Background
Bassam Hamzy, a self-represented inmate in Area 1 of the High Risk Management Correctional Centre at Goulburn, sought a declaration in his underlying proceeding that the facility breached the prohibition on torture, cruel, inhumane or degrading treatment, and treatment adversely affecting an inmate’s physical or mental health under cl 164 of the Crimes (Administration of Sentences) Regulation 2014 (NSW).
Before the final hearing, Hamzy applied under s 53 of the Evidence Act 1995 (NSW) for the Court to inspect Units 7, 8 and 9 of Area 1 and the route from the centre to the main medical clinic. His request included a demonstration of an inmate being moved to the clinic in orange overalls and hand, waist and leg restraints. The Commissioner offered video evidence of relevant parts of the prison and later undertook to include the shackling process and a staff member walking while restrained.
The Court’s Holding
Richardson J dismissed the application for a view, with costs in the cause. The power under s 53 was discretionary, and the proposed exercise was not merely an inspection but extended to a demonstration or reconstruction of a restrained inmate’s movement to the clinic.
The Court held that a physical view would not materially assist its resolution of factual issues or understanding of the evidence beyond the available photographs and the Commissioner’s proposed video. There was no substantial factual dispute about the movement procedures, restraints, or approximate distance to the clinic. The video would also give the parties, the Court and Hamzy’s overseas experts access to the same material.
The Court further weighed the significant operational and security burden of a view: other inmates in Area 1 would need to be confined, and Hamzy’s attendance would require secure transport between Sydney and Goulburn during the trial period. The absence of a settled protocol for the view, including how communications and any demonstration would occur, also counted against making the order.
Key Takeaways
- A s 53 Evidence Act view is discretionary and must offer real assistance beyond existing evidence.
- Video evidence can be an adequate alternative to an in-person inspection or demonstration, particularly where photographs and material facts are largely undisputed.
- Security, prison operations, party attendance, and the absence of a clear viewing protocol are relevant discretionary considerations.
Why It Matters
The ruling illustrates the practical limits on court inspections of secure correctional facilities. Even where prison conditions are central to the substantive claim, a view will not be ordered simply because it may add a “third dimension” to the evidence.
For litigants, the decision underscores the importance of identifying a concrete disputed fact that an inspection will resolve and addressing operational arrangements in detail. Here, the Commissioner’s commitment to tender a sufficiently detailed video was central to the refusal.