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

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brazel v Westin

Details

AGLC: Brazel v Westin [2014] VSC 344
Case: [2014] VSC 344
Decision Date: 25 July 2014

CaseChat Overview and Summary

The case of Brazel v Westin was heard in the Supreme Court of Victoria. The applicant, Brazel, is an inmate at the Port Phillip Prison and was subject to a disciplinary hearing under the Corrections Act 1986. The hearing arose from allegations that Brazel breached s 50(1)(e) by making a threat to a staff member and s 50(1)(f) by possessing a prohibited item. The central issues before the court were whether Brazel had entered a plea of guilty in respect of the charge under s 50(1)(f), whether there was a denial of procedural fairness in finding him guilty under s 50(1)(e), and if he was entitled to particulars, a preview of the evidence, the ability to call additional witnesses, and to have evidence adduced by video link.

The court considered the statutory framework provided by the Corrections Act 1986 and the Corrections Regulations 2009. It found that Brazel did not enter a plea of guilty in respect of the charge under s 50(1)(f), as his response to the charge was ambiguous and did not unequivocally constitute a guilty plea. The court further held that there was no denial of procedural fairness in finding Brazel guilty under s 50(1)(e), as the evidence presented was sufficient to support the conclusion. However, the court found that Brazel was entitled to particulars, a preview of the evidence, the ability to call additional witnesses, and to have evidence adduced by video link, as these rights are mandated by the statutory provisions and necessary to ensure a fair disciplinary process.

In light of the findings, the court quashed the decision of the respondent regarding the charge under s 50(1)(f) and remitted the matter for reconsideration in accordance with the statutory requirements. The decision under s 50(1)(e) was upheld, but with a direction that Brazel's rights to particulars, evidence preview, witness calling, and video link evidence be afforded in any future proceedings. This decision ensures that the disciplinary process adheres to the principles of procedural fairness enshrined in the legislation.

Orders