Harrison v Commissioner of Corrective Services

Hearing dates: 16 April 2025

Date of orders: 24 April 2025

Decision date: 24 April 2025

Jurisdiction: Common Law

Before: Garling J

Decision: Dismiss the plaintiff’s application for a stay on the Change of Placement decision made by the defendant on 22 January 2025.

Catchwords: CIVIL PROCEDURE – Administrative law – Judicial review – Stay application – Whether a decision of the Commissioner of Corrective Services NSW to change the placement of an inmate should be stayed or suspended pending the outcome of substantive proceedings – Whether an order to change the placement of an inmate constitutes a denial of access to the Court to conduct litigation – Where an inmate is ordered to be placed in a different correctional centre with more limited access to technology whilst involved in substantive civil proceedings – Access to computers whilst in a correctional centre for the purposes of conducting civil litigation

Legislation Cited: Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 15
Uniform Civil Procedure Rules 2005 (NSW) r 59.9(2)

Cases Cited: Commissioner of Corrective Services v Hamzy [2024] NSWCA 240

Texts Cited: Not Applicable

Category: Procedural rulings

Parties: Graham Loughlan Harrison (P)
Commissioner of Corrective Services (D)

Representation: Counsel:
Self-Represented (P)
D Birch (D)
Solicitors:
Crown Solicitors Office (D)

File Number(s): 2025/17167

Publication restriction: Not Applicable

JUDGMENT

1. Graham Loughlan Harrison (“the plaintiff”) is an inmate at Goulburn Correctional Centre (“Goulburn” or “GCC”).

2. The plaintiff is currently serving a sentence of 36 years for convictions for a wide range of offences including aggravated sexual assault; indecent assault; sexual intercourse without consent; using an offensive weapon with intent to commit an indictable offence; taking or detaining a person with intent to obtain an advantage; producing, disseminating or possessing child abuse material; using a child under 14 years of age to make child abuse material; filming a person in private without consent; and being the owner of massage premises allowing prostitution. The plaintiff’s sentence expires on 20 March 2049, and his earliest possible release date is 20 March 2040.

3. Since 5 December 2017, the plaintiff has been designated as “Extreme High Security” (“EHS”) pursuant to cl 15 of the Crimes (Administration of Sentences) Regulation 2014 (NSW). He is presently located in Wing 2 of Goulburn, where his placement status is “Special Management Area – Placement” (“SMAP”).

The Substantive Proceedings

4. By an Amended Summons filed 17 March 2025, the plaintiff brings proceedings against the Commissioner for Corrective Services (“the Commissioner”) seeking judicial review of the decision to continue his EHS designation.

5. The final relief he seeks is as follows:

“1. The decision(s) viz the continuation of the designation of Extreme High Security be quashed by way of certiori.

2. The Commissioner to revoke the EHS designation by way of mandamus.

3. A declaration that following the 12 June 2019 Burwood Court outcome, the basis for the designation being imposed no longer exists.”

6. This substantive proceeding is in its preparation stage and has not yet been allocated a hearing date.

7. On 22 January 2025, the Deputy Commissioner, Community, Industry and Capacity, Corrective Services NSW made a decision which included that there should be a change of placement for the plaintiff from GCC to Lithgow Correctional Centre (“Lithgow” or “LCC”). The decision also dealt with two other matters. Pending the hearing of the current proceeding, the Commissioner decided that the change of placement would not take place until after the urgent interlocutory hearing, which I conducted.

Interlocutory order

8. On Wednesday 16 April 2025, a date fixed urgently, the plaintiff moved the Court for the following interlocutory order:

“The decision of the defendant made 22 January 2025 to change the placement of the plaintiff be stayed or otherwise suspended with the current hold to continue pending the outcome of the substantive proceedings.”

Reasons for Change of Placement Decision

9. On 11 March 2025, the plaintiff served a Notice on the Commissioner pursuant to r 59.9(2) of the Uniform Civil Procedure Rules 2005 (“UCPR”), seeking a statement of reasons for, amongst other decisions, the decision to change his placement from Goulburn to Lithgow.

10. On 26 March 2025, the Deputy Commissioner set out his reasons. It appears from these reasons that, generally, the placement of any inmate is reviewed every 12 months. That review can happen sooner if an application is made. A review was commenced by the Governor of GCC of the plaintiff’s placement on 28 November 2024.

11. On 21 January 2025, the Serious Offenders Review Council (“SORC”) made a recommendation that the plaintiff’s placement be changed from Goulburn to Lithgow. In his reasons, the Deputy Commissioner noted that the management of Goulburn supported the change of placement to Lithgow. The SORC noted, in its meeting on 2 November 2024, that the Governor of GCC had raised concerns about the plaintiff’s on-going placement at the Centre, and his alleged use of other inmates to obtain documentation belonging to Corrective Services. The Deputy Commissioner also noted that the plaintiff was designated EHS and had been at Goulburn from 2017. He said:

“In my opinion, the placement of an inmate in the same correctional centre for an extended period of time presents a security risk for at least three reasons. First, an inmate develops an over-familiarisation with staff at the facility, who are then open to manipulation, coercion and/or corruption. Second, they become over-familiar with Correctional Centre security systems, practices and protocols. Thirdly, they establish and maintain networks within the Correctional Centre which may assist them with breaching a Centre’s security and systems through a shared knowledge of facilities infrastructure and protocols (such as in relation to responding to facility failures) and response timings.”

12. The Deputy Commissioner noted that he had had a telephone conversation with the Governor of GCC. Of this conversation, he said:

“… the Governor also reiterated to me that he had a particular concern that it was more than likely that Harrison [had convinced another inmate] to obtain CSNSW documents for him and had attempted to manipulate staff. On this basis I was satisfied that this was a significant reason in favour of changing Mr Harrison’s placement.”

13. The Deputy Commissioner also noted concerns expressed to him in the following terms:

“Corrective Services NSW staff had expressed concerns of Mr Harrison circumventing security measures in relation to mail, printing and communication. As a result of these concerns, I was satisfied that there was an ongoing risk of Mr Harrison continuing to correspond with external offending supporting networks and engage in activities relating to his criminal behaviour.”

14. The Deputy Commissioner, having set out the sources of his information and his view of that information, came to the conclusion that there was nothing to justify a departure from the recommendation of the SORC for the plaintiff to have his placement changed to Lithgow. Accordingly, he made the relevant decision.

Interlocutory Proceedings

15. The plaintiff moved the Court for a stay on the decision to change his placement to Lithgow until the conclusion of his substantive proceedings.

16. He accepted that, for the purposes of the interlocutory argument, the decision of the Deputy Commissioner was a lawful one. He noted that he was not challenging that decision in his proceedings.

17. The essential basis upon which the plaintiff’s application for a stay was made, was that, in order to conduct the substantive proceedings, and having regard to his participation in a number of other legal proceedings in various courts and tribunals, the change of placement would significantly and adversely impact upon his access to justice in each of those proceedings. The plaintiff submitted that, in order to adequately participate in his various legal proceedings, he needed access to a range of computer resources. He submitted that in Goulburn he had reasonable access to such resources, and that the resources available in Lithgow were not comparable in any way. He submitted that such was the inadequacy of access for inmates with his classification and security designation, that in Lithgow he would have effectively little, or no ability, to use computer resources. In that way, the plaintiff submitted his access to justice was being effectively denied and that there ought be a stay on the change of placement decision.

Applicable Legal Principles

18. Before reviewing the evidence, it is necessary to examine the test by which this Court considers whether to make orders which affect, in this case, the placement of prisoners, or other orders of a similar kind.

19. Such examination commences with the identification of the Court’s power to make the order which is sought. The Court of Appeal considered this question recently in Commissioner of Corrective Services v Hamzy [2024] NSWCA 240.

20. Commencing at [84], the Chief Justice (with whom Payne and Stern JJA agreed) said:

“[84] In the context of both criminal and civil proceedings, the power to prevent an abuse of process, including by any denial of access to justice or a fair trial, has typically been exercised through the grant of a stay of proceedings pending the removal of the impediment to the obtaining of justice. …

…

[87] It is not possible to build out of the Court’s inherent jurisdiction and right to control its own processes to prevent an abuse of process, a free standing unitary ‘right’ to a fair trial. That is necessarily imprecise … The dictates of justice and the necessity of securing a fair trial may be secured in the context of criminal proceedings by the remedies of bail or temporary stay of proceedings. Those remedies or sanctions have no application to civil proceedings …

[88] In civil proceedings in NSW, the court has broad power to make directions in respect of any proceedings: Civil Procedure Act 2005 (NSW) ss 61 and 62. Liritsis did not deny that power: its immediate concern was whether the Supreme Court could in its inherent jurisdiction make the orders sought in respect of a trial to take place in the District Court. That having been said, the observations made by Basten JA in Liritsis are, in my view, apposite, as was the observation of the Chief Judge in the present case … 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 jail’.

[89] The Court’s concern is to guard against the denial of access to justice and to use its powers in this regard as a ‘safety net’: … If the proper concern of the Court is with guarding against any denial of party’s access to justice, that involves a quite different enquiry to one which involves the effecting and consideration of how a ‘fair balance’ between the parties ‘can be struck’. …

…

[93] The role of the court is to ensure a fair trial and it may be accepted that an ‘irreducible minimum’ of resources may be required to achieve that (Rich v Magistrate’s Court of Victoria [2007] VSC 65 at [44]), but that, too, is different from an equalisation or an approximate equalisation of resources. Further, any irreducible minimum requirement must be assessed in the context of the particular case, including the applicable statutory context which confers discretions and power on corrections authorities who are far better placed than Courts to assess what is required for the safe and secure management of corrections facilities.”

21. Finally, at [97], the Chief Justice said:

“… The source of power to make the orders sought must be identified carefully, and the statutory context of the lawful regulation of a prisoner’s circumstances of incarceration must be recognised and given proper deference. Any excess of executive authority is most appropriately dealt with in the Court’s supervisory jurisdiction and by reference to public law remedies. Any discretion to make directions in the context of extant proceedings should … focus on what is required for a fair trial. The focus must necessarily take into account the very different context of a prisoner who is in some way impeded in preparing and presenting a defence in criminal proceedings as opposed to civil litigation where the prisoner is the moving party.”

22. As was made clear in the judgment in Hamzy, the Court needs to focus on the position of the particular plaintiff and his or her ability to have access to justice in the context of the fact that as a prisoner, the Commissioner has been given the power by the Parliament to control, and provide for the security surrounding the confinement of prisoners.

Final Position of the Commissioner about the Lithgow Resources

23. At the conclusion of submissions, the Commissioner was given an opportunity without any compulsion, to proffer any undertaking which he may wish with respect to the plaintiff having access to a computer or computer resources whilst confined at Lithgow.

24. Whilst the plaintiff did not object to this opportunity, he submitted that the Court would note his submission that if which was proffered was any less than that which existed at Goulburn, he would not have any substantive access to justice, and that he would not be able to fairly conduct the litigation upon which he was variously embarked.

25. As well, on 23 April 2025, the plaintiff filed written submissions which were directed to identifying the many deficiencies in what the Commissioner proposed to provide the plaintiff at Lithgow. These submissions have been carefully considered.

26. The defendant has proffered an undertaking to the Court, by his solicitor, to put in place the following arrangements upon the plaintiff’s transfer to Lithgow, namely that:

(a) the plaintiff will be provided reasonable access, in the same room, to one blue and one green computer … during the scheduled time out of his cell (being between the hours of 8.30am to 3.30pm), subject to any operational matters, including lock-down(s), the availability of rostered correctional officers and the temporary removal of the computers for repairs; and (b) the plaintiff have access, in his cell, to one ‘e-brief’ read only laptop … subject to the removal of the ‘e-brief’ laptop for the purposes of uploading additional materials onto the laptop for the plaintiff’s use.

27. The undertaking to make access available is subject to circumstances arising, being those not presently known to the Governor of LCC, which provide a reasonable basis for the Governor to conclude that the plaintiff’s ongoing access to the computer facilities “… poses a serious risk to security or good order of the Lithgow Correctional Centre”. There is also a provision for such computer access to be suspended if such risk is sufficiently imminent and, in such circumstances, the defendant would take reasonable steps to relist the matter promptly.

28. Initially liberty to apply to vary the undertaking on three days’ notice was provided. It is also noted that the undertaking expires on the conclusion of the principal proceedings.

29. It will be observed that what this undertaking provides is reasonable access to a blue and green computer in the same room for up to seven hours per day, and an e-brief read only laptop available to the plaintiff in his cell.

The Goulburn Resources

30. At Goulburn, the plaintiff is employed to work in the textile section. According to his evidence, which can be accepted in this respect, there is a separation in the available computers between the SMAP population and the main population, thereby negating any security concerns between the two different population groups which may otherwise require timing restrictions to achieve secure separation of the two groups. Secondly, each wing has four computers; two designated “green” computers and two designated “blue” computers which are situated directly next to each other. This co-location enables an inmate to use the computers at the same time.

31. The computers have recently been upgraded and installed with high quality keyboards and mouse equipment. As well, a special, extra-wide monitor has been installed to enable inmates to work on a number of documents at the same time or on documents of different sizes. At Goulburn, the plaintiff has access to the computers seven days per week, between 8.30am and 2.00pm, with priority being given for weekend use to those who hold employment roles.

32. As well, in Goulburn, there is no education use priority for the computers in each wing, which means that the plaintiff has ready access to the computers which are placed in the wing at Goulburn.

33. The plaintiff presently anticipates that, on all work-days, those employed in the textiles section will be provided with an additional hour’s access to all green computers.

34. To understand the expressions used by the plaintiff, I note that, according to the “Custodial Operations Policy and Procedures: 8.3 Inmate Computers”, a policy which is presently in existence and applies to all correctional centres, the computers provided for use by inmates are designated in the following way:

“Computers available for use by inmates are identified by colour:

● green computers are connected to the Offender Access to Computer (OAC) network and are for education, programs and employment purposes.

● blue computers are non-networked and are for the purpose of viewing and preparing legal documents

● red computers are non-networked and are for CSI employment purposes, to be issued only under approved circumstances.”

35. As well, inmates may be given access to a laptop that includes their pre-loaded legal materials issued by a prosecuting authority. These e-brief computers have MS Word and MS Excel installed. They are only available for use while an inmate is in their cell, and only by the designated inmate.

The Plaintiff’s Submissions

36. In the second of his two affidavits, the plaintiff placed these views before the Court:

“228 This EHS matter and the judicial review of it is a huge stress and burden on me and to the detriment of my other core legal matters. I have endeavoured to amicably resolve the relevant issues at hand, however those steps to date have proved futile …

…

230 I am unaware of any inmate ever fighting in such a way to remain at GCC. I do not ask or expect to remain at GCC forever … I wish to move on, but not at the dire expense of my legal matters – that is the only reason the temporary stay is essential. Of course, I also wish to ‘progress’ without the stigma of EHS upon me …

231 In the event a stay or similar orders are made, I undertake to continue [to] behave impeccably and uneventfully as I have in the five or so months since the events of November 2024.

232 Primarily, I simply wish to maintain the status quo of computer facilities I desperately need to preserve; knowing the decimation to that capacity being placed at LCC would instantly inflict. I believe no other remedy would cure that profound detriment and that [a] stay prevents the damage before being done.”

37. In his lengthy submissions with respect to the interlocutory relief, the plaintiff writes amongst other things:

“5. It is my position that the interim relief regarding a stay of the change of placement (COP) is necessary to protect these proceedings by protecting my ability to fairly and properly prosecute my case. I believe the stay also serves to prevent and [sic] serious abuse of process.

…

I have a grant of Aid to obtain Counsel assistance, however even preparing the brief to Counsel is impeded by the extant circumstances, and especially the incredibly short timetables involved so far in the Interim matters. I do not wish to act for myself. I and my solicitors are actively pursuing Counsel for the substantive EHS matter.”

38. The plaintiff’s submissions then turn to objecting to the limited time to prepare for the interlocutory hearing which I conducted. I should note that, at the commencement of that hearing, I asked the plaintiff whether he wished to proceed or whether he wished to seek an adjournment. Ultimately, having changed his position on a number of occasions, the plaintiff decided he would proceed. To that extent, these concerns about the limited time can be put to one side. I note that the plaintiff was able, and had a sufficient opportunity, to put all such submissions as he wished – either in writing or orally.

39. At paragraph 45 of his submissions, the plaintiff identified the jurisdiction and power which he was engaging in this way:

“For the purposes of these interim proceedings, I seek the Supreme Court engage its inherent jurisdiction pursuant to s 23 of the Supreme Court Act 1970 insofar as the Supreme Court has jurisdiction and power reposed in s 23 to give directions or orders to protect proceedings before it and prevent an abuse of it [sic] processes. … The ‘safety net’ is the basis I seek this relief.”

40. The plaintiff encapsulates the adverse effect of his change of placement in this way:

“50 The arguably deeper power of protecting its own proceedings by preventing an abuse of process and protecting access to justice has frequently involved a ‘stay’ of proceedings (Hamzy (CofA) at [84]). I do not seek a stay of proceedings (that would be self-defeating) merely (or at least) the stay of a COP which otherwise denies (definitely to some significant degree) access to justice. The concern of the court is properly with guarding against such a denial (ibid at [89]). That is what is required for a fair trial in this case. If moved to LCC at this time I will be relevantly denied access to justice.”

41. The plaintiff further submitted:

“73 A stay protects against avoidable harm, and importantly, prevents profound interruption and erosion of my existing capacity to attend to the substantive matter, and to a number of other legal proceedings (see affidavit), all of which are at crucial and complex stages and all impacted by the overlapping timetable needs of the others.

74 Inversely, little or no harm or prejudice whatsoever would be suffered by the defendant in allowing the placement to remain at Goulburn.”

42. Later in his submissions, the plaintiff points out that, since the commencement of his legal matters, he has had possession of approximately 15 USB devices. He says that he has these devices with him in his cell and needs constant access to them. He says that he has been advised that access to such devices will not be possible at Lithgow. The source of that advice is not revealed.

43. As well, with respect to Lithgow, he says in his submissions that the general routine is very different, is often displaced by staffing shortages, unavailability of access to printing of materials and competing claims for priority by other inmates in the use of the computer resources. This, he submits, is not conducive to his case preparation needs.

Discernment

44. Contrary to the approach of the plaintiff, the Court is not concerned to determine whether the access to computers at Lithgow is equivalent to the plaintiff’s access to computers at Goulburn.

45. The correct legal approach is to determine, on the basis that the plaintiff’s placement has changed so that he is moved to Lithgow, whether, in respect of the substantive proceedings in this Court, such access to the computers at Lithgow, as is proposed in the undertaking given to the Court by the Commissioner, would be such as to constitute, in substance, a denial of access to the Court to conduct his litigation.

46. The nature of that litigation, being the principal proceedings, is relevant. It is an application for judicial review of the decision or decisions of the Commissioner (or his delegate) to continue the plaintiff’s designation as an Extreme High Security inmate.

47. To the extent that the process of judicial review requires evidence, then there is no reason to think that, given appropriate time, the plaintiff will not be able to ensure the provision of that affidavit evidence either of himself or of another prisoner whom the plaintiff regards as a material witness. I note, with respect to that other prisoner, that a statutory declaration has already been completed and filed for the purpose of these interlocutory proceedings.

48. As well, it will be necessary for the plaintiff to prepare and file written submissions. I see no difficulty in that occurring with such access as is to be provided at Lithgow. That preparation may take longer at Lithgow than in Goulburn. It may be less efficient, and perhaps, more challenging for the plaintiff, but these potential difficulties arise in the course of the plaintiff exercising his access to justice. They cannot be regarded as constituting, in substance or effect, a denial of his access to justice.

49. Finally, the conduct of the proceedings will be facilitated by use of the AVL facilities to which the plaintiff will have access, as will the Court. There is no reason to think that the plaintiff cannot present his arguments orally and fully to the Court, as he has been able to do for this interlocutory hearing.

50. To the extent that the plaintiff succeeds in his application for legal aid and for the provision of counsel to conduct the hearing of the substantive proceedings, the computer resources at Lithgow will be adequate for any purpose of providing instructions to counsel, and identifying documents or other material with which counsel ought to be briefed.

51. Very little persuasion is needed, that where a prisoner is settled in a placement at one correctional centre, and has a routine with which he is familiar and which he has become used to for the purpose of conducting his litigation, that he fears that any change from that routine and access arrangement will be detrimental. But that is not the appropriate basis for the Court to exercise its power.

52. The question for me is whether, on the evidence before me, there is any real risk that the plaintiff will be denied access to justice in the way in which the principles which I have outlined above state.

53. In my view, the plaintiff has not demonstrated that his change of placement from Goulburn to Lithgow will result in either a denial, or an effective denial, of his access to justice.

54. Having regard to the fact that the Court must pay deference to the Commissioner in terms of managing the safety and security of inmates and correctional centres generally, I am wholly unpersuaded that the decision to change the placement of the plaintiff is one with which this Court ought interfere by granting a stay until the resolution of the substantive proceedings.

55. Reasonable access to a blue and green computer for up to seven hours a day in accordance with the Centre’s operational routine and requirements cannot be regarded as a denial of access to justice, either in whole or in substantial part.

56. In contrast, a Change of Placement decision which was made to enhance the security of the GCC, and to safeguard the staff at Goulburn from the risks identified in the reasons for decision falls well within the ordinary discretionary exercise of the power of correctional authorities provided by the applicable legislation. The Court must pay due deference to that exercise of those powers.

57. The material placed before this Court falls well short of establishing a denial of access to justice of any substantive kind, let alone a kind which would permit the Court to stay a decision to change the plaintiff’s placement from Goulburn to Lithgow.

58. If there is any difficulty with such access, or the access is for a safety or security reason suspended by the Commissioner, in a way which constitutes a substantive denial of the plaintiff’s access to justice, the matter can be put back before the Court on short notice to deal with such an issue.

59. On the basis of the material and arguments before me, I dismiss the plaintiff’s application for interlocutory relief with respect to his change of placement from Goulburn to Lithgow.

Orders

60. I make the following order:

61. Dismiss the plaintiff’s application for a stay on the Change of Placement decision made by the defendant on 22 January 2025.

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