Bernard-Ross v State of NSW

The Plaintiff's Need to Prepare Legal Documentation

1. 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. 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. 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. 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. No appeal or application for leave to appeal against conviction has ever been brought by the plaintiff to the Court of Criminal Appeal.
6. 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. 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. 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. 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. 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. 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. 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: 1. Crimes (Administration of Sentences) Act 1999 (NSW); and 2. Crimes (Administration of Sentences) Regulation 2014 (NSW)
2. 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. 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. 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. The Commissioner's submissions went on to draw attention to a number of legal principles applicable to these proceedings.
6. 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. 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: "… the management of prisons is a particularly difficult and sensitive task involving the complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of the Court surroundings." See: Fyfe v South Australia [2000] SASC 84 at [18]; Flynn v The King (1949) 79 CLR 1 at 8.
8. 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. 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. 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: "84. A distinction must be drawn between complaints as to the merits of a particular decision on the one hand, and a complaint that the decision went beyond what was open under the relevant legislation, on the other. That distinction does not deny the applicability of judicial review, but recognises the breadth of the discretion legitimately open to those responsible for making decisions such as those challenged … Ultimately, the ambit of the legitimate discretion of prison authorities is a matter of statutory construction. However, such legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the Courts. 85. Statutes governing discipline and control of prisoners in jail should not be construed as if they were intended to confer fixed legal rights upon prisoners. That is not to say that judicial review is unavailable, rather that the relevant legislation is indicative of Parliament's intention that those responsible for the maintenance of prison administration and management should be given a broad discretion commensurate with the nature of the task and the balancing of potentially conflicting considerations. Thus the Court has the power to grant public law remedies if it can be established that the relevant body conferred with power or functions exceeded authority, failed to perform some duty imposed by law or threatens to do so. However, those remedies are not a means of reviewing the merits of administrative action."
3. Emmett AJA at [91] concluded: "Mr Clark has not established that there has been any bad faith or improper purpose on the part of the Commissioner in relation to the various decisions that have been made that are the subject of complaint in the originating Summons. There is no basis for concluding that the Commissioner, or his officers, have exceeded their powers or have declined to exercise powers that should be exercised in the decision-making process involving the circumstances of Mr Clark's custody. I am not persuaded that any basis has been demonstrated for the grant of any remedy under s 69 of the Supreme Court Act."
4. 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. 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: "In short, the type of decision that was taken in the present case was not of the kind which the law requires to be exercised in accordance with the rules of natural justice. I do not rule out the possibility of review, but I find it impossible to envisage any legitimate involvement of the courts and the review of the bona fide acts performed by persons involved with the administration of prisons in the course of steps taken to avoid a breach of the peace. Steps taken to punish a prisoner are something different and naturally may attract review."
6. Dunford J in Modica v Commissioner of Corrective Services (1994) 77 A Crim R 82 at [87] followed Lobban, saying: "Generally, the Court will be reluctant to interfere in the discipline, administration or management of prisoners: Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 328 citing Flynn (1949) 79 CLR 1 at 7. The Court refused to intervene in relation to the hours of confinement of prisoners … but there is authority that the decisions relating to individual prisoners are subject to judicial review if made in bad faith or for improper purposes: McAvoy v Lobban [1990] 2 Qd R 235 at 240 …"
7. Schmidt J in Patsalis v New South Wales [2012] NSWSC 178 at [21] also followed this line of authority, saying: "21. In considering the parties' competing cases, what was observed in Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 must not be overlooked. There it was held that generally the Court will be reluctant to interfere in the discipline, administration or management of prisoners, but that decisions relating to individual prisoners are subject to judicial review, if made in bad faith or for improper purposes."
8. In McKane v Commissioner of Corrective Services of NSW [2015] NSWSC 737, Button J said the following at [55]-[56]: "55. Secondly, I think there is force in the submission of the defendant (bearing in mind that I did not have the benefit of hearing from a contradictor experienced in administrative law) that, as a matter of statutory interpretation of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act), these decisions made in the course of the administration of a prison should, unless unusual circumstances are demonstrated, only be the subject of review if the plaintiff can establish bad faith or improper purpose on the part of the decision maker, or 'Wednesbury unreasonableness' in the decision itself: see McEvoy v Lobban [1990] 2 Qd R 235, 241 (Thomas J, with whom Macrossan CJ and Lee J agreed). 56. Thirdly, the authorities have repeatedly emphasised that, again as a matter of statutory interpretation, a judicial officer should be slow to interfere with administrative decisions taken by those tasked with running prisons: see Flynn v The King (1949) 79 CLR 1, 8 (Dixon J, as his Honour then was); Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7] (McInerney J)."
9. 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. 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. 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. In particular, I note, and entirely agree with, the remarks of Basten JA in Clark at [10]-[11], where he said: "10. Further, there has been a notable expansion in the scope of judicial review of administrative action. Limits on review are now defined by reference to the scope of the discretion given to the decision-maker, rather than by declaring particular areas of administrative action to be beyond judicial control. The focus is on the scope and exercise of the statutory power, rather than identifying the legal "right" which has allegedly been infringed. There is also an expectation that decisions which may infringe on rights or interests be justifiable. 11. Bearing those factors in mind, the availability of judicial review of the conditions of custody must flow from a careful analysis of the statutory and regulatory scheme to which prisoners are subject."
13. 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. 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. 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. 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. 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. 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. It follows that the proceedings cannot succeed and must be dismissed.

Orders

1. I make the following orders: 1. Amended Summons filed 13 October 2017 dismissed. 2. Plaintiff to pay the defendant's costs.

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