HEADNOTE
[This headnote is not to be read as part of the judgment]
On 27 June 2023, Mr Bassam Hamzy, an inmate of Unit 8 of the High Risk Management Correctional Centre at Goulburn, filed a Second Amended Summons in proceedings commenced in the Common Law Division of the Supreme Court of New South Wales seeking declaratory relief concerning the validity and application of various provisions of the Crimes (Administration of Sentences) Regulation 2014 (NSW). The Respondent to the summons is the Commissioner of Corrective Services (the Commissioner). Mr Hamzy is representing himself in the proceedings.
Orders were made for the determination of six questions separately from any other questions in the proceedings. Those separate questions have been listed for hearing on 10 and 11 December 2024 with various directions made for the preparation of the hearing. On 1 August 2024, Mr Hamzy applied, orally, for three further orders, two of which were opposed by the Commissioner. Those orders included an order that Mr Hamzy be provided with a laptop with word processing capability.
Harrison CJ at CL (the Chief Judge) heard the application on 1, 9, 13 and 26 August 2024. On 13 August 2023, the Commissioner read and relied on an affidavit of Mr Malcolm Brown, General Manager of State-wide Operations of Corrective Services NSW (CSNSW) sworn on 12 August 2024. The subject matter of that affidavit was to the effect that the Acting Commissioner had decided to make a modified "blue" desktop computer with word processing facilities and access to printing in a work room to which Mr Hamzy had exclusive access during designated hours known as the day room.
Reasons for judgment were published on 28 August 2024 (Hamzy v Commissioner of Corrective Services [2024] NSWSC 1090), which resulted in orders being made on 6 September 2024. Those orders included the following:
"1. Direct the defendant to give the plaintiff an estimate of his reasonable costs of complying with order 2 by 18 September 2024.
2. Direct that, within 8 weeks of receiving payment from the plaintiff for his reasonable costs notified under order 1, the defendant is to provide the plaintiff with a laptop computer, which … may be modified by means of such software and/or hardware modifications as the defendant sees fit, but not so as to remove the following functionality from the computer:
a. a working internal storage drive;
b. word processing software, including the ability to save a document to the internal storage drive; and
c. the ability to connect to a printer.
3. Direct the defendant to continue to make the computer provided to the plaintiff under order 2 available to the plaintiff for use in his cell until further order or, if no further order is made, the conclusion of the final hearing of these proceedings.
4. Order 3 does not apply to the extent that circumstances become known to the defendant, not presently known to him, which provide a basis for concluding on reasonable grounds that the plaintiff's ongoing possession of the computer poses a serious risk to security or good order, provided that:
a. the risk of harm is sufficiently imminent that there is not time to approach this Court for variation of these orders before depriving the plaintiff of possession of the computer; and
b. the defendant takes reasonable steps for the proceedings to be relisted promptly after depriving the plaintiff of possession of the computer."
The Commissioner sought leave to appeal from the orders made by the Chief Judge. The first ground of appeal was that the Chief Judge erred in (a) failing to consider the evidence as to the arrangements made between 9 and 28 August 2024 to make facilities available to Mr Hamzy, especially those arrangements described in Mr Brown's affidavit, and/or (b) making a decision that went beyond the real controversy between the parties as at the time his Honour decided the application. The second ground of appeal was that the Chief Judge erred in (a) mistaking the scope of the Court's powers to make orders for the purpose of ensuring effective access to the Court and/or (b) concluding that the orders made were necessary to ensure effective access to the Court.
The Court held (Bell CJ, Payne JA and Stern JA agreeing), granting leave to appeal (on the undertaking proffered by the Commissioner to the Court) and allowing the appeal:
1. Mr Brown's evidence was not referred to in terms or in substance in the primary judgment. That evidence was highly material and reflected the Commissioner's considered position as to how to facilitate Mr Hamzy's ability to participate in his forthcoming litigation. The failure to have regard to Mr Brown's evidence was an error which vitiated the Chief Judge's decision and, subject to the question of leave, provided a basis for setting aside his Honour's orders: [61]-[64].
2. There was no real controversy between the parties as at the time the Chief Judge decided the application: Mr Hamzy had effectively secured what he had sought: [65].
3. In circumstances where Mr Hamzy had been provided with the ability to hold and read his accumulated legal materials on an e-brief laptop, and was to be given daily access to the modified "blue" computer with word processing functionality together with the ability to print documents and store work product on a USB, Mr Hamzy's access to the Court could not be viewed as being in some way "denied". Even without that technological support, Mr Hamzy had taken numerous steps in the civil proceedings: [68]-[70].
Davies v The Queen [2018] VSCA 315, Patsalis v The State of New South Wales [2012] NSWSC 267, applied.
Raymond v Honey [1983] 1 AC 1, R v Secretary of State for the Home Department, Ex parte Anderson [1984] QB 778, R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, distinguished.
1. In applications of the kind that was made by Mr Hamzy, the source of power to make the orders sought must be identified carefully, and the statutory context of the lawful regulation of a prisoner's circumstances of incarceration must be recognised and given proper deference. Any excess of executive authority is most appropriately dealt with in the Court's supervisory jurisdiction and by reference to public law remedies: [77]-[89], [97].
Patsalis v The State of New South Wales [2012] NSWSC 267, JMR v Department of Juvenile Justice [1999] NSWSC 169, Middleton v Commissioner for Corrective Services (NSW) [2004] NSWSC 136, Knight v Wise [2014] VSC 76, Clark v Commissioner for Corrective Services [2016] NSWCA 186, Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113, Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, Dietrich v The Queen (1992) 177 CLR 292, McGuirk v University of New South Wales [2010] NSWCA 104, Barton v The Queen (1980) 147 CLR 75, Jago v District Court of New South Wales (1989) 168 CLR 23, referred to.
1. Any discretion to make directions in the context of extant proceedings should not start with the "equality of arms" concept, which is rooted in European human rights jurisprudence, but focus on what is required for a fair trial. That focus must take into account the context of the particular case, including the applicable statutory context which confers discretions and power on corrections authorities who are far better placed than courts to assess what is required for the safe and secure management of corrections facilities and the very different contexts of a prisoner who is in some way impeded in preparing and presenting a defence in criminal proceedings as opposed to civil litigation where the prisoner is the moving party: [90]-[93], [97].
Rich v Magistrates' Court of Victoria [2007] VSC 65, Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113, R v Rich (No 2) [2008] VSC 141; (2008) 184 A Crim R 161, Rich v Groningen (1997) 95 A Crim R 272, applied.