to sharps. That meaning he was only given access to items on the Centre’s menu which were finger food. That condition cannot establish that his segregation was wrongly used to punish him, or to impermissibly train him in compliance, as he also contended.

30. [626]

    Mr Vita was extensively cross-examined about the conditions imposed, his views about the risks DE posed and how the records which reflected the 27 June’s decision had been produced.

31. [627]

    Mr Vita said he had then concluded that DE’s segregation needed to be for a period sufficient to allow him to form the view that the risks he posed had reduced to a level where he felt it was safe for DE to mix again with the general detention population. There was no suggestion from the specialists that such segregation would be detrimental to DE’s mental health, with no known physical disability or developmental conditions preventing him from handling such ongoing segregation.

32. [628]

    That accords with the contemporaneous documents, which refer to DE having suffered a blow to the head before he went into custody; these records were to be pursued, about which Ms Byrne was cross-examined.

33. [629]

    Mr Vita also said he then intended that DE would be allowed more time out of his room after 5 July, and that it was planned that he would see the psychologist regularly before then, so that adjustments could be made beforehand to the plan, if necessary. They were not.

34. [630]

    In determining a two-week period would likely be needed before Mr Vita could be confident that DE could safely return to the general population, he said he had considered prior experiences, when he had allowed detainees to mix with the general population too soon, that having resulted in further violence. He thus considered the approach he adopted on 27 June to the period of DE’s segregation as necessary from a risk perspective. He also believed that a gradual approach of relaxing conditions was required to enable him to look at the complete picture, with the continuing risk DE presented being assessed in light of his ongoing behaviour.

35. [631]

    The Taralga Unit was then dedicated to accommodating high risk detainees on DRMPs. It had no common areas and required meals to be taken in the detainees’ room, from a menu of finger food which was also available to other detainees. Mr Vita agreed the rooms in that and the Carter Unit were cell-like, and DE was then also assessed as being too high risk to attend school.

36. [632]

    Mr Vita also considered DE then had to be supervised by two youth officers when out of his room to ensure safety. And that there were no practical alternatives then available to mitigate the risks DE posed. What he said in cross-examination also included that:

    1. (1)

       On 27 June, DE still posed ongoing risks;

    2. (2)

       The purpose of the DRMP adopted was to address these risks and enact an alternative to his normal routines, in order to safely manage DE for a specific period;

    3. (3)

       A DRMP did not necessarily include segregation, although that usually formed part of such a plan, in some form, as part of a response to a violent incident, which he considered was required in DE’s case;

    4. (4)

       A fairly standard condition after a violent incident being segregation, in a room with one hour a day of recreation, subject to handcuffs when premeditated violence had caused injuries to staff or kids;

    5. (5)

       Observations being made of the detainee over a week, before a review at the next DRMP meeting;

    6. (6)

       Incidents of severe violence typically involving the imposition of a further DRMP, ongoing monitoring of behaviour, interaction with a psychologist, analysis of risk on a daily basis and relaxing conditions, if that was found to be safe;

    7. (7)

       In DE’s case, the CCTV footage had a big impact on his decision-making, leaving him with the impression that there had been a carefully orchestrated attack with a diversionary component to it, even though there was no sound recording;

    8. (8)

       Mr Vita did not consider it necessary to have raised this view with DE before the DRMP was imposed;

    9. (9)

       Mr Vita also considered DE posed increased risks when housed on the Taralga Unit with others who had acted violently in detention and were on a DRMP as a result. This was part of the reason detainees were not permitted to take communal meals on that Unit;

    10. (10)

        There were also increased risks if such detainees were kept outside that Unit, even during recreation periods, which was why a handcuffing condition was imposed and handcuffs were used in DE’s case, until the risks he posed abated;

    11. (11)

        Mr Vita knew on 27 June that, no matter how well DE behaved before 5 July, there would be another DRMP, even if less restrictive, given the nature of his violence during the 25 June incident; and

    12. (12)

        The conditions imposed encouraged DE’s good behaviour and provided disincentives for bad. For example, by increasing or reducing access to the TV. The purpose of the plan was not only to reduce risk, but to encourage improved behaviour, so that segregation could safely be bought to an end.

37. [633]

    Mr Vita could not recall whether, on 27 June, the psychologist had drawn attention to DE having suffered a head injury before he went into detention. Nothing turns on this, DE not claiming to have suffered any injury or exacerbation of an earlier injury as the result of his segregation, nor suggesting this injury precluded the satisfaction which s 19 required Mr Vita to have.

38. [634]

    It is on all this evidence that I am satisfied it must be found that on 27 June Mr Vita did have the beliefs required by s 19, again on reasonable grounds.

39. [635]

    In arriving at this conclusion and that other requirements imposed on him by s 19 were satisfied, I have also taken account of what the evidence revealed about the complexity of the risk assessment involved in DE’s case, given how the risk he posed had materialised in detention. As well as the challenge presented by the management of those risks, which contributed to the then concern about the risks which others posed to him, given the ongoing risk of retribution.

40. [636]

    It cannot sensibly be accepted that in DE’s case, on 27 June, only two days after the violence he pursued on 25 June:

41. [637]

    Monitoring such a detainee’s ongoing behaviour over a period, while they interacted with a psychologist and responded to conditions designed to help improve their behaviour and minimize the ongoing risks which they posed, in my view cannot be accepted as involving any breach of s 19.

42. [638]

    DE’s behaviour on 25 June had revealed the real nature and extent of the significant risks which he posed, which had resulted in the infliction of harm, luckily not lasting harm, as well as risking the safety of officers who had to restrain him. The CCTV footage and other information Mr Vita had to consider and take into account provided a proper basis for the beliefs that he formed.

43. [639]

    The evidence also well established that on 27 June, DE could not safely be returned to mix with the general detainee population as he was before 25 June. Implementing a process of managing his risks during a period of segregation, intending that conditions imposed be relaxed while safety continued to be ensured, improving behaviour was encouraged and his ongoing conduct was assessed and provided a basis for confidence that the risks DE posed were actually reducing, thus cannot establish a breach of s 19.

44. [640]

    What the evidence did not establish was compliance with s 19(1)(b).

45. [641]

    The electronic record noted approvals which had been given. It did not identify Mr Vita to have been the decision-maker, but one of those who gave their approval of the segregation decision.

46. [642]

    I am satisfied that this is not what actually occurred, despite Mr Vita having utilised the system as he did, to record the decision he had made, by identifying it as one he had approved.

47. [643]

    It also records the approval of others. Mr Ferguson’s on 27 June and that of the Regional Director Mr Wilson and finally the Director of Statewide Operations, Mr Harris on 28 June. They were not called.

48. [644]

    The result is that, given the delegations in place and the length of the segregation Mr Vita imposed, the evidence does not establish that the required approval was given on 27 June, within the three hours of Mr Vita’s decision to segregate DE for more than three hours having been made. As a result, it must be accepted that there was then a breach of s 19(1)(b).

49. [645]

    As I have explained, it was the deficiencies of the CIMS system and record-keeping which contributed to this outcome. As did the view of s 19(1)(b), that the required approval for segregation of more than three hours could be obtained after that period had expired.

50. [646]

    The requirements of s 19(1)(b) were also not satisfied by any in-principle support foreshadowed on 25 June about what Mr Vita indicated he might decide the following Monday.

51. [647]

    The CIMS system did not permit approval to be recorded by more senior officers until after those junior to them had recorded their approval. Nor did it require the time of any prior verbal approval given to be recorded.

52. [648]

    The evidence does not establish when Mr Vita spoke to those who later recorded their approval, after he made his decision at the 27 June meeting, although Mr Vita said that was his practice. Still, it cannot be inferred from that evidence that the approval of his decision was given within the required three hours of his decision having been made.

53. [649]

    I am thus satisfied that the evidence established that on 27 June, Mr Vita also had the beliefs required by s 19(1) on reasonable grounds, that given the risks which DE continued to pose, he had to continue to be segregated until the 5 July review, in order to protect his personal safety and that of others. Mr Vita having had the required regard to:

    1. (1)

       The nature and duration of the segregation, given DE’s age, mental condition and development and the views which Ms Byrne had formed of him, as well as the arrangements in place at Cobham for detainees who posed risks of the kind DE posed, being housed in the Taralga Unit;

    2. (2)

       His risks and the operation of his DRMP there being constantly assessed, by those who supervised him during his segregation and by the psychologist with whom he was to meet during the week before the planned review on 5 July;

    3. (3)

       Prior experience having shown that serious risks of the kind DE posed did not abate quickly in detention after violence had been pursued, with there being a real risk of further violence occurring, if segregation was ended too quickly;

    4. (4)

       DE’s segregation being as short as practicable in all the circumstances, given the ongoing serious safety risk he posed having materialised only two days before, the need to protect personal safety and the duty to ensure safety;

    5. (5)

       There being no practicable alternative means to protect the personal safety of those for whose protection DE was to be segregated, including his own, while the ongoing risks he posed were monitored and further assessed;

    6. (6)

       DE being required to be housed in the Taralga Unit where those on DRMPs, who could not safely attend school or mix with other detainees even for meals, were detained. It being staffed to allow them each to be supervised by two staff members, whenever out of their rooms, given the risks which they, including DE, continued to pose; and

    7. (7)

       There then being no practicable alternative means to protect the required personal safety, given the need to also comply with duties imposed by the Work Health and Safety Act.

54. [650]

    The review at the 5 July DRMP meeting resulted in DE being moved to the Carter Unit, subject to shorter periods of daily segregation, relaxed supervision and other arrangements which continued until 12 July, when a new DRMP was to be considered.

55. [651]

    The reviewed arrangements imposed by Mr Vita that day, which were the main issue considered at that day’s DRMP meeting, were:

56. [652]

    The result was that each day, DE continued to be segregated for more than three hours, while having two hours recreation and being allowed to mix with other detainees in the afternoon. He was still locked in his room at 4.45 pm, rather than being able to mix with detainees on the Unit until the normal 7.20 pm lockdown.

57. [653]

    The 5 July decision also required approval within three hours. The evidence does not establish it was given within that time, although the records show that it was also approved.

58. [654]

    The plan was reviewed in this way because of Mr Vita’s 27 June decision that 5 July be the review date, that permitting DE to be observed over eight days and his risks then being reassessed.

59. [655]

    Mr Vita explained his continuing concern with DE’s level of violence, as well as his resulting reclassification to A1, which helped drive his decision to continue his segregation, which the plan referred to. His strategy then being to observe DE’s behaviour for a further week in order to assess his risks under relaxed conditions. DE’s gradual reintegration permitting a determination of when DE could mix safety with other detainees. The time taken being needed to ensure DE was not further misbehaving and for ongoing risk assessment to be undertaken.

60. [656]

    The need for segregation to be as short as possible was pursued through a gradual step-down approach to the management of DE’s risk. Mr Vita explained that integration at the most dangerous time of the day was then still not permitted, given the risks of tension and disagreements unfolding at a time when there was access to weapons or equipment and an opportunity to run from staff, all of which would then need to be safely managed. Given staffing and programs then undertaken, Mr Vita still did not consider DE could safely participate in all routines detainees generally pursued at the segregated times.

61. [657]

    Mr Vita agreed that the DRMP record identified DE had displayed only one occasion of agitated behaviour in his room in that period, when he was swearing loudly but told staff “I’m OK. I’m just over being in here”. He also agreed that this behaviour did not necessarily give him any concerns about a risk to safety, it not being unusual for some detainees to become frustrated while others did not.

62. [658]

    The document also recorded that DE had been compliant with staff directions and engaged in counselling, which Mr Vita accepted was indicative of his improved behaviour and a lowering of risk.

63. [659]

    He also explained the input from the psychologist into the new arrangements, including the move to the Carter Unit. It was a general population Unit where DE had increased recreation outside his room. However, he was still not permitted to use the common dining area there and handcuffs during movements around the centre were maintained, but only when their use was assessed by the Shift Supervisor to be necessary and so, was not always required.

64. [660]

    Mr Vita agreed that before this move, an assessment had been made of the appropriateness of DE’s placement on the Carter Unit, given the makeup of the detainees housed there. This continued to be part of the risk management strategy pursued to separate those involved in the 25 June incidents.

65. [661]

    Mr Vita also agreed that when a supervisor concluded handcuffs were not required, that would reflect an assessment that DE did not then pose a particularly high risk of violence. That would then be discussed at the next DRMP meeting.

66. [662]

    DE was also then permitted to mix with other detainees if recreation was in the Unit, but not outside it. Mr Vita agreed that by this stage he was satisfied DE was not a risk to the safety of other detainees in the Carter Unit. He was thus allowed cutlery for meals and did not have to eat all meals in his room, with Mr Vita satisfied his risk had reduced and that he was making progress. As a result, his access to TV was also increased, although the requirement that there be no misbehaviour was continued.

67. [663]

    The restriction to non-contact visits still continued, precluding DE having physical contact with visitors.

68. [664]

    Mr Vita also said that:

    1. (1)

       By this time, the immediate need to respond to the safety risk DE caused on 25 June had receded.

    2. (2)

       The reason for not returning him to Mandela remained his violence there on 25 June, which had also been taken into account in his reclassification.

    3. (3)

       It was then forecast that DE’s DRMP might come to an end on 12 July.

    4. (4)

       No matter how well DE had behaved up to 5 July, his view was that he had to continue to be subject to some form of segregation, until Mr Vita was satisfied the risk he posed had gone, to the degree that this was possible to assess.

    5. (5)

       This approach was required because of the need to protect staff and kids, with risk assessments not being an exact science. History having never shown the required improvement, after violence had been pursued in detention, within just one week.

    6. (6)

       The process of gradually removing restrictions was pursued to assist a detainee modify their behaviour, helping him and the DRMP panel make ongoing assessments. This ensured Mr Vita could be satisfied that a detainee like DE was not just ticking boxes off on a risk management plan.

    7. (7)

       He having to ensure positive behaviour was consistent before a young person was released from a DRMP.

    8. (8)

       This was more important in DRMPs which imposed segregation, which was not imposed unnecessarily, if it was not thought to be needed.

    9. (9)

       In the past when segregation had been removed prematurely, young people had then assaulted other kids and staff, which was why he generally then pursued a cautious approach to relaxing segregation.

    10. (10)

        Not reducing restrictions too soon or maintaining them too long required a balancing act. But in DE’s case, Mr Vita believed he did not err on the side of having maintained segregation for too long, although he agreed it was harder to see clear evidence of improvement, from detainee behaviour.

    11. (11)

        Still, he did not agree that in DE’s case he gave too much weight in his decision-making to past decisions, where restrictions had been removed too quickly.

    12. (12)

        By 5 July, Mr Vita still had a concern about possible retaliation, given DE’s known gang affiliations, non-associations and what he had done on 25 June. But he was satisfied that these could be managed in the Carter Unit with some adjustments and precautions.

    13. (13)

        He agreed that once DE was permitted to eat with others while using cutlery, there was a risk that it would be used as a weapon.

    14. (14)

        There was then also a risk of DE climbing on equipment, which he had a record of doing, and then remaining there for a considerable period. This presenting a risk to himself and the good order of the Unit.

    15. (15)

        This always being a part of his consideration, given the duty of care always owed to all detainees. But Mr Vita agreed that a risk of climbing equipment would not of itself have justified the continuation of segregation.

69. [665]

    I am satisfied on all of this evidence that it must also be found that, on 5 July, Mr Vita still had the beliefs required by s 19, again on reasonable grounds. Namely, DE had to be kept in shorter periods of segregation each day, in order to continue protecting his personal safety, as well as that of others.

70. [666]

    Further, that Mr Vita then properly continued to have regard to the requirements of s 19. The result being that the nature and duration of DE’s segregation until 12 July was reasonable and as short as practicable in the circumstances which Mr Vita then still had to be deal with. There then still being no practical alternative means to protect the required personal safety; given the concerns which Mr Vita explained he still had.

71. [667]

    Section 19 and the Work Health and Safety Act required DE’s integration into the Carter Unit being safely managed. Mr Vita was not either entitled or obliged to take any risks in relation to protecting personal safety, while the assessment he considered still to be necessary in DE’s case, was pursued.

72. [668]

    No further risk to safety having materialised as the result of DE’s behaviour in segregation, to that point, does not establish that DE no longer posed any risk, or that reasonable grounds for Mr Vita having the required beliefs no longer existed, as was his case. Not only had the risks he posed been reclassified to the highest level as the result of his serious violence in detention. Mr Vita had to take into account that most risks to safety materialised on Units in the evening, and that it had been after dinner on 25 June that the risks DE posed had actually materialised, in the way that the CCTV footage had revealed.

73. [669]

    It was Mr Vita who had to be satisfied that DE’s segregation could safely be brought to an end. He then being satisfied of this at some times of the day, does not establish that he had no reasonable grounds for the concerns he said he still had on 5 July, which drove his belief that reasonable grounds for more limited segregation at other times, continued to exist. They were the times which experience had showed such risks were most likely to materialise, as they had on 25 June.

74. [670]

    Had this experience been ignored by Mr Vita, he would have risked the commission of a serious offence, for reasons explained in Silver City.

75. [671]

    Given the concerns which Mr Vita still had by 5 July and the duties which remained, that there then were no practical alternatives to the limited segregation imposed on DE to protect the required personal safety must be accepted. Mr Vita then being satisfied that the required safety could not be protected, if DE’s segregation was completely brought to an end.

76. [672]

    DE’s behaviour and his interactions with the psychologist, explained in Ms Byrne’s evidence, was considered at the 5 July DRMP meeting and outlined in the DRMP. This helped establish that there was then a proper basis for Mr Vita’s cautious approach to the balancing act he explained he had to continue undertaking in relation to the risks DE posed and their assessment.

77. [673]

    That accorded with the statutory context in which he had to make his decisions about whether to end segregation, at risk of commission of potentially serious offences if he erred.

78. [674]

    The evidence thus established that on 5 July, Mr Vita continued to hold the belief s 19 required, for the decision then made, on reasonable grounds. Having taken into account the required conditions in relation to the nature and duration of the reduced segregation he implemented, considering DE’s age, mental condition and development. The segregation was also as short as practicable, since there was still no practicable alternative means to protect the required personal safety.

79. [675]

    Both s 19 and the Work Health and Safety Act required a proactive, rather than reactive approach to risk management, given what DE’s behaviour on 25 June had established about the heightened risk he actually posed.

80. [676]

    It follows that even if other steps might conceivably have been taken on 5 July, to prevent the materialisation of DE’s risks, if then entirely released from segregation, that cannot establish a breach of s 19.

81. [677]

    What was implemented was again supported by the Assistant Manager Mr Dowse, and approved on 6 July, again by the Regional Director and Director Statewide Operations, after Mr Vita entered his approval. No separate segregation record was then created, that reflecting what had earlier been documented and approved in relation to segregation until 12 July.

82. [678]

    There was no suggestion that Mr Vita had discussed the outcome of the 5 July review again with those who had the delegated authority to approve segregation for more than three hours, following his further decision.

83. [679]

    The result is that on the evidence, the approval of the 5 July decision did not cure the earlier breach of s 19(1)(b) when the 27 June decision was made and that it was incapable of satisfying the requirement that DE’s ongoing segregation for more than three hours, be approved within that time.

84. [680]

    I am also satisfied that a similar conclusion must be reached in relation to Mr Vita’s 12 July decision, which involved daily segregation for less than three hours, but that continuing until 18 July.

85. [681]

    This reflected Mr Vita’s then view that the risk DE continued to pose had lessened. The new DRMP was adopted after DE’s ongoing behaviour and psychological state were considered, other information having not changed much. It provided for DE remaining on the Carter Unit under conditions that involved him:

86. [682]

    Mr Vita explained this reduced segregation reflected DE’s good behaviour, as well as his ongoing difficulty in regulating his emotions, his aggressive and demanding behaviour on one occasion to staff having left Mr Vita with some limited ongoing concerns. DE’s segregation then continued from the usual shower lockdown each evening, which was reflected in daily CIMS records which were also kept. Mr Vita also then considering that this enabled him to indicate to DE that his behaviour was still being observed, with an ongoing expectation that he would continue to behave well.

87. [683]

    Mr Vita could not recall whether these conditions permitted DE to resume school but agreed that the continuation of segregation was a factor relevant to the School’s decision. It having to undertake a similar risk assessment to that which he undertook. School representatives also taking part in the DRMP process and having regard to the same considerations, in order to protect and minimise the chance of DE’s risk materialising at school.

88. [684]

    Mr Vita also said that:

    1. (1)

       He believed that care still then had to be taken about who DE was mixing with.

    2. (2)

       He could not recall what consideration had then been given to staffing levels, but that was a matter which he had considered. There then being a practice of considering additional staffing as an alternative to segregation. But, he did not accept that this was then an option in DE’s case.

    3. (3)

       Each DRMP being individually tailored to suit the circumstances presented at the time, including consideration being given to staffing in the decision-making process.

    4. (4)

       The decision had to take into account that outside the Units, the Centre’s common areas included a swimming pool and oval and grounds surrounded by a perimeter fence, they providing detainees unobstructed access to hundreds of metres of space in which they could run, as well as structures they could climb.

    5. (5)

       That presented risks to both good order and detainees themselves, as well as safety risks to staff who might have to apprehend a detainee.

    6. (6)

       These risks were heightened in the case of detainees whose behaviour had already resulted in the imposition of a DRMP, of whom DE was one.

    7. (7)

       In DE’s case, he had showed the threat he posed, including because of his gang affiliation.

    8. (8)

       The result was Mr Vita, explained, that he did not even then want to take the chance of DE freely walking around the Centre, even under supervision, sighting someone from an opposing gang, and running to square up to them, especially given that he had not acted alone on 25 June, but with five others.

    9. (9)

       He agreed that this continuing segregation was part of the gradual reduction of restrictions he had pursued over several weeks, in order to assess and test DE’s response.

    10. (10)

        He also agreed that, given his decision to permit DE to mix with other detainees on the Unit at certain times, there was no reason he could not safely use the recreation areas with them at other times of the day.

    11. (11)

        Still, he considered that some segregation of DE for a further week was then required in the evenings, even though no misbehaviour had occurred during segregation, which he considered was a good sign in terms of DE’s progress and risk assessment.

    12. (12)

        But he had a continuing concern about DE being aggressive and demanding to staff, which was referred to in the DRMP record. Examples included a problem at the time of a delayed lunch and the psychologist having referred to DE still allowing aggression to build up. Although, Mr Vita agreed this was not unusual for some detainees and that this would not, itself, warrant segregation.

    13. (13)

        But DE’s involvement in the dinner routine still then remained of concern, despite his attendance at other meals, permitted interactions with detainees on the Unit, and planned recreation activities outside the Unit.

    14. (14)

        This reflected Mr Vita’s experience that, when there was drama and disagreement on a Unit, it tended to emerge over dinner, which was a riskier period across the Centre for all detainees. He still then was concerned to minimise the risk of DE becoming involved in further such events.

    15. (15)

        The conditions imposed thus encouraged both good order and security, including by precluding DE from participating in evening recreation while risk assessments continued. His behaviour then still being tested, while restrictions continued to reduce, with incentives also provided for his ongoing good behaviour.

    16. (16)

        Those restrictions reflected the seriousness of DE’s conduct on 25 June, the earlier assault on him and the risk which access to cutlery at dinner posed, at a time when more fights and disturbances generally tended to occur.

    17. (17)

        This plan recognising DE’s positive improvement, as well as Mr Vita’s continuing concern about his very serious assault and involvement in the 25 June incidents.

89. [685]

    This DRMP required separate segregation records be kept. These recorded daily approval of segregation by the Unit Manager, in one case recorded only a month later for reasons which were explained in evidence, of which Mr Vita was not aware. Nothing turns on this.

90. [686]

    Daily segregations of less than three hours did not require approval. But Mr Vita’s decision to continue segregation each day until 18 July from 4.45 pm until the normal lockdown at 7.20 pm, meant that his decision was for ongoing segregation of more than three hours. Accordingly, it also required the approval which s 19(1)(b) provided for, within three hours of the segregation imposed commencing. The CIMS records did not establish that such approval was given by those with the relevant delegated authority.

91. [687]

    While more difficult to resolve, I am persuaded that the better view is that even on 12 July, Mr Vita still held the belief s 19(1) required on reasonable grounds. He was certainly then confident that the risks DE posed had reduced significantly and were being successfully managed under less restrictive arrangements, allowing DE to safely mix with other detainees at certain times of the day for even longer periods than before, while risk assessment continued.

92. [688]

    But Mr Vita still believed the shorter periods of daily segregation, imposed on 12 July during the evenings, remained necessary to protect safety. That there were then still not practical alternatives, given his ongoing concerns and the obligations and duties imposed on him, must also be accepted.

93. [689]

    Mr Vita’s consideration could not be confined to all that was known about DE’s age, development and mental condition, or his ongoing improved behaviour. Mr Vita took the available view that close attention still had to be paid to the serious nature of the safety risks posed by DE, established by his conduct on 25 June, when they materialised in his offending in detention. He considered that the resulting need for DE’s ongoing good behaviour to be impressed upon him, in order that the risks he continued to pose were managed, had to result in the continuation of some daily segregation at the most dangerous time of the day.

94. [690]

    That DE’s risks still had to be managed, was undoubted, given his past violent behaviour in detention only several weeks before, at such a time.

95. [691]

    What was explained in Silver City sheds light on the difficulty Mr Vita then faced. He having to assess the ongoing risks which DE continued to pose, what protecting personal safety then required, to determine whether there were then practicable alternative means to segregation and the risk of a breach of the duty imposed by the Work Health and Safety Act, if his decision to end segregation proved to be wrong, with the result that DE pursued further violence.

96. [692]

    On DE’s case, no ongoing segregation was then required, given the time which had elapsed since 25 June and his compliant behaviour in segregation. DE asserted that Mr Vita was wrong in the view which he took and the course he pursued, with the result that he was isolated for far longer than he reasonably should have been.

97. [693]

    Yet, Mr Vita was certainly not obliged to risk the commission of an offence by ending DE’s segregation when he believed that would be premature, that risking the safety which had to continue to be ensured. I am persuaded that DE’s conduct on 25 June provided a reasonable basis for Mr Vita’s ongoing beliefs, on which his 12 July decision rested.

98. [694]

    Nor was the nature of the risks which DE then posed not established by the fact that he had not inflicted lasting injury on his victim on 25 June. Nor was that established by his complaint behaviour in segregation up to 12 July. Mr Vita had to take such matters into account in his decision-making, also paying proper regard to the nature and seriousness of the risks which DE continued to pose, they having already materialised in detention, as they had.

99. [695]

    Mr Vita said that his decision-making was then driven by DE having attacked his victim as shown through CCTV footage, while held in detention on remand, unaffected by drugs or alcohol, and then also involving himself in the other detainees’ attack on the second victim.

100. [696]

     A failure on 12 July to respond adequately to the risks which had already so materialised, thereby risking serious potential injuries as the result of further such violence, as was Mr Vita’s concern, I am satisfied explained his approach and provided a proper basis for the beliefs he held and the course he pursued. It being notorious that unprovoked punches can not only result in very serious injury, but in the case of a strike to the head, that even one punch has been known to lead to death.

101. [697]

     That it was reasonably open to Mr Vita then to conclude that the risks DE posed could be managed by a continuation of his segregation only during the evening, the time at which he had pursued his violence on 25 June, must be accepted, given his behaviour in the meantime.

102. [698]

     This drives the conclusion that the further relaxed segregation Mr Vita then imposed, less than three weeks after 25 June, was both reasonable and as short as possible in the circumstances. There still then being no practicable alternative means to protect personal safety, of DE and others, given Mr Vita’s ongoing concerns and his belief that further risk assessment was required, before segregation could be safely brought to a complete end.

103. [699]

     In final submissions, DE urged the view that this decision involved segregation being used to protect against a risk which was not specific to him, immediate or unacceptable. The risks he posed rather being ones applicable to all detainees. That may also not be accepted.

104. [700]

     To the contrary, the risks which Mr Vita believed on 12 July still had to be managed by segregation, given DE’s violence on 25 June, remained immediate and unacceptable, given the duties imposed by the Work Health and Safety Act and the concerns he still had. Mr Vita still not being satisfied that they had abated to the extent that he could safely bring DE’s segregation to a complete end, without risking the personal safety which had to be protected. That providing reasonable grounds for the course he pursued. He reasonably taking the view that there were then no practicable alternative means available to protect safety, given all the risks that still had to be managed.

105. [701]

     Stil, while I am satisfied that s 19 was otherwise complied with, as I have explained, Mr Vita’s 12 July decision was also not approved as s 19(1)(b) required.

Invalidity

1. [702]

   I have explained how the challenged decisions were made, later recorded and approved, as well as the deficiencies of the systems operating in 2016, which drive the conclusion that the conditions of s 19(1)(b) were not complied with when the 27 June, 5 July and 12 July decisions were made.

2. [703]

   The approach then pursued also reflected how s 19(1)(b) was understood, as well as how the CIMS system was designed and operated. This not ensuring that the requirements imposed by r 10 were met. That reflecting a failure to have proper regard to these requirements when the system was designed.

3. [704]

   But I am not satisfied that the result, the inability to establish that all of the challenged decisions received the required approval within the three hours which s 19(1)(b) required, leads to the result for which DE contended. Namely, that Mr Vita’s 27 June, 5 and 12 July decisions to segregate him for more than three hours were invalid.

4. [705]

   DE’s approach relied on Project Blue Sky. He contending that all of the requirements of s 19 are mandatory, the Detention Centres Act not only being concerned with protecting safety, but also with the welfare of detainees, that being the paramount consideration. All of the requirements of s 19, including the conditions imposed by s 19(1), being imperative, so that they cannot be understood as anything other than mandatory.

5. [706]

   The result DE urged being that because he claimed wrongful imprisonment, the State had to establish that there was lawful justification for his segregation and that s 19 had not been breached. The statutory construction principles in Project Blue Sky being relevant to the question of whether the statutory power it gave had been exercised lawfully, with a valid outcome.

6. [707]

   Although DE accepted that, if it was concluded that the challenged decisions were not invalid, despite the requirements of s 19 having been breached, he could not establish his claim for wrongful imprisonment.

7. [708]

   DE also argued that if a breach of s 19(1) was identified, invalidity would not require the release of a segregated detainee on a judicial review application. The Act permitting as it does another valid segregation decision to be made, with all the requirements of s 19 then being complied with. The Court in such a case not being likely to make a release order, especially if the duties imposed by the Work Health and Safety Act also required continuing segregation.

8. [709]

   It seems to me, however, that what this points to is the unlikelihood of the Parliament having intended that a s 19 decision to segregate for more than three hours, which had been approved, albeit after the required time, would be invalid.

9. [710]

   The State’s case was that DE’s approach did not accord with what was decided in Project Blue Sky. That requiring a consideration of whether a breach of s 19 was intended to cause invalidity, that depending on a consideration of legislative purpose. That having to be considered in the context of a detainee who has been assessed to pose such a serious risk to safety, that his or her segregation was required.

10. [711]

    The result, on DE’s approach, that any breach of s 19, even of a requirement to provide a segregated detainee with sufficient television access, which s 19(1)(c) may require, so that a detainee has a means of usefully occupying themselves, signalling invalidity; was submitted by the State to be impermissible.

11. [712]

    It was thus urged that it would be accepted that a breach of s 19 not only does not result in invalidity but also cannot result in a detainee’s wrongful imprisonment.

12. [713]

    Resolving what is in issue turns on what legislative purpose can be discerned in the Detention Centres Act. And whether segregation being imposed despite all requirements under s 19 not having been complied with, is intended to result in invalidity. This must be ascertained “by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition”: Project Blue Sky at [91].

13. [714]

    That requiring a consideration of whether the decision to segregate was made in breach of “an essential preliminary” to the exercise of the statutory power or authority which s 19 gives a Centre Manager, as was DE’s case. Or whether the challenged decision to segregate was rather made in breach of a “procedural condition” for the exercise of the power or authority: at [92].

14. [715]

    In the case of s 19, since the Detention Centres Act and the Work Health and Safety Act must operate harmoniously, the consequences of invalidity requiring scrutiny including that a s 19 decision to segregate a detainee can only be made in order to protect personal safety. That making it likely that such a decision is also made in order to meet duties imposed by the Work Health and Safety Act.

15. [716]

    Applying the applicable principles to s 19, I do not accept that they must lead to the conclusion that a breach of s 19(1)(b) of the kind here established, which involved segregation exceeding three hours continuing without approval having been given before that time expired, results in the invalidity of the segregation decision, despite it having in fact been approved.

16. [717]

    It seems to me that the preferable view is that, if a decision to segregate a detainee is made, not “in order to protect the personal safety of that or any other detainee, or of any other person” as s 19(1) requires, but for some other purpose, the decision would involve a breach of an essential preliminary for the exercise of the s 19 power. This includes if the segregation was imposed in order to punish a detainee, which is expressly prohibited by s 19(2).

17. [718]

    As I have explained, that was not established in DE’s case, despite it being put to some witnesses that the real purpose of his segregation was to punish him for his violence on 25 June. DE’s case being that this was also established by the consequences of his segregation, isolation which was in fact, punitive. I am also unable to accept this.

18. [719]

    What was established was that the decisions of 27 June, 5 and 12 July to segregate DE for more than 3 hours were all approved, but not before the three hours expired, as s 19(1)(b) required. But approval of Mr Vita’s decisions was given by those who had the delegated authority, during DE’s ongoing segregation. This reflecting the breach of a procedural condition for the exercise of the power to segregate, rather than the breach of an essential preliminary to the exercise of the power to segregate.

19. [720]

    In my view, the errors involved in the failure to obtain the required approval before the three hours expired, resulted in the breach of s 19(1)(b). But not in the breach of an essential preliminary to the making of the decision to segregate.

20. [721]

    The failure to approve within the specified time involving a breach of a procedural condition imposed on the exercise of the power to segregate, despite the mandatory terms in which s 19(1)(b) was expressed. Namely, that such segregation “must not exceed three hours except with the approval of the Secretary”. That being a condition which can be satisfied, as I have explained, before or after the segregation begins.

21. [722]

    This means that despite DE’s segregation having continued for more than three hours before it was approved, rather than his segregation having then been brought to an end and another segregation decision having been made and approved within a further three hours, the invalidity which DE urged did not result.

22. [723]

    It may be accepted that the conditions imposed by s 19(1) cannot be construed as providing mere guidelines for the exercise of the power to segregate which the section gives. Its exercise being subject to those conditions. But nevertheless, a failure to strictly comply with all that they require, will not necessarily render a decision to segregate invalid.

23. [724]

    I am satisfied that conclusion must be arrived at despite DE’s reliance on Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14].

24. [725]

    There, the Court explained in a judicial review application, the need for an applicant to satisfy the Court that the threshold of materiality is met in order to establish that an error is jurisdictional, albeit meeting that threshold is not demanding or onerous. In such a case, the question was whether the result “could”, not would, “realistically” have been different had there been no error: at [22]. “Realistically” being used to distinguish the assessment of the possibility of a different outcome, from one where the possibility is fanciful or improbable.

25. [726]

    The conclusion that a failure to adhere to the condition imposed by s 19(1)(b) did not result in the invalidity of the challenged decision, has no impact on the obligation imposed on Centre Managers to adhere to the conditions imposed by s 19(1). Nor would it preclude, in an appropriate case, the pursuit of either habeas corpus or judicial review, in the event of a breach of s 19(1). Although whether the Court would make orders in favour of a detainee segregated without strict compliance with its conditions, would no doubt depend on the nature and seriousness of the risks the detainee posed and whether issue was joined over what the Work Health and Safety Act required in the circumstances.

26. [727]

    All of Mr Vita’s challenged decisions for DE’s ongoing segregation were approved, albeit not always within three hours of segregation commencing. He having also had regard to the need to observe the duties which Work Health and Safety Act imposed.

27. [728]

    That the decisions of 27 June, 5 and 12 July remain valid, despite the evidence not having established that the approval was given within the required time, impacts DE’s claim that he is entitled to damages for wrongful imprisonment, as he accepted. But that is not a reason for concluding that they are invalid.

28. [729]

    That on the evidence, there is no real basis to conclude that the challenged segregation decisions would have been different, had approval been given within three hours, rather than after that time had passed, is relevant.

29. [730]

    This conclusion is inevitable, given what DE’s violence on 25 June revealed about the nature and seriousness of the ongoing risks he posed while detained, which always had to be managed while he was on remand at Cobham. DE’s conduct, when unprovoked, he attacked his victim and then joined in the brawl in which another victim was being assaulted, established that the approach to risk management adopted to that point at Cobham had not prevented his risks from materialising in detention. Despite what the duties imposed by the Work and Health and Safety Act always required.

30. [731]

    In 2016, the position was that the only way DE could have been completely released from lawful detention was to make a further, successful, bail application to this Court under the Bail Act. He made no such application, understandably, given what he would then have had to establish. Namely, that he no longer posed bail concerns and unacceptable risks of the kind with which the risk assessment it provides for is concerned, despite his violence in detention on 25 June.

31. [732]

    Given the nature of what DE did on 25 June 2016, the offending that involved, his resulting reclassification in detention to the highest classification, Mr Vita’s available views about the nature of risks DE posed and what was required to safely manage them, it is difficult to see that such an application could have succeeded, had DE then made one. Even though compliance with s 19 of the Detention Centres Act may then have arisen to be considered, as would the duties imposed by the Work Health and Safety Act.

32. [733]

    The only way DE could then have obtained release from segregation was by a judicial review application, where he would have had to establish that the risks he then posed, did not warrant his segregation.

33. [734]

    The evidentiary difficulties encountered at the hearing in 2025, when evidence was being given many years after Mr Vita made his decisions and the records in evidence were created, would not have arisen in 2016.

34. [735]

    Further, as DE also accepted, any failure which then came to light, in relation to compliance with the requirements of s 19, could have been entirely cured by the making of a further decision to segregate him.

35. [736]

    This makes it unlikely that any challenge DE could have pursued in 2016 to his ongoing segregation would have succeeded, given the nature of the risks which he then posed.

36. [737]

    The case DE pressed was nevertheless that his detention became unlawful before his release from segregation on 18 July 2016, the challenged decisions being invalid. Despite how the risks which had materialised on 25 June initially warranting his separation that day and the ongoing duties which the Work Health and Safety Act then imposed. That being because even by 27 June, DE contended, those risks had not provided a lawful basis for his segregation.

37. [738]

    Whether a decision-maker could hold the necessary belief under s 19 regarding DE, throughout the period from 25 June to 18 July 2016, is no doubt an issue about which minds may reasonably differ. As I have explained, despite this, I am satisfied that Mr Vita did have the required belief.

38. [739]

    Mr Vita undoubtedly had difficult decisions to make at Cobham in 2016 about the important issue of safety, within a complex regulatory environment, earlier decisions having failed to ensure safety there on 25 June. That environment, I am satisfied, makes it difficult to accept that the Legislature contemplated that when a decision-maker such as Mr Vita holds the required belief on reasonable grounds, that any failure to comply with the conditions imposed by s 19(1), or even the requirements of ss 19(3) and (4), would render a decision to segregate invalid.

39. [740]

    Proper account also having to be taken of the consequences of such a conclusion.

40. [741]

    On DE’s case, one of them, he claimed being that he was entitled to considerable damages for wrongful imprisonment. Despite the decision-maker’s belief that compliance with the duties imposed by the Work Health and Safety Act also necessitated the segregation imposed.

41. [742]

    If DE’s case on invalidity is correct, it is of course conceivable that in a prosecution for an offence under that Act, reliance may have to be placed on an invalid s 19 decision to segregate, despite it having been one which was actually approved, albeit not within the time s 19(1)(b) required.

42. [743]

    This helps explain why I consider that the better view is that the Parliament did not intend that a segregation decision, made when the decision-maker held the required belief under s 19(1), which did receive approval, albeit not within three hours, would as the result that breach of s 19(1)(b), be invalid.

43. [744]

    The outcome DE urged is in my view not justly available given the context, general purpose and policy of s 19 of the Detention Centres Act, which must work harmoniously with the Work Health and Safety Act. Both Acts being concerned as they are with safety and with the latter imposing onerous duties on the State and those who have to make difficult segregation decisions at times in detention centres, at risk of the commission of serious offences if they err.

44. [745]

    The legislative goals shared by these Acts and the need to give harmonious effect to them both, in my view requires the conclusion that the breaches of s 19(1)(b) established in DE’s case, did not invalidate the decisions Mr Vita made to segregate him.

45. [746]

    This reflecting how those required to make such decisions have to work in an environment where risks posed by detainees can be serious, jeopardising the safety of other detainees, staff and others present at Centres, if they manifest. Which may require that such risks be managed urgently and under pressure, in order also to ensure compliance with the duties imposed by the Work Health and Safety Act, including when segregation decisions are made.

46. [747]

    In my view, this does not sensibly permit the construction for which DE contended and has helped persuade me that none of the challenged decisions were invalid. Despite the mandatory terms in which s 19(1)(b) is couched, on which DE relied to press the claimed invalidity, describing it to impose a “clear black and white term”. I am simply unable to accept that the approach urged is available.

47. [748]

    The result is, as DE accepted, that his wrongful imprisonment claim must fail.

Damages for false imprisonment

1. [749]

   In case I am wrong in these conclusions, I will also deal with the question of damages.

2. [750]

   The compensatory principle in tort was recently explained again in Stewart v Metro North Hospital and Health Service [2025] HCA 34 at [1]; (2025) 99 ALJR 1348. It entitles an injured party to compensation in a sum which, so far as money can do, will put that party in the same position as they would have been in if the tort had not been committed.

3. [751]

   The award of damages DE pursued also depends on the proper construction of the Detention Centres Act.

4. [752]

   Despite the case he pressed, I am also not persuaded that the Detention Centres Act evinces an intention that, when a decision to segregate is made by a decision-maker who holds the belief s 19(1) requires, any failure to comply with conditions there imposed, or even with the requirements of ss 19(3) or (4), entitle the detainee to damages for wrongful imprisonment.

5. [753]

   Such an intention seems quite unexpected, given what the Detention Centres Act provides for, an entitlement to such damages not being pointed to by any of its provisions. It rather seems to be one which sits most uncomfortably with the entire regulatory scheme I have explained.

6. [754]

   The Detention Centres Act providing as it does for lawful detention while a detainee bail refused is held on remand as the result of a Court order. The conditions of detention being for the State to determine and manage, it giving paramount consideration to the welfare and interests of those held on remand in its administration of the Act. But all the while ensuring the safety of detainees and those who work at or visit detention centres.

7. [755]

   The conditions which DE did not challenge include overnight and other periods of daily lockdown while detainees are held on remand, where they are kept isolated in the same rooms in which they may also be held when in separation, segregation or even confinement. DE finally accepted that he could not be awarded damages in respect of any times during which he would be kept locked in his room, like all detainees normally were in 2016 at Cobham.

8. [756]

   But DE pressed his claim that when segregated at other times, as the result of the challenged decisions, all of the requirements of s 19 not having been strictly complied with, he was entitled to considerable damages, including exemplary damages. Such breaches having resulted in his wrongful imprisonment.

9. [757]

   I am not persuaded the Parliament intended the consequence of the breaches of s 19 which occurred, when Mr Vita’s segregation decisions were not approved within the required three hours, to be that a detainee such as DE would then be entitled to damages of the kind claimed.

10. [758]

    The evidence having established the reality, that the decisions which were made to segregate DE were also made in order to comply with duties imposed by the Work Health and Safety Act. Unlike a s 19 decision, a decision made under that Act may be immune to Court interference, given what it imposes on the State and those who work at Centres such as Cobham. That does not here arise to be determined.

11. [759]

    As I have explained, in 2016, the Centre Manager Mr Vita having concluded that safety required DE’s segregation, any deficiency in his then decision-making, if identified, could have immediately been rectified by the making of a further s 19 decision.

12. [760]

    That does not comfortably accommodate the conclusion that the Parliament also intended, if s 19 was breached as the result of a failure to obtain approval for a segregation decision within three hours, that the detainee would not merely be entitled to an order for release, but also damages for wrongful imprisonment.

13. [761]

    The preferable construction of the Detention Centres Act, it seems to me, is that it does not evince the necessary intention that, in the event of a breach of s 19 of the kind DE established, that the detainee would be entitled to damages for wrongful imprisonment.

14. [762]

    I will nevertheless deal with what is in issue about damages, in case I am wrong in this conclusion.

15. [763]

    The principal function of the tort of false imprisonment is to provide a remedy for “injury to liberty”, with damages awarded “to vindicate personal liberty”. This interference with the right to liberty is vindicated by the cause of action: Ruddock v Taylor (2005) 222 CLR 612 at 651 [141]; [2005] HCA 48. Proof of actual damage is not required.

16. [764]

    DE’s claim turns not on the deprivation of his liberty, to which he was not lawfully entitled in 2016. But on the consequence of a failure to strictly comply with all the requirements of s 19(1) of the Detention Centres Act.

17. [765]

    In Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26, a decision to cancel periodic detention was found to have been invalid because of a lack of procedural fairness, with the result that he had been falsely imprisoned. It was observed that this did not mean there had been “an impairment of his rights that can or should be reflected in an award of other than nominal damages”: at [13].

18. [766]

    DE appears to be in an even more difficult position, given that he was lawfully held on remand at Cobham, under the statutory scheme I have explained.

19. [767]

    What nominal damages are, was explained in Lewis at [114] by reference to Baume v The Commonwealth (1906) 4 CLR 97 at 116; [1906] HCA 92, where observations in Owners of Steamship “Mediana” v Owners, Master and Crew of Lightship “Comet” [1900] UKLawRpAC 3; [1900] AC 113 at 116 were approved:

20. [768]

    Unlike in that case, DE’s right to liberty was circumscribed as the result of the Children Court’s refusal of his bail application. In those circumstances, he accepted that he was not entitled to “an award of substantial damages, such as might be warranted in the case of a person lawfully at large who is falsely imprisoned”

21. [769]

    That flowed from Lewis where it was explained that an impairment to a right to be at liberty can support an award of only nominal damages: at [6]. There having to be a “reasonable proportion between the amount awarded and the loss sustained” as a result of the tort: at [14]. But that such an award of damages “must not exceed the amount appropriate to compensate the plaintiff for any relevant harm he or she has suffered”

22. [770]

    At first instance, Mr Lewis had been awarded only $1.00: Lewis v Australian Capital Territory [2018] ACTSC 19; (2018) 329 FLR 267. His appeal was dismissed: Lewis v Australian Capital Territory [2019] ACTCA 16. So was his appeal to the High Court: Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26.

23. [771]

    Because DE elected not to give or call evidence, there is no proof he suffered any actual loss or injury. DE urged that harm would be inferred from the fact of segregation itself, given the isolation that involved and what was referred to in contemporaneous records I have explained.

24. [772]

    There is thus some evidence of adverse consequences during DE’s segregation, relevant to the assessment of his damages. On the records kept, it should be accepted that he did experience things like frustration and loneliness, greater than what he would ordinarily have suffered as a detainee held on remand.

25. [773]

    DE claimed damages of $17,750, relying on the assessment of $1,000 per day applied by White J in Campbell. For the period from 26 June to 5 July, he was kept in his room for up to 23 hours per day. During the period from 5 to 18 July he was kept segregated for increasingly shorter periods each day, even though he had by then already been segregated since 26 June, with his ongoing segregation then undoubtedly having a greater impact on him. But only $250 per day damages were sought from 12 to 18 July, when he was segregated for only three hours per day.

26. [774]

    On the State’s case, consideration could only be given to an award of damages constituting half of what DE claimed, given that he was always in lawful detention and that additional time he was confined to his room each day, as the result of his segregation, began with about half a day and finally reduced to three hours. That having the result that if nominal damages could be awarded, they would be assessed at no more than $300 per day for the period to 12 July, and thereafter at $150 per day.

27. [775]

    Assessment of damages requires a consideration of the position DE would have been in, if not segregated as he was as the result of the challenged decisions. This assessment requiring a consideration of “a counterfactual in which all who had lawful capacity to contribute to a deprivation of liberty conducted themselves strictly in accordance with law”: Lewis at [36].

28. [776]

    The required assumption being that “everyone who had lawful capacity to contribute to deprivation of the plaintiff's liberty acted in strict performance of their legal duties and acted or refrained from acting in strict compliance with the conditions expressly or impliedly imposed on the exercise of their legal powers”: at [37].

29. [777]

    But it could not simply “be assumed that a power to detain that could have been exercised lawfully would have been exercised lawfully if that power had not in fact been exercised unlawfully; and it cannot simply be assumed that all conditions precedent to the enlivening of a statutory duty to detain would have been met”: at [39].

30. [778]

    In DE’s case, I consider what must be assumed is that the approval which s 19(1)(b) required be given for his segregation for more than three hours, was given within the required time for all of Mr Vita’s decisions. That flowing from the fact that all the challenged decisions were approved, albeit in the case of the 27 June, 5 and 12 July decisions, only after the required time.

31. [779]

    Having made that assumption, I would have assessed DE’s nominal damages at no more than what the State conceded, and even less had the concession not been made.

32. [780]

    This reflects the considerable safety risks posed by DE while on remand, which materialised on 25 June and then had to be dealt with, given the duties imposed by the Work Health and Safety Act.

33. [781]

    Thereafter the risk he posed had to be even more carefully assessed and managed at Cobham than it was prior to DE’s violence that day. A failure to do so risking ongoing failure to comply with the onerous duties imposed by the Work Health and Safety Act and likely resulting in the commission of serious criminal offences punishable by substantial penalties. These offences would be committed by the State, the Centre Manager, Duty Managers and perhaps other managerial staff on whom such duties were imposed.

34. [782]

    The records kept of the decisions in issue and their required approvals were deficient, as I have explained, as the result of the deficiencies in the design of the system and the understanding of the requirements of s 19. The State thus did not comply with the regulatory record keeping requirements. Had they been complied with, the same decisions are not only likely to have been made by Mr Vita about DE, but the approval requirements of s 19(1)(b) are likely not to have been misunderstood or overlooked, as they were.

35. [783]

    In assessing nominal damages, it cannot be justly overlooked that all of the segregation decisions were approved by those with the relevant delegated authority. This would finally drive the conclusion that any nominal damages DE would be awarded, if the challenged decisions were invalid, would have to be very small. With the result my conclusion that damages no more than those the State conceded would be awarded.

36. [784]

    I am also satisfied that the evidence established no basis for an award of exemplary damages, if the challenged decisions had been invalid, given how rarely they are awarded and the circumstances in which they may be awarded.

37. [785]

    The principles are settled. They include that:

    1. (1)

       Exemplary damages are awarded “as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself”: Wilkes v Wood [1763] EngR 103; (1763) Lofft 1 at 19; 98 ER 489 at 498-499 cited with approval in Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47.

    2. (2)

       Such damages will be awarded where a defendant engages in conduct “variously described as ‘wanton and malicious’, as ‘conscious wrongdoing in contumelious disregard of the plaintiff's rights’, as ‘outrageous’, ‘atrocious’, ‘vindictive’, ‘arrogant’, ‘high handed’ or ‘insolent’”: Lamb v Cotogno at 3.

    3. (3)

       The phrase “conscious wrongdoing in contumelious disregard of another's rights” describing “at least the greater part of the relevant field”: Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [14].

    4. (4)

       Such damages require more than a mere finding of fault: Gray at [12].

    5. (5)

       The intent or recklessness necessary to justify such an award may be found in contumelious behaviour which falls short of being malicious or is not aptly described by the use of that word: Lamb v Cotogno at 13.

    6. (6)

       The “first, if not the principal, focus of the inquiry” being upon the wrongdoer, not upon the party who was wronged: Gray at [15].

38. [786]

    DE’s submission that the failures established by the evidence fall within these descriptions, cannot justly be accepted. The evidence establishing, as it does, that none of the breaches of s 19 were driven by conscious wrongdoing, let alone contumelious disregard of his rights.

39. [787]

    Mr Vita and all those involved in the DRMP process, which resulted in DE’s segregation appear rather to have been concerned with meeting the statutory obligations and duties imposed in relation to ensuring safety at Cobham, given the serious risks which DE posed and how they had materialised on 25 June 2016.

40. [788]

    That those who approved the challenged decisions did not have such a concern was not established. Nor was that established by the mistaken understanding of the time frame which s 19(1)(b) imposed.

41. [789]

    As I have explained, it was that and the design of the CIMS system which resulted in the failure to capture the information which the regulations required be maintained about segregation decisions. Had it been correctly designed, the failures to obtain the required approvals of Mr Vita’s decisions, given the s 39 delegations which had been made, are unlikely to have occurred.

42. [790]

    Certainly, the State would have then more easily been able to prove when Mr Vita made his decisions, and when and by whom they were variously approved.

43. [791]

    But what was not established was the pursuit of any conscious wrongdoing in respect of DE, let alone contumelious disregard of detainees’ rights. Even if it had been established that reasonable grounds did not exist for the various decisions which Mr Vita made, that could only be because reasonable minds could arrive at different conclusions to those which he reached, given all that he had to consider when he undertook the difficult assessments involved.

44. [792]

    The malicious, wanton and conscious wrongdoing necessary for an award of exemplary was entirely absent in this case.

45. [793]

    In Lewis, it was also observed that “exemplary damages may also have particular significance in restraining executive power”: at [111]. This can lead to no different conclusion in DE’s case. It not having been abuse of executive power which was here established.

Assault and battery

1. [794]

   Battery is a direct act, whether intentional or reckless, which makes or has the effect of causing contact with the body of another. While assault involves a threat of intentional contact causing the victim to apprehend, reasonably, that contact is to be made with their body: Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 at 233; [1992] HCA 15.

2. [795]

   It is a principle of statutory construction that “[s]tatutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language”: Coco v The Queen (1994) 179 CLR 427 at 436; [1994] HCA 15 referred to in Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory; Austral v Northern Territory (2020) 270 CLR 549 at 561 [25]; [2020] HCA 22.

3. [796]

   The Detention Centres Act lawfully permits handcuffing, with s 22(2) providing “a detainee shall not, without reasonable excuse, be handcuffed or forcibly restrained”. The risks to safety which DE posed, which materialised on 25 June as I have explained, provided the required reasonable excuse.

4. [797]

   The Department’s use of force policy contemplated pre-planned use of force in specified circumstances dealt with in r 65. Reference there was also made to obligations imposed by the Work Health and Safety Act. Available instruments of restraint include handcuffs and ankle cuffs. Rule 65 provided:

5. [798]

   DE’s case was that at the time of his segregation in 2016, he had a wrist injury which would not have permitted the use of ankle cuffs under the applicable policy. Witnesses were asked about the use of ankle cuffs on DE, of which none were aware. Nor were they referred to in any of the DRMP or other records kept.

6. [799]

   DE elected not to give evidence, the result being that there was simply no evidence that ankle cuffs were ever used on him.

7. [800]

   Even though the register was not produced, I am not satisfied that it can be inferred as a result that ankle cuffs were used. DE’s decision not to give evidence does not support that conclusion.

8. [801]

   As a result, DE’s claim for damages for use of ankle cuffs must fail.

9. [802]

   The parties finally agreed on the occasions and duration of DE’s ankle cuffing when he was taken out of his room during his segregation, established by the evidence. It is possible that he was also handcuffed on other occasions which have not been identified.

10. [803]

    DE’s case was that he should never have been handcuffed, as that was not warranted by the risks he posed. He claimed damages of $2,000 per incident, totalling $64,0000, contending that it must be inferred that handcuffing caused him both a degree of physical pain and discomfort, given how cuffs must be applied.

11. [804]

    The State’s position was that if any damages were payable, they should be confined to $250 per incident. But it contended that the handcuffing had been authorised in accordance with the applicable legislative and regulatory regimes, given their purpose and the risks which DE posed, which had to be managed. The handcuffing condition having flowed from DE’s violence on 25 June, and the ongoing need to manage the heightened risks it was identified he posed, even while segregated. It being relevant that he had also assaulted officers who had to deal with him on 25 June.

12. [805]

    Mr Vita explained the handcuffing condition was initially imposed because he considered DE still presented a risk of attacking other detainees and staff. His risk requiring management by use of handcuffs whenever DE was taken out of his room in the company of two staff members.

13. [806]

    Further, that by 5 July 2016 DE still posed such a risk. But, given his ongoing behaviour, Mr Vita then came to the view that risk assessments conducted daily by Shift Supervisors and Duty Managers would appropriately permit the ongoing use of handcuffs to be safely managed by them. That allowing them to exercise a discretion not to handcuff DE when out of his room, based on his behaviour and the circumstances which they had to deal with at the time, provided they concluded that would be safe.

14. [807]

    I am satisfied that the evidence does not establish that DE was ever handcuffed during his segregation without the required authority.

15. [808]

    The regulation permitting the force involved in the use of handcuffs to be used in order to protect officers or other persons from attack or harm. DE having attacked and harmed others as he unquestionably did on 25 June, established the nature of the real risk which he posed to others, which then had to be managed, so that he did not cause others further harm.

16. [809]

    I am satisfied that Mr Vita’s evidence must be accepted. The arrangements imposed on 27 June for DE to be handcuffed when taken out of his room reflected the risk he then perceived, namely, that DE would further attack and injure others when outside his room. Handcuffing was one of the steps taken to protect them. Ms Byrne’s evidence, that DE could still injure someone if he attacked while wearing handcuffs, must also be accepted.

17. [810]

    As a result of his behaviour in segregation, Mr Vita came to the view that the handcuffing condition could be relaxed, being then satisfied that the risks which might require further handcuffing could safely be left to be assessed by those who had direct daily supervision of him. The result was that he was then not always handcuffed when taken out of his room and that the occasions when handcuffing was found to be necessary was recorded in the register.

18. [811]

    DE elected not to give evidence and so no occasion when his evidence might have established that handcuffing was not warranted, was identified. His case being that it was never warranted and that the force involved did not have the required statutory authorisation. Given the risks which he posed, how they had materialised and then had to be managed, that cannot be accepted.

19. [812]

    It follows that DE did not establish the claimed assaults.

20. [813]

    Even if I had concluded that there was no lawful basis for DE having been handcuffed as he was at times, I am not satisfied that the damages claimed could be awarded, despite actual damage not having to be proven.

21. [814]

    It would have been easy for DE to provide evidence about what he actually experienced. Had he given evidence of having suffered some injury or damage, that would have been relevant to the assessment of damages. In cases such as Attalla v State of NSW [2018] NSWDC 190 for example, evidence was led about severe pain inflicted and how hurt and embarrassed Mr Attala felt (at [81]). As well as the circumstances in which handcuffs were used having aggravated the assaults involved (at [86]).

22. [815]

    Not having given any evidence about his experience, I do not accept that it may be inferred that DE was actually caused real physical pain, even though no doubt the handcuffs had to be applied tightly enough to be effective. With the result that he could no doubt have felt discomfort.

23. [816]

    But, it follows that since DE did not give evidence, the inferences he sought cannot justly be drawn. The result, I consider, is that at most he would be entitled to the damages the State conceded.

Interest on damages

1. [817]

   DE also sought an order for interest on his damages, the prohibition imposed by s 18(1) of the Civil Liability Act 2002 (NSW) on interest for damages for non-economic loss not applying to intentional torts: State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40 at [205]. Such an award must “be approached in a broad and practical way … [and] should not be allowed to assume disproportionate importance…”: Cullen v Trappell (1980) 146 CLR 1 at 22; [1980] HCA 10.

2. [818]

   DE contended that if interest was not awarded, the State would be allowed to take advantage of the effects of inflation to avoid the full consequences of its conduct. Given the limited damages DE could be awarded, had he succeeded, he accepted that this would be of limited moment. Still, he proposed the rate be 5%, that reflecting a fair rate, which did not necessarily have to reflect market lending rates: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663-664; [1991] HCA 3.

3. [819]

   The State contended that if damages were awarded at a 2025 value, no interest would be ordered.

4. [820]

   The question of interest also does not strictly arise. But if it did, I think the better view is that interest would not be ordered, there being no suggestion that the damages claimed or awarded should reflect the amount of damages which might have been awarded in 2016.

Declaratory Relief

1. [821]

   Given the conclusions I have reached, no declaratory relief is required. Even though the proceedings have shed light on problems in 2016 with the State’s record keeping and strict adherence to the requirements of s 19.

2. [822]

   Had those requirements been adhered to, the likely result would have been no different for DE, given the risks to safety which he posed in 2016 and how they had to be assessed and managed at Cobham.

3. [823]

   This judgment casts light on the operation of the statutory regimes which the parties put in issue, given what the State and those it employed at Cobham in 2016 had to deal with. DE’s violence while lawfully held on remand and the risks to safety which he posed and were posed to him as a result, all having to be managed, to ensure the safety of he and others in accordance with the statutory regimes which then applied.

4. [824]

   These proceedings did not vindicate DE’s claims that he had been wrongfully imprisoned and assaulted. Even if he had been, in the circumstances he would have been entitled only to nominal damages.

5. [825]

   In the result, I am satisfied that the declaratory relief he pressed is not warranted.

Costs

1. [826]

   There is no doubt about the complexity of the claims which DE pursued. But he accepted that if his claims failed, he would have to bear the State’s costs, that being the usual order under the Uniform Civil Procedure Rules 2005 (NSW), costs following the event: r 42.

2. [827]

   If there was mixed success, DE contended that the parties should be given an opportunity to make submissions. The State wishes to be heard on costs.

3. [828]

   It follows that the parties should confer and provide short written submissions as to anything in issue about costs by 20 March 2026.

Orders

1. [829]

   For the reasons given, I order that:

   1. (1)

      DE’s claims are dismissed.

   2. (2)

      If costs are disputed, short written submissions as to anything in issue should be filed by 20 March 2026.

   3. (3)

      Otherwise, proposed final orders should be filed by that date.