Hamzy v Commissioner of Corrective Services

Supreme Court of NSW|2024-08-26|Before: Harrison CJ

JUDGMENT

HIS HONOUR: Bassam Hamzy is an inmate presently housed in Unit 8 of the High Risk Management Correctional Centre (HRMCC) at Goulburn. That centre was previously and still is known and referred to as the High Risk Management Unit (HRMU).
By his second amended summons dated 29 May 2023 (and filed on 27 June 2023), Mr Hamzy seeks declaratory relief concerning the validity and application of provisions of the Crimes (Administration of Sentences) Regulation 2014 as follows: (1) Declaration that s 166(5) of the Crimes Administration of Sentences Regulation is invalid due to its inconsistency with section 228(5)(a)(ii), 5(c) and 5(e) of the Crimes Administration of Sentences Act. (2) That the decision of the Assistant Commissioner to refuse phone contact with a legal practitioner on 24/4/2022 was invalid and ultra vires. A declaration that the Commissioner or his delegate have no power or authority to refuse an inmate the right to contact his/her lawyer when an inmate seeks to exercise his/her constitutional right of Appeal to the High Court or a Court exercising Commonwealth jurisdiction. (3) Declaration that requiring a lawyer to fill in a CRT when that lawyer is representing a client in a Commonwealth/Federal matter or in the High Court is invalid due to the impediment/obstacle or delay it can cause & is therefore invalid due to its inconsistency with the Constitution. (4) A declaration that prohibiting inmates in the HRMU from contacting their lawyers via the tablet when facilities & time permits is unreasonable and beyond power. 5) A declaration the requirement that a lawyer must fill in a CRT impedes and prevents an inmate from political and governmental discussions with their lawyer which is a protected right under the Constitution. (6) A declaration that the HRMU is in breach of [CAS regulation, cl]164 1(b)(iii) and (iv) and 1(c) and it should be shut down or brought into compliance with the law. (7) A declaration that [CAS regulation, cl] 115(7) does not oust an inmate's right to SEND letters to their lawyer under the seal of privilege and section 116(1) and (2) does not apply to correspondence sent to a lawyer from an EHRR inmate under the seal of privilege."

Evidence

Mr Hamzy affirmed an affidavit on 3 July 2024. That affidavit contained the following relevant paragraphs: "2. I had 8 tubs in my cell for over 4 years. 3. The tubs measure 50cm long, 30cm wide and 28cm deep. I have the tubs in the left hand corner of my cell 4 tubs high. 4. The floor space of my tubs take up is 100cm by 30cm. The tubs were removed citing fire risk. 5. I am in a one out cell. In 25 years I haven't lit a fire in the correctional system. 6. I am currently trying to manage 10 separate court matters. 7. I have a very complex sentencing proceedings on Friday for the supply of commercial quantity of drugs. 8. The sentencing proceedings relates to a trial which returned a hung jury in 2023, and a trial which allowed a majority verdict after 5 days of deliberations. The jury indicated 3 times they could not come to a verdict. So facts relating to this proceedings is very complex. 9. I am already preparing my appeal for this guilty verdict. 10. I also have trial for pervert the course of justice on 2 September 2024. 11. I have Mr Odgers preparing a s 78 appeal. 12. I have Luke Delmonte preparing an appeal. 13. I have Ross Hill preparing a s 78 appeal. 14. I have a family law matter with Mr Sam Abass. 15. I have the current DCS matter which itself is complex. 16. I need my legal books, briefs, transcripts, evidence and case law to prepare these matters. 17. When I am locked in I do not get access to the dayroom. One example is we were locked in 3 days in a row on 12, 13 and 14 of July. We were locked in again on 30 and 31 of July. This is just one example. 18. When we are not locked in Mr Langbin has accommodated my dayroom access between 9.30 and 11.00 and 12.10 to 2.00. 19. This is the same time we have access to the legal phone. 20. Once we are locked in at 2.00 we are not let go till 8.00 the next morning. 21. Trying to prioritise matters and documents has not only delayed, prevented and obstructed my effective preparation of my matters it has caused me significant stress, anxiety and frustration. 22. I have now been told Mr Bramble wants to remove the tubs from my day room. 23. Ms Singh from Legal Aid was denied access to me to assist in managing the matter against Corrective Services."
Mr Hamzy's further affidavit dated 4 July 2024 contained the following paragraphs: "2. I have a serious injury in the top joint of my right thumb. 3. This makes it extremely painful to write. At times my thumb just seizes. 4. I have requested a laptop to type my documents and submissions on multiple occasions. 5. I have been refused for no good reason. 6. I currently have a laptop in my cell with my legal brief on it. It is 'locked' and has no word-typing facility. 7. It defies logic why I can have a computer yet can't type up my legal documents on it. 8. I have even offered to buy my own laptop."
At my invitation, and with the agreement of the Commissioner, I suggested that Mr Hamzy could, if he wished, give any further evidence that he wanted to rely upon in support of the relief that he seeks on affirmation from Goulburn by video link. Mr Hamzy accepted that invitation and gave the following evidence on 1 August 2024 before me: "HIS HONOUR: Now, Mr Hamzy, we have to take down what you say. Could you tell me what you told me before and add any matters that you wish to it in support of your application for access to material that you formally had and which I anticipate you will tell us has subsequently been denied to you? A. Yes, your Honour. I have been in prison approximately 25 years. I have been in the HRMU for approximately 22 years. For the last four years I have had eight legal tubs in my cell tucked in the corner, and approximately four to five weeks ago I was told that it has now become a security risk and they need to be removed from my cell. I think last week I was told that the tubs that are currently in my day room will be removed from the day room because the manager of security doesn't want them even in my day room. I have written to the Crown Solicitors Office on a number of occasions trying to avoid bringing this to the Court's attention. The most important letter is the letter at page 45 of the bundle that Mr Frommer and Ms Jones sent me today in the morning, which identifies all the matters I currently have before the Court, including this matter, and how it does impact and divert my attention from me having the capacity to fulfil and address all my matters, including this one, with the current timetable that it has. I have also identified an injury to my thumb, that I have in my thumb, which will delay my ability to write submissions because I have arthritis in the thumbs. That was with regard to the laptop that I also requested, so I could type up the submissions and have them in proper form, and type up the evidence so I could have it in proper form for the Court. As it currently stands, for an example, I do not have access to the tubs when we are locked in for the last two days we have been locked in our cells for 24 hours. That gives me no access. Today, for example, I have to move cells, I have to move all my tubs and all my property and everything from my cell, which is another day which I can't even prepare. So there are other issues which impact my ability to prepare. I'm in the cell from 2 o'clock in the afternoon until 9 o'clock the next morning before I can have access, and it has caused anxiety, because I do have a sentencing proceedings, do I have a trial coming up on 1 September, and I also have this matter in which I am self-represented, and a matter coming up in February next year; and all of this is building up and I'm just trying to have that ability and capacity to run my case as smoothly as possible your Honour. Q. Before this recent development and the limited access to your tubs arose, I think you said last week, has anything similar been experienced by you over the last four or so years that you refer to? A. Your Honour, there has been investigations from the New South Wales Ombudsman that I was denied the right to a right of a fair trial, that the power of the Commissioner had been exercised unreasonably, that the Commissioner's powers had exercised oppressively and have denied me the right to a fair trial. These issues between me and Corrective Services have been going on since 2007. I have taken the Commissioner to court for an unlawful segregation, that was before Adams J. I did win that case, the Parliament changed that law. Q. Sorry, I didn't mean to interrupt you, all I was interested to know was you made a reference to these tubs in your room for four years, full access; was there any interruption to your access during that four year period? A. No, there wasn't, your Honour. Just every time the officers came to our cells to search them, they would put my properties on a single trailer and x-ray them and bring them straight back to me. There hasn't been any issues until this point. Q. I'm not making you answer yes or no, but is there any other material that you want to draw your attention to? A. Your Honour sees the fact that I have written to Mr Frommer's office and identified all the authorities in relation to the tubs, in relation to the computer, no, there are no other issues besides the fact that there has not been a single fire, there has not been a single incident. I have been in gaol for 25 years; I don't think I'm going to wake up tomorrow and decide to burn my cell after 25 years. I have had a lot of opportunities to do anything I wanted. I'm in a single cell, your Honour, there is no one else in the cell with me. The tubs are stacked in the corner, they do not impede a search, and I believe it was reasonable before the last few weeks to have my tubs in the order that they were in, and I just believe it should be still reasonable now, especially due to the time limits we have and all these matters going before the Court."
I also directed the Commissioner to furnish any evidence upon which he proposed to rely within a week of 1 August 2024. He did so. The Commissioner's evidence is now contained in the affidavits of Scott Bramble and Susan Mitchell, each sworn on 7 July 2024. These deponents were understandably not cross-examined by Mr Hamzy and the effect of their evidence is in any event relevantly referred to in, or apparent from, the Commissioner's submissions set out later in these reasons. However, it should specifically be noted that the suggestion that Mr Hamzy's legal document tubs are imminently to be removed from his day room is denied. Moreover, Mr Emmett of senior counsel for the Commissioner indicated that Mr Hamzy would retain his current level of access to these documents in his day room until at least the conclusion of these proceedings.

Mr Hamzy's submissions

Mr Hamzy emphasised that prisoners retain all civil rights that are not taken away expressly or by necessary implication, in particular the right of unimpeded access to the courts. He referred me to Clark v Commissioner for Corrective Services [2016] NSWCA 186.
Mr Hamzy submitted that the Court has the power to control its own process and can give directions designed to facilitate the conduct of proceedings where the State is the defendant. In Patsalis v The State of New South Wales [2012] NSWSC 267, Beech-Jones J said this at [53]: "[53] The remedies of bail, stay, discharge and overturning a conviction have no direct application to civil proceedings in which a prisoner is a plaintiff. There is obvious room for the extension of the reasoning in Smith to civil proceedings at least where the State is the defendant and thus can be the subject of directions designed to facilitate the conduct of the proceedings. If so directed, the State can exercise its powers in respect of the prisoner's custody to ensure that any such directions are complied with. It is unnecessary for me to consider further whether and, if so to what extent, the Court's power to control its own processes enable it to make orders affecting the circumstances of the incarceration of a prisoner who is a litigant in civil proceedings or contemplating civil proceedings against the State or its agencies. I note that this appears to be the basis upon which Schmidt J made the orders on 19 December 2011 noted above at [11]."
Mr Hamzy stressed that, as a plaintiff in civil proceedings, he has a right of access to the courts, particularly in litigation such as the present, where a government department is the defendant, and where that very department has control over his capacity and ability to run his case. He referred to Rich v Groningen (1997) 95 A Crim R 272 at 287 per Gillard J as follows: "I have no doubt that the plaintiff as a prisoner enjoys the right of every citizen in this State to unimpeded access to the courts, subject to the provisions of any legislation in this state which applies to him. There is no suggestion the plaintiff will not be able to exercise that right to attend at court on the hearing of his appeal and present his case. What he does submit is that by denying possession of his appeal documents the authorities could interfere with his right to access to the court; he says it has happened in the past. In my opinion, the authorities could infringe his right to access to the court by making it impossible for him to present his case by taking away his appeal documents. This could, in certain circumstances, be as effective as physically stopping him going to court. To justify interference in that way the legislation would have to expressly or impliedly and in clear terms give the authorities the power to interfere with his property in such a way as to hinder or interfere with this basic right."
Pertinently for present purposes, Gillard J also said this at 284: "In my opinion the authorities were acting reasonably in allowing the quantity of the appeal documents in the plaintiff's cell prior to 16 October 1996 and on and after 9 January 1997. In so far as it is suggested that the plaintiff's appeal documents constituted a fire hazard or unreasonably imposed an additional burden on officers searching his cell, which evidently occurs regularly, I reject the suggestions. The authorities recognised as at 9 January 1997 the plaintiff was not breaching any guidelines with respect to the quantity of his appeal documents…"
Mr Hamzy submitted that what he described as the "fair trial principle" should apply in this matter and that the "equality of arms" concept should be given paramount consideration due to the power imbalance between him and the defendant.
Mr Hamzy also drew upon what was said in Miles v R [2012] NSWCCA 88, dealing with a bail review application, where Hoeben JA expressly joined with the recommendation of Hulme J that "the Department of Corrective Services… provide reasonable assistance and facilities to allow the applicant to prepare his appeal."
In summary, Mr Hamzy contends that his legal documents are contained in eight tubs which alone indicates the voluminous nature of that material. Whereas he formerly enjoyed unlimited access to this material in his cell at all times, the recently enforced regime means that his access is limited to one tub in his cell at any one time. By the same token, access to his day room is severely constrained by the hours when inmates are confined to their cells. Mr Hamzy, therefore, has no access to his day room after 2pm every day and no access at all during lock downs.
Moreover, the difficulty and legal complexity of the matters calling for determination in the December proceedings should not lightly be discounted. Mr Hamzy appears for himself. The separate questions ordered by Meagher JA to be heard are not matters that can be prepared without significant time and effort. Unrestricted access to these documents for long periods is therefore essential if Mr Hamzy is to have any reasonable prospect of doing justice to his claims. For cognate reasons, Mr Hamzy submits that, whatever may be the limitations upon the Commissioner's ability to provide access to a laptop with adequate functions, the suggestion that he should be expected to hand-write everything is unrealistic in the modern digital era, and falls well short of "what an outsider would regard as reasonable facilities for someone such as the applicant in the circumstances that he is in", to adopt Hulme J's description in Miles at [4].

Commissioner's submissions

The Commissioner submitted that the orders which are opposed seek to mandate positive action on the part of the Commissioner, being action which would be contrary to the Commissioner's current policies and arrangements in discharge of his responsibilities to control and manage correctional centres and inmates, as explained in the affidavits of Scott Bramble and Susan Mitchell. In relation to orders of that kind, the Commissioner made the following submissions.
The Commissioner understands that Mr Hamzy seeks to engage the Court's power to prevent an abuse of process, ensure fairness, or otherwise protect the Court's processes in the substantive proceedings that are pending before this Court. The Commissioner does not cavil with the proposition that that the Court has an inherent power, or a power arising under s 23 of the Supreme Court Act 1970 (NSW), to make orders or give directions to prevent an abuse of the Court's processes. However, that jurisdiction is "by no means unlimited": Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 at [32], [61]. In particular, it does not ordinarily "permit an order that a government officer exercise a discretionary power in a particular way": Liristis at [63]. Even in criminal proceedings, the power may not extend to "making some kind of positive or mandatory order on parties or non-parties" in order to prevent an abuse of process: Liristis at [32].
As observed by Basten JA in Clark at [12]-[14]: "[12] While there is no reason to deny the power of a trial judge to give directions and make orders with respect to the conditions of custody of a prisoner involved in litigation for the purpose of ensuring a fair trial, that jurisdiction should be seen as providing a safety net, rather than a generally appropriate mechanism for control of the conditions of custody. [13] There are pragmatic reasons supporting that conclusion. First, if there are no proceedings on foot, there will be no designated trial judge; secondly, even where proceedings have been commenced, the State courts do not operate a 'docket system' with each case assigned to one judge. Thirdly, where, as here, a prisoner has various proceedings on foot, each requiring attendance on a different timetable and probably involving different elements of complexity, there may be no trial judge who has an overview of the situation. [14] A fourth, equally pragmatic, reason is that it will generally be a distraction for a judge seeking to give directions or make orders with respect to the conduct of the trial, to have to consider a satellite application with respect to the conditions of imprisonment. There have been a number of similar applications in recent years which, in the interests of the efficient management of the prisons, should be disposed of on a consistent basis and not by reference to the exigencies of particular litigation or trial management directions."
Thus, for example, it is generally not "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": Liristis at [104]. The principal question for the Court on this application is whether orders described in (1) and (2) are necessary to prevent an abuse of the Court's process or to ensure a fair trial in these proceedings.
It is well-established, even in criminal proceedings, that a fair trial does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to one side: Jarvie v Magistrates Court (Vic) [1995] 1 VR 84 at 90; R v Ngo (2002) 57 NSWLR 55; [2003] NSWCCA 82 at [98]-[99]; Romolo v R [2016] NSWCCA 240 at [28]. In that regard, the rights and privileges of a litigant who is incarcerated may be "qualified in substantial respects, particularly by the need for enforcement of security in a custodial environment": Liristis at [69].
Courts are generally reluctant to interfere in the discipline, administration or management of correctional centres: McKane v Commissioner for Corrective Services of New South Wales (No 3) [2018] NSWSC 1060 at [42]-[45]; Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87; Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7]-[11]. That is appropriate because courts are not necessarily well qualified to determine what is necessary or appropriate in the interests of custodial management: Hamzy v Commissioner of Corrective Services (2022) 107 NSWLR 544; [2022] NSWCA 16 at [182].
In any event, Mr Hamzy's present application is not an application for judicial review and does not challenge the validity of particular practices adopted by the Commissioner. Such relief as may be available from this Court for the purposes of managing the substantive proceedings is separate and apart from a potential exercise of the Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970. A claim by reference to the latter jurisdiction should be properly constituted by summons, with a correspondingly full opportunity to defend the challenge. Yet, even in the context of judicial review proceedings, it is not the merits of an administrative action or decision that are in issue: Clark at [84]-[85].
Whether orders (1) and (2) are necessary to prevent an abuse of the Court's process or to ensure a fair trial in the proceedings falls to be determined by the Court in circumstances where: 1. the immediate proceedings concern the determination of the separate questions stated in Order 1 made by Meagher JA on 7 June 2024; 2. Mr Hamzy has served materials and affidavits pursuant to Order 3; 3. the next step in the proceedings is for the Commissioner to file and serve his evidence by 6 September 2024 pursuant to Order 4, with Mr Hamzy's evidence in reply and the exchange of submissions to follow thereafter; and 4. the separate questions are listed for hearing on 10 and 11 December 2024.

Access to legal tubs

Mr Hamzy has access to one tub of legal materials in his cell and to the balance of his legal materials (12 tubs, one archive box and two canvas bags) in a room to which he has exclusive access during the day when opened by correctional officers. Mr Bramble, the Manager of Security at the High Risk Management Correctional Centre (HRMCC), has described that process in his affidavit.
Prior to 27 June 2024, Mr Hamzy had been permitted to keep all of his legal materials in tubs in his cell. Although that situation had developed and persisted for some time, it was inconsistent with the relevant Custodial Operations Policy and Procedures (COPP) and complacent as to the risks associated with property accumulating in inmates' cells. As a result of recent fires in correctional centres across New South Wales, instructions were received to review and ensure compliance with the COPP in terms of property kept in cells. This action was not related to Mr Hamzy in particular.
As explained by Mr Bramble, three concerns arise from the accumulation of property in cells. First, there is a concern that property may fuel a fire that can spread quickly and threaten the safety or lives of inmates, particularly when confined to cells. Secondly, property kept in an inmate's cell elevates the risk of contraband items being secreted amongst that property. Cells are not monitored by video surveillance in the same way as common areas, including Mr Hamzy's day room. As also explained by Mr Bramble, it is therefore more common for contraband items to be found amongst property kept by an inmate in a cell. The Commissioner maintains that these are not idle or hollow concerns. In relation to the plaintiff in particular, Mr Bramble has provided an example of a tablet being found amongst his legal papers in May 2024. Thirdly, and relatedly, property kept in an inmate's cell needs to be searched when a cell search is conducted, as regularly occurs at the HRMCC. Operational difficulties arise where the amount of such property in a cell is large and there are voluminous legal materials, which need to be searched carefully due to their potentially privileged nature.
The Commissioner submitted that in light of Mr Bramble's evidence, the Court should reject any suggestion that there has been an abuse of the Court's process in terms of the Commissioner seeking to impede Mr Hamzy's preparation of the proceedings before the Court. Nor is it necessary to ensure fairness in the proceedings that he be given access to multiple tubs of legal materials in his cell and thereby be treated differently to other inmates under the COPP.
While the separate questions give rise to a number of legal issues, the proceedings are not ones in which vast documentary evidence is required. Indeed, the separate questions were ordered in part for their capacity to be determined efficiently and without the need to gather a great deal of detailed evidence.
Through his exclusive use of the day room in which the balance of his legal materials are situated, Mr Hamzy has a greater degree of ready access to his legal materials than other inmates, who are required to request such materials from storage. He is able to rotate the legal materials stored in his cell as he sees fit. In the Commissioner's submission, nothing further is required, in the circumstances of this case, for fairness to be done. The Commissioner ought not to be forced to make additional allowances for access to Mr Hamzy's legal materials.

Access to laptop with word processing capabilities

Mr Hamzy presently has access to the kind of laptop that the Commissioner is able to provide, namely an e-brief laptop that does not have word processing capabilities. The program in relation to those laptops is explained by Ms Mitchell, whose responsibilities include the management of laptops and tablets for inmates. The laptops have been programmed in such a way that their functionality is limited to the reading of documents. The Commissioner has begun efforts to explore updates to the operating systems of the laptops, which may include word processing capabilities. But this has not yet been put in place and is in still under consideration and development. Ms Mitchell has explained the importance of ensuring that such laptops as are provided to inmates are programmed so that they cannot be misused.
In these circumstances, the Commissioner submitted that it would not be appropriate for the Court to mandate that he facilitate access to a laptop that has greater capabilities than the systems developed and put in place by Corrective Services NSW for all inmates. Making such an exception for Mr Hamzy not only gives rise to the real practical difficulties outlined by Ms Mitchell and Mr Bramble in terms of the ability to provide the kind of computer access which Mr Hamzy seeks, but also gives rise to concerns about the equal treatment of inmates in the management of correctional centres.
In Clark at [31], Basten JA acknowledged "the importance for the good order of the prison in not having arbitrary arrangements, pursuant to which some prisoners may be perceived to receive preferential treatment": see also Ghasemi v NSW Department of Corrective Services [2019] NSWSC 207 at [68]. Mr Bramble is unaware of medical advice to the effect that Mr Hamzy requires different equipment.
The Commissioner submitted that Mr Hamzy to date has been able to prosecute the proceedings by means of handwritten documents. This includes the preparation of his evidence in chief in relation to the separate questions. The Commissioner's solicitors have agreed to arrange and provide such handwritten documents to the Court. No order of the Court is therefore necessary to protect against an abuse of process or to ensure fair access to the Court.
Finally, on 27 August 2024, following the last mention of these proceedings before I reserved my decision, Mr Frommer from the Crown Solicitor's Office wrote to my Associate in the following terms: "Hamzy B v Commissioner of Corrective Services - Supreme Court of NSW proceedings no. 2023/39910 I refer to the mention of the above matter before Harrison CJ at CL on 26 August 2024. In particular, I refer to his Honour's direction that the parties notify him if there was any variation to the arrangements that formed the basis of the parties' submissions at that mention. In accordance with that direction, I am instructed to inform his Honour of a variation that arises out of the parties' submissions yesterday. One of the requests made by the Plaintiff in Court yesterday was that he be granted access to a second laptop e-brief computer. While the Plaintiff has previously had access to more than one laptop, his request in Court yesterday was the first time he had raised that possibility to resolve the present dispute between the parties. Having now considered the Plaintiff's request, the Commissioner proposes to make available to the Plaintiff a second laptop for, at least, the duration of the trial that commences on Monday, 2 September 2024. The effect of that decision is that the Plaintiff would retain uninterrupted access to his existing laptop, with the trial materials, while the e-brief prepared on behalf of my client in these proceedings, as well as any additional e-briefs that might be prepared for the Plaintiff by Mr Hill in relation to these or other proceedings, could be loaded on the second laptop and provided separately. My client considers that this issue adequately deals with the concerns raised by the Plaintiff: 1. that he would have to be deprived of his trial materials for a number of days in order to obtain the e-brief prepared in these proceedings; and 2. that he would be unable to effectively use the time outside the hours of his upcoming trial to prepare for these proceedings. My client proposes to reconsider his decision to make available a second laptop once the Plaintiff's trial comes to an end. My client does not propose to reconsider his decision as to making a single tub of legal materials available to the Plaintiff in his cell, whether at the High Risk Management Correctional Centre currently or at the Metropolitan Remand and Reception Centre from next week. I confirm that I intend to provide a copy of this letter to the Plaintiff. I would, of course, be pleased to convey any further directions that his Honour considers appropriate to make to permit the Plaintiff to respond to the new matters raised."
Having regard to the conclusions I have reached, it is unnecessary to reconvene the Court in order to elicit Mr Hamzy's response.

Disposition

Mr Hamzy's reference to equality of arms is a suitable and relevant starting point from which to consider these largely, although not completely, competing submissions. A comprehensive reference to this concept can be found in the judgment of Bell J in Ragg v Magistrates Court (Vic) and Another (2008) 179 A Crim R 568; [2008] VSC 1 at [46]-[48]: "[46] This is the equality of arms principle, which applies to both civil and criminal trials, as stated by the European Court of Human Rights in Foucher v France: 'The Court reiterates … that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case in conditions that do not place him at a disadvantage vis-à-vis his opponent.' [47] Here is the more elaborate statement of the principle given by Stefania Negri in the International Criminal Law Review, which also emphasises it is one of comprehensive application: 'The right to a fair trial entails protecting the "equality of arms" principle, an inherent element of the due process of law in both civil and criminal proceedings. Strict compliance with this principle is required at all stages of the proceedings in order to afford both parties (especially the weaker litigant) a reasonable opportunity to present their case under conditions of equality. Indeed, at the core of the concept of "equality of arms", as elaborated in domestic and international case law, is the idea that both parties should be treated in a manner ensuring that they have a procedurally equal position to make their case during the whole course of the trial. Fundamental procedural safe-guards aimed at securing such equality are guaranteed in most domestic legal orders, enshrined in human rights treaties and other relevant international instruments, and set out in the Statutes and Rules of the major international courts and tribunals.' [48] The equality of arms principle - which was probably taken from the civil law tradition - was originally stated by the European Court of Human Rights set up under the European Convention on Human Rights. The European Convention - to use its abbreviated name - was entered into in 1950 in the aftermath of the Second World War. Article 6(1) and (3) contain provisions relating to the equal right to a fair trial before an independent and impartial court or tribunal that are of fundamental importance. The provisions come from the common law and civil legal traditions of those civilised countries that respected and followed the principle of a fair trial and the rules necessary to produce one."
His Honour continued at [50]: "The application of the equality of arms principle in the criminal law takes account of the prosecutorial setting. Usually, the prosecution enters the trial with two advantages: having superior resources and having conducted the investigation that led to the charges being brought. That gives rise to the issue of disclosure - voluntary and enforced - of material by the prosecution to the defence…".
Although the present proceedings are civil, not criminal, and although no issue of disclosure arises directly, Mr Hamzy maintains that he is in litigation in which the Commissioner as the opposing party maintains significant control in the custodial setting over what he can and cannot do. That control, in Mr Hamzy's submission, needs to be taken into account in assessing the extent to which it might actually or potentially impede or hobble the processes of this Court.
It is also important to consider the setting in 2024 in which the current dispute arises. One would hope that the days are, or should be, long gone in which prisoners were restricted to pen and paper, or the vicissitudes of the postal service, when communicating or corresponding with the Court. As long ago as 2008, Lasry J made reference to the changes in R v Rich (No 2) (2008) 184 A Crim R 161; [2008] VSC 141. For example, his Honour said this at [47]-[48]: "[47] What might have been regarded as fair in an earlier age when technology was much less advanced, might now not be so regarded. Thus the concept of 'equality in arms', which I take to refer to the importance of the equality of both sides in the opportunity to present their case, no doubt has a different meaning in this age of computer technology. [48] The fundamental facilities required for a person in the position of the accused are those which will enable him to have access to the evidentiary material to be led against him at his trial in all its forms, coupled with the time and facilities to give proper instructions about that material. It also involves him having timely access to any material which he considers as exculpatory so that it can be provided to his lawyers accompanied by all the necessary narrative and explanation from him. Further, with respect, I agree with and adopt the observation of Maxwell P concerning what his Honour termed the 'irreducible minimum'."
That same year, his Honour Kirby J in Muir v The Queen [2004] HCA 21; (2008) 78 ALJR 780 at [25] said this: "[25] Prisoners are human beings. In most cases, they are also citizens of this country, 'subjects of the Queen' and 'electors' under the Constitution. They should, so far as the law can allow, ordinarily have the same rights as all other persons before this Court. They have lost their liberty whilst they are in prison. However, so far as I am concerned, they have not lost their human dignity or their right to equality before the law."
Five years later, Kaye J in Brazel v Westin [2013] VSC 527 set out at [21]-[23] what he considered to be the principles to be applied in circumstances such as the present: "Legal principles [21] The plaintiff, in effect, is seeking relief from this Court, by way of interlocutory injunction, to enable him to present his case to court. The principles, which are applicable to such an application, have been referred to in a number of recent authorities. They may be summarised, briefly, as follows: (1) Each individual has an established common law right to unimpeded access to the courts of the State, as part of the basic right to a fair trial. (2) A prisoner, such as the plaintiff, has the same civil rights and privileges as any other citizen, including the right of access to the courts. That right inheres in each individual in both civil and criminal litigation. (3) That right may be infringed where, in the case of a prisoner, the prison authorities take steps which effectively prevent the prisoner properly presenting his or her case to court. (4) The court will only intervene to protect that right if the action, or inaction, of the prison authority, would have the effect of preventing a person from effectively accessing the court. As Lasry J stated in R v Rich (Ruling No 2): 'In my opinion it would obviously be very convenient for the accused to have a laptop computer but that is not the test. The question is whether such a facility is integral to the fair trial of the accused or, put in other words, whether without a laptop computer his trial will be unfair such as to justify a stay.' [22] In considering an application such as the present, it is important to bear in mind that the question is not whether the court agrees, or disagrees, with the action, or lack of action, by the particular prison authority. Rather, and importantly, the question is whether the action, or inaction, of the defendants and the prison authority, would preclude the plaintiff from having effective access to the court in this case. The reasons for that approach are set out, in a slightly different context by Kyrou J in Knight v Deputy Commissioner, Corrections Victoria, as follows: 'There are sound constitutional and practical reasons why this Court cannot substitute its own view for the view of Corrections Victoria. Under our Constitution, it is the executive - acting through Corrections Victoria - rather than the judiciary that administers the laws relating to prisoners. As a result, Corrections Victoria is far more knowledgeable and experienced than this Court can ever be about issues concerning the management of prisoners - including education, welfare and security - that inform the framework within which decisions affecting prisoners are made.' [23] In similar terms, in Fyfe v State of South Australia, Curtin J [sic, Martin J] stated: 'There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the court's jurisdiction must be carefully observed and the court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of the court's surroundings'."
The legal principles are, therefore, not in dispute.
In my opinion, Mr Hamzy's access to this Court is relevantly denied for as long as he is not provided with a laptop with word processing capability. I accept without reservation that it is not a proper function of this Court to weigh Mr Hamzy's need for access to equipment which is currently not permitted in the gaol according to ordinary operating procedures against the Commissioner's concern for security. I also accept that it is no part of the role or function of this Court to second-guess the Commissioner's considerable and unchallenged expertise about security within the gaol. That is so not merely in general terms concerning the running of the gaol but also in the light of the Commissioner's particular information about specific prisoners, including Mr Hamzy, which may raise novel or unique concerns that need to be understood and addressed.
But there must surely come a time in the third decade of the third millennium when a party to complex litigation in this Court can no longer be expected to conduct it without continuous or at least significant regular access to a laptop with internal storage facilities and word processing capabilities. The evidence in this case reveals that prisoners are not permitted to have computers or laptops with internet access. Mr Hamzy does not ask for that and the Commissioners' position is entirely understandable. The evidence also reveals that prisoners' access to USB devices is very carefully monitored as they are easy to conceal upon the person and USBs containing prohibited or security sensitive material is correspondingly difficult to monitor. However, as far as I am able to determine, laptops are not similarly difficult to monitor.
The Commissioner uncontroversially acknowledges that Mr Hamzy is entitled to have access to all of his legal materials, which are presently contained in hard copy documents stored somewhat primitively in a series of plastic tubs. That position is unremarkable both having regard to the Commissioner's position as Mr Hamzy's gaoler as well as to his role as a party to this litigation. The Commissioner has identified, and Mr Hamzy has not sought to contradict, the existence of potential security concerns if more than one tub is located in his cell at any one time. It is not difficult to conceptualise the possibility that a large tub full of documents could theoretically conceal material to which a prisoner is not permitted to have access. Moreover, although the Commissioner does not appear in Mr Hamzy's case to rely heavily upon the idea that more than one tub of documents in his cell might present a fire hazard, in the sense that it could provide a source of easily combustible material, that issue would seem to have receded in significance for present purposes.
If this analysis is accurate, it is difficult to understand how the failure to provide a laptop with no internet capabilities, that is also able to store on its hard drive all of Mr Hamzy's legal documents that are currently stacked somewhat clumsily in plastic tubs, and which are already viewable using a USB does not realistically amount to a denial of access to the court process to Mr Hamzy in this case. Mr Hamzy, or any other prisoner in his position, undoubtedly requires that technology to run his case efficiently. That includes a laptop with writing and printing functions. At a time in our history when primary school pupils are utilising this technology in the classroom, it seems that the need for a degree of lateral thought in the custodial context may well have arrived. Nor can there be any concerns about resources as Mr Hamzy has offered to pay for this equipment himself.
In expressing these views, I am attempting objectively and dispassionately to conduct a careful review of the evidence and to scrutinise the Commissioner's concerns as closely as possible. However, the cases all acknowledge that prisoners are in a position of particular disadvantage. I am certainly not suggesting or implying that the Commissioner is abusing his power or authority and I am mindful of the exhortations to avoid becoming "enmeshed in the merits of particular decisions" (Brazel v Westin & Anor at [23] quoting Fyfe v State of South Australia [2000] SASC 84 at [18]). But taking account of the limitations that this Court faces when trying fully to understand and appreciate the security concerns that lie at the heart of the Commissioner's position, I am still left wondering how a fair balance can be struck if the laptop required by Mr Hamzy is not provided to him.
I am particularly mindful of the sentiments expressed by Lasry J in R v Rich (Ruling No 2) that it would obviously be very convenient for someone such as Mr Hamzy to have a laptop computer even though that is not the test. As his Honour observed, the relevant question asks if such a facility is "integral to the fair trial of the accused" or if "without a laptop computer his trial will be unfair". It seems to me that whether it be the Commissioner's action or inaction, Mr Hamzy is unquestionably precluded from having effective access to the court in this case without the laptop I have described. In so saying I wish again to emphasise that my concern, that Mr Hamzy's common law right to access to this Court should not be impeded, is not to be confused with a view that the Commissioner is actively impeding that access. It is simply a fact that without the technology that I have described, Mr Hamzy's access to this Court will be denied to him. In these circumstances I consider this Court should intervene to protect that right.

Order

The precise framing of the order may require some further input from the parties. That is at least for three reasons. The first is that Mr Hamzy is to provide the laptop concerned. I am presently unaware of when that may occur. The second is that the Commissioner would have to be given the opportunity to vet the device that is to be provided in order to meet the minimum concerns that I have expressed and to be satisfied that it does not have any capabilities that illegitimately exceed those I have identified. The third is that the parties may wish to consider the implications, if any, of Mr Frommer's letter upon the practical implementation of my order.
The parties should therefore provide me with an agreed minute of the appropriate order, or competing versions if agreement cannot be reached, in either case within seven days.

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: 28 August 2024

(2022) 107 NSWLR 544

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