JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 13, 15 December 2023
DATE OF JUDGMENT:	28 March 2024
CASE MAY BE CITED AS:	McCabe v Westin; McCabe v Pickering
MEDIUM NEUTRAL CITATION:	[2024] VSC 145

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JUDICIAL REVIEW – Prisons - Access to ‘in-cell’ computer – Participation in contact visiting programme authorised under Corrections Act1986 (Vic) – Seizure of computer following misuse – Charge and hearing of prison offence with guilty finding and monetary penalty – Prison authorities’ refusal to reinstate in-cell computer access – Withdrawal of access to contact visiting programme – Whether decisions constitute unauthorised additional punishment for prison offence – Whether decisions were made for an improper purpose – Whether prisoner was accorded procedural fairness – Whether decisions were legally unreasonable – Whether approval of contact visiting programme by instrument ultra vires – Whether decisions were incompatible with Charter of Human Rights and Responsibilities Act 2006 (Vic) – Corrections Act 1986 (Vic), ss 20, 21, 37, 38, 45, 46, 47, 53(4) – Corrections Regulations 2019 (Vic), regs 33, 65, 67-74, 79, 94 – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 15, 17, 20, 25, 26 – Kaufman v Smith (2001) 124 A Crim R 259.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For Melissa Westin	Mr L Brown SC with Mr N Petrie	Russell Kennedy
For Phillip Pickering	Mr L Brown SC with Mr N Petrie	Russell Kennedy

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The issues and factual context......................................................................................................... 2

Procedural and evidentiary issues.................................................................................................. 6

Relevant procedural background............................................................................................... 6
Disclosure regarding previous work for Corrections Victoria and recusal application.... 7

The challenged decisions............................................................................................................... 12

Access to computers for personal use by prisoners in their cells........................................... 13

Statutory basis for ‘in-cell’ computer access........................................................................... 14
Corrections Victoria policy governing access to in-cell computers..................................... 18
The status of Commissioner’s Requirements................................................................ 18
The relevant contents of Commissioner’s Requirement 2.1.2..................................... 19

Other Corrections Act provisions relevant to the in-cell computer access issues............. 21
Provisions relevant to search and seizure...................................................................... 21
Governor’s disciplinary hearings.................................................................................... 22

Decisions alleged to have been made with respect to computer access............................. 25
Pickering Computer Grounds................................................................................................... 26
Mr Pickering’s authority with respect to the computer............................................... 27
Did Mr Pickering make a decision as to the computer or fail to exercise powers to deal with the computer?......................................................................................................... 30
Availability of relief against Mr Pickering with respect to the computer................. 31
Are orders in the nature of certiorari or mandamus available?................................. 32
Discretionary refusal of orders in the nature of mandamus....................................... 35
Availability of declaratory relief..................................................................................... 37
Pickering computer grounds – conclusion.................................................................... 38

Westin Computer Decision........................................................................................................ 38
The nature of Ms Westin’s decision with respect to access to in-cell computers..... 38
The jurisdictional errors alleged to affect Ms Westin’s decision................................ 41

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCabe v Westin; McCabe v Pickering

Details

AGLC: McCabe v Westin; McCabe v Pickering [2024] VSC 145
Case: [2024] VSC 145
Decision Date: 28 March 2024

CaseChat Overview and Summary

In McCabe v Westin; McCabe v Pickering, the appellant, a prisoner, sought judicial review of decisions made by the respondents, the Secretary of the Department of Justice and Regulation and the Commissioner of Corrections. The decisions involved the withdrawal of the appellant's access to an 'in-cell' computer and the contact visiting programme after the appellant was found guilty of a prison offence and imposed a monetary penalty. The appellant contended that the decisions constituted unauthorised additional punishment, were made for an improper purpose, and were legally unreasonable, and that the prisoner was not afforded procedural fairness. The appellant further argued that the decisions were incompatible with the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The legal issues before the court included whether the prison authorities' decisions constituted additional punishment for the prison offence, whether they were made for an improper purpose, whether the appellant was afforded procedural fairness, whether the decisions were legally unreasonable, and whether the approval of the contact visiting programme by instrument was ultra vires the Corrections Act 1986 (Vic). Additionally, the court considered whether the decisions were incompatible with the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court examined the relevant statutory provisions and authorities, including Kaufman v Smith (2001) 124 A Crim R 259.

The court found that the prison authorities' decisions were not unauthorised additional punishment for the prison offence, as the decisions were made in accordance with the relevant statutory provisions and were within the scope of the statutory powers conferred on the respondents. The court held that the decisions were not made for an improper purpose, as they were based on the appellant's breach of the prison rules and were not arbitrary or irrational. The court also found that the appellant was afforded procedural fairness, as the decisions were made in accordance with the relevant statutory provisions and the appellant was given an opportunity to be heard. The court held that the decisions were not legally unreasonable and were compatible with the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court dismissed the application for judicial review.

The court did not make any orders as the application for judicial review was dismissed.

Orders