Bernard-Ross v State of NSW

1. [1]

   By an Amended Summons filed 13 October 2017, the plaintiff seeks judicial review of the decision of the Commissioner for Corrective Services (“the Commissioner”) to deny him a laptop computer which has a write and edit function for use in his cell.

2. [2]

   The Amended Summons concentrated on a decision, examined below, of the Commissioner of 6 September 2017. The earlier Summons which commenced proceedings in 2016 dealt with an earlier decision. In light of the terms of the Amended Summons there is neither necessity nor utility in this judgment reciting the facts, matters and circumstances relevant only to the earlier decision, or the nature and course of these proceedings in dealing with the earlier decision.

3. [3]

   One additional matter that had been raised originally dealt with the inability of the plaintiff to have documents printed for the purpose of his anticipated proceedings without undue restriction. By the time of hearing, that matter had been addressed by the Commissioner and no further issue now needs to be determined. It is appropriate to put that printing issue to one side.

Decision under Review

1. [4]

   On 6 September 2017, the Commissioner accepted two recommendations made to him in a memorandum of that date from the Manager of the Video Conferencing Unit within Corrective Services. He approved action in accordance with those recommendations, which were:

2. [5]

   These recommendations were made immediately after some analysis undertaken by the author. The analysis read:

3. [6]

   Those recommendations appeared at the end of an eight page memorandum to which 338 pages of documents were attached.

4. [7]

   The memorandum drew attention to a number of matters. Without repeating all of those matters, the important ones seem to be the following. First, the memorandum identified the reasons that the plaintiff sought access to a laptop in his cell with write and edit functionality. It acknowledged that the plaintiff already had access to a laptop which had a read-only functionality, but that he claimed such laptop to be insufficient for his purposes and that he needed to be provided with access to a laptop on which he could type and edit files.

5. [8]

   Secondly, the memorandum discussed access to computers generally by inmates of all correctional centres. It identified the fact that, outside of their cells, inmates had access to three different types of computers:

6. [9]

   Documents created by inmates on green computers are saved to a network, and are accessible by Corrective Services staff. The current policy of the Corrective Services is that green computers are only available to inmates for work and educational purposes, and for access to the ILIP. Green computers are held in central locations and are accessible to all inmates in relation to their participation in educational, employment and legal rehabilitation paths. The memorandum noted that the plaintiff had been allowed to use green computers, although not for educational or employment purposes.

7. [10]

   Thirdly, the memorandum sets out a series of security concerns with respect to laptops with write and edit functionality. Those concerns included that laptops with the write and edit functionality are capable of being used to modify functionality limitations imposed within the computer. For example, operating systems could be upgraded resulting in a user of the computer having uncontrolled internet access. Write and edit functions enable the use of extremely small modems (about the size of a thumbnail) which would likely be undetectable if brought into a correctional centre, and which could enable access to the internet. By reasons of these security concerns, the access by any inmate to a laptop computer is presently limited to a red computer (without write and edit functionality).

8. [11]

   Fourthly, the memorandum dealt with the current laptop policy of Corrective Services. This policy does not allow inmates to obtain a laptop computer privately, and further provides that no inmate is to be supplied with a laptop computer with write and edit functionality.

9. [12]

   Fifthly, the memorandum went on to consider the information provided by the plaintiff, including the fact that whilst at Goulburn Correctional Centre, the plaintiff’s access to the green computers was quite limited, and whilst at the Mid North Coast Correctional Centre, that access was, in effect, non-existent for operational reasons.

10. [13]

    Sixthly, the memorandum identified the need for the plaintiff to have access to a computer in order to prepare typed documents for filing in the High Court of Australia.

11. [14]

    Having set out these matters, the document then further set out the analysis and recommendations to which earlier reference has been made at [3] and [4].

The Plaintiff’s Need to Prepare Legal Documentation

1. [15]

   The plaintiff was found guilty by a jury, after a seven week trial, of the murder of the daughter of his de facto wife. The victim was 2 years and 8 months old at the time of her death.

2. [16]

   The plaintiff was, on 30 May 2014, sentenced by this Court to imprisonment for a non-parole period of 30 years, commencing 27 September 2011 and concluding 26 September 2041; and a balance of term being a further 10 years, expiring on 26 September 2051. The effect of this sentence is that the plaintiff will first be eligible for release on 26 September 2041.

3. [17]

   The plaintiff sought Legal Aid to appeal against his conviction and sentence. No grant of Legal Aid was made to him with respect to his conviction, because the conclusion was formed that such an appeal lacked legal merit. However, an appeal against his sentence did proceed.

4. [18]

   On 17 August 2016, the Court of Criminal Appeal delivered judgment on the plaintiff’s sentence appeal. It ordered that he be granted leave to appeal, but dismissed the appeal.

5. [19]

   No appeal or application for leave to appeal against conviction has ever been brought by the plaintiff to the Court of Criminal Appeal.

6. [20]

   The need identified by the plaintiff in submissions to the Commissioner and this Court for access to the computer with write and edit functionality related to his involvement (or potential involvement) in what he described as “a number of court cases”. The first of these was said to be an application to the High Court of Australia for special leave to appeal against the Court of Criminal Appeal’s decision on sentence and also to appeal against his conviction. The plaintiff submitted to the Commissioner, and to this Court, that because the rules of the High Court of Australia required any applicant to lodge their documents in typewritten, and not handwritten form, the lack of a computer with write and edit functionality in effect precluded efficient and timely access to the High Court to pursue an appeal against his conviction and sentence.

7. [21]

   As well, the plaintiff described four Family Court proceedings with respect to arrangements for access to three children, and with respect to a question of the disputed parentage for a fourth child. The plaintiff accepted that documents filed in the Family Court could be handwritten, but argued to the Commissioner and to this Court that it would be preferable if he were able to type those documents having regard to their length, complexity and the need to provide the Family Court with all possible assistance.

Plaintiff’s Submissions to the Court

1. [22]

   The plaintiff appeared for himself. He relied upon written submissions that had been filed on three separate occasions. It is not unfair to say that those submissions concentrated on the difficulties which the plaintiff was having in obtaining what he regarded as sufficient access to the green computers held in the common areas in the Correctional Centre. For example, he gave a list of the reasons he was given to prevent his access to the green computers, which he submitted were without any substance. He submitted that these difficulties could only be addressed by a decision giving him a green laptop computer for his own use in his cell. As well, the submissions concentrated on persuading this Court that he had good reason, through the various court cases which he described, to have access to a computer which enable him to write and edit documents.

2. [23]

   An example was given, based upon the material before the Court, that when the plaintiff was at the Goulburn Correctional in Unit No. 2, he sought access to use the green computer on 69 different occasions and was only granted access on nine occasions. As well, the plaintiff pointed to the fact that whilst at Cessnock Correctional Centre for a period of six to seven weeks, and at the Mid North Coast Correctional Centre for seven to eight months, he had had no real access to green computers.

3. [24]

   The evidence discloses that since that time, the plaintiff has been transferred to Lithgow Correctional Centre where he has been given some access to green computers. Without objection, a Computer Access Log was tendered to the Court for the period 7 November 2017 to 12 February 2018. This log records times and frequency of the plaintiff’s access to the green computers whilst at the Lithgow Correctional Centre. That log shows that over a period of approximately 100 days, the plaintiff had access to the green computers on 41 separate occasions. Some of these occasions were for a period of two hours, although some were for considerably shorter periods.

4. [25]

   The submissions of the plaintiff did not grapple with the nature of these proceedings as being by way of judicial review. As best as could be understood from the written and oral submissions, the plaintiff was contending that the Commissioner’s decision was so unreasonable that it ought be regarded as demonstrating error. That is to say, it was so unreasonable that no reasonable decision-maker could have reached that decision: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

Submissions of the Commissioner for Corrective Services

1. [26]

   These submissions commenced by identifying the legislative provisions which are relevant to the control by the Commissioner of physical items that are the property of prisoners. The two pieces of legislation are:

2. [27]

   Clauses 7 and 8 of the Regulation require an inmate’s property to be surrendered when he or she is received at, and admitted into, a Correctional Centre. Clause 9 empowers the Governor of a Correctional Centre to decide which items are to be retained by Centre staff, and which are to be returned to the inmate for use whilst they are present in the Centre. Clause 47 provides that the quantity of property that an inmate may keep in their cell is not to exceed the quantity the Governor may determine. Clause 48(3) permits the Governor of a Correctional Centre to confiscate any electronic device of an inmate if the Governor is of the opinion that it contains anything that is likely to prejudice the good order and security of a Correctional Centre.

3. [28]

   Section 233(2) of the Act provides that the Governor of a Correctional Centre is subject to the direction and control of the Commissioner; so too are other staff of Corrective Services NSW by reason of the provisions of s 235(2) and s 235B of the Act. Hence, the Commissioner is empowered to give lawful directions, such as those the subject of these proceedings.

4. [29]

   It can be observed from the terms of the Act and the Regulation that considerable latitude and discretion is permitted to the Commissioner and the Governor of a Correctional Centre as to what possessions an inmate has available to them in their cell, and whether or not those possessions ought include a laptop computer, and what configuration that laptop computer may have.

5. [30]

   The Commissioner’s submissions went on to draw attention to a number of legal principles applicable to these proceedings.

6. [31]

   First, the Commissioner reminded the Court that on an application for judicial review of an administrative decision, it was not open to the Court to review the merits of the administrative decision.

7. [32]

   Secondly, the Commissioner then drew attention to the particular position, insofar as prisoners were concerned, and submitted that, generally speaking, courts are “… reluctant to interfere in the discipline, administration or management of prisoners”: Modica v Commissioner of Corrective Services (1994) 77 A Crim R 82 at 88, at least because:

8. [33]

   Thirdly, the Commissioner’s submissions took the Court, at some length, to the decision of the Court of Appeal in Clark v Commissioner for Corrective Services [2016] NSWCA 186, in support of the proposition that relief could only be granted if the Commissioner acted in bad faith or for an improper purpose.

Discernment

1. [34]

   Clark was an appeal from a refusal by a single judge on a judicial review application to uphold Mr Clark’s claim. Mr Clark claimed orders by way of judicial review dealing with his classification, his need to be in a cell alone, his entitlement to have his laptop computer and 11 tubs containing legal documents with him in his cell, an entitlement to have specified furniture and computer monitor of a particular size in his cell, and that he be examined by a suitably qualified psychiatrist.

2. [35]

   Mr Clark claimed a need for the orders sought so that he could properly prepare for litigation which was on foot, particularly in the Court of Criminal Appeal. Emmett AJA, with whose reasons Simpson JA agreed, said this:

3. [36]

   Emmett AJA at [91] concluded:

4. [37]

   The reference, in this final paragraph, to the exercise of managerial powers by prison authorities being reviewable only for bad faith or improper purpose, arises from a number of authorities in this and other States.

5. [38]

   In McEvoy v Lobban [1990] 2 Qd R 235 at 240-241, the Full Court of the Supreme Court of Queensland considered issues including the circumstances in which a Court would intervene, by way of judicial review or similar relief, with discretionary decisions of prison authorities which could properly be regarded as management decisions. There, Thomas J (with whom McCrossan CJ and Lee J agreed) said:

6. [39]

   Dunford J in Modica v Commissioner of Corrective Services (1994) 77 A Crim R 82 at [87] followed Lobban, saying:

7. [40]

   Schmidt J in Patsalis v New South Wales [2012] NSWSC 178 at [21] also followed this line of authority, saying:

8. [41]

   In McKane v Commissioner of Corrective Services of NSW [2015] NSWSC 737, Button J said the following at [55]-[56]:

9. [42]

   Like Button J in McKane, this Court has not had the assistance of any argument being put to challenge these statements of principle by a knowledgeable and competent counsel. As well, a careful reading of Flynn indicates that it was not a case concerned with judicial review of any particular administrative decision. The original proceedings before the Supreme Court of Western Australia sought a writ of habeus corpus. The lawfulness of the applicant’s detention was considered by the High Court of Australia by reference to the construction of the Prisons Act 1918 (WA), and the Prison Regulations 1982 (WA). There is a question in my mind as to whether that judgment is applicable to the circumstances here, and as to whether the gloss apparent in Lobban on a court’s power to grant judicial review remains valid today.

10. [43]

    And so, in the circumstances of these proceedings, I prefer to proceed upon the basis that the Court is being asked to exercise its power of judicial review in circumstances where the Commissioner has available a very wide discretion with respect to the conditions of custody of prisoners, and that such wide discretion is contained within the statutory structure to which reference has been made: Clark at [84]-[85].

11. [44]

    It is therefore unnecessary in the course of this case to determine whether or not judicial review arising from decisions of custodial authorities affecting prisoners is limited to cases of bad faith or improper purpose, a submission about which there may be some further debate.

12. [45]

    In particular, I note, and entirely agree with, the remarks of Basten JA in Clark at [10]-[11], where he said:

13. [46]

    In considering the exercise of the discretion in this case, the security concern factors addressed by the Commissioner in his decision cannot be said to be inherently implausible, nor unreasonable. As Basten JA said in Clark, within the custodial setting, rules of general application can properly be applied with limited scope to take into account individual circumstances.

14. [47]

    That is because while a request by an individual inmate for particular provision, here the plaintiff asking to be able to write and edit documents on a computer in his cell, may be entirely reasonable, a refusal to grant that request may not, in a custodial setting, be either unlawful or unreasonable. The granting of an exemption to one prisoner giving rise to a perception of preferential treatment may in fact be harmful to the security of the prison generally and may detrimentally affect the individual’s personal safety.

15. [48]

    Here the plaintiff had to show that the decision of the Commissioner was unreasonable in the sense described as constituting legal unreasonableness, i.e. a decision that no reasonable decision-maker could have made or, alternatively, that there had been some error of law by failing to take into account a relevant factor or taking into account an irrelevant factor, before the Court would contemplate intervening.

16. [49]

    In my view, the plaintiff has not demonstrated that the decision, the subject of these proceedings, was unreasonable or constituted any error of law. The Commissioner did not fail to take into account the appropriate factors and he did not take into account any fact, matter or circumstance which it was legally impermissible for him to do. This decision is one which fell, classically, within the range of discretionary decisions available to the Commissioner.

17. [50]

    Here, in not permitting the plaintiff to have in his cell a laptop computer with write and edit functionality, the Commissioner was simply applying the broad policy denying inmates laptop computers which had such functionality. The general security concerns amply justified such a policy and its application in this case. The second part of the decision to provide the plaintiff with access to green computers for the purpose of his court cases was in fact an entirely favourable exercise of discretion to the plaintiff. The fact that it did not go as far as the plaintiff wanted did not make it an unlawful or unreasonable decision.

18. [51]

    It follows from this analysis that if the plaintiff was obliged to show that the Commissioner failed to act in good faith, or that he acted for an improper purpose, then he has wholly failed to do so. There was no evidence to demonstrate that either of these matters was established. No inference was available to be drawn which supported such a finding.

19. [52]

    It follows that the proceedings cannot succeed and must be dismissed.

Orders

1. [53]

   I make the following orders:

   1. (1)

      Amended Summons filed 13 October 2017 dismissed.

   2. (2)

      Plaintiff to pay the defendant’s costs.