R v Warwick (No.19)

[2018] NSWSC 655

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Warwick (No.19) [2018] NSWSC 655
Hearing dates:	9 May 2018
Date of orders:	09 May 2018
Decision date:	09 May 2018
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Decline to make Order 7 or any alternative recommendation to the same effect as set out in the Further Amended Notice of Motion. (2) Make a recommendation to the Governor of Metropolitan Reception and Remand Centre that he ought to seriously consider permitting Ms Charmaine Warwick to attend legal visits in the company of a member of A R Conolly & Co, being Mr Alan Conolly or Ms Elizabeth Ramsay who are the principals of the firm. (3) Otherwise dismiss the Further Amended Notice of Motion filed 8 May 2018. (4) In respect of the Further Amended Notice of Motion filed 8 May 2018, I order each party pay their own costs.
Catchwords:	CRIMINAL PROCEDURE – application in relation to custodial conditions of accused before trial – agreement reached with Commissioner for Corrective Services as to a number of orders sought – transfer of accused to previous correctional centre – improper to make order permitting solicitors for the accused to have mobile phone access with internet capacity during legal visits – contrary to policy – clear security risk – strong recommendation made that daughter of the accused be able to attend legal visits in company of solicitors for the accused
Legislation Cited:	Not Applicable
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: E Poole (Crown) A R Conolly (Accused) J S Emmett (Commissioner for Corrective Services)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused)
File Number(s):	2015/222068
Publication restriction:	Not to be published until further order of the Court. Non-publication order revoked by direction of Garling J on 20.8.2020.

EX TEMPORE Judgment

1. This is an application by Notice of Motion brought by the Accused. The current pleading is to be found in the document described as the “Further Amended Notice of Motion" which was filed in Court on 8 May 2018. That motion sought eight specific orders or, in the alternative, that the Court make recommendations to the Commissioner for Corrective Services NSW (“the Commissioner”) about specific arrangements addressed in these orders.

2. The matter first came before the Court yesterday, 8 May 2018, when some evidence was taken. It was adjourned until today to enable further evidence to be taken and for the Commissioner's lawyers to obtain further instructions with respect to the relief being sought.

3. When the matter returned to court today, I was informed that a good measure of agreement had been reached between the lawyers for the Accused and the Commissioner and, as a result, a number of the orders that were previously sought were no longer pressed.

4. There were two matters which remained unresolved and required determination. They were Orders 7 and 8 which were sought in the Further Amended Notice of Motion and which read:

“7.   That the solicitor for the defence be permitted to have at legal visits with Mr Warwick his or her telephone with Wi-Fi capacity for the purpose of telephoning the office and receiving calls from the office and for the purpose of sending through to the office dictation for typing.

8.   That Charmaine Warwick, legal clerk, be permitted to attend legal visits with the solicitor.”

5. The evidence of Mr Kevin Corcoran, the Assistant Commissioner (Custodial Corrections) of Corrective Services NSW, is that the Corrective Services has a firm policy that legal practitioners, for security reasons, are not permitted to take mobile telephones with them when attending for legal visits. Mr Corcoran deposed to the fact that there are significant security risks involved in permitting anyone to attend a correctional centre visit with a mobile telephone, and to have it available to be used during any visit.

6. Mr Corcoran gave evidence as to the fact that because legal visits are unsupervised by Corrective Services NSW staff, the risk to security by the misuse of a mobile telephone is increased. He identified these security risks as that:

1. a mobile telephone allows for a covert means of communication with external individuals that has the potential to be used for further criminal activity;

2. mobile telephones have a camera that can be used to take photos within correctional centres; and

3. mobile telephones could allow inmates to gain uncontrolled access to devices and access the internet or other external networks or enable other devices to access these networks. In his evidence, Mr Corcoran informed the Court that access to the internet was prohibited for inmates and anyone inside correctional centres unless very specific approval had been given, and that only in limited circumstances was such approval given.

7. At the Metropolitan Reception and Remand Centre (“MRRC”) at Silverwater the legal visit rooms are, apparently, about 50 metres from the locker area where a visitor's mobile telephone can be stored. It is true that there are a number of security gates through which a visitor must go to access their mobile phone but, according to Mr Corcoran's evidence, the likely delay in accessing that is a matter of minutes rather than any much longer period.

8. In my view, the security policy of the Corrective Services with respect to legal practitioners not having access to mobile telephones during legal visits is appropriate and, frankly, as a matter of common sense, seems to me to be highly desirable.

9. Whilst it would undoubtedly be more convenient to any legal practitioner undertaking a legal visit to be able to access their mobile telephones and the internet, it does not seem to me that such convenience, undoubted though it is, ought be seen by this Court to outweigh the obvious and clear security requirements in a correctional centre such that I should either make an order of the kind sought in Order 7 of the Notice of Motion or else a recommendation to that effect.

10. Accordingly, I decline to make Order 7 or any alternative recommendation to the same effect as set out in the Further Amended Notice of Motion.

11. The other relief sought is an order that with respect to an identified legal clerk being permitted to attend legal visits. Some short background is necessary. As I am told by evidence, the identified legal clerk, who is the daughter of the Accused, is a member of the legal team instructed for the Accused. Initially she was not permitted to attend legal visits, but after discussions between the legal firm A R Conolly & Co and the authorities at the MRRC, she was permitted to attend legal visits.

12. Mr Warwick is shortly to be transferred back to the MRRC at Silverwater and, because there is no state-wide policy which restricts the attendance of family members as legal clerks during a legal visit, I am satisfied that the decision as to whether or not Ms Warwick can attend during a legal visit would ordinarily be made by the Governor of the MRRC or such member of the MRRC staff as may be delegated to make that decision.

13. It seems to me that there are a variety of factors which that decision-maker would need to keep in mind, and it may be that there are other additional issues which cause the decision-maker to be cautious about allowing the particular law clerk to attend. However, it would appear that any such issues could be addressed by agreement with the principal solicitor for the accused, Mr Alan Conolly.

14. In those circumstances, it seems to me that the best resolution of this Notice of Motion is not to make the order that is sought in Order 8, but rather to make a recommendation to the Governor of the MRRC that he ought to seriously consider permitting Ms Charmaine Warwick to attend legal visits in the company of a member of A R Conolly & Co, being Mr Conolly or Ms Elizabeth Ramsay, who are the principals of the firm.

15. I should note that counsel for the Commissioner of Corrective Services properly did not argue against such a recommendation being made, accepting that the Court's recommendation, which is made with the aim of ensuring a fair and efficient trial, should be a matter which the Governor takes into account in coming to any decision which is made.

16. Of course, the Court's powers are not exhausted by the making of this recommendation and it remains open, having regard to events which may occur in the future, for the matter to be brought back before the Court if further relief is sought. However, this is added merely to indicate that, in the ordinary course of events, interlocutory motions of this kind can be renewed and they do not necessarily form a complete end to the Court’s capacity to make orders on this issue.

17. In all of those circumstances, I will make the recommendation which I have outlined. I will otherwise dismiss the Notice of Motion.

Orders

18. I make the following orders:

1. Decline to make Order 7 or any alternative recommendation to the same effect as set out in the Further Amended Notice of Motion.

2. Make a recommendation to the Governor of Metropolitan Reception and Remand Centre that he ought to seriously consider permitting Ms Charmaine Warwick to attend legal visits in the company of a member of A R Conolly & Co, being Mr Alan Conolly or Ms Elizabeth Ramsay who are the principals of the firm.

3. Otherwise dismiss the Further Amended Notice of Motion filed 8 May 2018.

4. In respect of the Further Amended Notice of Motion filed 8 May 2018, I order each party pay their own costs.

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Amendments

24 August 2020 - Revocation of non-publication order

Decision last updated: 24 August 2020