Reed v Commissioner of Corrective Services - [2008] NSWSC 161

CITATION: Reed v Commissioner of Corrective Services [2008] NSWSC 161

HEARING DATE(S): 29 January 2008

JUDGMENT DATE :
29 February 2008

JUDGMENT OF: Fullerton J

DECISION: (1) The decisions of the delegate of the defendant of 20 August 2007 and 10 September 2007 denying the plaintiff access to all New South Wales correctional centres were not a valid exercise of the powers of the defendant under clause 105 of the Crimes (Administration of Sentences) Regulation 2001.
(2) The decisions of the delegate of the defendant and the decisions of the Assistant Commissioner (Office of the Commissioner and Human Resources) of 17 October 2007 confirming those decisions are quashed.
(3) The defendant is to pay the plaintiff’s costs.

CATCHWORDS: Clause 105(1)(a) of the Crimes (Administration of Sentences) Regulation - Commissioner prohibited solicitor from visiting correctional centres - Whether conduct would prejudice the good security of NSW correctional centres - Finding of deceitful conduct - Whether sufficient material for that finding

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation

CASES CITED: Anderson v Pavic [2005] VSCA 244
Avon Downs Pty Ltd v FACT (1949) 78 CLR 353
Barac v Mood [2006] NSWSC 738
Herald Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329
Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 25
Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59

PARTIES: Isabel Reed (Plaintiff)
Commissioner of Corrective Services (Defendant)

FILE NUMBER(S): SC 2007/15580

COUNSEL: PD Rosser (Plaintiff)
MA Izzo (Defendant)

SOLICITORS: Nicolas Moir and Associates (Plaintiff)
Crown Solicitor of New South Wales (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LIST

FULLERTON J

29 FEBRUARY 2008

2007/15580 ISABEL REED v COMMISSIONER OF CORRECTIVE SERVICES
JUDGMENT

HER HONOUR:

Introduction

1 On 29 August 2007, Superintendent Mood, a delegate of the Commissioner of Corrective Services, purported to exercise a power pursuant to clause 105 of the Crimes (Administration of Sentences) Regulation (“the relevant Regulation”) refusing the plaintiff access to any correctional centre within New South Wales until 13 August 2008, a date after which she may make an application to be considered for future access to the prison system.

2 On 17 October 2007, the Assistant Commissioner (Office of the Commissioner & Human Resources), also a delegate of the Commissioner of Corrective Services, notified the plaintiff of his agreement with Superintendent Mood’s decision.

3 The plaintiff was admitted to practice in April 2005. Although she holds a current practising certificate under the Legal Profession Act 2004, she is not in practice as a solicitor or barrister. It is not clear from the evidence whether this is as a result of the delegate’s decision or for other reasons.

4 The evidence relied upon in support of the plaintiff’s claim for an order quashing Superintendent…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2008] NSWSC 161
Decision Date: 29 February 2008

CaseChat Overview and Summary

In the matter of Reed versus the Commissioner of Corrective Services, the respondent, Mr Reed, sought an order to compel the Commissioner to allow his solicitor access to correctional centres for the purpose of visiting him. The Commissioner had previously prohibited the solicitor from visiting on the basis that such conduct would prejudice the good security of New South Wales correctional centres. Mr Reed's application was dismissed by the Supreme Court of New South Wales. The central legal issue before the Court was whether the Commissioner's decision to prohibit the respondent's solicitor from visiting correctional centres was justified under clause 105(1)(a) of the Crimes (Administration of Sentences) Regulation. This clause permits the Commissioner to prohibit a solicitor from visiting if it is necessary for the good security of the centre. The Court considered the evidence presented and found that there was sufficient material to support a finding of deceitful conduct by Mr Reed. Given this finding, the Commissioner's decision to prohibit the respondent's solicitor from visiting correctional centres was deemed reasonable and justified. The Court found that the Commissioner's decision was not an unreasonable exercise of power, and accordingly, the application was dismissed.

The Court emphasised that the Commissioner's decision-making process was not arbitrary or capricious but rather was based on a legitimate concern for the good security of the correctional centres. The Commissioner had to balance the respondent's right to legal representation with the need to maintain security within the correctional facilities. The Court held that the Commissioner's decision was proportionate to the identified security concerns and was a legitimate exercise of the power granted under the Regulation. The Court found that the Commissioner's decision was based on a reasonable apprehension of a risk to the good security of the correctional centres, and that the Commissioner was entitled to rely on the evidence of deceitful conduct by Mr Reed in reaching this conclusion. The Court concluded that the Commissioner's decision was not an unreasonable exercise of power and was therefore upheld.

Orders