Clark v State of New South Wales & Ors

Judgment 1The plaintiff, Peter Frederick Clark, is a prisoner. He is not legally represented, but is a litigant of considerable experience. I recently made orders in relation to proceedings for damages which he had instituted in this court in 2002 and 2005: Clark v State of New South Wales; Clark v Robards & Ors [2014] NSWSC 742. I dismissed the 2005 proceedings, but allowed the 2002 proceedings to remain on foot provided that he complied with the terms of leave earlier granted to him by the Court of Appeal to file an amended statement of claim in them. Apart from those proceedings, he has also been for some time preparing an appeal to the Court of Criminal Appeal against his conviction in the District Court of a number of counts of sexual assault and the sentences imposed. It is those sentences which he is currently serving. 2He has commenced fresh proceedings in this court by way of summons, seeking various orders in respect of his current custody: orders relating to his classification and placement within the prison system, to his access to his legal documents and computer facilities, and for the provision in his cell of a television and certain items of furniture. In addition, he seeks an order for a comprehensive medical/psychiatric examination and report, and the entry of a verdict of acquittal in respect of a prison discipline charge for which he had been dealt with. 3There are six defendants: The State, The Attorney General, The Commissioner for Corrective Services, The Department of Corrective Services, the company which administers Parklea Correctional Centre, and Justice Health. Appropriately, only the 3rd defendant, The Commissioner for Corrective Services, appeared to contest the relief sought. The Commissioner was represented by Mr Adrian Williams of counsel, who had represented the State in the earlier matter to which I have referred. 4Mr Clark relies upon a sworn document which he describes as "combination of pleadings - evidence and submissions", together with some additional material in a supplementary unsworn statement. Mr Williams submitted that some of this material was irrelevant and that, generally, its form was objectionable. However, having noted these deficiencies, he did not object to my receiving it. This was a practical course. For his part, Mr Williams relied upon two affidavits of Mr Michael Hovey, the general manager of the investigation branch of Corrective Services NSW. The first had been prepared for the purpose of the matter which had earlier been before me, and the second for the present proceedings. 5Mr Clark has also furnished documents replying to the affidavits of Mr Hovey and to written submissions by Mr Williams. As a whole Mr Clark's documentation is lengthy, some of it repeating his account of his dealings with Corrective Services which he had given in the earlier matter. It is not necessary to refer to this material in any detail. He appears to be seeking some form of administrative law remedy in relation to the matters which he has raised, but the nature of the relief he seeks is not easy to classify. I shall refer briefly to each of the claims in his summons. 6Firstly, he seeks to set aside his classification to Goulburn Correctional Centre temporarily, so as to be held at a metropolitan correctional centre pending the finalisation of his court matters. Mr Hovey's second affidavit, prepared for these proceedings, reveals that he is currently subject to "long term classification" to Goulburn but, as a result of recommendations made by judges of this court, the department has endeavoured to hold him in a metropolitan facility. He is currently at Parklea. 7Secondly, he seeks to be kept in a cell alone. It appears from his material that he was at one stage in a cell with another inmate, but Mr Hovey's second affidavit reveals that he is currently in a cell alone. Generally, as Mr Hovey explained in his affidavit, for operational and security reasons the department must have a discretion as to the correctional centre where a prisoner is housed and as to whether he or she can be, or should be, confined in a cell alone. Mr Clark referred to a section of the Corrective Services NSW Operations Procedures Manual dealing with shared cells, but he does not identify how his present situation is said to be inconsistent with applicable policies. 8Thirdly, he seeks an order that, pending the finalisation of his court matters, he have his laptop computer and his tubs of legal documents with him in his cell. In his second affidavit Mr Hovey explained that his tubs of documents and laptop are kept in a locked storage room. In his first affidavit he deposed that there is a restriction on the volume of paperwork allowed to be kept in a cell, because it is a fire risk and creates difficulties during a security search. Mr Clark is permitted to have three tubs in his cell at any one time, but the remaining tubs can be "rotated at his request." 9He can gain access to his computer but it is to be used in a specified computer access room. Because of the demand for that room by other prisoners, he cannot be guaranteed access to it on a daily basis. For a period in 2012 he had had his laptop in his cell at the MRRC, but in November of that year it was removed from the cell in circumstances to which I shall refer when dealing with his fifth claim. 10Allied to these three claims are the fourth and seventh claims. The fourth seeks an order that he be allowed to purchase an LED-LCD monitor/TV not larger than 24 inches in size to be used in his cell. The seventh is that he be issued with a chair, desk and/or table in his cell. The monitor he seeks is larger than the department would permit, but he says that he needs it because of problems with his eyesight as a result of an assault upon him by another prisoner. He would use the monitor for reading transcripts and case law which he has stored on CD. It could also be used as a television. He seeks the chair and desk or table to facilitate the use of his laptop computer. 11Mr Hovey explained in his first affidavit that there are security concerns about the issue of a large screen monitor. For example, equipment of that kind could be used to conceal prohibited items such as drugs or weapons. Moreover, the department "attempts to standardise the items that inmates are able to access for their own safety in custody." In his second affidavit he pointed out that no desk or chair is provided in Mr Clark's present accommodation in a segregation facility. 12Mr Clark's complaints about matters of this kind are longstanding. For the purpose of the proceedings for damages he instituted in 2005, he made a similar application concerning access to a computer and related facilities, which I refused: Clark v Robards (Hidden J, unreported, 19 October 2007). In relation to the same proceedings he made a further application before Harrison J, seeking liberal access to a computer and his legal documents, and to be housed in a cell alone. That application was also refused, although his Honour recommended that he should have such access to facilities as were "administratively and physically possible": Clark v Robards (Harrison J, unreported, 26 November 2009). 13Yet again, in 2010 he made an application for review of a number of departmental decisions, so as to obtain permission to retain his legal documents and to have daily access to a computer in his cell, as well as a "legal hold" enabling him to remain at the MRRC pending the finalisation of his court proceedings. This application was refused by Latham J: Clark v State of New South Wales (Latham J, unreported, 30 August 2010). 14Her Honour noted (at p2) that "the scheme established by the Crimes (Administration of Sentences) Act 1999 and the regulations thereunder grant the Commissioner for Corrective Services and his delegates a very wide discretion in the management of correctional facilities." Importantly, she also noted that in the summons founding those proceedings he did not "identify any ground of review that is contemplated by s 69 of the Supreme Court Act." She concluded: "As I have sought to demonstrate by a brief summary of the plaintiff's complaints, they appear to be general complaints about the merits of the decisions that were taken and the impact of those decisions on the plaintiff's capacity to prepare for trial. The plaintiff is unable to demonstrate any error or any basis upon which the Commissioner or his delegates have refused to make decisions that were clearly open to them under the Act or that any decision they have made is so unreasonable that no reasonable person in their position could have made it." 15Her Honour added that, in so far as Mr Clark asserted that the matters of which he complained impaired his right to a fair trial, the proper remedy was "to make those complaints known to the particular trial judge and to seek to have those matters redressed..." In that context she cited Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317. 16Those observations of Latham J which I have quoted are apposite in the present case. The many complaints in Mr Clark's material about the problems he faces with access to facilities for the preparation of legal documents because of his custodial status amount to no more than criticism of the merits of various departmental directions. Among other things, he complains that he does not currently have benefits which he did have previously, and is deprived of benefits which some other prisoners enjoy. He also alleges that some of his treatment is the product of improper motives on the part of some officers because of proceedings for damages he had brought against the department, relying upon an observation of Dunford J in Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87 that "there is authority that the decisions relating to individual prisoners are subject to judicial review if made in bad faith or for improper purposes... ." However, this allegation does not rise above a bare assertion and is unsupported by any evidence. 17What Mr Clark seeks is the assurance of optimal conditions for the pursuit of his litigation. The department, of course, is under no such obligation, and there is nothing in the material before me to suggest that he is subject to anything other than the routine arrangements and discipline characteristic of imprisonment. The orders he seeks appear to be expressed in terms of certiorari and mandamus, but he has failed to establish any basis for a remedy of that kind. 18The reluctance of courts to intervene in prison administration and management is the subject of a number of authorities, conveniently summarised by McInerney J in Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7] ff. At [11] his Honour said: "The exercise of powers relating to prisoner classification and separation, the transfer from one part of a prison to another, transfers between prisons, conditions on visits or access to certain conditions or facilities such as education, recreation and supply of condoms have all been characterised as administrative and managerial in nature rather then punitive and judicial. Consequently, they have been held not to give rise to any right, interest or legitimate expectation enforceable by judicial review in the ordinary courts. For example, see Smith v Commissioner of Corrective Services (1978) 1 NSWLR 317; Walker v The Queen (1992) 60 A Crim R 463; Gray v The Queen (1990) 45 A Crim R 364; and Prisoners A-XXX inclusive (1935) 38 NSWLR 622." 19However, Mr Clark relies on other authorities cited by McInerney J in the judgment. At [15] his Honour referred to Leech v Governor of Parkhurst [1988] AC 533 as "authority for the proposition that a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication and in particular his right of an impeded access to the courts." His Honour added at [16]: "In Raymond v Honey (1982) 1 All ER 756 Lord Bridge of Harwich said (at 762): "I gratefully adopt the summary of the facts set out in the speech of my noble and learned friend Lord Wilberforce and his statement of the two basic principles to be applied: first, that any act done which is calculated to obstruct or interfere with the due course of justice, or the lawful process of the courts, is a contempt of court; second, that a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. To these I would add a third principle, equally basic, that a citizen's right to unimpeded access to the courts can only be taken away by express enactment"." 20I shall return to Leech v Governor of Parkhurst when dealing with another of Mr Clark's claims. Raymond v Honey was a case in which the governor of a prison was found to be in contempt of court because he prevented a prisoner from submitting a written application to the High Court challenging certain administrative actions taken in respect of him. 21Nothing in the present case conveys a denial of Mr Clark's right to access to the courts. No doubt, prison discipline and the particular circumstances of Mr Clark's present custodial situation make it difficult for him to conduct the proceedings in which he is involved. Nevertheless, it has been my observation, and that of other judges of this court, that he is capable of generating a large amount of documentation when the occasion requires. Reasonable latitude should be, and in the past has been, allowed to him because he is not at liberty. That, however, is a matter for the judges and the registrars dealing with his litigation. It is not a warrant for this court to dictate to the Department of Corrective Services how he should be managed within the prison system. 22It is convenient at this point to deal with Mr Clark's sixth claim, which seeks an order for "psychiatric examination evaluation and report to be prepared by Dr Bruce Westmore ... or other suitably qualified psychiatrist for this court on the plaintiff, including what, if any, the impact and/or effect of his conditions of custody are exacerbating any medically diagnosed conditions." The basis upon which he seeks such an order is not at all clear. His material suggests that he has medical or psychiatric conditions and it is desirable that he be housed in a cell alone. As I have said, he currently is. In any event, nothing in his material could justify this court making such an order. 23Mr Clark's fifth claim is an order setting aside his conviction and sentence for a disciplinary offence, the entry of an acquittal and an order that the record of the offence be expunged from his departmental files. 24Mr Hovey's first affidavit reveals that on 17 November 2012, officers at the MRRC, where Mr Clark was then being held, discovered that he had reproduced an official departmental document, contrary to a particular Assistant Commissioner's Order. The document was an Inmate Request Form, in which he sought various steps to be taken to assist him with some litigation in which he was then involved. At this time he had his laptop in his cell but, as a result, it was removed. Records annexed to Mr Hovey's second affidavit disclose that two days later, on 19 November 2012, he was dealt with for a disciplinary offence arising from this conduct and was sentenced to five days cellular confinement, which was deferred subject to his being of good behaviour for 28 days. 25Mr Clark claims that on 17 November his laptop was seized and he was taken before his area manager to answer a charge. That area manager refused to tell him what the charge was, apart from the fact that it related to the Inmate Request Form. He pleaded not guilty, but, without being given an opportunity to be heard, was sentenced to five days confinement. 26He was asked if he wished to see the governor, and he said that he did. His account is that he was returned to his cell, as was his laptop. However, on the following day, 18 November, his laptop was again seized. On 19 November he was taken before the governor, who confirmed the conviction and the confiscation of his laptop, but substituted the order for 28 days of good behaviour. He requested a copy of the charge sheet, he says, but the governor refused to supply it. 27It is not necessary for present purposes to examine his account of how the Inmate Request Form came into being. It is sufficient to say that it was in circumstances which, according to him, did not amount to a disciplinary offence. 28This was one of the matters which he sought to pursue in the 2005 proceedings for damages which I dismissed. That, however, is not a bar to his pursuing the relief which he now seeks. Prison disciplinary offences are dealt with in Division 6 of Part 2 of the Crimes (Administration of Sentences) Act. No provision is made for an appeal against conviction by a governor of such an offence or the penalty imposed. However, the process is not immune from judicial review. So much was established in Leech v Governor of Parkhurst (supra), and Mr Williams did not suggest otherwise. 29Mr Williams pointed out that, by its terms, this claim asks the court to examine the merits of his conviction of the charge and is not expressed as an application for judicial review. Even if it were, he noted that it is well outside the three month time limit set by UCPR r 59.10 and no application for an extension of time is made. (He took the same point in relation to the other claims insofar as it was possible to identify a departmental decision and to determine the date upon which it was made.) He also noted that there is no evidence of the material which was before the governor and the process by which the charge was determined. 30All of this may be acknowledged. Nevertheless, the effect of Mr Clark's material appears to be that he was denied procedural fairness because he was not permitted to put his case in answer to the charge. Of course, if that were established this court might intervene. Upon reflection, I have concluded that he should be allowed an opportunity to draw an amended summons seeking appropriate relief by way of judicial review, meeting the requirements of Pt 59 of the Rules. I would grant him an extension of time to do so, bearing in mind that he is not legally represented and that the department has been on notice of his complaint from an early stage because he sought to agitate it as an amendment to the 2005 proceedings for damages. 31I shall consult the parties about the terms upon which this leave should be granted. Otherwise, the summons must be dismissed. If necessary, I shall also hear the parties on costs.