New South Wales Supreme Court CITATION : Dinh v Commissioner of Corrective Services & Anor [2000] NSWSC 969 revised - 23/08/2001 CURRENT JURISDICTION: Administrative Law Division FILE NUMBER(S) : SC 30052/00 11/10/2000 HEARING DATE(S) : 12/10/2000 16/10/2000 JUDGMENT DATE : 27 October 2000 Duy Thai David Dinh (Pl/Appl) PARTIES : Commissioner of Corrective Services (1Def/Resp) Governor of the Metropolitan Remand & Reception Centre (2Def/Resp) JUDGMENT OF : Kirby J COUNSEL : R Hoenig (Pl/Appl) N E Abadee (Defs/Resps) SOLICITORS : D J Humphreys - LAC (Pl/Appl) I V Knight - Crown Sol (Defs/Resps) CATCHWORDS : Summons seeking Declaration that designation of prisoner by the Commissioner was an improper exercise of power - Relevant and irrelevant considerations - Whether decision unreasonable LEGISLATION CITED : Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW) Prisons (General) Amendment (Designation of High Security Inmates) Regulation 1999 (NSW) Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-86) 162 CLR 24 Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 Re W (an Infant) [1971] AC 682 CASES CITED : Parramatta City Council v Pestell (1972) 128 CLR 305 Bruce v Cole (1998) 45 NSWLR 163 Buck v Bavone (1976) 135 CLR 110 Minister for Immigration v Eshetu (1999) 197 CLR 611 DECISION : Summons dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION KIRBY J Friday 27 October 2000 30052/00 - DUY THAI DAVID DINH v COMMISSIONER OF CORRECTIVE SERVICES & ANOR. JUDGMENT 1 HIS HONOUR: This is an application by an inmate of the Metropolitan Remand and Reception Centre at Silverwater ("Silverwater") to set aside his designation as a "moderate high security inmate" within the gaol system. Background 2 Duy Thai David Dinh was arrested on 10 August 1999. He was charged with the murder of John Newman MP. Bail was refused. He was taken to Silverwater, where he has remained. His trial has been fixed for 29 January 2001 (subject to an appeal against an order refusing a separate trial). 3 On 18 August 1999, the High Security Inmate Management Committee (established by the Serious Offenders Review Council) made a recommendation to the Commissioner of Corrective Services ("the Commissioner"). It recommended that Mr Dinh be designated an "extreme high security inmate" pursuant to sub-clause 20B(1)(a) of the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995 (NSW), then called the Correctional Centres (General) Regulation 1995 (NSW) ("the Regulation"). 4 The Commissioner considered that recommendation on 27 August 1999, and gave his approval. Mr Dinh was then subjected to a security regime appropriate to that designation. Such a regime includes the following: · First, all visitors are screened. They are photographed. A check is made to determine whether they have a criminal record. · Second, visits take place within a special area. The inmate is obliged to wear orange overalls. The facilities available in the usual visiting area (change tables, children's toys, etc) are not provided. · Third, inmates are housed in particular cells. The cells have no view beyond the gaol walls. The protocol contemplates a single prisoner to a cell, although that requirement was relaxed in the case of Mr Dinh. He was permitted another Vietnamese inmate in his cell to ameliorate his distress. · Fourth, inmates are not permitted to settle in a particular cell. Every three days or so they are moved to another cell. · Fifth, there are requirements for an escort when moving between different sections of the gaol, or to court. The need for an escort can restrict access to education. The inmate can only attend classes if there is an escort available. · Sixth, there are restrictions upon access to certain areas within the gaol. Inmates are not permitted to use a recreational area known as "the oval", or the gym. · Seventh, there are restrictions upon the work which may be offered to an inmate with a high security designation (whether "extreme" or "moderate"). 5 There are other restrictions besides. Representations were made on behalf of Mr Dinh by the Independent Council for Refugee Advocacy, and others, to have his designation changed. On 5 March 2000, Mr Dinh himself wrote to the Governor of the gaol in these terms: "I am at a loss to understand why I have to (be) constantly changing and shifting of cells. …" 6 Mr Dinh's letter asserted that at no stage during his seven months incarceration had he caused "animosity against other inmates", nor "suspicions of … wrong doing". 7 The High Security Inmates Committee ("the Committee"), meets every month to review the designation of inmates characterised as "extreme high security inmates". On 24 May 2000 the Committee made a recommendation to the Commissioner that Mr Dinh's designation be varied from extreme to moderate high security inmate, pursuant to cl 20B(1)(b) of the Regulation. On 1 June 2000 the Commissioner approved that change. It is this decision by the Commissioner which Mr Dinh seeks to overturn. He claims that he should not be designated a high security inmate at all. 8 The regime for an inmate designated a "moderate high security" inmate is significantly less intrusive than for a prisoner designated "extreme". The complaints of Mr Dinh in respect of his present regime are as follows: · First, Mr Dinh suggests that visiting hours are restricted, imposing a hardship upon his wife. Visits must take place before 4.00 pm, whereas inmates ordinarily receive visitors until 6.00 pm. · Secondly, whilst Mr Dinh has now been provided with work as a sweeper, other sweepers are allowed to remain outside the cells after lock-up at 4.00 pm, completing their work. Mr Dinh is locked up at 4.00 pm. · Thirdly, certain jobs are not available to him, including positions within the Correctional Services Textile Facility, Cortex. · Fourthly, education takes place on the first floor, above the cells. To go to the first floor Mr Dinh requires an escort. The escort, moreover, is obliged to remain whilst an inmate undertakes tuition. Often escorts are not available. Mr Dinh's ability to take advantage of eduction offered by the gaol is, therefore, circumscribed. · Fifthly, although he is not now moved from cell to cell every three days, he does not have the opportunity, available to other inmates, of being in a cell where there are four inmates ("four out"). 9 The Department disputed aspects of Mr Dinh's evidence. It asserted, and I accept, that the hours he may receive visitors are the same as for other inmates. So far as education is concerned, arrangements can be made for teachers to give individual or group tuition to high security inmates (such as Mr Dinh) on ground level. Mr Dinh has not yet taken advantage of that opportunity. 10 The Department pointed out, however, that as a moderate high security inmate, Mr Dinh ought not to have been allowed to use the oval. It appears that this aspect of the Department's regime has been overlooked by officers. Mr Dinh has apparently used the oval since June without incident. The Statutory Provisions 11 The Regulations make a distinction between classification and designation. Each inmate, upon arrival, is classified. The classification is undertaken for "security and developmental programs" (Regn 10). The Regulations also make provision for inmates who may present a special security risk. Division 3 is headed: "Designation and Management of High Security Inmates". The Commissioner is given the following power: "20B(1) The Commissioner may designate an inmate to which this Division applies as: (a) an extreme high security inmate, or (b) a moderate high security inmate." 12 The Commissioner may also vary, or revoke, a designation (Regn 20B(4)). The criteria which the Commissioner is obliged to apply are set out in the same Regulation, as follows: "20B(2) An inmate may be designated as an extreme high security inmate only if the Commissioner is of the opinion that the inmate constitutes: (a) an extreme danger to other people, or (b) an extreme threat to good order and security. (3) An inmate may be designated as a moderate high security inmate only if the Commissioner is of the opinion that the inmate constitutes: (a) a danger to other people, or (b) a threat to good order and security." 13 The Commissioner, when making his decision, is bound to have regard to any recommendation of the Serious Offenders Review Council (Regn 20B(5)). That Regulation is as follows: "20B(5) The Commissioner is to take into account (but need not follow) any recommendation of the Review Council in determining the designation of an inmate or whether to revoke or vary an inmate's designation." 14 That Regulation was introduced by the Prisons (General) Amendment (Designation of High Security Inmates) Regulation 1999 (NSW), which commenced on 12 March 1999. It replaced a Regulation which attached greater importance to the recommendation of the Review Council. The previous Regulation was in these terms: "20B(5) The designation, or the revocation or variation of designation, of an inmate by the Commissioner may only be made on the recommendation of the review Council." 15 The Review Council is given the power to delegate this function to a committee (Regn 20D(2)). It has done so. The recommendation to the Commissioner is made by the High Security Inmate Management Committee. The Decision by the Commissioner 16 As previously mentioned, the High Security Inmate Management Committee made a recommendation to the Commissioner on 18 August 1999 that Mr Dinh be designated an extreme high security inmate. The Minute containing that recommendation referred to the allegations against Mr Dinh, and said this: "While there is no indicator that specifically describes the assassination of public figures, does the Committee wish to recommend to the Commissioner that Ngo and Dinh be designated as high security inmates?" 17 The same Minute provided four reasons for the designation it recommended. The reasons were as follows: "Those prominent inmates of public interest (18.1 Classification Manual), who by their actions or their crime draw significant media and/or community attention. An inmate who displays a pattern of persistent and/or aggressive behaviour showing a substantial degree of indifference to the reasonably foreseeable consequences of his/her behaviour to other persons. An inmate who displays any behaviour of such a violent nature as to compel the conclusion that he/she is unlikely to be inhibited by normal standards of behavioural restraint. An inmate who is incarcerated following remand or conviction for murder of a law enforcement official, an inmate or another person while in custody." 18 The form submitted to the Commissioner makes provision for his decision. It contains the words: "Approved/Disapproved". On 1 June 1999, the Commissioner signified his approval by deleting the word "Disapproved" and signing the form. He did not otherwise annotate the form. 19 The Minute containing the Committee's recommendation, when placed before the Commissioner, is not accompanied by the file. The Commissioner may, if he believes it necessary, call for the file, or any other document. He does not usually do so. He did not do so in the case of Mr Dinh. The Commissioner (Dr Keliher) stated that he formed his own opinion, taking account of the Committee's recommendation. He agreed, in part, with the reasons identified by the Committee. He thought, however, that the Committee's final reason (where it referred to "law enforcement official" and "an inmate") was "off beam". He took the Committee's words to be a reference to the "assassination of a public figure" which appear in the preliminary remarks of the Committee. 20 The Commissioner furnished an affidavit in which he identified his reasons for Mr Dinh's designation in these words: "(i) The unique nature of the crime; (ii) I knew that the plaintiff had been accused of being a contracted hitman in the shooting of John Newman MP, and that an eyewitness had identified him as such; (iii) I was aware from the minutes that the police had requested that the plaintiff be separated from his co-accused. (iv) I knew that the Newman murder investigation was given wide media coverage and as such the plaintiff was prominent in the public interest. In Correctional Centres such high profile inmates attract the attention of other inmates and as such the plaintiff may have been a target for other inmates or may have been able to organise support from other inmates for his own purposes and thus he constituted an extreme threat to the good order and security of the Correctional Centre; (v) I also gave consideration to the difficulty in effectively managing ethnic groupings. Inmates tend to associate on an ethnic basis. Language and cultural issues can compound the difficulty in effectively managing ethnic based gangs. The inmate and his co-accused were from one such ethnic group. (vi) I believed that the extreme gravity of the crime of which the plaintiff was accused, namely a political assassination, unique in Australia, made him an extreme danger to other people, including prisoners and prison officers." 21 Thereafter, as mentioned, the Committee made a further recommendation to the Commissioner on 24 May 2000 that Mr Dinh's designation be varied. He should henceforth be regarded as a "moderate" rather than an "extreme" high security inmate. The Minute containing that recommendation was brief. It included the Governor's Progress Report, which was in these terms: "Officers report Dinh to be a quiet and responsive inmate and has been approved to be placed in a two out cell with Nguyen (304220). There have been no adverse reports and his movements and activities will continue to be monitored." 22 The Minute came before the Commissioner on 1 June 2000. Again it was not accompanied by the file, and the Commissioner did not call for the file. The Commissioner accepted the Committee's recommendation. He did not annotate the document, beyond signifying his approval. The Commissioner, in his affidavit, elaborated upon his reasons in these words: "11. In making my decision on 1 June 2000 to designate the plaintiff as a moderate high security inmate under clause 20B(3) of the Regulation … I considered HSIMC's recommendations in the minutes of the HSIMC dated 24 May 2000 … However, I formed my own opinion that the plaintiff still constituted a danger or a threat to the good order and security of the prison based on the reasons in paragraph 10 above. In addition I had before me a record of the plaintiff's previous criminal history, including manslaughter, armed robbery, break enter and steal and carry a cutting weapon. 12. I had regard to the Governor's Progress Report in designating the plaintiff as moderate rather than extreme. I was not of the opinion that he should be removed from the designated list altogether because of the matters referred to in paragraph 11. 13. Based on my consideration of the minutes and taking into account the nature of the plaintiff's alleged crime, his association with his co-defendants, the media attention and his previous criminal record, I was of the opinion that the plaintiff still constituted a danger to other people or a threat to good order and security." 23 The relevant part of paragraph 10 (to which the Commissioner refers in paragraph 11) is set out above (pages 8/9, para 20). The Application by Mr Dinh 24 On 25 July 2000 a Summons was filed on behalf of Mr Dinh seeking a declaration in these terms: "A declaration that the decision by the Commissioner of Corrective Services and/or the Governor of the Metropolitan Remand and Reception Centre to designate the plaintiff, pursuant to s20B of the Crimes (Administration of Sentences) (Correctional Centre Administration) Regulations was an improper exercise of power in that it was so unreasonable that no reasonable person could have so exercised the power, and was exercised taking into account irrelevant considerations and without taking account of relevant considerations." 25 The Summons sought an order in the nature of certiorari to set aside the Commissioner's decision. 26 The Governor was named as a party to the Summons because the plaintiff was unsure who had made the relevant decisions. It is now clear that Mr Dinh's designation was the consequence of decisions by the Commissioner. At the hearing, Counsel for Mr Dinh withdrew any application for orders against the Governor. Relevant and Irrelevant Considerations 27 The Declaration sought by Mr Dinh raises the following issues: · First, whether, in making the decision to designate Mr Dinh a moderate high security inmate under Regn 20B(3), the Commissioner failed to have regard to matters which were relevant. · Secondly, whether in making that decision, the Commissioner had regard to matters which were irrelevant. · Thirdly, whether the Commissioner's decision of 1 June 2000 was so unreasonable that no reasonable decision maker, acting within jurisdiction, and according to law, could have come to the same conclusion. 28 It is convenient to deal with the issue of relevance first. The Regulation (20C(2)) obliges the Commissioner to have regard to the recommendation of the Review Council (or its delegate) (Regn 20D(2)). The legislature was obviously concerned that the Commissioner should have the collective wisdom of the Council's view, and any analysis provided by the Council in support of that view (cf Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-86) 162 CLR 24, per Mason J as 44). Having taken that view into account, Regn 20B(3) then defines the criteria which the Commissioner must use in forming his opinion as to whether someone should be designated a moderate high security inmate. The criteria are: · whether the inmate represents a danger to other people; or · whether the inmate represents a threat to good order and security. 29 A person who is a danger to other people is likely to represent a threat to good order and security. However, an adverse opinion in respect of either matter is enough to justify an opinion that the inmate should be so designated. 30 Here, the Commissioner had before him the recommendation of the High Security Inmate Management Committee, which he read. He identified the matters which he then took into account in making his decision on 1 June 2000. Broadly, two aspects operated upon his mind. First, the same matters which had led him to designate Mr Dinh as an extreme high security inmate (on 27 August 1999), were still regarded by him as relevant, to be weighed with the second matter. The second matter was the intelligence on Mr Dinh accumulated since his incarceration on 10 August 1999. Combining these matters, and paraphrasing the Commissioner's words, the matters which he took into account, therefore, were as follows: · First, the criminal history of Mr Dinh, and especially the crimes of violence for which he had been convicted. · Second, the crime with which he had been charged, namely, murder. · Third, the role said by the Crown to have been fulfilled by Mr Dinh, namely, "a hit man", that is a person retained by another to carry out an assassination for reward. · Fourth, the notorious nature of the crime, involving the murder of a Member of Parliament, and attracting significant publicity. · Fifth, the threat which such notoriety may pose within the context of the gaol, either investing the inmate with a charisma which enables him to gather support, or rendering the inmate a target for others. · Sixth, the difficulties which may arise from Mr Dinh's ethnic origins which, in the context of a gaol, can lead to associations with ethnic based gangs. · Seventh, intelligence gathered on Mr Dinh since entering Silverwater through surveillance and case management, all of which suggested that he was well behaved. 31 Each matter, in my view, was a relevant consideration. Each directly related either to Mr Dinh's potential for danger to others within the gaol system, or his potential to disrupt the good order and security of the gaol. I do not understand Counsel for Mr Dinh to suggest otherwise. Rather, the argument advanced on behalf of Mr Dinh was that the material before the Commissioner was incomplete and misleading. The Commissioner, therefore, made assumptions concerning Mr Dinh which were inaccurate. Were the Commissioner to have done so, it could be said that he had had regard to irrelevant considerations. It was Mr Dinh's contention that the full picture, emerging from the Departmental files, would have led the Commissioner to a quite different decision. The Commissioner, on that material, would not then have designated Mr Dinh a moderate high security inmate when the matter came before him for review on 1 June 2000. 32 That argument is perhaps best dealt with in the context of the third issue, namely, the alleged unreasonableness of the Commissioner's decision. The Principles to be Applied in Respect of Unreasonableness 33 The issue is whether the decision of the Commissioner was "manifestly unreasonable", that is, so unreasonable that no reasonable person could have come to it (Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223, per Lord Greene MR, at 233-234). 34 It is an objective test. In applying the test the Court must examine, not only the material which was before the decision maker, but material "constructively available". Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (supra), in the context of a decision by the Minister in respect of an Aboriginal land grant, said this: (at 45) "It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made." 35 Here, the Commissioner did not examine the Department's files relating to Mr Dinh. However, that material was available to him. Having regard to that material, was the decision by the Commissioner to designate Mr Dinh a moderate high security inmate unsupportable, because no reasonable decision maker, when provided with all the material, could have reached such a decision? 36 Before turning to the Department's files, I should underline the nature of the evaluation which the Court must undertake. An examination of the issue of unreasonableness should not be mistaken for a rehearing on the merits. It is the Commissioner who, by the Regulation, is given the obligation of forming an opinion. It is not the Court. Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (supra) said this: (at 40/41) "The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 KB at 228." 37 Lord Hailsham LC in Re W (an Infant) [1971] AC 682, put the matter this way: (at 700) "Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgment with its own." 38 See also Menzies J in Parramatta City Council v Pestell (1972) 128 CLR 305 at 323, cited with approval by Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163, at 184. 39 More than that, the task given to the Commissioner is that of forming a judgment. The cautionary words of Gibbs J in Buck v Bavone (1976) 135 CLR 110 are relevant. His Honour said this: (at 119) "It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute … The courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority would properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts." 40 Adopting these words, Gummow J in Minister for Immigration v Eshetu (1999) 197 CLR 611, made the following observation: (at 654) "This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question." 41 His Honour added: (at 657) "That other decision-makers may have reached a different view, and have done so reasonably, is not to the point." The Department's Files 42 What, then, emerges from the Department's files? A file was maintained in respect of the charges against Mr Dinh when a juvenile. He was born in Vietnam on 5 June 1972. He came to Australia with his uncle in 1983. They came as "boat people", leaving his mother and father in Vietnam. He spent a year in a refugee hostel, before moving to Liverpool. For a time he did well at school. He then appears to have separated from his uncle, and lived on the streets. In the process he accumulated a number of juvenile convictions. In 1988 he was convicted of break, enter and steal, and carrying a cutting weapon. He was also convicted of resisting arrest. In August 1989, he was again convicted of break, enter and steal, and carrying a cutting weapon. He was placed on probation for twelve months. 43 Somewhat earlier, on 29 January 1989, he was involved in an incident which led to his being charged with murder and nine offences of armed robbery. He ultimately pleaded guilty to manslaughter, and to the armed robbery charges. One gathers that all charges arose out of the same incident. Mr Dinh was one of a number of youths who invaded the home of a woman. Various members of the group were armed. Mr Dinh was carrying a shotgun, although it was said not to have been loaded. Another member was carrying a pistol. They wore balaclavas or stockings over their heads. In the course of the robbery, a member of the gang (although not Mr Dinh), killed the woman who occupied the house. The group escaped in a stolen vehicle. 44 Members of the gang, including Mr Dinh, came before Campbell J on 6 September 1989 for sentence. Mr Dinh pleaded guilty. His Honour's remarks on sentence included the following: "Since 15 February 1989 the prisoner has been in custody and has, on the voluminous laudatory material before me, been a model prisoner, making a marked and apparently successful attempt to rehabilitate himself. It is perhaps sufficient to say that he is the first inmate of Minda to pass the School Certificate whilst there. He is presently studying for the Higher School Certificate. He retains the support of his family and a number of other persons and groups and it would be to reject the considered opinion of a wide range of experienced persons including a clinical psychologist, not to accept that it is unlikely that he will offend again even though he had been given considerable help in the past, apparently unsuccessfully." 45 Mr Dinh was a little more than sixteen years at the time of this incident. He was sentenced to five years penal servitude, including a minimum term of three years and nine months, to be served in a juvenile detention centre. 46 Mr Dinh's behaviour during his sentence continued to be exemplary. There was one small incident, which I regard as of no importance. 47 Mr Newman MP was shot on 5 September 1994. A number of individuals have been charged, namely Phuong Canh Ngo, Tu Quang Dao, and the applicant in these proceedings, Mr Dinh. It is the Crown case that Mr Ngo was the Vice President of the Mekong Club, and a prominent member of the Australian Labour Party, especially within the Cabramatta area. Mr Newman was the Member for Cabramatta in the State Parliament. Mr Dinh was said to be a casual barman working at the Mekong Club. It is alleged that he was recruited by Mr Ngo, or someone on his behalf, shortly before the murder, and that he carried out the shooting. The Crown case is that Mr Dao was the driver who transported Mr Dinh to and from the scene. 48 Mr Dinh was in the United States of America when he was told that the police wished to interview him in connection with the inquest into Mr Newman's death. He returned to Australia. He was on his way to the Cabramatta police station on 10 August 1999 when he was arrested. He was taken from that police station to Silverwater, where he has remained. The Crown case against Mr Dinh, in large measure, is dependant upon the evidence of an accomplice (Tuan Van Tran), who will give evidence on behalf of the Crown. 49 As a consequence of Mr Dinh's designation as an extreme high security inmate on 27 August 1999, his movements and behaviour have been monitored, as part of the security arrangements for inmates with that designation. Reports have been prepared concerning his behaviour and his associates month by month. They are presented to the High Security Inmate Management Committee so that it can, in turn, make its recommendation to the Commissioner. Mr Dinh mingles with other inmates. His interaction with the general gaol population has therefore been observed. The Governor's Report for October 1999 is typical, and is in these terms: "Dinh complies with staff requests and the routine of the Area and avoids involvement in trouble. He is courteous and speaks to staff with respect." 50 The Report for 24 November 1999 dealt with Mr Dinh's associates in gaol, dispelling, at least for the time being, one of the fears of the Commissioner at the time of his designation. The Report said this: "Dinh conforms to prison routine and is a quiet and responsive inmate and receives regular visits from family and friends. Dinh only associates with certain Asians and does not mix with gang affiliated Asians. He has approval to be in a two-out cell with another Asian and they are both transferred to different cells on a regular basis. Both inmates comply to this transfer." 51 The Reports, submitted each month, carried views expressed in similar terms. The Governor's Report for 23 February 2000, for instance, said this: "Dinh is considered to be quiet and responsive and conforms to prison routine. He shares a cell with … Nguyen and it is noted that he only associates with some of the Asians and not with those who are gang affiliated. He receives regular visits from family and friends. His movements and activities will continue to be monitored." 52 The Intelligence Report dated 7 April 2000 confirmed that Mr Dinh was regarded as a quiet and responsive inmate. His associates remained Asian, but not those considered to be affiliated with gangs. 53 The Governor's Report of 24 May 2000, submitted to the Committee, confirmed that Mr Dinh had not been the subject of any adverse report. The Committee, upon the basis of this history, recommended to the Commissioner that Mr Dinh's designation be varied from "extreme" to "moderate". The Commissioner, of course, accepted that recommendation on 1 June 2000. 54 The picture of Mr Dinh throughout, therefore, was one of a model prisoner. I am told that he remains a model prisoner even to this day. Was the Commissioner's Decision Unreasonable? 55 The designation of high security inmates is an aspect of classification. It is not a punishment. As explained by Dr Keliher (the Commissioner), it is a risk management tool. Its object is to preserve order, and to offer protection to inmates and staff. 56 At Silverwater there are over seven thousand inmates. Of those five hundred have been charged with, or convicted of, a serious crime. In October this year there were eighty two inmates designated under Regn 20B as "high security inmates". Some thirty four had been designated "extreme", and the remainder (forty eight) "moderate high security inmates". 57 Risk management involves assessment over time. The inmate is observed within the gaol, and a judgment made as to the risk to other inmates and staff. In making that judgment, the Commissioner proceeds with caution. Dr Keliher said this: "I am ultimately responsible for all aspects of the operation of the NSW Department of Corrective Services including any escapes, deaths in custody, self harm, suicides, assaults or murders that occur in any Correctional Centre in NSW. As such I often adopt a cautious approach when deciding whether to designate an inmate under clause 20B." 58 Plainly that is appropriate. The stakes are high. The consequences of misjudgment may be severe. An aspect of that approach, relevant to the decision now under scrutiny, was described by Dr Keliher in these words: "To the best of my knowledge, I have never varied any inmate's designation from 'extreme' to not being designated at all. The variation has always been from 'extreme' to 'moderate'. In some cases, an inmate may then be removed from the 'designated list' at a later stage." 59 The progression from "moderate" to no designation at all is likely to be more rapid than from "extreme" to "moderate". It can still take six to nine months. One suspects, however, that that is, in part, the consequence of moderate inmates only being reviewed by the Committee every three months (unlike extreme inmates who are reviewed each month). The Committee ordinarily would only make a recommendation to the Commissioner every three months. 60 Turning to Mr Dinh, the attention of the Commissioner, when cross examined, was drawn to a number of documents from the Department's files. He was asked whether, had he been aware of that material, it would have altered his view. In each case he said that his judgment would have been the same. I accept that evidence. In my view, there is nothing in the Department's files which renders the material placed before the Commissioner misleading, inaccurate or incomplete in a material respect. 61 By June 2000, after Mr Dinh had been incarcerated ten months, certain worrisome features had disappeared. The notorious nature of the alleged crime had not made Mr Dinh the target of other inmates. He had not attempted to use that notoriety to gather support within the gaol. Nor had he chosen, as his associates, persons known to be affiliated with ethnic gangs, and such persons had apparently not sought him out. 62 What, then, remains? The Commissioner said this: (T 69/70) "Q. So that your decision really did come down to a judgment on your part based upon the nature of his past, which included a serious offence of manslaughter for which he had served a custodial sentence as a juvenile? A. That's correct. Q. And that, in combination with a very serious accusation that he was retained as a hitman in what was a political assassination? A. That's correct, your Honour. Q. And that really is the long and the short of it? A. That's exactly right. Q. And that serious combination, in your mind, has to be weighed in the balance with experience as it evolves over the months, as it happens? A. Yes. Q. And a judgment made progressively as to risk, it being a risk management process? A. Exactly. Q. And on that basis in June, you made a judgment that you could moderate it? A. That's correct. Q. Lift a number of the restrictions? A. That's correct. Q. That you hadn't at that point at least, 1 June, reached the point where you thought you could lift it? A. No, that's correct, your Honour." 63 Elsewhere Dr Keliher said this: (T 63) "Now clearly if a person who has served a period of incarceration for manslaughter is facing a charge of murder, political assassination, I think that it would be reasonable to assume that they could be seen as a danger to other people. And because of the nature of the crime, the unique nature of the crime, I considered that it's possible that this inmate could be a threat to good order and security." 64 The fact that Mr Dinh had been a model prisoner, whilst important in the assessment of him as a risk, was not determinative. Dr Keliher provided the following explanation: (T 57) "Q. Commissioner, in your experience, is it frequently the case that inmates who have been designated extreme high security display a record of good behaviour whilst they are in prison? A. The majority of them do in fact. Some of the most dangerous inmates in the system are very compliant inmates. They behave themselves for months and years, in some cases years on end, and then will, all of a sudden, attempt to escape or undertake a serious assault or something like that so it is quite the case that compliance doesn't always necessarily equate with - with a good reason to reduce someone or move them off the list entirely." 65 In these circumstances, the view reached by Dr Keliher on 1 June 2000 was entirely understandable. One certainly could not say that no reasonable decision maker in his position could have reached that view. It is plain, therefore, that the application must fail. 66 Having said that, a further three months have now elapsed. Mr Dinh has been closely observed for a total of fifteen months. That is a long time. He has mingled with other inmates without incident, including, apparently, in the oval. The restrictions to which he is subject, whilst not substantial, do inhibit him in, for instance, pursuing education. In determining a bail application by Mr Dinh in June this year, Smart AJ said this: "There has been some amelioration since his period in custody commenced as he has apparently been reclassified from extremely high risk prisoner to a lower category. If the applicant continues to remain in custody that classification should again be reviewed. The materials in the files do not appear to warrant his present classification and the severity of his conditions of incarceration. The applicant was regarded highly whilst at Minda and the files produced to this Court indicate that he has not been a troublesome prisoner. Counsel for the applicant stressed that he needs to be able to prepare his defence and that to do this adequately he needs to be on bail so that he can make thorough inquiries and endeavour to obtain material and perhaps witnesses in support of his case." 67 These remarks, and my own, should be drawn to the attention of the Committee. Given the length of time that Mr Dinh has been in custody, awaiting trial, a review more frequent than every three months may be warranted in his case. 68 Orders The orders I make are as follows: 1. The Summons is dismissed. 2. The plaintiff should pay the defendants' costs. ********** Last Modified: 08/23/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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