Liristis v State of New South Wales

Supreme Court of NSW|2018-01-30|Before: Schmidt J

Judgment

By summons filed in December 2017 Mr Liristis sought orders that identified solicitors supply him with a laptop, at his expense, to use while in custody, to prepare for and defend "current matters" before the Sydney District Court, as well as orders that he be allowed to "stay" at Long Bay Correctional Centre while his "legal matters" are before the District Court; that he be granted access to "a computer" in his cell, to prepare and defend current matters before the District Court; and that he not be hindered, prevented, interfered with or obstructed in carrying out his legal work for those matters.
Mr Liristis is due to appear in the District Court on 5 February 2018 for a trial expected to run for some 10 weeks, in which he defends a number of charges of sexual assault. He has been served with a voluminous Crown brief, including electronic materials, as well as other materials which the District Court has ordered that he be provided with, not all of which is even yet in his hands.
At the hearing of this application Mr Liristis appeared unrepresented, although a solicitor and counsel who are representing him in part of the criminal trial were present at different times. Mr Liristis then consented to the addition of the Commissioner of Corrective Services as the second defendant.
The criminal trial has been repeatedly adjourned in the past, over the Crown's objection, most recently in order that Mr Liristis be provided with copies of encrypted hard drives which had been seized by police some years ago and so that he could obtain the assistance of experts to access that and other material he has been served with. On Mr Liristis' case, the drives contain material which will exonerate him of the charges, but without access to the laptop and software which he has purchased, he cannot access that material.
Further, a USB only recently served upon Mr Liristis as the result of a further District Court order, which ought to have contained some 11,000 other documents, has been found by his experts to be blank.

The orders sought

By further summons filed in January 2018 Mr Liristis thus sought both interlocutory and final orders that: "Final orders 1. A declaration that the Plaintiff has the right to properly prepare for and defend his criminal law matters bearing case number 2014/00190130 which are currently before the District Court in Sydney. 2. An order that the Plaintiff be allowed to have a laptop computer while in custody in order to use in the preparation and defence of his criminal law matters bearing case number 2014/00190130 which are currently before the District Court in Sydney, with such laptop computer being provided at the Plaintiff's cost. 3. An order that the Plaintiff be allowed to stay at the Long Bay Correctional Centre whilst his criminal law matters bearing case number 2014/00190130 are before the District Court in Sydney. 4. An order that the Plaintiff continue to be granted access to a computer in his cell for the him to prepare and defend his criminal law matters bearing case number 2014/00190130 which are currently before the District Court in Sydney. 5. An order that the Plaintiff not to be Hindered, Prevented, Interfered with or Obstructed in carrying out the preparation and defence of his criminal law matters bearing case number 2014/00190130 which are currently before the District Court in Sydney. 6. An order that the Plaintiff be allowed to have a printer while in custody in order to use in the preparation and defence of his criminal law matters bearing case number 2014/00190130 which are currently before the District Court in Sydney, with such printer being provided at the Plaintiff's cost. 7. Such further or other order as the Court thinks fit. 8. Costs Interlocutory orders 1. Until further order, an order that the Plaintiff be allowed to have a laptop computer while in custody in order to use in the preparation and defence of his criminal law matters bearing case number 2014/00190130 which are currently before the District Court in Sydney, with such laptop computer being provided at the Plaintiff's cost. 2. Until further order, an order that the Plaintiff be allowed to stay at the Long Bay Correctional Centre whilst his criminal law matters bearing case number 2014/00190130 are before the District Court in Sydney. 3. Until further order, an order that the Plaintiff continue to be granted access to a computer in his cell for the him to prepare and defend his criminal law matters bearing case number 2014/00190130 which are currently before the District Court in Sydney. 4. Until further order, an order that the Plaintiff not to be Hindered, Prevented, Interfered with or Obstructed in carrying out the preparation and defence of his criminal law matters bearing case number 2014/00190130 which are currently before the District Court in Sydney. 5. Until further order, an order that the Plaintiff be allowed to have a printer while in custody in order to use in the preparation and defence of his criminal law matters bearing case number 2014/00190130 which are currently before the District Court in Sydney, with such printer being provided at the Plaintiff's cost. 6. Such further or other order as the Court thinks fit."
At the hearing it emerged that it has been determined that Mr Liristis will remain at Long Bay during the course of the hearing, with the result that orders as to that matter were not pressed. What was pressed went to Mr Liristis' access to his printer and laptop.
He seeks to use the printer in his cell to scan documents, which are now held in some 36 tubs, in order that he can bring them to court in electronic form in his laptop, so that he can use them during the trial. He also wishes to use the laptop to access materials he has been served with, using software he has purchased in order to do so. He has not been provided in custody with equipment and software which enables him to gain such access.
Neither the "red" computer which Mr Liristis presently has in his cell, or the "blue" computer which it was finally undertaken he will be given access to at Long Bay by Tuesday next, were after the trial has commenced, will have the capacity to do all that the laptop does. In particular, it will not permit him to access the copies of 9 hard drives he has been provided as the result of the District Court's orders.
The grant of the relief which Mr Liristis pressed was still opposed. Whether the Court can and should make those orders is in issue.

The Court's jurisdiction

I am satisfied that the Court can make orders requiring Mr Liristis to be given access in custody to his laptop and printer.
There was no issue first, that persons such as Mr Liristis, who is in custody bail refused on charges laid some four years ago, retain the common law right to unimpeded access to the courts, that not having been removed by any legislative enactment. Secondly, that Mr Liristis also has a right to a fair trial on the criminal charges which he faces, which should not be impeded.
Whether Mr Liristis is entitled to have access to the printer and laptop which he seeks, is however, in issue, as is whether he would not receive a fair trial, if denied access to those facilities.
On the Commissioner's case, if Mr Liristis could not receive a fair trial without such access, the appropriate remedy would be an adjournment or stay of the proceedings: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 and Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46. That however, would be a matter for the trial judge to determine.
It was accepted however, that in Clark v Commissioner for Corrective Services [2016] NSWCA 186, the view taken by the Court of Appeal was that administrative or managerial decisions that frustrate an inmate's right to access courts might be amenable to review under s 69 of the Supreme Court Act 1970 (NSW).
There it was observed at [88]-[89] that there was no specific complaint as to any particular difficulty which Mr Clark would suffer in relation to specific proceedings, if not given the relief he had sought. Mr Liristis contends that he has provided ample evidence of the difficulties which the refusal of his access to his laptop and printer is causing him, for the conduct of his defence.
How the Court might deal with a situation where a person who is in custody is not provided with reasonable facilities to prepare their case, was discussed by RS Hulme J in Miles v R [2012] NSWCCA 88 at [3]-[7].
Mr Liristis relied on what was observed by Basten JA in Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [53]: "53 Thus, where a prisoner has a legal right enforceable by a court under the general law, conduct calculated to obstruct or interfere with his or her access to the courts will constitute a contempt, for which, in turn, there will be a right of access to the courts for relief in respect of the contempt. Such a right may be removed or conditioned by statute, but the intention in that respect must be clear. While the imposition of a leave requirement, which vests control of access to the courts within the courts themselves, will involve a lesser intrusion on civil rights than other forms of restraint, the presumption in favour of non-interference will mean that the leave requirement will not be given an expansive construction."
The Commissioner relied on R v Rich (Ruling No 2) [2008] VSC 141 (2 May 2008), where access to a laptop computer was refused, even though Lasry J took the view that in Mr Rich's circumstances, use of computer facilities for preparation and the giving of instructions in the trial was necessary: at [68]. That conclusion was reached because arrangements were made so that either the central processing unit of the computer to which Mr Rich had access in custody, or the computer itself, was to be transported to court each day: at [71]-[73].
It emerged after an adjournment, on the second day of the hearing, that the defendants had no objection to Mr Liristis having access to his laptop to use in court during the hearing. He explained that he intended to show some documents to the jury electronically, so that they could follow certain cross-examination, for example. It was his desire to have access to the laptop prior to the hearing and during the course of the trial outside of court, which were in issue, as was the access he sought to his printer.
In Knight v Wise [2014] VSC 76 Forrest J concluded that Mr Knight not having access to a laptop did not impede his access to the courts, given the access which he had to legal materials, four days a week, in the prison library.
In Brazel v Westin [2013] VSC 527 Kaye J observed at [22] that the question for the Court on an application such as this is "whether the action, or inaction, of the defendants and the prison authority, would preclude the plaintiff from having effective access to the court". Some 9 months before trial his Honour concluded that the computer facilities which had been made available to Mr Brazel had been adequate, but that if events were to occur before trial, which obstructed that access, the issue may need to be revisited, as to which he observed: "31 In particular, it is important that the prison authorities ensure that the plaintiff does have adequate access to a computer, particularly in the week or so leading to his trial, and during his trial. It is equally important that the defendants to the litigation take into account the fact that the plaintiff is unrepresented, and that he is preparing his case in the difficult environment of a prison. The defendants must allow for the fact that there may be some delay between the delivery by them of documents to the prison, and the receipt of these documents by the plaintiff. It is the obligation of the defendants to ensure that the documents are received by the plaintiff, and thus served on him, within an appropriate time frame. In doing so, the defendants should be astute to serve material on the plaintiff in sufficient time to enable him to consider it, and to respond to it, bearing in mind the limited access which he has to computer facilities in the prison complex."

Mr Liristis has met the onus which falls upon him

At the hearing Mr Liristis relied on affidavits which he swore on 26 December 2017, 25 January and 26 January 2018, as well as other documents. He was also cross-examined.
It emerged that in the criminal trial Mr Liristis will have the assistance of a solicitor and Mr Norrie of counsel, in the cross-examination of the complainants, in respect of which he has been granted legal aid following advice from Tupman DCJ, that he would not be permitted himself to cross-examine them. Otherwise he will represent himself, he says, in the conduct of the case, which will include the cross-examination of some 30 Crown witnesses. His case is that in order to have a fair trial, he needs access to a printer/scanner and the laptop.
On Mr Liristis' evidence, since May 2017 he was repeatedly moved between the Metropolitan Remand & Reception Centre and four other correctional centres, which had adversely affected his ability to prepare for trial, given his difficulties in accessing a computer. So had the refusal of his request for access to his laptop and printer, which he had purchased with his own funds, given his need to access the materials which the District Court had ordered he be provided. In November 2015 he was advised by the Commissioner that inmates are not permitted access to laptops, unless there are exceptional circumstances and that he would not be issued with a laptop. Despite further representations about his circumstances and why they were exceptional and special, his requests were refused.
The position now is that while Mr Liristis will remain at Long Bay during the trial, where he has access to a "red" computer in his cell on a 24/7 basis, as well as documents required for his case being printed at no cost to him, there is no issue that he cannot access all of the materials which have been served on him, as the result of Court orders, using that equipment.
The Commissioner finally relied only on the affidavit sworn by Mr Sharp, the Manager Video Conferencing, Corrections Strategy and Policy at Corrective Services NSW, who was also cross-examined. On Mr Sharp's evidence those computers can only access 60 gigabytes of data and the new "blue" computers to which Mr Liristis has not yet had access, one terabyte.
That those computers could access the hard drives, is not clear, given Mr Sharp's evidence as to the limitations of his knowledge of the computers' capacities; that he did not have a background in computing; and that he was not aware of advice from the State Evidence Electronics Branch, of the need to gain access to the BIOS of a Dell XPS 13 computer, in order to access the drives
Further, Mr Liristis now has some 36 storage tubs containing his confidential documents, brief of evidence and other materials to which he may require access during the trial. The transport and management of that physical material poses obvious difficulties.
Mr Liristis described his daily schedule, when transported from the Long Bay to the District Court. That involves him being taken from his cell as early as 4 am and only being returned to his cell as late as between 10 pm and midnight. During the trial that would mean that he would only then have an opportunity to attend to matters that have arisen in court during the day. In order to do so, he considers that he needs access to the laptop.
Mr Sharp has been responsible for the conduct of a legal laptop pilot program which has been running since early 2016. Mr Liristis has not applied for such a laptop, which has neither the capacity, nor software which he requires.
Mr Sharp is also responsible for reviewing requests for access to laptops and it was he who determined that Mr Liristis could not be given access, in his cell, to his own laptop, due to security concerns which he explained. Mr Sharp was cross-examined as to the veracity of aspects of his evidence, for example as to his recollection of conversations in September 2017 with Mr Cahill, the Manager of Security at Long Bay, as to Mr Liristis' written request to use the laptop, as well as with the solicitor Mr Hill. He could not remember these events, but there is no question that Mr Liristis has repeatedly been refused access to his laptop, other than in the presence of a solicitor.
That this restriction has impeded Mr Liristis' ability to access the materials which the District Court ordered that he should have, must be accepted, given the limited times and circumstances under which he has been able to access his laptop. It is as the result, Mr Liristis understands, of steps taken by the State Evidence Electronics Branch while decrypting the drives seized some years ago, to delete "Bitlocker Folders", that the drives are not accessible, except by use of the laptop and software he has purchased. Other materials require use of other software, which is also not loaded onto the "red" computer he has access to.
Mr Liristis' evidence is supported in various respects by other evidence, including records of the District Court proceedings, advice from the State Evidence Electronic branch about what is needed to access the drives and Mr Sharp's evidence.
Until the limited undertaking offered on the second day of the hearing to give him access to a "blue" computer loaded with some software, no steps were taken to give Mr Liristis access in custody to computers equipped with the software which would have given him the access he required, to the various material the subject of the District Court's orders, despite use of his own equipment in his cell having been refused and access to it otherwise being limited by the requirement as to the presence of solicitors.
That what was finally proposed in relation to the "blue" computer will even then give Mr Liristis access to all of the materials available by use of the laptop, including what is on the drives and the 4792 audio and video recordings he has received, is not apparent.
While Mr Liristis did not call evidence from the experts with whose assistance he has used his own laptop and software to access some of the nine drives he needs to access, the veracity of his evidence as to the time and problems which have been involved in accessing the materials with which he has been served, which totals some nine terabytes of materials, was not challenged. That has involved many hours of work, including further work by Mr Liristis, undertaken after materials were able to be extracted from some of the drives and placed onto a USB, which he could then access on his "red" computer.
In cross-examination Mr Liristis explained that he had provided the experts with all passwords which he had, but that gaining access to the drives now involved the use of algorithms. He explained why he could not simply provide them to the experts. He also explained that he had received limited legal aid funding for the assistance of those experts and solicitors and the many hours of work involved in himself in accessing the material he has been provided with, using the laptop and software he has purchased for that purpose.
On Mr Liristis' evidence, because he has only a limited grant of legal aid, he cannot afford to continue with this method of obtaining access to the material and thus pursues the opportunity to use his laptop, both while in his cell and in court, to access that and other material with which he has been served as part of the prosecution brief and as the result of other court orders. While his legal aid applications were not in evidence, he was not cross-examined as to his financial means.
Mr Liristis' case is that the drives contain various exculpatory materials which he needs to use in his defence and that he also needs to be able to access the thousands of pages of documents and audio and other files, with which he has been served, in court during the course of the hearing, to properly conduct his case.

The printer

On Mr Sharp's evidence the modified laptops presently being used as e-readers, which are loaded with documents, do not have the capacity to hold all of the materials served on Mr Liristis. It is apparent that having electronic access to such materials, of itself does not pose security risks. It is their lack of capacity, which explains why Mr Liristis has not sought access to such a laptop, but instead has sought access to his own printer/scanner and laptop, so that he can have electronic access to what he has been provided with before and during the trial.
What is involved in the transport and management of the voluminous physical documents and other materials which Mr Liristis may need to access during the trial, poses obvious problems for a person who is held in custody as he is, given what is involved in getting to and from court each day. This could all clearly be better managed if Mr Liristis were able to take most of those documents with him electronically, as he seeks to do.
It would also be consistent with the requirements of the proper administration of justice, for Mr Liristis to have efficient access to that material.
I am thus satisfied on the evidence I have discussed, that access in his cell to Mr Liristis' printer, which has a scanner capacity, so that all of the materials he may need to access during the trial need not be physically taken to and from court, must be ordered, if Mr Liristis is to be given a reasonable opportunity to prepare and present his case.
Accordingly, I will order that he be given access to the printer in his cell.

The laptop

I am also satisfied that an order requiring that Mr Liristis be given access to his laptop in his cell, must be ordered.
Mr Liristis has been denied access to his laptop in circumstances where other persons in custody have in the past been given access to their laptop computers, as part of the ongoing trial of which Mr Sharp has oversight. That is being phased out because of the security concerns which he described, which go to the possibility of inmates accessing the internet or charging mobile phones.
Mr Sharp described the types of computers to which Mr Liristis has access and the results of the laptop pilot program, which raised concerns about inmates accessing the internet, given that mobile phones are sometimes found in correctional centres; small modems the size of a thumbnail are now available on the market, which would be difficult to detect if brought into a centre; and the upgrades which could result in inmates having uncontrolled internet access while in custody, if such modems are used.
The result was that laptops presently in use in custody in the ongoing trial have been modified, so that they are only able to be used as secure brief readers, with all files having to be preloaded onto the laptop by Corrective Service staff.
On Mr Sharp's evidence in cross-examination, however, if it becomes apparent that identified software is required in a particular case, it can be obtained. To date that has not occurred in Mr Liristis' case, despite his repeated representations and the District Court's orders.
Mr Sharp had not investigated whether Mr Liristis' "red" computer, or the "blue" computers to which some inmates now have access in custody, had the capacity to be loaded with the software which would enable Mr Liristis to gain access to all of the materials he requires to conduct his case. Undertakings as to the provision of some, but not all, of the software Mr Liristis requires was later given. But it seems from Mr Sharp's evidence that the laptops which are presently in use in the ongoing trial, do not have that capacity, and are only operating as readers.
Mr Liristis disputed whether his laptop would pose risks of the kind Mr Sharp identified, or indeed greater risks than the computers and laptops currently in use at Long Bay pose. It is not possible to resolve this issue on the limited evidence led at the hearing.
I do accept that use of computers raise security concerns which must be managed by the Commissioner. I am not satisfied on the evidence, however, that such security concerns cannot be adequately managed by the Commissioner in Mr Liristis' peculiar circumstances, in the short period prior to the commencement of the trial and during the hearing due to commence next week in the District Court, during which the parties will be under that Court's supervision.
The evidence establishes that Mr Liristis cannot use the "red" computer to which he presently has access in his cell, to pursue access to the outstanding encrypted and other materials he needs, to further prepare his case. Even if the "blue" computer which the Commissioner has undertaken to provide next Tuesday with the software identified is provided, that will not even then enable Mr Liristis to access all of his material.
While access to his laptop in the presence of his solicitor in the meantime would give him some access to the hard drives, in the time left before the commencement of the trial, I consider that in the circumstances I have discussed, if Mr Liristis is to have a reasonable opportunity to present his case, he must have access in his cell to the laptop which contains all of the software he requires, so that he can access all of the materials the District Court has ordered that he be given access to.
I am satisfied on all of the evidence I have discussed, that in Mr Liristis' case the computer facilities which he has been provided in custody, are inadequate for his needs and do not reasonably permit him to prepare his case, given the defence he seeks to advance at trial, by reference to the materials with which he has been served.
The form in which much of that material has been served and the absence of ongoing access in custody to a computer and software which permits him to access that material, makes that conclusion unavoidable. Were he not in custody Mr Liristis would not face these difficulties, because of the use which he could make of his laptop and software. Undoubtedly being in custody adversely impacts his rights to access his possessions and raises concerns which the Commissioner must address, in order to ensure security. Nevertheless, Mr Liristis must still have a reasonable opportunity to access the courts and advance his case. I am satisfied that without the orders I propose to make, he will be deprived of that opportunity.
Like in Rich, in this case it is necessary for Mr Liristis to have access to a computer which enables him to access electronically the documents which have been served on him and those which he intends to rely on as exculpatory evidence. That means he must have access to his laptop both in custody and at court during the trial.

Orders and undertakings

As RS Hulme J discussed in Miles, the Commissioner must provide reasonable facilities for someone in Mr Liristis' position, so that he can prepare and conduct his defence in the District Court, at the trial due to commence next week. On the evidence, I am satisfied that without the orders I propose to make, Mr Liristis will not have access to such facilities.
Accordingly before the hearing concluded, I indicated to the parties that I proposed to order that Mr Liristis forthwith be given access to his printer/scanner and laptop in custody and that he be permitted to use that equipment in the preparation and conduct of his case, both in custody prior to the commencement of the hearing and in the District Court, during the course of the trial.
On that announcement the defendants sought and Mr Liristis gave undertakings to the Court in the following terms: 1. Mr Liristis will not seek any access to a mobile phone or the Internet using the computer. 2. Mr Liristis will allow Mr Cahill or Mr Abboud to inspect his laptop upon its arrival at the Centre. 3. There are no materials amounting to prohibited goods within the meaning of the Crimes (Administration of Sentences) Regulation 2014 (NSW) on the laptop except material relevant to the proceedings currently before the District Court.
I also heard the parties as to the orders which should be made, to deal with the possibility of Mr Liristis breaching his undertakings. Having heard the parties I concluded that in order to balance the concerns which the parties each raised, that I should also order that: "In the event that the Commissioner forms the view that the undertakings given to the Court by Mr Liristis have been breached, so as to give rise to an immediate security risk, the order will be suspended upon the Commissioner exercising the liberty hereby granted to have the matter restored to the list within 24 hours. In the event of any other breach of other undertakings, the Commissioner may have the matter restored to the list in order to have an application to have the orders suspended heard."

Orders

Accordingly, for these reasons I then ordered that: 1. Mr Liristis forthwith be given access to his printer/scanner and laptop in custody and that he be permitted to use that equipment in the preparation and conduct of his case, both in custody prior to the commencement of the hearing and in the District Court, during the course of the trial. 2. In the event that the Commissioner forms the view that the undertakings given to the Court by Mr Liristis have been breached, so as to give rise to an immediate security risk, the order will be suspended upon the Commissioner exercising the liberty hereby granted to have the matter restored to the list within 24 hours. In the event of any other breach of the undertakings, the Commissioner may have the matter restored to the list in order to have an application to have the orders suspended heard. 3. The matter is adjourned to 16 April 2018 at 9:30am in the Registrar's list.

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: 01 February 2018

At a glance

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Judgment (9 paragraphs)

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