A woman who tried to smuggle drugs into a Cairns prison under the guise of privileged legal mail has lost her bid to have the mail search deemed unlawful.
Shelley Fay Hart posted drugs to the facility in a package marked “private and confidential legal correspondence”, and purportedly from a Cairns law firm.
Prison X-rays, which are conducted on all incoming correspondence to inmates, found dangerous drugs within a cavity carved into bundles of A4-size paper.
In his reasons published on Thursday, Cairns Supreme Court Justice Henry explained why he dismissed Ms Hart’s application under Section 590AA of the Criminal Code 1899 (Qld) to exclude the evidence on the basis that s 45 of the Corrective Services Act 2006 (Qld) was not complied with.
He said s 45 distinguished between “ordinary” and “privileged” mail.
“On the one hand, s 45(1) gives a Corrective Services officer authorised by the Chief Executive the power to ‘open, search and censor’ a prisoner’s ordinary mail,” he said.
“On the other hand, s 45(2) imposes greater protections in respect of a prisoner’s privileged mail,” saying that the officer may, in the prisoner’s presence, open and search the prisoner’s privileged mail, or mail purporting to be privileged mail, if the officer reasonably suspects the mail contains something physically harmful to the recipient, or something prohibited, or it is not privileged mail.
Ms Hart complained s 45(2) was not complied with because the package was not opened in the presence of the prisoner and the requisite reasonable suspicion arose from an illegal X-ray search.
Justice Henry said Schedule 4 of the Act defined “privileged mail” as meaning “mail sent to, or by, a person who is prescribed under a regulation”, including “a prisoner’s lawyer”.
“On the face of it, the mail in question here was not ‘privileged mail’ within the meaning of that term in sch 4 of the Act because it was not sent by the prisoner’s lawyer and thus was not sent by ‘a person who was prescribed under a regulation’. It was, in fact, ordinary mail because it was ‘mail other than privileged mail’,” he said.
“A Corrective Services officer authorised by the Chief Executive therefore had the unfettered right to open, search and censor that mail pursuant to s 41 of the Act.”
Justice Henry stated that even if the search had been unlawful, it would have been in the public interest for the evidence to be admitted.
“It would be an extraordinary outcome to single out for curial disapproval, by the exclusion of evidence, a failure to comply with the statutory procedure designed to protect privileged mail when the mail in question was, as a matter of fact, not privileged at all,” he said.
“It would be a conclusion completely at odds with the fact that neither the applicant or the inmate intended recipient of the mail, were ever legitimately entitled to have such privilege attached to the relevant mail.
“It would also fail to give adequate weight to the obvious public interest in deterring the supply of dangerous drugs into prisons, including under the false pretence of entitlement to the protection of legal privilege.”
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