Buckland v The Department of Corrective Services / Visiting Justice Mr R Machell, C/O the Superintendent, Mr R Jennings, Casuarina Prison
[2008] WASC 177
•22 AUGUST 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BUCKLAND -v- THE DEPARTMENT OF CORRECTIVE SERVICES / VISITING JUSTICE MR R MACHELL, C/O THE SUPERINTENDENT, MR R JENNINGS, CASUARINA PRISON [2008] WASC 177
CORAM: HASLUCK J
HEARD: 25 JULY 2008
DELIVERED : 22 AUGUST 2008
FILE NO/S: CIV 1728 of 2008
MATTER :An application for a Writ of Certiorari against The Department of Corrective Services / Visiting Justice Mr R Machell; c/o The Superintendent, Mr R Jennings, Casuarina Prison
BETWEEN: RONALD JOSEPH BUCKLAND
Applicant
AND
THE DEPARTMENT OF CORRECTIVE SERVICES / VISITING JUSTICE MR R MACHELL, C/O THE SUPERINTENDENT, MR R JENNINGS, CASUARINA PRISON
Respondent
Catchwords:
Administrative law - Prerogative writs and orders - Application for order nisi for writ of certiorari - Principles of natural justice and procedural fairness - Whether charges resulted in duplicity or breach of natural justice - Single urine sample resulted in three separate charges involving three different drugs - Multiple convictions for disciplinary charges arising from single urine sample - Convictions and penalties imposed by the visiting justice held to be valid - Application for order nisi dismissed
Legislation:
Prisons Act 1981 (WA), s 70(d), s 71(1)(c), s 71(2)
Prisons Regulations 1982 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr R J Buckland
Respondent: Ms N Eagling
Solicitors:
Applicant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Craig v State of South Australia (1995) 184 CLR 163
Hondema v Carroll [2008] WASC 155
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Johnson v Miller (1937) 59 CLR 467
Kioa v West (1985) 159 CLR 550
Mills v Hendriksen [2008] WASC 79
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108
Re Kennedy; Ex parte Crozier [2002] WASC 190
Re Walker; Ex parte Fremantle Islamic Association Inc [2003] WASC 176
Walsh v Tattersall (1996) 188 CLR 77
HASLUCK J:
Introduction
The applicant, Ronald Joseph Buckland, seeks to obtain an order nisi for a writ of certiorari. The grounds relied upon are set out in a notice of originating motion dated 18 June 2008.
The applicant is presently serving a term of imprisonment at Casuarina Prison and represented himself at the hearing of the application. The matters referred to in his notice of originating motion are set out in a discursive way and it is therefore necessary for me to reduce the essence of his case to a more coherent form.
I must mention also that a previous application for an order nisi in respect of essentially the same matters was made in CIV 1486 of 2008. On that occasion Justice Johnson refused the application upon the basis that the application was premature. However, it is apparent from her reasons for decision that she allowed for the possibility of a further application being made by the applicant in due course.
Against this background I have drawn upon the affidavit of Darryl John Lawler sworn 30 May 2008, who is a Deputy Superintendent at Casuarina Prison, being an affidavit submitted to the court on behalf of the respondent in the previous CIV 1486/2008 application and the transcript of the hearing concerning that matter in order to outline the events underlying the present application. Counsel for the respondent did not object to this course.
I have before me also an affidavit filed on behalf of the respondent in the present matter being the affidavit of Alma Jean Kenworthy sworn 24 July 2008.
Background
I understand from the evidentiary materials before me that on 21 February 2008 the applicant was charged with three aggravated prison offences pursuant to s 70(d) of the Prisons Act 1981 (WA) for using or possessing drugs not lawfully issued to him.
I note in passing that pt VII of the Prisons Act deals with prison offences and draws a distinction between minor prison offences of the kind described in s 69 of the Act (such as disobeying a rule of the prison or behaving in a disorderly manner) and aggravated prison offences, being those offences described in s 70 of the Act such as behaving in a riotous manner or assaulting a person or escaping or attempting to escape from lawful custody.
More particularly, for present purposes, s 70(d) of the Prisons Act provides that a prisoner commits an aggravated prison offence if he uses, or is in possession of, drugs not lawfully issued to him.
By s 71 a charge of a prison offence may be made by any prison officer and shall be brought to the attention of the superintendent who shall, as he thinks appropriate and having regard to the nature of the alleged prison offence and to the alleged circumstances, refer the charge to a visiting justice. Where the superintendent proposes to refer a charge to a visiting justice under ss (1)(c), he shall call upon the prisoner to admit or deny the charge and shall endorse the charge with a note of whether the prison admits or denies that charge.
In the present case, the charges against the applicant were preferred by an officer based on the analysis of a urine sample provided by the applicant, in accordance with the Prisons Act and Prisons Regulations 1982. The sample revealed the presence of three different drugs not lawfully issued to the applicant.
The relevant charge against offender documents are exhibited to the affidavit of Mr Lawler. They are set out on three separate sheets apparently signed by the prosecuting officer, having been given separate charge numbers.
As to charge number 87/2008 it is alleged that on or about Wednesday, 6 February 2008 the applicant, being a prisoner used a drug not lawfully issued to him, namely, cannabis.
As to charge number 88/2008 it is alleged that on the same date the applicant used a drug not lawfully issued to him, namely, morphine.
As to charge number 89/2008 it is alleged that on the same date the applicant used a drug not lawfully issued to him, namely, subutex.
Each of the charge sheets is endorsed to show that a copy of the charge has been received, the plea is that of guilty, no option was given and the disposition on 29 February 2008 was to refer the matter to a visiting justice.
Put shortly, then, three discrete charges were preferred by a prosecution officer based on the analysis of a single urine sample provided by the applicant. This revealed the presence of three different drugs not lawfully issued to the applicant.
Procedural steps
On 29 February 2008 the Deputy Superintendent referred the charges to a visiting justice pursuant to s 71(1)(c) of the Prisons Act. The charge sheets were endorsed with the words 'guilty' in the manner allowed for by s 71(2). The applicant accepted at the hearing before me that he did plead guilty in each case, although that from the outset he was troubled by the duplicity issue I will come to later.
I pause to note that it was against this background that the application for relief was made to Justice Johnson which was determined to be premature.
Then, on 11 June 2008, visiting Justice Machell imposed concurrent penalties of weekend punishment in a punishment cell on 20 June 2008 to 22 June 2008 and 27 June 2008 to 29 June 2008 in relation to the charges.
I understand that the penalties of weekend punishment have now been served out by the applicant.
In order to provide a full understanding of the situation, it will now be useful to look at matters referred to in the affidavit of Alma Jean Kenworthy, who is the Manager of Sentence Management in the Department of Corrective Services.
The Kenworthy affidavit
It appears from the Kenworthy affidavit that on 1 March 1995 the applicant was sentenced to strict security life imprisonment for the offence of wilful murder with a minimum term of 20 years. His statutory review date is 28 February 2015.
It is said that all prisoners are allocated a security rating in accordance with the outcome of the Department's approved classification process. The applicant's current security rating is maximum. One of the factors bearing upon the rating is a prisoner's internal disciplinary charges.
The deponent was informed that on 11 June 2008 the applicant was convicted of three aggravated prison offences pursuant to s 70(d) of the Prisons Act for using drugs, namely, cannabis, morphine and subutex, not lawfully issued to him. These are referred to collectively as the 'drug charges'.
The deponent observes that question 6.10 of the classification review score checklist refers to disciplinary convictions within the current sentence. This factor is broken into four categories based on the number of convictions and time since conviction, each attracting a different weighting.
The applicant's next classification review will occur in the week commencing 19 February 2009. This is more than six months after the date when the drug charges were dealt with. Therefore, provided that the applicant does not commit any further offences, question 6.10 would not attract any score at the time of the next classification review. Question 6.11 (concerning disciplinary convictions obtained within the previous 12 months) will attract a score of 3. However, this score of 3 is not affected by the number of convictions recorded but is rather based on the type of offence.
It was said that any prisoner subject to Executive Council approval for release will remain above minimum security until the approval of their participation in a pre‑release programme. On 15 November 2004 the applicant was placed on the high security escort list due to the high risk of escape. Until the high security escort classification is removed, the applicant's security rating will stay as maximum under mandatory override provisions in cl 8.5.2 of Director General's rule 18.
It is said that under the Sentence Administration Act 2003 (WA) only the Governor has the power to order that the applicant be released on parole. A parole order may not be made unless a report about the applicant has been given by the Prisoners Review Board to the Minister.
When preparing the report, the Prisoners Review Board considers various factors, including the behaviour of the prisoner when in custody serving the sentence in so far as it may be relevant to determining how the prisoner is likely to behave on parole.
Observations concerning the Kenworthy affidavit
To my mind it emerges from a consideration of these details in the Kenworthy affidavit that, as far as the applicant is concerned, convictions for disciplinary offences are of importance to him and may have implications beyond the particular penalties imposed.
In other words, at first blush, it might be said in respect of the present matter, that it was immaterial whether the applicant was convicted of one offence of using drugs or of three offences, having regard to the fact that ultimately the same penalty was imposed in respect of each of the three offences and the weekend punishment penalty was ordered to be served concurrently.
However, apart from any complaint a prisoner such as the applicant might have about the regularity of the process, it emerges from the Kenworthy affidavit that separate convictions might have an effect upon the prospects of a prisoner serving strict security life imprisonment obtaining parole when he comes up for review.
It follows that the disciplinary procedure had the potential to affect his rights and it is not a sufficient answer to his present grievance to say that, in practical terms, he did not suffer any disadvantage because the penalties were to be served concurrently.
Notice of originating motion
The applicant's notice of originating motion contains passages to this effect:
4)The Department of Corrective Services, c/o The Superintendent, Mr R Jennings, Casuarina Prison and any other interested party, do show cause before a Single Judge of this Honourable Court why a Writ of Certiorari should not be issued to remove into this Court, the practice of disseminating multiple charges from one (1) Urinalysis sample; Visiting Justices accepting this practice and dealing with the charges as separate offences and the decision by Visiting Justice, Mr R Machell to validate this practice when requested to hear the charges as one offence, but dealt with the charges as separate offences, on Wednesday the 11th June 2008, be so deemed illegitimate and an abuse of a process and procedure.
5)On the grounds that:
a.There are no provisions in the Prison Act 1981, at Section 70(d) to do so, and,
b.That dissemination of this nature and determination to deal with the charges as separate offences is no more than duplicity.
It appears from these and other passages in the notice that the decisions which the applicant seeks to quash appear to be, first, the decision of the prosecution officer, Mr O'Byrne, to charge him with three charges of using or possessing drugs not lawfully issued to him pursuant to s 70(d) of the Prisons Act based on one urine sample and, second, the decision of the visiting justice Mr R Machell on 11 June 2008 to deal with the charges as separate offences and impose separate penalties accordingly (albeit that in each case the penalties were to be served concurrently).
The grounds on which the applicant seeks a writ of certiorari appear to be, first, that s 70(d) of the Prisons Act does not empower the superintendent to prefer multiple charges based on one urine sample and, second, that the practice of preferring multiple charges based on one sample is invalid due to duplicity.
Let me now turn to certain statutory provisions and legal principles bearing upon the matters before me.
Statutory provisions and principles
The decided cases indicate that at the order nisi stage the task is to consider whether the applicant can show an arguable case that upon the return of the order nisi an order absolute would be made or a writ would issue. The purpose of this stage is to eliminate those cases which have no prospect of success, on a cursory examination by the court of the matters at issue: Re Kennedy; Ex parte Crozier [2002] WASC 190 at [2].
One view is that an arguable case is one that is not merely capable of being argued, but has some prospect of success. This approach was adopted in Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108; see also Re Walker; Ex parte Fremantle Islamic Association Inc [2003] WASC 176.
I pause to note that in the present case, as the matter was fully argued on both sides, at the application for order nisi stage, it was recognised on both sides that if the threshold requirement was satisfied it would be open to me to proceed to determine whether an order absolute should be granted.
Wherever the legislature entrusts to any body of persons other than the superior courts the power of imposing an obligation upon individuals or affecting the legal rights, the courts are inclined to hold that such bodies are required to act judicially, that is to say, they must act within jurisdiction and they will be obliged to observe the rules of natural justice by affording to the party likely to be affected notice of the case against him and an opportunity of replying to it. The requirements of procedural fairness may vary according to the nature of the statutory provisions and the circumstances in the particular case: Kioa v West (1985) 159 CLR 550, 615, 633; Mills v Hendriksen [2008] WASC 79 at [113] ‑ [114].
If a body required to act judicially falls into error then relief can be obtained via the prerogative writs of certiorari and prohibition. For example, in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 the High Court held that a preliminary decision or recommendation made by a mining warden, if it is one which constitutes a condition precedent to an exercise of power that affects legal rights, will have the requisite legal effect upon rights to attract certiorari.
In the circumstances of that case, since the minister was required to take the warden's recommendation into account, the warden's decision had a discernable legal effect on the minister's exercise of discretion. Hence, certiorari lay to a challenge a decision by a warden to conduct a ballot for the purpose of determining the party entitled to priority in respect of competing applications for a mining tenement.
These principles are also reflected in the decision of the High Court in Craig v State of South Australia (1995) 184 CLR 163 where it was said at 177 that a body obliged to act judicially falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Further, such a body will exceed its authority and fall into jurisdictional error if it misconstrues the relevant statutory provisions or other instrument and thereby misconceives the nature of the function it is performing with extent of its powers in the circumstances of the particular case.
Further principles
In Hondema v Carroll [2008] WASC 155 I reviewed at some length the principles concerning the effect of a plea of guilty to a charge and the nature of a conviction. In essence, an unequivocal plea of guilty constitutes an admission of all the facts essential to the offence. A conviction requires that there be a judgment of the court which is ordinarily in the form of a sentence following upon a verdict or a guilty plea.
To this point, these principles suggest that there was nothing untoward about the procedure in the present case. I accept that the charges had the potential to affect the applicant's rights and the rules of natural justice had to be observed. However, the charges were in fact advanced in written form and the applicant was given an opportunity to respond to them.
In my view, the decision of Mr O'Byrne (the prosecution officer) to charge cannot be challenged by certiorari because he was not an adjudicator whose decision would have an effect on the applicant's rights. The matter was referred to visiting Justice Machell for determination. Pleas of guilty were received which can be taken in each case as establishing all the elements of each offence. This led to a consideration of penalty. The penalties imposed can be treated as the moment of conviction and thus completion of the process.
Duplicity issue
This brings me to the question principally raised by the present application; that is, was the process tainted by an element of duplicity with the result that, inadvertently, the adjudicator, in proceeding to sentence (and thus to conviction), may have acted pursuant to irrelevant considerations, or alternatively, may have breached the rules of natural justice because the applicant was not given proper notice of a fairly presented charge or a proper opportunity to reply to it?
The principles of common law concerning duplicity were dealt with at length in Walsh v Tattersall (1996) 188 CLR 77 by Kirby J at 92 in these terms:
The common law developed the rules of criminal pleadings for the protection of the liberty of the subject. It required that a person, accused of the commission of a crime, should be informed fully and precisely of the charges contained in the accusation. One rule which evolved from this general principle was the rule against duplicity. No count in any indictment, presentment, information or complaint might charge a person with the commission of more than one offence.
Further observations were made by Kirby J at this effect at 108:
Ultimately, what is presented is a question of fact and degree for decision in each casehttp://thomsonnxt4/links/Handler.aspx?tag=b4aa162ecbddb22af54960715c92fb41&product=ac. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conducthttp://thomsonnxt4/links/Handler.aspx?tag=0a13a6f97f4af3a40f5a759cd8dbc54e&product=sasr. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion.
To my mind, it is at this point that the case for the applicant begins to break down. A distinction must be drawn between, on the one hand, the presentation of a charge and, on the other hand, the evidence assembled to prove the charge. The rules about duplicity are concerned essentially with the former; that is, presentation of the charge. The objective is to ensure that the allegation is expressed precisely so that separate offences are the subject of separate charges.
The crucial requirement is that a defendant be apprised not only of the legal nature of the offence but also of the particular act or matter alleged as the foundation of the charge. The adjudicator hearing a complaint must have before him a means of identifying with the matter alleged in the document the matter appearing in the evidence: Johnson v Miller (1937) 59 CLR 467 per Dixon J at 489.
It follows that the one source of evidence, being in this case a urine sample, may give rise to several discrete charges. For example, if a person's pocket contains a mixture of heroin and marijuana, then, as in the case of the urine sample, he might well be charged with discrete offences. This is not objectionable so long as each charge is precisely expressed. He may have a defence (such as duress or honest and reasonable but mistaken belief) as to one substance but not as to the other. The possibility of separate defences will be preserved if the charges are separately expressed but will be prejudiced if the rule against duplicity is not observed in that both matters are wrapped up in the one charge.
It is apparent from earlier discussion that in this case the charges were separately expressed. In my view, the rule against duplicity was not infringed simply because the one sample was relied upon. In the end, this source of evidence was separated into discrete pieces of evidence as were the charges with the result that the adjudicator and the parties were in a position to relate the matter alleged in the complaint to the matter relied upon by way of evidence.
For these reasons, I do not consider that the process was flawed or tainted by duplicity. I will dismiss the application because I am not persuaded that the applicant has an arguable case. I will hear from the parties as to whether any further orders are required.
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