Citation: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562
Court: Supreme Court of New South Wales (Common Law Division, Administrative Law List)
Date: 29 June 2004
Judge(s): Smart AJ
Background
A Sydney criminal law solicitor was banned by the Commissioner for Corrective Services from entering any NSW correctional centre from 10 March 2004. The ban extended to his employed solicitor and a paralegal or secretary. It covered all visits, including "box visits" conducted through a screen with no physical contact.
The ban followed an incident on 26 February 2004 at the High Risk Management Unit at Goulburn Correctional Centre. The Commissioner alleged that the solicitor had received documents from an inmate and passed them to his paralegal, who allegedly concealed them inside a folder. The Commissioner relied on that alleged breach of cl 97 of the Crimes (Administration of Sentences) Regulation 2001, video footage of the incident, and undisclosed intelligence information in imposing the prohibition under cl 105 of the same Regulation.
The ban had serious practical consequences. The solicitor could no longer take instructions from incarcerated clients, adequately prepare for trials, or practise effectively in criminal law. He lost staff, closed an office, and relocated to a smaller shared premises. Several clients had been required to seek alternative legal representation.
Legal Issues
- Whether the Commissioner's decision under cl 105 of the Crimes (Administration of Sentences) Regulation 2001 was amenable to judicial review.
- Whether the rules of procedural fairness (natural justice) applied to the Commissioner's exercise of that power, and if so, what their content required in these circumstances.
- Whether undisclosed intelligence information could be taken into account by the Commissioner without disclosing it to the solicitor or his counsel.
- Whether the Commissioner's decision was unreasonable, disproportionate, or made in bad faith or for an improper purpose.
- How s 130 of the Evidence Act 1995 operated in relation to the intelligence material.
Decision
The court held that the Commissioner's decision under cl 105 was amenable to judicial review. The Commissioner had argued otherwise, but Smart AJ rejected that contention. The nature of the power, the significant consequences for the solicitor's reputation and livelihood, and the likely effect on the inmate clients' access to legal representation were all relevant to that conclusion. The Regulation itself emphasised the importance of legal visits and made particular provision for them.
The court accepted that the rules of procedural fairness applied to the Commissioner's exercise of cl 105. However, Smart AJ concluded that in the particular circumstances of this case, those rules had been reduced to virtually nothing. The intelligence information was not disclosed to the solicitor or his counsel, yet was taken into account by the Commissioner. This was central to the procedural fairness complaint.
Significantly, the Commissioner conceded that if procedural fairness had not been reduced to virtually nothing in these circumstances, the solicitor would have been entitled to succeed on the ground that there had been a breach of those rules. The court noted this concession expressly.
On the remaining grounds, the court found no support for allegations of bad faith or improper purpose. The court also declined to find the decision unreasonable or disproportionate, noting that some parts of the intelligence information appeared reliable and objectively verifiable, and that the course taken by the Commissioner was fairly open to him on the materials before him. Because no relevant legal error was established, the court was not in a position to substitute its own assessment of the facts or the appropriate sanction.
Orders Made
- The summons was dismissed with costs.
Key Takeaways
- The Supreme Court confirmed that the Commissioner's exercise of power under cl 105 of the Crimes (Administration of Sentences) Regulation 2001 is subject to judicial review, given the serious consequences for a solicitor's reputation, livelihood, and clients' access to legal representation.
- Procedural fairness applies to cl 105 decisions, but its content is not fixed. In the circumstances here, the court found those rules had been reduced to virtually nothing, which shaped the entire analysis.
- A critical concession emerged from the Commissioner: had the content of the procedural fairness rules not been so diminished in these circumstances, the solicitor would have succeeded on the natural justice ground. The court recorded this concession expressly at paragraph 116.
- Undisclosed intelligence information relied upon by the Commissioner, and not revealed to the solicitor or his legal representatives, was central to the procedural fairness dispute. The operation of s 130 of the Evidence Act 1995 in that context was a significant issue in the proceedings.
- Where a decision maker acts within the range of decisions fairly open on the available material and no relevant legal error is demonstrated, a reviewing court will not substitute its own view of the facts or the appropriate sanction.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Regulation 2001 (NSW), cl 73, 78, 79, 81, 84, 85, 91, 93, 97, 100, 105
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 79(i), 232, 271
- Evidence Act 1995 (NSW), s 130
- Supreme Court Act 1970 (NSW)
- Summary Offences Act (NSW), s 27E
Cases cited (selected):
- Kioa v West (1985) 159 CLR 550
- Doody v Secretary of State for the Home Department [1994] 1 AC 531
- Johns v Australian Securities Commission (1993) 178 CLR 408
- Leech v Deputy Governor of Parkhurst Prison [1988] AC 533
- Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317
- Applicant Veal of 2002 v Minister for Immigration [2003] FCA 4
- 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
- Ousley v The Queen (1997) 192 CLR 69
- The Queen v Forbes, ex parte Bevan (1972) 127 CLR 1