Plaintiff v Defendant

Supreme Court of Victoria|2017-09-14|Before: Kennedy J

ADMINISTRATIVE LAW - Judicial review - Prison administration - Application for review of decision to refuse 'supervised internet access' for purpose of filing application for special leave to High Court - Whether remedies sought available - Whether any grounds for review in any event - Whether discretion should be exercised to refuse any relief - Whether any unlawful conduct pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Vic) in respect of right to fair hearing/adequate facilities under ss 23 or 24 - Whether case should be dismissed in any event on the basis that application should be determined by the High Court.

1 This is an application by way of originating motion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) brought by Mr Rich, who seeks to challenge alleged decisions made by the defendant to deny him supervised internet access.

2 In particular, the originating motion seeks to review an alleged decision made by Mr Howe[1] of 5 November 2014.[2]

3 Mr Rich claims that he requires internet access to various case law publications to bring an (intended) application for special leave to the High Court to appeal a decision by the Court of Appeal upholding his conviction and sentence for murder and armed robbery.[3]

4 Mr Rich filed an originating motion on 9 December 2014; a summons on 9 December 2014; an affidavit in support affirmed on 25 November 2014; typed submissions of 15 April 2015 (of 62 pages and 131 footnotes); and a table of authorities of 15 April 2015 (of 6 pages).

5 The submissions largely appeared to address the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) issues in the case. To this end, Mr Rich also filed a notice under s 35 of the Charter.[4]

6 During the hearing, Mr Rich was also given leave to:

• cross-examine two deponents of affidavits of the defendant;

• tender further exhibits (including two software brochures); and

• hand up further material, including a further (typed) 108 page submission; extracts from various journals and texts; and a document titled 'detailed analysis and deconstruction to Court of Appeal's judgment' with an accompanying index to a further document that was apparently over 1,803 pages long (though this document was not tendered).

7 As will be seen below, following the hearing, Mr Rich also filed a further (typed) submission on 5 September 2017.

8 I have read and considered the material filed by Mr Rich.

9 The defendant filed three affidavits in response:

(a) Affidavit of William Justice dated 27 March 2015;

(b) Affidavit of Roderick John Wise dated 31 March 2015; and

10 The defendant also filed written submissions on 24 April 2015, and further short submissions on 5 September 2017.

11 It was not always easy to distil the precise way that Mr Rich's complaint was put. As fairly conceded by the defendant, a major complaint was that the non-provision of internet access constituted a breach of the Charter, particularly in terms of his right to a fair hearing under s 24. In terms of the non-Charter aspects, his primary case was that there had been a breach of the 'no fettering principle' by reason that the policy issued under s 8A of the Corrections Act 1986 (Vic) (Act), being the 'Commissioner's Requirement - Prisoner Computers' dated August 2014 (the policy), had been treated as law.

12 In an effort to provide some framework in which the proceeding could be resolved, I endeavoured (with the assistance of Counsel for the defendant) to distil the relevant issues during the hearing as follows:

• First, insofar as non-Charter issues were raised, whether the remedies sought were available;

• Second, whether any non-Charter grounds for review were otherwise available;

• Third, whether a discretion should be exercised in the event that a remedy was otherwise available.

• Fourth, whether the court should grant a remedy (including a declaration) on the basis of the Charter, in particular in relation to the rights recognised in ss 24(1) and 25(2)(b);

• Fifth, whether (as alleged by the defendant) the case should be dismissed in any event by reason of being in the wrong forum (on the basis that the High Court should determine the matters raised).

13 The defendant generally accepted this analysis (though he submitted that the fifth issue was a 'threshold issue'), while Mr Rich did not generally challenge it.

14 On 20 June 2014, the Court of Appeal dismissed an appeal from Mr Rich against his conviction and sentence for murder and armed robbery which had been heard before Lasry J.[5]

15 In his affidavit Mr Rich annexed various correspondence between himself and the Department, and also the High Court, in relation to a proposed application to the High Court.

16 Thus, by correspondence dated 18 October 2014, Mr Rich made a request for 'supervised' internet access to case law publications to the defendant. He claimed that he was making the application 'in order to assist me with my court preparations, all, in relation to my Special Leave Application to the High Court of Australia'. In this proceeding, his primary case was that he wished (and continues to wish) to apply to the High Court for leave to appeal the Court of Appeal's decision of 20 June 2014, notwithstanding, that, absent a dispensation, the time for seeking leave (28 days) had expired.[6]

17 In his correspondence, he asked for an 'exception' to be made to the policy and suggested that measures could be put in place to give him access to a single blank page on the unit computer from which a series of 'hyperlinked' addresses would be included which would never be able to access any global search engine. At paragraph 7 of his affidavit, Mr Rich reiterated this, claiming that security concerns could be addressed by the provision of a single blank page on the computer as he described with a 'denial of service warning' if any user engaged in inappropriate conduct.

18 On 5 November 2014, Mr Nick Selisky, Deputy General Manager of Barwon Prison, responded as follows:

Dear Mr Rich

I acknowledge receipt of your letter dated 18th October 2014 seeking supervised internet access.

As per the Commissioners Requirement - Prisoner Computers 2014, prisoners are not permitted access to the internet. I have enclosed a copy of the Commissioners Requirement for your perusal.

I have also enclosed relevant parts of the High Court Rules to assist you, and I can also provide you with a list of legal books available on site, or via loan from the MRC Legal Library should you wish.

19 Mr Selisky wrote a further letter dated 12 November 2014, wherein 'in the absence of the General Manager' he acknowledged receipt of Mr Rich's letter of 18 October 2014. He advised that correspondence to the General Manager was directed to the person in charge of the prison when received and not an individual person. He continued: 'In consideration of you not being accepting of the response, General Manager Howe will be advised of your correspondence upon his return.'

20 In the meantime, by correspondence of 10 November 2014, Mr Rich wrote to the Deputy Registrar of the High Court seeking relief by way of prohibition and mandamus to compel his 'jailer' to allow him to conduct research to file his intended special leave application.

21 By correspondence of 17 November 2014, the Deputy Registrar of the High Court advised Mr Rich that he could not access the relief he sought (in the original jurisdiction of the High Court) as the 'jailer' was a State body.[7]

22 Mr Howe also responded on 18 November 2014 as follows:

Dear Mr Rich,

I have reviewed your correspondence dated 18 October 2014 (received 11 November 2014) and responded to on 12 November 2014 by Mr Selisky.

I have full confidence that Mr Selisky is able to answer your questions and concerns.

Mr Selisky has offered to meet with you on a number of occasions; I do not agree that this opportunity has not been afforded to you.

If you have a matter that you wish for me to consider, which you feel that Mr Selisky cannot address, then please bring this to my attention in a clear, concise manner via letter.

23 As already indicated, there are also three affidavits filed on behalf of the defendant. Two of those affidavits (of Mr Justice and Mr Wise) sought to adduce evidence beyond that which was before Mr Howe or Mr Selisky. However, their evidence was adduced as relevant on the issue of utility and to the Charter claims.

24 Both were the subject of some limited cross-examination, with leave.

25 Mr Justice was the Senior Information Communications and Technology Security Officer of Knowledge Information and Technology Services for the Department of Justice & Regulation (the Department) and had been since October 2006.

26 He possessed a range of qualifications including an Advanced Diploma of Engineering and a Diploma of Software Engineering, as well as experience in security networks for the Department of Defence.

27 He presented as a straightforward honest witness who was prepared to make appropriate concessions and I have generally accepted his evidence.

28 He stated that it was vital for the Department to have a robust computer system which would withstand any attempts to access it by unauthorised persons. He said that there were tools in existence that could bypass monitoring. In his affidavit, he stated the following:

In paragraph 7 of his affidavit, the plaintiff suggests various mechanisms to monitor his computer use to allow him internet access. Based on my experience and knowledge, I believe that these suggested mechanisms are not technically possible and even if they were technically possible, would not prevent the plaintiff from accessing the internet generally. The plaintiff's suggested monitoring of his computer, if it were technically possible, would require a major allocation of staff to check his output, and the technical checks may still not locate any misuse of the computer or the hiding of information in a file.

there is between a possible and almost certain risk of a moderate to critical consequence to the Department's computer systems should a prisoner be given access to the internet in any format or any attempted restricted-use regime.

30 In his opinion, it was simply not possible to comprehensively monitor a prisoner's external communication if the prisoner had access to the internet.

31 He also declared that it was not possible to prevent a security breach of the Department's computer system if a prisoner was given access to the Department's legal library through a computer.

32 Under cross-examination, Mr Justice was taken to two product brochures for a Spector Pro and a Spector CNE investigator. According to Mr Rich, these products monitored key strokes and could set alarms to set a computer off if the user sought to access an unauthorised site. Mr Justice maintained that he had considered these types of products in giving his opinion. He conceded that there would definitely be a historical record of what the user would be doing on the computer though there would be a lag. He accepted that it might also be possible, if there was a set of instructions, that the computer could automatically shut down in the event of access to a specific unauthorised site. However, he maintained as follows:

My experience is that with the Internet the way it changes and it's expanding, with websites masquerading as other websites, and the historical nature of these sort of products being monitoring, logging and reporting, that technically if someone was of a mind that it would be impossible for us to prevent them from doing something. We would be able to detect that they did something. But, to prevent them from doing something would be enormously difficult.

33 Mr Rich then proceeded to raise the possibility of using two standalone computers. One would be a standalone with a SIM card in it, which could access the internet on its own, and which would not distribute that information, while there would be another computer used to monitor.

34 The ultimate response of Mr Justice was that in order to secure the remote monitoring computer, they would need additional infrastructure and components because there would be a one-to-one relationship between the computer that Mr Rich was using to access the internet and the computer that was being used to monitor his access. This would further put the information on that computer at some risk.

35 Under re-examination he was asked to explain the risk and his evidence was as follows:

There is, because once again, if we were to use a monitoring PC, even a stand-alone one, we would need to use the department's infrastructure to establish the veracity of any of the files in it. If those files had been tampered with, if they were corrupted, they could be used to leverage advantage, if even if it's just to introduce malicious code to disrupt our forensic examination of those files.

36 He also said he did not believe he would change anything in his affidavit as a result of the cross examination, stating:

I believe that monitoring and the ability to stop actions, especially on Internet connected systems, are two different concepts for us. And the ability to retrospectively come in and stop an action is valuable, but it's not as valuable as preventing that action in that first place.

37 The general thrust of his oral evidence was therefore that, while it may not be impossible to monitor a prisoner's use of a computer, the problem was the reaction time required to prevent a breach and the associated risks to the Department's systems.

38 Mr Wise is the Deputy Commissioner, Operations of Corrections Victoria. He has held that role since March 2011 and presented as a straightforward witness.

39 He produced the relevant policy relied upon by Mr Selisky in his correspondence of 5 November 2014.

40 The policy was entitled 'Prison Computers' which dealt with the circumstances in which prisoners may have access to an in-cell computer. This included where there was a 'legal requirement' (cl 2). Clause 4.1.1 provided that to 'manage the risks' associated with the grant of an in-cell computer where there are limitations on the ability for supervision, applicants must establish that such access is 'necessary or required for their legal or educational pursuits'. Page 26 of the policy further highlighted that computers 'can play a significant role in equipping a prisoner with the means to prepare for trial'.

41 Under the criteria 'Legal' the policy continues:

The prisoner meets the eligibility for an in-cell computer if unconvicted or has an outstanding criminal legal matter or outstanding appeal and the computer is necessary for the preparation of a case/defence.

The need for the computer will consider:

• the need to access the electronic brief of evidence, depositional or other court-related material; and

Access to an in-cell computer for outstanding civil matters will only be approved in exceptional circumstances.

Prisoners who are accommodated in a management or high security unit or are classified as a long term management placement must not be excluded from accessing an in-cell computer. The legal requirement must be balanced with any specific or individual security risks associated with computer access in these units (emphasis added).

42 Page 17 of the policy further provides for circumstances in which an in-cell computer might be 'necessary' (which does not mean 'desirable') as follows:

(a) depositional or other material critical to the prisoner's outstanding trial(s) might only be available in CD, CD-ROM, or DVD form, or would be too voluminous if provided in hard copy;

(b) the material on those disks might be distressing if viewed by other prisoners in a communal area, or may impact on the prisoner's safety, or constitute a breach of privacy if viewed by others; or

(c) the amount of time required on the computer to prepare adequately for trial would unreasonably inhibit other prisoners' access to the computer.

Note: 'trial' in the above sections relates to criminal trials only. Permission to access an in-cell computer solely in order to work on civil matters will not ordinarily be granted.

43 The privilege of a computer is, however, limited and is tied to the currency of relevant legal proceedings. Thus, an approval is reviewed when legal proceedings conclude (cl 4.6.1). Further, prisoners may only retain disks containing court transcripts 'relevant to their current trial(s) or appeal only' (cl 4.17.1). Finally, although prisoners are generally denied access if they have been found guilty of a prison offence within the past 12 months, an exception is made where there is a 'pending court matter' (cl 4.2.1).

44 Another limitation is of more consequence in this case. Thus, cl 4.14 deals with the topic of Data Transfer and provides:

4.14 Data Transfer

4.14.1 The use of wireless technology and access to the internet is not permitted.

4.14.2 Any device that permits the connection of a computer to the Internet, television, or any telecommunications equipment are not permitted to be connected to or installed on prisoners' personal computers.

4.14.3 The external exchange of data by modem/router or disk is not permitted unless necessary for education for legal purposes. This must be conducted under strict supervision and must be approved by the General Manager.

45 Mr Wise confirmed that cl 4.14.1 of the policy prohibited computer access to the internet by prisoners and said that the reason for this was for prison security.

46 Mr Wise stated that he had met the plaintiff on many occasions and had 'regular correspondence with him on various issues'. He further described that the main computer and legal library access supplied by Corrections Victoria to male prisoners was found at the Metropolitan Remand Centre (MRC). Whilst not a full legal library the MRC library does have a number of legal resources. Prisoners in other prisons may borrow books from the MRC library though it is more usual for prison staff to photocopy pages rather than send the book given pressure of demand.

47 This was consistent with evidence of Ms Coombs that the MRC library was a 'substantial legal resource' which contained resources in excess of that in existence at individual prisons.

48 Mr Wise also stated that Mr Rich had previously been charged with a prison offence in relation to discovery (on a cell search) of a phone/computer interface cable, a smart card reader for a digital camera, and a mobile phone charger. Due to a delay in the hearing of the charges, the charge was ultimately dismissed.

49 Under cross-examination, Mr Wise was asked whether he was prepared to look at supervised internet access for a short period of time. His response was that his sense was that this would be very time consuming and resource-rich. Further, that it was largely a question of resources and that there was also a precedent that it set for the other 7,150 odd prisoners, a number of whom had asked the Department for supervised internet access.

50 (In this context Mr Rich indicated, in his submissions to this Court, that the access that he would require would be in the order of two to three months.)

51 Mr Wise admitted that he did not know any of the applicable legal questions that were relevant in respect of Mr Rich's trial. He also accepted that Mr Rich had not been convicted of the relevant prison offence he had mentioned in his affidavit.

52 A significant part of Mr Rich's cross examination consisted of Mr Rich's allegations that he was denied access to various resources. Mr Wise was generally not aware of the full detail of these requests (though he described them as 'voluminous') and the full detail of Mr Rich's requests were not before the court.[8]

53 Under re-examination, Mr Wise summarised that the mechanisms available to Mr Rich were to apply through the MRC to the library; through families and friends; and also through community legal services. There were other legal resources also available at the prison where Mr Rich is currently located, which comprised a set of standard legal resources. He also indicated that it was possible for people on the outside to provide printed hard copy material to prisoners.

54 In terms of the resources available at the prison, the evidence of Ms Coombs was that there were 21 standard texts available at each prison. The texts available are in the nature of:

(e) Constitutional and administrative law;[13]

(g) The Victorian Charter of Human Rights and Responsibilities;[15]

(h) Legal reference and research texts;[16] and

55 When given an opportunity to further cross-examine, Mr Rich questioned whether the 21 books were available. Mr Wise responded that, as far as he was concerned, they had been available not long ago when an audit had been undertaken.

56 The evidence of Mr Wise was that there was therefore a number of resources available to Mr Rich within the prison system (through the MRC and prison libraries) as well as outside that system (through family and friends and community centres).

57 Although Mr Rich appeared to be claiming that not all of his applications for legal resources had been successfully processed, such claims were not the subject of evidence. In any event, the evidence before the court suggested that Mr Rich had had extensive opportunity to access a wide range of legal materials (this included the detailed footnotes contained in the submissions to the Court as well as his own statements to the Court that he had obtained various legal books through friends).

58 Sections 20 and 21 of the Act confer powers and obligations on persons in charge of prison, namely 'Governors'[18] (who may exercise all or any of the powers or functions of a prison officer pursuant to s 22A):

20 Duties relating to security and welfare

(1) An officer in charge of a prison or part of a prison must take all reasonable steps for the security of the prison or part of the prison.

(2) An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners.

(3) An officer must not jeopardize the security of the prison.

...

21 Duties of Governor

(1) The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.

...

59 However, the evidence of Mr Wise was that in order to guide Governors, the Commissioner, employed under s 8A, issues policy documents including the policy in question.

60 Thus, under s 8A of the Act, the Secretary has the power to employ a person to be 'Commissioner for the purposes of this Act'. Amongst other matters, the Commissioner is responsible for 'assessing performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders'.[19]

61 The other provision referred to by Mr Rich was s 47 of the Act, which explicitly sets out a list of prisoner's rights (which include specific rights relating to fresh air, food, clothing, medical care, dental treatment, religious practice, and visits).

62 There is nothing in those provisions about a right to internet access. However, Mr Rich placed some reliance on s 47(2) of the Act which provides that:

A prisoner's rights under this section are additional to, and do not affect any other rights which a prisoner has under an Act other than this Act or at common law.

63 As best as can be determined (and leaving aside the Charter), the plaintiff sought the following orders:[20]

• Certiorari in respect to 'decisions' dated 5 November 2014 and 18 November 2014;[21]

• Relief in the nature of mandamus and/or a mandatory injunction requiring Mr Howe's successor to grant Mr Rich 'a system of supervised and controlled internet access';[22] and

• A declaration concerning the effect of Mr Howe's decision.[23]

64 The 'decision' of 5 November 2014 was made by Mr Selisky (and effectively endorsed by Mr Howe by his actions of 18 November 2014).

65 Mandamus, however, will only be issued where there is an enforceable duty in existence.[24] Although the Act reposes broad powers to manage the prison in the Governor, there is no duty imposed on Mr Howe under the Act to grant internet access, or even to consider whether to grant such access.

66 The Court should also not issue a mandatory injunction which would, in the guise of an injunction, go beyond the scope of mandamus.[25] In any event, a mandatory injunction is to be issued in limited circumstances to enforce or protect a person's 'legal rights'.[26] Mr Rich has no 'right' to access the internet; nor does he have any right to compel Mr Howe to consider the issue.

67 Certiorari is also unavailable absent an apparent legal effect.[27] In these circumstances (where mandamus cannot be issued) it is also futile to grant certiorari given no consequence would follow.[28]

68 It follows that, even if a ground is demonstrated, Mr Rich is not entitled to the remedies he seeks pursuant to Order 56.

69 A real issue in this case is that Mr Rich was endeavouring to seek a merits review of an administrative decision made to ensure the security of the prison. However, the courts will not make orders which amount to managing the prison system.[29] Rather, jurisdiction is limited to determining whether the authority has exercised its statutory powers and discretions according to law.

70 In terms of declaration, as will be seen below, I am unable to be satisfied that there are any grounds for the making of a declaration.

71 In any event, the grant of a declaration lacks any utility in circumstances where the defendant cannot be compelled to even consider the grant of internet access. In such case a declaration would not be productive of any effect since it can play no part in the resolution of the parties' dispute.[30] I would therefore not issue a declaration as a matter of discretion even if a ground was established.

72 The defendant submitted that there were two other matters that suggested that a discretion ought to be exercised even if a remedy was otherwise appropriate: first, that no other decision was open; and further that the application should be in the High Court. The question of the High Court is considered separately, below. It is otherwise unnecessary to consider the discretion issue further.

73 For the reasons given, the application for non-Charter relief must be refused.

74 Although unnecessary to go further, I will briefly consider the non-Charter grounds raised.

75 As highlighted already, the primary basis for challenge was that the policy was an impermissible fetter on the discretion of Mr Howe.[31]

76 There also appeared to be a further ground that the policy itself was ultra vires.[32]

77 There were also various other grounds specified including the ground of 'unreasonableness'.[33] However, in circumstances where they did not go beyond a bald recitation, I am unable to be satisfied that they can be sustained.

78 Returning to the policy issue, an administrator exercising discretionary power acts ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case.[34]

79 An initial hurdle was whether it might be said that the policy was applied without regard to the merits of the case. Thus, the defendant submitted that (in the absence of formal reasons) the expression 'as per the Commissioner's requirement' did not establish that Mr Selisky failed to give consideration to whether the policy should be applied in this case.

80 However, even if I accept (as Mr Rich contends) that the policy was 'blindly' applied, no error is demonstrated. As indicated already, there was no obligation imposed on Mr Selisky (or anyone else) to consider internet access. It follows that there is no error by reason of a 'failure to consider' where no obligation to consider exists in the first place. Thus, simply because the alleged 'failure to consider' is due to a policy, does not convert the failure into a reviewable error.[35]

81 In relation to the other suggestion, as highlighted above, the policy provides for access to a computer in certain circumstances but excludes access to the internet. There is nothing to suggest that this is ultra vires the Act. To the contrary, consistent with the evidence summarised above, the policy was well within the Act given, in particular that, pursuant to s 20(1) an officer must take all reasonable steps for the security of the prison and s 20(3) provides that an officer must not jeopardize the security of the prison. It is also in the interests of the welfare of the prisoners generally that the Department's computer systems remain viable.

82 Mr Rich also alleged that the policy was internally inconsistent by reason that cl 4.14.1 (prohibiting the internet) was inconsistent with cl 4.14.3 (permitting external exchange of data by modem/router or disk in some circumstances). However, I accept the submission of the defendant that cl 4.14.3 is referrable solely to the exchange of data by modem/disk from 'one to one' and not 'one to 6 billion' pursuant to the internet. There is no inconsistency.

83 I am also unable to be satisfied that any Wednesbury 'unreasonableness' ground is established. [36] To the contrary, the policy appears to consider an appropriate balance between security interests and rights of access to the courts. The application of such a policy therefore appears to be soundly based.

84 It follows that no ground for review was established even if the decisions identified were amenable to relief.

85 The question of discretion has been addressed above.

86 The essence of the plaintiff's claim was that the decision of Mr Selisky to apply the policy infringes his right to a fair hearing (which includes access to the courts).[37]

87 Although he made reference to a number of aspects of the Charter in the course of his extensive submissions, in the result it appeared that two provisions were significant as follows:

24 Fair hearing

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

...

25 Rights in criminal proceedings

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees -

...

(b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and

...

(4) Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.

88 The defendant accepted that the rights that Mr Rich raises apply to him in connection with his appeal against his conviction.[38]

89 The defendant also accepted that Mr Howe, as general manager, was a public authority,[39] and hence subject to s 38 of the Charter which makes it unlawful for a public authority to act in a way that is incompatible with human rights or to fail to give proper consideration to a relevant human right. Such 'unlawfulness' might then provide the basis for a remedy pursuant to s 39.

90 An initial issue is whether any human right was relevant to the decision made in this case, in circumstances where no proceeding was actually pending and the time for seeking leave had expired.[40] Nevertheless, given I am to construe rights 'in the broadest possible way', I will assume, in favour of Mr Rich, that the Charter rights identified were generally engaged when he sought access to the internet in relation to his proposed application to the High Court. I will also consider his common law rights to a fair trial.

Whether an act done which was incompatible with a human right

91 In terms of the alleged breach, there was difficulty in identifying precisely why Mr Rich needed the internet. In written submissions, he alleged that he needed access to research 'such issues as jurisdiction, venue, standing, exhaustion of remedies, case authority, just to mention a few considerations...'.[41]

92 In oral submissions, Mr Rich emphasized that access to the High Court would uniquely turn on the cogency and force of the paperwork filed in support of the application for leave, highlighting that it would be unlikely that leave would be obtained unless the paperwork was compelling.

93 In order to assess Mr Rich's claims to relief then, it is necessary to consider relevant case law cited which was addressed by both parties.

94 In Slaveski v Smith (Slaveski),[42] a number of questions were referred to the Victorian Court of Appeal for resolution relating to the issue of legal representation in a criminal trial; one of these was whether the right to a fair hearing pursuant to s 24(1) of the Charter operated to include the right to be legally represented.

95 The Court ultimately came to the view that the answer was a qualified 'yes', but only if the absence of legal aid would preclude the court from reaching a just decision.[43]

96 In so doing the Court referred to the English Court of Appeal decision of Perotti v Collyer-Bristow (a firm) (Perotti),[44] which considered the right to a fair hearing provided for in the similar provision, Article 6(1) of Schedule 1 to the Human Rights Act 1998 (UK). In the principal judgment of Chadwick LJ in Perotti, His Honour said:

It is not sufficient that the court might feel that the case could be presented better; the question for the court is whether it feels that the case is being, or will be, presented in such a way that it cannot do what it is required to do - that is to say, reach a just decision. If it cannot do that the litigant is effectively deprived of proper access to the courts. [45]

97 The Court of Appeal in Slaveski was disposed to construe s 24 in similar fashion which was 'no more than reflective of the position at common law'.[46] The Court stated that an 'indigent person does not have a right at common law to be represented at the State's expense on a serious criminal offence. He has a right to a fair trial, more accurately expressed in negative terms as a right not to be tried unfairly'.[47]

98 The Court of Appeal also endorsed the comments in Perotti that the court has ample experience of cases in which the material is not presented in an ideal form yet still finds it possible to reach a just decision.[48]

99 Finally, the Court stated that 'a criminal proceeding will not be unfair if the defendant is unrepresented because he persistently neglects or refuses to take advantage of legal representation which is available'.[49]

100 Rich v Groningen,[50] concerned the right to access to the courts in a context wherein Mr Rich was complaining, inter alia, of a lack of access to legal texts and appeal documents. Gillard J refused to grant any relief given that certain events had altered since the issue of the proceeding. However, His Honour also made some relevant observations. Thus he was of the view that Mr Rich had no right that entitled him to legal texts relevant to his appeal, nor was there any obligation upon the authorities to provide law books.[51] He nevertheless observed that the authorities could infringe his rights to access to the courts by taking away his appeal documents altogether.[52] However, the finding that Mr Rich was not entitled to an absolute right to all legal documents being in his possession at all times, rather that he was entitled to have 'reasonable access',[53] emphasises that the question is a factual one.

101 In Knight v Hastings,[54] Robson J refused leave for Mr Knight (as a vexatious litigant) to bring an application to bring proceedings in the nature of a mandatory injunction for access to an in-cell computer. His Honour found that Mr Knight had not satisfied the onus he bore in showing that the refusal of a computer had interfered with or would interfere with his common law right of unimpeded access to court.[55] His Honour further noted that the issue was not what would be 'easier or more convenient' but whether his access to court in relation to the substantive applications is or will be impeded.[56] However, Robson J found that an application for a declaration was not necessarily foredoomed to fail given some important issues were raised, including the relevant policy and Mr Knight's position as a vexatious litigant.

102 These Australian cases, then, suggest that the issue of a fair trial (under the Charter or at common law) should generally turn on the particular facts. The defendant was also unable to locate any Australian decision in which a court has held that the provision of internet access is necessary in order to afford a prisoner a fair hearing (s 24) or the right to have adequate facilities (s 25(2)(b)).

103 This court was also provided with various cases from other jurisdictions. Given that submissions were directed to these cases, they will be considered below. However, as highlighted by the defendant, the High Court has emphasised that courts should exercise 'discrimination and care' in this regard due to differences between legal systems and constitutional settings.[57]

104 In Taylor v District Court at North Shore (Taylor),[58] the New Zealand High Court had cause to consider the application by a maximum security prisoner for declaratory relief in relation to access to witnesses, legislation and case law to prepare his defence to (further) serious criminal proceedings. The applicant wished to represent himself.

105 The Court considered the application of s 24(d) and s 25 of the New Zealand Bill of Rights Act 1990 (NZ) (similar to s 25(2)(b) and s 24), respectively, of our Charter).

106 The Court first observed that where a person makes an informed decision to represent himself, there will be consequences, one of which is that he will not necessarily be able to represent himself as well as a competent lawyer.[59]

107 Further, that there is a need to consider the personal characteristics of the person in deciding what will be fair in a particular case which will depend on the circumstances of the case.[60]

108 The Court went on to cite four relevant points from a Court of Appeal judgment in Attorney-General v Otahuhu District Court,[61] as follows:

• That the s 24(d) right was not a new right but inherent in s 354 of the Crimes Act 1961 (NZ) and in the common law requirements for a fair trial;[62]

• That the s 24(d) right was 'in aid of the primary right to a fair trial';[63]

• That the right was restricted given the adjective 'adequate' - which the Court of Appeal said did not mean 'full or complete';[64]

• That though a white paper had suggested that the right would include access to a library and legal materials, it also suggested that the 'facts of each case' would determine whether an accused had adequate access to facilities for preparing his defence. There were also cases which suggested that s 24(d) did not confer an absolute right to access to legal authorities and materials.[65]

Adopting a fact specific approach ... a court considering an alleged violation of s 24(d) leading to an unfair trial for a self-represented accused would be likely to take into account matters such as the nature of the criminal charges involved, the complexity of any legal issues of substance or procedure, the nature and extent of the information received under the Criminal Disclosure Act 2008, the assistance provided by the prosecutor and the Court, the ability of the particular accused to access and make use of legal research material, the reasons why the particular accused did not obtain access to the materials, and, importantly, the impact, if any, of the absence of access to the materials on the particular trial and whether there was a miscarriage of justice. [66]

110 The Court then embarked on a 'fact specific inquiry' noting that s 24(d) did not create an 'unqualified right to comprehensive legal research materials at no cost to an accused'.[67] It determined, in the result, that it was not prepared to make the declarations sought at that stage where there was no reason to conclude that the prisoner would not obtain access to witnesses and relevant legal research material prior to trial (which was not due to commence until the next year).[68]

111 In so doing, White J also stated that the fair trial question should be considered by the courts dealing with his criminal prosecution.[69]

112 In R (Kenyon) v Governor of HMP Wakefield[70] (Kenyon), Mr Justice Hickinbottom of the High Court of Justice in England, had cause to consider whether the denial of a word processor would deny a fair hearing pursuant to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights),[71] which guarantees a fair trial.

113 The prisoner challenged a rejection of his request for a word processor on two grounds in that case; first a challenge to the policy which imposed restrictions on IT use; and second to the application of the policy to the circumstances of the particular case.

114 In relation to the first ground, Justice Hickinbottom cited a decision of the Court of Appeal in R (Ponting) v Governor of HMP Whitemoor[72] (which concerned the conditions under which IT facilities would be available to a claimant with learning difficulties) noting that the judgments made clear that each case was 'fact specific'.[73] He went on to find that the policy was compliant with Article 6.[74]

115 His Honour also rejected the second ground which raised for consideration whether the refusal of IT facilities would prejudice the right to a fair trial.

116 His Honour suggested that there were difficulties in whether Article 6 was engaged given that there needed to be proceedings, actual or potential, rather than speculative, and that any appeal would be very much out of time.[75] Further, that the failure of the claimant to indicate any possible ground for appeal or why he required a computer to pursue such grounds meant that the request was particularly difficult.[76]

117 However, even if Article 6 was engaged, there was a balancing exercise which was necessarily 'fact specific'. On the limited material provided by the claimant, His Honour determined that there was no evidence that an application to the English Court of Appeal could not be made properly and fairly without IT facilities.[77]

118 A further Canadian decision of R v Biever (Biever) of 12 May 2015,[78] of Mr Justice Graesser of the Court of Queen's Bench of Alberta, was produced by Counsel for the defendant during the hearing.

119 In that case, an application was made by a prisoner to the trial judge who was managing the criminal trial and who was hearing various interlocutory applications related to the trial: specifically in a context wherein a severance application and a pre-trial Charter application had been set down for June 2015.

120 The applicant in that case was unrepresented and sought, inter alia, internet access to access relevant case law; legal information sites; government sites; to conduct general searches (using Google and Wikipedia), as well as to seek counsel and communicate with counsel.

121 His Honour determined that the prisoner should be provided with greater access to legal information which, at a minimum, was to be reasonable access to the CanLII website. He otherwise left it to Alberta Justice to determine what additional resources should be provided.

122 However, in so saying, Mr Justice Graesser stated:

• That the claimant had satisfied the 'heavy onus' of showing that he would be 'unable to adequately prepare' for the severance application and the Charter applications unless he had greater access to legal resources;[79]

• It had been demonstrated during an earlier application that internet access restricted to the CanLII website could be provided in a safe and secure manner, noting that the facility at which he was held was 'the largest, most technologically advanced remand facility in Canada';[80]

• That there was no submission that technology prevented the sort of limited internet access occurring.[81]

123 Following the decision being reserved in this case, the defendant provided 3 further overseas decisions under cover of an email of 22 August 2017: Genge v Chief Executive, Department of Corrections & Ors (Genge);[82] Jankovskis v Lithuania (Jankovskis); [83] and Kalda v Estonia (Kalda).[84]

124 Following receipt of further correspondence from Mr Rich, the parties were then given an opportunity to make further submissions by 4 pm on 5 September 2017 which was to be no more than 5 pages and solely addressed to the 3 cases.

125 On 4 September 2017, Mr Rich filed further submissions of 9 pages.

• Referred this court to various paragraphs of the decisions (which I have read);

• Sought to restate his general contention that monitoring software would take care of any security concerns which was consistent with what was found in the Canadian decision of Biever, above;

• Reiterated that he wanted access to research such issues as 'jurisdiction, venue, standing, exhaustion of remedies, proper parties ... and types of relief';

• Claimed that any supervised internet would need to remain in effect until all of his proposed applications were completed which not only included the application for special leave but also a petition of mercy under s 584 of the Crimes Act 1958 (Vic) and a case under the European Convention on Human Rights.

127 The defendant also filed further submissions highlighting that the cases provided were highly fact and context dependant in considering prisoners' rights. The defendant submitted that on the evidence before the Court, it could not be concluded that the plaintiff's rights were being limited, as alleged.

128 In the 2017 decision of Genge, Davidson J of the High Court of New Zealand considered an interlocutory application for internet access by an applicant who was serving a sentence of life imprisonment. In his substantive proceeding, the applicant alleged various breaches of statutory duty, misfeasance and arbitrary detention by the Department of Corrections which had the effect that he would not be granted parole.

129 In the meantime, he had issued intermediate judicial review proceedings alleging that the defendant had hampered his ability to prepare for the substantive proceedings in particular because of the refusal of internet access. In particular he wanted to consider international and European jurisprudence regarding arbitrary detention. He brought his application under, inter alia, the New Zealand Bill of Rights Act 1990 (NZ).

130 The application was rejected (albeit on an interim basis). In so saying, the Court had regard to the following factors:

• That there were 'disadvantages' with Mr Genge's decision not to engage a lawyer;[85]

• That there was 'no right of internet access as a matter of course';[86]

• That the Court could not 'gainsay' the security considerations which were the subject of evidence in that case;[87]

• That Mr Genge had already received a great deal of assistance and also demonstrated various personal characteristics which suggested that he was able to make his case;[88]

• That the mere 'possibility of a gap' (because Mr Genge did not know of something, or something which would flow from a line of inquiry) was insufficient at this stage;[89]

• That there was an obligation on counsel to ensure the Court was fully informed of relevant authority.[90]

131 The case of Kalda concerned an prisoner applicant who already had access to some websites in Estonia, but sought access to three further websites in order to be able to 'defend his rights in court' in the context of a number of legal disputes with the prison administration.

132 The prisoner alleged that the refusal of further access breached Article 10 of the European Convention on Human Rights which read:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[91]

133 By a majority (six to one with a strong dissent by Judge Kjølbro), the European Court of Human Rights found that there had been a violation of Article 10. Although Article 10 'cannot be interpreted as imposing a general obligation to provide access to the Internet', there was an interference with the right to receive information in the circumstances of this case since access to certain sites was already granted. [92] Further, although the interference was prescribed by law and served the aims of protection of rights and prevention of disorder and crime, the interference was not 'necessary in a democratic society'.[93]

134 The Court was therein concerned with a very different provision. Moreover, the majority appear to attach great weight to the fact that prisoners in Estonia were already granted access to the internet to certain databases of legislation and case law.[94] It was highlighted that there was no 'detailed analysis as to the security risks allegedly emerging from the access to the three additional websites'. Further, that the evidence did not demonstrate that access to three additional websites would have caused any noteworthy additional costs.[95]

135 In the case of Jankovskis, the applicant prisoner wished to undertake a second university degree and therefore wished to access a website which contained details of learning and study programmes in Lithuania. The prison authorities refused him access to the internet.

136 The European Court of Human Rights considered whether Article 10 of the European Convention on Human Rights was breached.

137 The Court cited Kalda and reiterated that Article 10 'cannot be interpreted as imposing a general obligation to provide access to the Internet'.[96]

138 However, the Court found that the restriction of access to the website constituted an interference with the right to receive information, given information relating to education was granted under Lithuanian law via the internet. Further, that although the prohibition was 'prescribed by law' it also found that the interference was not necessary in a democratic society, with the result that Article 10 was violated.

139 Again, then, the case was therefore concerned with a very different issue to that concerning this court. Further, unlike the present case, there appeared to be no positive evidence to the effect that controlled internet access could pose a security risk. Thus, the Court remarked that the authorities did not even consider a possibility of granting the applicant limited internet access 'which could have hardly posed a security risk'.[97]

140 None of the cases cited above suggest that there is a general obligation to provide access to the internet for a fair trial. Nor that 'adequate facilities' necessarily incorporate access to the internet. Rather, they suggest that these questions need to be considered in a particular context having regard to the following:

• The claimant bears the onus of demonstrating that he is being denied the right to a fair hearing by reason of the alleged conduct;[98]

• The position is the same as at common law;[99]

• The issue as to whether a trial is fair involves a factual specific analysis;

• It is not sufficient to demonstrate interference with access that it might be easier or more convenient;[100]

• The personal characteristics of the claimant are relevant;[101]

• That the extent to which the claimant already has access to materials is relevant;[102]

• Any decision to be unrepresented is taken into account;[103]

• Evidence of security considerations are considered;[104]

• That 'full or complete facilities' are unnecessary.[105]

At a glance

Court

Decision date

Before

Source

Judgment (339 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (16)