Commissioner of Corrective Services v Hamzy

1. [1]

   BELL CJ: The Respondent to this application for leave to appeal, Mr Bassam Hamzy, is an inmate of Unit 8 of the High Risk Management Correctional Centre (HRMCC) at Goulburn, referred to as the High Risk Management Unit (HRMU). He has been classified as a “Category A1” inmate pursuant to cl 12(1) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the CAS Regulation) and designated as an “extreme high risk restricted inmate” pursuant to cl 17 of the CAS Regulation. The power to make the CAS Regulation is conferred by s 271 of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act).

2. [2]

   On 27 June 2023, Mr Hamzy filed a Second Amended Summons (the summons) in proceedings commenced in the Common Law Division of this Court seeking declaratory relief concerning the validity and application of various provisions of the CAS Regulation. The Respondent to the summons is the Commissioner of Corrective Services (the Commissioner). Mr Hamzy is representing himself in the proceedings.

3. [3]

   On 18 March 2024, Meagher JA, sitting at first instance, ordered that the Commissioner draft questions arising from the summons for separate determination: Hamzy v Commissioner of Corrective Services NSW [2024] NSWSC 264. Orders were thereafter made on 7 June 2024 pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the determination of six questions separately from any other questions in the proceedings. Those separate questions have been listed for hearing on 10 and 11 December 2024 with various directions made for the preparation of the hearing.

4. [4]

   On 1 August 2024, the Respondent applied, orally, for three further orders which Harrison CJ at CL (the Chief Judge) described as:

   1. (1)

      an order that the Respondent be permitted to have access to all of his tubs of legal materials in his cell;

   2. (2)

      an order that the Respondent be provided with a laptop with word processing capability; and

   3. (3)

      a variation to the order made pursuant to s 77 of the CAS Act to permit the Respondent to attend the hearing of the separate questions on 10 and 11 December 2024 in person.

5. [5]

   The reference to “all of his tubs of legal materials in his cell” was to plastic tubs of hard copy legal materials which Mr Hamzy had accumulated and which, up until approximately 27 June 2024, he had been keeping in his cell. There was a difference in the evidence as to whether there were 8 or 12 such tubs but nothing ultimately turned on this. The materials stored in the tubs were resources and other documents relevant to various legal proceedings, including the proceedings set down for hearing on 10 and 11 December 2024.

6. [6]

   The Chief Judge heard the application over a number of days on 1, 9, 13 and 26 August 2024. There was some urgency because, apart from the December 2024 hearing, Mr Hamzy was also due to defend himself in the District Court in early September on certain criminal charges in proceedings that the Court was informed were estimated to run for some 4-6 weeks. These charges were withdrawn at some time between 26 August and 1 September 2024.

7. [7]

   The interlocutory relief sought by Mr Hamzy was also designed to accommodate him appearing in the District Court proceedings.

8. [8]

   The Chief Judge published reasons for judgment on 28 August 2024 (Hamzy v Commissioner of Corrective Services [2024] NSWSC 1090 (the primary judgment or PJ)), which resulted in orders being made on 6 September 2024. Those orders included the following:

9. [9]

   The Commissioner now seeks leave to appeal from those orders. The leave application and the appeal were heard concurrently.

10. [10]

    The first ground of appeal was that the Chief Judge erred in:

11. [11]

    In particular, the Commissioner complains that the Chief Judge did not have regard to an affidavit of Mr Malcolm Brown, General Manager of State-wide Operations of Corrective Services NSW (CSNSW), sworn on 12 August 2024 and read without objection when the matter was in Court the following day. His Honour did not refer to that affidavit in the section of his judgment headed “Evidence” nor did he refer to the subject matter of that affidavit in his reasons. That subject matter was to the effect that the Acting Commissioner had decided to make a modified “blue” computer with word processing capabilities and access to printing available to Mr Hamzy in a work room to which he had exclusive access known as the day room. It will be necessary to return to Mr Brown’s evidence and its significance in due course.

12. [12]

    The second ground of appeal was that the Chief Judge erred in:

13. [13]

    It was common ground that leave to appeal was required, the decision under appeal being interlocutory in nature.

The procedural history

1. [14]

   Before turning to consider the judgment, the grounds of appeal and the question of leave, it is first necessary to refer chronologically to what occurred on each of the days the matter was before the Court leading to the delivery of judgment on 28 August 2024. Both sides agreed with the description of the hearing as “fluid”: this is not said critically but reflects in part the matters referred to in [6] above, and the evolving evidentiary position including the filing and reading of Mr Brown’s affidavit on 13 August 2024.

2. [15]

   On 1 August 2024, the Respondent, upon the primary judge’s invitation, gave the following oral evidence in support of his application:

3. [16]

   The Respondent’s application was then adjourned until 9 August 2024.

4. [17]

   Prior to that, on 7 August 2024, the Commissioner filed affidavits of Mr Scott Bramble (Manager of Security at the HRMCC) and Ms Susan Michell (Manager Sentence Management Business and Operational Support at CSNSW).

5. [18]

   Mr Bramble deposed to the fact that Mr Hamzy is ordinarily housed in a unit comprised of a single cell and one day room to which, consistent with the Custodial Operations Policy and Procedure (COPP), he has exclusive access between approximately 8.00am and 10.00am or 10.30am each day, and then again from 12.00pm until 1.30pm but would not have access to during a “lockdown”, which occurs when staffing arrangements are insufficient to permit inmates to leave their cells with adequate supervision.

6. [19]

   Mr Bramble also gave evidence that Mr Hamzy’s legal materials were stored in “12 standard issue storage tubs … as well as one archive box and two canvas bags” and that all of those materials, save for the single tub kept in his cell, were stored in his day room. He further deposed to the fact that Mr Hamzy was able to exchange the tub in his cell for a new tub and to rearrange the materials between the tubs. Mr Bramble additionally gave the following evidence:

7. [20]

   Mr Bramble’s evidence was that the reason for the limitations on the amount of material permitted to be kept in inmates’ cells was that the accumulation of property in the cells of inmates gives rise to several “issues and risks”, including but not limited to cell fires. He also gave evidence that he was not aware that the tubs of legal materials presently stored in Mr Hamzy’s day room would be removed or that Mr Hamzy had been told anything to this effect.

8. [21]

   Mr Bramble additionally deposed to the fact that Mr Hamzy was provided with an “e-brief” laptop, being a laptop “provided for the purpose of viewing preloaded legal materials” but which “is not capable of typing or otherwise creating new documents.” In effect, this was a “read only” device. As will be seen, by 13 August 2024, it was agreed that the material in Mr Hamzy’s tubs could be uploaded on to the e-brief laptop.

9. [22]

   Ms Mitchell deposed to the following in relation to the computers issued to inmates:

10. [23]

    Ms Mitchell’s evidence was that “blue” computers are able to view documents and that the same was true of laptop e-brief computers “which are similar to ‘blue’ computers but are portable and can be used in inmates’ cells.”

11. [24]

    Ms Mitchell also gave the following evidence:

12. [25]

    Following the 9 August 2024 hearing, the matter was adjourned until 13 August 2024 to enable the Commissioner to obtain information about a number of matters raised by Mr Hamzy during the hearing on 9 August 2024. Those matters were that the HRMCC had been in lockdown for seven of the previous 11 days during which time Mr Hamzy had not been given access to the legal materials stored in his day room, that he had previously in October 2021 had a laptop with word processing capabilities in his cell, that access to the day room was only from 9.00am until 10.30am (rather than from 8.00am to 10.30am, contrary to Mr Bramble’s evidence), and that Mr Hamzy had not been able to see a doctor for over three months.

13. [26]

    In particular, the following exchange occurred between the primary judge and Mr Emmett SC, who appeared on behalf of the Commissioner:

14. [27]

    On 13 August 2024, as already noted, the Commissioner read the affidavit of Mr Brown: see [11] above. The Chief Judge, having read Mr Brown’s affidavit, said that “it appears some considerable progress has been made”.

15. [28]

    Mr Brown deposed to the fact that, as a result of the issues raised by the Respondent, the Acting Commissioner had approved changes to be made to the “blue” computer image to enable the use of Microsoft Office applications, including Word, on the “blue” desktop computers and to enable printing to a standalone, non-networked printer and that these changes were expected to be ready by 31 August 2024. Mr Brown’s evidence was that “blue” computers do not allow for the storage of files on the computer itself, but that inmates are able to use removal storage devices like USB drives to save files that are prepared on a “blue” computer for future use and reference. Further, Mr Brown deposed to the fact that it is possible for the contents of a removal storage device to be copied to a laptop e-brief computer.

16. [29]

    In relation to Mr Hamzy’s use of the “blue” computer, Mr Brown’s evidence was that:

17. [30]

    Mr Brown’s evidence was that the Acting Commissioner would not support the provision of an AFP computer of the kind discussed in Ms Mitchell’s affidavit to Mr Hamzy.

18. [31]

    At the hearing on 13 August 2024, the following exchange occurred in respect of the matters arising out of Mr Brown’s affidavit:

19. [32]

    When asked by the primary judge whether “the proposed alterations to [his] access to a computer met [his] concerns”, the Respondent said the following:

20. [33]

    Thereafter, the following exchange occurred:

21. [34]

    Importantly for present purposes, Mr Emmett submitted that “the arrangements as set out in Mr Brown’s affidavit would give the Court comfort that [Mr Hamzy] is not being precluded from effective access to this Court.”

22. [35]

    The matter was then stood over until 29 August 2024, under the proviso that “on the evidence, the [modified] blue computer may not be ready by then”.

23. [36]

    The Commissioner submitted on appeal that a local operating procedure in relation to Mr Hamzy’s access to the modified “blue” computer was in force from at least 28 August 2024. Mr Emmett indicated that, pursuant to that procedure, Mr Hamzy’s access to the “blue” computer between 28 August 2024 and 15 September 2024 usually commenced between about 8.00am and 8.30am and continued until around about 1.45pm, although on at least one occasion only until 11.20am. However, Mr Emmett indicated that Mr Hamzy’s access was interrupted by a lunch period, the length of which he did not have information about. Mr Emmett also indicated that there were only three days within this period that Mr Hamzy’s access to the “blue” computer was restricted due to a lockdown.

24. [37]

    On 21 August 2024, Mr Hamzy applied to restore the proceedings and the proceedings came before the Chief Judge on 26 August 2024. At this time, Mr Hamzy complained that he was required to relinquish his e-brief laptop for a period of four to six days to enable the e-brief laptop to be transported from Goulburn to Sydney for the additional materials that had been prepared to be uploaded onto it and then returned to Goulburn. He submitted that this would impact his ability to prepare for his District Court trial which was due to commence the following week. This was the trial in which the charges were subsequently withdrawn: see [6] above.

25. [38]

    Mr Hamzy sought an interim measure that he be permitted access to four legal tubs in his cell until such time as the additional materials were uploaded onto the e-brief laptop. That measure was opposed by the Commissioner on the basis of the risks associated with allowing inmates to have more than one tub of legal materials in their cells.

26. [39]

    At this time, the following exchange occurred:

27. [40]

    The primary judge then raised a number of issues as to the “blue” computer which are captured in the following exchange:

28. [41]

    Mr Emmett added that the risks of providing “blue” computers with word processing capabilities included, as addressed by Ms Mitchell’s affidavit, the “risk of misuse” of “the ability to write and save notes to “blue” computers”.

29. [42]

    Later, Mr Hamzy intervened, saying:

30. [43]

    At the conclusion of the hearing on 26 August 2024, the primary judge said the following:

31. [44]

    On 27 August 2024, Mr Christopher Frommer from the Crown Solicitor’s Office wrote to the Chief Judge’s Associate in the following terms:

32. [45]

    To summarise the evidentiary position immediately before the delivery of reasons for judgment on 28 August 2024:

The primary judgment

1. [46]

   The Chief Judge noted the orders sought by Mr Hamzy (referred to at [4] above) and that the Commissioner opposed the making of orders 1 and 2. While that was originally correct, and indeed remained literally correct, the Commissioner had, as has been explained above, led evidence and communicated with the Court as to how Mr Hamzy’s concerns as reflected in the two orders sought could be accommodated. That position was as summarized in [45] above.

2. [47]

   His Honour then set out between PJ [7] and [10] the evidence but, as also noted above, made no reference in that summary to Mr Brown’s evidence or to the proposal to make available by 31 August 2024 the “blue” computer (with word processing facilities) to Mr Hamzy in his day room.

3. [48]

   His Honour next summarised (at PJ [11]-[18]) Mr Hamzy’s submissions, referring to Rich v Groningen (1997) 95 A Crim R 272 (Rich v Groningen) at 287, Patsalis v The State of New South Wales [2012] NSWSC 267 (Patsalis) at [53], Miles v R [2012] NSWCCA 88 and Clark v Commissioner for Corrective Services [2016] NSWCA 186 (Clark). At PJ [18], his Honour referred to Mr Hamzy’s submission that:

4. [49]

   The purpose of the added emphasis in the above passage is to highlight that, whether the suggestion referred to was once made, it was not the Commissioner’s position as communicated to the Court at the time the matter was reserved.

5. [50]

   Reference was then made (at PJ [19]-[38]) to the Commissioner’s submissions which drew heavily on this Court’s decision in Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 (Liristis) to which it will be necessary to return. That case was cited for at least the following propositions:

6. [51]

   At PJ [36], the Chief Judge recorded the following submission of the Commissioner:

7. [52]

   Again, it may be noted that this submission had been rather overtaken at the time of delivery of judgment by the evidence of Mr Brown in relation to the making available of a “blue” computer to Mr Hamzy which gave him the ability to do his own typing and printing in his day room. The same observation may be made in respect of what the Chief Judge stated at PJ [42] in the section of his judgment headed “Disposition”:

8. [53]

   In this section of the judgment, the Chief Judge referred to the Victorian decision of Ragg v Magistrates’ Court (Vic) (2008) 18 VR 300; [2008] VSC 1 (Ragg) at [46]-[48], [50], R v Rich (No 2) [2008] VSC 141; (2008) 184 A Crim R 161 (Rich (No 2)) and Brazel v Westin [2013] VSC 527 (Brazel) at [21]-[23] before holding at PJ [45] that the “legal principles are … not in dispute”. The statement of legal principles which his Honour adopted from Brazel was as follows:

9. [54]

   The Chief Judge made reference to the concept of “equality of arms” which had been referred to in the judgment of Bell J of the Supreme Court of Victoria in Ragg at [46]-[48], and [50] and which his Honour referred to at PJ [39] as “a suitable and relevant starting point”.

10. [55]

    The dispositive portion of the Chief Judge’s reasoning was contained in PJ [46]-[51] as follows:

11. [56]

    The primary judge ordered that the parties provide an agreed minute of order, or competing versions if agreement could not be reached, within seven days: at PJ [53]. This included the orders reproduced at [8] above.

Ground 1

1. [57]

   At the heart of the first ground of appeal is the complaint that the Chief Judge erred in failing to consider the evidence as to the arrangements made between 9 and 28 August 2024 to make facilities available to Mr Hamzy. Critically, this included the evidence contained in Mr Brown’s affidavit.

2. [58]

   In my view, this ground is made out.

3. [59]

   Mr Hamzy contended that the Chief Judge could not be taken to have failed to consider the evidence in relation to the modified “blue” computer because he referred to it in the course of the hearings on both 13 August and 26 August 2024 in the passages which have been extracted at [31], [33] and [40] above.

4. [60]

   It is uncontroversial that Mr Brown’s evidence was not referred to either in terms or in substance in his Honour’s reasons for judgment. That, for whatever reason, it was not taken into account is reinforced by his Honour’s references to Mr Hamzy being limited to the use of pen and paper: see the passages extracted at [48] and [52] above. These references were quite inconsistent with his Honour having considered Mr Brown’s evidence and Mr Emmett’s submissions to the effect that the Acting Commissioner had approved the use by Mr Hamzy of the modified “blue” computer with word processing functionality and the ability to print from it. In other words, by the time his Honour reserved his judgment, the position was not that Mr Hamzy was, or would be, confined to the use of pen and paper.

5. [61]

   Further, his Honour’s more general statements that without access to a laptop with word processing functionality, Mr Hamzy would be denied access to justice are very difficult, if not impossible, to support if his Honour was proceeding on the basis that Mr Hamzy was to be provided with exclusive use of a modified desktop “blue” computer with such functionality.

6. [62]

   As to Mr Frommer’s letter referred to at [44] above, his Honour did extract it at PJ [37] but then went on to state that “[h]aving regard to the conclusions I have reached, it is unnecessary to reconvene the Court in order to elicit Mr Hamzy’s response.” This letter was not concerned with the provision of a modified “blue” computer to Mr Hamzy, and Mr Hamzy’s request in prayer 1 of his application, namely that he be permitted to have access to all of his tubs of legal materials in his cell, was not the subject of any order and was effectively overtaken by the offer to provide two e-brief laptops.

7. [63]

   The evidence of Mr Brown was highly material to the application and its significance was emphasised by Mr Emmett on 13 August 2024 when he submitted that “the arrangements as set out in Mr Brown’s affidavit would give the Court comfort that [Mr Hamzy] is not being precluded from effective access to the Court”.

8. [64]

   Mr Brown’s evidence reflected the Commissioner’s considered position, together with what was conveyed in Mr Frommer’s letter, as to how to facilitate Mr Hamzy’s ability to participate in his forthcoming litigation in a way consistent with the Commissioner’s discretion to make arrangements for prisoners’ custody. Mr Hamzy had expressed a degree of satisfaction with the proposal set forth in Mr Brown’s evidence, as the passage from the hearing on 13 August 2024 bears out. Indeed, the only difficulty which Mr Hamzy raised was the risk of his being without his e-brief laptop leading into his District Court trial whilst it was being sent from Goulburn to Sydney for the uploading of material. This was the issue resolved by Mr Frommer’s letter, giving effect to a solution Mr Hamzy had in fact proposed.

9. [65]

   The Chief Judge’s failure to have regard in his reasons for judgment to Mr Brown’s evidence was an error which vitiated his decision and, subject to the question of leave, provides a basis for setting aside his Honour’s orders.

10. [66]

    In truth, to adopt the language of the second limb of the first ground of appeal, there was no real controversy between the parties as at the time his Honour decided the application: Mr Hamzy had effectively secured what he had sought. First, he had permanent access in his cell to the material in his storage tubs which was or was imminently to be uploaded to his e-brief laptop which he was permitted to have with him in his cell. Secondly, he had access in his day room to a “blue” computer with word processing functionality, enabled to permit the copying of work product onto a USB and the ability to print to a printer in his day room.

Ground 2

1. [67]

   The second ground of appeal was that the Chief Judge erred in:

2. [68]

   It is convenient to deal with the second limb of this appeal ground first. I take that ground to be referring to the Chief Judge’s statements that:

3. [69]

   In circumstances where Mr Hamzy had been provided with the ability to hold and read his accumulated legal materials on an e-brief laptop, and was to be given daily access to the modified “blue” computer with word processing functionality together with the ability to print documents and store work product on a USB, it is difficult to see how Mr Hamzy’s access to the Court could be viewed as being in some way “denied”. Indeed, even without that technological support, in respect of the civil proceedings in respect of which the separate questions are to be heard on 10 and 11 December 2024, Mr Hamzy had:

4. [70]

   Subsequent to being provided with word processing facilities, Mr Hamzy has also prepared a typed, single spaced set of written submissions running to some 17 pages for the purposes of this application for leave to appeal in circumstances where the Chief Judge’s orders in relation to the provision of a laptop with word processing and storage functionality have not been complied with. This was quite inconsistent with Mr Hamzy being denied access to justice.

5. [71]

   In the course of argument before this Court, the following exchange with Mr Hamzy occurred:

6. [72]

   In Davies v The Queen [2018] VSCA 315, the Victorian Court of Appeal rejected an application made by Mr Davies against Corrections Victoria for access to a number of resources and facilities which the applicant contended were necessary for him to be able to prosecute his appeal. At [50], the Court observed that:

7. [73]

   This was evidence drawn from the circumstances of the very case that the Applicant was not relevantly impaired or impeded in terms of his access to the Court so as to deny him a fair trial or preclude him “from being able to properly and effectively present oral submissions in support of his applications for leave to appeal against conviction and sentence”: at [49]. See also the observations of Basten JA in Liristis at [79].

8. [74]

   The present case is far removed from the facts of many of the cases relied upon and referred to in the primary judgment and by Mr Hamzy in his submissions. For example, in Raymond v Honey [1983] 1 AC 1 (Raymond v Honey), the issue concerned the action of a prison governor who blocked the prisoner's application to a court. R v Secretary of State for the Home Department, Ex parte Anderson [1984] QB 778 (Anderson) involved a challenge to a standing order which restricted visits by a legal adviser to a prisoner contemplating proceedings concerning his treatment in prison. R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (Daly) concerned the impairment of a prisoner’s right to communicate confidentially with a legal adviser.

9. [75]

   Apart from their very different factual context, English decisions in this area cannot automatically be translated to the Australian legal landscape given the operation of the European Convention on Human Rights which influenced the reasoning in such cases, and the doctrine of proportionality as understood and applied in England: see, for example, Raymond v Honey at 10, 15; Anderson at 790; Daly at [23], [27], [30] This point was made by Beech-Jones J in Patsalis at [92].

10. [76]

    I agree that the Chief Judge erred in his conclusion that the orders made were necessary to ensure effective access to the Court. The second limb of ground 2 of the appeal is made out.

11. [77]

    In relation to the first limb of the second ground of appeal, concerning the scope of the Court’s powers to make orders for the purpose of ensuring effective access to the Court, it is imperative to understand the source of this power as that necessarily informs its scope. In Patsalis at [51]-[53], Beech-Jones J identified at least two different jurisdictions the Court exercises when determining claims of the kind made by Mr Patsalis (in that case) and Mr Hamzy in the present case. His Honour relevantly said:

12. [78]

    The application made in the present case was not an application for judicial review in the Court’s supervisory jurisdiction, a form of action that may be pursued when a prisoner seeks to challenge various administrative decisions or actions that have been taken by prison authorities: Daly and Anderson were such cases as was Patsalis itself. See also, JMR v Department of Juvenile Justice [1999] NSWSC 169, Middleton v Commissioner for Corrective Services (NSW) [2004] NSWSC 136; (2003) 143 A Crim R 364 and Knight v Wise [2014] VSC 76 at [89] ff.

13. [79]

    Nor was the application made one by which relief was sought by way of habeas corpus or by way of allegation of a breach of a duty of care or contempt of court: cf Clark at [5], Patsalis at [53].

14. [80]

    In Liristis, a majority of the Court of Appeal upheld a challenge to a decision of the primary judge who had made orders directed to the Commissioner of Corrective Services requiring that Mr Liristis be given access to a printer/scanner and personal laptop while on remand in custody and that he be permitted to use his personal laptop in his cell, to facilitate the preparation and conduct of his case.

15. [81]

    Beazley P identified that the matter had not been easy to resolve “because there was no clear identification before the primary judge of the jurisdiction that she was being asked to exercise”: at [1]. The President agreed with the analysis of Basten JA as to the nature and extent of the Court’s powers (at [9]), and with his conclusion that “[a]s a matter of law, the orders made by the primary judge are not supportable and must be set aside”: at [110].

16. [82]

    The President’s judgment involved a close analysis of the ambit of the inherent jurisdiction of the Supreme Court and, as her Honour held, the inability of that jurisdiction to source a power “to make positive binding orders against a third party to criminal proceedings of the kind made by the primary judge”, noting that “[t]his is all the more so where the order made directly affected the operations of a correctional facility”: at [36]. The President noted that the “Supreme Court’s inherent and/or s 23 jurisdiction is essentially preventative” and was not unlimited but could extend to the staying of proceedings to prevent injustice, or an abuse of process: Liristis [33], [35], citing Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 and Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46.

17. [83]

    Earlier in her reasons (at [18]), the President cited the decision of Sackville AJA in McGuirk v University of New South Wales [2010] NSWCA 104 at [176] where his Honour said that it was:

18. [84]

    In the context of both criminal and civil proceedings, the power to prevent an abuse of process, including by any denial of access to justice or a fair trial, has typically been exercised through the grant of a stay of proceedings pending the removal of the impediment to the obtaining of justice. This is best illustrated by Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 (Dietrich) where the denial of access to justice was ameliorated not by a positive order for legal representation but by a stay of proceedings for so long as Mr Dietrich remained without representation in his criminal proceedings. Basten JA observed in Liristis at [78]:

19. [85]

    Basten JA (at [81]) referred to this Court’s decision in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 (Smith) in which Moffitt P had noted the availability of various sanctions capable of being imposed to prevent an unfair trial such as the ability to “postpone or interrupt the trial until that which is fair is done for the accused”: at 319. Basten JA went on to quote the following passage from Moffitt P’s decision (at 320):

20. [86]

    Basten JA’s conclusions in Liristis included that:

    1. (1)

       the enforcement of any right to a trial which will not be unfair must be indirect because a person in custody “has no legal, equitable or statutory right to enforce”: at [79];

    2. (2)

       “The proposition that the Supreme Court has power to order a gaoler to take steps to provide a prisoner with resources to run his criminal defence goes a step further than any authority to which the Court was directed and is untenable”: at [104]; and

    3. (3)

       “no authority suggested that it was a proper function of the Supreme Court to weigh the demands of a prisoner for access to equipment which was not permitted in the gaol according to ordinary operating procedures against the gaoler’s concern for security”: at [104].

21. [87]

    It is not possible to build out of the Court’s inherent jurisdiction and right to control its own processes to prevent an abuse of process a free standing unitary “right” to a fair trial. That is necessarily imprecise: Liristis at [68]. The dictates of justice and the necessity of securing a fair trial may be secured in the context of criminal proceedings by the remedies of bail or temporary stay of proceedings. Those remedies or sanctions have no application to civil proceedings which was the reason why, in Clark, Simpson JA expressed the view that the observations in Smith had “no relevance to litigation other than criminal litigation”: at [44].

22. [88]

    In civil proceedings in New South Wales, the Court has broad power to make directions in respect of any proceedings: Civil Procedure Act 2005 (NSW), ss 61 and 62. Liristis did not deny that power: its immediate concern was whether the Supreme Court could in its inherent jurisdiction make the orders sought in respect of a trial to take place in the District Court. That having been said, the observations made by Basten JA in Liristis are, in my view, apposite, as was the observation of the Chief Judge in the present case (at PJ [46]) that “it is no part of the role or function of this Court to second-guess the Commissioner’s considerable and unchallenged expertise about security within the gaol.”

23. [89]

    The Court’s concern is to guard against the denial of access to justice and to use its powers in this regard as a “safety net”: Clark at [12]. In this context, I respectfully disagree with what is implicit in the Chief Judge’s observation that “I am still left wondering how a fair balance can be struck if the laptop required by Mr Hamzy is not provided to him”: at PJ [50] (extracted at [55] above). If the proper concern of the Court is with guarding against any denial of a party’s access to justice, that involves a quite different inquiry to one which involves the effecting and consideration of how “a fair balance” between the parties “can be struck”. Such an approach is inconsistent with the observations made by Basten JA in Liristis identified at [86] above.

24. [90]

    I respectfully also do not agree with the Chief Judge that the concept of “equality of arms” invoked by Mr Hamzy provided a “suitable and relevant starting point”: see [54] above. That concept is rooted in European human rights jurisprudence, as Bell J’s decision in Ragg at [45]-[66] makes clear. It may or may not be apposite in Victoria given that State’s Charter of Human Rights and Responsibilities Act 2006 (Vic): see, for example, B A v Attorney-General (Cth) [2017] VSC 259 at [24]. It does not, however, readily translate to New South Wales or align with authorities such as Clark, Patsalis and Liristis which have been cited above.

25. [91]

    In very few pieces of litigation will there be equality of resources, be they financial or human resources, and it is not the role of the courts to endeavour to achieve or bring about a circumstance of “equality of arms”. A citizen’s effective access to the courts, whether he or she is in custody or not, is not to be denied but that is a very different proposition to one that requires some broad or approximate equalisation of resources. In this sense, the expression “equality of arms” is apt to confuse.

26. [92]

    The Chief Judge’s embrace of the “equality of arms” concept as the proper starting point of the analysis in my respectful opinion involved a mistake as to the scope of the Court’s powers to make orders for the purpose of ensuring effective access to the Court.

27. [93]

    The role of the Court is to ensure a fair trial and it may be accepted that an “irreducible minimum” of resources may be required to achieve that (Rich v Magistrates' Court of Victoria [2007] VSC 65 at [44]) but that, too, is different from an equalisation or an approximate equalisation of resources. Further, any irreducible minimum requirement must be assessed in the context of the particular case, including the applicable statutory context which confers discretions and power on corrections authorities who are far better placed than courts to assess what is required for the safe and secure management of corrections facilities. In the context of corrections facilities in New South Wales, see the CAS Act (ss 72, 75, 79, 232-233) and the CAS Regulation (cll 45, 122A, 122B, 122J and 122L). The decision of Gillard J in Rich v Groningen at 286-289 is a good example of the interplay of a prisoner’s rights of access to the courts and the applicable legislative regime.

28. [94]

    A key plank of Mr Hamzy’s argument on appeal was to emphasise statements in various authorities to the effect that no citizen should have their right of access to the courts “impeded” or, to put it conversely, all citizens including prisoners are entitled to have unimpeded access to the courts.

29. [95]

    Rich v Groningen illustrates that the fact that custody may present various impediments to a prisoner litigant does not mean that he or she is being illegitimately “impeded” in the presentation of his or her case or must be relieved of all impediment in order to have effective access to the courts and a fair trial. This point was also made by Basten JA in Liristis at [106] and by Lasry J in Rich (No 2) at [51]:

30. [96]

    Rich (No 2) did not involve the making of any coercive orders in relation to Corrections Victoria in relation to the requirements of the accused. As in the present case, practical arrangements which had evolved and been refined in the course of argument were noted by his Honour and judicial expectations about them being honoured were recorded: see at [85]-[97].

31. [97]

    In applications of the kind that was made by Mr Hamzy in the present case, the source of power to make the orders sought must be identified carefully, and the statutory context of the lawful regulation of a prisoner’s circumstances of incarceration must be recognised and given proper deference. Any excess of executive authority is most appropriately dealt with in the Court’s supervisory jurisdiction and by reference to public law remedies. Any discretion to make directions in the context of extant proceedings should not start with the “equality of arms” concept but focus on what is required for a fair trial. The focus must necessarily take into account the very different contexts of a prisoner who is in some way impeded in preparing and presenting a defence in criminal proceedings as opposed to civil litigation where the prisoner is the moving party.

Ground 3

1. [98]

   In light of the conclusions I have reached in respect of Grounds 1 and 2, it is not necessary to deal with Ground 3 which was that:

Leave and orders

1. [99]

   The Commissioner recognised the need to obtain leave to appeal.

2. [100]

   I would grant leave to appeal but recognise that, as a consequence of Mr Hamzy securing the concessions he did as the case at first instance evolved, the setting aside of the orders made would leave him without any certainty in terms of what he had achieved. For this reason, I raised with Mr Emmett the willingness of the Commissioner to prove certain undertakings as the price of granting leave to appeal. That course was not opposed, and the grant of leave to appeal will be made on the condition of the undertakings set out in Annexure A.

3. [101]

   I would propose the following orders:

   1. (1)

      On the undertaking proffered to the Court and forming Annexure A to these reasons, grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Set aside the orders of 6 September 2024 and, in lieu thereof, dismiss the application made by Mr Hamzy.

4. [102]

   I would not make any order as to the costs of the proceedings at first instance or on appeal reflecting the fact that, as a matter of substance, both the Commissioner and Mr Hamzy have enjoyed measures of success in respect of what was originally sought.

5. [103]

   PAYNE JA: I agree with Bell CJ.

6. [104]

   STERN JA: I agree with Bell CJ.