Court of Appeal (ACT)|2015-12-16|Before: Walmsley AJ

Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60 (16 December 2015)

Islam v Director-General, Justice and Community Safety Directorate

APPEAL - Jurisdiction, practice and procedure - preparation of appeal

HUMAN RIGHTS - prisoner - preparation of case - prison facilities - computer access - faxing of documents - access to paperwork - implied limitation of rights

Human Rights Act 2004 (ACT), ss 22 (2)(b), 22(3)(b), 40A, 40B, 40B(1)(a), 40C

David Harold Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33

Eastman v Besanko [2009] ACTCA 23

Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48

Johnston v Eastman [2009] ACTCA 8

Masoud v R; Viet Dung Tran v R [2000] FCA 435

R on Application of M & Leon La Rose v Commissioner of Police of Metropolis [2001] EWHC Admin 553

Director-General, Justice and Community Safety Directorate (Respondent)

Citation: [2015] ACTSC 99

1. The question for determination is whether the Court should order the respondent to provide the applicant with more facilities than he has to help him prepare for his forthcoming appeal.

2. On 14 April 2015, Mr Islam was imprisoned for recklessly inflicting grievous bodily harm, contrary to s 20 Crimes Act 1900 (ACT). He has appealed against the severity of his sentence. The appeal is to be heard on 10 February 2016.

3. Mr Islam represented himself on the sentencing hearing and will represent himself on his appeal.

4. He says prison authorities are preventing him from engaging in proper preparation for his appeal. In particular, he says, he does not have enough computer access; when he does have access he lacks access to the legal website, Austlii; he is prevented from having all of his relevant legal documents in his cell; and he is charged an excessive sum of money by prison authorities for sending his faxes.

That the Defendant is directed by the Court to take reasonable steps to furnish the Plaintiff with adequate access to a Computer at the Alexander Machonochie Centre (AMC), provide adequate access to legal documents recently seized (24th Oct 2015) also that AMC management are directed to process the Plaintiff's legal faxes (namely, the picking up and sending of legal faxes) in a reasonably timely manner without charging a fee for doing so and also grant the Plaintiff adequate access to Case Law via the www.austlii.edu.au website.

2. Any other order that the Court considers appropriate.

6. In support of his application, Mr Islam swore an affidavit in which he said that on 24 October 2015 he had been moved to a new cell, since when he has not had full access to all his legal documents. He has some access to a personal computer (PC) he shares with other members of his section, but says that is inadequate for his needs and is less than his legal rights allow. He could hire a PC for his sole use and have it in his cell, but has competing financial needs and is "legally bankrupt". He was not cross-examined on his affidavit.

7. The respondent opposed the orders. Ms N Tarbet, who appeared for the Director-General, read an affidavit of Mr Don Taylor, General Manager, Custodial Operations, ACT Corrective Services at the Alexander Maconochie Centre (AMC), in which he said, inter alia:

Access to PC

[15] Accommodating a detainee in the Management Unit usually involves limited access to a PC.

[16] Separate confinement and loss of privileges may include the loss of access to a PC, however, this does not mean that access to legal documents is restricted, as staff can print off legal documents by detainees on separate confinement or loss of privileges on request. Furthermore, detainees in Management Unit have access to the PC in the Interview Room.

[17] When Detainee Islam was moved to the Management Unit, he was denied access to a PC. However that arrangement was changed following his request for access on 7 July 2014.

[18] Thereafter, while Detainee Islam was in the Management Unit, considerable effort was made to ensure that he maintained access to the PC, in response to his specific requests to do so.

[19] On 12 November 2015, I formalised the arrangement by instructing my senior staff to ensure that while Detainee Islam is housed in the Management Unit he is to be provided with access to the Prisoner PC on a daily basis and, if possible, he be housed in the accommodation area which would ensure that he have access to a powerpoint and ethernet terminal and, therefore, he have the capability to hire a PC for his own use in the cell as and when required, conditional upon availability.

Access to Legal Material

[20] Accommodating a detainee in the Management Unit involves limited access to paperwork.

[21] While Detainee Islam was moved into the Management Unit, considerable effort was made to ensure that none of his religious, educational or legal paperwork was lost or destroyed. The material was stored in the Admissions area and he was permitted to have access to that material on request, by escort with a corrections officer to the compactus in Admissions.

8. Mr Taylor also gave oral evidence and he was cross-examined by Mr Islam. At the conclusion of the hearing, the Director-General offered the Court an undertaking in the following terms:

The Director-General will ensure that for the period 8 December 2015 to 27 January 2016 ("access arrangements"):

Det Islam will have uninterrupted access for a minimum of 2 hours per week to the common PC in the Remand Unit;
Det Islam will have uninterrupted access for a minimum of 2 hours per week to the common PC available in the Management Unit should he be relocated to that unit;

The Director-General will ensure that the access arrangements are provided in advance to Det Islam, having regard to the operational requirements of the Alexander Maconochie Centre.

9. When an undertaking in a slightly different form was first offered by the Director-General, I queried whether it might not be possible for Mr Islam to have access to a PC for a greater period without charge, given his appeal is to be heard in less than eight weeks and his written submissions are due to be served in six weeks. However, I took Mr Taylor to say that although he would do his best to help Mr Islam, there were competing demands for the availability of the PC used by the members of Mr Islam's section, and he was concerned that if he made an exception for Mr Islam there might be disciplinary problems: the other detainees would not necessarily see Mr Islam's needs as having greater importance than their own.

10. I took the Director-General to concede what I was told by Mr Islam, namely that the section has about 25-26 occupants and there is only one PC for them all. The question of who is to use it at any given time is left to the detainees, who organise its use on an informal basis. I was told by Ms Tarbet (without contradiction by Mr Islam), that the PC is available for use between 9.30 am and 11.45 am and 1pm and 6 pm. Thus, between 25 inmates, the available time each day is 7.25 hours, or 17.4 minutes each, or, if available seven days per week, about 2 hours each week. The undertaking given by the Director-General is consistent with those calculations, save that the undertaking (confirmed by Mr Taylor when I asked him about this) was that Mr Islam would be given an unbroken two hour period each week until he has prepared his appeal submissions. They are due on 27 January 2016, so he will have this access for a little over six weeks.

11. Mr Taylor told me the AMC has available a number of PCs for hire by inmates at a rate of $5 per week. Although there is a limited number available, there were three available on 4 December for Mr Islam to choose from had he chosen to have one, and there may well have been one available on 6 December. When a detainee hires a PC it is installed in his or her cell and the $5 weekly fee deducted from the AMC's trust account held for the detainee. The AMC's trust fund for Mr Islam at the end of November 2015 stood at a little over $7000. Thus, I took Mr Taylor to say, it is open to Mr Islam to hire a computer for a few weeks by using his own resources.

12. Whether Mr Islam uses the jointly available PC or hires his own, Mr Taylor said the AMC would permit him access to the website www.austlii.edu.au pending the filing of his appeal submissions.

13. In cross examination Mr Taylor was asked whether the AMC would make available a PC to him free of charge. Mr Taylor said it would not, and that if an exception were made for Mr Islam, it might have to be made for all detainees.

14. When asked about whether Mr Islam could have all his papers in his cell, Mr Taylor said a consideration with prisons is to ensure safety from fire, and there must be a limit placed on the quantity of paper in cells. Ultimately, however Mr Islam conceded that he could have all his appeal papers in his cell if he removed some papers relevant to his university studies.

15. When asked about the charging of prisoners for faxes sent for them or on their behalf Mr Taylor told me all prisoners receive a free allowance of some faxes and after the free limit is exceeded prisoners are charged. According to the trust account records for Mr Islam, the charge is 20 cents per page.

16. Mr Islam relied principally on s 22 (2)(b) and s 40A, 40B (1)(a) and 40C of the Human Rights Act 2004 (ACT) which provide relevantly as follows:

Section 22 Rights in criminal proceedings

Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:

to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her;

Section 40A Meaning of function of a public nature

Without limiting subsection (1) or (2), the following functions are taken to be of a public nature:
1. the operation of detention places and correctional centres;
2. ...

Section 40B Public authorities must act consistently with human rights

It is unlawful for a public authority -
1. to act in a way that is incompatible with a human right; or

...

Section 40C Legal proceedings in relation to public authority actions

This section applies if a person -
1. claims that a public authority has acted in contravention of section 40B ; and
2. alleges that the person is or would be a victim of the contravention.
The person may -
1. start a proceeding in the Supreme Court against the public authority; or
2. rely on the person's rights under this Act in other legal proceedings.
A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.
The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
This section does not affect -
1. a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
2. a right a person has to damages (apart from this section).

"public authority" includes an entity for whom a declaration is in force under section 40D.

17. Mr Islam argued that the minimum his s 22 (2)(b) right accords him is the right to have adequate PC access and access to all his documents for his appeal, timely receipt and sending of faxes for his appeal and access to the Austlii website.

18. He argued alternatively that the court has inherent power to make orders against the respondent where the administration of justice is unduly impeded. He said if he cannot prepare his appeal properly, the administration of justice would be impeded..

19. In the course of his submissions, Mr Islam referred me to David Harold Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33 at [41], Eastman v Besanko [2009] ACTCA 23 and Johnston v Eastman [2009] ACTCA 8.

20. I shall deal first with Mr Islam's argument under the Human Rights Act.

21. Section 22(2)(b) has not previously been considered in the ACT in the context of a prisoner's application for an order such as this. In Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48 an accused sought an order directing the Legal Aid Commission to pay for a solicitor of his choice, rather than, consistently with its guidelines, provide an in-house solicitor. He argued s 22(2)(b) mandated that the Commission pay for a solicitor of his choice, and that a failure to do so put the Commission in breach of s 40B. But the trial judge, Refshauge J, held that the right under s 22(2)(b) is not absolute and has inherent limitations. An obvious example of such a limitation, as his Honour noted, is the appointment of a lawyer to cross-examine the victim in a sexual assault trial where the accused is otherwise unrepresented. His Honour found there was no absolute right for a legally aided accused to choose his or her own lawyer.

22. A similar argument to that put by Mr Islam was considered by the England and Wales High Court (Administrative Court) in R on Application of M & Leon La Rose v Commissioner of Police of Metropolis [2001] EWHC Admin 553. Section 6 of the Human Rights Act 1998 (UK) required that authorities comply with the European Convention of Human Rights. Article 6(3) of the Convention provided:

Everyone charged with a criminal offence has the following minimal rights

...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing...

23. Two accused applied for declarations that their rights had been breached. The complaint made by each was that when conferring with their lawyers they had not been given proper interview rooms: one had had to confer in a cell and the other near a custody sergeant's desk. There was no evidence of any eavesdropping in either case. Both applications were dismissed. Poole J observed (at 7):

non-ideal facilities are not the same as inadequate facilities...Where (as here) the right concerned is framed in general terms, without detailed or exhaustive definition, there is room for implied limitations...In Croissant v Germany [1992] ECHR 60; (1992) 16 EHRR 135 the ECtHR held that the right of the accused to defend himself in person, which is expressly guaranteed by Article 6(c), does not prevent the national authorities from imposing reasonable restrictions on the right to appear without a lawyer in a complex case.

[F]rom time to time the Convention rights have been treated and regarded by claimants' advisers as if they were set in stone: that is, as if their efficacy and applicability were somehow at a distance from the actual facts of the case in which they were invoked. If so, it is a great mistake. The Strasbourg learning suggests no such straitjacket...

25. I respectfully adopt the reasoning of Refshauge J and Poole J and Laws LJ. There are implied limitations in s 22(2)(b).

26. An accused does not have an absolute right under s 22 (2)(b). There will be obvious cases where the court must intervene. There will be obvious cases where it will not. There is a need in each case to analyse the degree to which it could be said the relevant right is interfered with. Having performed that exercise here, I do not consider Mr Islam has made out a case for relief.

27. He is not prevented from pursuing his appeal and preparing it properly. He has chosen to represent himself. The appeal is due to be heard in February 2016, and the remaining paper work required of Mr Islam for the appeal is the preparation of his submissions. He will, no doubt, have a need to read cases and consider the Crown's submissions in preparation for his oral submissions, but the bulk of the work needed for an appeal has been done. Normally the appellant prepares the appeal books. But the court registry has agreed to prepare them for Mr Islam. Thus the amount of copying and filing of documents required of him is not great.

28. The Director-General has undertaken to the Court to ensure Mr Islam has unfettered access to a PC for a block of at least two hours per week until his written submissions are due in. Given that PC is normally shared by Mr Islam with 25 or so others, that is a significant amount of time. I accept Mr Taylor's evidence that for him to provide greater access to that computer may produce disciplinary problems greater than he considers are reasonable in the circumstances.

29. Mr Islam has access to another computer which could be made available to him for his sole use at a cost of $5 per week. His current bank balance is over $7000. Thus, if he were to hire the computer for the six or so weeks from now to when his submissions are due, he would incur a total of $30. I appreciate he says there are other demands on his resources. One of them is a HECS debt. But until he is released (his earliest release date is 3 January 2019), he will not have the capacity to earn the minimum income to make him subject to HECS payments. The other debt is due to the ACT Government for compensation to the victim of one of his crimes. He has received notice from the Territory that the sum is being claimed. But there is no evidence he has been served with a bankruptcy notice or indeed has committed an act of bankruptcy.

30. I understand his submission that it ought not be for others to tell him how to spend his money, but I regard his financial position and its relationship to his ability to obtain a PC for a few weeks for his sole use to be relevant.

31. As to the sending and receiving of photocopies, I accept Mr Taylor's evidence that each prisoner receives a free allowance of faxes received and sent but that there are limits. The evidence does not show precisely how many pages of faxes Mr Islam may need to send or receive before his appeal is heard, but I consider that if the Director-General charges 20 cents per page, it is unlikely he will incur more than $10 or so for faxes. I consider he can afford to pay for that himself.

32. As to his request for access to the legal website of Austlii, I accept Mr Taylor's evidence he will ensure Mr Islam will have access to that site so he may prepare for his appeal.

33. As I earlier observed, he has the ability to have all of his appeal documents in his cell. To achieve that, he needs only to agree to have some of his university study documents away from his cell until his appeal has been heard, to ensure he has only the maximum permitted amount of paper in his cell. Any interference with his studies will be short.

25. Finally, to my observation, Mr Islam is educated and articulate and well able to put his submissions orally when his appeal is heard. He has a number of primary and secondary university degrees and is currently enrolled for a PhD at Charles Sturt University.

35. I understand that from Mr Islam's perspective the course open to him is not nearly as convenient a way of preparing submissions as would have been the position had he not been in custody. But in the AMC he is one of a large number of detainees and I can readily see why Mr Taylor sees potential problems if any more exceptions are made for Mr Islam. I consider the attitude of the AMC and its staff to be reasonable in the circumstances. I do not consider he has made out a case for relief under the Human Rights Act. I am not persuaded his right under s 22(2)(b) has been infringed.

36. I will now consider Mr Islam's alternative argument, namely that the court should use its inherent power to grant relief.

37. It is not in doubt that the court has inherent power to ensure the administration of justice is not unduly impeded by the way a prisoner is being detained: Johnson v Eastman; Eastman v Besanko.

38. But as the court said in Eastman v Besanko at [5]:

It is a serious step for a court to intervene in the way in which prisoners under sentence are dealt with in a prison. Serious security and safety issues may arise. It is not an area in which courts have any real expertise or experience.

39. As Miles CJ explained in Masoud v R; Viet Dung Tran v R [2000] FCA 435 at [14], when a prisoner is in custody:

The laws of the Territory as to [the] continuing custody deserve respect, as does the lawful functioning of the institutions of the Territory that are charged with the responsibility of implementing those laws.

40. For the reasons I have decided Mr Islam is not entitled to relief under the Human Rights Act, I am also satisfied he has not established a case for the court to intervene under its inherent power. There is simply no evidence the administration of justice is being impeded.

41. Thus, the application must be dismissed. I will hear the parties on costs.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Walmsley.

Human Rights Act 1998

Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60

At a glance

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Judgment (78 paragraphs)

Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60 (16 December 2015)

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Legislation Cited (3)