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Supreme Court of Victoria - Court of Appeal |
Last Updated: 12 December 2011
COURT OF APPEAL
S APCI 2008 3804
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SIME JURIC
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Appellant
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v
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STATE OF VICTORIA
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Respondent
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JUDGES
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NEAVE, HARPER JJA AND ROBSON AJA
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WHERE HELD
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Melbourne
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DATE OF HEARING
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19 September 2011
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DATE OF JUDGMENT
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12 December 2011
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MEDIUM NEUTRAL CITATION
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JUDGMENT APPEALED FROM
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Juric v Ararat Prison Authority & anor (Unreported, Supreme
Court of Victoria, Williams J, 2 June 2008 (date of verdict/judgment))
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TORT − Negligence − Appellant assaulted in prison − Appellant alleged respondent breached its duty of care and its duties under Corrections Act 1986 − Jury directions − Whether trial judge failed to properly direct jury as to duty of care − Whether trial judge emphasised prejudicial matters in summarising appellant’s evidence − Whether trial judge failed to direct jury regarding inferences to be drawn from failure of respondent to produce prisoner management files − Appeal dismissed.
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Appearances:
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Counsel
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Solicitors
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For the Appellant
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Ms J Dixon SC with
Mr R H Stanley and Ms T Leane |
Ronald Segal & Associates
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For the Respondent
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Mr M F Wheelahan with
Mr R W Dyer |
Russell Kennedy
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HARPER JA:
ROBSON AJA:
1 The appellant, Sime Juric (‘Juric’), claimed damages from the respondent, the State of Victoria, for injuries suffered by him when he was assaulted as a prisoner at HM Prison Ararat (‘Ararat’). The appellant claimed that the assault, and his resulting injuries, were caused by the respondent’s negligence, and also constituted a breach of the respondent’s duties under s 20(2) of the Corrections Act 1986 (‘Corrections Act’).
2 A Supreme Court jury brought in a verdict dismissing Juric’s negligence claim. He now appeals against the judgment entered for the respondent and the consequent order that he pay the respondent’s costs of the proceeding.
3 The particulars of the respondent’s alleged breach of its duty of care were that the respondent breached its duty of care by:
(a) Failing to place the Plaintiff in a safe section of the prison;(b) Failing to place the Plaintiff in a single cell;
(c) Failing to place the Plaintiff in a section of the prison with prisoners of a similar age to the Plaintiff;
(d) Transferring the Plaintiff to the Bellfield unit on 24 August 2002 when the employees or agents of the First Defendant knew, or ought to have known, that the Plaintiff was unlikely to be safe in the Bellfield unit;
(e) Failing to arrange for the Plaintiff to be transferred away from the Bellfield unit prior to the evening of 25 August 2002;
(f) Failing to take any or any adequate measures to reduce the risk of the Plaintiff being assaulted whilst in the Bellfield unit on 25 August 2002 despite receiving a complaint from the Plaintiff on that day that he was concerned for his safety;
(g) Failing to supervise the Plaintiff in his cell in the Bellfield unit adequately or at all;
(h) Failing to supervise the other prisoners sharing the Plaintiff’s cell in the Bellfield unit adequately or at all;
(i) Failing to devise or implement any or any adequate plan for the protection of the Plaintiff whilst he was in the prison despite the fact that at or around the time that the Plaintiff first entered the prison he informed the employees or agents of the First Defendant that he required protection and at that time the First Defendant, its employees or agents knew, or ought to have known, that the Plaintiff was likely to need protection whilst in prison;
(j) Locking the Plaintiff in a cell with three much younger inmates on the evening of 25 August 2002 when the employees or agents of the First Defendant knew, or ought to have known, that there was a real risk that the Plaintiff would be assaulted whilst in the cell.[1]
The Evidence
4 On 13 May 2002, the appellant was sentenced to two months and eight weeks’ imprisonment for contempt of court. On the day he arrived at the Melbourne Assessment Prison, he was interviewed by an officer who completed a ‘SIT UPS’ (Structured Interview Tool for Assessing Prisoner Safety) report.[2] The report noted that Juric was:
61 year old, 1st timer, protection prisoner, paranoid, in for contempt of court, easy to understand why, no drug use, some alcohol use, has outside support.
5 The form also recorded Juric’s need for protection as a ‘worry/concern’. It assigned him an ‘S3’ rating (signifying a potential risk of suicide or self harm)[3] and referred him to a ‘psych’. A Reception Assessment form completed by Reception Supervisor, ‘B Riley’, on that day noted that Juric had ‘fears for safety’ and appears to have included the comment ‘Referred to psych and will review. Protect due to personal demeanour’.[4] There was evidence that these forms would have been placed on the appellant’s Individual Management file, would have accompanied him to the prison to which he was sent and would have been accessible to prison staff.
6 A Sentence Management Panel met on 21 May 2002 and recommended that the appellant be sent to Ararat. He was received into Ararat on 11 June 2002. At that stage, his psychiatric rating was ‘P4’ which was the lowest level of psychiatric risk, though it indicated that at some stage in his history he had had a psychiatric issue.
7 The prison officer who then interviewed him at Ararat commented on a ‘Local Plan’ form that Juric was ‘[c]harged with contempt of court but seems to think that it’s every one else fault [sic] and that everyone is out to get him’.
8 Juric was initially received into the Bellfield Unit at Ararat (which is used for prisoner reception) and then placed in a four bed cell in the Lonsdale Unit. At the trial, he gave evidence that while he was in that Unit, he was threatened and harassed by his cell mates and other prisoners after informing a prison officer that these men were smoking in the cell, contrary to prison regulations. He said that his cell mates had threatened to kill him after he had asked them to stop.
9 On 24 August 2002, the appellant complained about the smoking and the threats made to him to Prison Officer Starick. Mr Starick’s evidence was Juric had a conversation with him on 24 August about a run-in with another prisoner. Mr Starick took Juric to see the supervisor, Ms Kaliszewski, that evening. He said that on the way to see Ms Kaliszewski, he had told Juric that ‘he could be very downgrading or degrading and that he wasn’t really making an effort to get along with other prisoners’. In cross-examination, Mr Starick agreed that if Juric had not heeded that warning, his time in prison would be harder for him, and that the forceful way in which Juric put his views might cause problems for him.
10 Ms Kaliszewski spoke to Juric at around 6:30pm that evening and completed a ‘Request for Protection/Removal of Protection’ form stating that he required protection from Steward Finn (billet), David Burrows and Craig Shane, the latter two men then being his cell mates. The details of his request were as follows:
Verbal threat has been made to me by prisoner Shane. He said as he entered my cell, ‘Don’t tell me what to do I chop your head off’. He had a clenched fist [and] shook it. I responded ‘Piss off, come in to sort things out’. Prisoner Shane repeatedly said the same thing 3-4 times.I feel threatened and scared.
Finn and Burrows keep smoking in our cell after lock up and I don’t like it. I’ve told SPO Homden I’ve asked for a cell change and nothing has been done about it.
11 Ms Kaliszewski gave evidence that she did not personally consult the prison management files of the other three inmates of cell 5 in the Bellfield Unit in which the appellant was to be placed. However, before the appellant was transferred to that cell she had ‘asked the staff to look at what [the other three prisoners] histories were’. She said that there was nothing in the Individual Management Plan files or in the Prisoner Information Management System ‘to indicate there was any behaviours ― past offence histories in relation to either of the three parties.’ She denied that when she had moved Juric into cell 5 she was acting under time pressure, because lock down was imminent and had given priority to the efficient running of the prison over the welfare of Juric. In re-examination, she said she had looked at the file of Gavin Saggers (‘Saggers’) during the course of her shift. (Saggers was the man who allegedly assaulted the appellant.)
12 Ms Kaliszewski said that she did not think there was ‘a fair dinkum reason’ to move Juric, and had not had time to interview the prisoner Shane, who had allegedly threatened him in the Lonsdale Unit. She said that she had erred on the side of caution by moving Juric from the Lonsdale Unit to cell 5 in the Bellfield Unit.
13 The appellant’s evidence was that despite his move to the Bellfield Unit, he continued to feel unsafe. When he was put in the cell, the other men had told him that ‘You should not dob in anybody. We are one.’ He had replied that ‘I’m not one. I’m not a criminal. The criminals are outside who put me in.’ The other men in the cell were aware of his earlier complaint to Prison Officer Starick because the men in the Lonsdale and Bellfield Units mixed with each other. They had rejected his request to sleep in the lower bunk.
14 The appellant said that on the morning of 25 August, a prison officer known to him as Scott and another officer known to him only as ‘Hughie’ inspected the cell. He had told them that he did not feel safe in the cell and was worried for his safety. He said that he was told ‘Don’t worry you won’t be in here tonight.’ Juric said he had also asked to see the nurse.
15 Mr Huw Lewis Jones’ evidence was that he did not recall going into Juric’s cell on the morning of 25 August or recall Juric expressing fears about his safety. Nor did he think he would have assured Juric he would not have to stay in the cell that night because he had no authority over such matters. He could not recall being spoken to by Ms Kaliszewski about the appellant’s placement in the Bellfield Unit.
16 Mr Scott, a senior prison officer, also could not recall conducting a cell inspection on the morning of the 25 August or reassuring Juric that he would not be in the cell that night. He said he would not have had the authority to tell Juric that he would be moved to a different cell, although he could set the process in motion.
17 Mr Scott also said he did not recall being asked by Ms Kaliszewski to look at the files of the other prisoners in the cell. However, he said that nothing on Saggers’ file indicated that he had been responsible for any violence or threats towards other prisoners or prison officers. He said that Saggers was a drug user who had previously been convicted of various offences involving dishonesty. He was ‘a very quiet prisoner, very polite.’ Mr Scott said he did not know whether the other prisoners in the cell had been involved in incidents while they were in prison.
18 On the morning of 25 August, the appellant presented to the prison health service and was seen by the nurse, Ms Biggs. Ms Biggs’ clinical notes said that he:
presented this AM distressed and/tearful...states that it is related to current “cell dynamics”. Settled once concerns verbalised.
19 In her evidence at the trial, Ms Biggs said that Juric had talked about not being liked, but not about being at risk. She said that he was accompanied to the interview by a correctional officer and she had assumed that matters would be sorted out.
20 On the evening of 25 August, one of the three prisoners in the appellant’s cell, Saggers, assaulted him by repeatedly punching him and kicking him in the head and face. The appellant also gave evidence that Saggers tried to choke him with the cord of a kettle. The appellant said that Peter Kerrison (‘Kerrison’) and Craig Hanson (‘Hanson’), who were the other two prisoners in the cell, jeered and encouraged Saggers’ actions. The appellant said that he was eventually able to press the alarm bell and the prison officers came to the cell. Prison officer Barton went to the cell and removed Juric from it. Juric was quite distressed and his face was covered with blood. Mr Barton said that Kerrison and Hanson were then lying on their bunks. Saggers had said that Juric had attacked him with a chair. Mr Barton said he had formed the view that neither Kerrison or Hanson had anything to do with the assault.
21 Juric was taken to hospital overnight and served the remainder of the term in the hospital at the Port Phillip Prison.
22 Kaliszewski, Barton and Scott were cross-examined about the other Units in which Juric could have been placed. Ararat comprised seven Units and had single cell accommodation in the low security Wimmera Unit, where the cells were open after hours. In 2002, Wimmera only held sex offenders. However, some single cells were also available in the Norval Unit which held a number of elderly and frail prisoners. Juric was of imposing stature and did not fit into that category.
23 Ms Kaliszewski said that single cells were usually used for prisoners who had to be let out early because of the work they were doing, or as a reward for good behaviour. They were not generally used for prisoners serving short terms in custody. There were also single management cells in which prisoners could be placed for breaching prison rules.
24 The original Notice of Appeal contained numerous grounds, most of which were abandoned prior to or at the hearing. The abandonment of ground 4(i) makes it unnecessary to consider the respondent’s Notice of Contention which, like ground 4(i), concerned the question whether ss 20 and 21 of the Corrections Act permits a civil action to be brought for breach of statutory duty.
25 I turn first to ground 4(vii) and (viii), which were the main grounds of appeal.
26 Ground 4(vii) alleges that:
The Learned Trial Judge failed to adequately direct the jury as to the extent of the duty of care owed by the Respondent, in particular the Learned Trial Judge failed to instruct the jury that –(a) the duty of care and the nature of the duty of care owed by the Respondent differed from that required of the community at large by reason of the degree of control which it exercised over the Appellant during his incarceration;
(b) the duty of care owed by the Respondent extended to taking all reasonable steps to protect the Appellant from the violent acts of other prisoners;
(c) sections 20 and 21 of the Corrections Act 1986 imposed on the Respondent’s servants and agents a positive obligation to take all reasonable steps for the safe custody and welfare of the Appellant.
27 Ground 4(viii) alleges that:
the Learned Trial Judge failed to adequately direct the jury as to the factors which should be taken into account in deciding whether the Respondent breached its duty of care.[5]
The jury charge
28 In her Charge, the learned trial judge described the first question for resolution by the jury as ‘whether negligence on the part of the State of Victoria was a cause of injury to Mr Juric.’ She said that it was agreed that the State of Victoria had a duty to take reasonable care by taking all reasonable steps for the safe custody and welfare of prisoners, so that ‘the obligation to take reasonable care in this case was an obligation to take all reasonable steps for the safe custody and welfare of Mr Juric.’ Her Honour then referred to s 20 and 21 of the Corrections Act and said that it imposed the same duty on the respondent.[6]
29 Her Honour then continued as follows:
The parties agree that if the State of Victoria failed to take all such reasonable steps for Mr Juric’s safe custody and welfare, it was negligent for the purposes of Question 1. The State’s obligation is to take those steps which a reasonable person would take in the particular circumstances. Mr Stanley argues that the authorities failed to take all reasonable steps for Mr Juric’s safe custody and welfare by moving him from the Lonsdale Unit to Cell 5 in the Bellfield Unit on 24 August 2002 and by failing to remove him from Cell 5 in the Bellfield Unit before he was assaulted the next night on 25 August 2002, despite his distress and his complaint to Nurse Gaynor Biggs that day.Mr Dyer responds that the State of Victoria did take all reasonable steps in the circumstances to safeguard Mr Juric by placing him in that Bellfield cell and by leaving him there up to the time of the assault. What are reasonable steps in any situation depends on the circumstances. You have to take into account all the facts that are relevant in the particular case. You must apply your common sense and bear in mind what would be accepted by the community as reasonable in all the circumstances. Juries have been doing this for years and you’re expected to undertake and discharge that task. That’s your job in answering Question 1.
Now the extent of the duty to take reasonable steps for Mr Juric’s safe custody and welfare is to be found by a reference to what would have been reasonable in all the circumstances. The law isn’t so out of touch with reality as to assume that prison authorities are perfect or would act perfectly in any given situation. A person may, even though they’ve behaved reasonably, still cause injury to someone and, if they have behaved reasonably, the law won’t regard them as negligent.
The critical matter in answer to Question 1 as to whether there’s been negligence on the part of the State of Victoria ... is as to whether the prison authorities acted reasonably in all the circumstances in putting Mr Juric in Bellfield Cell 5 on 24 August and failing to remove him before he was assaulted on the following night.
If you conclude that there was no failure on the part of the State to take all reasonable steps for Mr Juric’s safe custody and welfare, you would answer Question 1 “no” and you wouldn’t be required to answer Question 2. You would have reached your verdict in this case.
If, however, you concluded on all the evidence that the State did fail to take reasonable steps for his safe custody and welfare in all the circumstances, then, obviously, in order to answer Question 1, you must go on to decide whether that negligence on the part of the State was a cause of injury to Mr Juric. In other words, was any failure to take those reasonable steps a cause of Mr Saggers injuring Mr Juric?
30 Her Honour then described the evidence of Juric and of the prison officers about the assessment of prisoners and the way in which Juric’s complaint on 24 August had been dealt with. She made reference to Ms Kaliszewski’s evidence that she had not looked at the history of the other prisoners in cell 5 but that she knew their approximate ages and understood their offence histories. She then summarised counsel’s submissions and continued as follows:
[Mr Juric’s counsel] goes on to argue that she was negligent in that she was acting under pressure with a number of important things to do, and staff to go off at 7 p.m. He says she got the complaint at 6.35 and in effect dumped Mr Juric in the Bellfield cell, without doing the necessary checks and looking at his IMP file or the computerised history on PIMS. And he notes the evidence about Bellfield being the reception area, and having prisoners about whom he suggests not much would likely yet to be known. He points to Mr Barton's evidence that Mr Hanson had been in prison for attempted murder, and had only arrived at Ararat Prison some 11 days earlier. He argues that the age mix was inappropriate.He says generally that the evidence about the Corrections system indicates that more was required of Ms Kaliszewski, in terms of taking reasonable steps for Mr Juric's safe custody and welfare. And he refers in that regard to the evidence of witnesses who agreed with him, under cross-examination, about the importance of the prisoner records and information to inform anyone placing a prisoner. He argues that Ms Kaliszewski did not have a one-on-one relationship with Mr Juric, and therefore she should have acquainted herself with the information in his file and in Mr Saggers’s file and Mr Hanson's file and Mr Kerrison's file before she moved Mr Juric to Bellfield Cell 5.
He says there is no evidence as to whether there were relevant file notes about Mr Hanson and Mr Kerrison relating to violence and, in the absence of an explanation, he implies that you might conclude that they would not have assisted the State's case which is that those men were quiet and appropriate companions for Mr Juric. Mr Stanley argues that another unit and particularly Norval would have suited Mr Juric with his age, his particular characteristics and concerns, in all the circumstances.
He says the evidence was that word can travel fast in a prison and you should accept that his cell mates did refer to him ‘dobbing’ and, bearing in mind that Mr Starick had said, that activity was a breach of a prisoner code. Mr Stanley says Ms Morrison was ‘top brass’ and you might think that her evidence indicated that Norval or Wimmera were more suitable units for Mr Juric because of his age and the 24 hour care in Norval, bearing in mind that he also had physical problems. I note that you've got his medical file with you as an exhibit.
Finally with regard to negligence, Mr Stanley argues that the State breached its duty to Mr Juric in another way, not only in placing him in the cell on 24 August, but in failing to remove him after Mr Juric complained to Mr Scott and Huwie (or Mr Jones) on the morning of 25 August and also to Ms Biggs, and it was he who described her as a caring nurse. He referred to the call made from the nurse's office and the fact that nothing was done. He suggests that this might make the alleged comments by Huwie and Mr Scott intelligible - that this call in the circumstances might make what Mr Juric says about them talking about him not being in the cell that night intelligible.
Mr Dyer, on the other hand, reminded you of the need to use your common sense in deciding whether negligence had occurred and to remember that the standard is one of reasonable care, not an absolute standard. He says even though there was an unfortunate and regrettable assault there may or may not have been negligence. He refers to the precautions taken to minimise the risk to Mr Juric in the prison system, talking about the identification of risk factors in the SITUPS process, the MAP assessment, the psych assessment in - psychiatric assessment in MAP, Mr Juric's classification, his B asterisk rating, his expressions of concern and his personal characteristics and his sentence length all being noted.
He refers to the fact that Mr Juric was placed at Ararat Prison which was a 100 per cent protection prison and that he was given a medium B asterisk risk and he was advised by Mr Starick not to denigrate others. Mr Dyer was referring to these matters as matters you should take into account in reaching the conclusion he urges upon you and that is that there was no negligence. He talks about the evidence about Mr Juric being received and orientated in Bellfield and his move to Lonsdale after he'd apparently settled in and his move back to resettle in Bellfield after the complaint.
He said, if Mr Juric had detailed his concerns he could have been placed somewhere else on the 25th but staff couldn’t recall a complaint and believe they would have taken action. He talks about the evidence of Mr Scott and Mr Jones in this regard - he said they couldn’t recall the complaint on the morning of the 25th - and Nurse Biggs who Mr Dyer says didn't think Mr Juric was a risk of suicide or self-harm.
He talks about the answers to interrogatories where Mr Juric admits that he didn't mention any individual in relation to his concerns. He said that it was Ms Kaliszewski’s evidence that being unhappy in a cell is different from feeling unsafe and that he had been transferred after mentioning a specific threat. So, if there were a specific threat the next day, he would have known that, if he mentioned it, it would be actioned on - something would happen.
Mr Dyer also talked about the fact that a prisoner could ask for a routine cell change if he preferred not to be with a particular cell mate. So, he argues that the prison authorities didn't fail to take all reasonable steps for Mr Juric's safety in the circumstances and he says in this regard that Mr Saggers’ behaviour was not reasonably able to be foreseen. He said Mr Scott and Mr Barton knew him as a quiet prisoner with no history of violence and he was relatively small in physique, compared with Mr Juric, and his was a short sentence.
He also relied upon Ms Kaliszewski’s evidence that staff thought that Mr Juric would be compatible with the Bellfield prisoners. And, in that regard, you will remember Mr Stanley's argument about Ms Kaliszewski and the checks that he argues you should not accept that she made, enquiries you should not accept she made.
Mr Dyer argues to you that, as far as the evidence of the records of the other two prisoners, Mr Kerrison and Mr Hanson, is concerned, he says you should discount that because Mr Barton who's an experienced prison officer came to the view that they weren't involved, they were on their bunks and they were watching TV and were not involved.
He said that a single cell wasn’t the obvious solution because of the evidence about the harsh regime in the management cell and the majority of the cells being multi-prisoner cells. He referred to Mr Harrington’s evidence about the lack of facilities in a management cell. He said that the Wimmera Unit, where sex offenders finished up the sentences, the Fyans Unit where there were billets who went out and checked the weather, Kiora, which was a reward for settled prisoners, and Norval, which was predominantly for the infirm, weren't obvious choices for Mr Juric.
That's his argument to you. He said that the supervision was adequate, that's the evidence - people like Mr Barton gathering evidence before trouble - Jones - Mr Jones gathering evidence before trouble. He said the complaint really is that the cell was inherently unsafe because of Mr Juric’s age and obsessive character and the code of conduct, and he said that, however, there was no detail given by Mr Juric through any available confidential complaint process about those people he was in with.
He said there was no indication anyway that his age contributed to the assault. He said that the logical conclusion of Mr Stanley’s argument is that a prisoner complaining of smoking would need to be put in a single cell because some other prisoner might think that the smoker might lose the privilege or have a punishment, or that the ‘dobbing code’ had been breached. He said that the evidence doesn't bear the proposition out that harm would result in those circumstances. So, Mr Dyer says, you should answer Question 1 no. Mr Stanley says you should answer it yes.
Counsels’ submissions on grounds 4(vii) and (viii)
31 The appellant’s counsel submitted that the jury direction had referred to the duty of care only in very general terms and had failed to adequately relate the facts to the law. There was a miscarriage of justice because the jury direction had not equipped the jury to decide whether the respondent had discharged the duty of care it owed to the respondent.
32 He submitted that her Honour should have told the jury that prison authorities owed a higher duty of care to prisoners than the duty imposed on ordinary members of the public to take reasonable care to avoid the foreseeable risk of harming others.[7] The scope of the duty owed by prison authorities reflected the fact that they had to take reasonable care of persons who were involuntarily confined, in a context where there was a high risk of exposure to violence.
33 Juric was a vulnerable prisoner, because he was 61 years old, had never been in jail before, lacked insight about why he had been sent to jail and had a personality which was likely to make him a target for violence by other prisoners.[8] Prison officers were aware of Juric’s vulnerability at the time when he was sent to Ararat and should have taken this into account in considering whether he should have been moved to a four person cell in the Bellfield Unit. These matters were also relevant to the question of whether Ms Kaliszewski had responded appropriately to Juric’s request for protection on 25 August. There was evidence that he could have been placed in the Norval Unit at Ararat which housed older prisoners and included single or double cells, or in the Wimmera Unit which also had single cells.
34 Prisoners in the Lonsdale and Bellfield Units had opportunities for contact, so that Bellfield prisoners would quickly have become aware that Juric had ‘dobbed’ about smoking in the Lonsdale cell. Juric gave evidence that he had told prison staff that he was fearful and had been given an assurance that he would not have to spend the night in the particular cell. The jury should have been told to take these matters into account in deciding whether the respondent was negligent in failing to move Juric out of the Bellfield Unit. Her Honour should also have directed the jury to the question of whether there had been a proper assessment of the propensity for violence of the other men occupying the cell in the Bellfield Unit, one of whom was in prison for the attempted murder of his parents, before placing the appellant in that cell. Ms Kaliszewski had admitted in her evidence that she had not looked at the files of the other three people in the cell herself and had relied on others to do so.
35 In response to a question from Harper JA, counsel for the appellant conceded that it would have been appropriate for her Honour to have directed the jury about the difficult balance that prison authorities must strike between protecting individual prisoners from harm, protecting the privacy of prisoners and preventing prisoners from manoeuvring themselves into desirable cell placements by claiming that they were being threatened. However, counsel submitted that the jury had been ‘left in a vacuum’ about the matters they should weigh in deciding whether there was a breach of duty. Consequently, the judge’s direction had given rise to a miscarriage of justice. The Court should set aside the jury verdict and order a new trial, despite the fact that Juric’s counsel had not taken exception to the judge’s charge.[9]
36 The respondent submitted that her Honour’s jury direction was adequate and reflected the way in which the Juric’s counsel had run his case. It was not open to counsel to argue the matter differently on appeal.[10]
37 Counsel for the respondent further submitted that the judge correctly told the jury that the obligation to take reasonable care in this case was ‘an obligation to take all reasonable steps for the safe custody and welfare of Mr Juric.’ Contrary to the submission of the appellant, the judge was not required to differentiate between ‘sub-categories of duty’, such as the duty owed by a prison authority to persons in custody. A prison authority does not owe a higher duty of care to a prisoner than the general duty imposed on all persons to avoid a foreseeable risk of causing injury to others. The judge had adequately summarised the factual issues, the evidence relevant to them, and the cases put by each counsel.
38 The trial had been run on the basis that the relevant question was whether the respondent had taken reasonable care in placing Juric in the Bellfield Unit cell and in leaving him there on the night of 25 August when he was assaulted by Saggers and her Honour had adequately directed the jury on this question.
Conclusion on grounds 4(vii) and (viii)
39 In directing a jury, the trial judge must identify the real issues in the case, summarise the evidence on factual matters and, to the extent necessary, relate the law to the facts.[11] In our opinion, her Honour adequately discharged this responsibility.
40 The judge told the jury that the State of Victoria owed a duty of care to Juric and would be liable for negligence if the prison authorities did not take reasonable care for his safety. Her Honour made it clear that the central issues to be resolved were whether reasonable care had been taken in removing Juric from the Lonsdale Unit, in response to his concerns, placing him in a four person cell in the Bellfield Unit and failing to move him on the morning of 24 August. The factual issues in the case were not particularly complex. It must have been clear to the jury from the closing address of Juric’s counsel that it was open to them to find that the State of Victoria had failed to take reasonable care.
41 In discussing the arguments made by Juric’s counsel, Her Honour referred to:
42 Counsel for Juric argued that her Honour should have described the facts in her own words and related them to the law, rather than simply referring to the submissions of his counsel. In our opinion, it was not necessary for her Honour to do so.[12] Her Honour alerted the jury to the question of whether the State of Victoria had taken reasonable care for Juric’s safety, in treating him as it did. We do not consider that the jury could have been in any doubt as to the matters they had to take into account, in deciding whether the respondent had breached its duty of care.
43 The cases relied upon by the appellant were not relevant in deciding whether the State of Victoria should have been found liable for negligence. The fact that prison authorities have been found to have breached a duty of care in other situations where a prisoner has been injured does not mean that the respondent should have been found negligent on the facts of this case. The question of whether the respondent breached its duty of care is a question of fact. As Windeyer J observed in Teubner v Humble:[13]
Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application.[14]
44 It would have been an intrusion into the function of the jury for her Honour to tell the jury that in some other cases prison authorities had been held liable for an assault by one prisoner on another.
45 Our view that the judge’s jury direction was adequate is fortified by the fact that Juric’s counsel took no exception to this aspect of the Charge.
46 Ground 4(vi) alleges that:
when summarising the appellant’s evidence, the learned trial judge placed too great an emphasis on irrelevant matters concerning the appellant’s conduct prior to and reasons for his, his incarceration, when such emphasis was likely to instil prejudice against the appellant.
47 The conviction for contempt of court which led to the appellant’s imprisonment arose out of his lengthy campaign against the National Australia Bank (‘Bank’), which had led him to picket the Bank holding a sign alleging that the Bank was corrupt. The appellant had twice breached injunctions restraining him from publishing defamatory material before the breach which led to his imprisonment.
48 In his evidence in chief, the appellant said that he had run a successful real estate business and had owned four farms which the Bank had unlawfully repossessed in the early 1990s. Later, the appellant made a number of sensational claims and described the conduct of the Bank and its lawyers in colourful terms. In his evidence, he referred to the prison as a concentration camp and attributed his incarceration to corruption.
49 The particular passages in her Honour’s charge to which this ground of appeal relates are as follows:
[The appellant] told you that he had four farms which were unlawfully repossessed by the National Australia Bank, together with criminal underworld. He said he lost his fortune because of blackmail by the National Bank between 1990 and 1993, and he had discovered that his properties were registered in the names of members of the mafia...Mr Juric told you that the National Bank and Russell Kennedy Solicitors had spent millions of dollars to suppress him, and that he wouldn’t have been surprised if there was a conspiracy to get him. And he told you that before he went to prison he had written a letter of demand to the National Australia Bank, asking for some $55b damages... for suffering intimidation and house arrest by the bank for many years.
He had said in court in 2001 that he’d been chased to the streets, and that the bank had engaged in criminal activities with the criminal police...
[The appellant] agreed that he nominated his friend John Prime Minister as his next of kin when he went to Ararat Prison.
50 At the hearing of the appeal, counsel for the appellant pressed this ground only faintly. However, counsel submitted that the judge should have done more to ameliorate any prejudice the jury might have held against the appellant because of the absurdity of his claims against the Bank. Her Honour should have emphasised that the fact that he held these beliefs did not absolve the prison authorities from their duty to take reasonable care to prevent harm to him.
51 The respondent submitted that Juric’s evidence about the Bank’s ‘criminal conduct’ had been elicited by his counsel and he had been cross-examined on this matter. His evidence was relevant to the jury’s assessment of the extent to which any psychiatric impairment suffered by the appellant was a result of the prison assault, a matter on which the expert witnesses had expressed differing opinions.
52 In his written submission, the respondent also contended that when the passages from the jury charge were read in context, no unfairness was demonstrated and further that no exception had been taken to this aspect of her Honour’s jury charge at the trial.
53 The jury had heard Juric’s response to questions in chief and in cross-examination about his relationship with the Bank. It was not inappropriate for her Honour to refer to that evidence.
54 The fact that Juric’s beliefs and unusual behaviour could have invited adverse attention by other prisoners was relevant to the question of whether the State of Victoria, through its employees, had breached the duty of care it owed to the appellant by placing him in the Bellfield Unit cell with three younger men. His evidence was also relevant to the assessment of his claim to have suffered posttraumatic stress disorder, caused by the injuries inflicted upon him.
55 Her Honour’s comments about Juric’s evidence must be read in the context of the whole of the charge. The first passage relied upon by the appellant was immediately followed by a reference to the evidence of his son, Dr Joseph Juric, about his father’s ability to run a successful real estate business. The later passages were followed by a discussion of his medical history. In our opinion, this ground is not made out.
56 This ground alleges that:
the learned trial judge failed to direct the jury as to the appropriate inferences available to be drawn from the respondent’s failure to produce and/or tender into evidence the prisoner management files of prisoners Hanson and Kerrison.
57 The appellant’s claim against the respondent was partly based on the assertion that it had been negligent in failing to properly assess the suitability of the three prisoners with whom he was placed in the cell in the Bellfield Unit.
58 Prior to the trial, the respondent produced the Prisoner Management System file of Saggers (the prisoner who assaulted the appellant), but did not produce files of prisoners Hanson and Kerrison. In the course of the trial, there was discussion about the respondent’s failure to produce the files of these other prisoners. No notice to produce these files had previously been served on the respondent and during the trial, the respondent objected to doing so. During discussion, the judge asked counsel for Juric if any application requiring the State of Victoria to produce the files would be made. Counsel said he would deal with counsel for the respondent on that point and made no application.
59 During his closing address to the jury, counsel for Juric said that there was no explanation for the failure to produce the Prisoner Management files of Kerrison and Hanson. In discussions before the trial judge charged the jury, the trial judge referred to these comments and raised the question with counsel whether production would have contravened s 30 of the Corrections Act.
60 Section 30(2) of the Corrections Act provides that:
A person who holds or has held a position must not, except to the extent necessary to perform official duties powers or functions of that position, record, disclose, communicate or make use of confidential information.
61 Section 30(1)(d) defines ‘confidential information’ to include ‘information relating to the personal affairs of a prisoner’, which is in turn defined to include the following:
information—(a) that identifies the prisoner or discloses his or her address or location; or
(b) from which any other person's identity, address or location can reasonably be determined—
but does not include information that is in the public domain.
62 Further, under that section:
position means any of the following—(a) a position as an officer within the meaning of Part 5;...
(c) a person authorized to exercise the functions or powers of a prison officer or a medical officer;
(d) a position of being a person authorised under section 9A to exercise functions or powers;
63 In response to a submission that the trial judge should tell the jury that an inference could be drawn from the failure to produce the files, the judge said that:
I’m not going to say to the jury that an inference can be drawn from the failure to do something that might contravene the Corrections Act. Whether it does or not I’m not going to say that to the jury.
64 Counsel for Juric said that it was not his position that the Act would be contravened, but that he could take the matter no further.
Counsels’ submissions on ground 4(iii)
65 Counsel for the appellant submitted that s 30(3)(d) of the Corrections Act applied and accordingly there was no basis for her Honour’s concerns about breaching s 30(2). The jury would have been entitled to draw the inference that the information in those files would not have assisted the respondent. Thus, her Honour should have given a clear Jones v Dunkel[15] direction to the effect that the failure to produce the Prison Management files of the two men was a matter to be taken into account in deciding whether Juric had proved, on the balance of probabilities, that his injury had been caused by the respondent’s negligence.[16]
66 Counsel for the respondent submitted that her Honour had in fact directed the jury about the use they could make of the absence of evidence about the prison histories of Hanson and Kerrison, and Juric’s counsel had taken no exception to this aspect of her Charge.
67 Further, the failure to produce the Prison Management files was not ‘an unexplained failure’, because objection was taken to their production and this was never challenged by the appellant. It was said that s 30(2) of the Corrections Act prohibited their disclosure, because none of the exceptions in s 30(3) of that Act applied.
68 The effect of s 30 of the Corrections Act was not fully argued at the trial. In his written submission on appeal, the appellant claimed that section 30(3)(d) of the Act could have provided relief against contravention of that Act. That provision provides that subsection (2) does not prevent a person from:
disclosing a photograph to a person who holds a position or is a member of the police force, if the disclosure is made to assist the person to perform official duties.
69 Clearly this provision has no relevance to the disclosure of confidential information in the context of civil proceedings. Nor do the other exceptions to the confidentiality provision in s 30(3) have any direct application. Section 30(3)(a) permits the production of confidential information relating to a prisoner in criminal proceedings. Arguably, this means that no similar exception applies to civil proceedings.
70 It may be that counsel intended to refer to s 30(3)(daa), which permits the disclosure of information on a computerised database by an officer for the performance of official duties, if the Minister has authorised to the disclosure or communication of the information.
71 In any event, the learned trial judge did give the jury some directions about the inferences which could be drawn from the failure to call a witness or tender evidence. In her Charge, the learned trial judge first referred to the inferences which could be drawn from the failure to call a witness. She said as follows:
Now, in the course of their addresses to you on Friday, you’ll probably remember that each of the barristers referred to the other side’s failure to call a particular witness or produce particular evidence, and asked you to draw certain conclusions as a result of that. There’s a direction that I must give you as to how you can use in your reasoning process the fact that a party has failed to call a witness who could have spoken, you might think, about a particular issue. If you think that one of the parties has failed to call a witness whom you reasonably might have expected that party would call, if their evidence was going to be favourable to that party, then you can use that failure to call the witness in your reasoning process in two ways. Firstly, when you are deciding whether to accept or reject the evidence of another witness about the same matter (that is about the matter which the missing person you think might reasonably have been able to give evidence), you can conclude or infer that the person – the evidence from the person who wasn’t called wouldn’t have helped the party who didn’t call it. So, when you’re assessing the evidence of another witness about that topic, what you can do is you can conclude that the person who wasn’t called (if you might reasonably have thought that they could have spoken about that topic) that their evidence wouldn’t have assisted the party who failed to call them.You can’t try and guess what the person might have said, or speculate about what they might have said. You can only use their absence in two ways, the first one I’ve told you about. The second is, when you are deciding whether to draw inferences or reach some conclusions of fact open on evidence relating to the matter about which you think the missing witness might have been able to speak, you can more readily draw an inference against the party who didn’t call the person.
72 Later in her charge, the judge referred to the closing address of counsel for Juric. Counsel had said that the jury should conclude that Ms Kaliszewsi was mistaken when she said that she had asked others to make enquiries about the histories of the other occupants of cell 5 and had pointed to the lack of evidence from anyone who had been asked to make those enquiries. Her Honour said:
And I told you earlier about how you can use a party’s failure to call a witness who might’ve spoken in relation to a matter. You can use that to conclude that the person’s evidence wouldn’t have been helpful to that party, when you’re deciding whether to accept or reject what a witness like Ms Kaliszewski had said, although you can’t speculate as to what those people might’ve said...[Counsel for the appellant] says there is no evidence as to whether there were relevant file notes about Mr Hanson and Mr Kerrison relating to violence and, in the absence of an explanation, he implies that you might conclude that they would not have assisted the State’s case which is that those men were quiet and appropriate companions for Mr Juric. Mr Stanley argues that another unit, particularly Norval, would have suited Mr Juric with his age, his particular characteristics and his concerns, in all the circumstances.
73 We assume that s 30(2) of the Corrections Act would not have been breached if the Minister had consented to the disclosure of the file notes for the purposes of Juric’s claim under s 30(2)(daa). Presumably, this is the basis on which the Prison Management file of Saggers was tendered. But the appellant’s counsel did not seek discovery of the Hanson and Kerrison files prior to the trial, make an application for production of these documents during the course of the trial, or seek a ruling from her Honour as to whether the Corrections Act prevented their disclosure. Nor did he take exception to this aspect of her Honour’s charge.
74 We have some reservations about whether the failure to call evidence about the content of the files would have permitted the drawing of a Jones v Dunkel inference. Ms Kaliszewski gave evidence that unnamed prison officers had told her that the other prisoners did not create any risk to Juric, which was admitted without objection. The onus lay on Juric to rebut that evidence, by seeking production of their files.
75 However, even assuming that such an inference could have been drawn and the files could have been disclosed without breaching the Corrections Act, we do not consider that her Honour’s jury charge gave rise to a miscarriage of justice. The jury were sufficiently alerted to the possible inferences which could be drawn from the failure to call evidence and counsel took no exception to that aspect of her Charge. Accordingly, this ground fails.
76 For these reasons, we would dismiss the appeal and make the usual order as to costs.
[1] Similar particulars were included in the Statement of Claim relating to an alleged breach of duty by the Governor of the Prison.
[2] The name of the prison officer who carried out the interview was not recorded on the form.
[3] There were four categories for the prisoner’s risk of suicide or self harm: S1 signified an ‘immediate’ risk, S2 signified a ‘significant’ risk and S4 signified a lack of current risk (although risk factors or a history of may be present).
[4] The handwriting on the form is difficult to decipher.
[5] The reference to the nature of the duty of care and Ground 4(viii) were added after the Court granted leave to amend the ground of appeal. This was in response to an argument by the respondent that Ground 4(vii) was misconceived, because it failed to distinguish between the question of whether the relationship between the appellant and the respondent gave rise to a duty of care (which was a question of law to be resolved by the trial judge) and the question whether the respondent breached that duty, which was a factual question for the jury. The respondent submitted that that the High Court had emphasised the importance of distinguishing the question of law of whether a duty of care arises, from the factual question of whether the duty has been breached in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330, 347 (Gummow J); CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390, 418 (Hayne J); Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375, 381 (French CJ and Gummow J dissenting in the result).
[6] See paragraph 24 above.
[7] In support of that submission, counsel relied on Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177, 183; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, 598; Cekan v Haines (1990) 21 NSWLR 296, 308, 310; State of New South Wales v Napier [2002] NSWCA 402; State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113.
[8] In support of that submission, counsel relied on New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1, 15; Ellis v Home Office [1953] 2 QB 135; L v Commonwealth of Australia (1976) 10 ALR 269, 273−4, 281; Ralph v Strutton [1969] Qd R 348, 357.
[9] General Motors-Holden’s Pty Ltd v Moularas [1964] HCA 39; (1964) 111 CLR 234, 242 (Barwick CJ); cf 245 (Taylor J), 263 (Owen J); Butler v Rick Cuneen Logging Pty Ltd [1997] 2 VR 99.
[10] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, 460−1 (Gleeson CJ, McHugh and Gummow JJ).
[11] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ).
[12] Cf Law v Pinkerton [2002] VSCA 20, [26].
[13] [1963] HCA 11; (1963) 108 CLR 491.
[14] Ibid 503.
[15] [1959] HCA 8; (1959) 101 CLR 298.
[16] Ibid 308 (Kitto J), 312 (Menzies J), 320−2 (Windeyer J).
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URL: http://www.austlii.edu.au/au/cases/vic/VSCA/2011/419.html