McKechnie v State of Victoria (Computer Judgment)

[2023] VSC 259

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 00045

BETWEEN:

ANDRE McKECHNIE	Appellant
v
DET PETER DAVID EVANS	Respondent

-and-

S ECI 2021 01652

BETWEEN:

ANDRE McKECHNIE	Plaintiff
v
SECRETARY OF THE DEPARTMENT OF JUSTICE (and others according to the Schedule attached)	Defendant

-and-

S ECI 2021 03896

BETWEEN:

ANDRE McKECHNIE	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2023
DATE OF JUDGMENT:	17 May 2023
CASE MAY BE CITED AS:	McKechnie v State of Victoria (Computer Judgment)
MEDIUM NEUTRAL CITATION:	[2023] VSC 259

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JUDICIAL REVIEW – Prisoner bringing public law proceedings about his rights – Application for orders that he be provided with a computer – Prisoner able to access prison computers – Application dismissed.

HUMAN RIGHTS – Prisoner’s rights – Right to a fair trial – Prisoner’s access to prison computers – Common law rights to access Court – No right limited – Charter of Human Rights and Responsibilities Act 2006 ss 8, 24, 32.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Plaintiff	In person
For the Respondent	Mr A Castle (in S ECI 2021 00045)	Office of Public Prosecutions
For the Defendants	Mr C Fitzgerald (in S ECI 2021 01652 and S ECI 03896)	Victorian Government Solicitor’s Office

HIS HONOUR:

1. Mr McKechnie is a prisoner at Port Phillip Prison and has commenced many proceedings against the prison authorities and the State of Victoria. He has issued summonses in three proceedings for orders that he be provided with an ‘in-cell computer’ and associated facilities to prepare for the proceedings, including filing documents that may be required.

1. I heard the summonses on 19 April 2023 and dismissed them not being persuaded that Mr McKechnie had established his entitlement to the orders that he sought. I said that I would later provide my reasons and now do so.

1. Mr McKechnie was at Ravenhall Prison until 17 January 2023 when he was moved to Port Phillip Prison, which has 987 prisoners. He has been placed in solitary confinement pursuant to protection notices.

1. About 95% of his legal research material remains at Ravenhall Prison. He has requested that material, but it has not been provided to him. In part, that appears to be because Corrections Victoria wishes to move him to another prison.

1. Mr McKechnie said that he needs a computer to search documents, to conduct research and to provide him with ‘equality of arms’ with the lawyers acting for the defendants, as working without a computer is twenty times slower. He has been offered an in-cell desktop computer and said that he accepted it. It appears from the evidence that that offer was for him to purchase a computer and not to be given it. He said that he could not afford to purchase it because it was a desk top computer costing $2,000. He could afford to purchase a laptop computer, but Corrections Victoria does not agree to him purchasing such a computer. He said that the process of purchasing a computer through Corrections Victoria would take many months. He also said that Corrections Victoria loans computers to prisoners.

1. The defendants relied on a number of affidavits. The most relevant and current is that sworn by Mr P Maa, the General Manager at Port Phillip Prison. He stated that Mr McKechnie is classified as a ‘protection’ prisoner and, for his safety, he is accommodated in a protection unit separated from the mainstream prisoner population. I note that Mr McKechnie disputes that he should be a protected prisoner and stated that he has been locked down for approximately 23 hours a day.

1. Mr Maa stated that prisoners have access to computer equipment in two locations: the Government Functions area and the Education area. There are two laptop computers in the Government Functions area which are available for all prisoners needing to attend court via video link and for conferences between prisoners and their lawyers. Prisoners are given a time to attend that area to use those computers, but access is dependent on the competing demands of staff and other prisoners.

1. Mr McKechnie stated that on occasions when he has been scheduled to use a computer for say three hours, he has only been able to use it for a limited time because of delays in admitting him to the Government Functions area.

1. The Education Area has three desktop computers available to prisoners, which have access to ANSTAT legal resources and it has a prison library where prisoners can access law books. However, Mr McKechnie is unable to access the Education Area, because, as he is in the protection unit, he has only had access to the Government Functions area and only when prisoners from the mainstream prison population are not present. He is escorted to, and from, the Government Functions area by staff.

1. Staff in the two areas can assist prisoners to scan and print material. None of the computers available to prisoners have access to the internet.

1. Mr Maa’s affidavit indicated that between 2 March and 20 March 2023, Mr McKechnie was granted access to the computers in the Government Functions area on six occasions. He has been provided with a Corrections Victoria USB and regularly uses the printing facilities available.

1. Most of Mr McKechnie’s property, including legal materials, has remained at Ravenhall Prison. Mr Maa stated that Mr McKechnie’s materials at Ravenhall are excess property and cannot be stored in his cell at Port Phillip Prison.

1. Mr Maa stated that Mr McKechnie was scheduled to be transferred to Barwon Prison on 14 February 2023 but refused to be transferred. He needs to submit a formal request nominating the property he requires to be transferred from Ravenhall Prison. He did that on 28 March 2023 and that ‘will be reviewed and actioned as required’. Mr Maa stated that Mr McKechnie’s continued refusal to agree to the prison transfer is one matter that does not support approval of any application by him at this time to be provided with computer equipment. If Mr McKechnie complied with the transfer to the Barwon Prison for his long-term placement, he could then make a further request for an in-cell computer.

1. The defendants opposed Mr McKechnie’s summonses, submitting that his rights under the common law or under the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’)[1] had not been engaged, or limited.  The Corrections legislation and regulations[2] did not give him a right to require the prison authorities to provide him with a computer. He has been able to provide submissions and affidavits to the Court in a number of proceedings using the prison computers.

   [1]Sections, 8, 24 and 32.

   [2]Corrections Act 1986 and Corrections Regulations 2019.

1. The defendants questioned whether the Court could grant any remedy requiring the prison authorities to provide Mr McKechnie with a computer. However, I consider that the Court could make an appropriate declaration to that effect if it considered that Mr McKechnie required a computer in his cell to enable him to present his cases and comply with Court directions. While I accept that the Court should not readily interfere with the day-to-day operations of prisons, it has power to ensure that litigants have access to justice and receive a fair hearing and, on occasion, that may require making directions enabling prisoners to access computers.

1. In Brazel v Westin,[3] Kaye J described the applicable principles as including:

(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.”

[3][2013] VSC 527 [21] (citations omitted); see also Minoguev Falkingham [2021] VSC 185.

1. Kaye J described the question for his determination as:[4]

…whether the action, or inaction, of the defendants and the prison authority, would preclude the plaintiff from having effective access to the court in this case.

[4]Ibid [22].

1. In Rich v Howe,[5] Kennedy J stated:

   [5][2017] VSC 483 [140] (citations omitted).

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

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

·The position is the same as at common law;

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

·It is not sufficient to demonstrate interference with access that it might be easier or more convenient;

·The personal characteristics of the claimant are relevant;

·That the extent to which the claimant already has access to materials is relevant;

·Any decision to be unrepresented is taken into account;

·Evidence of security considerations are considered;

·That ‘full or complete facilities’ are unnecessary.

1. I do not consider that Mr McKechnie has established that he requires a computer to be provided for his sole use in his cell in order to present his cases to this Court, or to prepare documents required by court orders.

1. It is significant that Mr McKechnie has been able to prepare many documents for his court proceedings using prison computers. In those circumstances, I do not consider that the Court should direct the prison authorities to provide him with an in-cell computer for his exclusive use. However, Corrections Victoria and the prison authorities should ensure that Mr McKechnie has reasonable access to the prison computers, sufficient to enable him to prepare court documents and to undertake legal research. In doing so, Corrections Victoria and the prison authorities should have regard to Court orders and the dates by which he is required to file and serve documents, as well as the dates of his forthcoming Court appearances. This may require, on occasions, that he be granted more access to computers than other prisoners.

Schedule of Parties – S ECI 2021 01652

BETWEEN:
ANDRE McKECHNIE	Plaintiff
AND
SECTRETARY OF THE DEPARTMENT OF JUSTICE	First Defendant
MINISTER FOR CORRECTIONS VICTORIA	Second Defendant
COMMISSIONER FOR CORRECTIONS VICTORIA	Third Defendant