Davies v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0188

BRENDAN DAVIES

THE QUEEN

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JUDGES:	KAYE, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 November 2018
DATE OF JUDGMENT:	26 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 315
JUDGMENT APPEALED FROM:	DPP v Davies [2017] VCC 1101 (Judge Mullaly)

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CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Interlocutory application – Application to County Court and Victorian Government Reporting Service for audio and video recordings of trial proceedings – Application for audio recordings granted – Application to Corrections Victoria for access to resources and facilities – No orders made in respect of application to Corrections Victoria.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	In Person
For the Respondent:	Madam Prosecutor	Solicitor for the Victorian Director of Public Prosecutions
For Corrections Victoria	Ms D Coombes	Victorian Government Solicitor

KAYE JA
McLEISH JA
T FORREST JA:

The applicant was charged on indictment with five charges of arson. Before empanelment of the jury, there was lengthy pre-trial argument, and the trial judge was required to make a number of rulings. Ultimately, the jury was empanelled on 15 August 2016. On 25 November 2016, the jury convicted the applicant on all five charges. After a plea, the applicant was sentenced to a total term of fourteen years and six months’ imprisonment, with a non-parole period of twelve years and three months. The applicant seeks leave to appeal against the conviction and sentence.

The applicant has made three preliminary applications, that are necessary to resolve before we hear argument on the substantive applications for leave to appeal conviction and sentence, namely:

(1)An application under s 317 of the Criminal Procedure Act 2009 requiring the prosecution to produce a document described as a handwritten diary or notebook containing ‘dream log’ entries.
(2)An application directed to the County Court and the Victorian Government Reporting Service (‘VGRS’) seeking an order, effectively, that he be provided with the audio recordings and video recordings of the pre-trial proceedings and the trial.
(3)An application directed to Corrections Victoria for access to a number of resources and facilities that the applicant contends are necessary to enable him to prosecute his appeal.

The first application, under s 317 of the Criminal Procedure Act, has been resolved, as the Director has provided a fresh copy of the ‘dream log’ document to the applicant.

Background

In order to determine the remaining two applications, it is not necessary to set out the background to the alleged offending in any detail.

The indictment alleged that the applicant committed the offences on five separate dates, at five separate locations, between 20 January 2011 and 3 February 2011. On those dates, it was alleged that the applicant had intentionally and without lawful excuse damaged by fire the Mt Waverley Police Station, the St Mary’s Catholic Church Presbytery at St Kilda East, St Oswald’s Anglican Church at Ashburton, the premises of Tanners Swiss Patisserie at Syndal, and the premises of Croxley Childcare Centre at Syndal. The applicant denied involvement in any of the fires.

The prosecution case was essentially circumstantial. In essence, it was based on seven separate strands of evidence, namely: first, fixed CCTV camera footages outside the applicant’s home depicting the applicant leaving and returning from his address on all five occasions on which the fires occurred; secondly, tracking data in respect of the applicant’s vehicle relative to the timing and location of each fire; thirdly, evidence of members of the State Surveillance Unit and their observations of the applicant in the vicinity of three of the fires; fourthly, evidence in relation to DNA detected on a bottle that was located in the vicinity of the fire that was the subject of charge 3; fifthly, the generally similar way in which each fire was started; sixthly, evidence that the applicant had a motive to exact revenge on society, that evidence consisting of three YouTube videos, which, the prosecution alleged, were compiled by the applicant; and, seventhly, coincidence reasoning in respect of each of the five fires.

The application for leave to appeal against conviction is based on eleven grounds. The first ground alleges an accumulation of errors in the conduct of the trial. Grounds 2 and 3 allege the erroneous admission of evidence. Ground 4 alleges that the convictions were unsafe and unsatisfactory. Grounds 5, 6, 7 and 10 relate to directions given by the judge to the jury. Grounds 8, 9 and 11 allege irregularities in the conduct of the trial. In particular, Ground 8 alleges that the trial miscarried due to the applicant being unrepresented, unwell and affected by autism and exhaustion. Ground 9 alleges that the trial miscarried because it was likely to have been apparent to the jury that the applicant was in custody. Ground 11 alleges that the trial miscarried because the judge was biased against the applicant.

The application for leave to appeal against sentence is based on two grounds, namely, first, that the sentence was manifestly excessive, and, secondly, that the judge erred in calculating the amount of pre-sentence detention.

Application for audio and video recordings of trial

In his application, the applicant has sought to be provided with the whole of the audio and video recordings of the pre-trial and trial proceedings. In particular, he has nominated some 94 different aspects of those proceedings in respect of which he desires to have access to the audio recording, the video recording, or both.

In his written case in support of that application, the applicant, in effect, has contended that it is necessary for him to have access to the audio and video recordings for the following reasons:

(1)The applicant contends that the transcript of the pre-trial and the trial proceeding is inaccurate and incomplete.
(2)It is contended that it is necessary to have access to the recordings in order to be able to hear the tone, tenor and timing of the judge’s comments, for the purpose of determining ground 11 of the conviction application, which alleges that the trial judge was biased.
(3)It is submitted that access to the video recording will demonstrate that the applicant was suffering from ill health during particular stages of the trial.
(4)It is submitted that there are matters which do not appear in the transcript and are in dispute between the parties, and which will need to be resolved by a review of the audio and video recordings, namely:
(i)‘Witness Myers saying the SSU-Briefing photo was a “custody” photo (thus revealing Mr Davies had been in custody prior)’.
(ii)‘AFP witness Fletcher said “Davies was in custody en route to house”, but this was not in the transcript either …’.

(5)It is submitted that access to the video is necessary to demonstrate the demeanour of witnesses.
(6)Access to the video of the plea, it is contended, will show that particular documents were not handed to the judge on the plea hearing as claimed and were not returned to the defence.

In support of the application, the applicant has submitted that this Court has, on previous occasions, had access to video and audio recordings of the trial in the lower court. In particular, the applicant referred to passages in the following decisions: Slaveski v The Queen;[1] DPP v BB & QN;[2] Tognolini v The Queen;[3] R v Dupas [No 3][4] and Dillon (a pseudonym) v The Queen.[5]
[1](2012) 40 VR 1 (‘Slaveski’).
[2](2010) 29 VR 110 (‘BB & QN’).
[3](2011) 216 A Crim R 188 (‘Tognolini’).
[4](2009) 28 VR 380 (‘Dupas’).
[5][2014] VSCA 164 (‘Dillon’).

The applicant contended that access to the recordings is necessary to ensure that there is an ‘equality of arms’ between the parties, so that the applicant would be accorded a fair hearing of the substantive applications that are before the Court. He further contended that there is no legal principle which prevents an applicant from obtaining the recording of the evidence given at the trial. Further, for the reasons already outlined, it is contended that access to the recordings is necessary for purposes that are relevant to the determination of the applications for leave to appeal against conviction and sentence.

In response, counsel for the respondent has submitted that the effect of s 130 of the Evidence (Miscellaneous Provisions) Act 1958 is that the recording and transcription of evidence is a matter for the trial judge in the proceeding. In the present case, the trial judge ruled, on a number of occasions, that the parties were not entitled to access to the audio and video recordings of the proceedings. Counsel submitted that the applicant has not demonstrated any relevant purpose that requires a departure from the normal practice that applications for leave to appeal against conviction and sentence are heard on the basis of the transcript alone.

Ordinarily, applications for leave to appeal against conviction, and applications for leave to appeal against sentence, are heard and determined on the basis of the transcript of the trial and the proceedings below, and the exhibits that were tendered in evidence. On some occasions, the Court does have access to the audio or visual recordings of particular parts or aspects of the hearing below. When that occurs, the access is for a limited purpose, and is confined to specific parts of the proceeding. Access to the audio, or video, recording of the proceeding is quite exceptional, and it only occurs in a very small minority of appeals before this Court.

On analysis, the authorities, relied on by the applicant, do not support the broader proposition that access to the audio or video recording of the trial proceeding is, or should be, by right.

In Slaveski, the applicant had been involved as the plaintiff in a very lengthy civil trial in the trial division. After the conclusion of the trial, and delivery of judgment, he was charged with contempt arising from his conduct on a particular day in the trial. The judge, who determined the contempt proceeding, had access to the transcript of the civil proceeding, and the Court-based recordings of it. The applicant was found guilty of contempt on the basis that he had been abusive and disruptive to the trial judge, that he had intended to allege impropriety, partiality and corruption against the trial judge, and that he had intended to threaten the judge. Having sought leave to appeal, his application was abandoned. Subsequently, he was refused leave to reinstate the application. In determining that application, the Court viewed the video and heard the audio recording of the events in the court in the civil proceeding on the day in question, in order to view the applicant’s behaviour that was the basis of the finding of contempt of court. Clearly, in a case in which the contempt is alleged to have been constituted by the actions and verbal conduct of an applicant in the courtroom, it might be relevant for this Court to hear and view the video itself.

In Director of Public Prosecutions v BB & QN, this Court was concerned with an interlocutory appeal by the Director of Public Prosecutions from the decision of a trial judge refusing to admit evidence of the authenticated transcript of evidence given by the complainant at the committal proceeding. The complainant had passed away after the committal proceeding. She had given evidence at the committal proceeding through an interpreter. The respondent had objected to the admissibility of the transcript of the committal proceeding on the basis (inter alia) that there was a lack of clarity as to the responses by the complainant in cross-examination, because of difficulties raised by the interpreter. The Court allowed the appeal by the Director, and ruled that the complainant’s evidence was admissible. It was in that context that the Court noted that the audio recording of the complainant’s cross-examination would be available at the trial and in the possession of the parties, so that any errors in the translation of the complainant’s evidence could be checked and corrected.[6]
[6]DPP v BB (2010) 29 VR 110, 118 [26].

In Tognolini, the trial judge had, at one stage in his charge, erroneously referred to the balance of probabilities in the course of his directions to the jury. The Court of Appeal held that, in the overall context of the judge’s charge, it was clear that the judge’s reference to the balance of probabilities would have been perceived by the jury to be an unintentional ‘slip’. It was in order to assess that matter that the Court viewed the video recording of the relevant part of the charge, which reinforced the Court’s impression that the error, made by the judge, could not have affected the jury’s determination of the charge against the applicant.[7]
[7]Tognilini (2011) 216 A Crim R 188, 191 [12] (Nettle JA); 211 [70] (Judd AJA).

In Dupas, trial counsel complained that a direction given by the judge to the jury, concerning the dangers of relying on the evidence of a prison informer, had not been delivered by the judge with sufficient ‘authority’. The trial judge (unsurprisingly) dismissed the objection made by counsel, observing that it was fortunate that the proceedings were videotaped. Nettle JA noted, that having viewed the video tape himself, he agreed that there was ‘nothing in the point’.[8]
[8]Dupas (2009) 28 VR 380, 392 [39].

In Dillon, the Court was concerned with an interlocutory appeal from a decision of a judge who refused to disqualify himself for apprehended bias. In essence, the bias was alleged to have comprised a short comment made by the judge in the course of pre-trial argument. The Court, having viewed the segment of the audio visual recording that was relevant, considered that the judge’s remark was no more than an attempt by his Honour at humour.[9]
[9]Dillon [2014] VSCA 164 [5] (Whelan JA), [24] (Priest JA).

It can be seen that each of the authorities, relied on by the applicant, are exceptional. In Slaveski, the relevant contempt comprised, in part, the applicant’s conduct in Court, so that it was relevant to view the video and audio of his behaviour. In each of the other matters, the Court was concerned with only limited and specific aspects of the proceeding below. None of those cases assist the applicant’s claim that an appellant should be entitled, as of right, to the video and audio recordings of the whole of the proceedings, both at pre-trial and trial, in this case.

As we have noted, counsel for the respondent has submitted that the recording and transcription of evidence is a matter for the trial judge, so that the issue of the release of the recording of the evidence is, primarily, also a matter for decision of that judge. That proposition is correct, but it does not determine the outcome of the application before us. Section 130 of the Evidence (Miscellaneous Provisions) Act 1958 provides for the judge to direct whether, and in what manner, evidence at trial is to be transcribed and recorded. The ordinary rule of practice is that it is the trial judge who determines to whom the transcript or recording of the proceeding might be released. As we understand it, at the conclusion of the trial, the applicant applied to VGRS for release to him of the audio and video recording of the trial proceeding. That request was referred to the trial judge, who declined to grant consent for the release of the recording of the evidence as requested. That decision of the judge was entirely a matter for his Honour. However, it is not a decision which is relevant to, or impacts on, our determination of the application that is now made to this Court. Rather, as the authorities which we have discussed make plain, the issue is whether the applicant has demonstrated that there was a particular relevant purpose for which release of the recording of the evidence is necessary, in order to enable the applicant to properly and efficiently present his arguments in support of the substantive applications for leave to appeal against conviction and sentence. Nothing in s 130(2) of the Evidence (Miscellaneous Provisions) Act deprives this Court of its power to order provision of transcript recordings of proceedings from which an appeal is brought.

In the present case, we are persuaded that, in the particular and exceptional circumstances of the case, it would be appropriate to make an order directing that the audio (but not the video) recording of the pre-trial and trial proceedings be made available to the applicant, for the purposes of enabling him to prepare and present his argument in support of ground 11 of the application for leave to appeal against conviction (which alleges that the trial judge was biased).

In support of ground 11, the applicant will rely (in addition to the written case in support of the application for leave to appeal) on a written case dated 30 January 2017, and a supplementary written case dated 15 February 2017, on which he had relied, after the verdicts but before sentence, in support of an application that the trial judge should recuse himself. The first document is 187 pages in length and, comprises 242 paragraphs. In it, and in the supplementary document, the applicant set out, by reference to specific dates and transcript references, the parts of the pre-trial and trial proceedings in which, he contended, the judge by his conduct acted in a manner that was biased. In a number of instances, the applicant contended, in that document, that the tone and volume of the judge’s voice, and the manner in which the judge interrupted him in the course of a submission, supported the proposition that the judge was biased.

Ordinarily, issues of bias ― whether actual or apparent ― are determined primarily by reference to what a particular judge has said, rather than by reference to the manner in which the judge has spoken or demeaned himself or herself in court. In particular, in determining such issues, an appellate court makes allowances for matters such as differences in mannerism, speaking tone, and temperament of individual judges. Allowance is also made for the fact that a judge may raise his or her voice out of a feeling of exasperation or momentary irritation. Nevertheless, it is accepted that, in determining a ground of appeal based on the actual or apparent bias of a trial judge, factors such as the tone and volume of the judge’s voice and the manner in which counsel or a party is interrupted while addressing the Bench, may be relevant to the determination of a ground of appeal alleging bias.

Accordingly, in the circumstances of this case, we consider that it is appropriate that the applicant have access to the audio recording of the pre-trial and trial proceedings, and we will direct the VGRS to provide and release those audio recordings to the applicant and the respondent. We expect that, by having access to the recording, the applicant will be able to nominate, by reference to date and transcript page, the particular parts of the proceedings in which, he contends, the judge spoke in a manner which was relevant to the issue of bias raised in ground 11 of the application for leave to appeal against conviction.

On the other hand, we are not persuaded that the other matters, relied on by the applicant, would otherwise support a direction for the release to the applicant of the audio recording. Further, for the reasons that follow, we do not consider that the other matters relied on by the applicant provide any support for his application to have released to him the video recording of the pre-trial and trial proceedings.

The fact that the applicant has contended that the transcript of the pre-trial and trial is inaccurate and incomplete does not of itself provide an adequate basis for release of the whole of the video and audio recordings. If, in the course of argument relating to the substantive grounds of the application for leave to appeal against conviction or sentence, there is a genuine issue as to a specific part of the transcript which is fundamental to the determination of a particular ground of the application, then it might be necessary for the Court itself to resort to listening to the audio recording in order to ensure that the transcript of that aspect of the evidence is accurate.

Ground 8 of the application for leave to appeal against conviction relates to the applicant’s claim that he was unwell and affected by exhaustion and autism during the trial. He has filed a very lengthy affidavit setting out what he claims to be his condition and circumstances during the trial. It must be doubted whether access to the video (or audio) recording would depict the applicant sufficiently for the Court to make any judgment relating to that aspect of the application for leave to appeal against conviction.

Finally, the applicant has sought to access the audio and video recording of the trial in order to demonstrate the demeanour of witnesses. It would be most unusual, if not entirely exceptional, for this Court to seek to listen to or view the audio or video recording for that purpose. The assessment of the credibility and reliability of witnesses, based on their demeanour and the content of their evidence, is quintessentially the task of the jury, not this Court. A viewing of the video and listening to the audio recording would not, ordinarily, place this Court in the same position as that occupied by the jury in the context and atmosphere of the trial. Again, if, on the hearing of the application, a specific relevant issue arises as to the manner in which a witness has given a specific piece of evidence, then this Court might be minded to access the video or audio recording, but bearing in mind the limitations as to the role of this Court that we have just mentioned.

Accordingly, we are persuaded to direct that VGRS make available to the applicant and the respondent the audio recordings of the pre-trial proceedings and the trial, in order that the applicant be able to advance submissions to the Court in support of ground 11 of the application for leave to appeal against conviction. In reaching that decision, we emphasise that this is an exceptional course in the most unusual circumstances of this case.

If, after reviewing the audio recording, the applicant forms the view that he ought to rely on any matter that is additional to those already set out in the written cases to which we have referred, the applicant is required to give notice of his intention to rely on those matters to the Registrar and to the respondent. We would direct that that notice be provided by the applicant no later than 15 January 2019.

We should add that we would not expect that it will be necessary to play sections of the audio recording in Court in the course of oral argument unless there is some special reason to do so. Rather, in light of the number of instances already specified by the applicant in the lengthy written case document filed in the County Court, the Court itself, after hearing argument, will listen to the passages in question after the completion of oral argument.

Application for orders against Corrections Victoria

In his application directed to Corrections Victoria, the applicant has sought to be provided with access to resources and facilities while at the Melbourne Assessment Prison and while at Barwon Prison. In August 2017, he was transferred from Melbourne Assessment Prison to Barwon Prison. Since November 2017, he has been placed in the Hoya protection unit of the prison. Accordingly, it is only necessary, and relevant, to determine the application that relates to facilities that have been made available to him at Barwon Prison.

In particular, the applicant has sought the following in respect of resources and facilities at Barwon Prison:

(i) To be provided with the location of his ‘missing’ legal A4 folder containing over 15 legal CD exhibit discs.

(ii) For an order that Barwon Prison ‘cease and desist’ from withholding his legal CDs (including his brief and exhibit legal CDs) and to provide them in-cell.

(iii) To have access to ‘quality’ scanning of documents into electronic computerised form on his in-cell computer. That is, a scanner capable of producing searchable documents.

(iv) To have access to legal judgments and resources including indexes in order to enable him to undertake legal research.

(v) To facilitate copies of legal files onto a USB portable hard disc drive (‘HDD’), such HDD to be collected by his ‘legal representatives’.

(vi) To be provided with a facility to access his computer files (via a laptop or portable USB HDD) when making telephone calls to legal advisers and to be able to access computer files when attending ‘legal visits’ to the prison.

(vii) To be provided with ‘satisfactory and affordable facilities’ to photocopy large volumes of paperwork.

(viii) To ensure that Corrections Victoria can arrange for the applicant to bring hard copy files and computer files to the Court of Appeal complex if necessary.

(ix) To remove any ‘red tape or paperwork/forms’ to facilitate the above procedures.

The application was supported by a written case prepared and filed on behalf of the applicant, and an affidavit deposed by him (‘the first affidavit’). In response, Corrections Victoria filed an affidavit sworn by Mr Brendan Money, the Assistant Commissioner, Sentence Management, Corrections Victoria, dated 15 November 2018. In reply, the applicant filed another affidavit dated 18 November 2018 (‘the second affidavit’). In addition, the applicant also sought to rely on a third affidavit sworn by him on 21 October 2018, together with a document in which he commented, in detail, on the affidavit of Mr Money. The applicant also referred to other affidavits sworn by him, to which no specific reference is required.

It is convenient to summarise those materials, in respect of the nine matters, claimed by the applicant in this application, in the sequence set out above, namely:

(1)The missing CDs. In his first affidavit, the applicant stated that one A4 size non-lever arch folder, which contained most of his exhibits on CD, had gone missing since he was transferred to Barwon Prison on

3 August 2017. That folder contains approximately 20 CD discs and has special CD pocket inserts in it. The applicant deposed that although he had made a number of inquiries as to the whereabouts of the folder, he had not received an adequate answer. In his affidavit, Mr Money stated that the applicant has some CDs in his cell and the balance are held in the prison’s property storage on his behalf. Mr Money deposed that no other CDs are held for him. In his second affidavit, the applicant stated that the folder had finally been located and issued to him on Friday 9 November 2018, and he (understandably) complained that it had taken fifteen months for the folder to be located and returned to him. The applicant stated that the folder contains all 37 legal CDs, but it is missing one CD, which is the original version of the Syndal CCTV footage disc from the trial.
(2)The legal CDs and exhibits. In his first affidavit, the applicant deposed that when he was moved to Barwon Prison, the authorities had withheld from him a large number of his ‘legal CDs and exhibits’ and have refused to issue them to him in his cell. In that affidavit, he specified twenty-two CD and DVD discs that, he claimed, had not been issued to him. In addition, the applicant stated that Corrections Victoria has withheld a mirror-drive containing large amounts of information and evidence. He stated that those materials were issued to him while he was in Management Unit 8 at the Melbourne Assessment Prison, but they have been withheld from him since he has been moved to Barwon Prison. In his second affidavit, the applicant stated that, with two exceptions, his legal CDs have been returned to him. Those exceptions are, first, a USB HDD that includes the ‘mirror’ forensic image of the content of the Fujitsu laptop, belonging to the applicant, that was seized by police, and, secondly, ‘internet exhibit’ CDs.
(3)The scanning. In his first affidavit, the applicant deposed that the ‘scanning issue’ had gone on for many years.He said that when he identifies documents that need to be scanned, the prison management refuses to scan them. He also stated that mainstream units have a scanning unit available to scan large amounts of legal documents. The applicant stated that his inability to scan documents had affected his ability to organise and manage his case, because it left him with no ability to place incoming correspondence on his HDD, he was unable to link such correspondence with the relevant outgoing letter, and he could not satisfactorily allocate proper serial numbers to correspondence. In addition, he stated that he is now unable to back up hard copy documents, and he cannot easily provide hard copy documents.
(4)Access to legal judgments and resources. In his written case, the applicant stated that he has been prevented from having access to legal judgments and resources while in custody, including law lists and legal case indexes, in order to browse judgments.
(5)USB hard disc drive. In his affidavit, the applicant stated that he requires a large set of his legal files to be copied onto a portable USB HDD unit so that he can provide it to a legal practitioner and also to Victoria Legal Aid. He deposed that Corrections Victoria has placed restrictions on his ability to copy his documents onto a USB HDD, because Corrections Victoria requires that a lawyer in person drop off and collect the USB HDD, that the USB HDD is purchased brand new and kept sealed in the original packaging, and that it is delivered by the lawyer to the prison in that way. The applicant further deposed that Victoria Legal Aid was ‘refusing’ to assist him to fulfil those requirements by providing the USB HDD and someone to collect it from the prison.
(6)Facility to access computer files. The applicant has submitted that it is necessary for him to be able to access his computer files when making telephone calls to instruct and brief lawyers, when attending visits to the prison by lawyers, when instructing and briefing lawyers, and, on some occasions, when attending Court via audio visual link. Although Corrections Victoria has stated that the applicant can view his CDs by booking a session in a locked room with a laptop, supplied by Corrections, in a reception area, in practice he has not been able to avail himself of that facility because, he maintained, Corrections Victoria staff have been uncooperative and of no assistance in enabling him to do that.
(7)Photocopy facilities. The applicant stated that he has inadequate photocopy facilities, but that issue would be largely resolved if the scanning issue was resolved satisfactorily.
(8)Transporting files to Court. The applicant has not addressed the issue of transporting files to Court in his written case or in his affidavit.
(9)Red tape. In his written case, the applicant seeks an order removing any ‘red tape or paperwork/forms’ at the prison and to ensure ‘that there are no loopholes to deny provision of the facilities sought’.

In his first affidavit, the applicant stated that the three items of most concern to him were the availability of scanning facilities, access to his legal CDs (which has ― with three exceptions ― since resolved)[10] and his inability to make copies onto a suitable USB HDD for use by his legal adviser.
[10]See paragraphs [52]–[53] below.

In response, Corrections Victoria has filed an affidavit sworn by Mr Brendan Money, in respect of each of the nine items on the applicant’s ‘wish list’, Mr Money has deposed as follows:

Considering only the appellant’s wish list to Barwon Prison, the response is:
(i)15 missing CDs. The appellant has some CDs in his cell and the balance are held in the Prison’s property storage on his behalf. No other CDs are held for him and no searches either in MAP or Barwon have revealed any other CDs.
(ii)Brief and Legal CDs. Those CDs which are identified as either coming from the prosecution or from lawyers for the appellant may be held by him in his cell.
(iii)Availability of Scanning. There is one type of scanner available for the appellant's use at Barwon. He has used the scanner twice and he knows how to request its further use if he requires the scanner.
(iv)Access to Legal Judgments and Resources. No prisoner has access to the internet, due to security reasons. A limited number of legal textbooks are available at all prison libraries as directed by the Commissioner, Corrections Victoria.
(v)Copy Files onto a Hard Drive. The IT officer at Barwon will copy files onto a hard drive for collection by lawyers acting for the appellant.
(vi)Using Laptop. Due to security reasons, it is not possible for the appellant to use the laptop made available for him at court when using the telephone or attending the visits centre. There are substantial logistical problems in keeping the laptop safe and restricting who would have access to it.
(vii)Photocopying. Black and white photocopying or printing is available at Barwon at the rate of at $0.10 per sheet, with colour photocopying or printing is available at $0.50 per sheet. Documents will only be printed on A4 size paper and printing is limited to 10 pages per prisoner. These are the charges made to all prisoners and they will not be waived. Postage stamps are available to be purchased by the appellant. Additional money will be considered monthly to be placed in the appellant’s prison account based on his need and in-line with the Deputy Commissioner’s Instructions policy.
(viii)Transport of Hard and Computer Files. Hardcopy files are limited as to the. health and safety of prison officers or the appellant as to what may be carried. The movement of computer files needs to be arranged via his unit prison officers to ensure the disks and laptop are available.
(ix)Removal of Red Tape or Paperwork. Completion of forms are necessary to ensure that requests are recorded and can be followed up.

Mr Money denied that Corrections Victoria and prison officers have prevented the applicant from accessing Victoria Legal Aid or his lawyers. In mid-October 2018, the Acting Unit Supervisor attempted to speak to the applicant about the logistics for his Court hearings, in terms of the provision of computer equipment and lunch, and whether Tele-Court might be able to be facilitated for him. However, the applicant turned away from his supervisor, saying that the Court hearings were not until November 2018. Mr Money stated that the applicant has not made any further approach about those matters.

Mr Money further deposed that the management and prison staff at Barwon, and Sentencing Management staff, understand the unusual circumstances of the applicant being self-represented and his particular personality traits, and have attempted to be flexible to assist him within the constraints of prison security. However, Mr Money stated, the applicant has been ‘relentless’ in demands for unspecified assistance and resolution of issues, which conflict with the equal demands and entitlements of other prisoners, and which may compromise prison security.

In his second affidavit, the applicant has taken issue with the matters deposed by Mr Money in subparagraphs (ii) to (ix). In particular, he stated as follows:

(iii) Scanning. Before 10 July 2018 a scanner had never been made available to him. Since then, he has only used it once, between 10 July and 31 July 2018. He recently requested the use of the scanner again between late October and early November 2018 for preparation for Court, but the scanner was not arranged or provided to him. He spoke to the IT representative on 10 November, and was told that a scanner would be arranged for him. Further, the applicant stated that the scanner that is available is poorly suited for legal work.

(iv)Access to legal judgments and resources . In his second affidavit, the applicant has repeated that he does not have access to legal judgments or law lists, and that, unlike other prisoners, he has been refused service by Corrections Victoria to the legal resources request system.

(v)USB hard disc drive . In his second affidavit, the applicant stated that he has requested access to a USB HDD at Barwon Prison many times in order to copy legal files. However, he has not had access to it so far. He reiterated that the prison authorities have imposed requirements for the use of a USB HDD, which he is unable to comply with.

(vi)Facility to access computer files . In his second affidavit, the applicant stated that on multiple occasions he has been unable to answer questions put to him by his lawyers, and to provide instructions, because he has not been able to access all his indexes, files, instructions and preparations while he is on the telephone to the lawyer.

In addition, in his second affidavit, the applicant took issue with the statement by Mr Money, in his affidavit, that he was not cooperative with the acting unit supervisor when she attempted to speak to him about the logistics for his Court hearings. He denied that he turned away from the supervisor when discussing those matters, and has stated that the supervisor was never involved in arranging the Tele-Court.

In determining the application against Corrections Victoria, two related principles must be borne in mind.

First, in this application, the Court is not concerned with determining the nature and extent of any rights of the applicant as a prisoner, nor in determining whether those rights have been observed by Corrections Victoria. Rather, this Court is concerned with the right of the applicant, as a litigant in this Court, to have a fair hearing of the substantive applications for leave to appeal against conviction and sentence. A fundamental aspect of that right is the capacity of the applicant to be able to properly present his case to the Court on each of the substantive applications for leave to appeal.

The relevant principles were conveniently stated in Brazel v Westin & Anor,[11] in the following terms:
[11][2013] VSC 527.

The plaintiff, in effect, is seeking relief from this Court, by way of interlocutory injunction, to enable him to present his case to court. The principles, which are applicable to such an application, have been referred to in a number of recent authorities. They may be summarised, briefly, as follows:
(1)Each individual has an established common law right to unimpeded access to the courts of the State, as part of the basic right to a fair trial.
(2)A prisoner, such as the plaintiff, has the same civil rights and privileges as any other citizen, including the right of access to the courts. That right inheres in each individual in both civil and criminal litigation.
(3)That right may be infringed where, in the case of a prisoner, the prison authorities take steps which effectively prevent the prisoner properly presenting his or her case to court.
(4)The court will only intervene to protect that right if the action, or inaction, of the prison authority, would have the effect of preventing a person from effectively accessing the court. As Lasry J stated in

R v Rich (Ruling No 2):
In my opinion it would obviously be very convenient for the accused to have a laptop computer but that is not the test. The question is whether such a facility is integral to the fair trial of the accused or, put in other words, whether without a laptop computer his trial will be unfair such as to justify a stay.[12]

[12]Ibid [21] (Kaye J; citations omitted).

Thus, the guiding principle, on this application, is that the applicant should be able to adequately and effectively present his application for leave to appeal against conviction and sentence in oral argument, and to prepare for the hearing of those applications which is to take place in early February next year. The question for the Court is whether any of the particular matters, complained of by the applicant, relevantly interfere with the applicant’s capacity to present those applications adequately and effectively.

That question is not to be determined by reference to a standard which equates to a counsel of perfection.[13] Rather, the issue is whether any, and if so which, of the circumstances, specified by the applicant, impede the applicant’s right to a fair hearing, by preventing him from being able to properly and effectively present his case on oral argument.
[13]Jago v District Court of New South Wales (1989) 168 CLR 23, 49 (Brennan J); Dietrich v The Queen (1992) 177 CLR 292, 365 (Gaudron J).

Secondly, and as a related proposition, s 21 of the Corrections Act 1986 provides that the Governor of a prison is responsible for the management, security and good order of the prison, and the safe custody and welfare of prisoners. The courts have, on repeated occasions, emphasised that it is necessary to give full scope to the power of the correctional authorities to carry out the tasks of prison administration and management without undue interference from the courts.[14] The question is not whether the Court agrees or disagrees with a particular action, or lack of action, by the prison authority. Rather, as stated, the question is whether that action, or inaction, of Corrections Victoria in the present case would preclude the applicant from being able to properly and effectively present oral submissions in support of his applications for leave to appeal against conviction and sentence.[15]
[14]Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 [7], [11] (McInerney J); The Herald & Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329 [95] (Eames J); Anderson v Pavic [2005] VSCA 244, [32]–[33] (Nettle JA); Clark v Commissioner for Corrective Services [2016] NSWCA 186 [77] (Emmett JA); Haigh v Ryan [2018] VSC 474 [60] (Ginnane J).
[15]Cf Brazel v Westin & Anor [22]–[23]; Liristis v New South Wales [2018] NSWSC 39, [23] (Schmidt J).

Before considering the nine specific matters, that are raised by the applicant’s application, it should first be observed that the written cases, prepared and filed by the applicant in support of his application for leave to appeal against conviction, and his application for leave to appeal against sentence, are particularly detailed and thorough. They each contain references to a number of legal authorities, to specific pages of the transcript, and to particular exhibits. As part of his application for leave to appeal against conviction, the applicant has filed a detailed 35 page schedule of evidence, setting out ― with transcript references ― the evidence, that he will contend is relevant to each of the grounds of appeal, upon which he seeks to rely. It might fairly be observed that, whatever difficulties have been experienced by the applicant by reason of his position as a prisoner in protective custody, nevertheless he has managed, quite commendably, to be able to compile such detailed and referenced written submissions in support of each of the two substantive applications.

We turn, then, to each of the nine particular matters that are specified in the application under consideration.

The first matter concerns what the applicant described as the folder containing in excess of 20 ‘legal’ CD exhibit discs. As we have noted, that folder has been recently restored to the applicant. The folder contains all of the exhibits with the exception of one, namely, what the applicant has described as the ‘Syndal CCTV disc’ that was tendered by him as an exhibit in the trial. The list of the trial exhibits describes, as exhibit 19, the ‘Syndal Railway Station video identified as the original format by witness Ms Fenech’. In oral submissions, counsel for the respondent was able to indicate that the Court Registry has that exhibit, so that a copy of it will be able to be provided to the applicant.

The second item is described as ‘NTBI’ legal CDs, which, the applicant claimed, were being withheld from him. In his second affidavit, the applicant stated that he still does not have two of those CDs. In oral submissions, the applicant clarified that the USB HDD, that included the ‘mirror’ forensic image, was of the content of a Fujitsu laptop computer that was seized by the police. That image was not tendered in evidence in the trial. Accordingly, it is not relevant to the issues raised on the application for leave to appeal. Similarly, the materials referred to as the ‘internet exhibit CDs’ were not, in toto, tendered in evidence at the trial. Rather, it would appear, extracts from them might have been tendered by the prosecution and by the applicant. Apart from the Syndal CCTV disc, the applicant does not appear to maintain that he otherwise lacks access to any relevant disc that was tendered in evidence in the trial. Accordingly, they are not relevant for the application for leave to appeal. We are not persuaded to make an order in relation to them.

The third item concerns the availability of scanning. As noted, in his second affidavit (sworn 18 November 2018), the applicant stated that the information technology officer at the prison had said that he would arrange a scanner for him. In oral submissions, the applicant told the Court that he now does have, on loan, a Canon scanner for his use. He stated that the scanner is not entirely adequate, because it does not ‘flatbed scan’, it creates only images and not searchable documents and not all documents can be scanned by it. Ms Coombes, who appeared for Corrections Victoria, told the Court that another prisoner at Barwon had been provided with an upgraded scanner, but there have been problems with it.

As we have stated, it is not for this Court to interfere with the manner in which Corrections Victoria manages its prisons, or with the facilities supplied to prisoners who are involved in litigation, provided that those facilities are adequate to enable the prisoner to have a fair hearing of the case in which the prisoner is involved. While the scanner, that is currently available to the applicant, may not be of optimum quality, we are satisfied that it is sufficient to perform the tasks that are necessary to assist the applicant to properly present his substantive applications for leave to appeal. We therefore will not make any order or direction in relation to that aspect of the applicant’s application.

The fourth matter concerns access to legal judgments and resources. Mr Money has deposed that no prisoner has access to the internet due to security concerns. There are a limited number of legal text books available at the prison libraries. Ms Coombes informed the Court that the manager of the prison computer systems will endeavour to ascertain whether access might be able to be arranged for the applicant to sections of the website or sections of the Thomson Law website. That matter will require some investigation. However, as Ms Coombes pointed out, the capacity of the prison to provide access to a prisoner to such facilities can be constrained by budgetary considerations. As we have noted, in the written cases that the applicant has compiled in respect of the two preliminary applications that are before this Court, and in respect of the applications for leave to appeal against conviction and sentence, the applicant has demonstrated that he has been able to access a substantial amount of relevant case law in support of each of his applications. Further, in his second affidavit, the applicant has stated that on ‘multiple occasions’ he has been ‘unable to answer questions of lawyers’ who he has consulted, because he has not had a laptop computer available to him during those consultations. It is implicit, from that part of the applicant’s affidavit, that he has had, and continues to have, access to legal practitioners for advice and assistance. In those circumstances, we are not persuaded to make an order directing Corrections Victoria to provide the applicant with access to legal indexes and other internet research facilities.

In this connection, we have noted that, in the written responses that the applicant has filed to the written cases of the respondent, in respect of the applications for leave to appeal against conviction and sentence, the applicant has indicated that he has not been able to have access to a number of the authorities relied on by the respondent. It appears that the applicant, sometime previously, sent to the Supreme Court Library a list of authorities which he sought to have provided to him. In oral submissions before the Court, it was suggested to the applicant that he should forward that list directly to the Registrar of the Court of Appeal. Counsel for the respondent told the court that if the Registrar were to forward that list to the respondent, the respondent would forward the relevant authorities to the Registry, who would compile a disc containing those authorities, and send that disc to the applicant.

The fifth aspect of the application concerns the capacity of the applicant to copy files onto a USB portable hard drive disc. Mr Money has stated that the information technology officer at Barwon will copy files onto a hard drive for collection by lawyers acting for the applicant. In oral submissions, Ms Coombes confirmed that the applicant now has access to a hard disc drive at Barwon, so that the applicant, or the information technology personnel at Barwon, can copy the applicant’s documents onto it. The Manager of Performance and Compliance at the prison has been meeting with the applicant in order to facilitate that process. It is proposed that when the files have been copied, the USB HDD will be transported from Barwon to the Melbourne Assessment Prison, for collection there by the legal practitioners who are assisting the applicant. In those circumstances, it is not necessary to make any order or direction to Corrections Victoria in relation to this aspect of the application. We do, however, reiterate the observation that we made during oral submissions, namely, that the applicant should, so far as is practicable, be able to provide relevant materials to those who are providing legal assistance to him, for the purposes of assisting him to prepare his applications for leave to appeal against conviction and sentence.

The sixth matter, that is the subject of the application, concerns the facility by which the applicant might access his computer files when he is conferring with his legal advisers either on the telephone or on visits by the advisers to the prison. In his affidavit, Mr Money stated that there are security issues associated with permitting the applicant to use a laptop when conferring with legal practitioners whether on the telephone or during visits. In response, in his second affidavit, the applicant pointed out that the telephones which he used for receiving calls from lawyers at Barwon Prison, are located in Tele-Court and Tele-Conference rooms. When prisoners use those rooms, they are locked in them, and no other prisoner has access to them. Further, as the applicant pointed out during oral argument before us, he was then located in one such room, with a laptop available to him for his use during the Court hearing.

Having taken instructions, Ms Coombes indicated to the Court that the applicant will be able to use such a room, with a laptop computer, for legal visits and telephone calls with his legal advisers, provided that he gives sufficient notice to the prison management. In addition, the availability of the room will be subject to whether it is required for use in a court hearing. In those circumstances, it is not necessary or appropriate for us to make any order. However, we do emphasise, as we did in oral argument, that the applicant should be in a position to be able, so far as practicable, to access relevant documents and materials when he is speaking to and obtaining advice and assistance from legal practitioners in preparation for his applications for leave to appeal against conviction and sentence.

The seventh aspect of the application concerns the availability of photocopying facilities. The issue seems to concern the fees charged by Corrections Victoria for the photocopying facilities. The applicant has stated, in his written case, that the photocopying issue would be largely resolved if the scanning issue is resolved. As noted, it would appear that the applicant does have access to the scanning facilities. We do not consider that it is necessary or appropriate to make any order in relation to this aspect of the application.

The eighth aspect of the application concerns the transport of hard copy and computer files. It is, of course, important that the applicant be able to have ready access to relevant files at the facility in which he will be placed during the oral hearing of the substantive applications. In particular, we apprehend that the applicant will need to have access to relevant parts of the trial transcript, the trial judge’s rulings that are under consideration, copies of the relevant exhibits, and copies of the legal authorities on which he relies. We expect that Corrections Victoria will ensure that the applicant has access to those documents, either in hard copy form or in computer form, at all times during the hearing of the substantive applications.

The final aspect of the application relates to the applicant’s apprehension that he has been frustrated by ‘red tape or paperwork/forms’ in the preparation of his case. The applicant has not described in detail any instances in support of that complaint. Mr Money, in his affidavit, states that completion of forms is necessary to ensure that requests are recorded and can be followed up. In those circumstances, there is no basis upon which to make an order in respect of this aspect of the application.

Summary of conclusions

Accordingly, for the foregoing reasons we will not make any orders, or give directions, in respect of the application directed to Corrections Victoria.

On the application that is directed to the County Court and Victorian Government Reporting Service, we direct that VGRS make available to the applicant and the respondent the audio recordings of the pre-trial proceedings and the trial. We further direct that the applicant, no later than 15 January 2019, give notice to the Registrar of the Court, and to the respondent, of any amendment or addition that he seeks leave to make to Ground 11 of the application for leave against conviction consequent upon the provision to him of the audio recordings.

Orders

Accordingly, we will make the following orders:

(1)In respect of the General Application directed to the County Court of Victoria and Victorian Government Reporting Service (‘VGRS’), it is directed:
(a)That VGRS release to the Applicant and the Respondent the audio recordings of the pre-trial and trial proceedings before his Honour Judge Mullaly in the County Court proceeding CR-13-01410.
(b)That the Applicant, on or before 15 January 2019, give notice to the Registrar of the Court, and to the Respondent, of any proposed amendment or addition that he seeks leave to make to Ground 11 of the application for leave to appeal against conviction.

(2)In respect of the General Application directed to Corrections Victoria, it is ordered that the application be dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established