Reed v Commissioner of Corrective Services

Supreme Court of NSW|2008-01-29|Before: Fullerton J

CITATION : Reed v Commissioner of Corrective Services [2008] NSWSC 161

(1) The decisions of the delegate of the defendant of 20 August 2007 and 10 September 2007 denying the plaintiff access to all New South Wales correctional centres were not a valid exercise of the powers of the defendant under clause 105 of the Crimes (Administration of Sentences) Regulation 2001. DECISION : (2) The decisions of the delegate of the defendant and the decisions of the Assistant Commissioner (Office of the Commissioner and Human Resources) of 17 October 2007 confirming those decisions are quashed. (3) The defendant is to pay the plaintiff's costs.

CATCHWORDS : Clause 105(1)(a) of the Crimes (Administration of Sentences) Regulation - Commissioner prohibited solicitor from visiting correctional centres - Whether conduct would prejudice the good security of NSW correctional centres - Finding of deceitful conduct - Whether sufficient material for that finding

LEGISLATION CITED : Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences) Regulation

Anderson v Pavic [2005] VSCA 244 Avon Downs Pty Ltd v FACT (1949) 78 CLR 353 Barac v Mood [2006] NSWSC 738 CASES CITED : Herald Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329 Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 25 Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59

PARTIES : Isabel Reed (Plaintiff) Commissioner of Corrective Services (Defendant)

COUNSEL : PD Rosser (Plaintiff) MA Izzo (Defendant)

SOLICITORS : Nicolas Moir and Associates (Plaintiff) Crown Solicitor of New South Wales (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LIST

2007/15580 ISABEL REED v COMMISSIONER OF CORRECTIVE SERVICES

JUDGMENT HER HONOUR: Introduction 1 On 29 August 2007, Superintendent Mood, a delegate of the Commissioner of Corrective Services, purported to exercise a power pursuant to clause 105 of the Crimes (Administration of Sentences) Regulation ("the relevant Regulation") refusing the plaintiff access to any correctional centre within New South Wales until 13 August 2008, a date after which she may make an application to be considered for future access to the prison system. 2 On 17 October 2007, the Assistant Commissioner (Office of the Commissioner & Human Resources), also a delegate of the Commissioner of Corrective Services, notified the plaintiff of his agreement with Superintendent Mood's decision. 3 The plaintiff was admitted to practice in April 2005. Although she holds a current practising certificate under the Legal Profession Act 2004, she is not in practice as a solicitor or barrister. It is not clear from the evidence whether this is as a result of the delegate's decision or for other reasons. 4 The evidence relied upon in support of the plaintiff's claim for an order quashing Superintendent Mood's decision and the decision of the Assistant Commissioner (Office of the Commissioner and Human Resources) consisted of an affidavit in which she detailed the circumstances of her visit to Dillwynia Correctional Centre on 13 August 2007 which gave rise to the decisions under challenge. She also annexed the correspondence that passed between herself and the Department of Corrective Services which comprised both the impugned decisions and the reasons for those decisions, together with an explanation for what transpired at the Dillwynia Correctional Centre from her perspective with a view to persuading the delegates to reconsider the prohibition on her visiting correctional centres for a twelve month period. The plaintiff was not required to attend for cross-examination. No objection was taken to any part of her affidavit. 5 The defendant did not call any evidence but tendered a "Visitors Form", to which I will shortly refer, and an "Officer's Report Form", both pro forma documents in use within the Department. The defendant did not seek to rely on the hearsay assertions of the author of the report as evidence as to what passed between correctional officers and Mr Jones-Hope, a person in the company of the plaintiff at the time of the contentious visit to the Dillwynia Correctional Centre. The report was tendered only as evidencing the material relied upon by the decision-makers or material to which they had access in reaching their decision.

The facts established by evidence tendered in the proceedings 6 In 2007, the plaintiff had carriage of a case involving Catherine Friend, an inmate at the Dillwynia Correctional Centre. As at August 2007, Ms Friend was an applicant for special leave to appeal to the High Court against her conviction with respect to various criminal charges. 7 At some stage in August 2007, the plaintiff arranged to visit Ms Friend at Dillwynia Correctional Centre for the purpose of taking further instructions and ensuring that she had seen and understood the entire contents of the application book. 8 On 13 August 2007, the plaintiff attended the correctional centre in company with Ms Friend's brother, Mr Phillip Jones-Hope. The plaintiff stated in her affidavit that although she well knew Mr Jones-Hope was a relative of her client, and that he had visited his sister in prison in that capacity in the past, on 13 August 2007 she asked him to accompany her to the correctional centre in his capacity as a law student and as a person who had an intimate knowledge of Ms Friend's legal affairs in general and the pending application to the High Court in particular. She said that she made it clear to him that it was in that capacity alone that he was invited to accompany her. 9 In the letter to the Commissioner annexed to her affidavit, she said that upon arriving at the correctional centre she did not recall introducing Mr Jones-Hope to the correctional staff at reception either as 'a' clerk or 'her' law clerk. She said she definitely did not introduce him as a member of the firm she worked for but she did state that he was a law student and that he was assisting her. She also said that he showed his student card to the officer at the gate. She acknowledged that she did not inform correctional staff at reception that Mr Jones-Hope was also related to Ms Field but maintained that which was objectively true, namely that Mr Jones-Hope was in fact a law student who was assisting her in the preparation of her client's case. 10 She addressed what occurred at reception to the correctional centre in this detail because in Superintendent Mood's letter advising her that he had decided to prohibit her entry to any correctional centre for twelve months, he stated that he had been advised that when she attended at the correctional centre on 13 August 2007 she introduced Mr Jones-Hope as her law clerk. The Commissioner went on to say that it was unacceptable for the friends and families of inmates to be introduced as 'legal clerks' and ultimately, that in his view, her failure to disclose Mr Jones-Hope's filial relationship to the inmate was an attempt to deliberately deceive correctional authorities. 11 The Superintendent regarded the plaintiff's explanation set out in par [9] above as disingenuous. In his response, dated 10 September 2007, to her letter seeking to persuade him not to impose the prohibition he said: "It seems an unescapable conclusion that you have taken advantage of a loophole in the definition, or lack thereof, in what is considered to be a "Law Clerk". I am of the opinion that you are only relying on semantics to prove your point. The Visitors Form has clearly been filled out as legal. Historically a Law Clerk has been considered to be a law student. Whatever your interpretation, it is quite clear the Mr Jones-Hope was not introduced as the inmate's brother. The firm you were representing disavow any knowledge of Mr Jones-Hope. The fact that you introduced Mr Jones-Hope as a student-at-law would automatically insinuate that he was, for want of a better word, a "Law Clerk". In the final analysis, you introduced Mr Jones-Hope into the correctional centre in a legal capacity. When you introduced Mr Jones-Hope you were aware that he was the brother of the inmate. You are a practicing solicitor holding a current practicing licence. One normally associates those in your profession as having an above average level of intelligence; I cannot accept that there was not an element of deception in your actions on the 13 August 2007. This case and others brings into question the use of "Law Clerks". The Department has commenced negotiations with the NSW legal fraternity and hopefully the opportunity to manipulate the courtesies extended to the NSW legal fraternity will be eliminated in the near future." 12 It would seem that after receiving the plaintiff's letter and notwithstanding that he accepted that the plaintiff did not introduce Mr Jones-Hope as 'a' clerk or 'her' clerk but as a law student, the Superintendent was nevertheless of the view that by introducing Mr Jones-Hope in a 'legal capacity' there was an element of deception on the plaintiff's part. He appears to have come to that view either because of attributing to her reliance on the so-called semantic distinction between 'a law clerk' and 'a law student' and that introducing him in the latter category would lead one to believe he was in the former category and/or because she was nevertheless obliged to inform corrections staff that he was also the inmate's brother. 13 Quite apart from whether introducing Mr Jones-Hope as a law student was capable on any fair or reasoned analysis of being seen as deliberately deceptive on the plaintiff's part (a matter I will turn to later), the evidence does not make it clear whether the plaintiff was at any time obliged to introduce Mr Jones-Hope in any capacity at all other than perhaps a law student (since this was objectively true) or whether the fact that Mr Jones-Hope was a law student and also the inmate's brother was a matter for him to reveal when completing the Visitors Form. In any event, the plaintiff gave evidence that not only did she give Mr Jones-Hope no guidance as to how he should fill in the Visitors Form, she did not see what he wrote on the form before it was dealt with by correctional officers in the course of processing them both as visitors to the Centre. In her affidavit the plaintiff said: "…I entered my details on the green visitor form and then passed the form to Mr Jones-Hope for him to fill in his details. I did not see what he wrote. I noticed he had what appeared to be a student card in his hand." 14 On the Visitors Form in evidence before me, the plaintiff identified herself by name and supplied the address of the firm in which she was an employed solicitor. In the field "Relationship to Inmate", she wrote "Legal". She said in her affidavit that she completed her details first before providing the form to Mr Jones-Hope for him to complete. The form bears his name as the second numbered visitor and an address different from the address supplied by the plaintiff. It also has "Legal" written in the field "Relationship to Inmate" in the same handwriting as Mr Jones-Hope's name and address. Since the Visitors Form was before the Commissioner I proceed on the basis that this must also have been obvious to him. 15 The evidence does not disclose what is meant by the field "Relationship to Inmate" or, more accurately, what a visitor in Mr Jones-Hope's position might understand was denoted by that heading. That is, is the visitor to specify their relationship to the inmate for the purposes of securing permission to enter the correctional centre on the particular occasion to which the visit refers or to nominate their relationship to the inmate in the filial or social sense? And where, as is the case here, the visitor apparently believed he had a dual capacity upon which to seek entry, is he obliged to write the principal relationship to the inmate for the purposes of the visit or is he obliged to make plain that he is also related to the inmate? 16 The defendant has called no evidence either generally as to the practice at those New South Wales correctional centres that utilise the Visitors Form (whether at the Commissioner's direction or otherwise) or specifically from those officers who processed the plaintiff and Mr Jones-Hope into the Dillwynia Correctional Centre on 13 August 2007 such as might assist in resolving this ambiguity 17 There is also provision on the form for a visitor's date of birth. It was common ground in the proceedings that this field was not filled in by either the plaintiff or Mr Jones-Hope. It was also common ground that the number written against both names in this field was a Visitors Identification Number (a unique number each visitor is given when first visiting a prison and retained thereafter on the Department of Corrective Services computer system) and that this was put on the form by an officer in the employ of the Department. There was no evidence as to when this was done although it appears likely that it was not done until after the plaintiff and Mr Jones-Hope were admitted into the complex. This was revealed to the Commissioner in the Officer Report Form. The fact that Mr Jones-Hope was recorded on the computer system as a relative, and that this was noted by someone when the Visitors Form was ultimately processed, is supportive, if not demonstrative, of the proposition that as at 13 August 2007, Mr Jones-Hope was a person known to the correctional system as a relative of Ms Friend independently of the fact that he was also a law student assisting the plaintiff in the preparation of his sister's application in the High Court. 18 Upon entering the visiting room within the correctional centre, Ms Friend, Mr Jones-Hope and the plaintiff were observed by correctional staff to embrace each other. This aroused the curiosity of correctional staff who then entered Mr Jones-Hope's details into the computer system. It was only then it seems that it became apparent that Mr Jones-Hope was in fact the inmate's brother and that he had previously visited her in that capacity. 19 According to the plaintiff's affidavit, some short time later and after the conference had commenced, Mr Jones-Hope was taken aside by correctional staff and spoken to. On his return to the visiting room, the plaintiff said "Is everything okay?" to which Mr Jones-Hope replied with words to the effect of: "…they have just noticed on the system that I am a family member but it's okay though." 20 The plaintiff was not spoken to by correctional staff in relation to Mr Jones-Hope at all. The plaintiff's conference with Ms Friend continued without further interruption by correctional staff. At the end of the conference the plaintiff and Mr Jones-Hope left the correctional centre without being spoken to further.

The delegate's decision 21 In a letter to the plaintiff dated 29 August 2007, Superintendent Mood said he was satisfied that the plaintiff's actions in attending the correctional centre on 13 August 2007 were prejudicial to the good order and security of correctional centres contrary to clause 105 of the Crimes (Administration of Sentences) Regulation. 22 His reasons for coming to that conclusion were articulated as follows: "I have formed the opinion that your actions have been unprofessional and an abuse of the courtesies extended to the NSW legal fraternity. My opinion was formed by your failure to disclose to correctional authorities Mr Jones-Hope's' relationship to inmate Friend . It is unacceptable for the friends and families of inmates to be introduced into correctional centres by legal practitioners as 'Legal Clerks'. I have considered Mr Jones-Hope explanation that he is a mature age law student … Notwithstanding the question of professional standards, I am of the opinion that you have deliberately attempted to mislead correctional authorities . I have formed the opinion that your actions are prejudicial to the good order and security of correctional centres." (emphasis added) 23 The interim order was phrased in the following terms: "Pursuant to my delegation under clause 105 of the Crimes (Administration of Sentences) Regulation 2001, I am making an interim order that you be denied access to all NSW correctional centres. However, I am giving you 14 days in which to make written submission to me, showing cause why the prohibition should not continue to be enforced. If I receive no response from you within the prescribed period, I will fix a minimum period of time not before which, revocation of the order will be considered and you will be notified in writing of my decision." 24 On 3 September 2007, the plaintiff wrote to the delegate and sought to explain and apologise for her actions. The following passage is an extract from that letter: "I realise that I have misled correctional authorities by not declaring Mr Jones-Hope as a family member and I apologise unreservedly. At the time my intention was to act in the best interests of my client and ensure that any issues were clarified before her application for special leave to appeal to the High Court on 31 August. My intention was not to deliberately mislead the correctional authorities. At the time of this incident I was not aware of the implications and consequences of my actions and I am extremely regretful." 25 By letter dated 10 September 2007, the Superintendent effectively rejected the plaintiff's explanation reaffirming his view that her conduct was intentionally deceptive. 26 On 24 September 2007, the plaintiff requested a review of Superintendent Mood's decision. In addition to the matters already outlined in her initial explanation, she offered the following: "I did not deliberately act deceptively. I was admitted in April 2005 and remain relatively inexperienced. I have had the benefit since this incident of very stern counselling from senior members of the profession." 27 On 17 October 2007, the Assistant Commissioner (Office of the Commissioner & Human Resources) reviewed Superintendent Mood's decision and concluded that the plaintiff's actions did constitute an act of deception such as to warrant her exclusion from correctional centres for a twelve-month period.

The summons 28 The plaintiff sought a declaration that the purported decisions of the Commissioner's delegate of 29 August 2007 and 10 September 2007 denying her access to all NSW correctional centres was not a valid exercise of the defendant's powers under clause 105 of the Crimes (Administration of Sentences) Regulation, and an order quashing the decision of the defendant's delegate and the decision of the Assistant Commissioner (Office of the Commissioner and Human Resources) of 17 October 2007 confirming that decision. 29 To assist in narrowing the issues, Mr Izzo, counsel for the defendant, made it clear in written submissions and during the course of argument, that the decisions were to be defended solely by reference to the power conferred by subclause 105(1)(a). Accordingly, it is unnecessary for me to consider the operation of subclause 105(1)(b). For completeness, however, I set out clause 105(1) in full: "(1) The Commissioner may direct that a particular person be prevented from entering any correctional centre, or from visiting an inmate at any such centre, if of the opinion: (a) that such a visit would prejudice the good order and security of any such correctional centre, or (b) that the visitor has, during the current visit or during a previous visit, acted in a threatening, offensive, indecent, obscene, abusive or improper manner." 30 The Commissioner of Corrective Services exercises his functions under s 232(2) of the Crimes (Administration of Sentences) Act 1999. That section provides as follows: "(1) The Commissioner: (a) has the care, direction, control and management of all correctional complexes, correctional centres and periodic detention centres, and (a1) has the care, control and management of all offenders who are held in custody in accordance with Part 2, 3 or 4, and (b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law. (2) In the exercise of the functions referred to in subsection (1) (a), (a1) and (b), the Commissioner is subject to the direction and control of the Minister. (3) The Commissioner may delegate to any person any of the Commissioner's functions, other than this power of delegation. (4) Sections 10 (2), 11 (3), 12 and 17 (4) do not limit the power of the Commissioner to delegate functions under those sections."

31 It was not in dispute that the decisions to exclude the plaintiff from all correctional centres were made by relevant officers acting as delegates of the Commissioner under the Crimes (Administration of Sentences) Act and that the decisions were made in purported exercise of the Commissioner's managerial responsibilities, as reflected in s 232(1)(a) of that Act, for the good order and security of the correctional centres.

32 In discussion with the parties, it was also the agreed position that Superintendent Mood's decision, and the decision of the Assistant Commissioner confirming it, were based upon a finding that the plaintiff had acted deceitfully in her dealings with corrections staff by both misleading them into thinking that Mr Jones-Hope was a law clerk and by deliberately failing to inform them that Mr Jones-Hope was also the inmate's sister.

33 In light of the agreement between the parties as to the approach that should be taken to the review of the delegate's decision, the grounds upon which the plaintiff ultimately sought relief were twofold.

34 The first was a challenge to jurisdiction, it being submitted that irrespective of the adverse view the delegate took of the plaintiff's conduct on 13 August 2007, he did not in fact form the opinion required by subclause 105(1)(a) such as to enliven the power to exclude her from correctional centres in the future. In the alternative, and to the extent that the delegate did form such an opinion, it was submitted that the decision was without a factual basis either because the foundational facts, or inferences from those facts, did not support it or because it was founded on irrelevant material or a combination of both.

35 The plaintiff submitted that in the absence of an express finding that any future visit by the plaintiff would prejudice the good order and security of NSW correctional centres, the delegate's findings as to her past conduct did not enliven the power in subclause 105(1)(a) to refuse her entry to correctional centres in the future. It was submitted that his finding that her actions in the course of a past visit "are prejudicial to the good order and security of correctional centres" did not necessarily mean that a future visit would have that effect and, since that is what is required before the power under subclause 105(1)(a) is enlivened, the exercise of the power was invalid. The plaintiff submitted that the way the decision was expressed had the hallmarks of being made as a punishment for past misconduct and not in discharge of the statutory power to prohibit entry in the future to ensure against prejudice to the good order and security of correctional centres. I was referred to Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74 at 98 and Barac v Mood [2006] NSWSC 738 where, in purported reliance on the same clause, the Commissioner's opinion was expressed prospectively. In both cases a visitor acted in breach of the regulations and on repeated occasions. The relevant decision-maker made express reference to these facts in concluding that the risk of the visitor committing further breaches was such that the future good order and security of correctional centres would be prejudiced. There was no course of conduct to which the Commissioner could refer in the plaintiff's case. That is not, of course, a prerequisite to the exercise of the power under clause 105, but the fact that he was assessing the plaintiff's conduct on an isolated occasion may explain why the Superintendent expressed himself as he did. 36 By way of a preliminary submission to meeting the challenge to jurisdiction, the defendant sought to emphasise that the courts have routinely approached review of the discharge of the Commissioner's managerial responsibilities under clause 105 (or its predecessors under the Prisons Act) with considerable latitude. In Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86, McInerney J stated that: "The Courts in Australia have tended to interpret prison legislation so as to give full scope to the power of correctional authorities to carry out the tasks of prison administration and management without undue influence from the courts." 37 I was taken to a series of cases where his Honour's approach is mandated, however each case was directly or indirectly concerned with managerial or administrative decisions relating to individual prisoners or classes of prisoners: see Herald Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329 at [95] and Anderson v Pavic [2005] VSCA 244 at [32]. That is not the case here. In fact there is nothing in the cases to which I have been referred that is even vaguely analogous to the circumstances that present here where a relatively junior legal practitioner has been prohibited from providing essential legal services to clients because of the way in which her actions at the point of admission to a particular correctional centre and on a single occasion have been interpreted.

38 In Nicopoulos v Commissioner for Corrective Services at [112] Smart AJ, when referring to clause 91 of the Crimes (Administration of Sentences) Regulation which gives a legal practitioner a right of entry to a correctional centre separate and apart from other visitors, observed that: "The Regulation emphasises the importance of legal visits and makes particular provision for them. The exercise by the Commissioner of his powers in clause 105 has important consequences not only for the reputation and livelihood of the solicitor but also for the interests of the client inmate. The quality and attributes of the acts of the Commissioner under cl 105 are particularly serious for the solicitor and the inmate client who will probably have to seek other legal representation if his solicitor is prevented from visiting him. If this happened the inmate client may well incur additional expense which he or she may not be able to afford. Court time could be wasted because of the need to grant adjournments." 39 In that case, his Honour's remarks were strictly obiter since he was satisfied that the solicitor's misconduct on multiple occasions, much of which was detailed in confidential affidavits, was such as to justify the Commissioner's decision to exclude him from correctional centres under clause 105. That said, his Honour's observations are nonetheless apposite. While I acknowledge that it is necessary that I give full scope to the Commissioner's managerial powers under clause 105, it remains the fact that the exercise of power in this case must be viewed as having serious consequences for the plaintiff in her professional life. 40 Mr Izzo submitted that the delegate's reasons in the present case should be given a beneficial construction and, that when read in context, it is clear that he considered that the plaintiff's deliberate failure to inform corrections officers of the filial relationship of Mr Jones-Hope and the inmate undermined the honesty or candour he was entitled to expect from a member of the legal profession. I am then asked to infer that he must have concluded that for this reason she might conduct herself deceitfully in her dealings with corrections staff in the future that this would prejudice the good order and security of correctional centres thus enlivening the power contained in subclause 105(1)(a). 41 Since I am only considering at this time whether the decision was within power and not whether the decision was a valid exercise of the power, it is not open to me to inquire whether the Commissioner's reasoning is defensible. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, a majority of the High Court emphasised that on judicial review (at 272): "'…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed…" 42 In the result, and while the Commissioner did not express himself precisely in the terms of subclause 105(1)(a) of the Regulations, and did not postulate expressly how the plaintiff might misconduct herself on a hypothetical future visit such as to prejudice the good order and security of the correctional centres, I am satisfied that he did form the opinion that her conduct on a future occasion may be deceitful such as to enliven the jurisdiction to prohibit her from entering any correctional centre for the nominated period. Accordingly, the challenge to jurisdiction must fail.

Was there a proper basis for the Commissioner forming the opinion that the plaintiff's conduct in introducing Mr Jones-Hope into the Dillwynia Correctional Centre would prejudice the good order and security of the correctional centres? 43 In reviewing the delegates' decision and the reasoning underpinning it it is not open to me to substitute my view of the facts for that of the decision-maker. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59, the Chief Justice referred with approval to the formulation of what is comprehended by judicial review in Avon Downs Pty Ltd v FACT (1949) 78 CLR 353 at 360: "But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition."

44 Consistent with a principled approach to judicial review, I am however entitled to make an assessment as to whether there was sufficient material for the delegates to reach the conclusion they did. If there is an absence of evidence to support the findings of fact underpinning their decision to exclude the plaintiff from correctional centres then the decision cannot be sustained. Their decisions might also be unsustainable if they are shown to have adopted a flawed approach to an evaluation of the material facts or have failed to have regard to all the material facts. In addition, if the inferences drawn from the primary facts were not reasonably open, their decision to exclude her might not be sustainable. 45 The plaintiff submitted that by either of these routes, or perhaps by all in combination, error is demonstrated entitling her the relief sought in the Summons. The primary challenge was mounted on the basis that there was an absence of evidence to support the finding that the plaintiff acted deceitfully in her dealings with corrections staff either by misleading them into thinking that Mr Jones-Hope was a law clerk or by deliberately failing to inform them that Mr Jones-Hope was also the inmate's brother. I propose to consider that submission first since if it is made out I do not need to consider the alternate or additional bases upon which the plaintiff seeks relief. 46 Having reviewed the evidence in its entirety, and the inferences reasonably able to be drawn from that evidence, I am not satisfied that the finding that the plaintiff was deliberately deceitful was open to Superintendent Mood. Since the Assistant Commissioner's decision depended on the correctness of the decision of the Superintendent as the primary decision maker, his decision confirming the correctness of that decision is also flawed. 47 I am satisfied that there was no evidence to which the Superintendent referred and no evidence otherwise available to him to found an inference that the plaintiff intended to have corrections staff believe Mr Jones-Hope was a law clerk (and presumably entitled to enter the prison in a legal capacity as a result). This must be so in circumstances where she in fact introduced him as a law student, where he showed identification confirming that fact and where he was admitted into the correctional centre on that basis. The Commissioner called no evidence as to what the admissions staff thought or believed Mr Jones-Hope's professional status to be, much less that they were misled in any way by what the plaintiff said in introducing him. In addition, it is patent that the Superintendent has failed altogether to take into account as a most material consideration that the staff apparently accepted Mr Jones-Hope's self-nomination as having a legal relationship with the inmate when they processed the Visitors Form completed by him, in circumstances where there was no evidence that the plaintiff saw what he had written, much less any evidence that she encouraged him to nominate himself in any particular way when completing the form. 48 Furthermore, the fact that the plaintiff well knew that Mr Jones-Hope was her client's brother (and that she knew that he had visited his sister as a family member in the past) does not, in my view, ground an inference much less evidence an intention on her part to deceive corrections staff when she introduced him as a law student when this was not only true but was, so far as she was concerned, the capacity in which he was accompanying her on that occasion. In the absence of any evidence that the plaintiff was obliged to advise corrections staff that he was also related to her client (a matter which on the evidence she was entitled to believe they were already aware or would discover on interrogation of the computer system), I am not satisfied there was any evidence to support the Commissioner's finding that she actively withheld that information with the intention of deceiving the staff into allowing Mr Jones-Hope to accompany her when there was no evidence that as a family member he would have been excluded. In that connection, I note, from my own researches, that clause 92 of the Crimes (Administration of Sentences) Regulation, which applies to both legal and other visitors, provides that an authorised officer may require a visitor to produce evidence, satisfactory to the authorised officer, of the person's name and address, and to state the purpose of the visit. I also note that a visitor's failure to produce this information, or the provision of information that is false or misleading, is an offence punishable by 10 penalty points. While no form is prescribed for the provision of this information the Visitors Form in evidence before me seeks this same information save only that it would seem that the purpose of the visit has been incorporated in the field "Relationship to Inmate". What is important to emphasise is that the obligation to provide the information is imposed on the individual visitor. 49 For these reasons, I am satisfied that the decisions of the Commissioner's delegates of 29 August and 10 September 2007 were not a valid exercise of the Commissioner's powers under subclause 105(1)(a) of the Crimes (Administration of Sentences) Regulations.

Orders 50 The orders I make are as follows: (1) The decisions of the delegate of the defendant of 20 August 2007 and 10 September 2007 denying the plaintiff access to all New South Wales correctional centres were not a valid exercise of the powers of the defendant under clause 105 of the Crimes (Administration of Sentences) Regulation 2001. (2) The decisions of the delegate of the defendant and the decisions of the Assistant Commissioner (Office of the Commissioner and Human Resources) of 17 October 2007 confirming those decisions are quashed. (3) The defendant is to pay the plaintiff's costs.

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Judgment (24 paragraphs)

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Cases Cited (9)

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