New South Wales Supreme Court CITATION : Barac v Mood & 3 Ors [2006] NSWSC 738 HEARING DATE(S) : 20/07/06 JUDGMENT DATE : 26 July 2006 JURISDICTION : Common Law Administrative Law List JUDGMENT OF : Ipp JA at 1 DECISION : Plaintiff's summons dismissed with costs CATCHWORDS : ADMINISTRATIVE LAW - plaintiff prevented from entering any correctional centre in New South Wales for 36 months - plaintiff attempted to introduce a mobile phone into a correctional centre - whether the decision by the defendants to prohibit the plaintiff was properly made. Crimes (Administration of Sentences) Act 1999 (NSW), s 79 LEGISLATION CITED : Crimes (Administration of Sentences) Regulation 2001 (NSW), cl 93, 97, 105 Summary Offences Act 1988 (NSW), s 27E(2)(b) CASES CITED : Bruce v Cole (1998) 45 NSWLR 163 Mercedes Barac (Plaintiff) Barry Mood (First Defendant) PARTIES : Peter Peters (Second Defendant) Ron C Woodham (Third Defendant) The State of New South Wales (Fourth Defendant) FILE NUMBER(S) : SC 30101/05 J Levingston (Plaintiff) Submitting Appearance (First Defendant) COUNSEL : Submitting Appearance (Second Defendant) Submitting Appearance (Third Defendant) N Perram/F Salama (Fourth Defendant) SOLICITORS : Tully & Co (Plaintiff) Crown Solicitor (Fourth Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST IPP JA Wednesday 26 July 2006 30101/05 MERCEDES BARAC v BARRY MOOD & 3 ORS JUDGMENT 1 IPP JA: Ms Barac is refused visiting privileges at Lithgow prison and seeks relief 2 Since 1998 Mr David Barac has been a prisoner in Lithgow Correctional Centre. The plaintiff, Mercedes Barac, is Mr Barac's partner. Ms Barac has been visiting Mr Barac since 1998 apart from periods when she was not permitted to do so. 3 On 20 November 2004 Ms Barac went to the Lithgow prison to visit Mr Barac. She took with her some socks and underwear that she wished to give him. She also had a mobile telephone in her possession. At the reception area in the prison Ms Barac handed to a prison officer a plastic bag, apparently containing only the socks and underwear. The bag and its contents were to be given to Mr Barac. On inspection, the officer found that the bag also contained the mobile phone. 4 By letter dated 24 November 2004, Mr Barry Mood, the superintendent of the prison, informed Ms Barac that he was of the opinion that her conduct had involved a deliberate attempt to introduce the mobile phone into the prison and that Ms Barac was a threat to the good order and security of correctional centres. He thereby gave her notice that she was prevented from entering any correctional centre in New South Wales for 36 months. 5 By letter dated 29 November 2004, Ms Barac requested a review of the decision of 24 November 2004. By letter dated 17 December 2004, Superintendent Mood informed Ms Barac that her request for reinstatement of visiting privileges was refused but he was prepared to consider reinstatement after 23 November 2007. 6 By letter dated 25 October 2005, Ms Barac wrote to the Attorney General of New South Wales, requesting that Superintendent Mood's decision be reversed and her visiting privileges at Lithgow reinstated. By letter dated 7 December 2005, the Commissioner of the New South Wales Department of Corrective Services confirmed Superintendent Mood's decision. Accordingly, Ms Barac's visiting privileges were withdrawn until the Commissioner reconsidered the issue and he would only do this after 23 November 2007. 7 Ms Barac has brought proceedings by summons for various forms of declaratory relief, all with the purpose of establishing that each of the decisions of 24 November 2004, 17 December 2004 and 7 December 2005 was invalid. 8 Mr Levingston, who represented Ms Barac, submitted that Ms Barac was entitled to the relief claimed on any one of the following five grounds: (a) The penalty imposed on Ms Barac was out of proportion to the wrongfulness or impropriety of her conduct. (b) The decision-maker, in each case, took into account extraneous and irrelevant material. (c) The decision-maker, in each case, failed to take into account relevant material by disregarding the explanation given by Ms Barac for the mobile phone being in the plastic bag (namely, that she had put it there by mistake). (d) The decisions were based upon a "slavish adherence to policy". (e) In making his decision on 7 December 2005, the Commissioner failed to take into account the fact that by then the District Court had quashed an order by a magistrate in the Local Court convicting Ms Barac of an offence arising out of the mobile phone being in the plastic bag. 9 Mr Perram, who together with Mr Salama appeared for the defendants, pointed out that the five grounds relied on by Mr Levingston to a degree went outside Ms Barac's pleaded case. Mr Perram said, however, that he was content for the case to be advanced in accordance with the five grounds, subject to his right to object to arguments being raised (in support of the grounds) based on particulars that the defendants had sought but which had not been provided. The trial proceeded accordingly. The relevant legislative structure 10 Section 79 of the Crimes (Administration of Sentences) Act 1999 (NSW) provides that regulations may be made providing for or with respect to visits to inmates (s 79(i)) and the receiving of parcels by inmates (s 79(k)). It is not in dispute that the Crimes (Administration of Sentences) Regulation 2001 (NSW) (the "Regulation") was duly made pursuant to s 79. 11 Clause 93 of the Regulation provides: "(1) An authorised officer or the principal security officer may require a visitor: (a) to submit to an inspection and search of personal possessions … … (2) Except as otherwise provided by this Regulation or as permitted by an authorised officer, a visitor must, while the visit is taking place, leave anything that the visitor has brought into a correctional centre in storage facilities provided for the purpose at the centre. … (3) An authorised officer or the principal security officer may confiscate, for the duration of the visit, anything that a visitor has brought into the correctional centre but not left in storage facilities as required by subclause (2)." 12 Clause 97 of the Regulation 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." 13 Clause 105 of the Regulation provides: "(1) The Commissioner may direct that a particular person be prevented from entering any correctional centre, or from visiting an inmate at any such centre, if of the opinion: (a) that such a visit would prejudice the good order and security of any such correctional centre, or … (2) A direction under this clause has effect for such period as it may specify or, if no such period is specified, until it is revoked by a further direction." Proportionality 14 In withdrawing Ms Barac's visiting privileges, the Superintendent and the Commissioner took into account an earlier incident on 21 September 2002. On that date, Ms Barac went to the Lithgow Correctional Centre to visit Mr Barac. There, she gave three items of underwear to a prison officer to check before handing the underwear to Mr Barac. A prison officer found four to five compact discs wrapped in the underwear. On this ground, on 8 October 2002, the Department of Corrective Services notified Ms Barac that she was prohibited from attending any New South Wales prison for a period of two years. Ms Barac requested the Department to reconsider its decision. It refused. Ms Barac commenced proceedings in the Supreme Court to have the prohibition removed. These proceedings were settled and on 3 April 2003 the prohibition was lifted. 15 Superintendent Mood took into account the "circumstances" of the incident involving the compact discs in making his decisions to deny Ms Barac access to correctional centres with effect from 23 November 2004. The inference is that the Commissioner did the same. 16 Subject to the other grounds raised by Ms Barac (with which I deal below), the prior conduct of Ms Barac involving a similar attempt to introduce contraband (the compact disks) into the prison was plainly relevant to the decision to withdraw her visiting privileges. 17 Subject to the grounds relied on by Ms Barac, I am unable to conclude that the restriction imposed upon Ms Barac was out of proportion to the seriousness of her conduct. It is plain from the evidentiary material, that the prison authorities – for appropriate reasons – regard the clandestine introduction of mobile telephones into the prison as a serious matter. The fact that she had previously attempted to bring other forbidden material into the prison (even if it be accepted that she did so by mistake) exacerbated her culpability. 18 The proportionality ground relied on by Ms Barac is, in any event, not "a separate ground for review in the context of judicial review of administrative action": Bruce v Cole (1998) 45 NSWLR 163 at 183 to 187. Extraneous material 19 In his oral submissions, Mr Levingston sought to argue that the Superintendent and the Commissioner had relied on inaccurate descriptions of the incident involving the mobile phone, as well as reports of prior conduct on the part of Ms Barac which contained incorrect factual allegations. 20 The most important of this material were reports that Ms Barac had "secreted" the mobile phone in the plastic bag. There is little doubt that Superintendent Mood relied on statements to this effect when he formed the opinion that Ms Barac had made "a deliberate attempt to introduce a mobile phone into Lithgow Correctional Centre". There is a strong inference that the Commissioner relied on the same material, as well as the Superintendent's opinion. 21 Mr Levingston sought to argue that the reports that Ms Barac secreted the phone were wrong and not borne out by the evidence. I held, however, in upholding an objection by Mr Perram, that he was precluded from advancing this proposition. The reasons for my decision appear from the transcript but, in summary, my decision was based on the fact that Ms Barac's pleaded case did not inform the defendants that she would advance this contention. Indeed, Mr Levingston candidly informed the Court that he first thought of the arguments in this respect the day before the trial commenced. 22 Before sustaining the objection, I pointed out to Mr Levingston that, while prima facie there appeared to be some substance in his argument, I could not allow it to be advanced without giving the defendants an opportunity to lead evidence to rebut it or, if they wished, to call for the cross-examination of Ms Barac. I asked him whether he wished to adjourn the matter so that these issues could be raised properly but he declined. 23 In the circumstances, the argument based on the taking into account of irrelevant material fails. 24 There is one other aspect that I should deal with under this heading. Superintendent Mood took into account material that appeared to be contradictory concerning the ownership of the mobile phone. Ms Barac had informed the prison officer, when the mobile phone was discovered, that she was the owner of it. In Superintendent Mood's letter of 17 December 2004 to Ms Barac he noted, "the phone number of the mobile phone in question is registered to your son Esteven Barac". Mr Levingston referred to evidence indicating that the account for the mobile phone was in the name of Ms Barac and submitted that she was entitled to regard the phone as belonging to her. Mr Perram, in reply, drew attention to the fact that, by letter dated 27 January 2005 to Superintendent Mood, Ms Barac accepted that the mobile phone was "registered to my thirteen years [sic] old son Steven Barac". Whatever the merits of this dispute, I do not regard the identity of the owner of the mobile phone as being significant. The letters from Superintendent Mood recording his reasons for his decisions do not indicate that he regarded the ownership of the phone as a matter of any weight and there is nothing to suggest that it had any persuasive influence on the Commissioner. Disregarding Ms Barac's explanation 25 Ms Barac consistently asserted that she had placed the phone in the plastic bag by mistake. The report that she had "secreted" the phone within the underwear, however, justified Superintendent Mood and the Commissioner in disbelieving her. 26 Mr Levingston drew attention to the reasons for judgment of McLoughlin DCJ in upholding Ms Barac's appeal against her Local Court conviction on the charge that she, without lawful authority, brought a mobile phone into the Lithgow Detention Centre in breach of s 27E(2)(b) of the Summary Offences Act 1988 (NSW). His Honour's reasons record the evidence of the prison officer who found the mobile phone. The police officer had testified: "It's my habit when I receive the items I actually place the bag on a table and it's my habit from there to empty the bag and then search and count the items as I place them back into the bag. During that process there was an amount of underwear and a number of pairs of socks that were contained in a cardboard sleeve. I'd empty the lot onto a table and then commence to go through the underpants and I was searching them and I uncovered a mobile phone which was secreted between them. The officer later said: "It was the underpants were folded. They were actually as you would buy underpants. The underpants packaged individually, they weren't packaged at all, they were just as they are and they are packed on top of each other and folded, then placed into the bag. I lifted them out in the same manner as they would have been placed in. I laid the underpants flat, the phone was within the underpants, not sitting on them and that's why I used that word. Q. So you say within between two different pairs were inside one pair. A. No they were between pairs." 27 Mr Levingston submitted that this material established that the word "secreted" is a misdescription of what had occurred. The problem with this submission, again, is that it raises factual issues that were not properly revealed by Ms Barac's pleaded case. For that reason, I did not allow the point to be developed in argument. 28 I would say, in any event, that Ms Barac knew, from her past experience, how seriously prison authorities regarded the introduction, without permission, of articles such as mobile telephones and there was a heavy duty on her to take care in this regard. The argument that Superintendent Mood and the Commissioner should have attached greater weight to Ms Barac's version of what occurred is not persuasive. Adherence to policy 29 Mr Levingston drew attention to a file note dated 23 November 2004 by Superintendent Mood in the following terms: "As a matter of consistency and as a guideline, a visitor attempting to introduce contraband into a correctional centre for delivery to an inmate will be denied access to all NSW correctional centres for a period of 24 months. From time to time discretion is exercised if there is mitigating circumstances. The Department of Corrective Services has a zero tolerance to the introduction of contraband into correctional centres and correctional centre property". 30 Mr Levingston submitted that Superintendent Mood had simply applied the "zero tolerance" policy in making his decisions (and the Commissioner had merely followed suit). 31 I do not accept this submission. It is plain from the same note that Superintendent Mood took into account the policy but applied his mind independently to the issue. The note records: "The prior period of prohibition and the subsequent warning in the letter of reinstatement proved to be ineffective and has not deterred [Ms Barac]. I have formed the opinion that [Ms Barac] is a threat to the good order and security of correctional centres. When individuals who prejudice the good order and security of correctional centres are brought to the attention of this office more than once, it is usual that a longer period of prohibition is imposed. Taking into account the serious nature of the contraband involved and the circumstances of the previous incident, I deny [Ms Barac] access to all NSW correctional centres. I am prepared to consider revocation of the order after 23 November 2007." 32 In his letter of 24 November 2004 to Ms Barac, Superintendent Mood wrote: "I am of the opinion that this was a deliberate attempt to introduce a mobile phone into Lithgow Correctional Centre. The Department of Corrective Services has a zero tolerance to the introduction of contraband into correctional centres and correctional centre property. Taking into account the serious nature of the contraband involved and the circumstances of the previous incident, I have formed the opinion that you are a threat to the good order and security of correctional centres. When individuals who prejudice the good order and security of correctional centres are brought to the attention of this office more than once, it is usual that a longer period of prohibition is imposed." After informing Ms Barac that he had decided to deny her access to all New South Wales Correctional Centres with effect from 23 November 2004, he stated: "I am prepared to consider revocation of the order after 23 November 2007, subject to a formal application from you in writing at that time. However, if you have any matters in the meantime that you wish to raise that would show cause why the above prohibition should not continue you may contact this office in writing." 33 The quoted extracts from Superintendent Mood's letter, particularly his invitation to Ms Barac to "show cause" why the prohibition should not continue, reinforces the inference that Superintendent Mood did not approach the decision before him with a closed mind, he did not adhere rigidly to the zero tolerance policy, but – having reference to that policy – exercised his discretion in an appropriate way. There is nothing to suggest that the Commissioner did not adopt the same approach. Consideration of changed circumstances 34 At the time that Superintendent Mood made his decision of 24 November 2004, Ms Barac had not been charged with a criminal offence. Superintendent Mood's decision of 17 December 2004 was made after Ms Barac had been charged in the Local Court. The decision made by the Commissioner on 7 December 2005 was made after Ms Barac's conviction in the Local Court had been overturned by the District Court. Mr Levingston submitted that, in making his decision of 7 December 2005, the Commissioner, wrongly, had not taken into account the changed circumstances constituted by the setting aside of the conviction. 35 On 25 October 2005 Ms Barac wrote to the Attorney General informing him: "The charge of introduce [sic] a mobile telephone into Lithgow Gaol was dismissed in the New South Wales District Court." Ms Barac referred the Attorney General to the fact that she had requested the Commissioner to review his decision prohibiting her from visiting the Correctional Service gaol facilities for a period of three years. She asked the Attorney General for his assistance in this respect. 36 On 7 December 2005 the Commissioner wrote to Ms Barac, stating that her letter to the Attorney General of 25 October 2005 had been referred to him. That the Commissioner saw Ms Barac's letter is further borne out by the words "prohibition is to remain" which the Commissioner wrote at the bottom of that letter. 37 In his letter of 7 December 2005, the Commissioner referred to her letter to the Attorney General and stated: "I can advise that following consideration of your most recent letter, my decision has not changed and the prohibition will remain in place." 38 Mr Levingston pointed to the fact that there was no express reference in the Commissioner's letter of 7 December 2005 to the setting aside, by the District Court, of the conviction in the Local Court. He submitted that the inference should be drawn that the Commissioner did not bear the successful appeal in mind when he determined that the prohibition should remain in place. 39 I am not persuaded by this argument. The Commissioner stated expressly in his letter of 7 December 2005 that he had considered Ms Barac's letter of 25 October 2005 to the Attorney General. That letter, as I have noted, made express reference to the decision of the District Court overturning the Local Court conviction. The strong inference is that the Commissioner read the letter of 25 October 2005 and was aware of Ms Barac's successful appeal to the District Court. Conclusion 40 In the circumstances I consider that Ms Barac's summons should be dismissed with costs and I make that order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.