Crowley v Stewart
[2001] VSC 17
•9 February 2001
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No. 8000 of 1999
| DAVID LEE CROWLEY | Plaintiff |
| v | |
| STEWART & ORS | Defendants |
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JUDGE: | Smith J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16 and 17 November 2000 | |
DATE OF JUDGMENT: | 9 February 2001 | |
CASE MAY BE CITED AS: | Crowley v Stewart & Ors | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 17 | |
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Judicial Review – Governor's hearing – Prison offence– Lack of jurisdiction – Denial of natural justice – Construction of s. 50 Corrections Act 1986
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr K. Armstrong | Victoria Legal Aid |
| For the Defendants | Mr R.D. Shepherd | Kevin Davine Fitzpatrick |
HIS HONOUR:
Background to review
The plaintiff, David Lee Crowley, is a prisoner at Fulham Correctional Centre ("the Centre"). The first four defendants were at all relevant times officers at the Centre. The first defendant, Stewart, was, an “Operational Manager” at the Centre. The second, third and fourth defendants Tipper, Crimmins and Senior, were officers at that Centre. The fifth defendant was at all relevant times the company that operated and managed the Centre.
The plaintiff seeks judicial review of a decision made by the first defendant Stewart, on 19 October 1999 at a "Governor's hearing", he being authorised to exercise the functions of a Governor[1]. The hearing concerned a charge under the Corrections Act Regulations, 1998 reg. 44 (1) (e) of being in possession of an unauthorised substance. Allegedly, marijuana had been found in the plaintiff's cell on or about 17 August 1999 inside a computer. He was found guilty of the charge and fined $40 and was given an Identified Drug User categorisation of IDU2. A result of the categorisation was that he was deprived for some months of contact visits with his wife namely:
(a)contact visits between the hours of 9am and 4pm each Saturday and Sunday and
(b)residential visits once every seven weeks from his wife between the hours of 10am and 4pm in a self contained flat at the Centre.
[1] see s. 9C Corrections Management Act 1993
The plaintiff seeks orders that the decision be "removed into this court and be quashed" and that the fifth defendant be directed to dismiss the charge. The originating motion also seeks an order for a permanent stay, presumably in the alternative.
Grounds on which decision challenged
The grounds in support of the application may be summarised as follows:
(1)Lack of jurisdiction – The plaintiff submitted that steps had been taken to have the matter dealt with under the criminal law[2] and that as a result of that election the matter could not be dealt with at a Governor's hearing. In addition, it is said that a condition precedent to the laying of a charge, namely, the recording of the offence in the register of offences, was not met.
[2]See s.50(8), below, para 4
(2)Lack of evidence of a critical element - It is submitted that there was no evidence of the nature of the substance which was the subject of the charge.
(3)Denial of natural justice - The plaintiff submitted that the first defendant denied natural justice to the plaintiff by
(a)refusing to allow the plaintiff to continue cross-examining a witness, Crimmins;
(b)refusing to allow the showing of video film at the request of the plaintiff;
(c)requiring the plaintiff to leave the hearing while he conversed with a prison officer about the matter
The plaintiff abandoned a further basis – the alleged refusal to allow the plaintiff to call evidence from prisoner Basten.
(4)Acting ultra vires. The plaintiff submitted that the first defendant purported to impose more than one penalty or disposition and this was expressly forbidden by statute[3].
[3]See s.53(4) and (6), below para. 4
Relevant legislative provisions
At the relevant time, prison discipline was dealt with in Part 7 of the Corrections Act 1986 (as amended). The relevant provisions were contained in s. 49 to s. 51 and were, at the relevant time, as follows:
“49.Disciplinary officers
The Secretary may by instrument nominate –
(a)a prison officer to be a disciplinary officer in a prison or in any part of a prison; or
(b)officers in a class of prison officers to be disciplinary officers in a prison or in any part of a prison.
50.Prison offences
(1)If an 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 sub-section (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; or
(e)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.”
51.Governor’s action where charge laid
On receiving a copy of a charge for a prison offence the Governor may do any of the following-
(a)if satisfied that the prison offence should have been dealt with by the disciplinary officer, refer the matter back to the disciplinary officer to be dealt with under section 50 (5);
(b)if the Governor believes that the Governor has an interest which would prejudice the fair hearing of the charge, refer the matter to another Governor for hearing;
(c)hear the charge;
(d)take steps to have the matter dealt with under the criminal law.
Some of the terms were defined in s. 48 of the Act as follows:
48.Definitions
In this Part –
. . .
“disciplinary officer” means a prison officer –
(a)nominated by the Secretary as a disciplinary officer; or
(b)in a class of prison officers nominated by the Secretary as disciplinary officers;
“privilege” in relation to a prison means any of the privileges determined in accordance with the regulations for that prison;
“prison offence” means a contravention of this Act or regulations;
“register of offences” means the register of prison offences established in accordance with the regulations.
The Act also sets out procedural requirements for Governor's hearings in s. 53. It provided so far as relevant:
53.Governor’s hearing
(1). . .
(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.
(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;
. . .
(6)For each prison offence committed the Governor must not under sub-section (4) impose more than one of the penalties listed in that sub-section.
The Corrections Regulations 1988 also dealt with Governor's hearings. Regulation 45 required that they be conducted in accordance with the Act and Division 2 of the Regulations (in which it appears) and then provided:
45.Conduct of Governor’s hearing
In conducting a Governor's hearing, the Governor
(a). . .
(b)must ensure that the proceedings are conducted with as little formality and technicality and as expeditiously as the requirements of the Act and these Regulations and a proper consideration of the matters before the Governor’s hearing permit;
and
(c)is not bound by the rules of evidence but may be informed of any matter in such manner as the Governor thinks appropriate.
48.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 of 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.
Also of relevance is Regulation 66(1). It provides
66.Dealing with seized articles or substances
(1)The Governor must ensure that a firearm, explosive substance or drug of dependence seized in a prison is given to a member of the police force as soon as possible.
Lack of jurisdiction - Issues
The plaintiff submitted that the Governor lacked jurisdiction because of acts and omissions on the part of the relevant disciplinary officer, Tipper, who laid the charge. Tipper was appointed a disciplinary officer under s. 50 of the Act on 1st June 1999. The acts and omissions complained of comprised taking steps to have the matter dealt with under the criminal law and failing to record his satisfaction that an offence had been committed in the register of offences as required by s. 50 before a charge was laid. The former is said to have been an election made by the disciplinary officer which, having been made, prevented him subsequently laying a charge. The other aspect was said to prevent him laying a charge in that the Act required him to record the offence in the register of offences before he laid the charge. The evidence established that that entry did not occur until the day of the hearing and that it was in fact made by Stewart, the Operational Manager.
The following sequence of events occurred. On 17 August 1998 an officer, Van Heuryk, telephoned Tipper and requested him to attend the cell of the plaintiff. When Tipper arrived a search was being conducted in the cell. He took recording equipment with him, at the request of Van Heuryk, and, on arrival, commenced to record the search in the presence of the plaintiff and Crimmins and Van Heuryk. The search was conducted and some green vegetable matter was allegedly found inside the computer. Tipper contacted the police and handed to Senior Constable Dawkins the green vegetable matter. He maintained that in handing the material to the police he was complying with regulations[4]. He conceded the matter was referred to the police for investigation. He understood it was possible that the police might use the material in criminal proceedings. He agreed that no other disciplinary officer was involved in the matter. Shortly after the incident, on 17 August 1999, he imposed a contact visit ban on the plaintiff.
[4] Regulation 66
On 23 August 1999 he was present when the plaintiff was interviewed by Senior Constable Dawkins and, for that purpose, was cautioned by him. The plaintiff gave an interview asserting his innocence. On 9 September 1999 Tipper made a statement to the police in response to a request.
On 7 October 1999 he received a memo from the Victoria Police entitled "Result of Investigations" relating to the plaintiff and the incident. In the form it stated
"Offence: possess cannabis
Date of I/V (instead of "Date of offence") 17/08/99
Result: Brief not authorised by S/Sgt Macklewaring on 21/9/99
Referred back to Fulham Centre for disciplinary action."
Tipper gave evidence that he received the 7 October 1999 document from the police. It identified the offence as being "possess cannabis". Prior to receiving that document, and prior to involving the police on 17 August 1999, he stated that he had not reached the requisite point of satisfaction that a prison offence had been committed. He said that what moved him from a position of lack of satisfaction to one of satisfaction was that the above "Result of Investigation" document contained the words "offence: possess cannabis". He said that the fact that the officer in charge chose not to approve a brief to pursue the matter did not raise any doubt in his mind. He saw the document as identifying the green vegetable matter as cannabis. He said, later in his evidence, that the receipt of that document meant that the investigation had been carried out and completed by the police. He himself had complied with the requirements of Regulation 66 in handing the substance to the police. He had received the result of the investigation which satisfied him that the police believed the substance was cannabis and he took the appropriate step to pursue that with the general manager of the Centre who directed him to become the disciplinary officer and prepare a charge. On 7 October 1999 he prepared the charge and complied with the procedures for presenting the charge. As at 7 October 1999, no entry had been made in the register of offences – known at the Centre as the "Register of Prisoner Charges".
On about 8 October 1999, the plaintiff was advised by an officer, Senior, that he was to attend a Governor's hearing on 12 October 1999 in relation to the search and the substance allegedly found. The register of offences was signed on 11 October 1999 by Stewart, not by Tipper. The hearing was adjourned to 19 October 1999. The hearing took place and was concluded on that day. On 28 October 1999 or thereabouts, Tipper came into possession of a certificate of a botanist Susan Elizabeth Fidian from the Victoria Forensic Science Centre identifying a sample of plant material examined on 27 October 1999 stating it was 6.5 grams of cannabis l.
The defendants argued that the actions taken by Tipper, as the disciplinary officer, in involving the police were no more than attempts to obtain police assistance in investigating the offence and that he did not make any election to take steps to have the matter dealt with under the criminal law. In addition, as noted above, the material was given to the police, it was said, pursuant to Reg. 66(1). As to the entry in the Register of Offences, they submitted that that was merely an administrative matter that could be carried out at any time and that there was no mandatory sequence of acts that needed to be done before a charge could be laid. In addition, it was said that the issues raised by the plaintiff involved a challenge to the actions of the disciplinary officer and this could not be pursued because of s. 50 (9) of the Act which prevented any appeal, review, challenge or calling in question of disciplinary officer's decisions.
Lack of jurisdiction - Analysis
The first matter to address is the effect of s. 50. The requirement to record the offence appears to be a mandatory requirement – the officer "must", after becoming "satisfied that the prisoner had committed a prison offence", record it in the register of offences. This had to be done before taking action. The reason for the requirement was presumably to ensure that no action was taken unless a duly appointed disciplinary officer was satisfied an offence had been committed. It thereby introduced and identified a person who carried the responsibility for taking action and was accountable. It also provided a record of who formed the opinion and took action. It would help to ensure that the person who laid the charge (or reprimanded the prisoner or referred the matter to the police) had given serious thought to the matter and would offer some protection to prisoners by regulating and formalising procedures for the handling of prisoner offences. This would be consistent with the purposes of the legislation as stated in the Act and recorded in Hansard.
Turning to the structure of the section, it set out alternative steps that "may" be taken after the entry is made. They included charging a prisoner with a prison offence (s. 50(5)(d)) or taking steps to have the matter dealt with under the Criminal Law (s. 50(5)(e)).
Turning then to what occurred, I am satisfied that a number of acts and omissions occurred which involved non-compliance with the provisions of s. 50.
(1)It is clear that the entry by a disciplinary officer was not recorded in the register of offences prior either to the involvement of the police or the charging of the prison offence.
(2)Accepting that the charge was laid by Tipper, he maintained that he was not satisfied that an offence had been committed prior to involving the police and that what made the difference to his state of mind on the matter was the October Investigation Report returned by the police which he received shortly prior to laying the charge. I do not accept that evidence. In my view that document did no more than state the nature of the alleged offence investigated by the police. It contained no additional evidence that would have strengthened anybody's satisfaction. Rather it would have introduced doubt in view of the fact that the police did not wish to proceed with the matter.
I accept that Tipper was satisfied that an offence had been committed when he sent the cannabis to the police because he was satisfied that it was cannabis. He tried to maintain that he only had suspicions but this attempt was unconvincing. I also note that he said that he sent the substance to the police because this was required of him. In saying that he was relying on the requirements of Regulation 66 which relates to identified drugs of dependence. I also note that he deposed that following the incident he told Crowley that he would be subject to a 60 day non-participation penalty and a ban on contact and family visits.
Having been satisfied that an offence had been committed he should have put the entry in the Register.
(3)The actions taken by Tipper were not confined to placing a drug seized in prison in the custody of the police and inviting the police to investigate the matter. What he did was pass the matter to the police for them to take action in the matter if they thought appropriate. He was present when Crowley was cautioned and made a statement himself to the police. I am satisfied that he saw the matter as being handled as a criminal matter at that time. He took all the steps that could be taken by him to have the matter dealt with by the police.
(4)It was Stewart who signed the register of offences. While I accept that as Operations Manager, Stewart was a disciplinary officer, the Act. in s. 51 and s. 50, clearly distinguished the Governor, who will hear the charge, from the disciplinary officer who laid the charge. To construe the Act to enable the Governor to perform both roles would provide the remarkable situation that the Governor, satisfied that there had been a prison offence, could lay the charge and then try it. It was clearly envisaged that there would be a stepped approach with the s. 50 provisions being complied with and s. 51 would become relevant if a charge was laid under s. 50.
Several arguments were advanced for the defendants. The first was that the disciplinary officer could do more than one of the things in s. 50 (5)(d) and (e) and that the disciplinary officers actions did not affect the jurisdiction of the governor. Counsel further submitted that no requirement was placed upon the governor to decide whether or not the charge had been laid in strict compliance with s. 50. It was submitted that this approach was strengthened by consideration of s. 50(9) and its existence.
There are at least two difficulties with this argument. The first is that plainly, in s. 50(5), the various options are stated as alternatives. Secondly, the argument for the plaintiff does not depend upon any requirement being placed on the governor to decide whether or not the charge has been laid in accordance with s. 50.
Counsel for the defendants also submitted that the critical task in a situation like the present is to examine the consequences that flow from requiring strict compliance with the procedure. Counsel argued that a strict interpretation of s. 50(5) and strict compliance with it would create inconvenience and injustice where a disciplinary officer is satisfied that the prisoner has committed an offence and the disciplinary officer takes steps to have the matter dealt with under the criminal law and was deprived thereby of the opportunity to bring charges under the Corrections Act and Regulations. Counsel conceded, however, that strict compliance will prevent injustice to prisoners in that prison offences could not be brought where the police choose not to proceed because there was no basis for the charge. It was suggested that the inconvenience and injustice otherwise identified, however, should not be permitted to occur and that this was a direct result of the requirement of strict compliance with the procedure.
A difficulty facing the defendants is the fact that the section itself states that a disciplinary officer "must" record the offence in the registry of offences. Prima facie, this imposed a duty[5]. The section then, significantly, spells out the various options that he "may" adopt. In my view the Parliament carefully set out a procedure which it required to be followed, mandatory in part and discretionary in part. So far as is relevant, no action is to be taken in respect of a prison offence unless the disciplinary officer is satisfied that the offence has been committed, considers whether it is trivial (s. 50 (4)), records the offence in the register of offences and then exercises his or her discretionary judgment in determining which of the four alternatives should follow. The provisions are clearly set out. They do not provide for any relaxation of the mandatory requirements. It seems to me that the purposes of the legislation are best served by the construction advanced by the plaintiff and by dealing with the consequences of a failure to comply with those requirements in the manner suggested by the plaintiff. To do otherwise would render them meaningless.
[5] See Pearce Statutory Interpretation 3rd edition para 11.5.
In further support of their construction, counsel for the defendants submitted that where a disciplinary officer gives a drug of dependence to police under Regulation 66 not knowing whether it is a drug of dependence and the Victorian Police decided not to proceed against the prisoner, the disciplinary officer could not lay a prison charge with the result that the prisoner obtained, in effect, a permanent stay of a prison charge. That may be so, but it will occur in circumstances where the police think it inappropriate to proceed. In addition, the result is a consequence of decisions taken by the disciplinary officer. The disciplinary officer can protect himself or herself by making it clear on what basis the contact has been made with Victoria Police. With a modicum of care the problem posed can be avoided.
Counsel for the defendants also submitted that Tipper could not refer " the matter" under s. 50(5)(e) to be dealt with under the criminal law if the prison offence in question was not known to the criminal law. He submitted that the prison offence under Reg. 44(e) was not an offence known to the criminal law, namely, having in his possession "an article of substance not issued or authorised by an officer, prescribed by medical officer, medical practitioner or dentist, or permitted under the Act or these Regulations".
In my view, s. 50(5)(e), in using the term "in the matter", was referring to the incident that was the subject of investigation by the disciplinary officer. It should be noted that in the earlier part of s. 50(5) reference is made to investigating the prison offence and so within the sub-section itself a distinction is drawn between the prison offence and "the matter". The expression should not be read down in the way sought by the defendants.
So far as is directly relevant to this case, Tipper, having been satisfied as to the commission of a prison offence, failed to record the offence in the register of offences. As a result, he could not take the next step of either laying a charge or taking steps to have the police matter deal with under the criminal law. Assuming, however, he had that power, he chose the latter. Having done that, he had no other options open under the legislation and, in particular, could not then charge Crowley with a prior offence.
Arising out of this analysis the plaintiff argued that there are two approaches that may be taken. One is to say that the charge when laid by the disciplinary officer was invalid. This argument requires consideration of s. 50(9). The other is to say that the failure to comply with the requirements of s. 50 and the choice having been made to go down the criminal offence path, the prison offence procedure was no longer available. Counsel submitted that this argument does not involve an appeal, a review, a challenge or a calling in question of what the disciplinary officer did because it does not challenge the merits of his decisions. Rather, it accepts what he did. The result of those actions is that the procedure of the laying of a charge was not available with the consequences that there was no jurisdiction in the governor. Counsel submitted that Section 50(9) has no application to such a situation.
In my view the construction advanced by the plaintiff should be accepted. If there be ambiguity in s. 50(9), it is a privative clause and, consistently with authority, any ambiguity should be construed in a way that does not deny jurisdiction to this court to review the decision made by Stewart[6].
[6] Counsel for the plaintiff referred to Australian County Cinemas Pty Ltd v BYA Pty Ltd [1998] 714 FCA 5 June 1998; Public Service Association (SA) v Federated Clerks Union of Australia South Australian Branch (1991) 173 CLR 132; Re City of Melville; J-Corp Pty Ltd (1998) 20 WAR 72.
The issue was raised as to whether there had been compliance with the requirements of the Constitution Act 1975 in the enactment of s. 50(9). In view of the conclusions I have reached it is unnecessary, and I suggest undesirable, that I explore that question.
For the above reasons I am satisfied that the prison offence procedure was not available and Stewart had no jurisdiction in the matter.
Refusing to allow the plaintiff to continue cross-examining Crimmins and refusing to allow the showing of video film at the request of the plaintiff
In his initial affidavit, the plaintiff said Crimmins gave evidence of the search of the cell and the discovery of a plastic bag containing green vegetable matter in the computer. He deposed to cross-examining Crimmins and obtaining a concession from him that the search of the cell was made as a result of information obtained through prison intelligence. He also cross-examined him about the handling of the drug dog, which Crimmins alleged had identified illicit drugs in the computer. He had put to Crimmins that the videotape showed that the dog did not indicate anything and that in fact Crimmins was deliberately turning the dog's head in the direction of the computer to make it look as though the dog had noticed something. The video tape of the search with the dog was in fact a second search. The evidence of the prison officers was that there had been an earlier search with the dog which had resulted in the dog identifying substances in the computer and following that Tipper came with a video camera to record the second search and the dismantling of the computer to reveal the packet containing green vegetable matter.
The plaintiff claimed in these proceedings that he was prevented by the presiding officer from continuing his cross-examination of Crimmins and, in the course of that, from having the video replayed for the purpose of demonstrating his point that Crimmins was deliberately turning the dog’s head in the direction of the computer to make it look as if the dog had noticed something.
The significance of this line of cross-examination was that the plaintiff maintained at all times that he was not aware of the presence of the package inside the computer and that the drugs had been planted there by prison officers. Accordingly, the search with the dog was a part of the evidence he relied upon to suggest that the case was not a genuine one and that the prison officers were trying to make it look like one. He submitted that it was important as a matter of natural justice that he be given an adequate opportunity to test Crimmins on this issue but was prevented from doing so.
In the initial evidence filed on behalf of the defendants, Crimmins, Tipper and Stewart deposed that the plaintiff did allege that the dog’s head was being turned towards the computer and raised this issue while the video was being shown. They deposed that the plaintiff had put to Crimmins several times that he had turned the dog's head and each occasion Crimmins said that he had not. After the third answer Crimmins had said that he had already said "no" to the question and asked whether he had to answer it again. They deposed that Stewart then said to the plaintiff that Crimmins had answered the question and asked the plaintiff to move on and ask another question. Following that, they said that the plaintiff said he wished to call witnesses. Stewart, Crimmins and Tipper deposed that Stewart asked the plaintiff whether he wanted to put anything further to Crimmins and that the plaintiff said he did not.
The plaintiff when cross-examined in these proceedings said that there was an argument when Crimmins did not wish to answer the questions that had been put to him about guiding the dog, an argument involving himself, Stewart and Crimmins. In the course of that he said that he accused Crimmins of putting material in the computer and in the course of that he said to Crimmins that he had made a fatal mistake in that he had left security tape behind, tape that had been on the computer.
Generally the evidence on these issues is unsatisfactory. The plaintiff's evidence has varied. Notably, he volunteered evidence for the first time in the witness box that he had sought to put to Crimmins in cross-examination that he had planted the vegetable matter in the computer. This had not appeared in his affidavits although he had several opportunities to mention it. He also, having sworn affidavits complaining about an inability to call Basten, conceded that Basten had given evidence.
As to the request to replay the video, however, notwithstanding the question marks over Crowley's credibility as a witness, it is significant that neither Crimmins nor Stewart were prepared to say that he had not asked for a replay but rather said they could not recall whether he did or not. I accept that Crowley had not seen the videotape before the hearing. It provided him, unexpectedly, with material to support his argument that he was being frank. The strength of that evidence was a matter for debate but the video tape appears to show the dog handler directing the dog to the computer and the dog appearing to show very little interest in it. There were at least two possibilities. One was that the prison officers simply had information from another source which caused them to investigate. Another was that they had information, having planted the material themselves. The evidence was capable of lending credibility to Crowley's story and would have assisted Crowley in casting doubt on the credibility of the prison officers who were asserting that the dog on the videotape had singled out the computer column as the location of the substance. I would, therefore, have expected Crowley, as he presented to me, to have been very keen to drive the point home and would have pressed to have the videotape replayed so that he could question Crimmins further. Tipper asserted that there had been a replay of a part. This was denied by Crowley. I have reservations about Tipper's impartiality in this matter. His evidence was demonstrably affected at other times by his partiality. He asserted more than once that he was made a disciplinary officer on 7 October 1999. He said that after receiving the memo of 7 October 1999 he approached the general manager and was directed to become a disciplinary officer in the preparation of a charge relating to Crowley. If true, this would have overcome a major problem under s. 50 of the Act; for, if accepted, he reached the required satisfaction as disciplinary officer prior to charging Crowley. In fact he had been a disciplinary officer from 6 June 1999. I refer later to his unsatisfactory evidence about when it was he became satisfied that an offence had been committed.
I accept the analysis of Mandie J in Henderson v Beltracchi (1999) 105 A. Crim. R. 578 at 588, where his Honour said
“Requirements of natural justice depend on the particular statutory framework, the nature of the inquiry, the rules under which the tribunal was acting, the subject matter that is being dealt with, indeed all the circumstances of the case”[7].
His Honour went on to say that the Corrections Act provisions had
"expressly provided the essential framework of fair procedure which the legislation says "must" be adhered to (see s. 53 above). That included the requirement that the prisoner be allowed reasonable opportunity to . . . cross-examine the person conducting the case against the prisoner and witnesses called by that person."
This obligation is repeated in Regulation 48(c)[8].
[7] Citing Mobile Oil Aust. Pty Ltd v Commissioner of Taxation (Cth) (1963) 113 CLR 475, at 504 and Koia v West (1985) 159 CLR 550.
[8] See also generally Rainsford v The Governor of Her Majesty's Prison at Ararat 2000 VSC 141; M. Groves "Proceedings for Prison Disciplinary Offences: The Conduct of Hearings and Principles of a Review" Monash University Law Review Vol. 24 No. 2 1998 p. 338 per Eames, J.
Apart from the Act and Regulations, natural justice in the circumstances of this case would require that the person charged have an adequate opportunity to present his case including an adequate opportunity to cross-examine on the important evidence of the video tape. I am satisfied that Stewart refused to allow Crowley to cross-examine Crimmins further using the videotape and that in the circumstances of the case that constituted breach of s. 53, regulation 48 and a denial of natural justice at common law.
In considering this and the other issues raised, counsel for the defendant submitted that the courts have been reluctant to interfere in the management of prisons and in the manner in which a Governor carries out his duties and would normally not do so unless there was a clear infringement of the Act or the Regulation[9]. The approach does not assist the defendants here where there has been a clear breach of the legislation under which the officers are supposed to act.
Requiring the plaintiff to leave the hearing while conversing with a prison officer about matters relevant to the case
[9] Counsel cited Rich v Groningen (1997) 95 A. Crim. R. 272 at 274; Vezitis v McGeechan [1974] 1 NSWLR 718 at 721 (compare, however, the comments of Eames, J. in Rainsford (above par. 84 and following).
Following the evidence of Crimmins, the plaintiff called another prisoner by the name of Galli. He gave evidence of the presence of security tape attaching the computer cover to the back wall of the computer before any search. The case for the plaintiff at the Governor's hearing was that prior to the first search the security tape was attached to the computer in five places - one piece of tape at the top of the computer and two pieces of tape on each side of the back wall of the computer and computer cover. When the initial search took place inside the computer, however, the plaintiff asserted that these security seals were removed and they were also not present on the computer when he went back into the cell for the purpose of the video taped search. In other words, the issue of the security system employed was relevant to his claim that the drugs had been planted in the computer by the officers and not by him; for the seals were intact prior to the search. It also went to his credibility. Through Galli, Crowley produced the pieces of tape which he said he had found on the floor of his cell after the removal of the computer and his return to the cell.
The plaintiff gave evidence in these proceedings that the production of the seals caused something of a panic. Whether that description is accurate, it is common ground that the first defendant, Stewart the presiding officer, asked the plaintiff to leave because he wished to speak to Tipper. The defendants argue that the evidence suggests that, when the tape was produced, it was seen as raising a security issue and that that was the reason why Stewart, the presiding officer, asked the plaintiff to leave the room while he spoke with Tipper. Stewart deposed that he wanted to inquire whether any tape was used in the prison for sealing electrical goods and that, if it had been, this would have been a completely inappropriate use for the tape. He deposed that the tape in question was used to seal urine specimen containers and urine evidence bags. It was not supposed to be used for sealing electrical goods. He said that he spoke to Tipper not for the purpose of obtaining evidence for the hearing but merely to deal immediately with the security issue. He deposed that he considered it would be inappropriate for this issue to be discussed in front of the prisoner because it was a security issue involving the prison. He deposed that he spoke to Tipper for about five minutes. The plaintiff, however, has given evidence that it was more like 20 minutes. Stewart deposed that he said in substance to Tipper that he wanted him to make a security inquiry in relation to whether the type of tape produced by the prisoner had been used for sealing electrical goods at any time because he considered this was a serious issue to be dealt with immediately in accordance with his duties under the Corrections Act. He said Tipper told him that no tape was used to secure electrical goods.
Stewart admitted in para. 21 of his affidavit that the plaintiff had earlier alleged that the tape must have been removed by the officers prior to dismantling the computer but Crimmins had denied that allegation. The other witnesses have sworn affidavits in similar terms – almost identical, as a matter of fact. They also support Stewart's evidence in his affidavit that he did not on the plaintiff's return, as the plaintiff had sworn, say that he was accepting the explanation of Crimmins that there was no security tape on the computer. What ever may be the truth on that matter, the fact remains that the only evidence that was subsequently given was some brief evidence from the plaintiff and from another prisoner Basten although his evidence appears to have been in response to questions from the presiding officer. The presiding officer then indicated that he found the charge proved.
Crowley was excluded while the Governor conferred with Tipper in the presence of Crimmins and another officer after the tape was produced on matters directly and indirectly relevant to the issues. In addition Stewart did not inform Crowley of all the relevant evidence that he had received – in particular; Tipper's information to the Governor that this tape was not used anywhere in the prison for any purpose other than urine analysis sample security. On Stewart's own evidence, the conversation was not short – it lasted five minutes.
Stewart indicated in his evidence that he immediately stopped the hearing on finding that the prisoner was in possession of this tape because of security issues. His attempted explanation does not stand up to scrutiny. His concern did not warrant an immediate interruption of the case. Security issues could have been gone into afterwards. Assuming, however, that he stood the matter down because he was concerned about security issues the defendants have not been able to demonstrate why, for security reasons, Crowley could not have been told what Tipper told the Governor about the use of the tape. I can find no reasonable basis to justify these acts and omissions.
As a result of Stewart's actions, Tipper became a witness. He was also liable to questioning under s. 53 (2) because he was "conducting the case against the prisoner". In accordance with s. 53, Reg. 48 and the rules of natural justice, he should have been told what information Tipper had given and should have been given an opportunity to cross-examine Tipper on what Tipper had said and, for that matter, given an opportunity to call evidence to contradict him.
Lack of evidence of the substance being cannabis
The plaintiff seeks to argue that there was an error of law on the face of the record in that there was insufficient evidence that the substance was cannabis. But the error does not appear on the face of the record, the record being the charge, the reasons and the decision. Assuming, however, that reference can be made to affidavit material about the reasons and the decision, there is nothing in them to indicate that there was an absence of evidence of the nature of the substance in question. There was some evidence, and the case was argued on the basis, that the substance was cannabis and it was only after the decision was handed down that the plaintiff sought to challenge that assertion.
Acting ultra vires in imposing two penalties
It appears to be common ground that Stewart, after he found the plaintiff guilty of the charge, fined him $40. He then informed him that, because of the Victorian Drug Strategy, the finding that the charge was proved would result in him incurring an identified drug user status and that that would result in a loss of privileges. The plaintiff deposed that Stewart said that he was categorised as an IDU2 prisoner and that was likely to lead to loss of privileges in the future. Stewart in his affidavit denied using those words and again was supported in the affidavits of the other prison officers. The result in fact was that from the date of the search of 17 August 1999 for a period of six months thereafter he was deprived of contact visits between the hours of 9am and 4pm each Saturday and Sunday with his wife and a residential visit with his wife once every seven weeks between the hours of 10am and 4pm in a self contained flat at the Fulham Correctional Centre.
The plaintiff argued that the Stewart, imposed two penalties because he imposed a fine and a consequence of the conviction was that his IDU rating was affected and accordingly he would lose privileges. The loss of those privileges would last for a period longer than that specified in s. 53 (4) of the Act. He also argued that the section forbade the imposition of two penalties.
The defendants argued that
(a)Section 53 refers to privileges and they are confined by the definition in s. 48 to those set out by the prison under Regulation.
(b)the Governor did not impose any other penalties and that the additional adverse consequences flowed from the prison drug strategy operating throughout the prisons of Victoria and were not imposed by the Governor.
At the Centre, there was a statement of privileges determined in accordance with prison regulations (Ex D6) which included in the list "Access to residential visits". There was, therefore, a curtailment of a privilege resulting from the application of the drug strategy and withdrawal of two privileges. The issue remains whether the plaintiff has established that the Governor imposed that "withdrawal" of privileges. In Henderson v Beltracchi (above – 586) Mandie, J. in considering a similar situation, concluded that the Governor had not in terms withdrawn the privileges lost because of the new status but had simply informed the plaintiff of that loss. In the absence of evidence which would point to the reality of the Governor in fact imposing such a penalty, that analysis should be adopted in this case.
Conclusion
For the foregoing reasons, I am satisfied that the first defendant lacked jurisdiction to hear the charge against the plaintiff. I am also satisfied that during the hearing, the plaintiff was denied natural justice for the reasons I have indicated and that the proceeding was also conducted in such a way as not to comply with s.53 of the Act and Regulation 48 of the Regulations. In light of the conclusion reached as to lack of jurisdiction, and the reasons for that conclusion, a re-hearing of the prison offence is not open. It is therefore unnecessary and inappropriate to consider the orders that would normally flow from the finding of a denial of natural justice. There remains to be considered, however, the appropriate form of orders to be made in the matter and the issue of the persons against whom such orders should be made. It may be that it will be sufficient to order the removal of the decision into this court and that it be quashed and to make such orders against the first and fifth defendants. As to the other defendants it may be appropriate to make suitable declarations. It may be that it is unnecessary to consider a stay order in respect of the proceedings brought before the Governor. I have no concluded view of these matters, however, and will seek further submissions from counsel before making final orders.
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