Brazel v Westin
[2014] VSC 344
•25 July 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 1800
| GREGORY JOHN BRAZEL | Applicant |
| v | |
| MELISSA WESTIN | Firstnamed Respondent |
| and | |
| KEVIN WHITE | Secondnamed Respondent |
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JUDGE: | OSBORN JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June 2014 | |
DATE OF JUDGMENT: | 25 July 2014 | |
CASE MAY BE CITED AS: | Brazel v Westin | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 344 | |
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JUDICIAL REVIEW – Prison disciplinary hearings – Applicant prisoner charged breaches of s 50(1)(e) and (f) of the Corrections Act 1986 – Whether the applicant entered a plea of guilty in respect of the charge under s 50(1)(f) – Whether denial of procedural fairness in finding the applicant guilty under s 50(1)(e) – Whether entitlement to particulars – Whether entitlement to preview evidence – Whether entitlement to call additional witnesses – Whether entitlement to have evidence adduced by video link – Corrections Act 1986 – Corrections Regulations 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondents | Mr L Brown | Ms D Coombs, Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
Background facts................................................................................................................................ 2
The course of the hearings............................................................................................................... 6
The grounds of review.................................................................................................................... 14
The statutory framework................................................................................................................ 15
A preliminary issue......................................................................................................................... 21
Information concerning the prohibited items............................................................................ 24
Notice of the second hearing......................................................................................................... 28
Restriction on witnesses................................................................................................................. 29
The practice of receiving evidence by telephone...................................................................... 30
Other matters.................................................................................................................................... 31
Conclusion......................................................................................................................................... 31
HIS HONOUR:
The applicant has been a prisoner within the jails of this State for some 23 years and remains in continuing custody. In late 2012 he was held at the Metropolitan Remand Centre (‘MRC’) where Ms Westin, the firstnamed defendant, was then the General Manager and Mr White, the secondnamed defendant, was then the Operations Manager.
The applicant seeks to review decisions made at a General Manager’s Disciplinary Hearing conducted by Mr White on 15 November and 21 December 2012.
On 15 November 2012 the applicant was found guilty of a breach of a regulation governing possession of prohibited items and a penalty of five days’ loss of privileges was imposed.
On 21 December 2012 the applicant was found guilty of a further breach of the same regulation and fined $100.
The applicant seeks to have these convictions set aside. He has prepared the originating process and supporting material himself and it is necessary for the Court to make some reasonable allowances to take account of this fact and deal with the substance of his complaints.
Background facts
On 18 October 2012 two prison officers at Port Phillip Prison undertook a random search of the applicant’s cell. They discovered a number of prohibited items including assorted medication in the form of tablets and a variety of other objects.
Items were seized and photographed and the applicant was informed of the seizure.
On 19 October 2012 the staff involved in the search filed an incident report. This described the results of the search in summary as follows:
On the above time and date the abovementioned staff conducted a cell search of cell 133 (occupied by prisoner Brazel). The results of this search were a vast quantity of assorted medication tablets, several blades, metal bowl, radio call guide, sandwich press, powerboard, chess set, white board cleaner, blade and shaft from a stick blender, squeeze bottle with liquid (presumably cough mixture), medication cups and multiple envelopes/documents — belonging to other prisoners. All items seized and photographed. Contraband placed into the evidence locker and unit items returned to the unit. Medications were identified as being prescribed to prisoner Brazel.
The report further recorded the following investigation of the search:
Prisoner Brazel states ‘I agree in the most part with the content of the report though not entirely accurate. I accept responsibility for the medication. I know nothing about the blades. I found the radio guide on the laundry table. The powerboard is mine. The metal bowl was given to me by SVCH to soak my foot when I had an infection.
The photograph showing the medication is set out below.
Other photographs depicting the blades and the sachet in which they were found, the radio code guide, the squeezable bottle and what appears to be the blade and shaft of a stick blender were also produced. No photos of the metal bowl, sandwich press, powerboard, chess set, whiteboard cleaner, medication cups or the ‘multiple’ documents have been produced in evidence in this proceeding.
It was determined that the applicant should be charged.
On 19 October 2012 the applicant was moved to the Metropolitan Remand Centre. He states that there was some press reportage of this fact which was erroneously linked to his possession of documents concerning other prisoners.
On 22 October 2012 a disciplinary officer of Port Phillip Prison laid two disciplinary charges under the Act and the Corrections Regulations 2009 (the ‘Regulations’) against the applicant regarding the possession of the items seized from his cell. The second charge was intended to relate to the medication only and the first charge to other items seized.
The applicant was given a document entitled Notification of Charge of Prison Offence, but that document did not itself particularise the items of contraband said to have been found in his cell. It stated:
NOTIFICATION OF CHARGE OF PRISON OFFENCE
Section 48-53, CORRECTIONS ACT 1986SECTION 50-59, CORRECTIONS REGULATIONS 2009
I, Colin Angus (Name of designated Disciplinary Officer) of Port Phillip Prison, Charge Gregory Brazel (CRN 1961) (Name of Prisoner) On the information of C/O:- S Biram of Port Phillip Prison (Name of Informant) (Prison) With the Following Offence(s) To Wit: Contraband Found 50(1)(e) have in his possession an article or substance, unless the article or substance—
(i) has been issued or authorised by an officer, or
(ii) has been prescribed by a medical officer, medical practitioner or dentist, or
(iii) is permitted under the act or these Regulations
50(1)(f) take or use alcohol, a drug of dependence or possess an unauthorised substance or article that has not been lawfully issued to the prisoner or take or use alcohol or a drug of dependence lawfully issued in a manner that was not prescribed or authorised
allegedly committed on
Thursday, 18 October 2012
(Date of alleged offence) at Port Phillip Prison (Place of alleged offence) And that this is an offence under Regulation 50 of the Corrections Regulations 2009 Proceedings related to this matter will take place at a hearing to be held on:
date:
Monday, 29 October 2012 10:00AM
at:
Port Phillip Prison
before:
Operations Supervisor
Signed:
C Angus
Date:
22 October 2012
The notice contemplated a hearing before the Governor’s delegate.
The notice also contained an explanation of the procedure involved in dealing with the charges:
The matter of dealing with the offence with which you are charge[d] is set down in the Corrections Act 1986 and the Corrections Regulations 2009.
Under section 52(1) of the Corrections Act, you may ask the Governor to refer the matter to another Governor for hearing. This should be done in writing to the Governor as soon as possible upon receiving this notification.
Under section 52(2) of the Corrections Act, you may call relevant witnesses. The Governor should be advised in writing as soon as possible of witnesses to be called to enable appropriate arrangements to be made. The Governor may allow [scil disallow] an excessive number of witnesses.
Under section 53(3) of the Corrections Act, you may, with the Governor’s permission, be represented by another prisoner. The request to be represented by another prisoner should be made in writing to the Governor as soon as possible after receiving this notification.
The Governor’s hearing will be conducted according to the following procedures:
· The Governor will read the charge, the name of the informant, the place at which the alleged offence occurred and the details of the section of the Act or Regulation allegedly breached;
· You will be asked whether you plead not guilty to the charge;
· If you plead not guilty, the informant will present evidence to support the charge and call witnesses;
· You will be given the opportunity to cross examine the informant and the informant’s witnesses;
· You will be given the opportunity to present your case and call relevant witnesses;
· The informant will be given the opportunity to cross examine you and your witnesses;
· If the Governor finds you guilty, the Governor will determine the penalty;
· If you plead guilty, the Governor will review the circumstances of the case and determine the penalty;
· The Governor will inform you of the determination and the penalty imposed.
Under section 53(3A) of the Corrections Act, the charge may be heard in your absence should you refuse or fail to attend the hearing. If you refuse or fail to attend, a plea of not guilty will be entered on your behalf and the Governor will determine whether you are guilty or not after hearing all the evidence presented. The Governor will inform you of the determination and, where applicable, the penalty imposed.
It can be seen that the scheme summarised provided for the fundamental aspects of procedural fairness. The summary is derived from the provisions of s 53 of the Act and regs 52–57 of the Regulations to which I shall shortly come.
I will refer to specific provisions of the Regulations further below.
The course of the hearings
On 7 November 2012 the applicant wrote to Ms Westin stating (omitting formal parts):
I write this letter to you in relation to a GDH to be heard on Saturday 10th/11/12.
Justice is to be done, and it is required to be seen to be done. I therefore respectfully submit, that given the history between myself and OM S Payne either you, or Mr Payne, should disqualify himself, from presiding over the said hearing.
I request the following witnesses to be made available for questioning:
Mr Dennis Roach (GM) PPP
PO S Biram (Security) PPP
PO Nichols (Security) PPP
PO P McBain (Charlotte Officer)
PO D Johannsen (Charlotte Officer)PO M McFarlane or McFarlaine (Charlotte Officer)
I further request that all evidence be given via the Video-Link system and so that exhibits can be shown to witnesses. So that it can be assured that witnesses are kept separated before giving their evidence, and so that the Governor hearing the matter is able to properly assess the truthfulness and demeanour of the said witnesses. I point out that GDH hearings have been conducted via this means at PPP previously.
I further request to view all items, or a list of all items, seized from cell 133 Charlotte Unit, during the search on Thursday 18 October 2012, before the hearing is conducted.
I thank you for receiving this missive.
In response to this letter Ms Westin arranged for the matter to be heard by Mr White who had delegated authority to hear and determine the charges.
The other issues raised by the applicant, namely the request to call evidence from a series of prison personnel, a request that the evidence be given via video link and the request that he be able to view all items or a list of the items before the hearing was conducted, received no positive response. Each of these matters remained a continuing grievance on his part. On 15 November Mr White commenced hearing the charges against the applicant at the MRC.
Mr White deposes that at the hearing he explained the hearing process. He told the applicant that evidence would be given by the two officers who searched the cell. They would each read the detailed reports that they had made and the applicant could ask them questions about the search and anything related to the search.
I interpolate that the relevant report of Prison Officer Nicholls was as follows:
On Thursday 18th October, 2012 I was on duty as an [sic] Dog Squad Officer in the Prison Intelligence Unit. At approximately 10:30hrs Intel Officer Biram and I had been tasked with conducting targeted cell searches in the CHARLOTTE unit. Prisoner BRAZEL’s cell, cell number 133, was one of our assigned cells to search. S. Biram and I entered prisoner BRAZEL’s [cell] and prisoner BRAZEL was standing in the middle of his cell. I informed prisoner BRAZEL that we were there to conduct a cell search and that he would be required to undertake a strip search prior to heading out into the exercise yard. Prisoner BRAZEL agreed to this. I asked prisoner BRAZEL if there were any items in the cell that were not meant to be and could be considered as contraband. Prisoner BRAZEL then pointed out his vitamins that were on his window sill. He stated to us that he had no other items he was concerned about. He then lifted a plastic storage tub onto his bed and asked us to be respectful of the contents of this container as it contained his legal papers. All through this prisoner BRAZEL appeared to be agitated and not his normal calm self. I assured prisoner BRAZEL that we would be thorough with our searching and that we would respect his personal items while searching. Prisoner BRAZEL asked us why we were searching his cell and on whose authority we were here. I informed prisoner BRAZEL that it was a random target cell search and that we had been instructed to search his cell by Intel Manager, Mr DUNMALL. Prisoner BRAZEL acknowledged this information with a grunt. I again requested prisoner BRAZEL to begin the strip search which he then complied with. I began to strip search prisoner BRAZEL as I observed the process. Prisoner BRAZEL continued in a hurried and almost frantic pace to conduct the strip search to the point where I was concerned that he would trip over his clothing and hurt himself. I informed prisoner BRAZEL to slow down as we were not in any particular rush and that I did not want him to trip over and hurt himself. As prisoner BRAZEL was removing his clothing for the strip search he threw his socks into the corner beside the desk. The strip search was completed without any incident or item located on his person. As prisoner BRAZEL started to get dressed he picked up the socks he had discarded and went to put one of them on. I requested that he hand over the socks as they had not yet been searched. Prisoner BRAZEL hesitated and then reluctantly handed me the sock. As I took possession of the sock I heard a noise that appeared to be similar to a plastic bag when it is grabbed. I began to remove something from inside the sock and asked Prisoner BRAZEL what he was going to find in the sock. Prisoner BRAZEL replied ‘Just some pills’. I removed from the sock what appeared to be a rolled up OX tobacco pouch. I opened the tobacco pouch and looked inside it. He then showed me the contents of the pouch and I observed what appeared to be a significant quantity of medication tablets. Prisoner BRAZEL then put his hand out and asked C/O me ‘Can I have them back, they are just my meds?’ I stated to prisoner BRAZEL that he could not have them back and that the tablets will now be placed into evidence and the matter would be reported as is the normal practice for items of contraband. Prisoner BRAZEL was asked if there was anything further in the cell that was not allowed and he stated ‘No’. Prisoner BRAZEL was then escorted from his cell to an exercise yard by a Charlotte unit staff member. Operations Manager SELISKY was then informed and he attended the cell where he was shown the medication tablets that we had located on Prisoner BRAZEL. He instructed us to continue with the cell search and to seize any other items located. I then counted the medication tablets and we were able to identify that there were 56 tablets contained in the tobacco pouch that had been seized from prisoner BRAZEL. These tablets were then placed into evidence. S. Biram and I then continued with the cell search and he located several other items that were either contraband or unit items that were not allowed to be in prisoner BRAZEL’s cell. These items were: A quantity of razor blades hidden inside a coffee satchel, a staff radio code guide (Old and now out of date), a lemon juice squeeze bottle containing what appeared to be a cough syrup, the unit sandwich press, the blade and shaft section from a blender, a metal mixing bowl from the unit kitchen, a [short] power extension lead, the unit chess board and playing pieces, a bottle of white board cleaner, multiple plastic medication cups and multiple envelopes and documents belonging to other prisoners. All items seized [were] photographed, the contraband items placed into evidence and the unit items returned to the Charlotte unit staff. Operations Manager SELISKY notified of the results of the cell search. St Vincents Correctional Health management notified and shown images of the medication. All medication located was identified as having been prescribed to prisoner BRAZEL. All contraband items (Medication and other items) were then placed into the evidence locker. Reports submitted for your information.
A report to similar general effect was also made by Prison Officer Biram.
Mr White deposes that he also told the applicant that the applicant could call any relevant witnesses to give evidence and that he described the items in issue and the applicant was shown photographs of the items seized. The applicant disputes that he was told what had been found in his cell.
Mr White deposes to the further course of the hearing as follows:
12I then read the charges to him and asked him how he pleaded; he said not guilty to both charges. The Plaintiff said he was surprised that the hearing was proceeding because he thought the case was sent to Victoria Police for investigation. I informed him that the search results were never referred to Victoria Police, and it was always an internal disciplinary issue within the prison. The Plaintiff then said his concern was the publicity surrounding his move to MRC which appeared in the Herald Sun.
13I asked the Plaintiff to tell me why he wanted to call any witnesses other than those prison officers who had searched his cell. The witnesses the Plaintiff sought to call included the General Manager of Port Phillip Prison, who was not involved in the search of his cell and other witnesses who were not directly connected with the search of his cell. I believe the Plaintiff gave as his reason for calling other prison officers was that he had the right to question any staff in relation to the items found in his cell.
14I agreed that the two witnesses from his list of proposed witnesses could be called, being the prison officers who had searched his cell. I advised him the remaining witnesses on his list would not be called, because in my opinion they had no relevant evidence concerning the prohibited items found in his cell.
15I told the Plaintiff the witnesses would be heard via telephone link up because it is the standard practice at MRC when witnesses were based at other prisons. It is possible to connect the prisons via videolink, but the logistics involved booking the videolink at each prison, working around court commitments, and getting the Plaintiff to the videolink room at MRC is difficult and telephone link up is the usual way witnesses give their evidence.
16Following our discussion about the list of witnesses, the Plaintiff accepted the medication was seized from his cell was his, and he then pleaded guilty to the second charge on the charge sheet brought under Regulation 50(1)(f). I then found the charge proven. The Plaintiff spoke to me about the penalty, saying the matter was trivial, it was not really an issue because it was his medication which he had not taken, and a warning would suffice. I referred to his history of non-compliance with these types of offences, and the importance for him to take prescribed medication. I sentenced him to 5 days loss of privileges or LOPs; he appeared to be satisfied with the outcome.
17I advised the Plaintiff that although he pleaded guilty which meant that sanctions and penalties applied immediately to his visits and telephone calls, I would allow him to make a family call to advise them that he would now be unable to contact them for 5 days. The Plaintiff asked whether he could make another call the next day, which I referred to the First Defendant, who approved him to make a further call the following day.
18During the hearing, the Plaintiff pleaded not guilty to the other charge listed on the charge sheet brought under Regulation 50(1)(e). I explained to him that even if one item from all the items seized were found to be in his possession without necessary permission or appropriate authority, the charge would be proven. As the witnesses from Port Phillip were not available on that day, I adjourned the hearing to 19 November 2012 when the witnesses were due next to be on shift together.
The applicant gives a different account of the course of the hearing.
9That, I pleaded not guilty to both charges that had been levelled against me by Biram, and I reject absolutely that I pleaded guilty to the charge alleging that prescription medicine was located in the cell in which I was housed, and which was searched on the 18th day of October 2012. I was asked by Mr White what medications were found in the cell, I informed Mr White that I have never been given the opportunity to view the said alleged medications, but that whatever medications were found in the cell on the 18th day of October 2012 would only be medications that were legally prescribed to me by the Prison Doctor. Mr White thereafter informed me that there was an absolute no tolerance policy, and relating prescription medications, and therefore, and as a result, I was guilty of a prison offense and that no further evidence was required. I asked White how I could be found guilty of an offense without being given the opportunity to cross examine the informants, and further when I was not given the opportunity to view the exhibits. Mr White informed me that as the sole assigned adjudicator he was not required to have witnesses called and that he could decide the facts solely on the reports submitted to him by the Informant and the informant witnesses. He further went on to inform me that the witnesses were not available to give evidence on that day. I therefore asked him why he convened the hearing and if he knew that the witnesses were unavailable, he Mr White informed me that if he did not convene the hearing on the listed date the paperwork relating to the matter would be required to be served on me once again and therefore he had decided to convene the matter and thereafter it would be listed as part heard and until the witnesses were available. I asked Mr White how he could find me guilty of the charge and if I was not able to cross examine the witnesses. Mr White informed me that my admission that any medications found in cell 133 on the 18th day of November were medication that were legally prescribed by the Doctor at PPP was sufficient to find the charge ‘Proven’.
…
13That, I reject absolutely the sequence of events and as described by Mr White in the reading of the charges as described in paragraph 11 and 12. Mr White and I have known each other for many years, and it was acknowledged by me that I knew my rights; and I formally signed the documents acknowledging this fact and without him giving to me any preamble of my rights. Or in outlining the process of the hearing itself. He certainly did not inform me as to the fact that I would be hearing from the witnesses, and it is illogical for him to make this claim, and as he was aware that the witnesses were not available to give evidence at that time.
14That, I in fact made application for Mr White to withdraw one of the charges and because it was my belief and understand that the two charges related to the finding of items within the cell and therefore the charges were duplicitous in nature. That is when Mr White informed me that there were two sets of allegations, one relating to medications, the other a variety of other items. I asked Mr White once again to see the exhibits and he informed me that he did not have those items and that even if he did he was not required to show those to me. Mr White informed me again that as the sole adjudicator he could find me guilty on the reports themselves and without calling witnesses.
15That, I reject absolutely that Mr White asked me why I wanted to call witnesses. I walked in the programmes room and where the hearing was being heard and Mr White informed me that he had rejected my request to call witnesses other than the witnesses that carried out the cell search itself. I indicated that such witnesses were not ‘my’ witnesses but were in fact the Informants and as they jointly searched the cell. Mr White refused to accept submissions as to why I wished to call the said witnesses.
16That, there was no discussion and relating to the matter being heard via Video Link, and other than that my request had been rejected, and that as the adjudicator of the matter he could make a decision as to how the evidence would be given, and that it would be given via the telephone and regardless of whether I agreed with this process or not, and this would occur when the witnesses were available. Mr White refused to accept submission as to why I wanted to have the hearing held via Video Link, and I informed him that it came down to due process and procedural process. I informed Mr White that I would be taking the matter to the Supreme Court and for a Judicial Review and if he didn’t allow me to call witnesses and or enable me to face my accusers through the video link process. I pointed out to Mr White the precedents of Crowley v Stewart, Rainsford v Governor of Her Majesty’s Prison at Ararat, Dimozantos v Governor of Barwon Prison and the Director of General Corrections, and Henderson v Beltracchi. Mr White simply informed me that he was aware of Crowley v Stewart and further he informed me that he did not care less if I took the matter before the Supreme Court. I informed Mr White that the Supreme Court had previously ruled on the issue of calling witnesses and that he White could not stop me from calling relevant witnesses. Mr White rejected this claim by me and said that as the adjudicator he had sole control over every aspect of the said hearing.
17That, I again asked Mr White how I could be found guilty and without the witnesses being made available to give evidence and to be cross examined. And that he Mr White informed me that my admission was sufficient and that he was sentencing me to five days LOP. I asked Mr White to reconsider the sentence of LOP’s, and as he knew that I had daily contact with a friend who was terminally ill and suffering from MS. He rejected this request and merely said that in his view fines were inappropriate and because prisoners could pay them too readily.
I accept from the applicant’s point of view that although there may be some doubt as to the precise course of the conversation the probability is that each of the matters that the applicant had previously foreshadowed in his letter was the subject of some discussion.
Conversely I accept for reasons that I will explain further below that it is probable that the applicant pleaded guilty to the second charge. I also prefer Mr White’s account on matters of detail where there is a direct conflict although I am not persuaded either account is completely full. I also note that the initial accounts by both Mr White and the applicant in their first affidavits were materially amplified in their subsequent affidavits and it is difficult to avoid the impression that aspects of the subsequent affidavits involve elements of speculative reconstruction. My preference for Mr White is reached after having heard Mr White and Mr Shanhun (an escort officer who was present at the hearing) cross-examined, and having had regard to the inherent probabilities of the statements attributed to Mr White by the applicant when assessed in all the circumstances of the case.
The witnesses from Port Phillip Prison were not available for a contested hearing with respect to the first charge and the further hearing was adjourned to 19 November 2012. It was then put over to 21 December 2012. Mr White says this two stage procedure was usual practice.
Mr White says that he arranged for the applicant to be told of the further hearing but the applicant maintains he was not so told. The applicant says he was only told when he was exercising on the day of the hearing that the hearing would take place shortly thereafter.
At the second hearing the applicant stated that he had had legal advice, that because the matter was still with Victoria Police he should not remain at the hearing.
Mr White responded that the incident had not been referred to the police and if the applicant left the hearing room the charge would be heard in his absence.
The applicant also requested to see the actual items seized from his cell. Mr White did not agree to this but he says he described the items and showed the applicant the photographs of them.
23On 21 December 2012, I arranged with Acting SPO McSwain to inform the Plaintiff that I would attend around lunchtime to reconvene the hearing of the outstanding charge. The Plaintiff was collected from his cell by prison staff, informed it was for the hearing, he was searched and he was brought with some of his paperwork to the Exford meeting room. The Plaintiff and I had a brief conversation, and he said he had legal advice that due to the matter still being with Victoria Police he should not remain at the hearing. I informed him again that the incident had not been referred to the Police and, if he chose to leave the hearing room, the charge would be heard in his absence.
24The Plaintiff said he wished to pursue the matter with the Police, the courts and his legal team, and I said to him that was his right but it would not delay the internal disciplinary hearing being heard on that day. The Plaintiff requested to see the actual items seized from his cell. I told him it was not his right to view all items as some appeared to belong to other prisoners and allowing him to view them may breach the privacy of those prisoners. I detailed all the items that were alleged to have been found and seized, and I showed him the photographs of these items, which photographs were included in exhibit KJW1.
A contemporaneous note made on the checklist record of the hearing by Mr White records:
Charge 1 reconsidered 21/12/12. Greg presented stated he spoke with OV who advised him of his right to see exhibits. I advised him it was not his right he had seen copies of exhibits and wouldn’t get to see the prisoner’s documentation. He could question the witnesses in relation to them only.
He refused left hearing which was then heard in his absence, found proven.
The applicant also says that at this hearing he again requested further witnesses be called and says that he also again asked for the matter to be heard by video link.[1] Mr White denies this.
[1]Brazel second affidavit, [18].
Mr White says that he again advised the applicant that if the applicant were to leave the hearing it would continue in his absence. It is common ground the applicant in fact left the hearing and that it continued. Evidence was heard from the relevant prison officers. The charge was found proven save in respect of documents alleged to belong to other prisoners. Mr White was not satisfied that the applicant did not have these documents with the consent of their owners. Ultimately, Mr White fined the applicant $100.
The grounds of review
The originating motion states the following grounds:
22aThe informant was not present at the General Managers Disciplinary Hearing, on the 15th day of November, or the 21st day of December 2012, and so no evidence was presented by the informant, pursuant to paragraph (a) of s 55 of the Regulations. Therefore, the plaintiff was ‘prevented’ from testing the allegations by way of cross-examination, pursuant to paragraph (c) of s 55 of the Regulations.
22bFurther, the plaintiff ‘was not allowed’ a reasonable opportunity to call the relevant witnesses, pursuant to sub-section 53(2) of the Act, and thus denied a reasonable opportunity to present the plaintiff’s case, pursuant to paragraph (e) of section 55 of the Regulations.
23Moreover, the plaintiff was refused the right to view the exhibits. Therefore, it is respectfully submitted, that the plaintiff was not in a position to formulate a defence to the charges. For example, if the plaintiff were to be made aware of what was allegedly found during the cell search, then, thereafter, the plaintiff would be in a position to formulate a defence. This outcome would be achieve[d] by the plaintiff either giving evidence on how the item(s) came into his possession, and or, calling witnesses to confirm that the items found were either issued to, or given to, the prisoner by either a guard or other inmate and therefore not illegally obtained. To deny the prisoner the right to know what was ‘allegedly found’, in a cell which he, the Plaintiff, is housed, for all intent and purpose seems to be an absolute nonsense and leads to a clear miscarriage of justice, and this policy caused the Plaintiff to be denied due process and procedural fairness.
The applicant’s affidavit and material in submissions go beyond the grounds stated in his originating motion. The respondents’ submissions identify the following complaints:
31In essence, Mr Brazel says the following matters mean that his right to procedural fairness was breach such that the decisions of Mr White should be quashed (Mr Brazel’s grounds of review):
31.1He was not given any, or sufficient, information about the prohibited items that were seized from his cell;
31.2He was not permitted to view the prohibited items;
31.3The first hearing that led to the conviction under the second charge was conducted when Mr White knew the informant and witnesses were not available;
31.4There was insufficient notice about the second hearing that led to the conviction under the first charge;
31.5Mr White did not permit Mr Brazel to call certain witnesses that Mr Brazel wished to call;
31.6Mr White did not permit Mr Brazel to make submissions on why additional witnesses should not be allowed; and
31.7Evidence was given at the second hearing by telephone.
The statutory framework
The purposes of the Act are set out in s 1.
The purposes of this Act are—
(a)to provide for the establishment management and security of prisons and the welfare of prisoners; and
(b)to provide for the administration of services related to community-based corrections and for the welfare of offenders; and
(c)to provide for other correctional services.
In turn s 21(1) provides:
(1)The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.
Part 7 of the Act is headed Prison Discipline and provides for a variety of disciplinary powers.
In Stewart v Crowley, Winneke P said:
Part 7 of the Corrections Act is designed to confer powers upon prison officials to administer discipline within the prison for the commission of offences against the regulations, and to do so with expedition. The provisions of Part 7 are calculated to provide a balance between the power of the corrections officials to maintain discipline within a system where discipline is essential and the rights of prisoners who are to be subjected to that discipline. In that context, it is true to say that the provisions are ‘describing prisoners’ rights’[2]. It is in this context that the provisions of Part 7 fall to be construed.[3]
[2]Cf The speech of the Minister in introducing the Corrections Bill; Hansard, Legislative Council, 20 November 1986, p 1232; Binse v Williams [1998] 1 VR 381, 384.
[3](2002) 6 VR 479, [22] (citation in original).
Section 50 provides for prison offences.
50 Prison offences
(1)If an officer within the meaning of Part 5 or an escort officer suspects that a prisoner has committed a prison offence the officer must as soon as possible report the fact to the disciplinary officer.
(2)The disciplinary officer must make proper investigation of all alleged prison offences which come to the officer's notice and must give the prisoner alleged to have committed the offence an opportunity of making an explanation.
(3)If after investigating an alleged prison offence the disciplinary officer is satisfied that no offence has been committed the disciplinary officer is to take no further action.
(4)If after investigating an alleged prison offence the disciplinary officer is satisfied that the offence has been committed but is trivial, the disciplinary officer need take no further action.
(5)Subject to subsection (4) if after investigating an alleged prison offence the disciplinary officer is satisfied that the prisoner has committed the offence the disciplinary officer must record the offence in the register of offences and may, in addition, do one of the following—
(a) reprimand a prisoner; or
(b)withdraw one of the prisoner's privileges for less than 14 days; or
* * * * *
(d) charge the prisoner with the prison offence.
(5A)In addition to any action the disciplinary officer may take under subsection (5)(a), (b) or (d), the disciplinary officer may also take steps to have the matter dealt with under the criminal law.
(6)A charge for a prison offence must be in writing, and the disciplinary officer must as soon as possible give a copy of the charge to the Governor and the prisoner.
* * * * *
(9)A decision or purported decision of a disciplinary officer under this section cannot be appealed against, reviewed, challenged or called in question in any court.
Section 53 of the Act provides:
53 Governor's hearing
(1)If a charge is to be heard by the Governor of the prison or by another Governor, the Governor of the prison must—
(a) not less than 72 hours before the hearing; or
(b)if the Governor and prisoner agree to a shorter period, within that shorter period; or
(c)if the prisoner is due to be discharged from prison within 7 days of the alleged prison offence occurring or if, in the opinion of the Secretary, a period of notice shorter than 72 hours is necessary for the security or good order of the prison, within the period determined by the Secretary—
give notice to the prisoner of the time, date and place of the hearing.
(2)At a hearing a Governor must allow the prisoner reasonable opportunity to call relevant witnesses and cross examine the person conducting the case against the prisoner and witnesses called by that person.
(3)At a Governor's hearing the prisoner, if he or she attends the hearing may be represented by another prisoner if the Governor approves.
(3A)If a prisoner, having been given notice under subsection (1) of the time, date and place of the hearing, refuses or fails to attend the hearing, the Governor by whom the charge is to be heard may proceed to hear and determine the charge in the prisoner's absence.
(4)If at a Governor's hearing the Governor finds that the prisoner is guilty of the prison offence or the prisoner admits the truth of the charge, the Governor may impose any of the following penalties—
(a)a reprimand;
(b)a fine not exceeding 1 penalty unit;
(c)withdrawal of one or more of the prisoner's privileges for a period not exceeding 14 days for each prison offence committed, but not exceeding in total 30 days;
** * * *
(5)The payment of fines imposed under subsection (4) may be recovered by deduction in accordance with the regulations from moneys payable to, or held by or for, the prisoner.
(6)For each prison offence committed the Governor must not under subsection (4) impose more than one of the penalties listed in that subsection.
** * * *
In turn regs 53, 54, 55, 56 and 57 provide as follows:
53 Prisoner must be given details of the charge and hearing procedure
A Governor who is required to give a prisoner a notice under section 53(1) of the Act of the time, date and place of the hearing must also, on giving notice, give the prisoner written advice of—
(a) the charge; and
(b) the procedure of a Governor's hearing.
54 Preliminary steps if prisoner present at the hearing
(1)If a prisoner charged with a prison offence attends the hearing of the charge—
(a)the prisoner must be informed of the procedure for the hearing; and
(b)the charge must be read to the prisoner; and
(c)the prisoner must be given an opportunity to state his or her plea.
(2) The charge must include—
(a)the name of the informant; and
(b)the details of the place of the alleged contravention; and
(c)the details of the relevant provision of the Act or Regulations allegedly contravened.
55 Procedure if prisoner pleads not guilty
If the prisoner does not plead guilty—
(a)the informant must present evidence to support the charge; and
(b)the informant must be given a reasonable opportunity to call relevant witnesses; and
(c)the prisoner or the prisoner's representative must be given a reasonable opportunity to cross-examine the informant and the informant's witnesses (if any); and
(d)the Governor must decide whether there is sufficient evidence to warrant proceeding with the charge and must dismiss the charge if he or she decides there is insufficient evidence to warrant proceeding with the charge; and
(e)if the Governor does not dismiss the charge, the prisoner or the prisoner's representative must be given a reasonable opportunity to present the prisoner's case, including calling relevant witnesses; and
(f)the informant must be given a reasonable opportunity to cross-examine the prisoner and the prisoner's witnesses (if any); and
(g)if the Governor does not dismiss the charge, he or she must decide whether the prisoner is guilty or not guilty of the prison offence after hearing all the evidence presented in accordance with this regulation; and
(h)if the Governor finds the prisoner guilty of the prison offence, the Governor must determine the penalty.
56 Procedure if prisoner pleads guilty
If the prisoner pleads guilty, the Governor must—
(a)review the circumstances of the case; and
(b)consider mitigating factors; and
(c)invite the prisoner to make a plea concerning penalty; and
(d)determine the penalty.
57 Procedure if prisoner not present when charge heard
If a prisoner charged with a prison offence does not attend the hearing of the charge—
(a) the charge must be read, including—
(i)the name of the informant; and
(ii)details of the place of the alleged contravention; and
(iii)details of the relevant provision of the Act or regulations allegedly contravened;
(b)a plea of not guilty must be recorded on behalf of the absent prisoner, following which—
(i)the informant must present evidence that notice of the charge was served on the prisoner; and
(ii)the informant must present evidence to support the charge; and
(iii)the informant must be given a reasonable opportunity to call relevant witnesses; and
(iv)the Governor must decide if there is sufficient evidence to warrant proceeding with the charge and must dismiss the charge if he or she decides there is insufficient evidence to warrant proceeding with the charge; and
(v)if the Governor does not dismiss the charge, he or she must decide whether the prisoner is guilty or not guilty of the prison offence after hearing all the evidence presented in accordance with this regulation; and
(vi)if the Governor finds the prisoner guilty of the prison offence, the Governor must proceed to determine the penalty.
The applicant was entitled to procedural fairness in accordance with the scheme of the statutory provisions relating to the hearing and decision-making process.[4]
[4]Stewart v Crowley (2002) 6 VR 479; Henderson v Read [2006] VSC 304, 48 (Williams J); Henderson v Beltracchi [1999] VSC 135, [31] (Mandie J).
The requirements of procedural fairness are flexible and depend upon the circumstances of the case, the nature of the enquiry, the rules under which the decision-maker is acting, and the subject matter being dealt with.[5]
[5]Stewart v Crowley (2002) 6 VR 479, 493 [31]; Kioa v West (1985) 159 CLR 550, 627 (Brennan J).
In Rainsford v The Governor of Her Majesty’s Prison at Ararat, Eames J observed:
Whilst the courts must carefully scrutinise the conduct of prison disciplinary hearings which are the subject of complaint, so as to ensure that prisoners are not denied those civil rights to which [they] are entitled under relevant legislation and at common law, the Courts should also be slow to intrude into the prison disciplinary process unless clear grounds exist for intervention. The dynamics, dangers and, at times, irrationality of a prison setting are far removed from the relative tranquillity of the Supreme Court, and the court should be slow to second-guess trained and (in this case) senior prison officers, as to the weight to be given to various factors which might be relevant to the decision as to the calling of witnesses.[6]
[6][2000] VSC 141 (‘Rainsford’), [47].
In the same case his Honour emphasised the need for an applicant for judicial review to demonstrate not simply that some error of law or process had occurred but also that it vitiated the decision. The applicant must show that the error relevantly and materially disadvantaged him:[7]
It has been held that in the case of a complaint that concerned the general management of a prison, rather than the conduct of disciplinary proceedings, there must be a clear infringement of the Act or Regulation if the court is to intervene with certiorari: Rich v Groningen.[8] The same demand for patent error to be demonstrated has not been expressed in the case of the review of disciplinary proceedings, but it is nonetheless relevant, in my opinion, if the breach of the regulation, in this instance, appears to be partial only, and to be more of a technical kind, rather than having actually misled the prisoner or caused any discernible disadvantage to him in the defence of the charge.[9]
[7]Ibid [45], [80].
[8](1997) 95 A Crim R 272, 274-5 (Gillard J); see, too, Bromley v Dawes (1983) 34 SASR 73; R v Classification Committee, Ex parte Finnerty (1980) VR 561.
[9]Rainsford, [80] (citation in original).
A preliminary issue
A threshold issue arises with respect to the second charge which related discretely to the alleged seizure of medication. The applicant contends that he did not plead guilty to this charge but I am satisfied on the balance of probabilities that he did.
(a) The photographic evidence supports the fact of the seizure as described in the prison officers’ reports;
(b) the supervisor’s report records an acknowledgment by the applicant that the medication was present;
(c) Mr White’s evidence was that the plea followed his explanation to the applicant that although the medication was prescribed for him by a medical practitioner the applicant would be guilty if the applicant had not taken it daily as prescribed but had stockpiled it;
(d) the sworn evidence of both Mr White and the escort officer Shanhun is that the applicant did so plead at the first hearing after discussion of the factual basis of the charge;
(e) the contemporaneous checklist record of the hearing made by Mr White on a pro-forma sheet contains a record of the plea of guilty to this charge in contrast to the plea of not guilty to the other charge; and
(f) the record is made in ink tending to confirm it was made at the first hearing being in different ink from that used at the second hearing;
(g) it is common ground no evidence was called at the first hearing;
(h) it is common ground there was discussion about and imposition of penalty at the first hearing; and
(i) the hearing of the charge to which the applicant pleaded not guilty was adjourned over to another day on which evidence was called.
When all these matters are taken together they support the conclusion that the second charge was disposed of summarily following a plea of guilty at the first hearing.
The applicant submits he would not have pleaded guilty ‘because of who I am’ and in particular his litigious character and because of the effect on his reputation within the prison system resulting from the fact the charge in issue is associated with illicit drug use. He also asserts that the charge carried with it adverse day to day procedural consequences within the administrative arrangements of the prison because in consequence of his conviction he was classified as an Identified Drug User.
In elaboration of the proposition that he would not have pleaded guilty because of his inherent characteristics, the applicant asserted that evidence in another proceeding before the County Court demonstrates that he has had involvement with some 250 disciplinary incidents during his time in custody. As he put it, he ‘has done a few laps’. He has also been involved in litigation before this Court with respect to arrangements relating to his imprisonment. Whilst I accept unreservedly that he has extensive experience of the prison system and has been in conflict with those administering it on an extensive number of occasions, I do not accept that the matters advanced outweigh the matters to which I have referred as supporting my conclusion.
The applicant also emphasised three further matters in oral submission. First, it was submitted Mr White’s evidence was to the effect that the applicant initially entered not guilty pleas to both charges whereas the checklist record sheet inferentially demonstrates that Mr White did not record a not guilty plea with respect to the first charge until the second hearing. There is in my view nothing in this inconsistency. Secondly, the applicant submits that Mr Shanhun’s evidence is inconsistent with that of Mr White in that Mr Shanhun describes the applicant as appearing agitated at the first hearing whilst Mr White’s description of the conversation at the first hearing was ‘congenial’. Again, I do not think the alleged inconsistency carries much weight.
Lastly, the applicant asked rhetorically why he would plead guilty if he obtained the medication legally. The answer to this question is that stockpiling legally obtained medication is a disciplinary offence. Hoarding the medication facilitates trafficking of it and may also carry with it risks of self-harm. Likewise it matters not that the applicant was not required to consume his medication in front of prison staff strictly in compliance with the procedure required by the Commissioner’s Requirement which he tendered in evidence. This failure to enforce the requirement does not mean the applicant was entitled to stockpile the medication.
Once it is accepted the applicant pleaded guilty to the second charge at the first hearing there is no basis for complaint about its outcome. The plea established the elements of the offence. The procedure was governed by reg 56. The nature of the medication in issue was adequately described. It was not necessary for the informant to be present[10] and there was no occasion for the witnesses to be tested.[11] There was no refusal to allow the applicant to call relevant evidence[12] and there was no procedural issue concerning the exhibits.[13]
[10]Originating motion [22(a)].
[11]Originating motion [22(b)].
[12]Originating motion [22(b)].
[13]Originating motion [22(c)].
Information concerning the prohibited items
Regulations 53 and 54 set out above provided for a prisoner to be given details of the charge and hearing procedure.
As I have already noted, the notification of the first charge did not itself identify the contraband which was in issue. Nor is there any evidence that prior to the hearing the applicant was given a copy of the investigating prison officers’ statements which list what was seized. Mr White’s evidence was that it was his usual practice to summarise the evidence at the outset of a hearing
As a matter of general principle the applicant was entitled to particulars of the things seized which formed the foundation of the charges. The right to be heard will not be effective if a prisoner does not know the case he has to meet. Generally speaking, natural justice requires that a charge brought before a disciplinary tribunal brings to the notice of the defendant the substance of what is alleged against him.[14]
[14]Re La Trobe University; ex parte Wilde [1987] VR 447, 458; R v Medical Board of Victoria; ex parte Epstein [1945] VLR 60, 64.
As the learned authors of Judicial Review of Administrative Action Mark Aronson and Matthew Groves put it:
The requirement for certainty is stringent when an individual faces disciplinary proceedings or the like, which carry the potential for a finding of fault or misconduct on the part of the person notified. In that context the analogy of criminal proceedings, although no more than an analogy, suggests that the notice must be adequate to allow the individual to prepare and mount an adversarial defence. Consequently it may be necessary for the notice to identify in clear terms: all charges to be relied on; the relevant legislative provisions or rules giving jurisdiction; the particular grounds relied on where there are several alternatives; particulars of the act, matter or allegation forming the basis for the charge and perhaps the potential penalties involved.[15]
[15]5th Ed 2013, 519 (citations omitted).
Ordinarily a prisoner must be entitled to particulars of the acts, omissions or matters forming the basis of the charge whenever there may be uncertainty as to the extent or nature of what is alleged.[16]
[16]As to this requirement in the context of other disciplinary tribunals, see eg Johnson v Miller (1937) 59 CLR 467; Scurr v Brisbane City Council (1973) 133 CLR 242, 254-255; R v Pharmacy Board of Victoria; Ex parte Broberg [1983] 1 VR 211; Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, 79; R v Solicitors’ Disciplinary Tribunal; Ex parte L (a solicitor) [1988] VR 757; Sandvik Australia Pty Ltd v Commonwealth (1989) 89 ALR 213, 226; Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573, 577-578; Deputy Commissioner of Taxation v Woodhams (2000) 199 CLR 370, 384; Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859.
A failure to give particulars may vitiate the subsequent process. In Jago v District Court (NSW) Deane J said:
Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence.[17]
[17](1989) 168 CLR 23, 57.
In the present case the sole description of the items in issue was ‘contraband’. In the circumstances of the case this description was oppressive.
The items other than the medication were located when the applicant was not in his cell, although the supervisor’s incident report records that he was interviewed about their presence on 19 October 2012 and I accept they were described to him at that time.
It may also be accepted that when the issue was raised (whether at the first or second hearing) Mr White as a matter of probability did again describe the items in issue. Nevertheless, insofar as this description was given by reference in part to the photographs, there is a further problem. The photographs do not include all or even the majority of the items which were in issue. They do not appear to include items which are referred to in the supervisor’s report as being returned to the unit nor do they include other items including the documents which were in issue. In particular they do not contain photographs of the items I have previously identified.[18]
[18][10] above.
The respondents submit that it was sufficient for Mr White to list the items in issue and refer to the photographs before the hearing commenced. It was sufficient they submit to summarise the evidence. The checklist record of the hearing records by way of a ticked box that the following occurred:
Process explained to prisoner?
· Charge(s) read and explained
· Name of informant
· Details of alleged offence – location, time, specific acts or omissions etc
· Regulation(s) allegedly breached
· Hearing process explained including prisoner’s ability to cross-examine informant and witnesses
Mr Shanhun also corroborates Mr White’s evidence to some material extent:
5At the first hearing in November 2012, I remember the second defendant sitting in the hearing room, reading the charges to the plaintiff, which charges were from Port Phillip Prison … I particularly remember that one of the charges related to tablets, and another charge related to items that he should not have had in his cell, including razors, and a sandwich maker. The second defendant asked the plaintiff how he pleaded, and the plaintiff said he was not sure and he wanted to see all the evidence before he pleads. The plaintiff said he had the right to see the evidence, and he carried on about his rights.
6The second defendant persisted, and asked the plaintiff how he pleaded. The plaintiff said he wanted to call evidence and he would be talking to his solicitor. The second defendant showed the plaintiff the pictures of the tablets, and the plaintiff said he could not deny having them, but that they were vitamin tablets. I remember the plaintiff then pleaded guilty, but I lost attention because he was repeating himself. I remember the plaintiff begging the second defendant not to punish him with loss of privileges because he had an ill friend in hospital named Julie, who he wanted to keep in touch with by telephone (loss of privileges normally means telephone calls are not allowed or they are restricted in number).
It should also be noted that Mr White told the applicant that the first charge would be proved if any of the items seized were shown to have been in his possession. In my view, the situation created was inherently unsatisfactory and unfair. The items should have been particularised in writing for the applicant. He should not have been required to rely on his memory of the alleged contraband in presenting his case. The items were simply too many and too varied for this to be fair. The supervisor’s report makes clear that the applicant had given varying explanations in relation to certain of the items. It was open to him to contest either the full extent of the items found (particularly given the deficiency in the photographs) or that the items were in the relevant sense contraband. In my view he was not given fair notice of the details of what was in effect a rolled-up charge and the hearing miscarried. I accept for reasons I shall explain below that it may well be that the applicant was not entitled to view the original items seized. But he was entitled to have them fully and properly identified and described. Because this defect goes to the heart of the procedure, in my view the conviction on the first charge must be quashed.
For completeness I should add that I do not agree that the applicant was entitled as of right to inspect the items seized prior to the hearing or necessarily to have them produced at the hearing.
The Act and Regulations do not give a right to preview all the evidence. What the applicant was entitled to was a list or other description of what constituted the contraband. If he was not given a preview of the evidence, then it may be that in addition he might become entitled to an adjournment on the hearing if he was taken by surprise in respect to aspects of the case.
In turn Mr White was not bound by the rules of evidence and photographic or other evidence might suffice without production at the hearing of the items actually seized. It was for him to decide whether it was necessary for the actual items to be produced and that decision would be informed critically by the necessity (if any) to see the items in order to determine any issues which arose upon the hearing.
Notice of the second hearing
The next broad issue which logically arises is the question whether there was sufficient notice given to the applicant of the second hearing.
Section 53(1) of the Act provides:
(1)If a charge is to be heard by the Governor of the prison or by another Governor, the Governor of the prison must—
(a)not less than 72 hours before the hearing; or
(b)if the Governor and prisoner agree to a shorter period, within that shorter period; or
(c)if the prisoner is due to be discharged from prison within 7 days of the alleged prison offence occurring or if, in the opinion of the Secretary, a period of notice shorter than 72 hours is necessary for the security or good order of the prison, within the period determined by the Secretary—
give notice to the prisoner of the time, date and place of the hearing.
The applicant was told at the first hearing that the second hearing would go over to a future date. That date was then adjourned to a further date.
The applicant was in a general sense on notice that the further hearing would take place at or about the date it did.
Mr White deposes to asking Senior Prison Officer Waddell on 12 December 2012 to advise the applicant of the hearing. Prisoner Officer Waddell was not called to give evidence confirming that she advised the applicant of the second hearing in advance as she was requested to do.
Mr Shanhun deposes as follows:
7I warned the plaintiff about the likely hearing time of the GMDH on 21 December 2012. The practice is that a time is not set for the hearing, just the date of the hearing is given in the notice. The Operations Managers are busy, and the usual practice is that they will telephone to the unit, and ask a prison officer to advise the prisoner they will attend the unit in the next 30 minutes or hour, and ask that he is warned of the likely hearing time as a matter of courtesy. That the plaintiff was on a treadmill when I told him the hearing was soon; I remember him having prepared papers for the hearing. As he was on the treadmill, I gave him the warning and suggested he might want to freshen up just as a comment.
I accept that the probability is that the applicant did not receive 72 hours’ notice of the second hearing. Nevertheless I also accept the respondents’ submission that the better view is that the second hearing was a continuation of the first and notice of the hearing as such had been given in accordance with s 53(1).
Furthermore, assuming that the hearing came on unexpectedly from the applicant’s point of view, it was not this fact that led to a want of procedural fairness. Rather it was the failure to adequately give notice of the substance of the first charge.
Restriction on witnesses
Mr White was obliged to permit the applicant to call relevant witnesses. Witnesses might be relevant either because they could give evidence of the seizure or because they could give evidence as to whether or not items seized were ‘prohibited’ or had been the subject of some permission. The evidence does not persuade me that at the disciplinary hearing the applicant fully articulated the basis on which he said each of the witnesses he proposed to call was a relevant witness. It was necessary for him to establish relevance in order to persuade Mr White that the witnesses should be called. I accept Mr White’s evidence that the applicant sought to have Mr Roach called on the basis that Mr Roach had a general authority in the prison and sought to have officers from the Charlotte Unit called ‘because they were there and they know me’. In my view this ground is not made out.
In Rainsford[19] Eames J refers to an examination of the law relating to prison hearings throughout Australia in a 1998 article by Matthew Groves.[20] His Honour cited with approval the conclusion that:
where the nature or purpose of the evidence of an intended witness is not reasonably apparent, in the light of the circumstances of the alleged offence, nor explained by a party, a court will be reluctant to hold a refusal to allow the witness to be called is a denial of natural justice.[21]
[19]10 [30].
[20]Matthew Groves, ‘Proceedings for Prison Disciplinary Offences: the Conduct of Hearings and principles or Review’ (1998) Vol 24 No 2, Monash University Law Review, 338, 374-379.
[21]Rainsford [30] quoting Groves op cit 379.
This accords with the necessity implicit in s 53(2) that the prisoner demonstrate that the witnesses he or she wishes to call are ‘relevant witnesses’.
Before this Court, the applicant submitted that he wanted to call Mr Roach in respect of the nature of the documentation found in his cell and the three witnesses from the Charlotte Unit to say that he had been ill and this was why he had stockpiled pills. The first issue is no longer relevant as he was not convicted with respect to possession of the documentation and the second was resolved by the plea of guilty to the second charge.
The practice of receiving evidence by telephone
Complaint is also made that the applicant was told the hearing would be conducted by telephone in part and that the witnesses called to give evidence of the search and seizure would not be available for questioning by video link.
Mr White’s evidence is that the procedure adopted is the normal practice in circumstances of this kind and that it would be impracticable to utilise video link because of other demands on the video link system. On the other hand the applicant submits that he has had previous experience of the use of video link in other disciplinary hearings. I accept that in some circumstances evidence by telephone link might not be sufficient to enable a fair hearing. In particular, if some difficulty arose in discussion concerning photographic or other evidence because of the absence of a video link then the hearing might miscarry. It might also be that a direct challenge to credit might necessitate better communication than a telephone link if it were to be fairly assessed. The prisoner is entitled to a reasonable opportunity to cross-examine the informant and the informant’s witnesses under reg 55(c).
In the present case, however, the applicant left the hearing before a proper evidentiary basis for this complaint was established. I do not accept that it was improper for Mr White to embark on the hearing in the first instance using the telephone link in the absence of the identification of a specific evidentiary problem relating to the use of such link. He was not bound by rules of practice or evidence. He was entitled to proceed flexibly provided there was no resultant unfairness.
I do not accept the applicant had a presumptive right to ‘confront his accuser’ of the type recognised by the criminal law. The need for an expeditious and informal disciplinary system identified by Winneke P in Stewart v Crowley[22] counts strongly against such a conclusion.
[22](2002) 6 VR 479.
Other matters
The applicant abandoned reliance upon the Charter of Human Rights and Responsibilities Act 2006.
Conclusion
For the reasons set out above, I would quash the conviction on charge 1 and set aside the penalty imposed. Subject to any further submissions, I would remit the charge insofar as it is concerned with items shown in the photographs produced to the Court for further hearing in accordance with law.
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