Applicant v Proposed First Respondent Proposed Second Respondent

1 Julian Knight (the 'applicant') is a prisoner at Port Phillip Prison and is currently serving a term of imprisonment for the murder of seven people and attempted murder of numerous others in Hoddle Street, Melbourne on 9 August 1987. He was sentenced to life imprisonment with a minimum term of 27 years. He becomes eligible for parole in 2014.

2 In 2004, the applicant was declared a vexatious litigant and therefore requires leave of the Court to commence any proceeding.[1] He seeks leave pursuant to s 21(4) of the Supreme Court Act 1986 (Vic) (the 'Supreme Court Act') to commence proceedings against each of the proposed respondents, Ms Jan Shuard in her capacity as Commissioner of Corrections Victoria (the 'Commissioner') and Mr Ian Thomas in his capacity as General Manager of Port Phillip Prison (the 'Manager') (together, 'the respondents').[2]

3 The applicant seeks a mandatory injunction ordering that the respondents release and post three letters written by him to various media outlets (one sent on 23 April 2013 and two sent on 28 April 2013) which were intercepted by the Manager, prior to being posted.

4 The applicant submits that the interception of those letters by the Manager, and the blanket policy instituted by the Commissioner banning prisoner communication with the media, infringes upon:

(a) his statutory right to send and receive letters uncensored by prison staff pursuant to s 47(1)(n) of the Corrections Act 1986 (Vic) (the 'Act_'_);

(b) his statutory right to freedom of expression and to take part in public life pursuant to ss 15 and 18(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the 'Charter'); and

(c) his implied right to political communication pursuant to the Australian Constitution (the 'Constitution').[3]

5 Section 21(4) of the Supreme Court Act provides that 'leave must not be given unless the Court...is satisfied that the proceedings are not or will not be an abuse of process of the Court'.

6 The principles governing the determination of an application for leave to commence proceedings are helpfully set out by Bell J in Knight v Anderson:[4]

The interpretation and application of s 21(4) [of the Supreme Court Act] were dealt with by the Court of Appeal in its recent decision in Phillip Morris Ltd v Attorney General (Vic).[5] That case decided s 21(4) operated to confer a discretion to grant leave which is enlivened after the court becomes satisfied the proceeding would not be an abuse of process.[6] The onus is on the applicant to so satisfy the court.[7] In considering whether a proceeding would be an abuse of process, it is sometimes relevant to consider its prospects of success, but in a strictly limited respect. The issue is whether the proceeding is foredoomed to fail, not whether it has reasonable grounds.[8]

7 The Court cannot exercise its discretion pursuant to s 21(4) of the Supreme Court Act unless the applicant satisfies the Court that the proceeding in respect of which leave is being sought is not or will not be an abuse of process by reason of it being foredoomed to fail.[9] If that question is answered in favour of the applicant, the Court's discretionary power to grant leave is enlivened.

8 The respondents submit that the proposed proceeding is an abuse of process as it is foredoomed to fail. For the reasons set out below, I am of the view that the proceedings are foredoomed to fail such that they are an abuse of process and, for that reason, leave should not be granted. No question of the exercise of discretion arises.

9 The control of prisoner communication is regulated by Division 4 and 4A of Part 6 of the Act.

10 Section 47(1)(n) of the Act provides for (subject to s 47D) the right to send and receive other letters uncensored by prison staff.

(1) This section applies if the Governor[10] reasonably believes that any letter to be sent by a prisoner to, or sent to a prisoner by, any person who is not listed in section 47(1)(m)[11] -

(ab) in the case of a letter sent by a prisoner to another prisoner or a former prisoner, may be a threat to the good order, management or security of a prison or prisoner; or

(ac) in the case of a letter sent to a prisoner by another prisoner or a former prisoner, may be a threat to the good order, management or security of a prison or prisoner; or

(b) may be of a threatening or harassing nature; or

(c) may be being used to further an unlawful activity or purpose; or

(d) contains indecent, abusive, threatening or offensive written or pictorial matter, or written or pictorial matter that may be regarded by a victim as distressing or traumatic, or an indecent, obscene or offensive article or substance; or

(a) if the belief concerns the whole letter, stop the letter from being sent or received by the prisoner; or

(b) if the belief concerns only part of a letter, cause the relevant part of the letter to be censored.

A prisoner must not send or cause to be sent, or attempt to send or cause to be sent, a letter to a victim who is not listed in section 47(1)(m) if the prisoner knows, or ought reasonably to know, that the letter contains written or pictorial matter that may be regarded as distressing or traumatic by the victim or any other victim who might reasonably receive it.

13 Section 47AA of the Act defines 'victim' to mean:

(a) a natural person who has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of an offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender; or

(b) a family member of a person to whom paragraph (a) applies.

14 Section 13(a) of the Charter states that 'a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with'.

15 Section 15 of the Charter provides:

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary -

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

16 Section 18(1) of the Charter states that 'every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives'.

17 In considering the appropriateness of the Manager's decision to intercept the three letters written by the applicant, which are the subject of this application, it is necessary to have an understanding of the nature and content of the letters.

18 I will only describe the contents of the letters as much is as necessary for my judgment to be understood.[12]

19 The first letter, dated 23 April 2013 and addressed to 'Manager ABC Program Sales', contains a request to purchase:

(a) a copy of the ABC television documentary 'Hoddle Street';

(b) a copy of any unaired interview footage from that documentary (to support a submission to the Defence Abuse Response Task Force);

(c) footage of any interviews with army personnel that took place after the Incident;

(d) any unaired footage of the Incident itself; and

(e) copies of the ANZAC day marches in Melbourne between 1983 and 1985.

20 The second letter, dated 28 April 2013 and addressed to Mr Jonathan Holmes of Media Watch, enquires as to whether Mr Holmes or the ABC would be interested in conducting an interview with the applicant to discuss matters 'that are in the public interest given that the Victorian State Government has made [the applicant's] release a political issue, [and that the applicant is] prepared to speak publicly on matters that are in the public interest'.

21 The third letter, dated 28 April 2013 and addressed to journalist Mr James Campbell of the Herald Sun, followed a previous letter sent to Mr Campbell on 8 May 2012, and in response to Mr Campbell's article entitled 'Knight's jail stay' published 3 April 2013 in the Herald Sun. In this letter, the applicant raises concerns about how he is being portrayed in the media, and how his sentence, and eligibility for parole, has become a political issue. He compares his situation and offences with other murderers who have been released following terms of imprisonment.

22 Section 47(1)(n) of the Act (subject to s 47D) establishes that the applicant has the right to send and to receive letters uncensored by prison staff. The decision of the Manager to intercept the letters pursuant to s 47D of the Act was based on his assessment that the letters contained material which, if published or further circulated, could represent a threat to prison security[13] and could be regarded by the applicant's victims as distressing and traumatic.[14]

23 The power of the Manager to intercept the applicant's letters under the Act is not unfettered. Pursuant to s 47D(1), that power is conditional upon the Manager 'reasonably believing' that the letter falls within a category contained in sub-paragraphs (a) - (e) of this section. In essence, the Manager is only entitled to intercept a letter when he holds a subjective belief that one of these categories applies and that belief is objectively reasonable.

24 In Knight v Corrections Victoria, [15] Vickery J stated:

The threshold for the level of satisfaction on the part of the Governor provided for under s 47D of the [Act] is set to a deliberately low level in order to give effect to the purposes of the legislative provision as reflected in the second reading speech and the [Charter] statement of compatibility at the time of its introduction. A construction which promotes the purpose or object underlying the legislation is to be preferred to a construction which does not.[16]

25 The respondents submit that the letters seized by the Manager fell within the scope of s 47D(1)(a) and (d) of the Act. The respondents further submit that where evidence exists that the Manager holds a belief that the letters can be intercepted pursuant to that section, and the belief was reasonable in the circumstances, he has done all that is required.

26 The reasons for the Manager's decision to intercept the letters are explained in his affidavit of 9 September 2013.

27 The reasons of the Manager concerning the letter of 23 April 2013 included:

(a) the unedited/unaired video footage would have to be reviewed by staff at Port Phillip Prison, such materials had the potential to be very distressing and could affect the security and good order and management of Port Phillip Prison;

(b) the denial of access to the video footage would not prevent Mr Knight pursuing a submission to the Defence Abuse Response Task Force;

(c) the material may be regarded as being distressing to victims;

(d) there was the potential, if the material was introduced into the prison environment, to upset the delicate balance of the prison population and create a risk of the crime being glorified in the prison - 'Real time footage of a violent crime of the nature of which the applicant was convicted or footage from a documentary regarding a notorious crime in the history of the State of Victoria is inappropriate material to be available to prisoners in a maximum security prison'.[17] Mr Thomas stated that if the letter had been written by any prisoner seeking footage of such a crime, the letter would have been intercepted.

28 The Manager's reasons concerning the letter of 28 April 2013 to Mr Holmes included that:

(a) in the letter the applicant indicated his preparedness to speak publicly with Mr Holmes of 'Media Watch' and producer and narrator of the ABC documentary called 'Hoddle Street' on matters the applicant considered were in the 'public interest' concerning his release from prison. The Manager expressed concern that such discussion would raise matters about a notorious crime, re-introduce those matters into the media and cause distress and harm to the applicant's victims.

29 The Manager's reasons concerning the letter of 28 April 2013 to Mr Campbell of the Herald Sun included that:

(a) the written material in the letter concerning the applicant's crime and sentencing may be regarded by Mr Knight's victims as distressing and traumatic;

(b) comparison of the applicant's crimes with other prisoners, including those who have killed whilst on parole, may be distressing to victims, as well as to the victims of the crimes of other prisoners, some of which involve high profile murderers in Victoria; and

(c) the letter, once with the media, could not be controlled and thus the Manager held a concern as to how material in the letter may be reported and published.

30 In considering s 47D(1) of the Act and the exercise of power by the Governor to intercept letters, Bell J stated in Knight v Selisky:[18]

The power of interception is conditional upon the Governor 'reasonably believing' that the letter comes within a category in paragraphs (a) - (e). This requires the Governor to have a subjective belief that a category applies and that belief to be objectively reasonable. Only then may the letter be stopped.[19]

31 I have carefully considered the letters of the applicant and the reasons of the Manager for intercepting the letters. The reasons of the Manager for intercepting the letters fall within categories of s 47D(1)(a) - (e) of the Act and his subjective reasons are, in my opinion, objectively reasonable. In summary:

(a) concerning the letter of 23 April 2013, the reasons for the Manager's belief that real time footage of the violent crime is inappropriate material to be available to prisoners in a maximum security prison as there is a risk of the crime being glorified in the prison is, in my opinion, objectively reasonable;

(b) concerning the letter of 28 April 2013 to Mr Holmes, the reasons for the Manager's belief that the applicant's offer in the letter to make himself available from prison for television interview on matters he believed were in the public interest concerning the Hoddle Street murders and his release from prison may be regarded by a victim of his crimes as distressing or traumatic is objectively reasonable; and

(c) concerning the letter of 28 April 2013 to Mr Campbell of the Herald Sun, the reasons for the Manager's belief that the uncontrolled publication of the contents of the letter or parts of it, including comparison by the applicant of himself and his crime with other murderers and their crimes and his commentary as to his risk of violent re-offending, may be regarded by a victim of his crimes as distressing and traumatic, in my opinion, is also objectively reasonable.

32 In reaching his conclusions concerning the interception of these letters, the Manager considered each letter on the basis of its contents and his powers under the Act. Specifically, the Manager states he did not refer to or rely on any policy in place at Port Phillip Prison at the time of his decision making.[20] In my opinion, the attack the applicant makes on the decision making of the Manager is foredoomed to fail.

33 The applicant made a number of submissions as to why the interception of the letters was not warranted on the grounds the correspondence could not be construed as a threat to prison security. I do not agree with the submissions of the applicant. The reasoning of the Manager as to the undesirability of documentary and real time video footage of a violent crime in the prison are in my opinion reasonable. It is not for judges, save in the most obvious of cases, to supervise or interfere with the administrative decisions of prison authorities concerning the conduct of prisons and prisoners. While acknowledging that prisoners are in a position of particular disadvantage and any abuse of power by prison authorities is unacceptable '...the Court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the court is not familiar and it is difficult to understand or fully appreciate from the comfort of court surroundings'.[21]

34 The applicant stated that the Government had raised his name in the media and he was attempting to respond, and by withholding the letters the respondents were in effect muzzling him from making a statement in any forum that is liable to upset victims. Whilst the evidence relied upon by the applicant points to public commentary concerning his parole, such commentary does not make available to the applicant a mechanism for circumventing the power of the Manager to intercept letters when the Manager holds a reasonable belief the contents of the letters may be regarded by a victim as distressing or traumatic; that there is such a public commentary concerning the potential parole of the applicant is not in my opinion a factor necessarily relevant to the manner in which the Manager forms his opinions under the Act.

35 The applicant submits that the policy instituted by the Commissioner and adopted by Port Phillip Prison, involving a blanket ban on prisoners communicating or corresponding with media organisations, infringes upon his rights under ss 13(a), 15 and 18(1) the Charter.

36 Prisoner communication in Victoria is regulated by a number of different policies of Corrections Victoria. The applicant referred me to Part 3 of Deputy Commissioner's Instruction No 4:07: Prisoner Communications concerning 'Media Contact', which states that 'prisoners are not permitted to initiate contact with media organisations under any circumstances'.

37 The applicant also referred me to the Port Phillip Prison Operational Instruction No 85: Mail Searching Procedures, which states that 'prisoners are not permitted to correspond with media organisations under any circumstances'.

38 As noted above, the Manager in his affidavit has sworn the decision to intercept the letters was made after considering the contents of each letter in accordance with his powers under the Act, and not pursuant to any policy of Corrections Victoria. Accordingly, the respondents submit the Court is not required to make a determination as to the legality of the policy, because its application is not relevant in the circumstances. I agree with this submission. I do not propose to embark on a legal analysis concerning the implications of policies of Corrections Victoria in circumstances where such analysis has no relevance to the reasons for my decision in this matter.

The Constitution

39 The applicant contends that he has an implied right to political communication pursuant to the Constitution, which has been infringed by the interception of the letters. The applicant submits that his letters have a political connection due to his release from prison being of itself a political issue.

40 The Constitution does not protect a personal right to political communication, but rather imposes a restraint on legislative power that would restrict a person's right to engage in political communication.[22] The central question is: how does the impugned law affect the freedom,[23] and if it does, is the provision reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the prescribed system of representative government?[24]

41 I turn to the second limb of the test referred to above. Assuming, for the purposes of addressing the applicant's submission, that s 47D of the Act restricts his freedom to engage in political communication, it must then be decided whether the provision is a reasonably appropriate, adapted or proportionate measure. In my opinion it is. The power conferred on the Manager is directed at preventing prisoners from sending letters that distress or traumatise victims of crime or threaten prison security. The power is limited by reason of the fact that the Manager must believe on reasonable grounds that the letter may cause such an outcome(s). Further, this power does not explicitly restrict the writing of letters of a political nature, and s 47D of the Act is not a provision directed at restricting political communication, rather any such restriction is incidental to the proper operation of the section.[25] It is an appropriate and proportionate response to prevent the outcomes outlined in s 47D(1) of the Act for the Manager to intercept such letters. An application for a mandatory injunction to release and post the letters on this ground is, in my opinion, foredoomed to fail.

42 The applicant's proposed proceeding to seek a mandatory injunction ordering that the respondents release and post three letters intercepted by Port Phillip Prison would be an abuse of process on the basis that it is foredoomed to fail.

43 The Manager, when intercepting the letters, correctly exercised his power pursuant to the Act by holding a reasonable belief that the contents of the letters may be regarded by a victim as distressing or traumatic, and may represent a threat to prison security. The Manager did not take into account any prison policy, such that the implications of those policies on the rights of the applicant pursuant to the Charter are irrelevant on the facts. Further, the power conferred on the Manager pursuant to s 47D of the Act is an appropriate and proportionate measure which does not infringe on any implied right to political communication.

44 For the reasons set out above, Mr Knight's application for leave to commence the proposed proceeding under s 21(4) of the Supreme Court Act is refused.

[1] Supreme Court Act 1986 (Vic) s 21(3).

[2] By way of Originating Motion and Summons (together with supporting Affidavit) dated 2 July 2013.

[3] Mr Knight also seeks a declaration that the provisions of s 47D(1) of the Corrections Act 1986 (Vic) (the 'Act') are invalid to the extent that they infringe the implied right to political communication pursuant to the Constitution.

[4] [2007] VSC 278; (2007) 16 VR 532 at 534.

[5] [2006] VSCA 21; (2006) 14 VR 538.

[6] Ibid at 541 (Maxwell P, with Ormiston and Eames JJA in agreement).

[8] Ibid at 556 (Maxwell P, with Ormiston and Eames JJA in agreement).

[9] Knight v Anderson [2007] VSC 278; (2007) 16 VR 532 at 534, [7] (Bell J); Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ); Phillip Morris Ltd v Attorney General (Vic) [2006] VSCA 21; (2006) 14 VR 538 at 541 (Maxwell P, with Ormiston and Eames JJA in agreement).

[10] Mr Thomas as General Manager of Port Phillip Prison holds authority from the Department of Justice to perform and carry out all of the functions, powers and duties of a 'Governor' under the Act. The authority is issued pursuant to s 9A of the Act: see Affidavit of Mr Thomas sworn 9 September 2013 ('Thomas Affidavit') at [2].

[11] The categories of persons listed in s 47(1)(m) are not the intended recipients of Mr Knight's letters.

[12] See also reasons of Bell J in Knight v Selisky [2012] VSC 635 at [13], involving a similar application.

[15] [2009] VSC 607.

[18] [2012] VSC 635.

[20] Further Affidavit of Mr Thomas sworn 9 May 2014 at [3] - [4].

[21] Fyfe v South Australia [2000] SASC 84 at [18] (Martin J).

[22] Unions NSW v New South Wales [2013] HCA 58 at [31] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[24] Unions NSW v New South Wales [2013] HCA 58 at [44] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[25] Wotten v Queensland (2012) 246 CLR 1 at 16, [30] (Heydon J).