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ex tempore JUDGMENT

1. This is an application under s 53(1) of the Evidence Act 1995 (NSW) for a demonstration or inspection to be held at a correctional centre. The plaintiff, Mr Bassam Hamzy, is an inmate housed in Area 1 of the High Risk Management Correctional Centre (HRMCC) at Goulburn, previously known as the High Risk Management Unit (HRMU).

2. By Prayer 6 of his Second Amended Summons dated 29 May 2023 and filed 27 June 2023, the plaintiff seeks the following relief in the underlying proceeding:

(6) A declaration that the HRMU is in breach of [cl] 164(1)(b)(iii) and (iv) and (1)(c) [of the Crimes (Administration of Sentences) Regulation 2014 (NSW)] and it should be shut down or brought into compliance with the law.

3. Clause 164 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) concerns prohibited punishments of inmates (“inmates” being defined in ss 3 and 4 of the Crimes (Administration of Sentences) Act 1999 (NSW)) and provides:

164 Prohibited punishments

(1) An inmate must not—

(a) be put in a dark cell, or under mechanical restraint, as a punishment, or

(b) be subjected to—

(i) solitary confinement, or

(ii) corporal punishment, or

(iii) torture, or

(iv) cruel, inhumane or degrading treatment, or

(c) be subjected to any other punishment or treatment that may reasonably be expected to adversely affect the inmate’s physical or mental health.

(2) For the purposes of subclause (1)(b)(i), the following are not solitary confinement—

(a) segregating an inmate from other inmates under section 10 of the Act,

(b) confining an inmate to cell in accordance with an order under section 53 or 56 of the Act,

(c) keeping an inmate separate from other inmates under this Regulation,

(d) keeping an inmate alone in a cell, if a nursing officer considers that it is desirable in the interest of the inmate’s health to do so.

4. This proceeding is listed before me for final hearing of Prayer 6 commencing on 16 November 2026.

5. By an oral application on 19 August 2026, the plaintiff sought an order that a view be undertaken of:

6. Units 7, 8 and 9 of Area 1 of the HRMCC, which together make up the inmate accommodation areas of Area 1 (being the area in which the plaintiff is currently housed); and

7. The walk from the HRMCC to the “main clinic”, being the larger medical clinic that is located within the Goulburn Correctional Centre.

8. The plaintiff has not filed any evidence in relation to the application. The defendant has read the affidavit of Leah Nicholson sworn 16 September 2026. The defendant has also read certain parts of an earlier affidavit for the limited purpose of this application, being various paragraphs of an affidavit of Ms Nicholson sworn 28 July 2026 and various pages of an exhibit to that affidavit (Exhibit LN‑2), being those referred to in paras [14] and [17] of its submissions dated 16 September 2026.

9. On 11 September 2026, the defendant wrote to the plaintiff and made an offer to prepare a video of parts of Area 1 and Area 2 of the HRMCC and to tender it in his case on the basis that the plaintiff withdraw his application for the view. The terms of that letter of offer did not extend to providing a video of a person walking from the HRMCC to the main clinic while shackled.

10. By a letter in response dated 14 September 2026, the plaintiff indicated he would accept the offer in relation to the video subject to a condition that the walk be included, and he wrote in that respect:

“In relation to the Commissioners offer as to a view I am happy to accept the Commissioners offer [sic] subject to a condition that the walk from the HRMCC to the clinic is included. It is relevant that inmates must walk from the HRMCC to the clinic in handcuffs attached to a belt, in orange overalls, while in leg cuffs. This in my submission is evidence of cruel, inhumane and degrading treatment. I am happy to take part in the process and be the inmate going through the procedure for the walk.”

9. Under s 53(1) of the Evidence Act, a judge may, on application, order that a demonstration, experiment or inspection be held. This is referred to in common parlance as a “view”. I have had drawn to my attention the distinction at common law drawn between a view, demonstration and reconstruction as described by Heydon J in Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [192] quoting D Ormerod, “A Prejudicial View?” [2000] Crim LR 452, p 453:

“The common law, then, draws a distinction between views, demonstrations and reconstructions:

“It seems to be generally accepted that a view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation of the events. A demonstration is a view incorporating an explanation by a witness of the incident in question or a demonstration of the machine or other object in operation. A reconstruction goes further still and is an attempt to recreate the incident (whether in full or part) with witnesses and testimony.’”

10. It is apparent from the plaintiff’s communications with the defendant that what he seeks is not limited to an inspection — or what is normally known as a “view” at common law — of particular areas of the HRMCC, but extends to a type of demonstration or reconstruction of the process that would be involved where an inmate is moved between the HRMCC and the medical clinic at Goulburn Correctional Centre while wearing the shackle apparatus that is imposed as part of that process.

11. I proceed on that basis. I also proceed on the basis that given the plaintiff has not accepted the defendant’s offer in relation to the video, that the application I am determining is the full application for a view that he originally made. However, I take into account the proffer of the making of a video in the exercise of my discretion under s 53.

12. The Court’s power pursuant to s 53 is discretionary. In a civil proceeding such as this one, it is subject to the condition in s 53(2)(a) that the parties be given a reasonable opportunity to be present. The plaintiff has indicated by correspondence that he wishes to attend a view if one is ordered. Given he is self‑represented, that would become particularly important as there would be no legal representative to attend in his absence.

13. In his written submissions in reply, the plaintiff indicated that s 53(3) of the Act makes it clear that a view may proceed even in the absence of a party. He submits that would allow me to order a view without him being present, where I consider it appropriate to do so. It is submitted that this would cancel out any arguments made, and evidence relied upon, by the defendant about the difficulties of staging a view with him present.

14. The fact that the plaintiff is self‑represented means the only options are either he attends the view or, if that does not happen, nobody is there representing his interests.

15. The defendant has led evidence about the significant security measures that would be required to enable the plaintiff’s presence at the view, giving rise to adverse operational impacts on the HRMCC and, in particular, on other inmates who are housed there.

16. Although the plaintiff has submitted to me in reply that the view can proceed in his absence, he had indicated in prior correspondence to the defendant that it would be unfair for him to not be there.

17. These are significant practical matters affecting my discretion as to how any type of view would take place.

18. Otherwise, in the exercise of my discretion, I must take into account the other factors in s 53(3). In terms of subs (3)(b), that is whether the view — and here I am using the word “view” as a shorthand for the fuller language in s 53 — will, in my opinion, assist the Court in resolving issues of fact or understanding on the evidence. I address this matter more fully later in my reasons.

19. I have decided in the exercise of my discretion to decline the application under s 53 broadly for the following reasons.

20. First, the plaintiff submitted that the Court would be assisted by seeing the setup and the conditions in the HRMCC. However, there is already a body of evidence that will be before the Court regarding the setup and amenities of the HRMCC, including a significant number of photographs of the unit as exhibited to Ms Nicholson’s 28 July 2026 affidavit.

21. The plaintiff has not identified by reference to that material any particular areas of dispute regarding the physical characteristics of the HRMCC that he says a view would assist in resolving.

22. Second, the defendant has proffered to make a video of the HRMCC that he would then tender in his case. That video would encompass the following parts of Area 1 of the HRMCC:

23. One or more cells (including a typical cell in Unit 7, as well as one or more cells in Unit 8 or 9);

24. One or more day yards and rear yards;

25. One or more exercise yards;

26. Examples of a safe interview space;

27. An AVL suite;

28. A contact and a non‑contact visit area;

29. A view of one of the decks showing a telephone cage;

30. The equivalent accommodation areas in Area 2 of the HRMCC, together with an example of the common areas available in Area 2.

31. Today at the hearing of the application, the defendant indicated that he will also include as part of the video, and tender as part of his case, the shackles that are placed on an inmate in the HRMCC when he is being walked to the main clinic at the Goulburn Correctional Centre.

32. This video would include putting the shackles on the relevant person, including close‑ups of how they are placed around ankles, wrists and waist and so on. Further, the person who would be demonstrating this would be a member of staff of similar build to the plaintiff and the video would also include that person walking with the shackles on for a period of, say, 10 or 20 metres so that the Court could observe how that takes place. Thus, the Court will have this evidence before it.

33. I am not satisfied, on the way the plaintiff has articulated the need for the view in correspondence and before this Court, as to how I would be assisted to a greater extent in resolving issues of fact or in understanding the evidence by having a physical view and demonstration of the walk to the main clinic as opposed to the video that the defendant will tender.

34. In so concluding, I accept that in some circumstances recourse to photographic evidence may be of less assistance than viewing a place or item in person. The plaintiff submits that an inspection may supply the Court with “the valuable third dimension” that photographs necessarily lack: see Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 205 ALR 56 at [49] (Callinan and Heydon JJ).

35. However, the defendant submits that an understanding of that “third dimension” could here be supplied by the video that the defendant has offered to prepare and tender. He submits that while an inspection of a place or thing will “add to the pool of information available to the Court”, that will generally be insufficient to constitute the kind of assistance or understanding contemplated by s 53(3)(b) of the Evidence Act: see NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2011] NSWSC 106 at [18] (Harrison J).

36. Further, I accept the submission that any such assistance or understanding that would be obtained from such a view would need to be weighed against the practical implications that would be involved in any such view.

37. Next, I take into account the extent of evidentiary dispute on the factual topics that a view is said to be relevant to. Ms Nicholson, in her 28 July 2026 affidavit, has accepted that inmates who are moved between the HRMCC and the medical clinic at Goulburn Correctional Centre are subject to the same procedures as other movements outside the HRMCC.

38. She has also accepted in her affidavit that whenever an HRMCC inmate is outside the HRMCC, including when moved to the Goulburn Correctional Centre for the purposes of medical treatment, they are required to wear orange overalls and are hand and leg cuffed during the movement. Ms Nicholson also agrees that the plaintiff’s estimate of the distance from the HRMCC to the main clinic is “roughly correct”.

39. Thus, it is submitted, it is not clear what assistance would be gained by a view in circumstances where there does not appear to be significant factual dispute about what is involved.

40. The other basis the plaintiff identified as supporting his application under s 53 is that it would assist the Court in assessing the opinions expressed by the two expert witnesses upon whom he proposes to rely, stating that this would be relevant to the experts having an accurate understanding of the HRMCC, its conditions and setup, and its practices and procedures.

41. However, I accept there are difficulties with this proposition. It is not proposed that the experts attend any such view as they are both located overseas. In relation to whether they could, as suggested, observe the view remotely in real time, there are a number of practical difficulties as to how that could occur. Ms Nicholson explains this in her affidavit. These include operational difficulties about the absence of Wi-Fi networks at the HRMCC, the incapacity to stream a view on existing offender tablets or via a body‑worn video and the inability to guarantee sufficient and continuous cellular connection to enable the real‑time transmission of footage.

42. Regardless of whether the view could be streamed in real time to foreign experts, additional concerns arise as to the differences between the physical observation undertaken in person by the Court and a remote viewing by the experts. The defendant points to the fact that these difficulties would not arise given its offer of a video recording which would be tendered by the defendant and supplied to the plaintiff’s experts, meaning that all parties, experts and the Court would be operating from the same material.

43. The next discretionary factor the defendant submits I would take into account is that conducting a view of Area 1 of the HRMCC would have significant operational impacts, including on the other inmates currently housed there. I will not recount in detail the evidence that has been adduced by Ms Nicholson in this respect, but I find that the impact of a view on staff and the 55 other inmates in Area 1 of the HRMCC would be quite significant, including that all other inmates would have to be confined to their cells for its duration.

44. The plaintiff submits that the HRMCC has three to four lockdowns a week in any event, and so the view could simply take place on a lockdown day, thereby minimising the impact on other inmates. However, there is no evidence that lockdown days are scheduled in advance such that that could be accommodated, and Ms Davidson SC on behalf of the defendant submits that, in fact, lockdown days are not scheduled in advance. Thus, this is not a practical way to avoid the impact on the HRMCC and other inmates.

45. The next matter I take into account is that the plaintiff does wish to attend the view and, in reality, would need to attend the view given he does not have legal representation. This creates considerable logistical considerations that weigh against the application. These include the fact that the hearing before me will take place in the Downing Centre in Sydney and that the plaintiff is to attend the trial in person and is expected to be housed at the Metropolitan Remand and Reception Centre for the duration of the hearing.

46. There is affidavit evidence to the effect that if the view were to occur during the period of the hearing, which is the natural time in which it would occur, it would require the movement of the plaintiff from Sydney back to Goulburn and back again, together with the court staff and legal representatives. Further, there is evidence that, for security reasons, the plaintiff is subject to escort procedures such that a minimum of two days on either side of the view would be required to make these movements.

47. It is not submitted by the defendant that this amounts to an insuperable obstacle for a view to occur. However it is submitted, and I accept, that this is a factor that weighs in the balance as to whether an order ought to be made, particularly where there is a video recording offered by the defendant as a form of alternative.

48. The next matter I take into account is that, although there has been correspondence between the defendant and the plaintiff about the scope of the view, there is still no clearly articulated protocol as to how the view would be conducted, who will communicate what to the judicial officer, on what topics and so on: see Hornsby Shire Council v Valuer General of New South Wales [2013] NSWSC 1183 at [8]. Having such protocols in place in advance is necessary to avoid the potential for the integrity of the proceedings to be compromised.

49. Further, the plaintiff has proposed that his experts would have an opportunity to comment on the view while it was occurring in real time, which I accept would magnify these difficulties.

50. Given that the plaintiff would need to be there in person and wishes to demonstrate the walk to the clinic, it is also currently not clear what, if anything, the plaintiff proposes he would be permitted to do or say during the course of such a demonstration, and it raises the real prospect that those matters could be the subject of contest between the parties, including while the view is in process. These are also reasons which, in the exercise of my discretion, toll against the making of an order.

51. Finally, I note the fair submission made by the plaintiff in his reply submissions, which accepted that I could reach a conclusion on the factual matters he puts in issue in the proceeding without a view. He also accepted, again fairly, that I can draw reasonable inferences with or without a view.

52. For all of the above reasons, I decline, in my discretion, to order a view under s 53 of the Evidence Act. I observe that as part of the exercise of my discretion, I have relied on the indication from the defendant that he will make a video in the terms he has proffered and that he will tender that video as part of his case.

53. It would be prudent, however, to engage in further correspondence with the plaintiff if he seeks to have additional aspects of the physical environment of the HRMCC unit filmed so that the video is as fulsome as possible.

54. However, to be clear and to avoid any future dispute about this, the basis upon which I have exercised my discretion is that the defendant will prepare a video, at a minimum, in the terms I have identified in this judgment, and that whether any other matters are included is a question of prudence and not a basis upon which I have exercised my discretion.

55. For those reasons I make the following order:

56. The plaintiff’s application seeking a view pursuant to s 53 of the Evidence Act 1995 (NSW) is dismissed.

57. Costs be costs in the cause.

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