Nicopoulos v Commissioner for Corrective Services
[2004] NSWSC 562
•29 June 2004
Reported Decision:
148 A Crim R 74
Supreme Court
CITATION: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 HEARING DATE(S): 21, 26, 27 & 28 May 2004 JUDGMENT DATE:
29 June 2004JUDGMENT OF: Smart AJ at 1 DECISION: See para 117 CATCHWORDS: Commissioner exercising power under cl 105 of Crimes (Administration of Sentences) Regulation to prevent solicitor entering gaols for legal visits for alleged breach of cl 97 and on intelligence information - non-disclosure of that information yet taken into account - eliding rules of procedural fairness to virtually nothing in circumstances - Commisioner's decision subject to judicial review - Operation of s 130 of Evidence Act 1995 - reputation and livelihood of solicitor at stake and interests of client inmate likely to be affected. LEGISLATION CITED: Australian Law Reform Commission, Evidence, Vol 1
British Nationality Act 1981
Crimes (Administration of Sentences) Regulation 2001
Crimes (Administration of Sentences) Act 1999
Evidence Act 1995
Prisons Act 1952
Summary Offences Act s 27E
Supreme Court Act 1970CASES CITED: A-G v Ryan [1980] AC 718
Alister v The Queen (1983) 50 ALR 41 at 44-45
Amer v Minister for Immigration and Ethnic Affairs unrep 18 December 1989
Applicant Veal of 2002 v Minister for Immigration [2003] FCA 4
Ball v Minister for Immigration [2003] FCA 699
Bromley v Dawes (1983) 34 SASR 73
Doody v Secretary of State for the Home Dept [1994] 1 AC 531 at 560
Flynn v The King (1949) 79 CLR 1
Gilson v Minister for Immoigration 21 July 1997 Lehane J, BC9703148
Johns v Australian Securities Commission (1993) 178 CLR 408 at 472
Kioa v West (1985) 159 CLR 550 at 615
Leech v Deputy Governor of Parkhurst Prison [1988] AC 533
McEvoy v Lobban [1990] 2 Qd R 235
O'Reilly v Mackman [1983] 2 AC 237 at 279
Ousley v The Queen (1997) 192 CLR 69 at 79-80
Palmer v Kizon (1997) 72 FCR 409
R v Secretary of State for the Home Department ex parte Fayed & Anor [1997] 1 All ER 228
Russell v Duke of Norfolk [1949] 1 All ER 109 at 11
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 328
The Queen v Forbes, ex parte Bevan (1972) 127 CLR 1 at 7
Vezitis v McGeechan [1974] 1 NSWLR 718
WAFG v Minister for Immigratin [2003] FCA 3PARTIES :
James Nicopoulos v Commissioner for Corrective Services FILE NUMBER(S): SC 30036/04 COUNSEL: (P) C Steirn SC & F Santisi
(D) N Perram & N BilinskiSOLICITORS: (P) Spanko Soulos & Co
(D) I V Knight
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST
SMART AJ
Tuesday, 29 June, 2004
JUDGMENT
1. James Nicopoulos is a solicitor with a current practising certificate in New South Wales who had a substantial practice in the criminal law. Some of his clients were charged with serious offences and designated by the Corrective Services Department as "extreme high security inmates", the highest risk categories and designations available to be given to an inmate. Mr Nicopoulos asserts that from 10 March 2004 he has been precluded from conducting legal visits to clients in various Correctional Centres.
Prohibition on Entry
2. The Commissioner has given directions under cl 105 of the Crimes (Administration of Sentences) Regulation 2001 that the plaintiff, his employed solicitor (Kangil Lee) and an employed para-legal or secretary (Helen Fragakis) and each of them be prevented from entering any correctional centre on the basis that any visit to an inmate at such centre would prejudice the good order and security of a correctional centre. At least two directions have been given. Both have been challenged.
3. By letter of 31 March 2004 to Mr Nicopoulos the Commissioner, after referring to an incident at the High Risk Management Unit (HRMU) at Goulburn Correctional Centre on 26 February 2004 in which Mr Nicopoulos received documents from an inmate and passed them to Ms Fragakis who (allegedly) "secreted them inside a folder" and the Commissioner's delegated authority under cl 105 of the Crimes (Administration of Sentences) Regulation2001, wrote:
"In the interim I have decided that you be prohibited from entering all NSW Correctional Centres including court cell complexes until my direction has been revoked. This decision has effect from 17 March 2004 on which date you were advised by telephone of the decision.
Further, … if you have any matters to raise that would show cause as to why I should not consider exercising that authority to prevent you from entering any correctional centre for a specified period, you are required to provide those reasons to me within 21 days. …"
Substantially similar letters were sent to Mr Kangil Lee and Ms Helen Fragakis.
4. The second written direction was given by letter of 7 May 2004 from the Commissioner to Mr Nicopoulos. The original letter was not received by him due to him shifting his office but he became aware of its contents after the institution of these proceedings. That letter stated:
(a) the Commissioner was responsible for the care, direction, control and management of all correctional centres
(c) HRMU is a maximum security facility accommodating inmates who have been assessed as posing a high security risk to the community, correctional centre staff, and/or other correctional centre inmates. The inmates visited by the plaintiff and his staff have been designated as extreme high risk security inmates(b) a serious incident occurred at HRMU on 26 February 2004
(d) the delivery of the documents from inmate [Y] to the plaintiff and his legal secretary in the presence of his employed solicitor and the acceptance of them prejudiced the good order and security of HRMU
(e) in reaching his decision to prohibit the plaintiff and his staff he, the Commissioner, had regard, amongst other things, to the plaintiff's professional obligations as a legal practitioner, the provisions of cl 97 of the Regulation, video footage of the incident, the contents of the documents delivered, the security classification of the inmate involved and intelligence information. The Commissioner did not propose to disclose to the plaintiff the details of the intelligence information. The Commissioner took the view that the passing of the documents from the inmate [Y] to the plaintiff without approval had, of itself, the potential to prejudice the good order and security of a correctional centre.
Much debate centred upon the Commissioner's contention that the intelligence material not be disclosed to the plaintiff or his counsel and yet be taken into account by the Court.
5. The Commissioner advised that he considered that any visits for any purpose by the plaintiff, Mr Lee and Ms Fragakis to any correctional centre would be likely to prejudice the good order and security of any correctional centre but he was prepared to review his decision in the future upon request.
6. The Commissioner stated that, while every effort was made to facilitate visits by legal practitioners, such visits were discretionary and that he was empowered, in appropriate circumstances, to prohibit legal practitioners from visiting correctional centres. The statement that visits by legal practitioners are discretionary requires modification.
7. The ban extends to "box visits", that is where there is no physical contact between the inmate and the solicitor and each sits on either side of a screen or other barrier. As might be expected, the exclusion has had a serious effect on Mr Nicopoulos' practice. He cannot see clients in gaol, take instructions and adequately prepare for the trials of his clients. At least some clients have had to seek other legal representation. Mr Nicopoulos' practice has diminished. He has had to lay off an employed solicitor, close down his office at Burwood and move into a smaller, shared serviced office in the Haymarket City Region. He can no longer practise effectively in the field of criminal law, his preferred choice, and his livelihood has been severely and adversely affected. Many of his clients were charged with serious offences or had been convicted and did not have bail.
Relief Sought
8. The plaintiff sought sundry declarations including that his private right to practise law in New South Wales extends to a right of entry to all correctional centres and complexes for the purpose of exercising his private right to practise law from within such centres and complexes and that the Commissioner had committed specified breaches of the rules of natural justice. The breaches alleged were numerous. The plaintiff also sought an order in the nature of certiorari that the Commissioner's decisions be quashed. He seeks to add an order for damages. All relief sought was opposed. The Commissioner contended that his decision was not amenable to judicial review, that there was ample material to support the course which he had taken and that in the circumstances of the present case the contents of the rules of natural justice had been elided to virtually nothing.
The Statutory and Regulatory Framework
9. Sections 271 and 79(i) of the Crimes (Administration of Sentences) Act 1999 authorise the making of regulations as to visits to inmates including the classes of persons who may be prohibited from visiting inmates and the conditions that must be observed by persons intending to visit and the procedures to be observed by visitors during visits. Section 232 provides that the Commissioner has the care, direction, control and management of all correctional complexes and correctional centres.
10. Part 4 of the Crimes (Administration of Sentences) Regulation deals with visits and communications. Clause 73 of Division 1 empowers the governor of a correctional centre to permit a person to visit the centre, either generally or for the purpose of seeing a particular inmate. Visiting hours are determined by the Commissioner. Clause 78 provides that an inmate may refuse to receive a visitor other than a government official engaged on official duties. Clause 79 provides that an inmate who is confined to a cell is not entitled to a visit except in the case, inter alia, of a visit to discuss or transact legal business.
11. Clause 81 of Division 2 provides that in addition to any other visit authorised by the Regulation, an inmate is entitled to be visited by the inmate's legal practitioner. The Commissioner emphasised that it was the inmate who had the right to a legal visit and that the legal practitioner had a privilege. Clause 84 requires a prior appointment for a visit under Division 2 to be made with the governor.
12. Clause 85 provides that visits under Division 2 are not to be restricted in duration or number but must be made during normal visiting hours.
13. Division 4, which includes clauses 91-101, deals with the control of visits to correctional centres and inmates. Clause 91 provides that Division 4 applies to all visits under Divisions 1, 2 or 3. Clause 93 provides for the searching of visitors.
14. Clause 97 provides:
- "(1) Except as otherwise provided by this Part
- (a) a visitor must not deliver anything to or receive anything from an inmate at a correctional centre, and
(b) an inmate at a correctional centre must not deliver anything to or receive anything from a visitor.
(2) With the approval of an authorised officer:
- (a) a visitor may deliver an article to a correctional officer at a correctional centre for delivery to an inmate, and
(b) an inmate may deliver an article to a correctional officer for delivery to a visitor."
15. Clause 100 provides
(2) The governor of a correctional centre must ensure that arrangements are made for an inmate and the inmate's legal practitioner to have joint access to documents or other recorded material taken into the centre for the purpose of discussing or transacting legal business."
"(1) An authorised officer may inspect or examine, but not read, documents or other recorded material taken into a correctional centre by an inmate's legal practitioner for the purpose of discussing or transacting legal business.
This does not apply to documents handed by the inmate to his solicitor.
16. Clause 101 enables an authorised officer to terminate any visit (whether or not the visitor is entitled to make the visit) if of the opinion:
"(a) that the visitor has contravened any provision of the Act or this Regulation, or
…
- (c) that the continuation of the visit would prejudice the good order or security of the correctional centre.
…"
17. Division 5, which includes clauses 102-106 deals with general restrictions on persons who may visit and applies to all visits under Divisions 1, 2 or 3 (cl 102).
18. Clause 103 enables the governor to refuse to allow a person to visit the centre or an inmate if of the opinion that such a visit would prejudice the good order and security of the centre.
19. Clause 105 relevantly provides:
"(1) The Commissioner may direct that a particular person be prevented from entering any correctional centre, or from visiting an inmate at 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) …
20. Clause 107(2) provides that an inmate must not send or receive any letter or parcel otherwise than through the hands of an authorised officer. "Letter" includes any "card, telegram, document or other similar form of written communication … but does not include a facsimile transmission."
21. Clause 109 which allows the governor of a correctional centre or a nominated officer to open, inspect and read a letter or parcel sent to or by an inmate does not apply to a letter or parcel addressed to or received from an exempt person. An exempt person relevantly means a legal practitioner.
22. Clause 110 provides that any letter or parcel passing between an exempt person and the inmate shall not be opened, inspected or read by an authorised correctional officer. This is subject to the power of the officer to require the letter or parcel to be opened by the inmate in his or her presence if of the opinion that it may contain prohibited goods. If it does so the letter or parcel and its contents may be confiscated.
23. Clause 111 states:
"This Regulation is not to be construed so as to limit correspondence between an inmate and the inmate's legal practitioner in respect of matters affecting the inmate's trial, conviction or imprisonment."
24. The Regulation thus controls the passing of documents between a legal practitioner and an inmate, even if that inmate is a client of the legal practitioner. All documents must pass through the hands of a correctional officer. Such documents are not, in the normal course to be opened inspected or read by the correctional officer. The Regulation does not seek to limit the flow of documents between an inmate and a solicitor, but it does not permit them to be handed directly to the inmate by the legal practitioner, nor to be handed directly by the inmate to his legal practitioner.
25. The visit of the legal practitioner and the passing of documents between the practitioner and the inmate is not restricted to matters relating to criminal proceedings, for example, forthcoming or current committal proceedings, a forthcoming or current trial, the conviction, the sentence or any application for leave to appeal or an appeal or any aspect of his imprisonment. An inmate may have legitimate civil matters requiring attention, for example, a claim for personal injury, a contractual claim, a claim arising out of commercial dealings, the sale of property (real or personal), a claim against an estate. He may seek legal advice on a large variety of diverse matters including business matters and proposed business ventures. A legal visit does not encompass seeking advice so as to engage in unlawful activities or seeking advice on non-legal matters. It is rightly expected that a legal visit will not be used for an improper purpose or non-legal purposes. Of course, on a legal visit the correct procedure as to the passing of documents must be observed.
The Video
26. The whole visit was the subject of video surveillance. On 28 May 2004 at the request of the parties and in the presence of their legal representatives I viewed a video of the second part of the plaintiff's visit to the HRMU. There is no audio record of what was said. As the video was screened those representatives explained, without objection, portions of that video and commented upon it, explaining what they sought to draw from it. There were some differences between the affidavits and the video. The video recorded the times at which various events occurred. Where the video and the affidavits differ I have preferred the video. The legal representatives of the parties accepted that the video had to prevail.
27. On 23 February 2004 the Goulburn Correctional Complex received a FAX from the plaintiff headed:
"Visit appointment with [A] … on 26 February 2004."
and stating
"We act for [A] in relation to the trials in District Court of NSW from 1st March 2004 for 6-8 weeks' Lakemba Police Station Shooting.
Date & Time: 26 February 2004 (Thursday) 12 pmWe confirm our visit schedule as follows
Inmates: [A]
Visitor: Frank Santisi, Barrister
Romi Alfaro, Paralegal
Kangil Lee, solicitor
- James Nicopoulos"
28. The FAX sought confirmation of the visit. The visit was confirmed by the Gaol Authorities. On 25 February 2004 the plaintiff sent a further FAX headed Re [A] & [Y], noting the legal visit on 26 February 2004 and that Helen Fragakis of the plaintiff's office would also be attending.
29. The Department understood that the visit related to a trial of [A] appointed to commence on 1 March 2004.
30. On 26 February 2004, the plaintiff, Mr Lee and Ms H Fragakis attended at the Goulburn Complex about 11,15am for a legal visit, After detailed searches they were taken to a visitors' room in the HRMU where they had a joint visit with [A] and [Y], the two inmates attending at the same time. This was the first part of the visit. I have not seen the video of this part of the visit. It would seem that it was unexceptional.
31. The video which I was shown commenced about 12.05pm and was of a visit in what was described as an external area. That may well be off the visitors' room where the first part of the visit was conducted. The video shows the plaintiff and inmate [Y] in the external area. [Y] was dressed in overalls used for visits These visits overalls cover the body from the feet to the neck and shoulders. They are fastened with a special clip at the back which, I was told, has to be cut off. When an inmate is encased within these overalls he would not be able to hide items inside the overalls.
32. From the video it appears that the plaintiff had a bundle of papers and that [Y] had a bundle of papers and some boating magazines. The plaintiff and [Y] talk. After a short period Ms Fragakis joins the plaintiff and [Y]. She had a spirex A4 size exercise book and a biro (or other writing instrument). A little later inmate [A] joins the three of them.
33. About 12.23pm Mr Lee joined the plaintiff, Ms Fragakis and inmates [A] and [Y]. About that time [Y] held up a notepad and appeared to be speaking to the notes. The first page of the notes corresponds with the first page of the notes annexed to Mr Salway's affidavit. [Y] did not seem to turn the pages of the notes. [Y] appears to speak to the notes for about 7 to 8 minutes. Perhaps other matters were discussed. [Y] removed a number of pages (about 5) from the notepad and handed them directly to Ms Fragakis about 12.31pm. The plaintiff did not appear to read them. For a period Ms Fragakis kept the notes on top of her spirex A4 exercise book. At one stage the plaintiff studied a map of Papua-New Guinea (including the north eastern tip of Australia, various islands, the Coral Sea, adjoining seas and Torres Strait).
34. Next the group appeared to be looking at some boating magazines and discussing their contents. The group were not looking at the legal papers which they had with them. About 12.30pm the visits officer, Mrs Pomery noticed that the group in the external area were looking at a boating magazine. A little later, and probably shortly before 12.45pm a senior correctional officer, Mr W Studeman made a similar observation and reported this to Mr Salway, the Acting Deputy Governor, HRMU. At the latter's request the plaintiff left the external area about 12.46pm and went to the visitors' waiting room. Mr Salway said:
"Can you please limit yourself to legal business. I facilitated the staff for a legal visit and not for you to sit around looking at magazines with inmates."
The plaintiff replied, "Yes, OK", and returned to the external area about 12.48pm.
35. On the plaintiff's return to the external area the group appears to be concentrating on the other papers with them, that is, the legal looking papers. About 12.53pm inmate [A] left the external area and did not return. The plaintiff and [Y] continued to look at and discuss what appear to be legal documents.
36. Ms Fragakis kept the notes handed by [Y] to her on top of her spirex exercise book from about 12.31 pm when [Y] handed them to her until about 12.55pm. She then placed the notes in the back of her spirex exercise book which was not particularly thick. This was preparatory to her writing out an authority which appeared to be dictated by the plaintiff. This was a convenient place to put them. She could not continue to keep them on top and also write. After she had written out the first authority on a page in her exercise book she pulled out the page and it was handed to and signed by [Y].
37. There was further recourse to legal papers (possibly a transcript). Then Ms Fragakis wrote out a second authority on what appeared to be the following page of her notebook, pulled out the page which was handed to and signed by [Y]. The evidence does not enable the Court to say which was written first. Omitting formal parts they read:
"You are hereby authorised and directed to act in my business affairs, particularly the acquisition of boats and any property my family wishes to purchase on my behalf within Australia & outside Australia."
and
- "I, [Y] confirm that I require Jim Nicopoulos to fully cooporate (sic) with my solicitor for the appeal Greg Gould in respect to issues concerning forensic evidence and I commission J. Nicopoulos to speak on my behalf to forensic experts including Byron Collins in respect to the evidence in my criminal proceedings."
38. Both the authorities are on pieces of paper which have been removed from an A4 spirex exercise book. After the second authority was signed there appears to have been some brief further discussion. Then Ms Fragakis closed her spirex exercise book and held it. There was apparently some further discussion and some apparent references to legal looking papers.
39. The visit ended about 1.13pm. [Y], the plaintiff, Mr Lee and Ms Fragakis left the external area. [Y] went or was taken to another part of the HRMU. The plaintiff, Mr Lee and Ms Fragakis were asked or told to remain in part of the visits area.
40. I interrupt the narrative to note some further matters. In his report of 26 February 2004 Mr Salway wrote:
"I attended the visiting section and spoke to Mr Nicopoulos and asked him if he had ceased speaking about criminal matters. Mr Nicopoulos stated that he had a brief from his client to act on his behalf in business matters. I stated that the visit was being facilitated for them to discuss legal issues as outlined on his faxed request to visit."
41. On being asked the plaintiff stated that he had not brought the boating magazine(s) and that it (they were) [Y's]. Mr Salway further reported., "I have confirmed that the legal material brought by [Y] was searched by visiting officers but no boating magazine was discovered.
42. This presumably means that [Y] took some legal material to the visiting section. The evidence is that prior to any legal visit the inmate is thoroughly searched by the staff of the visits section. This includes any material which he has. It was conceded by witnesses called on behalf of the Commissioner that an activities officer at Goulburn Gaol had, prior to the visit, purchased two boating magazines on behalf of [Y]. This purchase had been regularly made and the magazines had been given to [Y].
43. The inmates and their legal representatives would be well aware that all visits in the HRMU were the subject of video surveillance. During the period in the external area [Y] made no attempt to hide either his note pad or the boating magazines. It seems that either the search through the papers [Y] was taking to the visit was less than thorough or the notes and magazines were regarded as not objectionable. [Y] did seem to have an appreciable bundle of papers. The fact that [Y] had the notepad and the magazines with [Y's] other papers would, absent any other circumstances, have led the plaintiff to believe [Y] had been allowed to bring the note pad and the boating magazines to the interview.
44. It cannot fairly be said as is asserted in the letter of 31 March 2004 that Ms Fragakis secreted the notes inside a folder. The notes were placed in the back of the spirex exercise book in the circumstances earlier mentioned.
45. The plaintiff said that after the removal and securing of [Y] Mr Studeman entered the room where the group was waiting and asked that they produce any material that may have been given to them by [Y]. The plaintiff readily agreed to do so and the documents given to them by [Y] were handed to Mr Studeman. The plaintiff said that he, Mr Lee and Ms Fragakis were locked in the room again. Mr Studeman's evidence was to the same effect. The plaintiff stated that he told Mr Studeman that the documents were subject to legal professional privilege and that while the officers could look at them they were precluded from reading the contents. The plaintiff said that the officer looked at the documents in detail.
46. The plaintiff said that while incarcerated he protested that the group's civil liberties had been violated and demanded that they be released. This was to no avail.
47. About 1.40pm Mr Wilson, the Governor and Mr Salway, the Deputy Governor of the HRMU attended upon the plaintiff and his employees in the visiting room. By that time Messrs Wilson and Salway had seen the notes which had been handed to Mr Studeman. The plaintiff said that both Messrs Wilson and Salway stated, "You are in breach of s 27E of the Summary Offences Act for trafficking," and he replied "This is nonsense." They said, "It is out of our hands and Goulburn Police are on the way." The plaintiff stated that he then demanded of Mr Wilson, "You have no right to detain us in this room, at the very least we should be in the reception room."
48. The Goulburn police arrived at the gaol about 2.10pm and viewed portion of the video tape. About 2.20pm the police began interviewing the plaintiff, Mr Lee and Ms Fragakis. The notes of the visits officer record that the police ceased their interview with the plaintiff and his employees about 3.05pm and that at 3.15pm the visits section was cleared of all visitors. The plaintiff stated that he agreed with the police that he had received documents from [Y] and passed them to Ms Fragakis. The plaintiff stated that during the police interview he insisted that the client had permission to give the documents to him (the plaintiff) and that the documents were disclosed to the prison officers.
49. No charges were laid on 26 February 2004. The police took the documents with them to investigate the matter further. The plaintiff was subsequently advised by the police that no action would be taken against him as he had broken no law. The police returned the notes to him.
50. In his affidavit of 13 May 2004 the plaintiff gave this account of the documents handed to him by [Y]:
9. During the legal visit I received written instructions both in respect of a Criminal and Civil/Commercial matters and authorities were duly signed and handed over to me.
10. I did advise the client in respect of the Civil/Commercial matter that I would need to determine whether the subject matter was in the area of my expertise and further whether I could take further instructions from him given his current incarceration.
11. To assist me in that respect I agreed and accepted documents from him to review and consider in the sanctity of my office, so that I could form an opinion in respect of the two issues that I had raised with him concerning his civil/commercial matter and advise him in due course.
12. As I have stated during the course of the legal visit I did receive documents and did hand them to my paralegal. My paralegal placed those documents in to the notebook.
13. I note the documents handed over to me were brought to the legal visit by inmate Y. It is my understanding and belief given my experience that all inmates in this unit that bring documents for the purpose of ;legal visits have those documents inspected. I understand also that they are subjected to a full body search before the visit.
14. At the time of the conference prior to it commencing the client confirmed that the above mentioned procedure had occurred, the inmate Y in fact said:
'I have obtained permission to give you these documents.'
15. Having been informed of this fact I formed the belief and view that Corrective Services had no issue with the documents made available to me for the purpose of the interview.
16. In fact the documents handed to me consisted of hand-written notes and a geographic map of a region outside Australia. I accepted the documents to reduce the time of the visit to facilitate Corrective Services as other wise it would have been time consuming to take detailed notes.
18. Having regard to all the facts and circumstances that I was aware of all the time, including the procedures that the client had been subjected to, I accepted the documents knowing full well that it was my obligation and intention to disclose them prior to departure."17. Other than the map I did not read any of the other documents and reviewed the map with an intention of digesting the material later in my office to see whether I could proceed with the engagement or not.
51. As previously mentioned, the video shows the plaintiff studying the map but not the notes which were handed direct by [Y] to Ms Fragakis. The video should be preferred to the plaintiff's recollection.
52. The notes cover a wide variety of matters, including:
· Find two import export agents
· What is the best import
· How much is it to rent a house in Port Moresby - ½ acre
· Enquiries about several nominated islands in the general area between the far north-eastern part of Australia and Papua-New Guinea and transport arrangements
· Can we charter chop from Dalu to Thursday
· Find good Custom official in good position
· How Customs are at Port Moresby
· Mail services
53. The Commissioner submitted that the notes seized, when taken with the map, raised, at the least, serious questions. On one reading they are capable of suggesting that [Y] was planning, with the co-operation of "a good Custom official in good position" to import something from overseas or otherwise remove himself from prison via Papua-New Guinea. In his letter of 17 March 2004 the plaintiff said that during his visit he received instructions from [Y] in respect of a commercial venture his family was considering. The plaintiff undertook to ascertain whether [Y], a convicted felon, could own property in his own right and be a director of a registered company. The plaintiff wrote, "The proposed import/export company would import whitegoods, coffee and boats. There was no suggestion of any proposed illicit trade activity".
54. The link between the notes and the proposed commercial venture is not self-evident and requires further explanation. That was not forthcoming, possibly because the plaintiff ceased to act for [Y] in relation to it.
55. In his oral evidence the plaintiff said that he did not read the notes until the police returned them to him on 9 April 2004. As at that stage he had not decided whether to act for [Y] on the commercial venture proposed. When he read the notes his suspicions were aroused by two matters in combination, namely, the reference to the Customs official and the reference to the helicopter. He realised that he could not act for [Y]. The notes contained many matters which were outside the scope of the broad discussion he held with [Y] on 26 February 2004. There were matters outside the solicitor/client discussions he had held with [Y] and there were also matters which he could not understand from the documents.
56. The plaintiff said that he did not receive any further instructions from [Y[] after 9 April 2004. In fact [Y] told him that he had appointed other solicitors to act for him in respect of the commercial venture.
57. In cross-examination Mr Studeman said that if an inmate wanted to hand documents to his solicitor he made out an application for approval and that was submitted to the Deputy Governor. Mr Studeman was aware that solicitors could bring in documents for a legal visit and show them to their client. He was unsure whether prior permission was needed. Mr Studeman said that he had been assured that [Y] had been properly searched prior to his legal visit. If the solicitor wants to leave documents with the inmate to read the documents must pass through the hands of the prison staff. Mr Studeman stated that all legal visits were monitored in the HRMU.
58. The plaintiff attached importance to [Y] and his papers being thoroughly searched and documents being able to be passed to the inmate's solicitor with approval. It was contended that even if the documents had not been so approved a solicitor would be entitled to assume that any documents which had not been removed during the search had been approved. This does not follow. It is one matter for an inmate to use notes to instruct his solicitor. It is another to hand those notes to the solicitor. However, the plaintiff said that [Y] told him, in response to a question, that [Y] had permission to give the notes to him.
59. The Confidential Evidence
The Commissioner, while contending that he was entitled to act as he had done based on the passing of the notes alone, also relied strongly on some confidential material in respect of which public interest immunity was claimed. In support of that claim the Commissioner read two open affidavits of B R Kelly of 18 May 2004. These are essentially formal and propound the claim. The essence of the claim is contained in a further three affidavits of Brian Kelly described as confidential and sworn on 18 May 2004 (confidential affidavits 1 and 2) and 21 May 2004 (confidential affidavit 3).
60. The Commissioner submitted that the Court should take into account Mr Kelly's three confidential affidavits (with non-disclosure to the plaintiff and his counsel) as these affidavits established that in the circumstances there had been no breach of the rules of natural justice, including that the rules of procedural fairness had been elided to virtually nothing in the present case. The Commissioner submitted that the Court should either receive the affidavits in evidence with an order for non-disclosure of their contents other than to the Commissioner, his legal representatives, nominated senior officers and the Court or note that although not admitted in evidence their contents had been taken into account without disclosing their contents. The Commissioner's stance is that if the Court is not prepared to receive these affidavits on a confidential basis and prohibit access to them by the plaintiff and his counsel, the Commissioner will withdraw the affidavits even though that may have the consequence that the plaintiff would succeed on his claim that he had been denied procedural fairness. The matter is more complicated as the plaintiff issued a Notice to Produce seeking documents which would cover much of the material included in the affidavits.
61. I have inspected and read the confidential affidavits. No summary of their contents has been provided by the Commissioner to the plaintiff.
62. I was troubled that the plaintiff was being put in a very difficult, if not impossible position. The material was damaging and was likely to play a significant part in any decision of the Court. Ideally, the plaintiff should be told of the precise complaints made against him and have the opportunity to repel them. I informed the plaintiff:
The information is sufficient to raise a reasonable suspicion of such misconduct. If the plaintiff were aware of the details he may be able to negative or explain the information.""The materials the subject of the confidential affidavits contain information apart from the incident of 26 February 2004 pointing to misconduct on the part of the solicitor not limited to an isolated occasion.
I readily accept that this was not informative but having gone through the affidavits I was unable to provide a summary which would not effectively destroy the claim for immunity.
63. The intelligence information contained in the three confidential affidavits is such that it would, on its own, if not rebutted, justify the actions of the Commissioner. As no charges have been laid I have proceeded on the basis that admissible evidence is not available to sustain them. In one instance although the misconduct alleged has serious ramifications it may not amount to an offence known to the law; it could affect the security and good order of the HRMU. The problems revealed and the claim for immunity raise issues of difficulty.
64. Counsel for both parties concentrated on the provisions of the Evidence Act 1995, the plaintiff contending that Part 3 of that Act was a code so far as matters of privilege were concerned. That Part is headed Privileges. It deals with client legal privilege (Division 1), Professional confidential relationship privilege – communications made by a person in confidence to another person in the course of a relationship in which the confidant was acting in a professional capacity (Division 1A), sexual assault communications privilege (Division 1B), other privileges (religious confessions), privilege in respect of self-incrimination in other proceedings (Division 2), evidence excluded in the public interest (Division 3), and general provisions (Division 4). The present case centres upon Division 3 which covers three kinds of evidence excluded in the public interest.
65. Section 130 relevantly provides:
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:" (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
…
(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(a) …
(b) …
(c) prejudice the prevention, investigation or prosecution of an offence, or
…(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(f) prejudice the proper functioning of the government of the Commonwealth or a State."(e) disclose, or enable a person to ascertain, the existence or identify of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State.
(a) the importance of the information or the document in the proceeding,
(b) if the proceeding is a criminal proceeding – whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication
(f) if the proceeding is a criminal proceeding and the party seeking to adduce the evidence of the information or document is a defendant – whether the direction is to be made subject to the condition that the prosecution be stayed."(e) whether the substance of the information or document has already been published,
66. The Commissioner contended that when conducting the balancing exercise required under s 130 the court was entitled to take into account any confidentiality regime to be imposed upon the evidence to be adduced.
67. Section 133 enables the court to inspect the document for the purpose of determining whether the information or document should be admitted in evidence. Section 134 provides that evidence that, because of Pt 3, must not be adduced or given in a proceeding is not admissible in the proceeding.
68. Part 3 of the Act goes to considerable lengths to deal comprehensively with matters of privilege. It was pointed out by the Commissioner that a finding that material falls within one of the privileges in the Part in some cases leads to its mandatory exclusion and in others to its discretionary exclusion.
69. The Commissioner submitted that the regime created by s 130(1) is discretionary. Under s 130(1) once the Court reaches the conclusion that the public interest in preserving the secrecy or confidentiality of the information or documents outweighs the public interest in admitting that information or document into evidence the Court may direct that the information or document not be adduced in evidence.
70. For the purpose of these proceedings the Commissioner, if he is to resist the claims based on a lack of procedural fairness, needs to rely on the affidavits. It is the Commissioner's contention that the Court will reach the conclusion just mentioned, but that it will not direct that the information or document not be adduced in evidence. Instead, it will use its powers to preclude the plaintiff having access to it. The Commissioner also correctly contends that it is not possible for the plaintiff to be given a meaningful summary without destroying the secrecy of the information and prejudicing future investigations and law enforcement.
71. It is a particularly serious step for a Court to consider material not made available to one of the parties in the proceedings before it.
72. In R v Secretary of State for the Home Department ex parte Fayed & Another [1997] 1 All E R 228, the Home Secretary refused an application for British citizenship without giving reasons. He was not bound to give reasons. The majority, Lord Woolf MR and Phillips LJ, held that where the decision involved the exercise of discretion he was required to exercise that discretion reasonably. It was not in dispute that the Fayed brothers complied with the formal requirements other than that of good character. The relevance of that to the refusal was not known.
73. At 238 Lord Woolf said:
"… the fact that s 44 provides that the decision is not to be subject to appeal or review does not affect the obligation of the Secretary of State to be fair or to interfere with the power of the court to ensure that requirements of fairness are met."
His Lordship at 238 pointed out that usually notice of the grounds for refusing the application has to be given to avoid the Minister acting unfairly. At 237 the Master of the Rolls pointed out that unless the applicant knew the areas of concern it will be impossible for him to make out his case. The decision maker may rely on matters as to which the applicant would have been able to persuade the decision maker to take a different view.
74. At 238 his Lordship stated:
"In many situations the giving of notice of areas of concern will do no more than identify possible rather than the actual reasons."
And continued at 239:
- "As the minister has a discretion to give the applicant notice of an area of concern that discretion must itself be exercised reasonably. If not to give notice would result in unfairness then the discretion can only reasonably be exercised by giving notice."
75. In passing, at 240, Lord Woolf observed:
"The days when it used to be said that a person seeking a privilege is not entitled to be heard are long gone."
76. After referring to the Privy Council decision in A-G v Ryan [1980] AC 718 that the Minister had to observe the principles of natural justice when he exercises his authority (including his discretion) even where there was an ouster clause Lord Woolf at 241 said:
"It remains for me to deal with the practical consequences of applying the Ryan approach. It does not require the Secretary of State to do more than identify the subject of his concern in such terms as to enable the applicant to make such submissions as he can. In some situations even to do this could involve disclosing matters which it is not in the public interest to disclose, for example for national security or diplomatic reasons. If this is the position then the Secretary of State would be relieved from disclosure and it would suffice if he merely indicated that this was the position to the applicant who, if he wished to do so, could challenge the justification for the refusal before the courts. The courts are well capable of determining public interest issues of this sort in a way which balances the interests of the individual against the public interests of the state."
His Lordship at 241 added:
- "However, in the light of the express prohibition on requiring the Secretary of State to give reasons I would not myself regard this as a case where the need for reasons is so essential that fairness cannot be achieved without reasons as long as an applicant has been given sufficient information as to the subject matter of the decision to enable him to make such submissions as he wishes."
77. The decisions of the Secretary of State were quashed so that they could be re-taken in a manner which was fair. The Secretary of State was required to identify the areas of concern so that it could be ascertained whether the Fayeds would be in a position to make further representations.
78. Kennedy LJ, who dissented, based his opinion on the terms of the British Nationality Act 1981.
79. Phillips LJ attached great importance to the principles of fairness. He adopted and applied the principles formulated in Lord Mustill's speech in Doody v Secretary of State for the Home Dept [1994] 1 AC 531 at 560. The last principle was:
"(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case he has to answer."
80. Phillips LJ described this as the duty of disclosure. At 253 his Lordship said:
"The duty of disclosure is calculated to ensure that the process by which the Minister reaches his decision is fair. It enables the party affected to address the matters which are significant and thus helps to ensure that the Minister reaches his decision having regard to all the relevant material."
Phillips LJ regarded the duty of disclosure as more important than the duty to give reasons.
81. The remarks of Phillips LJ are cogent reminders of the importance of a decision maker telling the person affected of the areas of concern so he can answer them. Thus it is with very great caution that a court would proceed to consider material adverse to the person affected and not disclosed to that person. The reasons for not disclosing such material must be compelling.
82. In Amer v Minister for Immigration and Ethnic Affairs (unreported, 18 December 1989, Federal Court of Australia, Lockhart J) Amer sought judicial review of a decision by the Minister refusing him a visa. The information on which the Minister had acted when refusing the visa was adverse information provided by ASIO to the effect that Amer was a threat to national security. Amer alleged that there was no evidence before the Minister that he had interfered in the affairs of the Arab community as an undisclosed agent of the Libyan Government. Lockhart J received as evidence confidential exhibits 3 and 4 going to that issue. He said at pp 2-3:
"For the Court not to disclose evidence to a party who may be affected by it, and to decline to disclose it on a restricted basis to counsel or solicitors for that party is a serious step which is taken only when necessary. This is a case where it is said that there is a conflict between the interests of the proper determination of issues between parties on the one hand and the balancing of national security on the other. In my opinion, having carefully considered submissions of counsel, the competition between the interests of justice to the applicants on the one hand and the interests of national security on the other calls for the documents not to be disclosed to counsel for the applicant or any other person on behalf of the applicant. Accordingly, I decline to allow that inspection.
There is no perfect solution to a problem such as has arisen here. For the Court not to have inspected the documents would have placed the applicants in an invidious position. At least they have the comfort of the fact that a judge has inspected them and reached the view which I have indicated."I should add that there is in this case no issue for the Court to determine as to whether the first applicant is or is not in fact a threat to the interests of Australian security or whether in fact the first applicant is or is not an unofficial representative here of the Government of Libya. The Court makes no findings on these issues as they are irrelevant to the case.
Amer was decided prior to the Evidence Act 1995. As his reasons disclosed Lockhart J carried out a balancing exercise similar to if not identical with that envisaged by s 130(1).
83. Lockhart J seems to have proceeded on the basis that material not disclosed to one of the parties may be admitted into evidence if that evidence is of importance in the proceedings and the public interest in preserving its secrecy or confidentiality outweighs the public interest in making it available to the party adversely affected. There is a tension between the Court having all relevant material especially if it was before the decision maker and unfairness to the party adversely affected by not being told of it so that party can respond to that evidence. In the circumstances envisaged the public interest in maintaining the secrecy or confidentiality of the material must be compelling. Of course, circumstances may vary greatly and this will affect the balancing exercise. For example, disclosure of the material may be necessary to enable the person affected to obtain a verdict of not guilty. It may destroy the credit of an essential Crown witness. Again, the nature and importance of the civil rights or privileges at issue will be an important consideration in the balancing exercise.
84. The Commissioner relied on the law relating to the issue of a warrant for use of a listening device and pointed out that the material used to obtain the issue of a warrant, although likely to be prejudicial and relevant to any judicial review action in respect of that warrant (or collateral challenge during a trial) is unable to be inspected: Ousley v The Queen (1997) 192 CLR 69 at 79-80 per Toohey J and at 87 per Gaudron J, and Palmer v Kizon (1997) 72 FCR 409.
85. The Commissioner also pointed to cases where media organisations attempt to lift suppression orders, such cases usually proceeding without such organisations being aware of the content of the material. However, in many instances those organisations may well have a good idea of the general nature of the material likely to be covered by the suppression order. The Commissioner accepted that neither of these comparisons is wholly apt.
86. Counsel, in the limited time available, were not able to find any reported decision discussing the source of the Court's power to withhold any portion of the evidence it admitted in contested proceedings from a party adversely affected. In this regard I have not had regard to proceedings in the Protective Jurisdiction of the Court or proceedings regarding infants.
87. For many years the Courts have, as a matter of practice, where necessary, withheld information from an affected party. The names and other particulars of informers and any other details tending to identify them are almost invariably not disclosed. Of course, informers usually do not give evidence.
88. The power of the Court to admit evidence and yet withhold it from the affected party where it is necessary to do so in the interests of justice initially flows from the inherent jurisdiction of the Court. In The Queen v Forbes, ex parte Bevan (1972) 127 CLR 1 at 7, Menzies J with whom Barwick CJ, Walsh and Stephen JJ agreed said:
" 'Inherent jurisdiction' is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as 'inherent jurisdiction', which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have 'inherent jurisdiction'."
89. That power is reinforced by s 23 of the Supreme Court Act 1970:
"The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales."
What is necessary for the administration of justice includes what best serves the public interest.
90. Report 26 of the Australian Law Reform Commission, Evidence, Volume 1, deals with State Interest Privilege in paras 863 and following. They state:
"863 … This category of privilege … has covered information relating to the security and safety of the realm, international relations, prevention and detection of crime and the efficient running of the arms of government … the evidence is excluded as with most privileges, because of potential dangers outside the court room and public interest not connected with the trial process.
864 … Research and enquiries have not revealed any serious inadequacies in the current common law approach. It is proposed to interfere as little as possible with the common law as it has developed with respect to public interest privilege. It presently requires a balancing exercise, weighing the advantages of non disclosure of information against the disadvantages.
866 … The common law approach is followed but the generally accepted common law formula is not entirely satisfactory. Interpreted literally, it requires the judge to consider the competing public interests at a general level. In fact what is required is a balance of 'the nature of the injury which the nation or the public service would be likely to suffer and the evidentiary value and importance of the documents in the particular litigation: Alister v The Queen (1983) 50 ALR 41 at 44-45.' "865 It is important to maintain the present supervisory role of the courts …
91. The report suggests that what was uppermost in the Commission's mind was the traditional situation where the Crown objects to the production of documents and their receipt into evidence rather than what has arisen in the present case. Nevertheless, effect has to be given to the words of the Statute.
92. I am satisfied that the Court has the power in the unusual circumstances of the present case to admit the evidence contained in the confidential affidavits and not give the plaintiff access to those affidavits and the information they contain.
93. The plaintiff in support of its contention that it should be granted access to the affidavits or provided with a useful summary of their effect sufficient to enable him to meet the information in the affidavits and that the balance favoured him submitted:
1. The Commissioner must have known of the "intelligence" before 26 February 2004
2. Neither he nor the Department of Corrective Services was or is an investigatory body
3. The documents taken on 26 February 2004 from the plaintiff by Corrective Services had been returned by the police to the plaintiff as no offence had been established.
4. The documents received by the plaintiff from [Y] did not result in any criminal charge
5. Any professional misconduct should be investigated by the Law Society
6. The Commissioner was wounding without striking. Proper investigatory steps should have been taken.
7. The Commissioner's actions assume the plaintiff is an ongoing security risk and the evidence does not support such a conclusion
8. The plaintiff was falsely imprisoned and the Commissioner is
liable in damages9. The plaintiff has been severely damaged in his livelihood, his practice and his reputation. Effectively, his criminal law practice has been emasculated.
10. The decision to exclude him from all gaols was one taken in bad faith. Reliance was placed on the Commissioner's liability for the false imprisonment of the plaintiff, his employed solicitor and his para-legal (secretary).
11. "Intelligence" is often unreliable as it often comes from unsatisfactory informers or sources
13. In the Commissioner's letter of 31 March 2004 he does not refer to "intelligence" It was only at the end that the Commissioner relied on "intelligence".12. No reason has been advanced why the plaintiff was not interviewed and interrogated in respect of any pre 26 February 2004 activities.
94. Several comments should be made. On the evidence as it presently stands it is not easy to see the connection between the material in the documents seized and the seeking and giving of legal advice. Much of the material seems directed towards non-legal matters. The confidential quality of that material is not readily apparent. There were entries which would reasonably arouse suspicions as to the propriety of what was taking place. The notes had nothing to do with the conduct of litigation or trials.
95. Arguably there has been a breach of cl 97 of the Regulation. However, the plaintiff does not concede this and would, in any event, contend that any breach was a technical one. [Y] would have been searched prior to the interview and the interview was conducted under video surveillance. On the state of the evidence the reluctance of the police to prosecute is understandable. Legal practitioners and clients frequently find it necessary to discuss legal documents and that sometimes involves passing documents back and forward.
96. It does not follow that the Commissioner must have known of all the intelligence information on which he relied prior to 26 February 2004 or appreciated its significance. When the letter of 7 May 2004 was written the Commissioner was entitled to rely on any further intelligence information which had come to light since 26 February 2004 and any credible assessments of information, whether received prior to or after 26 February 2004. Part of the intelligence information on which the Commissioner relied in making his decision of 7 May 2004 was based on material objectively established and did not depend on sources which may be suspect. It would be against the public interest and the ongoing detection of crime and the maintenance of security and order in the prisons for operational systems of the Commissioner to be revealed. The intelligence information is important and bears upon the good order and security of the State's prisons and the detection and prevention of crime.
97. I have borne in mind and applied the statement of principle of Gibbs CJ in Alister v The Queen, supra, that what is required is a balancing of the nature of the injury which the State would be likely to suffer and the evidentiary value and importance of the affidavits (and the information which they contain) in this particular litigation.
98. The public interest in not admitting into evidence the three confidential affidavits (and the information they contain) is outweighed by the public interest in preserving secrecy or confidentiality in relation to the three confidential affidavits of B R Kelly (and the information they contain).
99. However, despite the plaintiff not having access to these affidavits or a summary of their contents, they should be taken into account. I order and direct that they not be disclosed to the plaintiff or any other person except with the leave of a judge of this Court. I have given specific consideration to whether the contents of the affidavits or a summary might be made available to counsel for the plaintiff. There are a number of reasons why I have not made the contents or a summary available to the plaintiff's counsel. It is not in the public interest that anyone other than a limited number of officers of the Department of Corrective Services and the legal representatives of the Commissioner should be made aware of the Commissioner's sources and operating systems to detect and prevent crimes and breaches of prison regulations and rules. Further, in the present case counsel would be embarrassed by such knowledge and not being able to tell his client or his instructing solicitor. Counsel would also experience some difficulty in framing his submissions in such a way as not to give some clue as to the nature of the intelligence information. The latter two reasons are subsidiary reasons.
100. In reaching the conclusions just mentioned I have taken the view that this is one of those rare cases where the rules of procedural fairness have been elided to nothing. In Kioa v West (1985) 159 CLR 550 at 615 Brennan J, in discussing the implication that a statutory power is conditional on observance of the principles of natural justice, said that this did not prevent the repository of the power from modifying procedure to meet the particular exigencies of the case. He continued at 615:
"Where the circumstances are such that the purpose for which the power is conferred would be frustrated if notice were given of an intention to exercise it or of the grounds on which it is intended to exercise it, the power may be exercised peremptorily without giving such notice to a person whose interests are likely to be affected.
and
- It must therefore be accepted, as one commentator points out (G Johnson 'Natural Justice and Legitimate Expectation in Australia', Federal Law Review, vol 15 (1985) 39, at p. 71), that 'the contents of natural justice range from a full-blown trial into nothingness."
And at 615-616:
- "…in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, those principles would have a substantial content."
101. In Johns v Australian Securities Commission (1993) 178 CLR 408 at 472 McHugh J said:
"The need to protect the confidentiality of the ASC's investigation does not exclude procedural fairness, but reduces its content, perhaps in some circumstances to nothing."
The remarks of Brennan J and McHugh J were dicta but, in my respectful opinion, they are correct and cogent.
102. A similar point is implicit in the passage earlier quoted from the judgment of Lord Woolf in R v Secretary of State, Exp Fayed at 241 and in the remarks of Tucker LJ in the seminal judgment of Russell v Duke of Norfolk [1949] 1 All ER 109 at 118. See also Doody v Secretary of State [1994] 1 AC 631 at 560 per Lord Mustill, principle (2).
103. As to the incident of 26 February 2004, the plaintiff put his case to the Commissioner in his subsequent letters. He received a detailed reply. There was also the video. As to the intelligence information I take the view that the content of the rules of natural justice and in particular the rules of procedural fairness have been reduced, in practical terms, to nothing.
104. I record that a number of cases were cited as to the applicability and especially the content of the rules of procedural fairness, namely, WAFG v Minister for Immigration [2003] FCA 3, Applicant Veal of 2002 v Minister for Immigration [2003] FCA 4, Ball v Minister for Immigration [2003] FCA 699, Gilson v Minister for Immigration, 21 July 1997, Lehane J, BC9703148. No point would be served in reviewing these cases each of which can be distinguished. The relevant principles are contained in the passages cited from Kioa, Johns and Al Fayed.
105. Other arguments were advanced. The Commissioner contended that the Court had no jurisdiction to entertain the plaintiff's submissions that he had been denied procedural fairness and that the Commissioner had failed to take into account relevant considerations and had taken into account irrelevant considerations.
106. The Commissioner contended that his decision under cl 105 of the Regulation was correctly characterised as a decision of a managerial nature. It was for him to determine who may or may not enter the prison complexes as he has the care, direction, control and management of all correctional centres (s 232 of the Crimes (Administration of Sentences) Act 1999). He submitted that the reposing in him of that function either removed or severely limited any right of a prisoner to judicial review of management decisions. He relied on Vezitis v McGeechan [1974] 1 NSWLR 718. Section 7 of the Prisons Act 1952 cast upon the Commissioner, subject to the direction of the Minister, the care, direction, control and management of all prisoners. Taylor J at 721 said, "If for security reasons [the Commissioner] elects to treat those he regards as security risks differently from other prisoners and provided he does not do so in breach of the Act or the Regulations, then what he does is not examinable by the Court", and "… the management of the gaol and the prisoners therein is given to the Commissioner in very wide terms, and the manner in which he carries out his duties imposed by the section ought not to be examined by the Court unless there is clear infringement of the Act or regulations". The Commissioner also placed reliance on Bromley v Dawes (1983) 34 SASR 73 and McEvoy v Lobban [1990] 2 Qd R 235. In Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87-88, Dunford J said:
"Generally the court will be reluctant to interfere in the discipline, administration or management of prisoners … but there is authority that the decisions relating to individual prisoners are subject to judicial review if made in bad faith or for improper purposes …".
107. In Flynn v The King (1949) 79 CLR 1 at 8 Dixon J said (omitting citations:
"It is pointed out in the case of Horwitz v Connor that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer the fixed legal rights upon prisoners it would result in applications to courts by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain."
This passage was applied in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 328.
108. In Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 the Appellate Committee of the House of Lords held that judicial review was available in the case of disciplinary decisions made by Prison Governors (and Boards of Visitors) for breaches of prisons statutes and regulations. An important consideration underlying that approach was that such decisions could affect the liberty of the subject by extending the period he spent in gaol. A distinction was drawn between disciplinary decisions and management decisions. At 564 Lord Bridge said, "The day to day management of a prison is one thing, the adjudication of charges against prisoners of specific offences and the award of punishments for those offences is another." Lord Oliver at 573-574 helpfully traced the modern history of judicial review, starting from Ridge v Baldwin [1964] AC 40 and setting out the principles reviewed in the authoritative exegesis of Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237 at 279.
109. At 579 Lord Oliver pointed out that it is not the label of "administration" or "management" that determines the existence of jurisdiction in the Court to review the decision under challenge but the quality and attributes of the decision. Their Lordships acknowledged the difficult task faced by prison authorities in maintaining order, discipline and security in prisons and not undermining their authority. However, on balance, the view was taken that decisions of a disciplinary kind which affected the rights of the subject (including his liberty) were correctly the subject of judicial review.
110. The Commissioner contended that his present decisions were in substance management decisions, made for the good order and security of the prison system.This was so, it was submitted, even if they affected substantially the plaintiff's livelihood. The Commissioner placed emphasis on the right to a legal visit being that of the prisoner and not that of the solicitor.
111. So far as I am aware the Courts have not previously had to consider a case along the lines of the present one. The Commissioner has exercised or purported to exercise the powers conferred on him by cl 105 of the Regulation that the plaintiff be prevented from entering any correctional centre and from visiting an inmate at such centre. For a solicitor, entry to a correctional centre to visit an inmate who is a client is a privilege of considerable importance and value. It enables the solicitor to transact legal business on behalf of his inmate client either by giving legal advice, taking instructions in a wide variety of legal matters or preparing his client's defence or his case for committal proceedings, trial or appeal. The solicitor's legitimate legal work is important in the administration of justice. There is a strong public interest in an accused being adequately represented and his case being properly prepared. This usually involves lengthy conferences between the accused and his legal representatives. It may involve studying a large number of documents including transcripts of evidence.
112. The Regulation emphasises the importance of legal visits and makes particular provision for them. The exercise by the Commissioner of his powers in cl 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.
113. In my opinion judicial review is available to the plaintiff in respect of the exercise by the Commissioner of his powers under cl 105 of the Regulation and in the circumstances of the present case.
114. The plaintiff submitted that the Commissioner had exercised his power in bad faith and for an improper purpose. It was suggested that the Commissioner had been influenced by the prospect of an action against him or the Crown based on the false imprisonment of the plaintiff, Mr K Lee and Ms H Fragakis. The evidence does not support that contention. Nor does it support the contention that the Commissioner exercised his power of exclusion in bad faith or for any improper purpose.
115. On the materials known to the Commissioner I do not regard the Commissioner's decision as unreasonable or disproportionate. While some parts of the intelligence information depended upon sources which were said to be reliable but may not have been, other parts appeared to be reliable and able to be objectively verified. The course he took was fairly open to him on the materials before him. The Commissioner is the decision maker. Provided there is sufficient material to support the Commissioner's decision and there is no relevant error the Court must not substitute its view of the facts (and the appropriate sanction) for that of the Commissioner.
116. I should record that it was conceded by the Commissioner that if, in the circumstances, the contents of the rules of procedural fairness had not been reduced to virtually nothing and judicial review applied in this case, then the plaintiff was entitled to succeed on the basis that there had been a breach of the rules of procedural fairness.
117. In view of the conclusion I have reached the summons must be dismissed with costs.
Last Modified: 07/05/2004
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