De Bartolo v Nick Cameron Director of Acacia Prison

[2015] WASC 121

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DE BARTOLO -v- NICK CAMERON DIRECTOR OF ACACIA PRISON [2015] WASC 121

CORAM:   ALLANSON J

HEARD:   1 APRIL 2015

DELIVERED          :   10 APRIL 2015

FILE NO/S:   CIV 1412 of 2015

BETWEEN:   GIOVANNI DE BARTOLO

Plaintiff

AND

NICK CAMERON DIRECTOR OF ACACIA PRISON
First Respondent

COMMISSIONER DEPARTMENT OF CORRECTIVE SERVICES
Second Respondent

Catchwords:

Administrative law - Judicial review - Refusal of part of application where no reasonable prospect of succeeding

Legislation:

Prisons Act 1981 (WA), s 3, s 69, s 70(i), s 71, s 72, s 73(1)(b)
Rules of the Supreme Court 1971 (WA), O 56 r 5

Result:

Application allowed in part
Orders made for service on second respondent and for a further directions hearing

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Respondent           :     No appearance

Second Respondent       :     No appearance

Solicitors:

Plaintiff:     In person

First Respondent           :     No appearance

Second Respondent       :     No appearance

Case(s) referred to in judgment(s):

Barreto v McMullan [2014] WASCA 152

Re Director of Acacia Prison Mr Nick Cameron; Ex parte De Bartolo [2015] WASC 100

1. ALLANSON J:  Giovanni De Bartolo is a sentenced prisoner, currently held at Acacia Prison.  The first respondent is the Director of Acacia Prison.  The second respondent is named as the Commissioner, Department of Corrective Services.

2. Mr De Bartolo has been charged with an aggravated prison offence. It is alleged that on or about Tuesday, 16 December 2014, he failed to supply a non adulterated sample of urine, contrary to s 70(i) of the Prisons Act 1981 (WA). The charge has not yet been heard.

3. On 18 March 2015, as an urgent matter, I heard an application by Mr De Bartolo for an injunction to restrain the first respondent from having the charge against him heard and determined by a visiting justice.  At the end of the hearing I dismissed the application.  On 23 March, I published my reasons for that decision:  Re Director of Acacia Prison Mr Nick Cameron; Ex parte De Bartolo [2015] WASC 100.

4. Mr De Bartolo brought another application, filed on 23 March 2015, against the same respondents.   

5. Although the application was filed on 23 March, it includes documents dated 16 and 17 March which were filed in the earlier application.  The affidavit filed in support of the application is the same affidavit relied upon earlier.  Mr De Bartolo also filed an identical application for an injunction to restrain the first respondent from having the charge of the prison offence heard.

6. On this occasion, Mr De Bartolo also seeks orders by way of judicial review:

   1.A declaration that the first respondent acted unlawfully by rewording a prison charge and charging Mr De Bartolo under s 70(i) of the Prisons Act.

   2.Declarations that:

   (a)The second respondent failed in his statutory obligation to have aggravated prison charges heard in a court of summary jurisdiction.

   (b)The second respondent 'failed to protect the Plaintiff; whereby undetermined matters have been available to the Prisoners Review Board'.

   3.Certiorari 'declaring the charge laid against the plaintiff by the first respondent is unlawful and void'.

   4.Mandamus against the second respondent ordering that aggravated charges be heard before a magistrate in a court of summary jurisdiction.

7. Under O 56 r 5 of the Rules of the Supreme Court 1971 (WA), on an application for judicial review, the court may do one or more of the things there listed. Relevantly, the court may ‑

   (b)order the applicant to serve the application on a person whom the court considers might have an interest in the challenged decision, the challenged conduct or the outcome of the application;

   (c) order the applicant or any other person to file an affidavit as to any facts material to the application, the challenged decision or the challenged conduct;

   ...

   (h) allow the applicant to amend the application;

   (i) adjourn the hearing of the application;

   (j)refuse the whole or a part of the application if it has no reasonable prospect of succeeding;

   (k) grant or refuse the application.

8. There are, as I understand it, two issues at the heart of Mr De Bartolo's complaints. The first is that visiting justices are hearing charges of aggravated prison offences. The second is the bringing of a charge under s 70(i) of the Prisons Act when the description of the offence does not fall within the terms of the Prisons Act.

The evidence

1. Mr De Bartolo relies upon an affidavit sworn 17 March 2015.  He says that on 16 December 2014, he was ordered to provide a urine sample for analysis for use of illicit substances.  It was a 'target' rather than a random analysis.  Mr De Bartolo says that he was taken to the detention unit where he provided a sample, and describes the procedure followed.

2. On 3 March 2015, Mr De Bartolo was advised he was being charged.  The charge sheet states:

   On or about Tuesday 16th December 2014, GIOVANNI DE BARTOLO being a Prisoner at ACACIA PRISON:  Failed to supply a non adulterated sample.

   Contrary to Section:  70(i) - PA - FAIL TO SUBMIT BODY SAMPLE

3. The affidavit exhibits a PathWest laboratory report which states:

   1.the sample was received with seals intact;

   2.the creatinine level was <0.0 mmol/L;

   3.the Australian/New Zealand Standard 2308:2008 states that urine with a creatinine level less than 1.8 mmol/L 'is a dilute sample', and requires the laboratory to report that the result 'suggests that the specimen characteristics are not consistent with human urine'.

4. Mr De Bartolo advised me at the hearing that the charge has not yet been considered by the visiting justice, and he is not sure when that will occur.

Prison offences

1. Section 3 of the Prisons Act defines a prison offence to mean a minor prison offence or an aggravated prison offence.

2. Prison offences are dealt with in pt VII of the Prisons Act.  The scheme of pt VII is as follows.

3. Sections 69 and 70 prescribe when a prisoner is guilty of a minor prison offence or an aggravated prison offence.

4. The initial procedure for dealing with a charge of a prison offence, whether a minor offence or an aggravated offence, is found in s 71;

   (1)A charge of a prison offence alleged to have been committed by a prisoner may be made by any prison officer or person who is authorised to exercise a power set out in clause 14 of Schedule 2 to the Court Security and Custodial Services Act 1999 and shall be brought forthwith 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, ‑

   (a)if the prisoner so agrees, suspend further action with respect to the charge on condition of the good behaviour of the prisoner for a stated period not exceeding 2 months and order the withdrawal of the charge at the end of that period if the condition has been observed; or

   (b) direct that the charge be withdrawn or that a further or different charge be laid; or

   (c) refer the charge to a visiting justice; or

   (d) if the prisoner so requests and the superintendent agrees to the request, inquire into and determine a charge of a minor prison offence in accordance with section 75.

   (2)Where the superintendent proposes to refer a charge to a visiting justice under subsection (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 prisoner admits or denies that charge.

5. The visiting justice may inquire into and determine a charge of a minor prison offence:  Prisons Act s 72. Under s 73(1), where a charge of an aggravated prison offence is referred to a visiting justice, the visiting justice may, as he thinks appropriate and having regard to the nature and particulars of the alleged prison offence and the extent of his powers under section 78:

   (a) direct the superintendent to commence a prosecution for an aggravated prison offence in a court of summary jurisdiction; or

   (b) inquire into and determine the charge as a minor prison offence.

First issue - visiting justices determining charges of aggravated prison offences

1. The relief sought in relation to this issue includes the interlocutory injunction, the declaration that the second respondent failed in his statutory obligation to have aggravated prison charges heard in a court of summary jurisdiction, and the order for mandamus.  I am satisfied that none of these claims has any reasonable prospect of success and they must be refused.

2. The legislation is quite clear.  The duty of the superintendent is to refer the charge to the visiting justice.  It is the visiting justice who has power to decide whether to hear the charge or direct the superintendent to commence a prosecution for an aggravated prison offence in a court of summary jurisdiction: s 73.  That is not a decision for the superintendent, the first respondent, or the second respondent.

3. Mr De Bartolo said in court that, although s 73(1)(b) provides that a visiting justice may inquire into and determine a charge as a minor prison offence, the charge appears on the offender's prison record (his TOMS profile) as an aggravated offence. Whether or not that is so, it is not relevant to this application, when the charge has not been determined at all. It is not necessary to consider the status of an entry in the TOMS system, and whether it would be liable to judicial review: see Barreto v McMullan [2014] WASCA 152.

Second issue - the terms of the charge

1. The offence under s 70(i) of the Prisons Act is committed where a prisoner 'does not submit himself for the purpose of having a body sample taken where he is required to do so under this Act'. It is not clear on the material now before the court just what is alleged to be the factual basis of the charge, particularly if the regime described by Mr De Bartolo in his affidavit was followed. It is not for the court, on this application, to determine the facts on which the charge is based. But there is, in my opinion, a real question whether an allegation that a prisoner failed to submit a 'non adulterated sample' falls within s 70(i).

2. The charge against Mr De Bartolo may, of course, result in criminal proceedings.  The court will not usually interfere with the workings of the criminal courts.  That point has not been reached, and the charge might remain within the realm of administrative decision making. 

3. There is no basis for the proceedings to continue against the second respondent, but I am not prepared to summarily refuse the whole of the application.  I will make orders for the service of the application on the first respondent, and for a further directions hearing, confined to the second issue.