Citation: Reed v Commissioner of Corrective Services [2008] NSWSC 161
Court: Supreme Court of New South Wales
Date: 29 February 2008
Judge(s): Fullerton J
Background
A solicitor (the plaintiff) had carriage of a matter involving an inmate at Dillwynia Correctional Centre. In August 2007, the plaintiff attended the centre accompanied by a man who was both a law student assisting her on the case and the brother of her client. The plaintiff introduced him to reception staff as a law student who was assisting her, showed his student card, and did not identify him as a family member of the inmate.
A delegate of the Commissioner of Corrective Services concluded that the plaintiff had deliberately deceived corrections staff by presenting a family member under a legal capacity to gain entry. On that basis, the delegate prohibited the plaintiff from entering any New South Wales correctional centre for twelve months, under clause 105 of the Crimes (Administration of Sentences) Regulation 2001. A second delegate, the Assistant Commissioner (Office of the Commissioner and Human Resources), confirmed that prohibition on review.
The plaintiff sought judicial review in the Supreme Court, challenging both the original decision and the confirmation of it, on the ground that neither was a valid exercise of the Commissioner's power under clause 105.
Legal Issues
- Whether the delegates had a valid basis under clause 105(1)(a) of the Crimes (Administration of Sentences) Regulation 2001 to prohibit the plaintiff from accessing all NSW correctional centres
- Whether there was sufficient material to support the finding that the plaintiff had engaged in deceitful conduct
- Whether the plaintiff was under any obligation to disclose to corrections staff that the person accompanying her was also a family member of the inmate
Decision
Fullerton J found that the delegates' conclusion of deliberate deception was not supported by the available evidence. The plaintiff had accurately described the companion as a law student assisting her on the matter, which was objectively true. The court found no evidence establishing that she had an obligation to also disclose his familial relationship to her client, particularly where there was reason to believe staff could have discovered that connection through their own systems.
The court noted that clause 92 of the Crimes (Administration of Sentences) Regulation places the obligation to provide information about a visit on the individual visitor, and that the obligation is directed to the purpose of the visit. The companion's purpose on this occasion was genuinely to assist with the legal matter. His status as a family member was a separate and distinct fact, and there was no evidence the plaintiff deliberately withheld it to circumvent any restriction, especially when no evidence showed he would have been excluded as a family member in any event.
Because the finding of deceptive conduct was not supported by sufficient material, the prohibition imposed under clause 105(1)(a) lacked a valid foundation. The decisions of both delegates were therefore not a lawful exercise of the Commissioner's powers and were quashed.
Orders Made
- The decisions of the delegate of 20 August 2007 and 10 September 2007 denying the plaintiff access to all NSW correctional centres were not a valid exercise of the Commissioner's powers under clause 105 of the Crimes (Administration of Sentences) Regulation 2001
- The decisions of the delegate and the Assistant Commissioner (Office of the Commissioner and Human Resources) of 17 October 2007 confirming those decisions are quashed
- The defendant is to pay the plaintiff's costs
Key Takeaways
- A finding of deliberate deception, for the purposes of exercising the Commissioner's power to exclude a legal visitor from correctional centres under clause 105(1)(a), must be supported by sufficient evidentiary material; a conclusion unsupported by evidence will not sustain the exercise of that power.
- Under clause 92 of the Crimes (Administration of Sentences) Regulation, the obligation to provide information about a visit falls on the individual visitor, not on a solicitor accompanying them; the scope of that obligation matters when assessing whether non-disclosure amounts to deception.
- Accurately describing a companion's role, where that description is objectively true, does not constitute deception simply because another characteristic of that companion (such as a family relationship) was not also volunteered.
- In the absence of evidence that a person would have been refused access in their own right as a family member, there was no foundation for inferring that a failure to identify them as such was motivated by an intent to deceive.
- The Supreme Court confirmed it will scrutinise whether delegates exercising the Commissioner's powers under the Crimes (Administration of Sentences) Regulation have identified a proper factual basis for restrictions on legal visitors to correctional centres.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999
- Crimes (Administration of Sentences) Regulation 2001, clauses 92 and 105
- Legal Profession Act 2004
Cases:
- 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