Plaintiff v Defendant

Plaintiff v Defendant - [2009] VSC 607 - VSC 2009 case summary — Zoe

[14]

(a) The documents in question contained, in the main, reproductions of media articles that have appeared and still appear in the public domain. They come within the ambit of the FOI Act as a result of being edited from a larger publication, notated and filed in my IMP File;

(b) The advice from Ms Richardson that she was "advised by clinical services staff from Corrections Victoria that the disclosure of the newspaper clippings could undermine the effectiveness of your rehabilitation and be detrimental to the formulation of treatment pathways for your rehabilitation, and therefore prejudice the administration of the Corrections Act 1986", is without foundation as there is no basis for this advice. The fact that previous requests of a similar nature over the past 22 years have been granted should also be noted;

(c) The assertion by Ms Richardson that the "release of information relating to the personal affairs of a number of individuals would be unreasonable" is clearly untenable given that the documents in question contain reproductions of articles that have appeared, or still appear (through the Internet and the newspapers section of the State Library), in the public domain;

(d) The likelihood that I have already seen the original articles, given that prisoners at PPP are provided with daily access to The Age and the Herald Sun and are able to purchase their newspapers;

(e) Given that the clippings are from public documents already in the public domain, the various factors taken into account by Ms Richardson are irrelevant considerations;

(f) That the nature of some of the information in question "is about the ongoing impact of crimes against various individuals" favours the granting of release, as it is a vital component of my rehabilitation that I be made aware of the impact my actions have had on my victims;

(g) It is important that in my dealings with Corrections Victoria I be aware of what information they are relying on in making decisions about my management and my preparation for release. In addition, Ms Richardson fails to detail how these documents are used "as part of the process of managing [me] as a prisoner";

(h) Given my unrestricted daily access to newspapers and other media, and the previous granting of similar requests by Corrections Victoria, there is no "likelihood that disclosure would cause stress, anxiety or embarrassment";

(i) Given that the clippings are from public documents already in the public domain, the provisions of s.38 of the FOI Act and s.30(2) of the Corrections Act, do not apply.

[27]

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.

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.

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 ...-

(a) is a threat to prison security; or

(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.

(2) The Governor may -

(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.

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). Otherwise the Governor has no power to stop a letter from being sent.

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.

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.

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.

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:

[30]

The Plaintiff, having being granted limited conditional leave by His Honour Bell J on 1 August 2007 (Knight v Anderson [2007] VSC 278 at 40), seeks leave from the Court to substitute the original ground 6 in his statement of claim for the following:

(6) The Plaintiff seeks from the Court an order in the nature of a prohibitory injunction restraining the defendant from preventing the Plaintiff from sending letters written by the Plaintiff to Mr Kevin Maddock of Prison Fellowship on 3 August 2005, and to Mr [X (a victim of the applicant's crimes)] on 2 August 2005, and subsequently stopped and seized by the Defendant's delegates on 4 August 2005, on the grounds that:

The Plaintiff has a right to send letters uncensored by prison staff pursuant to section 47(1)(n) of the Corrections Act 1986 (Vic),

The Plaintiff's letters do not fall within the provisions of sections 47D(1) or 47DA of the Act, as they are not a threat to prison security, that (sic) are not of a threatening or harassing nature, they are not being used to further an unlawful activity or purpose, and they do not contain indecent, abusive, threatening or offensive written or pictorial matter, or an indecent, obscene or offensive article or substance, or would be regarded as distressing or traumatic by the second named intended recipient,

The Plaintiffs letters do not breach regulation 50(1)(k) of the Corrections Regulations 2009 (Vic),

The Plaintiff's letters are not liable to be censored pursuant to Part 1.2 of the Director's Instructions No. 4.7 as there is no evidence that they contain plans for criminal activity, instructions for manufacture of weapons, drugs, or drug paraphernalia, or alcohol, threatened blackmail or extortion, plans for escape or unauthorised entry, information which, if communicated, would create a serious danger of violence and physical harm to any person, or coded content or language not understood by the reader and suspected of containing any of the above,

Neither of the intended recipients of the Plaintiff's letters have indicated that they do not wish to receive mail from the Plaintiff,

The second named intended recipient has not advised the General Manager of Barwon Prison that he requests that no further mail be forwarded to him, so the provisions of Part 1.3 of the Director's Instruction No. 4.7 do not apply, and

The second named intended recipient has publicly stated that he seeks an explanation from the Plaintiff as to the Plaintiffs' actions.

The Plaintiff seeks leave from the Court to bring the application against the Commissioner of Corrections Victoria, on the grounds that:

The cause of action arose when the Plaintiff was a prisoner at Her Majesty's Prison Barwon,

The Plaintiff was transferred from Her Majesty's Prison Barwon to the privately owned Port Phillip Prison on 19 June 2007, and

It would be unjust to transfer the costs of defending the application from the State Government to a private company unconnected (sic) with the cause of the action.

The Plaintiff seeks leave from the Court to proceed unrepresented, on the grounds that:

[50]

This bill amends the Corrections Act 1986 in two ways with intention to further strengthen the recognition that this government has given to the needs of, and harmful effects of crime on, victims as follows.

Extension of governors' powers to intercept or censor letters

The emotions of victims and the general community are still raw 20 years on from the tragic Hoddle Street massacre in which Julian Knight's rampage left 7 people dead and 19 people injured. The trauma continues to haunt Julian Knight's victims, and indeed the community.

The recent judgement of the Supreme Court case of Knight v Anderson (2007) VSC 278 which granted Julian Knight leave to commence an application for judicial review in relation to the stopping of the letter to one of his victims has caused community outrage.

The government recognises that crime affects each person differently, often leaving its victims devastated and violated, and that such effects can be severe and long lasting. There can also be an enormous toll on the families and friends of victims, as well as on their communities and on society at large.

In response, the government gave a commitment to further protect victims' rights by giving correctional officials the power to stop offenders, such as Julian Knight, from contacting their victims.

The government has acted swiftly to fulfil this commitment.

This bill will amend the Corrections Act 1986 to enable prison governors to intercept or censor letters sent by prisoners to any person if they reasonably believe that the letter contains material that may be distressing or traumatic.

This amendment will validate the prison governor's decision to stop the letter that Julian Knight wrote which was the subject of the decision of the Supreme Court in Knight v Anderson.

This bill will also make it an offence for a prisoner to send, cause to be sent, attempt to send or cause to be sent, a letter to a victim, or the family member of a victim, that contains such material and that the prisoner knows or ought reasonably to have known would be regarded in this way. The maximum penalty for this offence is six months imprisonment.

This new offence is intended to capture situations where a prisoner writes to their victims or their family members or where another prisoner writes to victims (other than victims of their own offences) or family members of these victims, and thereby causes distress and trauma.

The Victorian correctional system has had experience of situations in the past, where one prisoner uses another prisoner to cause distress to their victims and their families.

This amendment will protect victims and their families from such communications and thereby protect them from experiencing any further distress or trauma.

At a glance

Court

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Judgment (98 paragraphs)

Legislation Cited (6)

Cases Cited (3)