Hamzy v Commissioner of Corrective Services

1. [1]

   HIS HONOUR: Bassam Hamzy is an inmate presently housed in Unit 8 of the High Risk Management Correctional Centre (HRMCC) at Goulburn. That centre was previously and still is known and referred to as the High Risk Management Unit (HRMU).

2. [2]

   By his second amended summons dated 29 May 2023 (and filed on 27 June 2023), Mr Hamzy seeks declaratory relief concerning the validity and application of provisions of the Crimes (Administration of Sentences) Regulation 2014 as follows:

3. [3]

   The power to make the Crimes Administration of Sentences Regulation is conferred by s 271 of the Crimes (Administration of Sentences) Act 1999.

4. [4]

   On 18 March 2024, Meagher JA, sitting in the Common Law Division, ordered that, relevantly for present purposes, certain questions be identified for separate determination: Hamzy v Commissioner of Corrective Services [2024] NSWSC 264. After his Honour’s determination, and following consultation between the parties, his Honour ordered on 7 June 2024 pursuant to UCPR 28.2 that the following six questions arising from Mr Hamzy’s second amended summons be determined separately from any other question in the proceedings:

5. [5]

   These questions are now listed for hearing on 10 and 11 December 2024. In advance of the hearing, Mr Hamzy seeks the following orders:

6. [6]

   The Commissioner opposes the making of the orders (1) and (2) but, to the extent that he is a contradictor to the application, does not oppose order (3).

Evidence

1. [7]

   Mr Hamzy affirmed an affidavit on 3 July 2024. That affidavit contained the following relevant paragraphs:

2. [8]

   Mr Hamzy’s further affidavit dated 4 July 2024 contained the following paragraphs:

3. [9]

   At my invitation, and with the agreement of the Commissioner, I suggested that Mr Hamzy could, if he wished, give any further evidence that he wanted to rely upon in support of the relief that he seeks on affirmation from Goulburn by video link. Mr Hamzy accepted that invitation and gave the following evidence on 1 August 2024 before me:

4. [10]

   I also directed the Commissioner to furnish any evidence upon which he proposed to rely within a week of 1 August 2024. He did so. The Commissioner’s evidence is now contained in the affidavits of Scott Bramble and Susan Mitchell, each sworn on 7 July 2024. These deponents were understandably not cross-examined by Mr Hamzy and the effect of their evidence is in any event relevantly referred to in, or apparent from, the Commissioner’s submissions set out later in these reasons. However, it should specifically be noted that the suggestion that Mr Hamzy’s legal document tubs are imminently to be removed from his day room is denied. Moreover, Mr Emmett of senior counsel for the Commissioner indicated that Mr Hamzy would retain his current level of access to these documents in his day room until at least the conclusion of these proceedings.

Mr Hamzy’s submissions

1. [11]

   Mr Hamzy emphasised that prisoners retain all civil rights that are not taken away expressly or by necessary implication, in particular the right of unimpeded access to the courts. He referred me to Clark v Commissioner for Corrective Services [2016] NSWCA 186.

2. [12]

   Mr Hamzy submitted that the Court has the power to control its own process and can give directions designed to facilitate the conduct of proceedings where the State is the defendant. In Patsalis v The State of New South Wales [2012] NSWSC 267, Beech-Jones J said this at [53]:

3. [13]

   Mr Hamzy stressed that, as a plaintiff in civil proceedings, he has a right of access to the courts, particularly in litigation such as the present, where a government department is the defendant, and where that very department has control over his capacity and ability to run his case. He referred to Rich v Groningen (1997) 95 A Crim R 272 at 287 per Gillard J as follows:

4. [14]

   Pertinently for present purposes, Gillard J also said this at 284:

5. [15]

   Mr Hamzy submitted that what he described as the “fair trial principle” should apply in this matter and that the “equality of arms” concept should be given paramount consideration due to the power imbalance between him and the defendant.

6. [16]

   Mr Hamzy also drew upon what was said in Miles v R [2012] NSWCCA 88, dealing with a bail review application, where Hoeben JA expressly joined with the recommendation of Hulme J that “the Department of Corrective Services… provide reasonable assistance and facilities to allow the applicant to prepare his appeal.”

7. [17]

   In summary, Mr Hamzy contends that his legal documents are contained in eight tubs which alone indicates the voluminous nature of that material. Whereas he formerly enjoyed unlimited access to this material in his cell at all times, the recently enforced regime means that his access is limited to one tub in his cell at any one time. By the same token, access to his day room is severely constrained by the hours when inmates are confined to their cells. Mr Hamzy, therefore, has no access to his day room after 2pm every day and no access at all during lock downs.

8. [18]

   Moreover, the difficulty and legal complexity of the matters calling for determination in the December proceedings should not lightly be discounted. Mr Hamzy appears for himself. The separate questions ordered by Meagher JA to be heard are not matters that can be prepared without significant time and effort. Unrestricted access to these documents for long periods is therefore essential if Mr Hamzy is to have any reasonable prospect of doing justice to his claims. For cognate reasons, Mr Hamzy submits that, whatever may be the limitations upon the Commissioner’s ability to provide access to a laptop with adequate functions, the suggestion that he should be expected to hand-write everything is unrealistic in the modern digital era, and falls well short of “what an outsider would regard as reasonable facilities for someone such as the applicant in the circumstances that he is in”, to adopt Hulme J’s description in Miles at [4].

Commissioner’s submissions

1. [19]

   The Commissioner submitted that the orders which are opposed seek to mandate positive action on the part of the Commissioner, being action which would be contrary to the Commissioner’s current policies and arrangements in discharge of his responsibilities to control and manage correctional centres and inmates, as explained in the affidavits of Scott Bramble and Susan Mitchell. In relation to orders of that kind, the Commissioner made the following submissions.

2. [20]

   The Commissioner understands that Mr Hamzy seeks to engage the Court’s power to prevent an abuse of process, ensure fairness, or otherwise protect the Court’s processes in the substantive proceedings that are pending before this Court. The Commissioner does not cavil with the proposition that that the Court has an inherent power, or a power arising under s 23 of the Supreme Court Act 1970 (NSW), to make orders or give directions to prevent an abuse of the Court’s processes. However, that jurisdiction is “by no means unlimited”: Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 at [32], [61]. In particular, it does not ordinarily “permit an order that a government officer exercise a discretionary power in a particular way”: Liristis at [63]. Even in criminal proceedings, the power may not extend to “making some kind of positive or mandatory order on parties or non-parties” in order to prevent an abuse of process: Liristis at [32].

3. [21]

   As observed by Basten JA in Clark at [12]-[14]:

4. [22]

   Thus, for example, it is generally not “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”: Liristis at [104]. The principal question for the Court on this application is whether orders described in (1) and (2) are necessary to prevent an abuse of the Court’s process or to ensure a fair trial in these proceedings.

5. [23]

   It is well-established, even in criminal proceedings, that a fair trial does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to one side: Jarvie v Magistrates Court (Vic) [1995] 1 VR 84 at 90; R v Ngo (2002) 57 NSWLR 55; [2003] NSWCCA 82 at [98]-[99]; Romolo v R [2016] NSWCCA 240 at [28]. In that regard, the rights and privileges of a litigant who is incarcerated may be “qualified in substantial respects, particularly by the need for enforcement of security in a custodial environment”: Liristis at [69].

6. [24]

   Courts are generally reluctant to interfere in the discipline, administration or management of correctional centres: McKane v Commissioner for Corrective Services of New South Wales (No 3) [2018] NSWSC 1060 at [42]-[45]; Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87; Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7]-[11]. That is appropriate because courts are not necessarily well qualified to determine what is necessary or appropriate in the interests of custodial management: Hamzy v Commissioner of Corrective Services (2022) 107 NSWLR 544; [2022] NSWCA 16 at [182].

7. [25]

   In any event, Mr Hamzy’s present application is not an application for judicial review and does not challenge the validity of particular practices adopted by the Commissioner. Such relief as may be available from this Court for the purposes of managing the substantive proceedings is separate and apart from a potential exercise of the Court’s supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970. A claim by reference to the latter jurisdiction should be properly constituted by summons, with a correspondingly full opportunity to defend the challenge. Yet, even in the context of judicial review proceedings, it is not the merits of an administrative action or decision that are in issue: Clark at [84]-[85].

8. [26]

   Whether orders (1) and (2) are necessary to prevent an abuse of the Court’s process or to ensure a fair trial in the proceedings falls to be determined by the Court in circumstances where:

9. [27]

   Mr Hamzy has access to one tub of legal materials in his cell and to the balance of his legal materials (12 tubs, one archive box and two canvas bags) in a room to which he has exclusive access during the day when opened by correctional officers. Mr Bramble, the Manager of Security at the High Risk Management Correctional Centre (HRMCC), has described that process in his affidavit.

10. [28]

    Prior to 27 June 2024, Mr Hamzy had been permitted to keep all of his legal materials in tubs in his cell. Although that situation had developed and persisted for some time, it was inconsistent with the relevant Custodial Operations Policy and Procedures (COPP) and complacent as to the risks associated with property accumulating in inmates’ cells. As a result of recent fires in correctional centres across New South Wales, instructions were received to review and ensure compliance with the COPP in terms of property kept in cells. This action was not related to Mr Hamzy in particular.

11. [29]

    As explained by Mr Bramble, three concerns arise from the accumulation of property in cells. First, there is a concern that property may fuel a fire that can spread quickly and threaten the safety or lives of inmates, particularly when confined to cells. Secondly, property kept in an inmate’s cell elevates the risk of contraband items being secreted amongst that property. Cells are not monitored by video surveillance in the same way as common areas, including Mr Hamzy’s day room. As also explained by Mr Bramble, it is therefore more common for contraband items to be found amongst property kept by an inmate in a cell. The Commissioner maintains that these are not idle or hollow concerns. In relation to the plaintiff in particular, Mr Bramble has provided an example of a tablet being found amongst his legal papers in May 2024. Thirdly, and relatedly, property kept in an inmate’s cell needs to be searched when a cell search is conducted, as regularly occurs at the HRMCC. Operational difficulties arise where the amount of such property in a cell is large and there are voluminous legal materials, which need to be searched carefully due to their potentially privileged nature.

12. [30]

    The Commissioner submitted that in light of Mr Bramble’s evidence, the Court should reject any suggestion that there has been an abuse of the Court’s process in terms of the Commissioner seeking to impede Mr Hamzy’s preparation of the proceedings before the Court. Nor is it necessary to ensure fairness in the proceedings that he be given access to multiple tubs of legal materials in his cell and thereby be treated differently to other inmates under the COPP.

13. [31]

    While the separate questions give rise to a number of legal issues, the proceedings are not ones in which vast documentary evidence is required. Indeed, the separate questions were ordered in part for their capacity to be determined efficiently and without the need to gather a great deal of detailed evidence.

14. [32]

    Through his exclusive use of the day room in which the balance of his legal materials are situated, Mr Hamzy has a greater degree of ready access to his legal materials than other inmates, who are required to request such materials from storage. He is able to rotate the legal materials stored in his cell as he sees fit. In the Commissioner’s submission, nothing further is required, in the circumstances of this case, for fairness to be done. The Commissioner ought not to be forced to make additional allowances for access to Mr Hamzy’s legal materials.

15. [33]

    Mr Hamzy presently has access to the kind of laptop that the Commissioner is able to provide, namely an e-brief laptop that does not have word processing capabilities. The program in relation to those laptops is explained by Ms Mitchell, whose responsibilities include the management of laptops and tablets for inmates. The laptops have been programmed in such a way that their functionality is limited to the reading of documents. The Commissioner has begun efforts to explore updates to the operating systems of the laptops, which may include word processing capabilities. But this has not yet been put in place and is in still under consideration and development. Ms Mitchell has explained the importance of ensuring that such laptops as are provided to inmates are programmed so that they cannot be misused.

16. [34]

    In these circumstances, the Commissioner submitted that it would not be appropriate for the Court to mandate that he facilitate access to a laptop that has greater capabilities than the systems developed and put in place by Corrective Services NSW for all inmates. Making such an exception for Mr Hamzy not only gives rise to the real practical difficulties outlined by Ms Mitchell and Mr Bramble in terms of the ability to provide the kind of computer access which Mr Hamzy seeks, but also gives rise to concerns about the equal treatment of inmates in the management of correctional centres.

17. [35]

    In Clark at [31], Basten JA acknowledged “the importance for the good order of the prison in not having arbitrary arrangements, pursuant to which some prisoners may be perceived to receive preferential treatment”: see also Ghasemi v NSW Department of Corrective Services [2019] NSWSC 207 at [68]. Mr Bramble is unaware of medical advice to the effect that Mr Hamzy requires different equipment.

18. [36]

    The Commissioner submitted that Mr Hamzy to date has been able to prosecute the proceedings by means of handwritten documents. This includes the preparation of his evidence in chief in relation to the separate questions. The Commissioner’s solicitors have agreed to arrange and provide such handwritten documents to the Court. No order of the Court is therefore necessary to protect against an abuse of process or to ensure fair access to the Court.

19. [37]

    Finally, on 27 August 2024, following the last mention of these proceedings before I reserved my decision, Mr Frommer from the Crown Solicitor’s Office wrote to my Associate in the following terms:

20. [38]

    Having regard to the conclusions I have reached, it is unnecessary to reconvene the Court in order to elicit Mr Hamzy’s response.

Disposition

1. [39]

   Mr Hamzy’s reference to equality of arms is a suitable and relevant starting point from which to consider these largely, although not completely, competing submissions. A comprehensive reference to this concept can be found in the judgment of Bell J in Ragg v Magistrates Court (Vic) and Another (2008) 179 A Crim R 568; [2008] VSC 1 at [46]-[48]:

2. [40]

   His Honour continued at [50]:

3. [41]

   Although the present proceedings are civil, not criminal, and although no issue of disclosure arises directly, Mr Hamzy maintains that he is in litigation in which the Commissioner as the opposing party maintains significant control in the custodial setting over what he can and cannot do. That control, in Mr Hamzy’s submission, needs to be taken into account in assessing the extent to which it might actually or potentially impede or hobble the processes of this Court.

4. [42]

   It is also important to consider the setting in 2024 in which the current dispute arises. One would hope that the days are, or should be, long gone in which prisoners were restricted to pen and paper, or the vicissitudes of the postal service, when communicating or corresponding with the Court. As long ago as 2008, Lasry J made reference to the changes in R v Rich (No 2) (2008) 184 A Crim R 161; [2008] VSC 141. For example, his Honour said this at [47]-[48]:

5. [43]

   That same year, his Honour Kirby J in Muir v The Queen [2004] HCA 21; (2008) 78 ALJR 780 at [25] said this:

6. [44]

   Five years later, Kaye J in Brazel v Westin [2013] VSC 527 set out at [21]-[23] what he considered to be the principles to be applied in circumstances such as the present:

7. [45]

   The legal principles are, therefore, not in dispute.

8. [46]

   In my opinion, Mr Hamzy’s access to this Court is relevantly denied for as long as he is not provided with a laptop with word processing capability. I accept without reservation that it is not a proper function of this Court to weigh Mr Hamzy’s need for access to equipment which is currently not permitted in the gaol according to ordinary operating procedures against the Commissioner’s concern for security. I also accept 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. That is so not merely in general terms concerning the running of the gaol but also in the light of the Commissioner’s particular information about specific prisoners, including Mr Hamzy, which may raise novel or unique concerns that need to be understood and addressed.

9. [47]

   But there must surely come a time in the third decade of the third millennium when a party to complex litigation in this Court can no longer be expected to conduct it without continuous or at least significant regular access to a laptop with internal storage facilities and word processing capabilities. The evidence in this case reveals that prisoners are not permitted to have computers or laptops with internet access. Mr Hamzy does not ask for that and the Commissioners’ position is entirely understandable. The evidence also reveals that prisoners’ access to USB devices is very carefully monitored as they are easy to conceal upon the person and USBs containing prohibited or security sensitive material is correspondingly difficult to monitor. However, as far as I am able to determine, laptops are not similarly difficult to monitor.

10. [48]

    The Commissioner uncontroversially acknowledges that Mr Hamzy is entitled to have access to all of his legal materials, which are presently contained in hard copy documents stored somewhat primitively in a series of plastic tubs. That position is unremarkable both having regard to the Commissioner’s position as Mr Hamzy’s gaoler as well as to his role as a party to this litigation. The Commissioner has identified, and Mr Hamzy has not sought to contradict, the existence of potential security concerns if more than one tub is located in his cell at any one time. It is not difficult to conceptualise the possibility that a large tub full of documents could theoretically conceal material to which a prisoner is not permitted to have access. Moreover, although the Commissioner does not appear in Mr Hamzy’s case to rely heavily upon the idea that more than one tub of documents in his cell might present a fire hazard, in the sense that it could provide a source of easily combustible material, that issue would seem to have receded in significance for present purposes.

11. [49]

    If this analysis is accurate, it is difficult to understand how the failure to provide a laptop with no internet capabilities, that is also able to store on its hard drive all of Mr Hamzy’s legal documents that are currently stacked somewhat clumsily in plastic tubs, and which are already viewable using a USB does not realistically amount to a denial of access to the court process to Mr Hamzy in this case. Mr Hamzy, or any other prisoner in his position, undoubtedly requires that technology to run his case efficiently. That includes a laptop with writing and printing functions. At a time in our history when primary school pupils are utilising this technology in the classroom, it seems that the need for a degree of lateral thought in the custodial context may well have arrived. Nor can there be any concerns about resources as Mr Hamzy has offered to pay for this equipment himself.

12. [50]

    In expressing these views, I am attempting objectively and dispassionately to conduct a careful review of the evidence and to scrutinise the Commissioner’s concerns as closely as possible. However, the cases all acknowledge that prisoners are in a position of particular disadvantage. I am certainly not suggesting or implying that the Commissioner is abusing his power or authority and I am mindful of the exhortations to avoid becoming “enmeshed in the merits of particular decisions” (Brazel v Westin & Anor at [23] quoting Fyfe v State of South Australia [2000] SASC 84 at [18]). But taking account of the limitations that this Court faces when trying fully to understand and appreciate the security concerns that lie at the heart of the Commissioner’s position, I am still left wondering how a fair balance can be struck if the laptop required by Mr Hamzy is not provided to him.

13. [51]

    I am particularly mindful of the sentiments expressed by Lasry J in R v Rich (Ruling No 2) that it would obviously be very convenient for someone such as Mr Hamzy to have a laptop computer even though that is not the test. As his Honour observed, the relevant question asks if such a facility is “integral to the fair trial of the accused” or if “without a laptop computer his trial will be unfair”. It seems to me that whether it be the Commissioner’s action or inaction, Mr Hamzy is unquestionably precluded from having effective access to the court in this case without the laptop I have described. In so saying I wish again to emphasise that my concern, that Mr Hamzy’s common law right to access to this Court should not be impeded, is not to be confused with a view that the Commissioner is actively impeding that access. It is simply a fact that without the technology that I have described, Mr Hamzy’s access to this Court will be denied to him. In these circumstances I consider this Court should intervene to protect that right.

Order

1. [52]

   The precise framing of the order may require some further input from the parties. That is at least for three reasons. The first is that Mr Hamzy is to provide the laptop concerned. I am presently unaware of when that may occur. The second is that the Commissioner would have to be given the opportunity to vet the device that is to be provided in order to meet the minimum concerns that I have expressed and to be satisfied that it does not have any capabilities that illegitimately exceed those I have identified. The third is that the parties may wish to consider the implications, if any, of Mr Frommer’s letter upon the practical implementation of my order.

2. [53]

   The parties should therefore provide me with an agreed minute of the appropriate order, or competing versions if agreement cannot be reached, in either case within seven days.