Plaintiff v BELL J

Nafsika Sahinidis, Solicitor for Corrections Victoria

1 Julian Knight is a prisoner at Port Phillip Prison. In 1987, when aged 19, he murdered seven people and attempted to murder many others. Mr Knight pleaded guilty to committing those crimes. A judge of this Court sentenced him to life imprisonment. In view of his youth and prospects of rehabilitation, the judge set a minimum term - 27 years. Now aged 39, Mr Knight has served 20 years of that sentence. In 2014 he will turn 46 and become eligible for parole.

2 From his prison cell Mr Knight has issued many legal proceedings, some of them meritorious, but many of them not. Eventually, in 2004, he was declared a vexatious litigant, so he requires leave from this Court before commencing another proceeding.

3 Mr Knight has been quiet for a couple of years. But he now wants to issue judicial review proceedings against the prison authorities, and he seeks leave to do so. The orders he seeks would compel the formulation of a sentence plan, and give him access to education. He also seeks orders that would prevent the authorities from stopping letters he wants to send to victims of his crimes. They have seized one such letter which he contends is one of apology and explanation.

4 There has been a significant recent development. For some years, Mr Knight was in custody at Grevillea Unit, a maximum security protection unit at Barwon Prison. Just before I commenced hearing this application for leave, he was transferred to Borrowdale Unit, a mainstream maximum security unit at Port Phillip Prison. At the former location he had limited, and at the latter location he has greater, access to education and rehabilitation programs. In about August 2007, the authorities will use an annual review of his case to determine what programs he should be offered.

5 This development led Mr Knight to narrow his proposed case. But despite the positive change of location and upcoming annual review, he still wants to sue the authorities over the issue of his sentence plan and education. The development does not affect the orders he wants to seek about his letters to victims.

6 On 19 October 2004 Smith J made an order under s 21(3) of the Supreme Court Act 1986 that Mr Knight must not, without the leave of the Court, commence a legal proceeding within 10 years.[1] Section 21(4) provides that leave must not be given unless the Court is satisfied the proposed proceeding would not be an abuse of process.

7 The interpretation and application of s 21(4) were dealt with by the Court of Appeal in its recent decision in Phillip Morris Ltd v Attorney-General for the State of Victoria.[2] That case decided s 21(4) operated to confer a discretion to grant leave which is enlivened after the Court becomes satisfied the proceeding would not be an abuse of process.[3] The onus is on the applicant to so satisfy the Court.[4] In considering whether a proceeding would be an abuse of process, it is sometimes relevant to consider its prospects of success, but in a strictly limited respect. The issue is whether the proceeding is foredoomed to fail, not whether it has reasonable grounds.[5] Contrary to the submissions of the Commissioner for Corrections, if the Court decides a proceeding would not be an abuse of process because it would not be foredoomed to fail, it cannot treat an absence of reasonable grounds as a discretionary reason to refuse leave. Abuse of process, not absence of reasonable grounds, is the foundation of the statutory discretion, and the latter cannot be brought in through the back door. To admit it at the discretionary stage would be inconsistent with the terms of the power conferred by s 21(4) and contrary to the decision in Phillip Morris as I read it.[6]

8 Mr Knight specified the Commissioner as the defendant in his proposed proceeding. The Commissioner would not appear to be proper defendant, but he took no objection on that score, accepting that the matter could easily be corrected if leave were to be granted. The latest formulation of Mr Knight's proposed application is the one in the statement of claim dated 26 July 2007.

9 Ground 4(iii) of the proposed application seeks an order in the nature of mandamus compelling the prison authorities to formulate a sentence plan for Mr Knight and to provide him with a copy of that plan.

10 A sentence plan is a management tool used by the authorities to ensure a prisoner is managed in a consistent and coordinated way throughout his or her sentence. It is not referred to or mandated by the Corrections Act 1986 or the Corrections Regulations 1998.

11 Ground 5 of the proposed application seeks a mandatory injunction requiring the authorities:

• to arrange for Mr Knight to undertake a Tier 2 assessment (another internal management tool involving assessments by clinicians, such as psychologists or social workers) to identify areas of need and to identify programs to address those needs

• to arrange for Mr Knight to be able to participate in programs designed to address his offending behaviour

• to permit Mr Knight to have access to a prison location where he may pursue full-time education

12 For two related reasons, I am not satisfied the proposed proceeding would not be an abuse of process as regards these claims.

14 As regards the claim specified in ground 4(iii), mandamus is a remedy for compelling the performance of a statutory duty.[7] It is therefore necessary to identify a duty of the kind sought to be performed. It is quite clear that neither the Corrections Act nor the Corrections Regulations imposes a duty on any prison authority to formulate a sentence plan for Mr Knight. A sentence plan is a practical tool of management, not a legal necessity. It is equally clear that a positive duty to prepare such a plan cannot be read into any of the general provisions of the Corrections Act, such as those in ss 20(2) and 21(1) by which officers in charge of prisoners and the Governor of a prison must take all reasonable steps, and be responsible for, the safe custody and welfare of prisoners.

15 As regards the claim specified in ground 5, a mandatory injunction might be issued in certain limited circumstances to enforce or protect a person's legal rights. Again, it is quite clear that neither the Corrections Act nor the Corrections Regulations gives Mr Knight a legal right to the things he specifically claims in that ground. The closest he comes to establishing such right is s 47(1)(o) of the Corrections Act, which provides that prisoners have the right to "take part in educational programs in the prison." But that is a general right to take part in educational programs which, plainly, is not a right to be assessed for and take part in specific programs of the kind Mr Knight has identified. It is equally plain that a right of that kind cannot be implied.

16 Second, having regard to the recent development, I think I should not allow the proposed application to be commenced. The prison authorities and Mr Knight acknowledge that, in his new mainstream location, he will have increased access to education and rehabilitation programs. In about August 2007, Mr Knight's imprisonment will be subjected to an annual review. That review is the appropriate forum within which the matters related to his sentence plan and access to education should be considered. As the authorities have transferred Mr Knight to a mainstream prison location, and will shortly consider his need and suitability for education and rehabilitation programs, I think it would be a waste of the Court's scarce time and resources to allow the proposed application to proceed, and it would also be oppressive and vexatious to compel the authorities to participate in legally and factually complex judicial review proceedings, in relation to these matters.

17 By this judgment I do not intend to shut out Mr Knight in respect of a future application for leave in a different factual setting or on differently formulated grounds. In a different case it may not be foredoomed to fail to argue that the provisions of the Corrections Act or the Corrections Regulations give rise to legal rights or duties, enforceable by judicial review or mandatory injunction, in relation to the education and rehabilitation of prisoners. Such a case would involve an examination of the nature and scope of the alleged rights and duties and the manner of their alleged legal enforceability.

18 I have considered whether I should allow Mr Knight to refashion his proposed application on these grounds and then reapply for leave. The degree of the refashioning required would be so great, and the factual setting has been so altered by the recent development, that this would not be appropriate.

19 I therefore refuse to grant leave to Mr Knight to commence the proposed proceeding on grounds 4(iii) and 5.

20 In 2005, while at Barwon Prison, Mr Knight arranged for a letter to be sent to one of his victims. He said he did so after much thought and reflection and that it was a letter of apology and explanation.

21 The letter was not sent openly through the authorised prison channels for correspondence. Mr Knight enclosed the letter in a letter to a member of the Prison Fellowship and asked for it to be sent to the victim's address.

22 The letter was intercepted by the prison authorities. It was opened and not sent to the member of the Prison Fellowship or the victim. It remains in their custody.

23 The victim has not been told about Mr Knight's letter. I have made orders prohibiting publication of the letter or of anything that would identify the victim.

24 Ground 6 of Mr Knight's proposed application seeks a mandatory injunction requiring the Commissioner to release the letter to the member of the Prison Fellowship and the victim and to allow Mr Knight to send the letters to their intended recipients. The ground is not well formulated but it could easily be refashioned into a more appropriate form. The question raised by the ground is whether the power in the Corrections Act to prevent a prisoner from sending a letter extends to the letter to the victim.

25 Expressing ideas in spoken or written words is a liberty we all possess, subject to law. Prisoners stand in no different category in this regard, but the Corrections Act understandably gives the Governor of a prison special powers to inspect, stop and censor letters from prisoners. The censorship powers are not at issue in this case.

26 This is s 47D(1) and (2) of the Corrections Act:

(1) This section applies if the Governor reasonably believes that any letter to be sent by a prisoner to, or sent to a prisoner by, any person ...-

(b) may be of a threatening or harassing nature; or

(c) may be being used to further an unlawful activity or purpose; or

(d) contains indecent, abusive, threatening or offensive written or pictorial matter, or an indecent, obscene or offensive article or substance; or

(e) contravenes or would contravene s 47H.

(a) if the belief concerns the whole letter, stop the letter from being sent or received by the prisoner; or

(b) if the belief concerns only part of a letter, cause the relevant part of the letter to be censored.

27 You can see the power to stop a prisoner's letter depends on the Governor having a reasonable belief that it comes within one or more of the categories specified in s 47D(1)(a) - (e).[8] Otherwise the Governor has no power to stop a letter from being sent.

28 Mr Knight contends the letter to the victim was not a threat to security, threatening, harassing, offensive or anything of that kind but one of apology and explanation. Therefore the prison authorities had no power to stop it. The Commissioner contends the letter was plainly one which the prison authorities could reasonably believe came within one or more on the categories in s 47D(1)(a) - (e). Therefore Mr Knight's application on this ground is foredoomed to fail.

29 I have read the letter to the victim, which is a confidential exhibit in this case. In my view, Mr Knight's contention that the prison authorities had no power to stop the letter under s 47D(1)(a) - (e) is not foredoomed to fail. Whether it can properly be characterised as a letter of apology and explanation, whether is contains material that goes beyond those subjects and the precise legal implications of the entire contents of the letter are all matters for consideration at the substantive hearing of the proceeding. The proposed proceedings would not, on the basis that it is foredoomed to fail or on any other basis, be an abuse of process.

30 There are no discretionary reasons sufficient to justify refusing Mr Knight leave to commence the proceeding on ground 6. Communication between prisoners and victims is a matter of extreme sensitivity. This can be considered at the substantive hearing, which will involve that and other important issues. The fact that the substantive hearing may attract publicity, which some of Mr Knight's victims may see, is not a reason to refuse leave.

31 I will therefore grant leave to Mr Knight to commence the application for judicial review in relation to the stopping of the letter to the victim, subject to these conditions:

• ground 6 should be refashioned in terms of a declaration and/or a negative injunction

• the application should be brought against the appropriate defendant, who would appear to be the Governor of the relevant prison

• Mr Knight should be legally represented from now on

32 Julian Knight seeks leave to commence an application for judicial review against the Commissioner for Corrections. Mr Knight is serving a sentence of life imprisonment for murdering seven people and attempting to murder many others. He committed those crimes in 1987 when he was aged 19 years. He becomes eligible for parole in 2014. Mr Knight was declared a vexatious litigant in 2004, which is why he must obtain leave before commencing the proposed proceeding.

33 The grounds of the proposed proceeding fall into two categories.

34 The first relates to his sentence plan and his access to education and rehabilitation programs (grounds 4(iii) and 5). He seeks orders that such a plan be prepared and that such programs be offered to him.

35 The second relates to a letter, which he says is one of apology and explanation, that he has written to one of his victims (ground 6). He seeks orders preventing the prison authorities from stopping the letter going to the victim.

36 Very recently, Mr Knight was transferred from Grevillea Unit, a maximum security protection unit at Barwon Prison, to Borrowdale Unit, a mainstream maximum security unit at Port Phillip Prison. He will have improved access to education and rehabilitation programs at his new prison location. He will also be subject to an annual review in about August 2007.

37 Section 21(4) of the Supreme Court Act confers discretion on the Court to grant leave to commence a proceeding if it is satisfied the proceeding would not be an abuse of process. In exercising this power, I think it is permissible to consider whether the proposed proceeding would be foredoomed to fail, but not whether it has reasonable prospects of success.

38 As regards the claims in the first category, I have decided to refuse leave. The claims are foredoomed to fail and therefore would be an abuse of process. Moreover, at Mr Knight's new prison location, and under his upcoming annual review, his claims for a sentence plan and access to education and rehabilitation programs can be fully considered. It would be a waste of the Court's scarce time and resources, and oppressive and vexatious of the Commissioner, to allow the commencement of the proceeding in these circumstances.

39 As regards the claims in the second category, I have decided to grant leave, subject to conditions. In my view, Mr Knight's contention that the power of the prison authorities under the Corrections Act did not permit them to stop the letter going to the victim is not foredoomed to fail. The proposed proceeding would not, on this or any other basis, be an abuse of process. There are no sufficient discretionary reasons to refuse leave.

40 In conclusion, Mr Knight's application for leave to commence an application for judicial review against the Commissioner on ground 6 of the statement of claim dated 26 July 2007 is granted, subject to these conditions:

• ground 6 should be refashioned in terms of a declaration and/or a negative injunction

• the application should be brought against the appropriate defendant, who would appear to be the Governor of the relevant prison

• Mr Knight should be legally represented from now on

I certify that this and the 8 preceding pages are a true copy of the reasons for judgment of Bell J of the Supreme Court of Victoria delivered on 1 August 2007 and revised on 2 August 2007 and 4 February 2008.

[1] Attorney-General v Knight [2004] VSC 407.

[2] [2006] VSCA 21; (2006) 14 VR 538.

[3] Ibid 541 per Maxwell P, Ormiston and Eames JJA concurring.

[5] Ibid 556 per Maxwell P, Ormiston and Eames JJA concurring.

[7] R v Bowen; Ex parte Federated Clerks Union [1984] HCA 30; (1984) 154 CLR 207, 209-210.

[8] See also r 44(1)(g) of the Correction Regulations.