Plaintiff v Defendant

3 On 29 October 2007 a number of matters were raised by Mr Rich before Bell J concerning his forthcoming trial. Included in that list was an application for a mandatory interim injunction which primarily related to Mr Rich's ability to use the telephone at the MRC. There were other matters raised before his Honour relating to issues of bail and pre-trial management with which I am not concerned.

4 Mr Rich's application for the mandatory interim injunction was made ex parte and was refused by his Honour. However, his Honour directed that the Prothonotary issue Mr Rich's originating motion and summons that day (being 29 October 2007) to be returnable before the judge in the Practice Court on Wednesday, 7 November 2007. At the time, Cummins J was the judge in the Practice Court but the matter was referred to me.

5 I first heard submissions on 7 November 2007. On that date, Mr Rich made an application for judgment in default of appearance which I dismissed, on the basis that the appearance was filed within the required time. The matter then proceeded to some extent. The obstacle was that Mr Mitchell, who appeared for the defendant, made submissions which Mr Rich clearly needed some time to consider. On the following day, the Court endeavoured to make arrangements to provide Mr Rich with a transcript of the proceedings. Whilst I am satisfied that all that could have been done was done to ensure that Mr Rich had access to that transcript, when the matter was again before the Court on 15 November 2007, Mr Rich had not read, and was not in possession of, the transcript. Inevitably there is a dispute as to why that occurred, which I do not attempt to resolve. The matter was further adjourned until 19 November 2007. On that date, Mr Rich continued to complain that he needed access to a "pool of resources" before he could adequately deal with the issues raised in the submissions of Mr Mitchell. However, despite the asserted disadvantage, he made those submissions and I now propose to deal with the matter.

6 In Mr Rich's originating motion issued by this Court, he seeks judicial review of what is described as the arbitrary removal or cancellation of his telephone privileges on 23 October 2007. As appears below, I am not satisfied that this is what occurred, and therefore the factual basis for the proceedings commenced by Mr Rich is not established. Mr Rich seeks orders in the nature of certiorari, mandamus and declarations.

7 The factual basis for Mr Rich's application is contained in an affidavit sworn by him which provides a brief account of events. Most of his affidavit is occupied with submissions. He deposes that since September 2006 he has had a series of telephone numbers approved which he can call in accordance with prison procedures. He refers in the affidavit to the fact that amendments to the list take some time for approval. He asserts that on 23 October 2007 he was told that he had lost his telephone access. In particular, he says that the previously approved and authenticated number for Ms Sandra Blackney had been removed, and he deposes as to the significance of that contact.

8 Nicholas Paul Seliksy, who is the Operations Manager responsible for security at the MRC, provided an affidavit to the Court on the defendant's behalf. His affidavit describes the incident which resulted in the alleged loss of telephone access on 23 October 2007. Mr Seliksy deposes that on that day he received a memorandum from Senior Prison Officer Scott Gell. The memorandum (provided to the Court as Exhibit 3 to Mr Seliksy's affidavit) reports that on 16 October 2007 Mr Rich dialled the number listed under the name of Ms Blackney, which was diverted to the Court Registry (a number which Mr Rich had not been authorised to call). Mr Rich then had a conversation with a Court Registrar about legal matters regarding another prisoner. The memorandum alleges that Mr Rich had previously given Ms Blackney instructions to divert the call to the Registry. The memorandum also states that as a result of the call diversion, the phone number listed under the name of Ms Blackney was placed on the prohibited numbers list of Mr Rich's telephone account.

9 Mr Rich submits that the action of placing the number on the prohibited numbers list can only be done in accordance with "the prescriptive formula" in s 50 of the Corrections Act 1986 (Vic) ("the Act").

10 Section 50 of the Act provides:

(1) If an officer within the meaning of Part 5 or an escort officer suspects that a prisoner has committed a prison offence the officer must as soon as possible report the fact to the disciplinary officer.

(2) The disciplinary officer must make proper investigation of all alleged prison offences which come to the officer's notice and must give the prisoner alleged to have committed the offence an opportunity of making an explanation.

(3) If after investigating an alleged prison offence the disciplinary officer is satisfied that no offence has been committed the disciplinary officer is to take no further action.

(4) If after investigating an alleged prison offence the disciplinary officer is satisfied that the offence has been committed but is trivial, the disciplinary officer need take no further action.

(5) Subject to subsection (4) if after investigating an alleged prison offence the disciplinary officer is satisfied that the prisoner has committed the offence the disciplinary officer must record the offence in the register of offences and may, in addition, do one of the following -

(b) withdraw one of the prisoner's privileges for less than 14 days; or

(5A) In addition to any action the disciplinary officer may take under subsection (5)(a), (b) or (d), the disciplinary officer may also take steps to have the matter dealt with under the criminal law.

(6) A charge for a prison offence must be in writing, and the disciplinary officer must as soon as possible give a copy of the charge to the Governor and the prisoner.

(9) A decision or purported decision of a disciplinary officer under this section cannot be appealed against, reviewed, challenged or called into question in any court.

11 Mr Rich submits that this section applies and that procedures provided for by the section were not followed - i.e. there was no proper report or investigation. Further, he was not given the opportunity to make an explanation. He complains that there was no designated disciplinary officer appointed. He particularly emphasises that it is only necessary to read the material filed on behalf of the defendant to understand that the "prescriptive structure with respect to ... the reportable incident ... was not followed".[1]

12 In addition, Mr Rich contended that access to the use of telephones represents a "prisoner's privilege", and as such, it can only be withdrawn pursuant to s 54A of the Act. That section provides as follows:

(a) an investigation into whether a prisoner committed a prison offence is being carried out; or

(b) a prisoner has been charged under section 50(5)(d) with a prison offence; or

(c) steps have been taken to have an alleged prison offence dealt with under the criminal law -

the Secretary may withdraw one or more of the prisoner's privileges for such period as the Secretary thinks fit.

(2) The Secretary may only withdraw a prisoner's privileges under subsection (1) if he or she is satisfied that it is necessary to do so in the interests of the management, good order and security of the prisoner concerned.

(3) The withdrawal of privileges under subsection (1) does not affect the imposition of any other penalties under this Part or under the criminal law in respect of the prison offence.

13 Mr Seliksy, in his affidavit filed on behalf of the defendant, explains that prisoners "do not have unfettered access to the use of telephones", and that part of his role as operations manager for security of the MRC "is to ensure that the use of telephones by prisoners does not compromise the security and good order of prisons". In support of this position, Mr Seliksy refers to a set of instructions for prisoners' use of mail and telephones which was published by Mr Rod Wise, the Director of Prison Services, on 7 August 2006.[2] The instructions state in paragraph 2.1 that "[t]he use of telephones by prisoners is a privilege, and prisoners can be denied access under defined circumstances".

14 Telephone calls are controlled by the "Arunta Controlled Telephone System", which is a computer-based pay telephone system for prisons. Paragraph 2.7 of the instructions ("Entitlement and approved numbers") provides that prisoners may use the system to make telephone calls "only to those numbers which have been authenticated and to people who have indicated their willingness to accept calls". This paragraph also establishes several categories of telephone numbers that will not be approved (for example, the TAB, 0055 recorded messages, media organisations etc). Importantly, paragraph 2.5 of the instructions states that:

Should a prisoner be found to be using a phone diverter, then that prisoner will lose the ability to use that number indefinitely.

15 In addition to the instructions, the defendant relies on a document signed by the plaintiff on 1 November 2005, which relates to the phone number for Ms Blackney, and in which Mr Rich is said to have expressed his understanding that his telephone conversations may be terminated if he participates in call diversions, among other things. There is some dispute about the particular circumstances under which this form was signed. During the course of submissions by counsel for the defendant, Mr Rich interrupted to assert that he did not sign the form referred to and in view of the way the proceedings developed, I have not been able to resolve that dispute.[3] I will proceed on the basis that the defendant has not established that Mr Rich did sign the form referred to.

16 It is my opinion that what occurred in this case was that a telephone number on Mr Rich's list of approved numbers was replaced with another number facilitating contact with the same person. While that was occurring, there were several days during which Mr Rich could not make contact with that person.

17 Mr Rich's case depends on the fundamental contention that: (1) a "privilege" was withdrawn; and (ii) the statutory process for withdrawal of a privilege was not followed.

18 With respect to the first point, Mr Rich claims in his originating motion that on 23 October 2007, the defendant "arbitrarily removed and cancelled the plaintiff's telephone privileges".[4]

19 I am proceeding on the basis that "telephone calls" are a privilege within the meaning of the Act. Section 112 of the Act contains a power to make regulations in relation to the privileges of prisoners. Regulation 36 is such a regulation. It provides:

(1) Annually, each Governor must submit to the Secretary, for the Secretary's approval, a list of prisoner privileges to operate in the prison for all prisoners or for various classes of prisoners.

(2) The Secretary may approve or refuse to approve the list submitted under sub-regulation (1), or approve it with changes and may, at any time, delete from, or add to, the list of prisoner privileges to operate in a prison.

(3) The privileges for the time being appearing in a list approved under this regulation are the privileges determined for the prison.

20 The list of privileges I have been shown, dated 19 December 2006, purports to be made pursuant to regulation 36(1). This list indeed includes "telephone calls" as a prisoner privilege.

21 It is submitted on behalf of the defendant by Mr Mitchell that the evidence does not demonstrate that a privilege was in fact withdrawn, because Mr Rich's entitlement to use the telephone was not been removed.[5] Effectively, what occurred was that a telephone number which was being used in breach of the instructions was placed on the prohibited numbers list. Mr Rich was free to make use of the telephone to call other numbers on his list of approved numbers, and he did so. The evidence before me discloses that on 28 October 2007, Ms Blackney provided a new telephone contact number, which was processed for approval on 30 October 2007. Whatever occurred after that, I am satisfied that by using the new number Mr Rich was able to make calls to Ms Blackney at various times of the day on 1, 2 and 3 November 2007.

22 Mr Rich's contact with Ms Blackney has now been restored, having been interrupted. He told me in the course of submissions that the new number is not the number that he needs, and he wants the old number reinstated. As I followed his submissions, that was due to the fact that the new number would not provide him with contact with Ms Blackney, and therefore in turn to potential legal representatives, other than late in the day when the phones available for use at the MRC were at their busiest.

23 The evidence as to the way in which the new number has been used seems to be at odds with that proposition. There is not a dispute on the evidence that Mr Rich is still able to make telephone calls to Ms Blackney using the replacement number, although Mr Rich complains about it being less convenient. The records of calls indicate that he is availing himself of the new number.

24 Endeavouring to apply a sensible approach, I would be of the view that if the privilege of making telephone calls was removed altogether or if particular phone numbers were removed from the approved numbers list thus undermining the real benefit of the privilege, there may be relief that could be obtained. However, in my opinion, that is not what occurred in this case.

25 With respect to the second point, the statutory process which the plaintiff relies upon is set out in Part 7 of the Act, which deals with "Prison Discipline". Section 50(5), which is set out in full above, provides that where a disciplinary officer is satisfied that the prisoner has committed a prison offence, that officer may withdraw one of the prisoner's privileges for less than 14 days. Section 54A of Part 7 establishes the power of the Secretary to the Department of Justice to withdraw prisoners' privileges in certain circumstances where it is alleged that the prisoner has committed a prison offence. Even then, the Secretary must be satisfied that the withdrawal of the privilege is necessary in the interests of the management, good order and security of the prison.

26 In Rich v Secretary to the Department of Justice & Ors,[6] Mandie J observed:

It is reasonably arguable, I think, that, if a prisoner is enjoying or "entitled to" a privilege within the meaning of s.54A of the Act and that privilege is withdrawn by the Secretary, purportedly pursuant to s. 54A(1) and (2) of the Act, such prisoner would be able in an appropriate legal proceeding to contend that the Secretary had failed to withdraw the privilege in compliance with those statutory provisions and to seek relief accordingly.[7]

His Honour resolved that case on the basis that access to an "in-cell" computer was not a prisoner privilege within the meaning of the Act.

27 It was submitted by the defendant that the alleged conduct of Mr Rich was contrary to the instructions relating to prisoner communications, but it did not represent the commission of a prison offence. On that basis, the procedures for withdrawal of a prisoner privilege as set out in ss 50 and 54A were not applicable.

28 I accept that the making of a telephone call by a prisoner to a number that has been diverted is not a prison offence which would attract the provisions of s 50 of the Act nor, for that matter, s 54A.

29 The defendant further submitted that the ability of prisoners to make telephone calls is not an absolute privilege, and that ss 50 and 54A do not set out the only circumstances in which a privilege may be withdrawn. Rather, the right to access to the use of prison telephones is subject to: the relevant instructions; the conditions of use which a prisoner agrees to at the time of the request for telephone access; and, more broadly, the need to ensure the good order and security of the prison.

30 This may or may not be correct. In view of the opinion I have formed about the facts of this case, and whether a privilege was in fact withdrawn from Mr Rich, it is unnecessary for me to decide the issue. I do note, however, that if there is a general power to withdraw a privilege beyond that set out in ss 50 and 54A of the Act, this power should not be exercised in a manner which amounts to the imposition of a punishment in bad faith, under the guise of maintaining the good order and security of the prison.[8] I am aware that Mr Rich would seek to argue emphatically that Corrections Victoria exercised its power in this case in such a manner, but in my view the evidence does not support such a conclusion.

31 For the foregoing reasons, I consider that the originating motion does not disclose a cause of action so far as the telephone call issue is concerned. In his affidavit and in the originating motion, Mr Rich has ranged far and wide over the manner in which the MRC is run. He complains loudly that he is being thwarted at every turn in the preparation of the defence of his trial. Whilst I am not satisfied that his cause of action has been established in this case, the Court would be extremely concerned at any sign of obstruction of Mr Rich's ability to prepare for his trial, subject to the obvious constraints that must apply to prisoners.

32 In all the circumstances I am of the opinion that the legal basis on which the plaintiff brings this action is flawed and that there is a consequent effect for each of the paragraphs contained in the summons seeking particular relief. On that basis I would dismiss the summons on originating motion.

[1] Transcript of Proceedings, Rich v Scaife (Supreme Court of Victoria, Lasry J, 7 November 2007) at 19.

[2] Director's Instruction No. 4.7 - Prisoner Communications, Exhibit 1 to the affidavit of Nicholas Paul Seliksy.

[3] Transcript of Proceedings, Rich v Scaife (Supreme Court of Victoria, Lasry J, 7 November 2007) at 22.

[5] Transcript of Proceedings, Rich v Scaife (Supreme Court of Victoria, Lasry J, 7 November 2007) at 24.

[6] [2007] VSC 405.

[8] See Kaufman v Smith & Armytage [2001] VSC 420 (per Eames J).