Commissioner of Corrective Services v Liristis

Holdsworth, A History of English Law (7th ed, 1956) vol 1, 213

I H Jacob, "The Inherent Jurisdiction of the Court" (1970) 23(1) Current Legal Problems 23

Kiralfry, Potter's Historical Introduction to English Law and its Institutions, (4th ed, 1958) 126

"Maastricht Guidelines on Violations of Economic, Social and Cultural Rights" (Maastricht, January 22-26, 1997)

Keith Mason, "The Inherent Jurisdiction of the Court" (1983) 57 Australian Law Journal 449

Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (The Federation Press, 2012)

Parliamentary Debates (Hansard) NSW Assembly, 17 November 1987, p 16087

Stephen, New Commentaries on the Laws of England (1845) vol 4, 389 Category: Principal judgment Parties: Commissioner for Corrective Services (Applicant) Antonio (Tony) Liristis (First Respondent) State of New South Wales (Second Respondent) Representation: Counsel: Mr J S Emmett/Ms L V Robb-Vujcic (Applicant) Ms G Bashir SC/Mr A Norrie (First Respondent)

Solicitors: Crown Solicitor's Office (Applicant and Second Respondent) Ross Hill & Associates (First Respondent) File Number(s): 2018/65030 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2018] NSWSC 39 Date of Decision: 01 February 2018 Before: Schmidt J File Number(s): 2018/4430

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

headnote [This headnote is not to be read as part of the judgment] Tony Liristis (the respondent) is on remand in Long Bay Correctional Complex, facing a number of charges of sexual assault. The charges are listed for hearing in the District Court. On 18 January 2018 Mr Liristis filed a summons in the Supreme Court, seeking orders directed to the terms of his imprisonment. In particular, he sought access to his printer/scanner and personal laptop, arguing that access was necessary for him to prepare adequately for his trial. On 1 February 2018, the primary judge (Schmidt J) made orders including that: Mr Liristis forthwith be given access to his printer/scanner and laptop in custody and that he be permitted to use that equipment in the preparation and conduct of his case, both in custody prior to the commencement of the hearing and in the District Court, during the course of the trial. The key issue on appeal was whether the Court had jurisdiction to make the orders, and in particular whether the orders were supportable as an exercise of the Supreme Court's jurisdiction: (i) under Supreme Court Act 1970 (NSW), s 69; (ii) with respect of a contempt; or (iii) the inherent jurisdiction under Supreme Court Act 1970 (NSW), s 23. The Court (Basten JA and Beazley P, White JA dissenting) allowed the appeal and held: In relation to (i): Per Beazley P, Basten JA and White JA:

1. The trial judge was not purporting to exercise judicial review jurisdiction; her Honour made findings of fact, made her own decision that it was necessary for the respondent to have his own computer, and did not identify a legal error made by a decision-maker: [7], [50]-[55], [115]. Osland v Secretary to the Department of Justice (2010) 241 CLR 320; [2010] HCA 24, applied. In relation to (ii): Per Basten JA, Beazley P agreeing:
2. The respondent did not contend that the Court below dealt with the matter as one of contempt, nor that a charge of contempt had been laid against the Commissioner; accordingly, the orders could not be supported by reference to the Court's contempt powers: [8], [59]. McGuirk v University of New South Wales [2010] NSWCA 104, distinguished. In relation to (iii): Per Basten JA, Beazley P agreeing:
3. The jurisdiction under section 23 is restricted to the administration of justice according to law. There is no freestanding and unitary "right to a fair trial" or "right of access to the courts", directly enforceable through orders of the kind made by the primary judge: [9], [64], [65], [79]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [31]; Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57; Jago v District Court of New South Wales (1989) 168 CLR 23, applied.
4. The Supreme Court may have independent supervisory jurisdiction with respect to criminal trials in the District Court; however, if it does, those powers are vested in the Court of Appeal and can only be exercised where the District Court has exceeded or is threatening to exceed its jurisdiction. The appropriate forum for ensuring the defendant has a reasonable opportunity to prepare for trial is the trial court; any exercise of the Supreme Court's independent supervisory jurisdiction should be constrained accordingly: [9], [41], [81], [87], [101], [103]. Smith v Commissioner of Correctives Services [1978] 1 NSWLR 317; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77; W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370; Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43, applied; Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307; Adler v District Court of New South Wales (1990) 19 NSWLR 317, distinguished; Clark v Commissioner for Corrective Services [2016] NSWCA 186, considered. Per Beazley P:
5. The jurisdiction under section 23 does not include a power to make positive binding orders against a third party to criminal proceedings to prevent an abuse of process: [34]-[36]. Per White JA (dissenting):
6. In light of the long history of the matter and imminent trial date, the orders made were supportable by reference to the Supreme Court's jurisdiction to protect the jurisdiction of the District Court to conduct a fair trial: [119], [185].

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA and of White JA. As their respective judgments reveal, this matter has not been easy to resolve, partly because there was no clear identification before the primary judge of the jurisdiction that she was being asked to exercise.
2. So far as is presently relevant, the respondent's summons filed on 19 January 2018 sought a declaration that he "ha[d] the right to properly prepare for and defend his criminal law matters". At that time, as remains the position, the respondent is on remand awaiting his trial on a number of offences, which the Court understands to involve sexual assaults. The respondent also sought orders, the essence of which were that he be allowed to have his own computer and that he be allowed to use his computer in his cell. The respondent also sought an order that he be given access to a printer/scanner, at his own cost, to use in preparation of his defence of the criminal charges.
3. The primary judge made an order that the respondent be given access to his printer/scanner and his laptop and that he be permitted to use that equipment both in custody prior to the commencement of the hearing and during the course of his trial in the District Court.
4. Her Honour also made a further order that, should the Commissioner form the view that there had been a breach of the undertakings that the applicant had given to the court so as to give rise to an immediate security risk, the access order was to be immediately suspended upon the Commissioner exercising a liberty to have the matter restored to the list within 24 hours.
5. The undertakings by the respondent to the court were that he would not seek any access to a mobile phone or the internet using his computer, that he would allow his computer to be inspected on its arrival at the Correctional Centre and that there was no prohibited material on the computer except material relevant to the criminal proceedings.
6. As I have indicated, a central issue on the appeal was whether the primary judge had jurisdiction to make the orders. Two sources of jurisdiction or power were suggested: judicial review pursuant to the Supreme Court Act 1970 (NSW), s 69 and the Court's powers under the Supreme Court Act, s 23. Both the Commissioner and the respondent submitted that the likely source of jurisdiction exercised by her Honour was pursuant to s 69. However, the respondent relied upon the "inherent jurisdiction [of a superior Court] to act in aid or control of the inferior courts" and s 23 to support the orders made by the primary judge: see Watson v Attorney-General for New South Wales (1987) 8 NSWLR 685.
7. I agree with Basten JA, at [55], that it is unlikely that her Honour was exercising the powers of the Court pursuant to s 69. As Basten JA has explained at [50]-[54], inconsistently with the conventional approach on judicial review, her Honour made findings of fact; made her own decision that it was necessary for the respondent to have his own computer; and thirdly, no legal error was identified.
8. It is apparent from the respondent's affidavit filed in the proceedings before the primary judge that he contended that he was seeking relief pursuant to the court's power to deal with a contempt. The alleged contempt was an interference with his right to access the courts. I also agree with the reasons of Basten JA in rejecting this as a source of jurisdiction or power to make the orders.
9. This leaves the more difficult question as to whether the orders were made in the court's supervisory jurisdiction and/or pursuant to the Supreme Court Act, s 23. Basten JA and White JA have come to different views on this question. I am persuaded that Basten JA is correct in his analysis of the nature and extent of the court's jurisdiction and powers and with his conclusions on this question. I also agree with the orders his Honour proposes. I would add the following short observations.
10. As a superior court of record, the Supreme Court has "inherent" jurisdiction, a jurisdiction which arises because it is a "court of a particular description", rather than statutory implication: R v Forbes: Ex Parte Bevan (1972) 127 CLR 1; [1972] HCA 34, at 7. The Supreme Court's inherent jurisdiction is preserved by the Supreme Court Act, s 22, which provides that the Supreme Court is continued "as formerly established as the superior court of record in New South Wales": Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268; [2009] HCA 18, at 280. In Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45, at 16, Dawson J described it in the following terms: "Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical … But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster." (emphasis added)
11. As the High Court has observed, "[c]haracteristically an exercise of jurisdiction is attended by an exercise of power": Re Nolan; Ex parte Young (1991) 172 CLR 460; [1991] HCA 29, at 487, quoted in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1, at 590. At the same time, it is important to distinguish between the two, as the Court has emphasised in a number of recent decisions.
12. In NH v Director of Public Prosecutions (SA) (2016) 334 ALR 191; [2016] HCA 33, French CJ, Kiefel, Bell, Nettle and Gordon JJ made the following observations, at 212: "[T]he inherent jurisdiction is a power described generically as the 'inherent power necessary to the effective exercise of the jurisdiction granted'. It is a power or collection of powers that comes with the status of the Supreme Court of a State as a superior court of record … [I]nherent jurisdiction is not a 'separate head of jurisdiction'. Reliance for that proposition was placed upon the observations of Dawson J in Grassby v R. His Honour there spoke of the exercise by a superior court of inherent power in the discharge of its general responsibility for the administration of justice. He did not draw a relevant distinction between inherent jurisdiction and inherent power." (emphasis added; citations omitted)
13. In the passage immediately following, emphasising the importance of the distinction between jurisdiction and power, the Court referenced its earlier observations in PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36. In that case, French CJ, Kiefel, Bell, Gageler and Gordon JJ said, at 17-18: "'Jurisdiction' is a word of many meanings. The term 'inherent jurisdiction' has been described as 'elusive', 'uncertain' and 'slippery'. The difficulty is minimised if the term is confined to its primary signification: to refer to the power inhering in a superior court of record administering law and equity to make orders of a particular description."
14. In Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, almost a decade earlier, Gleeson CJ, Gummow, Hayne and Crennan JJ made the following observations, at 263: "These appeals concern abuse of process as understood in the exercise of the 'inherent jurisdiction' of superior courts to stay proceedings. The phrase 'inherent jurisdiction' itself is a slippery one. In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd, Gleeson CJ, Gaudron and Gummow JJ remarked: "'Jurisdiction' and 'power' are not discrete concepts. The term 'inherent jurisdiction' may be used, for example in relation to the granting of stays for abuse of process, to describe what in truth is the power of a court to make orders of a particular description. In Harris v Caladine, Toohey J said: 'The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'.'" (emphasis added; citations omitted)
15. In "The Inherent Jurisdiction of the Court" (1983) 57 Australian Law Journal 449, Mason P, writing before his appointment as a judicial officer, described the inherent jurisdiction as, at 458: "… [involving] a judicial power of last resort that will be invoked to block certain types of conduct which are not regulated by statutes or rules of court, or indeed expressly permitted by them. Its range of manifestations is a tribute to the readiness of judges to create and use powers designed to promote higher standards in relation to the conduct of litigation generally."
16. In "The Inherent Jurisdiction of the Court" (1970) 23(1) Current Legal Problems 23, I H Jacob, discussing the inherent jurisdiction of the superior courts in the United Kingdom, wrote, at 27-8, that: "The essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute … The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to the law in a regular, orderly and effective manner." (emphasis added)
17. Leeming JA, writing prior to his appointment to the bench, has observed that statements to the effect that superior courts of record have "inherent jurisdiction" are, on analysis, addressing the power of the court to make an order, rather than its "authority to decide": Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (The Federation Press, 2012) 30-1. See Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23, per Toohey J, at 630: "The notion of inherent jurisdiction is … capable of misleading for, when examined, it is invariably concerned with the power of a particular court to act in a particular way."
18. In McGuirk v University of New South Wales [2010] NSWCA 104, the primary judge made an order restraining the appellant from sending further written communications to the respondent, after the appellant sent a large number of offensive communications. The Court considered whether there was a basis to exercise such a power, including whether such a power could be supported by s 23, or by the inherent jurisdiction of the Court. Sackville AJA (Young JA agreeing, Giles JA deciding on a different basis) observed, at [176]-[177], that: "It is well-established that the inherent jurisdiction and powers of superior courts exist because they are necessary in the interests of justice: Wentworth v New South Wales Bar Association [1992] HCA 24; 176 CLR 239, at 252, per Deane, Dawson, Toohey and Gaudron JJ. As was said by Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21; 166 CLR 486, at 502: The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice: see Cocker v Tempest [(1841) 7 M & W 502, at 503-504; 15 ER 864, at 865]. In New South Wales, the inherent jurisdiction and power of the Supreme Court overlaps with, although may not be entirely displaced by, the jurisdiction conferred on the Court by s 23 of the SC Act." (emphasis added)
19. Despite the different formulations, the Supreme Court has, for the most part, treated inherent jurisdiction and that provided for in s 23 as largely involving the same jurisdiction and powers, grounded in the notion that such jurisdiction is required for the due administration of justice. This is borne out by judgments of the Court of Appeal and the High Court which consider the inherent jurisdiction and s 23 in tandem when discussing the purported bases for a particular exercise of judicial power.
20. Given the statutory incorporation of the Supreme Court's inherent jurisdiction effected by s 22, the observations of Kirby J in Batistatos v Roads and Traffic Authority of New South Wales provide a compelling explanation of the position following the enactment of the Supreme Court Act. His Honour first observed, at 296, that: "One aspect of the neglect of the constitutional setting for the jurisdiction and powers of Australian courts is the failure to subject notions of 'inherent jurisdiction' and 'inherent power' to an appropriate Australian constitutional scrutiny … All Australian courts are created by, or under, legislation. Whatever the position in the United Kingdom, the additional jurisdiction and powers of Australian courts may not, therefore, truly be described as 'inherent'. It may be more accurate to describe any supplementary jurisdiction or powers of such courts, including superior courts, as 'implied', that is implied in the constitutional or legislative source. According to this approach, a reference to 'inherent jurisdiction' or 'inherent powers' is likely to mislead. It may give rise to exaggerated opinions as to the ambit of the propounded jurisdiction and powers." (citations omitted)
21. His Honour then stated, at 297-8, that: "In the case of the Supreme Court of New South Wales … [i]t is s 23 of the Supreme Court Act that provides that the court 'shall have all jurisdiction which may be necessary for the administration of justice in New South Wales'. Any judicial expressions of 'inherent' or 'implied' powers of such a court must therefore be consistent with the new Supreme Court Act. It follows that, arguably, the source of the jurisdiction, and the 'necessary' powers, of the Supreme Court of New South Wales is, after 1970, s 23 of the Supreme Court Act, other Acts and implications found there and not 'inherent' jurisdiction and powers." (emphasis added)
22. Kirby J did not need to resolve the issue, as he was satisfied, at 298, that the "wide grant of jurisdiction" provided under s 23 was sufficient to confer on the Court the "jurisdiction and power (whether technically 'inherent' or 'implied')" to terminate proceedings and provide a permanent stay, as had been sought in the subject case.
23. However described, whether co-extensive, and whether s 23 is the legislative statement of the Court's inherent jurisdiction or something broader, what is involved is what the requirements of justice demand. For this reason, the authorities recognise that the "inherent power of a superior court cannot be restricted to defined and closed categories": Reid v Howard (1995) 184 CLR 1; [1995] HCA 40, per Toohey, Gaudron, McHugh and Gummow JJ, at 16; and see Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335; [1966] 1 NSWR 354, per Wallace P, Jacobs and Asprey JJA, at 344. At the same time, the jurisdiction, or perhaps more accurately, the "power or collection of powers" engaged by the Court's superior status, are not without limits: NH v Director of Public Prosecutions (SA), at 211. For one, the powers of the Supreme Court are undoubtedly limited by the court's constitutional and statutory competence: Batistatos v Roads and Traffic Authority of New South Wales, per Kirby J, at 297, referring to Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36 at 275. For example, the power cannot be used to make orders excusing compliance with a statute or preventing the exercise of statutory authority. Nor can it be used to abrogate fundamental rights, such as the privilege against self-incrimination: Reid v Howard at 16-17.
24. Nevertheless, there are a number of recognised types of powers which are said to derive from the inherent jurisdiction and the Supreme Court Act, s 23.
25. The "inherent jurisdiction" of the Supreme Court appears to provide the Court with its jurisdiction (in a strict sense) to deal with particular subject matters. One example of this is the protective jurisdiction of the Supreme Court, with which comes attendant powers to make orders relating to persons who are not able to take care of themselves. The jurisdiction has been identified by reference to its purpose and "[the] limits (or scope) of the jurisdiction have not been, and cannot be, defined": Secretary, Department of Health & Community Services v JWB & SMB (Marion's Case) (1992) 175 CLR 218; [1992] HCA 15, per Mason CJ, Dawson, Toohey and Gaudron JJ, at 258.
26. The Supreme Court, as a superior court of record, also has the inherent power to deal with contempt of any inferior court on a summary basis: Grassby v The Queen, per Dawson J, at 17. The power to punish for contempt of Court extends to punishment of conduct "calculated to interfere with the due administration of justice, including conduct that seeks to bring improper pressure on a party to litigation", and includes the power to restrain a threatened contempt by way of injunction: McGuirk v The University of New South Wales, per Sackville AJA, at [178]-[179].
27. The Court also exercises its inherent or s 23 power in relation to substantive proceedings which are imminent, on foot or recently concluded by the Court itself. Examples include the power to stay proceedings on forum non conveniens grounds; and the power to order a stay of judgment pending an appeal or application for leave to appeal to the High Court.
28. The Court's power to make orders intended to preserve the subject matter of proceedings has also been sourced in s 23 and the inherent power: Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264; PT Bayan Resources TBK v BCBC Singapore Pte Ltd.
29. The making of freezing orders can be viewed as one incident of the inherent power of the Court to prevent abuses of process. In Batistatos v Roads and Traffic Authority of NSW, after highlighting the importance of distinguishing between jurisdiction and power (see above at [14]), Gleeson CJ, Gummow, Hayne and Crennan JJ went on to say, at 264: "Accordingly, in Hunter v Chief Constable of West Midlands Police Lord Diplock used the term 'inherent power' rather than 'inherent jurisdiction'. In Walton v Gardiner, the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter in which Lord Diplock spoke of 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'. His Lordship went on to describe as 'very varied' the circumstances where 'abuse of process' can arise." (emphasis added) (citations omitted)
30. They went on to observe, at 265, that "[w]hat amounts to an abuse of court process is insusceptible of a formulation comprising closed categories. Development continues".
31. In Rogers v the Queen (1994) 181 CLR 251; [1994] HCA 42, McHugh J observed, at 286, that: "Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute."
32. The concept of "abuse of process", and the attendant powers of a superior court, are not unlimited. As an illustration, the High Court recently held that the inherent jurisdiction of the Supreme Court of South Australia did not extend to correcting or setting aside the non-guilty verdicts of a jury, post discharge, after a murder trial: NH v Department of Public Prosecutions (SA). French CJ, Kiefel, Bell, Nettle and Gordon JJ observed, at 213, that: "The wide concept of abuse of process adopted by the majority and propounded by the DPP in this Court should be rejected. It seems to have few if any limits. As was submitted for the appellant … if the power to prevent abuse of process extended as far as suggested by the majority in the Full Court, and by the DPP, appellate and supervisory judicial review jurisdiction would be virtually redundant." (emphasis added)
33. It has long been accepted that a court hearing criminal proceedings has the power to control its proceedings in order to prevent injustice, including, where necessary, to stay those proceedings: Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48; Jago v The Queen (1989) 168 CLR 23; [1989] HCA 46. In Herron v McGregor (1986) 6 NSWLR 246, at 251-2, it was said that s 23 was wide enough to enable the Supreme Court to "make orders protecting inferior courts and tribunals against any abuse of their processes", in relation to civil, criminal, and disciplinary matters. See also Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77.
34. Thus whilst it is well-established that superior Courts can act to stay proceedings in an inferior Court in order to prevent an "abuse of process", the issue in the present case is whether the inherent and/or s 23 jurisdiction of a superior Court extends, not only to staying proceedings in an inferior Court, but to making some kind of positive or mandatory order on parties or non-parties to criminal proceedings in order to prevent an "abuse of process".
35. Despite the apparently wide ambit of s 23 and the inherent jurisdiction, it is difficult to support the orders of the primary judge on the basis of existing authority and by analogy to recognised powers associated with that jurisdiction. While the respondent may be correct to submit that a stay need not always be brought in the Court or Tribunal where proceedings will take place, it does not follow that a power of the kind asserted by the primary judge also exists. A review of the case law does not support the power to order a non-party to criminal proceedings to take some positive action to prevent an abuse of process. Indeed, leaving aside the special protective jurisdiction, the Supreme Court's inherent and/or s 23 jurisdiction is essentially preventative, as Mason P explained in his article referred to above at [15], regardless of the form in which any relief is framed.
36. Accordingly, adopting the conception of the inherent jurisdiction as a power or collection of powers, I cannot accept that a power exists to make positive binding orders against a third party to criminal proceedings of the kind made by the primary judge. This is all the more so where the order made directly affected the operations of a correctional facility.
37. BASTEN JA: The respondent, Antonio (Tony) Liristis, faces a number of charges of sexual assault. The matter was first listed for trial in the District Court on 31 August 2015; the date was vacated on the respondent's application. After several relistings, all vacated, the respondent remains on remand in Long Bay Correctional Complex. He claims he has been hampered in the preparation for his trial by his inability to obtain access to his personal laptop computer and a scanner/printer, whilst in custody. On 1 February 2018 following the hearing of a summons filed by him in the Common Law Division, [1] Schmidt J made the following primary order: (1) Mr Liristis forthwith be given access to his printer/scanner and laptop in custody and that he be permitted to use that equipment in the preparation and conduct of his case, both in custody prior to the commencement of the hearing and in the District Court, during the course of the trial.
38. The order was intended to be directed to the Commissioner for Corrective Services, as the authority responsible for the conditions of the respondent's detention. It was made on the basis of certain undertakings given to the Court by the respondent and set out in the judgment. [2] A further order allowed the Commissioner to take certain steps to suspend the operation of the order if he formed the view that the undertakings had been breached.
39. The Commissioner has sought leave to appeal from the judgment and orders in the Common Law Division. The proposed grounds of appeal raised a question as to whether the judge was (a) making orders for the preparation of the criminal trial, (b) undertaking judicial review of a decision or decisions of the Commissioner, or (c) making a mandatory injunction in support of some innominate private right. The Commissioner submitted that if (a), that was a matter for the District Court; if (b), there was no finding of error and, if there were a finding that he had erred, the appropriate relief was to identify the decision, set it aside and remit the matter to the appropriate decision-maker for reconsideration, according to law; and if (c), the order was outside the Court's jurisdiction.
40. These issues, arising at the point of tension between the needs of an accused person preparing a defence against serious criminal charges and the prison Governor's power to regulate inmates' access to computers, raise a matter of general public importance as to the administration of criminal justice. Further, they raise questions as to the scope of the supervisory jurisdiction of the Supreme Court under s 23 of the Supreme Court Act 1970 (NSW). As the orders continue to bind the Commissioner in his exercise of statutory powers with respect to the respondent, the orders continue to have practical consequences in the present case. In these circumstances, there should be a grant of leave to appeal.
41. The reasons set out below support the following propositions: 1. The primary judge had power to review administrative decisions made by the Commissioner of Corrective Services (or the governor of the gaol) in exercise of his custodial functions, but: 1. did not purport to exercise any such power, and 2. would have been in error in doing so in the absence of any demonstrated error on the part of the Commissioner. 1. There is a power in a court with jurisdiction to conduct a criminal trial to order a stay to ensure that the trial will not be unfair, on appropriate conditions or permanently: 1. however, the District Court, not the Supreme Court, was vested with criminal jurisdiction with respect to the indictment against the respondent; and 2. the judge, correctly, did not purport to make any order staying, conditionally, the conduct of the trial. 1. Subject to the powers of the Court of Criminal Appeal to deal with appeals from interlocutory orders in criminal proceedings on indictment: 1. the Supreme Court may have independent supervisory jurisdiction with respect to the conduct of criminal trials in the District Court, but 2. if it does, those powers are vested in the Court of Appeal, and 3. could only be exercised in circumstances where the District Court had exceeded, or was threatening to exceed, its jurisdiction; and 4. the Supreme Court should generally defer exercising any such power in favour of consideration of the issue by the trial court. 1. A judge of the Supreme Court has no general power (or jurisdiction) to order officers responsible for the custody of prisoners to take steps thought necessary by the judge to ensure that an offender is not subject to an unfair trial, where the trial is not within the jurisdiction of the Supreme Court.
42. Accordingly, for the reasons set out below, the orders made by the primary judge should not have been made. The appeal should be allowed and the orders set aside. The respondent's application to the Supreme Court should be dismissed.

Procedural background

1. The proceedings below were heard and determined with commendable expedition. The summons was filed and served on 19 January 2018, [3] and the hearing held on 30 and 31 January, with the judge announcing the proposed orders in the course of the second day of the hearing. In final form, the judgment was delivered on 1 February 2018. The orders were entered on 31 January 2018 (not, as recorded on the coversheet of the judgment, 1 February).
2. The summons, making allowance for the fact that it was drafted by the respondent, sought orders directed to the conditions of his imprisonment; it was not in the correct form for judicial review proceedings. The defendant was identified as "State of New South Wales aka Corrective Services NSW". (An earlier unserved summons had apparently identified the Commissioner of Corrective Services and the State as defendants.) The Commissioner was added as a defendant in the course of the hearing. [4] The judgment identified the State as the first defendant and the Commissioner for Corrective Services as the second defendant. Although not expressed in appropriate terms, the first order appears to have been directed to the Commissioner. (It seems likely that the correct decision-maker was Mr Aboud, the Governor of the Long Bay Correctional Complex. [5] ) The Commissioner is the sole applicant in this Court and takes no point as to appropriate parties, partly no doubt because of uncertainty as to the jurisdiction exercised.
3. The District Court has not been a party to the proceedings at any stage. The undertakings on which the primary judge relied were given to the Supreme Court, not the District Court. Any breach of the undertakings would need to be dealt with in the Supreme Court. However, the trial remains within the control of the District Court; a judge could determine that the trial should proceed, whether or not there had been adequate compliance with the order made in the Common Law Division.

(1) Reasoning of primary judge

1. Perhaps because the summons had been drafted by the respondent himself, limited attention was given to the jurisdiction and powers of the Court. In considering the Supreme Court's "jurisdiction", the primary judge commenced by declaring her satisfaction that the Court "can make orders requiring Mr Liristis to be given access in custody to his laptop and printer." [6] This finding appeared to encompass both jurisdiction and power. The reasoning which immediately followed referred to the "common law right to unimpeded access to the courts" and the "right to a fair trial on the criminal charges which he faces". The judgment continued: "[15] On the Commissioner's case, if Mr Liristis could not receive a fair trial without such access, the appropriate remedy would be an adjournment or stay of the proceedings: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 and Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46. That however, would be a matter for the trial judge to determine. [16] It was accepted however, that in Clark v Commissioner for Corrective Services [2016] NSWCA 186, the view taken by the Court of Appeal was that administrative or managerial decisions that frustrate an inmate's right to access courts might be amenable to review under s 69 of the Supreme Court Act 1970 (NSW)."
2. In the last sentence in [15], the reference to "the trial judge" must be a reference to a District Court judge having control of the criminal proceedings. On one reading of that sentence, the primary judge accepted that it was not appropriate for her to exercise the powers of the criminal trial court. An alternative reading is that the primary judge was merely recounting the Commissioner's submission. In fact she did not order that the trial be adjourned or stayed pending compliance with her order, and thus did not purport to exercise the powers of the trial judge. Nevertheless, it will be convenient to deal below with the possibility that the jurisdiction to control the trial was sought to be invoked.
3. The procedural background militates against the view that the judge was exercising a supervisory jurisdiction with respect to the District Court trial. Indeed, if such a jurisdiction had been invoked, the matter should have been transferred to this Court which is assigned proceedings (including by way of appeal or review) involving the District Court. [7] Further, if the District Court had exercised its powers to control the criminal trial there is an appeal with leave from interlocutory orders in indictable matters to the Court of Criminal Appeal. [8] There was no suggestion that this particular issue had been raised in the District Court, but the available statutory scheme, not involving a single judge of the Division, suggested the supervisory jurisdiction was not engaged.

(2) Judicial review of an administrative decision

1. The reference to review under s 69 of the Supreme Court Act, at [16] of the reasons below, suggested that the judge was contemplating judicial review of a decision of the Commissioner, or perhaps his delegate, which denied the respondent access to his personal laptop computer and scanner whilst in custody.
2. The course taken thereafter was inconsistent with the conventional approach to judicial review. First, critical findings of fact were made. Thus, the judge found at [33] that Peter Sharp, an officer in the Department, had made the decision to deny the respondent his personal computer. (There was no similar finding with respect to the scanner.) The judge also noted that Mr Sharp had been responsible for running a pilot program permitting a small number of prisoners to have "legal laptops" in their cells. Mr Sharp identified "security concerns" in relation to personal laptops generally and the pilot program in particular. The judge made the following finding of fact: "[54] I do accept that use of computers raise[s] security concerns which must be managed by the Commissioner. I am not satisfied on the evidence, however, that such security concerns cannot be adequately managed by the Commissioner in Mr Liristis' peculiar circumstances, in the short period prior to the commencement of the trial and during the hearing due to commence next week in the District Court, during which the parties will be under that Court's supervision."
3. The primary judge concluded: "[57] I am satisfied on all of the evidence I have discussed, that in Mr Liristis' case the computer facilities which he has been provided in custody, are inadequate for his needs and do not reasonably permit him to prepare his case, given the defence he seeks to advance at trial, by reference to the materials with which he has been served."
4. At [59], the judge concluded that it was "necessary for Mr Liristis to have access to a computer which enables him to access electronically the documents which have been served on him", and continued: "[t]hat means he must have access to his laptop both in custody and at court during the trial." If the orders were to stand, those findings would, at least in practical terms, constrain the jurisdiction of the District Court to control the trial.
5. Secondly, it is apparent that the judge made her own decision with respect to those matters. As counsel for the Commissioner correctly submitted, on an application for judicial review that course could only be justified if no other decision were legally available on facts accepted by the decision-maker. [9] Otherwise, the power of the court undertaking judicial review of an administrative decision is limited to setting aside a legally flawed decision, so that the repository of the power may exercise it again, according to law. (The respondent sought such an order on the appeal, in the event that error were found.)
6. Thirdly, no legal error was identified on the part of the decision-maker. Put more broadly, it is self-evident that neither the Commissioner of Corrective Services, nor any officer under his control, could make a decision as to the necessity for the accused to have access to his personal computer in his cell. That would require knowledge of how much material was contained on the relevant hard drives and files, whether with the necessary recovery keys that material could be accessed in a short time and saved in a different format, and whether those steps could have been taken by forensic experts already employed by the respondent for that or a related purpose, outside the prison. With respect to the scanning exercise, the decision-maker would be required to assess whether it was necessary, given the nature of the proceedings, for the respondent to have electronic access to what were described as 36 tubs of documents, which he proposed to take to court each day. The limited description in the evidence of the content of the tubs suggested that was an extravagant claim. Had these issues been raised with a judge conducting pre-trial proceedings in the District Court, it is quite possible that what was demanded might have been reduced to a manageable exercise, possibly one for which legal aid might be available, and not requiring special equipment in his cell.
7. Taking these factors into account, the better view is that the primary judge was not purporting to undertake judicial review of a decision of the Commissioner.

(3) Contempt

1. The respondent submitted that there were two other sources of power engaged by his application in the Common Law Division. First, he said that he had submitted below that interference with his legal right of unimpeded access to the courts could be protected by proceedings for contempt against a person interfering with that right. As the primary judge noted, he drew upon a proposition to that effect in Patsalis v State of New South Wales. [10] The respondent also took the Court to a discussion by Sackville AJA in McGuirk v University of New South Wales [11] dealing with the power to grant an injunction to restrain a threatened contempt.
2. McGuirk was a very different case from the present; it involved the conduct of a litigant in person bombarding the solicitors for the other party (the University) with a barrage of offensive and threatening emails. Sackville AJA noted the University's submissions: "[169] The University contended that the barrage of correspondence sent by the applicant could be seen to constitute 'improper pressure' on the officers and legal representatives of the University. The submissions invited the Court to infer that the applicant's course of conduct was indicative of his continuing intention to threaten the University and its representatives as a means of inducing the University to desist from the litigation."
3. However, Sackville AJA dealt with the complaint on the following basis: "[171] It is, however, one thing for an affidavit to identify what are characterised 'inappropriate communications'. It is quite another to allege that particular communications amount to a contempt of court and to identify the reasons why that is so. It is different again to contend that one party is likely to persist in a threatening course of conduct designed to constitute improper pressure on the other party or its representatives. [172] Despite being the moving party in the proceedings determined by the primary Judge, the University took no steps prior to or at the hearing to signal that it was relying on threatened contempt as a basis for the Orders. Much less did it identify any of the communications as constituting or potentially constituting a contempt. No explanation was provided to the primary Judge or to this Court for the absence of any reference to these matters until the University filed its supplementary written submissions in the proceedings at first instance."
4. While it is true that there were references to "contempt" in the course of the proceedings before the primary judge, senior counsel for the respondent did not contend that a charge of contempt had been laid against the Commissioner (or any other officer), nor that the Court had dealt with the matter as one of contempt. This head of possible jurisdiction should be dismissed.

(a) Limitations on jurisdiction

1. The respondent next contended that the primary judge had power to make the orders in the exercise of the jurisdiction conferred on the Court by s 23 of the Supreme Court Act, which is broadly expressed: 23 Jurisdiction generally The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.
2. Reliance on the innominate jurisdiction conferred by s 23 requires some further explanation. Despite the unqualified language in which it is expressed, the jurisdiction conferred by s 23 is by no means unlimited. As was said in Conway v The Queen [12] of the power of the Federal Court to grant a new trial "on any ground upon which it is appropriate", [13] no one could divine the scope of the jurisdiction conferred by s 23 "uninformed by legal history or at all events uninformed by legal instruction".
3. First, s 23 is constrained by Ch III of the Constitution and does not extend to federal matters, except in so far as such jurisdiction is conferred on the Court by federal legislation, or otherwise preserved by the Constitution.
4. Secondly, it is necessary to understand the statutory context in which s 23 now operates. For example, it does not extend to the exercise of judicial power exclusively vested in another court, [14] nor, generally speaking, does it permit an order that a government officer exercise a discretionary power in a particular way. Where the court is exercising a discretionary power, it will similarly be confined by the conditions, express and implied, which limit the exercise of the court's discretion. Specific statutory constraints, relevant to this Court's jurisdiction, will be addressed below.
5. Thirdly, and perhaps self-evidently, the jurisdiction referred to in s 23 is restricted to the administration of justice according to law. As pithily explained by Gaudron J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd: [15] "[59] It is beyond controversy that the role of Australian courts is to do justice according to law - not to do justice according to idiosyncratic notions as to what is just in the circumstances. Hence, the rule of law and not the rule of judges. Necessarily, that basic proposition informs and controls the power conferred on the Supreme Court of Tasmania … to grant an interlocutory injunction 'in all cases in which it shall appear to the Court or judge to be just and convenient that such order should be made'. [60] … [A]n injunction is a curial remedy. Because it is a remedy, it is axiomatic that it can only issue to protect an equitable or legal right or, which is often the same thing, to prevent an equitable or legal wrong. So to say, is simply to emphasise that the function of courts is to do justice according to law."
6. To similar effect, Gummow and Hayne JJ stated: "[105] … The conferral upon the Supreme Court by statute of the power to grant interlocutory injunctions in cases in which it appears to the Court to be just or convenient to do so is not at large. Here, the statute did not confer on the Court power to make an order on the application of Lenah other than in protection of some legal or equitable right of Lenah which the Court might enforce by final judgment." The reasoning of Gleeson CJ was to similar effect; those principles reflected the earlier judgment of Gaudron, McHugh, Gummow and Callinan JJ in Cardile v LED Builders Pty Ltd. [16] Apart from the procedural right to a fair trial or, more correctly, the immunity from conviction as a result of an unfair trial, the respondent identified no general law, equitable or statutory right.

(b) Nature of "right" sought to be enforced

1. There was no suggestion that the respondent has any statutory right to have a scanner and his own personal laptop computer in his prison cell. Rather, the respondent relied upon a common law right, enforceable by a superior court of general jurisdiction, and identified as a "right of access to the courts", or a "right to a fair trial". The submissions implied that there had been a breach of such a legal right, for which there was a remedy available against the defendant. However, care should be taken in using the concept of a "right", forming a component of the administration of justice.
2. A "right to a fair trial" may overlap with a "right of access to the courts", but they are not coextensive. Further, neither identifies a single "right": rather, each is a label describing a range of elements understood to be inherent requirements of a common law based system for the administration of civil and criminal justice. [17] The component elements of a fair trial include the general requirements (a) that it be held in public, (b) before a court established by the State, (c) presided over by an impartial and independent judicial officer, (d) conducted according to the rules of evidence and procedure, (e) in circumstances where an accused person has a right to legal representation and (f) has an opportunity to confront the prosecution witnesses and test their evidence, and (g) has an opportunity to obtain and adduce his or her own evidence. With respect to serious crime, it may also include (h) a court comprising a judge and a randomly selected jury, (i) protection of communications between the accused and his or her lawyer and, in the case of conviction, (j) appropriate mechanisms for appeal. As the Law Reform Commission noted, [18] referring to statements from Dietrich and Jago discussed below: "The right to a fair trial is 'manifested in rules of law and of practice designed to regulate the course of the trial'. [19] Strictly speaking, it is 'a right not to be tried unfairly' or 'an immunity against conviction otherwise than after a fair trial', because 'no person has the right to insist upon being prosecuted or tried by the State'. [20] "
3. Not only is it imprecise to talk about a unitary "right to a fair trial", once unpacked it becomes apparent that the various component elements may be qualified in various respects and many are subject to statutory regulation. One aspect of such regulation, relevant to the conduct of the respondent's trial for prescribed sexual offences, is a prohibition on an unrepresented accused person cross-examining a complainant. [21] In the present case, the respondent has obtained a limited grant of legal aid, this Court was informed, at least in part for the purposes of such cross-examination.
4. Most rights are not absolute; express statutory or constitutional statements of human rights are generally expressed to be subject to "reasonable limits". [22] Any rights in issue here are qualified in substantial respects, particularly by the need for enforcement of security in a custodial environment.
5. Nor are the component elements of a fair trial of one kind. As international lawyers have explained, with respect to the International Covenant on Economic, Social and Cultural Rights, a state may owe different types of obligations to its citizens. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights [23] state: [24] "6. Like civil and political rights, economic, social and cultural rights impose three different types of obligations on States: the obligations to respect, protect and fulfil. … The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights. …The obligation to protect requires States to prevent violations of such rights by third parties. … The obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. …."
6. The common understanding of a right, in domestic law, is that it involves a correlative duty on the part of the other party to enforcement proceedings, being in this case the State or an officer or agency of the State. The detention of the respondent pending trial, and the conditions of his detention, infringed aspects of his liberty in various ways; however, these infringements were authorised by laws, the validity of which was not challenged. There was no threat of interference by others from whom the respondent sought state protection. Accordingly, at its highest, his claim alleged infringement of an affirmative obligation of the State, a category giving rise to problems of enforcement under domestic law.
7. For example, a litigant may assert that the issue of a subpoena to produce documents is necessary for the conduct of a fair trial. Yet the right is not enforceable against a judicial officer who declines to issue the subpoena, but by way of interlocutory appeal in the proceedings. Further, it is the "duty" of the trial judge to ensure that the trial is, within the bounds of his or her control, conducted fairly. But that does not mean that an accused person has an enforceable right against the judge; rather, he or she has a right to have a conviction set aside if an appeal court is satisfied that the trial was not conducted fairly and that a substantial miscarriage of justice has occurred. At least for domestic law purposes, this circumstance contradicts the usefulness of describing the accused's interest in the conduct of a fair trial as a "right". It is not a free-standing right enforceable by orders of the Supreme Court in proceedings unrelated to trial. It is aptly described as an immunity from conviction where the trial has been unfair, in the eyes of the law.
8. These propositions are illustrated by cases relied on by the respondent. In a case involving prisoners' control of access to their legal correspondence, R (Daly) v Secretary of State for the Home Department, [25] Lord Bingham of Cornhill identified three separate rights involved in a claim of "access to justice", namely "the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal advisor under the seal of legal professional privilege." In a recent decision of the UK Supreme Court which approved that passage, R (On the application UNISON) v Lord Chancellor, [26] Lord Reed also cited with approval the statement of Lord Diplock in Attorney-General v Times Newspapers Ltd [27] that "[t]he due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities …". [28]
9. UNISON also referred to cases such as Raymond v Honey, [29] relied upon by the respondent, in which a prison governor obstructed a prisoner's application to a court. UNISON itself carried the principle beyond these precedents in two respects. First, it extended access to the courts to include access to statutorily established tribunals. Secondly, it treated the imposition of fees as an impediment to the right of access which required statutory authorisation and, where fees are permitted by statute, "only such a degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question." [30]
10. The Court cannot cavil with the respondent's reliance on these statements, as it drew counsel's attention to UNISON. However, it should not be assumed that an Australian court would necessarily adopt the same expansionist approach to the courts' powers adopted in UNISON. It is not necessary to determine that question, because the present case does not concern fees payable for access to a tribunal. However, one aspect of UNISON is significant: the setting aside of the fees order did not depend upon demonstration that particular individuals had been denied a "right" of access by inability to pay the relevant fee. In other words, at least in relation to the established criminal and civil courts, what is in issue in such cases is the "due administration of justice", to use the phrase adopted by Lord Diplock in Times Newspapers.
11. As explained by Brennan J in Jago v District Court of New South Wales: [31] "Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes …, adverse revelations in a public inquiry …, absence of competent representation …, or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer."
12. The issue in Jago was the delay in obtaining a hearing of criminal charges, of some five and a half years between the date of arrest and the presentation of an indictment in the District Court. The delay may well have been caused by an inadequately resourced trial court. That could be identified as a failure of the State to fulfil its obligation of providing a properly equipped court to determine criminal cases. However, there is no remedy to be obtained from the Supreme Court by way of a mandatory order requiring the expenditure of funds or the appointment of additional judges. There was no "right" to a speedy trial enforceable against the state.
13. Closer to the present circumstances was the claim in Dietrich v The Queen [32] that an impecunious person charged with a serious indictable offence was entitled to counsel provided at public expense. As Mason CJ and McHugh J noted, implicit in the claim was the principle that "absence of representation necessarily means that a criminal trial is unfair." [33] The asserted right was not recognised, although it was accepted that the power to grant a stay was engaged in circumstances where a trial without representation would be unfair and, where a trial has proved to be unfair, the conviction could be quashed on appeal. Dietrich denied the right of a person accused with serious criminal offences to have legal representation supplied at public expense. There was no directly enforceable "right" to counsel.
14. It is, in any event, an awkward use of language to suggest that in the present case the respondent is being denied "access to justice". He has been charged with criminal offences to which he has pleaded (or intends to plead) not guilty. There is no suggestion that he will not be able to run whatever defences he wishes, have the witnesses for the prosecution cross-examined, make submissions and take the usual steps to defend himself. There is no suggestion that, despite his present detention in custody, he will not be able to attend court for his trial, as he attended court on the present appeal. Rather, what he complains of is access to equipment in the form of a scanner and a laptop computer, which he claims are necessary to allow him properly to prepare his defence. He does not suggest that the State provide such equipment; he seeks to have his own equipment available in his cell. The question he sought to raise is, essentially, what is required, as a matter of law, to provide a trial which will not be unfair. There is no doubt that that issue could be raised before the trial court. But its enforcement must be indirect because he has no legal, equitable or statutory right to enforce. The Supreme Court's jurisdiction under s 23 is not engaged.
15. The respondent resisted the suggestion that the application should be made to the trial court, on the basis that (a) it had no jurisdiction to order the Commissioner for Corrective Services to take the steps sought by the respondent, and (b) even if indirect enforcement were available via a stay of the criminal proceedings, that would simply result in a further period of detention for the respondent. Both points may be accepted as correct in a practical sense, but they do not create a cause of action which does not otherwise exist. Further, while it may well be undesirable for a person to languish in detention on remand because the State is unable or unwilling to take steps necessary to ensure a fair trial, the appropriate remedy is an application for bail. [34]

(a) Long-standing authority requiring constraint

1. Both this Court and the High Court have affirmed the undoubted power of the trial court to take appropriate steps to ensure that a trial for a serious criminal offence is not procedurally unfair to the accused. Before the decisions in Jago and Dietrich in the High Court, this Court in Smith v Commissioner of Correctives Services [35] applied an analysis consistent with that set out above in relation to an application for a declaration with respect to the facilities available at Long Bay Gaol for the conduct of interviews between the appellant and his legal advisers. Because the reasoning of Moffitt P (with whom Hutley JA and Glass JA agreed) is directly apposite in the present case, it is convenient to set out the whole passage: [36] "The powers of the courts in their several criminal jurisdictions are wider and more effective than the power to make the declaration of, and to make ancillary orders to enforce, a right, if it exists, in the way sought in proceedings such as the present. In particular, the powers and discretions of the judge who presides at a criminal trial … are more ample. Thus the judge who exercises criminal jurisdiction, prior to or at the trial, has the overriding duty to ensure that the accused has a fair trial. The practice and procedures of the criminal courts are designed to this end, but in many respects, both in the evidentiary and procedural field, the exercise of jurisdiction is not limited to according to an accused person strict and defined rights. The judge has some overriding powers which impose on him a discretion, and indeed a duty, to do that which is fair to the accused. To ensure that the trial is fair to the accused, it is necessary that he be given a fair and reasonable opportunity to consult with, and instruct, his legal advisers, and to obtain their legal advice in relation to the charges against him. It is to be expected that, when an accused is confined prior to the trial, the authorities responsible for his custody will accord him this opportunity without the need for intervention by the judge or magistrate. If, however, they fail to do so, or if the accused or his legal advisers consider they have so failed, there are ample opportunities for them to seek the intervention of the criminal courts in exercise of the various powers of those courts. If the Court intervenes and gives a direction as to what is to occur prior to the trial, there are ample sanctions, if those charged with the custody were minded to disregard or neglect to obey the directions. When the accused is arraigned, he is in charge of the Court, which can directly give orders which will facilitate the preparation of, and conduct of, the defence of the accused, if earlier frustrated. The Court can postpone or interrupt the trial until that which is fair is done for the accused. Prior to the trial, an application can always be made to the presiding judge or magistrate, if then nominated, but otherwise to any available judge or magistrate then exercising criminal jurisdiction, or the accused can raise the question upon an application for bail. Sanctions which ensure that the Court's insistence that an accused be brought to trial according to its view of the delay which is reasonable are to be found in its power to grant bail or discharge the accused. Sanctions which ensure that he be given what the court considers an adequate opportunity to prepare for the trial are to be found in its power to adjourn the trial or to grant bail. The ultimate sanctions in each of these matters are to be found in the powers relating to gaol delivery … and the power of the Court to discharge an accused not brought to trial, or a combination of these powers. In practice it is not necessary to resort to these sanctions. Upon a complaint being made, it has been traditional for the judge or magistrate, at or prior to a trial or other proceeding, to give directions, and at times merely to make suggestions, which will ensure that the accused person has adequate opportunities to communicate with his legal advisers and, in other ways, that the conduct of his defence is facilitated, subject to any reasonable requirements concerning security. It is a discretion exercised, not according to strict right, but in relation to the particular problems that may face an accused person, so that matters such as psychiatric problems, language difficulties and the extensive nature of the evidence or documents are matters taken into consideration in determining what facilities ought to be afforded to the particular accused and his legal advisers. It has been the practice of the authorities to obey such directions, or implement such suggestions, without question or the need to resort to sanctions. Quite apart from the wider powers and discretions of the courts exercising criminal jurisdiction, they are in a superior position to determine and direct what should be done, and when it should be done. They have ready access to the relevant circumstances which must include the nature of the charge and the demands of the pending trial."
2. Application of these principles should have led the primary judge to reject the application before her. However, it is necessary to have regard to subsequent analysis of Smith in this Court, called in aid by the respondent in support of the decision below.
3. Patsalis v State of New South Wales [37] involved an application by a prisoner for access to his legal documents. There may be some irony in the fact that the primary judge in that case, Schmidt J, refused relief on the basis of the reasoning in Smith set out above. Patsalis followed an alternative approach, allowing an application for judicial review pursuant to s 69 of the Supreme Court Act. However, the application turned on a challenge to the validity of particular practices; [38] Patsalis did not turn on a claim based on a right to a fair trial.
4. The second case relied upon by the respondent was Clark v Commissioner for Corrective Services. [39] Clark too involved a dispute about access to legal papers and a computer to which the appellant sought access in his cell. The application was dismissed, the leading judgment being that of Emmett AJA, with whose reasons Simpson JA agreed. The determinative reasoning, at [84]-[91], did not address the continued relevance of Smith, except to say that "no attempt has been made to draw this Court's attention to specific difficulties arising in relation to the Criminal Proceedings." [40] Simpson JA, however, did address the reasoning and approach of this Court in Smith. Her ultimate conclusion was that it had no operation in relation to civil litigation and, accordingly, "it is neither necessary nor appropriate to decide whether Smith continues to be authority for the proposition that, where the litigation is criminal prosecution, the sole power to make orders with respect to the custodial conditions of an accused person relevant to his/her defence preparation, lies with the proposed trial judge or the court in which the proceedings are to be tried (although I harbour considerable doubts about that proposition)." [41]
5. The reasons for the doubts derived from two related propositions. The first was that neither the President nor Hutley JA in Smith had identified the authority to whom relevant "directions" could be given; [42] indeed, the source of power to give orders or directions was not identified in the judgments. [43] The second and related proposition was that "[t]he reasoning in Smith makes it clear that an underlying assumption is an identity of the custodial authority with the prosecuting authority, or, at least, that the custodial authority and the prosecuting authority share a common interest in the finalisation of criminal proceedings." [44] In that respect, Simpson JA noted that, when Smith was decided, prosecutorial decisions lay with the Attorney-General, whereas, since 1986, they are made in the office of the Director of Public Prosecutions. [45]
6. There have undoubtedly been changes in the administration of criminal justice, and in the regulation of prisons, since 1978. I referred to some of these changes in Clark at [5]-[14]. Those observations were primarily directed to the potential scope for judicial review of the operation of the legislation and regulations, and did not deny the powers of a criminal court. While there was certainly a change in prosecutorial authority, it is not clear that it is relevant to the jurisdiction and power discussed in Smith. First, as explained by Moffitt P, the powers conferred on a judge exercising criminal jurisdiction were not limited to protecting the position of the accused "according to strict right". [46] Secondly, the reference to "the practice of the authorities to obey such directions … without question or the need to resort to sanctions" [47] demonstrates that the Court envisaged orders directed to the authorities having custody of the accused and did not contemplate that the orders would be enforceable, for example by a charge of contempt for disobedience. Thirdly, the "sanctions" which were envisaged in Smith were the adjournment of the trial, the grant of bail or the discharge of the accused, being powers vested in the judge exercising criminal jurisdiction. None of this has changed. Indeed, the powers of the Court were confirmed, following Jago and Dietrich, in Walton v Gardiner, [48] a case involving disciplinary proceedings against three medical practitioners. In the joint reasons of the majority (Mason CJ, Deane and Dawson JJ) the following passage appears: [49] "In Jago v District Court (NSW), at least three of the five members of the Court clearly rejected 'the narrower view' that a court's power to protect itself from an abuse of process in criminal proceedings 'is limited to traditional notions of abuse of process'. [50] Mason CJ considered that a court, 'whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves', possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness. … In her judgment in Jago, [51] Gaudron J stressed that the power of a court 'to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.' Her Honour added the comment 'that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand'. Subsequently in her judgment, [52] her Honour made clear that, subject to some refinements which she identified, that comment was also appropriate to be adopted in relation to criminal proceedings."
7. There was no suggestion that subsequent decisions of the High Court had cast doubt on these statements of principle: indeed, as will be noted below, more recent authority affirms the principles stated in Smith. It follows that, while there may be circumstances in which the interests of an accused person in criminal proceedings may be protected by exercise of the supervisory jurisdiction of this Court, a judge of the Supreme Court would not normally intervene with respect to the exercise by the District Court of its criminal jurisdiction.

(b) Authorities following Smith

1. Although a judge in the Division, not being the trial court, has no power to grant the respondent the relief sought, there are a series of cases in the 1980s in which this Court has granted relief of the kind which might be granted by the trial court. Putting to one side the fact that the respondent has not sought to invoke the original jurisdiction of this Court, nor has he sought the kind of relief which might be available in the trial court, it is desirable to explain the historical circumstances in which those cases arose in order to explain why they no longer provide persuasive authority for the exercise of any residual jurisdiction this Court may possess.
2. The historical context must focus upon relevant statutory developments. First, the use of prerogative writs, and other devices adopted in England before the twentieth century, to remedy apparent errors in criminal convictions, pre-dated the enactment of the Criminal Appeal Act 1907 (UK) and, relevantly for present purposes, the Criminal Appeal Act 1912 (NSW). Indeed, the most common pre-appeal forms of review, by way of a writ of error and a motion for a new trial, have been abolished. [53]
3. The Criminal Appeal Act, in its original form, did not deal with pre-trial applications or interlocutory determinations. Where it was thought that the prosecution case, as revealed in the course of a committal hearing, was inadequate to support a conviction, an application was made (and may still be made) to the Attorney General (and, since 1986, to the Director of Public Prosecutions) not to file a bill of indictment. However, as held in Barton v The Queen, a decision on such an application is not reviewable. [54]
4. The question in Barton was whether it was unfair to allow a prosecution to proceed in the absence of committal proceedings with respect to a particular charge. The Court divided on the question whether that would form a sufficient basis to stay the trial of an indictment. However, the possibility that there should be a stay of the trial pending a committal proceeding was said by Gibbs ACJ and Mason J to be "a matter for the Supreme Court in its Criminal Law Division", [55] where the criminal trial was to be held.
5. An application for a stay on the basis that the pursuit of criminal proceedings would be unfair came before this Court in Watson v Attorney General for New South Wales. [56] The proceedings were, in effect, an exercise of the Court's supervisory jurisdiction in relation to the District Court proceedings, where an application to the trial judge had been made, but the stay refused. This Court reversed the decision of the District Court judge, Priestley JA (with whom Street CJ and Hope JA agreed) stating: [57] "For the reasons I have earlier given it is my opinion that it is the District Court which has jurisdiction in its Criminal Jurisdiction to deal with all matters between committal and trial which are necessary to be decided before the trial. It follows that the substance of the order which should be made is that the proceedings in the District Court be stayed." To give effect to that order, the District Court was added as a party, the trial judge having been originally named, an appropriate formality in the exercise of the supervisory jurisdiction.
6. In Herron v McGregor [58] (a case involving disciplinary proceedings against medical practitioners) McHugh JA stated (with the agreement of Street CJ and Priestley JA) that "[t]he power of a superior court under its supervisory jurisdiction to stay criminal as well as civil proceedings in an inferior court on the ground that they are an abuse of process was recognised in Miller v Ryan". [59] Miller involved committal proceedings in which the issue of relief only arose after the judge had found that the magistrate hearing the committal proceedings had wrongly concluded that he had no power to stay them on the basis that they constituted an abuse of process. In Herron, the observation about criminal proceedings was obiter.
7. Finally, Attorney-General (NSW) v Kintominas [60] raised the same issues as Watson and led to the same form of relief. When the matter had been before a single judge of the court, an issue had been raised as to whether the matter should have awaited a finding by the trial court or, if relief in the supervisory jurisdiction were to be sought, whether it should be heard by the Court of Appeal. That issue was disposed of by Priestley JA concluding that the application in fact made to a District Court judge "was in substance to obtain a permanent stay of the proceedings", [61] with the result that the jurisdiction and powers were indistinguishable from Watson.
8. It may be doubted that any of these authorities provides support for the proposition that this Court has authority to stay a trial on indictment in the District Court, as opposed to reviewing a decision to refuse a stay made in the trial court. Certainly they provide no express support for the submission that a judge in the Supreme Court has such powers. As no reference was made in the submissions in the present appeal to any of these cases, other than Watson, it is undesirable to decide this issue. Further, it is unnecessary to do so because they provide little, if any, guidance with respect to proceedings post-dating 1987 (none of them did) when s 5F was introduced into the Criminal Appeal Act, conferring jurisdiction on the Court of Criminal Appeal with respect to appeals against interlocutory judgments or orders given or made in proceedings for the prosecution of offenders on indictment.

(c) New legislative regime

1. The introduction of s 5F was accompanied by amendments to the Supreme Court Act. Thus, s 17 of the Supreme Court Act now provides: 17 Criminal proceedings (1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule. … (3) Subsection (1) does not affect the operation of sections 1, 2, 5, 6, 7, 41, 53, 54, 55, 72, 101 (5) and 130. The Third Schedule relevantly provides: Third Schedule Criminal proceedings … (a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment (indictment including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court, … (d) proceedings in the Court under the Criminal Appeal Act of 1912,
2. Rather than identify the particular amendments by which this result was achieved, it is sufficient to note that the original amendments, introduced by the Supreme Court (Appeals) Amendment Act 1987 (NSW) and the Criminal Appeal (Amendment) Act 1987 (NSW) had their origins in the cases, including specifically Watson, referred to above. In the second reading speech introducing those Bills the Attorney-General (Mr Sheahan) stated: [62] "At present, if an interlocutory judgment or order such as a stay of proceedings is refused in criminal proceedings in the District Court, the accused may apply to the Court of Appeal for review. However, the Supreme Court Act 1970 precludes any such application, and any appeal, to the Court of Appeal from criminal proceedings in the Supreme Court. The bill will amend the Supreme Court Act to exclude an application or appeal to the Court of Appeal from criminal proceedings on indictment in the District Court, including matters committed for sentence under section 51A of the Justices Act 1900. The anomaly arose when the Court of Appeal, in a number of recent cases, confirmed that its supervisory jurisdiction over the District Court, conferred by section 48 of the Supreme Court Act, extended to hearing applications for relief from an interlocutory order or judgment of a District Court judge in criminal proceedings. Most notably, this jurisdiction has been resorted to by defendants seeking a permanent stay of proceedings. In the recent case of Watson v. The Attorney General the Court of Appeal granted a permanent stay after the trial judge in the District Court had refused a similar application. Three or four applications for a stay of proceedings are being made in the District Court each week. The majority of them are unsuccessful but the decision in Watson's case has encouraged applications to be made to the Court of Appeal against the refusal by the trial judge to grant a stay."
3. In their terms, s 17 and the Third Schedule to the Supreme Court Act would appear to expressly limit the operation of s 23, and the power to grant prerogative relief under ss 65 (order to fulfil a duty), 66 (restraint by way of injunction) or s 69 (prerogative relief) in relation to criminal proceedings. On the other hand, a contrary view was taken in Adler v District Court of New South Wales. [63] In Adler a stay had been sought from a District Court judge, but refused. The proceedings challenged that decision but were held also to seek relief independently of the challenge and thus not fall within the transfer of power to the Court of Criminal Appeal. This Court treated the transfer as a form of privative clause and, in the words of Kirby ACJ, found no "clear legislative language to oust the jurisdiction of the Court of Appeal from exercising such a beneficial and important function." [64] (Whether the "beneficial and important function" would not be adequately exercised by the Court of Criminal Appeal was not addressed, except by reference to the fact that the application was heard in vacation.) There was no discussion of the clear intention revealed in the second reading speech of the Minister.
4. However, Adler does not assist the present respondent, for two reasons. First, as noted, Kirby ACJ expressly treated the unaffected jurisdiction as that of the Court of Appeal. To similar effect, Mahoney JA stated: [65] "For the reasons I have given, the Supreme Court of New South Wales has jurisdiction to entertain an application for the relief sought. In my opinion, the Supreme Court Act continues to 'apply' to the intent that that jurisdiction of the Supreme Court is to be exercised by the Court of Appeal. In other words, the available jurisdiction was the supervisory jurisdiction of the Court of Appeal with respect to the District Court exercising criminal jurisdiction. No such jurisdiction was invoked in the present case.
5. Secondly, no relief was granted in Adler because the relevant grounds did not provide a basis for relief. Had the Court considered relief to be properly available, a separate question would have arisen as to whether the Court of Criminal Appeal, which undoubtedly had jurisdiction to review the orders of the District Court judge, was the appropriate forum for consideration of that issue. There would generally be powerful reasons for the Court of Appeal to allow the proceedings which had been commenced in the Court of Criminal Appeal to be concluded, although Kirby ACJ noted that no submission raised that discretionary issue. [66]
6. Nor should it be thought that this Court will readily intervene in circumstances where no order has been sought in the District Court which might be subject to appellate review by the Court of Criminal Appeal. As explained in W O v Director of Public Prosecutions (NSW), [67] where there is no basis for finding that the District Court is, or is threatening to, act in excess of jurisdiction, the invocation of the supervisory jurisdiction of this Court is misconceived. [68] In a case where the defect in jurisdiction is patent and not dependent on evidence, either to establish it or cure it, relief in the nature of prohibition may be granted. [69] That is not this case. As was said in Craig v South Australia, [70] "the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine." As further stated by the Full Court of the Federal Court, the court will exercise restraint and resist interfering in criminal proceedings at an interlocutory stage in the absence of the clearest reason to do so. [71]
7. That approach has more recently been confirmed by the High Court in Gedeon v Commissioner of the New South Wales Crime Commission. [72] The case involved two appellants who had been charged with drug importation offences detected through authorities granted to conduct controlled operations. Separate proceedings were commenced to challenge the validity of the authorities. One applicant had not yet stood trial, the other had been convicted. The procedural steps behind the challenge were identified and commented on in the following passages from the judgment of the Court: "[19] On 28 March 2006, at the committal proceedings in the Central Local Court, senior counsel for the Commissioner moved to have set aside a subpoena addressed to his client. He submitted that the Authorities had to be accepted for what they purported to be and that any question directed to the Commissioner which sought to 'go behind' them could not be relevant. Counsel said that it might be possible to obtain declaratory relief in the Supreme Court, but that this was a matter for the applicants. There followed the institution of the Supreme Court proceedings. … [22] The course of this litigation should not be taken as authority that the submissions made by counsel for the Commissioner on 28 March 2006 at the committal proceedings were correct. The reasoning in Ousley v The Queen [73] supports the contrary position at least where, as here, the argument is that the issue of the Authorities was an administrative act beyond the statutory power conferred on the Commissioner. Further, s 138 of the Evidence Act, in speaking of 'evidence ... obtained ... improperly or in contravention of an Australian law' [74] , in a situation such as that respecting the validity of the Authorities, presents an issue under that section which calls for the trial judge to rule on a 'collateral' attack. [23] With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings [75] . The fragmentation of the criminal process is to be actively discouraged. In any event, a declaration may be of limited utility where founded, as would be the case here, on facts admitted only for the purposes of the satellite litigation."
8. These authorities emphasise that (a) the jurisdiction to determine collateral challenges is vested in the criminal trial court and (b) there is power to stay criminal proceedings conditionally or permanently, if that course be held necessary to ensure that an accused obtains a fair trial. The present case did not involve a collateral challenge to the validity of steps taken by the investigating authority or a prosecutor, but there is no doubt that the trial court has power to grant a stay if appropriate and that it is generally wrong for the Supreme Court to exercise some form of supervisory jurisdiction in advance of, or during, a criminal trial in the District Court.

(6) Conclusions

1. The proposition that the Supreme Court has power to order a gaoler to take steps to provide a prisoner with resources to run his criminal defence goes a step further than any authority to which the Court was directed and is untenable. Importantly, no authority suggested that it was a proper function of the Supreme Court to weigh the demands of a prisoner for access to equipment which was not permitted in the gaol according to ordinary operating procedures against the gaoler's concern for security.
2. It is notorious that security in prisons is a serious issue at all times. The particular concerns raised in this case involved the potential for smuggling in small modems which could then be used by prisoners with mobile phones (illegal, but known to exist within the gaols) to obtain access to the internet (also a prohibited practice).
3. By contrast, where a prisoner seeks the taking of steps necessary to ensure a fair trial, the nature of the claim must be analysed in the context of the system of criminal justice. It is undeniable that, at least in many cases, a person who is arrested, charged and denied bail will be hindered or impeded by the constraints of custody, as compared with an accused person who is at large in the community awaiting trial. The accused person in custody may apply for bail, but has no separate entitlement to seek an order from a Supreme Court judge directing that he or she be released from custody by the governor of a prison for the purpose of conferences with his or her legal representatives. The assumption underlying the significant number of cases addressing communications between prisoners and their legal representatives is that such communications must occur within the confines of detention.
4. None of that is to deny that the respondent should not have a reasonable opportunity to prepare his defence prior to the commencement of his criminal trial. Rather, it is to insist that the authority responsible for the conduct of the trial, namely in this case the District Court, is the proper forum for determining what is necessary in the circumstances of the particular case.
5. The respondent submitted that he should not be restricted to seeking a stay in circumstances where the trial court, having no direct power to order the Commissioner to take particular steps, was limited to granting adjournments of the trial until necessary steps were taken. He submitted that further adjournments were not appropriate, given the delays which had already occurred.
6. There have been delays in this matter, including the vacation of five earlier trial dates; such delays are much to be deplored. They appear to have arisen (at least in part) through difficulties faced by the respondent in obtaining access to material in the custody of police, by way of hard drives and other electronic files. However, no evidence has been placed before this Court as to what applications were made, or the precise orders and directions given in the District Court, since the first hearing date in August 2015 was vacated, except for the brief records of the District Court proceedings on 22 September 2017, 31 October 2017, 14 November 2017 and 4 December 2017, each of which was before Conlon SC DCJ. At each of those hearings the respondent had legal representation. There is no evidence that the respondent has at any stage made an application to the District Court seeking to have the computer and scanner available to him in his cell.
7. As a matter of law, the orders made by the primary judge are not supportable and must be set aside. The Commissioner having undertaken to pay the reasonable legal expenses of the respondent in this Court in any event, no order is required as to the costs of the appeal. No order was made as to the costs before the primary judge, where the respondent appeared in person, and none is sought.
8. As the orders of the primary judge are to be set aside on the ground that she erred in making findings as to the facts, the District Court should not feel constrained to act on those findings. The facts have, in any event, changed since the orders were made, although the parties put on no evidence in this Court to detail the steps taken since the orders were made, more than three months earlier. (The orders were not stayed.)
9. Accordingly, this Court should make the following orders: 1. Grant the Commissioner leave to appeal. 2. Allow the appeal and set aside the orders made in the Common Law Division on 31 January 2018. 3. In place thereof, order that the summons filed on 19 January 2018 be dismissed.
10. WHITE JA: One of the issues raised on the Commissioner's application for leave to appeal is whether orders of the primary judge were made in the exercise of the Supreme Court's jurisdiction to review administrative decisions or conduct under s 69 of the Supreme Court Act, or whether the orders were made in the exercise of the Supreme Court's jurisdiction under s 23 of the Supreme Court Act. Section 23 provides: "23 Jurisdiction generally The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales."
11. Both Mr Emmett who appeared with Ms Robb Vujcic for the Commissioner, and Ms Bashir SC who appeared with Mr Norrie for Mr Liristis, submitted that the better view was that the primary judge was exercising jurisdiction by way of judicial review of administrative decisions or conduct of the Governor of the Long Bay Prison in which Mr Liristis is held. That was the position taken by the Commissioner at trial. In my view the better reading of the primary judge's reasons is that that was not the jurisdiction her Honour exercised.
12. Mr Liristis had not sought relief by way of judicial review. The Commissioner had sought to define Mr Liristis' claim to access to a laptop as a claim for relief in the nature of mandamus. The potential for such a claim had been acknowledged in Clark v Commissioner for Corrective Services [2016] NSWCA 186. That was not the basis upon which the primary judge acted. One reason for this conclusion is that had her Honour approached the question through the prism of s 69 of the Supreme Court Act she would have been required to address the question of whether or not the decisions made in relation to Mr Liristis' access to his laptop and scanner were within or outside the powers for regulation of a prison under the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Administration of Sentences) Regulation 2014 (NSW). Her Honour would have been required to address the question as to whether or not the decision not to allow Mr Liristis 24-hour per day access in his cell to his laptop and access to a scanner was so unreasonable as to fall within the scope for judicial review allowed by Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [66]-[74]. Her Honour did not address those questions. That does not connote error. Rather, it indicates that the primary judge proceeded on a different basis.
13. The primary judge said (at [15]): "On the Commissioner's case, if Mr Liristis could not receive a fair trial without such access, the appropriate remedy would be an adjournment or stay of the proceedings: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 and Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46. That however, would be a matter for the trial judge to determine."
14. In my view the whole of that paragraph was a statement of the Commissioner's case at trial. The second sentence was not a conclusion drawn by the primary judge. The primary judge did not accept either of the elements of the Commissioner's case as there articulated. The primary judge went on to consider decisions as to the power of a trial court to make orders in respect of the right of a prisoner on remand or a convicted prisoner with a pending appeal to have access to computer facilities. Her Honour said (at [18]-[23]): "18 How the Court might deal with a situation where a person who is in custody is not provided with reasonable facilities to prepare their case, was discussed by RS Hulme J in Miles v R [2012] NSWCCA 88 at [3]-[7]. 19 Mr Liristis relied on what was observed by Basten JA in Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [53]: '53 Thus, where a prisoner has a legal right enforceable by a court under the general law, conduct calculated to obstruct or interfere with his or her access to the courts will constitute a contempt, for which, in turn, there will be a right of access to the courts for relief in respect of the contempt. Such a right may be removed or conditioned by statute, but the intention in that respect must be clear. While the imposition of a leave requirement, which vests control of access to the courts within the courts themselves, will involve a lesser intrusion on civil rights than other forms of restraint, the presumption in favour of non-interference will mean that the leave requirement will not be given an expansive construction.' 20 The Commissioner relied on R v Rich (Ruling No 2) [2008] VSC 141 (2 May 2008), where access to a laptop computer was refused, even though Lasry J took the view that in Mr Rich's circumstances, use of computer facilities for preparation and the giving of instructions in the trial was necessary: at [68]. That conclusion was reached because arrangements were made so that either the central processing unit of the computer to which Mr Rich had access in custody, or the computer itself, was to be transported to court each day: at [71]-[73]. 21 It emerged after an adjournment, on the second day of the hearing, that the defendants had no objection to Mr Liristis having access to his laptop to use in court during the hearing. He explained that he intended to show some documents to the jury electronically, so that they could follow certain cross-examination, for example. It was his desire to have access to the laptop prior to the hearing and during the course of the trial outside of court, which were in issue, as was the access he sought to his printer. 22 In Knight v Wise [2014] VSC 76 Forrest J concluded that Mr Knight not having access to a laptop did not impede his access to the courts, given the access which he had to legal materials, four days a week, in the prison library. 23 In Brazel v Westin [2013] VSC 527 Kaye J observed at [22] that the question for the Court on an application such as this is 'whether the action, or inaction, of the defendants and the prison authority, would preclude the plaintiff from having effective access to the court'. Some 9 months before trial his Honour concluded that the computer facilities which had been made available to Mr Brazel had been adequate, but that if events were to occur before trial, which obstructed that access, the issue may need to be revisited, as to which he observed: '31 In particular, it is important that the prison authorities ensure that the plaintiff does have adequate access to a computer, particularly in the week or so leading to his trial, and during his trial. It is equally important that the defendants to the litigation take into account the fact that the plaintiff is unrepresented, and that he is preparing his case in the difficult environment of a prison. The defendants must allow for the fact that there may be some delay between the delivery by them of documents to the prison, and the receipt of these documents by the plaintiff. It is the obligation of the defendants to ensure that the documents are received by the plaintiff, and thus served on him, within an appropriate time frame. In doing so, the defendants should be astute to serve material on the plaintiff in sufficient time to enable him to consider it, and to respond to it, bearing in mind the limited access which he has to computer facilities in the prison complex.'"
15. After addressing the detail of Mr Liristis' complaints, to which it will be necessary to refer below, the primary judge concluded (at [60]): "As RS Hulme J discussed in Miles, the Commissioner must provide reasonable facilities for someone in Mr Liristis' position, so that he can prepare and conduct his defence in the District Court, at the trial due to commence next week. On the evidence, I am satisfied that without the orders I propose to make, Mr Liristis will not have access to such facilities."
16. In my view, notwithstanding the approach taken by counsel for both parties on appeal, the primary judge did not decide the issue on administrative law grounds, but on the basis that as a judge of the Supreme Court she had jurisdiction to make the orders substantially as sought by Mr Liristis to protect the jurisdiction of the District Court to conduct a fair trial that was due to commence in five days' time. In my view the primary judge was right to conclude that she had that jurisdiction and there was no error in the particular circumstances of this case, having regard to its long history and the imminent trial date, in her Honour's dealing with Mr Liristis' application herself, rather than remitting it to the District Court.
17. Under s 23 of the Supreme Court Act 1970 the Supreme Court has all jurisdiction which may be necessary for the administration of justice in New South Wales. That jurisdiction includes what has been called the supervisory jurisdiction in respect of inferior courts and tribunals. That jurisdiction has been regulated by statute, in particular by s 23 of the Criminal Appeal Act 1912 (NSW) (abolishing writs of error and motions in the Supreme Court for a new trial), s 5F of the Criminal Appeal Act and the consequential amendment to s 17 of the Supreme Court Act (providing for appeals to the Court of Criminal Appeal from an interlocutory judgment or order of the District Court in proceedings for the prosecution of offenders on indictment) and s 48 of the Supreme Court Act 1970 (assigning proceedings for judicial review of orders of the District Court to the Court of Appeal). But those statutory provisions regulating the Supreme Court's inherent supervisory jurisdiction do not deny or limit that jurisdiction except in so far as contrary provision is made.
18. The supervisory jurisdiction of the court of King's Bench was primarily exercised by the issue of prerogative writs. In Holdsworth, A History of English Law (7th ed, 1956) vol 1, 213 and in Kiralfry, Potter's Historical Introduction to English Law and its Institutions (4th ed, 1958) 126 it is said that in criminal cases the writ of certiorari was used where a fair trial could not be obtained in the inferior court. Potter said (at 126): "The writ directed that the proceedings should be brought before the judges of the King's Bench to satisfy themselves that the proceedings were being properly conducted. They might then hear the case, or remit it to the county where the offence was committed, or order it to be tried by the justices sitting at Nisi Prius."
19. In Stephen, New Commentaries on the Laws of England (1845) vol 4, 389 it was said: "... [W]rits of certiorari facias are usually had ... to certify and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction, into the court of queen's bench; which is the sovereign ordinary court of justice in causes criminal, and has consequently the power of issuing this writ to any court of rank subordinate to its own, in causes of this description, unless the certiorari be taken away by the express words of some act of parliament. A certiorari is frequently granted for one of these four purposes: ... 2, where it is surmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed in order to have the prisoner or defendant tried at the bar of the queen's bench or before the justices of nisi prius ..."
20. The supervisory jurisdiction of the Court of King's Bench in respect of the administration of justice in inferior courts was part of the jurisdiction conferred on the Supreme Court from its inception (Charter of Justice 1823 (UK) s 2; Australian Courts Act 1828 (UK) s 3). It was not confined to the exercise of supervisory jurisdiction by the issue of prerogative writs. The importance of this lies not in the detail of the grounds on which the Court of King's Bench supervised inferior courts by the use of prerogative writs. That was not the jurisdiction the primary judge was exercising. As Basten JA explains (at [95]-[98]) a result of amendments to the Supreme Court Act 1970 in 1987, claims for relief against interlocutory orders of the District Court proceedings must now be brought by way of appeal to the Court of Criminal Appeal. What is important is that the foundation for the exercise of supervisory jurisdiction by the prerogative writs was to ensure a fair trial in the inferior courts. The Court of King's Bench's superintendence of the criminal jurisdiction was not confined to a writ of error or writ of certiorari. From the late 17th century it extended to the entertaining of motions for a new trial, on the ground of misreception of evidence, misdirection, or that the verdict was against the weight of the evidence (Holdsworth, vol 1, 216). Those remedies were abolished by s 23 of the Criminal Appeal Act.
21. In John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 the High Court held that the Supreme Court had jurisdiction to punish a contempt of an inferior court. The plurality, Dixon CJ, Fullagar, Kitto and Taylor JJ, said (at 363): "The power to punish for contempt of inferior courts and the power to issue mandamus or certioriari to inferior courts are seen as in truth but different aspects of the same function - the traditional general supervisory function of the King's Bench, the function of seeing that justice was administered and not impeded in lower tribunals."
22. The function of seeing that justice was administered and not impeded in a lower tribunal was the function the primary judge exercised in this case.
23. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred to John Fairfax & Sons Pty Ltd v McRae in explaining the power of a superior court in its supervisory jurisdiction to stay criminal as well as civil proceedings in an inferior court on the ground of abuse of process (at 250-251).
24. In Watson v Attorney-General for New South Wales (1987) 8 NSWLR 685 the Court of Appeal (Priestley JA with whom Street CJ and Hope JA agreed) said (at 697 and 700) that the Supreme Court has power to prevent abuse of procedure in the institution or continuation of proceedings in both civil and criminal cases in inferior courts and tribunals. There, proceedings were commenced by summons in the Court of Appeal prohibiting a District Court judge from proceeding in a pending criminal matter to trial and reviewing the judge's decision to refuse to grant the accused's application for a permanent stay. Priestley JA (at 702) noted that the Court was invited to deal with the case on the basis that the Court's jurisdiction was: "… wider than that exercised in regard to what were formerly called the prerogative writs but instead must be of an original kind, permitting the court to deal with the material before it as a matter at first instance which it would decide simply by applying the relevant legal principles to the merits of the case appearing from the factual material in evidence." (at 702) The Court did so. It must have been satisfied of its jurisdiction.
25. In Attorney-General (NSW) v Kintominas (1987) 28 A Crim R 371, which was heard with Watson v Attorney-General for NSW and decided on the same day, the Court of Appeal dismissed an appeal from orders of Rogers J, sitting in the then Administrative Division of the Supreme Court. Rogers J had ordered that any proceedings against the accused upon an indictment which might thereafter be presented on the facts founded on certain counts of an indictment that had been presented before a judge of the District Court be permanently stayed (at 371-372). The Attorney-General accepted that a court could stay proceedings on the ground of abuse of process and that the Supreme Court had a supervisory jurisdiction over the District Court as an inferior court. The orders of the primary judge were varied to provide for the joinder of the District Court as a party bound by the order for a permanent stay. Priestley JA said (at 374) that: "... the circumstances of the present case show good reason for being in favour of the power of the court to make quia timet orders where necessary; I see no reason why the Supreme Court's supervisory jurisdiction should not extend to the making of such orders when required. However, as it seems to me that it is not necessary to decide the question I think it preferable to do no more for the present than indicate my tentative opinion."
26. Street CJ and Hope JA agreed.
27. Thus, except as modified by contrary statutory provision, the jurisdiction of the Supreme Court in respect of the administration of justice in New South Wales at least extends to supervising and protecting the administration of criminal justice in inferior courts by the grant of prerogative relief, dealing with a contempt of the inferior court, and staying proceedings in the inferior court where there is an abuse of process because a trial will be unfair.
28. There is no contrary statutory provision applicable to the present case. No order of the District Court was impugned. No order was sought or made commanding the District Court to take any step, nor prohibiting it from doing so. Section 48 of the Supreme Court Act did not assign the proceeding to the Court of Appeal. There was no appeal from an interlocutory order of the District Court to be assigned to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act.
29. The submission of the Commissioner is that the jurisdiction does not extend to the making of orders in aid of the inferior court's jurisdiction to ensure that a trial will be fair. That in turn raises subsidiary questions. Could the District Court in the exercise of its criminal jurisdiction make the orders made by the primary judge? If yes, does that mean that only the District Court in the exercise of its criminal jurisdiction and not the Supreme Court can make such orders, or can the Supreme Court intervene if circumstances so require? If no, does the Supreme Court have jurisdiction to make orders that the District Court could not make in order to ensure a fair trial in the District Court. If no, does that mean that if by reason of the conditions of his imprisonment Mr Liristis is unable to obtain access to data stored on his computer that cannot otherwise be accessed, which he claims will exonerate him from the charges he faces, his trial must be permanently stayed? Does it mean that his trial must proceed, even though it would not be fair?
30. The answer to the last question must be no. The right of an accused to a fair trial is fundamental. But if Mr Liristis is guilty of the offences with which he has been charged (the details of which have not been made available to us, but apparently involve charges of sexual assault), it would be an affront to the administration of justice if the charges had to be permanently stayed because Mr Liristis was not afforded facilities in prison when he is on remand to enable him fairly to defend the charges. There is of course the possibility of bail, but this Court does not know what considerations would be relevant to a grant of bail. It may be that bail would be refused notwithstanding Mr Liristis' need to obtain access to data. There may be concerns about interference with witnesses, flight, or the commission of other offences. None of this was before either the primary judge or this Court.
31. That being so, if bail be put aside, then unless the Supreme Court or the District Court has jurisdiction to make the orders made by the primary judge, the trial would have to be permanently stayed and Mr Liristis released.
32. Ms Bashir submitted that the District Court did not have jurisdiction to make an order binding the Commissioner or the Governor because they were not parties to the pending criminal trial. This Court's decision in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 supports that submission. Moffitt P (with whom Hutley and Glass JJA agreed) in the passage quoted by Basten JA at [81] said that the Court before whom the accused was arraigned and was in its charge could directly give orders which would facilitate the preparation of and conduct of the defence of the accused (at 320). The remedies proposed if this were ineffectual were postponement of the trial, or release on bail, or discharge of the accused. Moffitt P observed that in practice it was not necessary to resort to those sanctions and that traditionally the judge or magistrate charged with the conduct of a trial would give directions or make suggestions that the prison authorities would comply with. The sanctions to which Moffitt P referred, being the power to grant bail or to discharge the accused or to adjourn the trial, were indirect sanctions. There are statutory constraints in respect of the grant of bail and there may be very good reasons not to grant bail in the interests of the protection of the community, or to preserve a fair trial if there were concern about interference with witnesses. To discharge an accused who cannot be brought to trial because he or she could not be afforded a fair trial due to the conditions of his or her imprisonment would be to neglect the interests of the community in the administration of criminal justice (Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 per Brennan J at 49-50). To adjourn the trial whilst the accused is on remand would mean that the accused, although presumed to be innocent, would face a further period of incarceration whilst there was a stand-off between what the Court required by way of provision of facilities for a fair trial and what the prison authorities were prepared to afford.
33. In Smith v Commissioner of Corrective Services, Hutley JA said (at 326-327): "However, the accused does not have to wait until the trial miscarries, or the committal proceedings are abortive, to overcome difficulties he may have in preparing his defence. His remedy is to appeal to the judge or the magistrate to obtain assistance in the provision of proper facilities. ... Where a judge or magistrate has been designated to conduct the trial, or the committal proceedings, as the case may be, he can make application to that judge or magistrate. Where none has been designated, he can make application to the appropriate court. ... [I]t is only a judge or magistrate who is engaged or about to be engaged in the case who can make orders and give directions with sufficient particularity to ensure that the accused can properly prepare his case."
34. Hutley JA also said: "The appropriate party is not the Commissioner of Corrective Services or any of his officers, because they do not owe any duty to the accused to provide him with the complete facilities to conduct his defence. It is their duty to hold the prisoner in accordance with the Prisons Act and the Prisons Regulations. This they have done. The declaratory procedure is not available against a Supreme Court judge, where the trial is being conducted in the Supreme Court. Orders in the nature of mandamus may be sought against a magistrate or a District Court judge if, when proper application is made, they refuse to exercise the authority which they have."
35. Glass JA also agreed with Hutley JA.
36. In Smith v Commissioner of Corrective Services the Court of Appeal did not consider the extent of the supervisory jurisdiction of the Supreme Court. The later decision of Attorney-General (NSW) v Kintominas is inconsistent with the conclusion in Smith that a civil court cannot intervene in the pre-trial or trial process of a criminal court. In Kintominas the Solicitor General (Mr Mason QC as he then was) said that the Crown accepted that a court could stay proceedings on the ground of abuse of process and that the Supreme Court had a supervisory jurisdiction over the District Court.
37. In Clark v Commissioner for Corrective Services Simpson JA addressed changes to criminal practice since 1978 observing that prosecutorial decisions then lay with the Attorney-General, and that the Office of Director of Public Prosecutions had not then been created. Her Honour noted (at [45]): "It may well have been that prior to 1986, a threat of adjournment of criminal proceedings, or release of an alleged offender on bail, or, more drastically, of discharge of an alleged offender from criminal charges, might have caused some negotiation, some exercise of persuasion, by those officers of government engaged in the prosecutorial process on those engaged in the custodial arrangements. 38 years later, processes have changed. As Basten JA has pointed out, custodial arrangements are now precisely regulated, with power to determine custodial conditions and arrangements assigned to nominated office holders. Some prisons are conducted by private providers."
38. Her Honour said (at [46]): "The majority of criminal trials take place in the District Court; determination of summary offences in the Local Court. It is not at all clear to me that these courts have power to give (enforceable) directions or orders concerning custodial arrangements. Three years after the decision in Smith, Street CJ appeared to take a different view of the power of the courts to give directions concerning custodial arrangements", and (at [49]): "Because the litigation here in question is primarily civil litigation, it is neither necessary nor appropriate to decide whether Smith continues to be authority for the proposition that, where the litigation is criminal prosecution, the sole power to make orders with respect to the custodial conditions of an accused person relevant to his/her defence preparation, lies with the proposed trial judge or the court in which the proceedings are to be tried (although I harbour considerable doubts about that proposition)."
39. In Clark, Simpson JA explained the changes to the administration of prisons since Smith v Commissioner of Corrective Services was decided that affect the continued authority of that decision. The decision of this Court in Kintominas is inconsistent with Smith in that this Court did not query the acceptance by the Attorney-General that a single judge of the Supreme Court in the exercise of the Supreme Court's civil jurisdiction could order a permanent stay of criminal proceedings in the District Court.
40. In this case, the directions and notations made by the judges of the District Court had not achieved their intended outcome of giving Mr Liristis the access to data that he claimed he needed.
41. Ms Bashir noted that it was not apparent from the materials before the primary judge that a trial judge had been allocated for the trial that was due to commence on 5 February. She advised that the ordinary course in the District Court for criminal trials was that a trial judge is allocated on the morning of the trial depending on the availability of a trial judge and jury panel.
42. In my view Smith did not preclude the primary judge from making the orders she made.
43. The next question is whether either the District Court or the Supreme Court could make the orders made by the primary judge, except by way of judicial review of a decision of the Commissioner of Corrective Services or a person employed by Corrective Services or an order in the nature of mandamus to require the making of a decision if none was made. In my view a court before whom a criminal trial is pending or has started has such a power, irrespective of whether or not a decision made by an officer responsible for the administration of the prison is reviewable on administrative law grounds.
44. In Barton v The Queen (1980) 147 CLR 75 Gibbs ACJ and Mason J said (at 96) that: "There is ample authority for the proposition that the Courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial."
45. In Jago v District Court of NSW Mason CJ said (at 31) that a stay is not the only order that can be made for the purpose of preventing injustice to an accused caused by undue delay. Other orders could be made to prevent injustice.
46. In Jago (at 74) Gaudron J said that the power of a court to control its own proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.
47. This was approved in Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 by Mason CJ, Deane and Dawson JJ (at 393-394).
48. In her reasons quoted above at [117] the primary judge referred to decisions of single judges of the Supreme Court of Victoria that addressed the need of an accused in either a criminal trial (R v Rich (Ruling No. 2) [2008] VSC 141) or a civil trial (Knight v Wise [2014] VSC 76 and Brazel v Westin [2013] VSC 527). These in turn referred to Rich v Groningen (1997) 95 A Crim R 272). In those cases no coercive orders were made against the prison authorities requiring them to provide computer facilities to the prisoner to enable the prisoner to defend charges against him or to maintain a claim he asserted, but the jurisdiction to do so was assumed or asserted.
49. In my view, the District Court in the exercise of its criminal jurisdiction could have made the orders sought by Mr Liristis, notwithstanding that the Commissioner for Corrective Services was not a party to the trial in the District Court. No doubt the Commissioner (or the Governor of the prison) would need to have been joined to such an application in the District Court.
50. The question then is whether the District Court, and the District Court alone, could have dealt with the application. In Watson v Attorney-General, which concerned an application for a permanent stay of criminal proceedings, this Court said that such an application should first be made in the Court where the trial would take place and an indictment were presented (at 703). It is only in an exceptional case that the Supreme Court should be asked to intervene. But that is not to deny the Supreme Court's jurisdiction to do so. Whether the Supreme Court should intervene involves the exercise of a discretion. If there were jurisdiction for the primary judge to intervene, no challenge was made to the exercise of that discretion.
51. The application to the primary judge could have been made to the District Court in its criminal jurisdiction. In my view, the District Court in its criminal jurisdiction, even before the presentment of an indictment and the commencement of the trial (Criminal Procedure Act 1986 (NSW) s 130), could have entertained the application and made the orders that the primary judge made. But the question was not free from doubt. When the matter came before the primary judge the trial was scheduled to commence in a few days' time. The case was urgent. The primary judge dealt with it with expedition in the expectation or hope that the trial scheduled in five days' time would proceed.
52. Much of the history of the criminal proceedings and a related civil proceeding in the District Court commenced by Mr Liristis was not provided to the primary judge, nor to this Court. What was presented shows that the primary judge was right to make the orders that she did, assuming that she had the jurisdiction to make those orders (as I think her Honour did).
53. The evidence before the primary judge was that Mr Liristis was committed for trial in December 2014. At that time he was serving a sentence the non-parole period of which expired on 26 September 2015 and the sentence itself came to an end on or about 26 February 2016. The trial was first listed for hearing on 31 August 2015, but was vacated on Mr Liristis' application. It was then listed for trial on 27 June 2016. Again, that trial was vacated on Mr Liristis' application. It was then listed again for trial on 6 March 2017. That trial was vacated on 17 February 2017. That trial was vacated because Whitford DCJ found that the Crown had not supplied notices that it intended to rely upon tendency and coincidence evidence.
54. On 8 March 2017 the solicitor for the Director of Public Prosecutions wrote to Corrective Services NSW noting that the matter had been listed for trial on 9 October 2017 (that is, in seven months' time). At that time Mr Liristis was incarcerated in the John Morony Correctional Complex. The solicitor for the DPP wrote: "The matter has recently been the subject of interlocutory proceedings where Mr Liristis raised issues regarding access to electronic material that comprises part of the brief of evidence. He advised the court that he cannot prepare for his trial that is listed for 9 October 2017 as he cannot access the material provided for him. We write to request that you kindly assist with everything to facilitate the accused being able to read and access the electronic material that has been served on him as we have been requested to do so by the judge that is case-managing the matter."
55. Ms Miniter, Director, Corrections Executive Services and Complaints Management, replied on 31 March 2017, saying that Corrective Services had provided Mr Liristis with extensive assistance, including the provision of extended computer access and that he had supervised access to two computers generally for a period of five to six hours a day, seven days a week, and had access to the legal portal and a standalone "red" computer to allow him to work on documents and access his USB storage device.
56. At this stage Mr Liristis did not have, whether in accessible form or not, documents that had been seized from him that he said contained exculpatory material. It was not until 25 August 2017 that Whitford DCJ ordered that relevant documents for trial be given to Mr Liristis. These included encrypted files on several hard drives.
57. On 29 September 2017 Mr Liristis wrote to Mr Cahill, the manager of security at Long Bay Correctional Centre. He said that most of the digital material supplied by the DPP and the New South Wales Police could not be played or viewed on computers supplied by Corrective Services as they did not have the latest software programs needed for the material to be played, viewed and responded to. He identified the following issues: "a. There is 4792 Audio and Video Recordings, in which I must go through and then transcribe all by myself, of all the Digital Recordings in which I will use in my Defence. b. There is over 6TB (6000 GB) of Digital Material, some of which was only obtained a few weeks ago, with the Two (2) 4TB (4000GB) Hard Disk Drives' (HDD) being supplied by the Police and the DPP. c. I have Four (4) USB Drives containing over 250GB of Digital Evidence most of which I cannot Access, View, Listen or Read. d. There is a 'Voluminous' amount of 'Digital Meta Data' (DMD), Digital Material' (DM), and 'Digital Evidence' (DE) that I must go through, that has already been supplied by the DPP and Police, and further Digital material is still coming from the Police and DPP. e. My Trial was set down for 10 weeks commencing the 9th of October 2017, and this has been postponed until the 6th of November 2017, and I desperately need access to the 'Digital Meta Data' (DMD), 'Digital Evidence' (DE) and my 'Digital Material' (DM), before, during and after trial, and this cannot be made without the use of a portable Laptop, where I can take to Court every day, work in court, as the Crown, the Prosecutor, the Jury and the Judge all have access to their laptops, and then I need to bring the laptop back from Court when I finish court to work on my case at night after court. ... g. Currently I cannot access most of all of the Digital Material' (DM), 'Digital Meta Data' (DMD), the 4792 Audio and Video Digital Recordings and the Digital Material' (DM) supplied by the Police and the DPP, because there is No Software or Programs to pen the Digital Files on any of the Corrective Services NSW Computers. h. The Software or Programs needed to accesses [sic] the Digital Exculpatory Evidence (DEE), 'Digital Meta Data' (DMD) and the 'Digital Evidence' (DE) are located on the Laptop that will be supplied by Mr Ross Hill, from Ross Hill and Associates."
58. Mr Liristis said that at that time he did not have any lawyer, solicitor or counsel and that he was currently representing himself.
59. On 30 October 2017 Mr Fiorenza of the DPP asked the State Electronic Evidence Branch if there were any instructions that could be relayed to Mr Liristis' lawyers on how to access the remaining hard drives. That Branch replied that: "I am not surprised they are having problems as Liristis enabled encryption on some drives and others were set up as dynamic discs which also prevents you being able to read. They will need to find a computer that they can change the [illegible] to enable them to boot the computer from an external USB drive. This will work for the following drives: …"
60. Four drives were referred to. In relation to one, it was said that "this drive is bit lock encrypted and will require a password to be entered". As to another "this drive is a dynamic disc and is not readily accessed outside of the original operating system." One drive was said to be readily accessed and as to the fourth it was said that "this drive has two partitions of which one is bit lock encrypted and will require a password to be entered".
61. On 31 October 2017 Conlon SC DCJ vacated the trial date listed for Monday, 6 November 2017 on Mr Liristis' application. The matter was adjourned for trial until 5 February 2018. His Honour noted "Matter MUST proceed on this occasion". The record of the proceeding on 31 October 2017 includes the following: "His Honour notes from today's mention: 1. The Crown has done all it possibly can to assist the accused and has provided all necessary material to the accused. 2. There is an urgent need for an expert to go with defence to Long Bay Correctional Complex (where accused is being held) to attempt to gain access to what is referred to as the 'decompressed files'. Once this is done, if there is no possibility of the password becoming known and no possibility of decompressed files being accessed, then the matter must and will proceed regardless. 3. Defence application to allow the accused and his legal representatives to download and makes copies of the decompressed files (if they are able to be accessed) is granted to allow them to appropriately prepare for trial. 4. Accused said that Mr Dave Cahill, Manager of Security and Acting Governor (?) of Long Bay Correctional Complex has been assisting the accused, is aware of the hard drives are coming and will continue assisting to ensure the accused has the appropriate technology/facilities to access the hard drives. His Honour said he will also contact Mr Cahill to inform him that the Court recommends and supports his assistance to the accused."
62. The record of proceedings of 14 November 2017 states: "Defence informed court [Conlon SC DCJ] that a data expert company that fit within budget has been sourced and is ready to go. His Honour encourages the data analyst to attend Longbay [sic] Correctional to assist the accused [to] decrypt the hard drives to mitigate the change (scil. chance) of further adjournments."
63. Mr Liristis filed a summons in the Supreme Court on 13 December 2017. The summons filed on that occasion is not before this Court. However, the Commissioner tendered a transcript of a directions hearing before Lonergan J in the Common Law Division of the Supreme Court on 19 January 2018 at which Mr Liristis was present by a video link to Long Bay Correctional Centre.
64. On 6 March 2017 Mr Liristis was confined in the John Morony Correctional Centre in Berkshire Park, a suburb of western Sydney. He had been transferred to the John Morony Correctional Centre on 27 March 2016. On 3 May 2017 he was transferred from there to the Cessnock Correctional Centre. On 29 June 2017 he was transferred from there to the Parklea Correctional Centre. On 11 July 2017 he was transferred from there to the South Coast Correctional Centre. On 26 August 2017 he was transferred from there to the Long Bay Correctional Centre. One of Mr Liristis' claims for relief in his summons was for an order that he be allowed to stay at Long Bay Correctional Centre whilst his criminal proceeding was pending in the District Court. That claim was acceded to. The Commissioner provided an inter partes undertaking that he would not be moved. Mr Liristis complained, with apparent good reason, that his frequent transfers between different correctional facilities were designed to, or if not designed had the effect of, preventing his being able to prepare his defence. The filing of the summons and the Commissioner's acknowledgment that Mr Liristis should have part of the relief claimed demonstrates the practical utility of the course he adopted.
65. As noted above, during this period there was a live question before the District Court as to Mr Liristis' entitlement to have access to documents seized by the Police that he contended included documents (including audio or visual files) that would exonerate him of the offences of which he was charged.
66. It appears from Mr Liristis' affidavit of 6 March 2017 in civil proceedings in the District Court and what was said about those proceedings at a directions hearing on 19 January 2018 in proceedings filed by Mr Liristis on 13 December 2017 (apparently not served) and at the start of the hearing before the primary judge on 30 January 2018, that in civil proceedings in the District Court Mr Liristis initially sued the State of New South Wales for damages and for relief of the same kind as sought in this proceeding. Mr Liristis said, without contradiction, that he was told by the District Court judge before whom his civil proceeding came that only the Supreme Court could grant the kind of relief ultimately sought before Schmidt J.
67. Mr Liristis' affidavit of 6 March 2017 filed in the civil proceedings in the District Court at Parramatta contains a great deal of material that would be inadmissible if objected to because it consists of submissions and extracts from cases. It was not objected to (rightly I think). When the inadmissible parts of the affidavit are ignored it appears that at some unstated time, when Mr Liristis was incarcerated at the John Morony Correctional Centre, he made an application on what is called an "Inmates Application Form" (IAF) addressed to a Mr Brown, Senior Assistant Superintendent and Acting Manager of Security in which he complained that he had had no access to over four GB of digital material supplied by the police in a brief of evidence nearly 12 months previously since he had arrived at the John Morony Correctional Centre and had been given a further eight GB of digital material consisting of some 4,792 audio and visual files of which he could not obtain access because there was no software on the computer that was made available to him that gave access to that material.
68. The affidavit starts by setting out an application that he made to Mr Brown, but continues as an address to Mr Brown in which Mr Liristis complained that he could not properly defend or prosecute matters currently before the District Court at Parramatta (his civil proceeding), the District Court at Sydney (presumably the criminal proceeding) and the Supreme Court of New South Wales (those proceedings are unidentified) without tools he needed. He said that the laptop was a "crucial tool" that could only be used to adduce "crucial exculpatory evidence". He complained that he had to go through over 300 GB of digital media that could only be accessed and viewed by a laptop or a computer that had the appropriate programs and software and to go through over 6,000 pages on digital media of court transcripts, statements and other data that could only be accessed digitally by a laptop computer with specific programs. He deposed that one of the main reasons that the criminal trial proceedings were vacated three times (prior to 6 March 2017) was that he was not ready to proceed to a hearing without what was asserted to be crucial exculpatory evidence, documents and recordings. He said that the matter before the Parramatta District Court (presumably the civil proceeding) that was set down for hearing on 27 January 2017 was vacated because he was not ready to proceed to hearing without that material.
69. Mr Liristis incorporated in his submissions a transcript of what might be inferred to be a secretly recorded conversation between him and one of the complainants after sexual intercourse which would be relevant to the issue of consent. Mr Liristis said that the Crown had failed to supply the transcript, although there was no evidence one way or the other about that. Mr Emmett said that Mr Liristis had been prosecuted for unlawfully recording conversations contrary to the Surveillance Devices Act 2007 (NSW) (T32). Whether the transcript was part of the prosecution brief or part of the materials on a hard drive recovered by Mr Liristis, if accurate, it demonstrates the plausibility of Mr Liristis' assertion that the data to which he sought access could contain material relevant to the defence of the sexual assault charges.
70. It appears to be reasonably clear that in his civil proceeding in the District Court Mr Liristis sought relief of the same kind as he sought in the Supreme Court proceedings, although necessarily directed to his access to materials which by then had been provided to him that were only a fraction of the materials that were ultimately provided (300 GB of digital medial, 6,000 pages, 2,500 emails and 1,400 text messages compared with 9 TB of material to which he ultimately sought access). The Commissioner does not say that in 2016 or 2017 when civil proceedings were pending in the District Court that raised the same issue as was raised in the summons filed in the Supreme Court, any submission was made on behalf of the State of New South Wales that Mr Liristis' application for access to laptop computers that could access the material provided to him for his criminal proceedings could only be sought from the trial court, meaning the District Court in its criminal jurisdiction.
71. Mr Liristis did not lead evidence before the primary judge of all of the relevant background of the proceedings in the District Court both in respect of the criminal trial and his civil claim. Mr Liristis represented himself on that application. It is common for a self-represented litigant to assume that the judge before whom an application is brought will be familiar with the relevant background in so far as that consists of earlier proceedings in the court or in another court to which the proceedings are related. This appears to be what has happened in the present case.
72. Neither Mr Liristis nor the applicants put before the primary judge all the relevant background. It can be assumed that the primary judge had before her the transcript of proceedings on 19 January 2018, the summons filed on 13 December 2017 (not reproduced in the White Book). Her Honour also had an affidavit of a solicitor for the defendants, Mr Fiorenza that was not reproduced in the White Book for the purposes of this application for leave to appeal.
73. Eventually, Mr Liristis was provided with 11,000 pages of documents in electronic form described as the "Prosecution Disclosure Brief". It was an agreed fact that on 22 February 2018 the DPP conceded that material on a USB key with the 11,000 documents could not be accessed because the recovery key that it had previously asserted had been provided to Mr Liristis had not in fact been provided. That key was provided to Mr Liristis on 22 February 2018. On 26 February 2018 the District Court trial was further adjourned until 30 July. The application was not opposed by the Crown, given the recent disclosure by the DPP of the recovery key and bitlocker key information to encrypted hard drives.
74. Mr Liristis' evidence was that using his laptop he had been able to obtain access to four of the nine hard drives, but this was a long and slow process.
75. Conlon DCJ's orders of 31 October 2017 included what was described as his Honour's notes that: "Defence application to allow the accused and his legal representatives to download and make copies of the decompressed files (if they are able to be accessed) is granted to allow them to appropriately prepare for trial."
76. A further note was that: "Accused said that Mr Dave Cahill, Manager of Security and Acting Governor (?) of Long Bay Correctional Complex has been assisting the accused, is aware of the hard drives are coming and will continue assisting to ensure the accused has the appropriate technology/facilities to access the hard drives. His Honour said he will also contact Mr Cahill to inform him that the Court recommends and supports his assistance to the accused."
77. It is clear that the District Court in its criminal jurisdiction had made orders for the purpose of seeking to ensure that Mr Liristis could obtain access to both the documents served by the prosecution and the encrypted hard drives that had been seized which he claimed contained exculpatory material, but to which he could not obtain access, except through his laptop, and even then only with extreme difficulty. The primary judge found (at [10]): "Neither the 'red' computer which Mr Liristis presently has in his cell, [n]or the 'blue' computer which it was finally undertaken he will be given access to at Long Bay by Tuesday next, were after the trial has commenced, will have the capacity to do all that the laptop does. In particular, it will not permit him to access the copies of 9 hard drives he has been provided as the result of the District Court's orders."
78. That finding was not challenged. The primary judge was also satisfied that Mr Liristis required access to a scanner so that he could store electronically the 36 tubs of documents that he claimed he would need to bring to the hearing of his trial. The primary judge noted that the veracity of Mr Liristis' evidence as to the time and problems which had been involved in accessing material with which he had been served was not challenged and that he provided an explanation as to why he could not simply provide his experts with all the passwords which he had for them to access the files. Mr Liristis gave evidence that it took him nearly four hours to crack one hard drive, which then led him to another drive, and he took that file back to his cell and worked on it for another nine days, and then cracked two other drives. He said: "... the only way I gained access to those four drives was gaining access to the Dell laptop and I would not have gained the recording which exonerates me in three out of the five charges [which] would be dismissed ..."
79. He explained the difficulty of access further as follows: "Q. Can I understand a couple of things that flow from that. First, have you explained to DRC what you did to get that access? A. I have put in writing to them, as best as I can, to give them a step by step. They can't access the drives. They haven't accessed one drive. The reason why they can't access that drive is because the algorithm that is associated with the drives forms part of my data of my business. Now they can't obtain access to my business records and, therefore, they can't obtain access to the algorithm that we use. Everybody has different algorithms. As I said, it's not a password where I can contact Data Recovery and say, 'Oh, yes, it's "John Peters 1"'. This is an algorithm of 128-bit, which is bitlocked. The drives are bitlocked; they are not password-protected. Q. Have you taken steps to give DRC access to your business records with the algorithm? A. Legal Aid have paid something - I think it was $1,600 for Data Recovery Service to come out to Long Bay Correctional Centre with Mr Greg Shumer and Mr Miller to come out and we spent all day and it was difficult for them to even bypass one of the algorithms. The process is not just a matter of gaining the algorithms; the process - they have to gain access to my laptop and to gain access to my laptop, there's a number of encryptions that we use for our business, in other words, for my company Mercedes McLaren Racing, that is not publicly made available and Data Recovery can't access the drives because there are a number of algorithms before you access the drives. Q. Have you taken steps to make those algorithms available to DRC? A. yes, I have taken steps - yes, even Data Recovery Centre has come into custody with me and tried to work with me to try and gain access. They haven't obtained access. I'm the one who's obtained access to the drives and the only reason I obtained access is because of connecting it, as the State Evidence Electronic Branch states, the only way you can do that is by entering the BIOS, BIOS, bypassing the hard drive and accessing the hard drives, the external hard drives directly. That is the only way that you can do that. Q. Can you help her Honour understand why DRC is not able to do that? A. Certain experts can't - certain - how can I put it - there's certain people that can and can't obtain access to digital media. Everybody's got different ways of obtaining. I've been an investigator for 32 years; I know my system."
80. The primary judge accepted this evidence. At the time of the hearing the trial was listed to commence in less than a week's time. It would have been a serious injustice and an impediment to the exercise of the District Court's criminal jurisdiction had the primary judge sent Mr Liristis away saying that he needed to make the application to the District Court. The orders did not have the practical effect of constraining the District Court's exercise of its criminal jurisdiction. Rather, they were in aid of its exercise of the criminal jurisdiction. They sought to achieve what two judges of the District Court had sought to achieve, but without success to that point, namely, enabling a fair trial.
81. There was no evidence adduced on the application for leave to appeal that the orders made by the primary judge had caused any particular problems in prison administration. The case was rather put as one of principle. If the primary judge had jurisdiction to make the orders she did and was not bound to refuse to do so, there was no challenge to the exercise of her Honour's discretion to exercise the jurisdiction.
82. If it should be accepted, as in my view it should be, that the primary judge had jurisdiction to make the orders that she did, then, in my view she was right to have exercised that jurisdiction and there was no error in her Honour's not remitting the matter to the District Court for it to consider whether the orders sought by Mr Liristis should be made. To have done so would have probably resulted in the further adjournment of the criminal trial. The primary judge sought to avoid that further adjournment. For a different reason the trial was adjourned, but the primary judge could not have known that. She was right to have exercised all the powers available to her to avoid that result.
83. I agree that leave to appeal should be given. The issue raised is one of public importance. But for the above reasons I would dismiss the appeal.

Endnotes

1. Liristis v State of New South Wales [2018] NSWSC 39 ("Liristis").
2. Liristis at [62].
3. The original summons, filed on 13 December 2017 was not served on the defendants.
4. Liristis at [3].
5. Crimes (Administration of Sentences Act) 1999 (NSW), s 233.
6. Liristis at [12].
7. Supreme Court Act 1970, s 48.
8. Criminal Appeal Act 1912 (NSW), s 5F.
9. Osland v Secretary to the Department of Justice (2010) 241 CLR 320; [2010] HCA 24 at [20] (French CJ, Gummow and Bell JJ).
10. (2012) 81 NSWLR 742; [2012] NSWCA 307 at [53].
11. [2010] NSWCA 104 at [168]ff (Young JA agreeing).
12. (2002) 209 CLR 203; [2002] HCA 2 at [5] (Gaudron ACJ, McHugh, Hayne and Callinan JJ).
13. Federal Court of Australia Act 1976 (Cth), s 28(1)(f).
14. See, eg, Land and Environment Court Act 1979 (NSW), s 71.
15. (2001) 208 CLR 199; [2001] HCA 63.
16. (1999) 198 CLR 380; [1999] HCA 18 at [31].
17. Australian Law Reform Commission, Traditional Rights and Freedoms - Encroachments by Commonwealth Laws (Report 129), (December 2015), Ch 8.
18. Report 129 at par 8.12.
19. Dietrich at 299-300.
20. Jago at 56-57 (Deane J).
21. Criminal Procedure Act 1986 (NSW), s 294A.
22. Charter of Human Rights and Responsibilities Act 2006 (Vic), s 7.
23. Issued at Maastricht on January 22-26, 1997.
24. Available at http://hrlibrary.umn.edu/instree/Maastrichtguidelines_.html.
25. [2001] 2 AC 532; [2001] UKHL 26 at [5].
26. [2017] UKSC 51.
27. [1974] AC 273 at 309.
28. UNISON at [77].
29. [1983] 1 AC 1.
30. UNISON at [80].
31. See [46] above.
32. See [46] above.
33. Dietrich at 310.
34. Miles v R [2012] NSWCCA 88 at [3]-[7] (RS Hulme J); see also [28] (Schmidt J). See now Bail Act 2013 (NSW), s 18(1)(h) and (l).
35. [1978] 1 NSWLR 317.
36. Smith at 320C-321D; see also Hutley JA at 326A-327C (Glass JA agreeing).
37. See fn 10 above.
38. Patsalis at [61]-[65] and [93]-[98].
39. [2016] NSWCA 186.
40. Clark at [89].
41. Clark at [48]-[49].
42. Clark at [41].
43. Clark at [46].
44. Clark at [43].
45. Clark at [45].
46. Smith at 321C.
47. Smith at 321D.
48. (1993) 177 CLR 378; [1993] HCA 77.
49. Walton at 393-394.
50. Jago at 28 (Mason CJ).
51. Jago at 74.
52. Jago at 77.
53. Criminal Appeal Act 1912, s 23. The history is set out in Conway at [7]-[29].
54. (1980) 147 CLR 75 at 94-95 and 102-103 (Gibbs ACJ and Mason J, Stephen J and Aickin J agreeing; Wilson J, with whom Murphy J agreed also agreeing in respect of this proposition at 109); [1980] HCA 48.
55. Barton at 103.
56. (1987) 8 NSWLR 685.
57. Watson at 706B.
58. (1986) 6 NSWLR 246.
59. [1980] 1 NSWLR 93 at 110 (54) (Rath J); reference was also made to English cases.
60. (1987) 28 A Crim R 371.
61. Kintominas at 373-374.
62. NSW Legislative Assembly, Parliamentary Debates (Hansard), 17 November 1987, at 16087.
63. (1990) 19 NSWLR 317 (Kirby ACJ, Mahoney and Priestley JJA).
64. Adler at 334E.
65. Adler at 342C.
66. Adler at 321F.
67. [2009] NSWCA 370 (Basten JA, Fullerton and McCallum AJJA).
68. W O at [13]-[14].
69. Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180; [2006] HCA 22 at [44] (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ).
70. (1995) 184 CLR 163 at 179; [1995] HCA 58.
71. Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145 at [7]-[12] (O'Loughlin, North and Weinberg JJ).
72. (2008) 236 CLR 120; [2008] HCA 43 (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ).
73. (1997) 192 CLR 69 at 79‑80, 87, 105, 124, 147‑148; [1997] HCA 49.
74. "Australian law" means a Commonwealth, State or Territory law (Dictionary, Pt 1).
75. Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43. See also as to the undesirable fragmentation of the criminal process R v Iorlano (1983) 151 CLR 678; [1983] HCA 43; Yates v Wilson (1989) 168 CLR 338; [1989] HCA 68; R v Elliott (1996) 185 CLR 250; [1996] HCA 21.

Amendments 29 June 2018 - Coversheet and [10] - amending spelling of case citation 29 June 2018 - [4] - Amending "Commission" to "Commissioner". [26] Inserting "of conduct" after "punishment". [95] Amending "1986" to "1987". [123] Deleting "Act" after Charter of Justice. [127] Changing "accused" to "accused's". [134] Deleting "then" before "the trial". [151] Amending cross-reference to [117]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2018