DPP v Smith
[2002] VSC 603
•26 November 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 5269 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| V | |
| JACQUELINE SMITH | Respondent |
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JUDGE: | REDLICH J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 November 2002 | |
DATE OF JUDGMENT: | 26 November 2002 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 603 | |
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Appeal pursuant to s. 92 Magistrates Court Act 1989, ss. 23 and 50 Corrections Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms Kerri Judd | Ms K. Robertson Solicitor for Public Prosecutions |
| For the Respondent | Mr Michael Croucher | Slades & Parsons |
HIS HONOUR:
This is an appeal on a question of law pursuant to s. 92 of the Magistrates' Court Act 1989 against an order of the Magistrates' Court of Victoria sitting at Melbourne and constituted by Ms A B Goldsborough. The order was made on 27 March 2002. The appeal is brought by the Director of Public Prosecutions on behalf of the informant.
The respondent was prosecuted in respect of three charges:-
(i) Intentionally causing injury contrary to s. 18 of the Crimes Act 1958.
(ii)Recklessly causing injury contrary to s. 18 of the Crimes Act 1958.
(iii)Unlawful assault contrary to s. 23 of the Summary Offences Act 1966.
The respondent pleaded not guilty to each charge and after hearing the evidence and final submissions, her Worship dismissed the charges and ordered that the Chief Commissioner of Police pay the respondent's costs in the sum of $761.80.
The questions of law raised by this appeal are set out in paragraph 2 of the order of Master Wheeler of 20 May 2002 and are as follows:
"2.1 Did the magistrate err in finding
(a)that s. 23 of the Corrections Act 1986 did not authorise any order that Stibbard made to the effect that the respondent would have to take her place at the end of the queue;
(b)that such an order was not valid and/or inconsistent with or invalid by reason of operation of s. 50 of the Corrections Act 1986.
2.2Did the magistrate err in finding, if she did, that in the circumstances of the case the respondent was legally entitled to
(a)push or attempt to pas[s] Stibbard;
(b)resist and/or assault Stibbard;
(c)enter the dispensary by force".
It was accepted by both parties that Ground 2 should be treated as raising the question of whether the respondent was entitled to use self-defence.
Both parties have referred to the decision of the High Court in Zecevic v The Director of Public Prosecutions.[1] The principles in relation to the issue of self-defence are not in dispute. The joint judgment of Mason, Wilson, Brennan, Dawson and Toohey JJ. identifies the question to be asked where self-defence is raised as whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what she did. If she had that belief and there were reasonable grounds for it or if the tribunal is left in reasonable doubt about the matter, she is entitled to be acquitted.
[1](1987) 162 CLR 645.
Based on those principles, the respondent to this appeal has contended that on the facts, which I shall refer to in a moment, the correct view to take is that the respondent believed:
(a)that what she did was necessary in response to the conduct of Prison Officer Stibbard;
(b)that there were reasonable grounds for the respondent's belief; and
(c)that any response by the respondent was proportionate and therefore was reasonable.
It is necessary to say something about the facts of the case. The facts as found by the learned Magistrate are fully set out in the transcript which is exhibited to the affidavit of Mr Castle and the reasons appear at pages 120-122 of the transcript. In brief, the evidence acted upon by her Worship is as follows:
(a)On 19 June 2000 Prison Officers Stibbard and Baker were correctional officers on duty at the Dame Phyllis Frost Centre at Deer Park. Their duties that evening included the escorting of medical staff up to the back units to administer medication to the prisoners and the performance of security duties.
(b)The respondent was housed in the A1 annexe which is part of the protection unit. There were approximately ten prisoners housed in the A1 annexe. The prisoners in the A1 annexe moved across from the annexe to the main unit for the purpose of taking their medication.
(c)When it came to time to administer the medication to the prisoners in the A1 annexe, Prison Officer Stibbard unlocked the door to the annexe and asked the prisoners to come out for their medication.
(d)In response to this request the respondent said to Prison Officer Stibbard "Shut up little cunt".
(e)Prison Officer Stibbard responded to the comment by telling the respondent she was to wait until last.
(f)Instead of doing as she was requested the respondent tried to push through the doorway.
(g)Prison Officer Stibbard blocked the respondent's entry through the doorway by putting his hands across it.
(h)Prison Officer Stibbard grabbed the respondent's arm and there was a dispute about how tightly he grabbed it, but Prison Officer Stibbard had tried to apply an arm lock to the respondent.
(i)Evidence was given by Prison Officer Stibbard but rejected by the Magistrate that he grabbed the respondent's arm in response to the respondent swinging her arm towards him in an attempt to punch him.
(j)Prison Officer Stibbard pushed the respondent.
(k)The Magistrate did not make any specific findings as to what occurred after that time but the following evidence was given.
Prison Officer Stibbard gave evidence as to the respondent grabbing hold of his face with her fingers going into his eye sockets and the two of them falling back into the unit and landing on a futon. Prison Officer Stibbard landed on top of the respondent but the respondent, he said, continued to hold on to his face. The respondent then let go of Prison Officer Stibbard's face and grabbed hold of his shirt and tie which she twisted so as to apply pressure to his throat.
According to Prison Officer Baker who also gave evidence, he attempted to drag Prison Officer Stibbard off the respondent. He also gave evidence that the respondent appeared to have her hand over Prison Officer Stibbard's face and described how the respondent and Prison Officer Stibbard fell over the futon. Prison Officer Baker also gave evidence of the respondent scraping a comb up and down Prison Officer Stibbard's neck.
The respondent also testified in evidence-in-chief that Prison Officer Stibbard had grabbed her forcefully and that he did not let go at any stage. "He kept on the grip", and she tried to get out of the grip that he held on her. (Transcript page 88)
The respondent acknowledged falling back on to the futon with Prison Officer Stibbard but she acknowledged grabbing his shirt or his tie as well as his chain. She denied, however, grabbing Prison Officer Stibbard's face or using her comb. She said she did the things that she did because she "just wanted to mainly say in his face 'Don't ever touch me like that again'". (Transcript page 88)
That is a sufficient summary of the evidence for the purpose of addressing the issues raised on the appeal.
It is now necessary to refer to the arguments advanced for the respondent before the learned Magistrate and by Mr Croucher who appeared before me on this appeal. Before doing so, it is necessary to refer to a number of relevant statutory and regulatory provisions. Section 23 of the Corrections Act 1986 provides as follows:
"23. Control of Prisoners.
(1)An officer may give any order to a prisoner which the officer believes to be necessary for the security or good order of the prison or the safety or welfare of the prisoner or other persons.
(2)A prison officer may, where necessary, use reasonable force to compel a prisoner to obey an order given by the prison officer or by an officer under this section.
(3)Where a prison officer uses force to compel a prisoner to obey an order the prison officer must report the fact forthwith to the governor.
(4)Where a governor uses or orders the use of force to compel a prisoner to obey an order the governor must report the fact to the secretary.
(5)A prison officer is not liable for injury or damage caused by the use of force in accordance with this section."
Section 50 of the same Act provides:
"50. Prison Officers.
(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 had 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 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 the prisoner; or
(b)withdraw one of the prisoner's privileges for less than 14 days; or
…….
(d)discharge the prisoner with a 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 or challenged or called in question in any court."
Finally, it is necessary to refer to the Corrections Regulations 1998, Statutory Rules No. 52 of 1998 which define prison offences under Part IV Prison Discipline Division 1. Regulation 44 in its material parts reads:
"(1) A prisoner must not
(a)assault or maliciously threaten another person;
(b)act in a disruptive, abusive or indecent manner whether by language or conduct;
(c)disobey a lawful order of an officer."
There are many other offences defined within the regulation which it is unnecessary to consider for the purposes of this appeal.
Upon the completion of the evidence before her Worship, the respondent's legal representative referred to ss. 23 and 50 of the Corrections Act 1986. He submitted, in substance, that Prison Officer Stibbard did not have the authority to discipline the respondent after he was verbally abused.
It was submitted both before the learned Magistrate and on this appeal that Prison Officer Stibbard's directions were unlawful and that the respondent's forceful disobedience was justified. In substance, it was argued that the provisions of s. 23 of the Act, which I have referred to, were of such generality that they were necessarily subject to the more specific procedure provided for under s. 50. It was argued that the provisions under s. 23 needed to give way to the disciplinary procedure set out in s. 50. It was said that Prison Officer Stibbard therefore had no power to make an order under s. 23.
The learned Magistrate accepted the thrust of this submission as is revealed in the reasons for the learned Magistrate's decision.
I am of the clear view that there is no necessity for the provisions of s. 23 to give way in the face of s. 50 of the Act. They are complementary provisions intended to address different stages of the disciplinary process. Section 23 is concerned with the power of a prison officer to immediately make orders which the officer believes to be necessary for, inter alia, "the good order of the prison". I accept the submission of Ms Judd who appeared for the Director of Public Prosecutions that there is no substance in the argument that where such conduct constitutes a disciplinary offence within the meaning of s. 50 the power vested in the prison officer under s. 23 ceases to have effect.
For the respondent it was submitted that the decision by the prison officer to request the respondent to wait at the back of the queue until the other prisoners had been given their medication was not an order which could be described as for the "good order of the prison". I think the learned Magistrate fell into error to the extent that she adopted the thrust of that submission. A prison officer faced with abusive or indecent language being an offence specified under Regulation 44(b) would be entitled to make the sort of order which Prison Officer Stibbard did. It was an order which, in my view, could properly be described as for the "good order of the prison".
As a matter of principle, a prison officer has power under s. 23(1) to make the order which Prison Officer Stibbard made if the prison officer believes it is necessary for the purposes of good order of the prison. The order would be justified on the grounds that it was thought necessary to isolate a prisoner where the prisoner was behaving in a way which was potentially disruptive to others in the prison and to ensure the orderly dispensing of the medication. Certainly, the language of the respondent would have entitled Prison Officer Stibbard to take that view.
That is not the end of the matter however. Prison Officer Stibbard did not give evidence that that was the reason why he gave that order. Indeed, the reason which he advanced on at least three occasions during the course of his testimony was simply that he directed the respondent to wait at the end of the queue because he wished to discipline the respondent or punish her for her indecent or abusive language.
For s. 23(1) to operate, it is clear that the prison officer can only make the order if he believes that the order was necessary for the "good order of the prison". No such evidence was given by Prison Officer Stibbard and in light of the prison officer's expressed reason for making the order it was not incumbent upon the learned Magistrate to conclude that it was made for the "good order" of the prison. Her Worship was bound to conclude, given the evidence as to what his reason was, that the order was not made for the purpose specified in s. 23(1).
In the absence of evidence that his reason for making the order was the one required by s. 23(1) the learned Magistrate was justified in the conclusion that there was no lawful basis for the order which he made.
In the alternative, counsel for the respondent submitted that even if Prison Officer Stibbard had made the order which he did for the purposes of "good order" s. 23(2) required that the force which Prison Officer Stibbard thereafter used was "necessary" in the circumstances. That submission was also made to the learned Magistrate. The learned Magistrate was entitled to conclude, in the circumstances, that the force which Prison Officer Stibbard thereafter used was not necessary even if the order had been made for the purpose of "good order". No warning was given to the respondent before Prison Officer Stibbard applied the force which he did. There were obviously a number of avenues open to him other than the application of force and at least a warning and a stern request that the prisoner comply with his order should have been delivered before consideration was given to the use of any force.
Her Worship found that the respondent did use abusive or indecent language and described that as inappropriate behaviour. Her Worship then observed that Prison Officer Stibbard had a course of action open to him which he did not follow. Her Worship also observed that he took disciplinary action against the respondent which he was not entitled to. In her reasons for judgment at pages 120-122, Her Worship then said:
"He (Prison Officer Stibbard) has confirmed his intent in evidence on three separate occasions to discipline Ms Smith over that comment and one of the comments – one of the pieces of evidence he said to me that he took this action to discipline Ms Smith and that he hoped that would be the last of it.
Factually, he ordered Ms Smith to go last in effectively a queue of prisoners required to file past prison guards to go to the position the nursing staff were at for the delivery and administration of medicine. Unfortunately, he then determined to take physical response and block Ms Smith's path.
I accept from the evidence Ms Smith believed that Prison Officer Stibbard was joking initially and went to go past again and explained she was sorry. She gives evidence supported by Ms Thompson that Prison Officer Stibbard was unhappy or perhaps cross with Ms Smith on that evening. It may have been in relation to comments the day before. It was at this point Prison Officer Stibbard exceeded his authority again, in my view. I consider he had no authority to make physical contact in the manner he did by grabbing Ms Smith's arm and I accept that he did do that, even if his hold was not as firm as he is prepared to accept.
I accept Mr Holding's submission as to the course of action which was open to Prison Officer Stibbard in dealing with this matter and I accept Prison Officer Stibbard had no authority to discipline Ms Smith as he did but, particularly, had no authority to seek to stop her movement through the doorway in the manner that I accept that he did. We are in, it seems, absolute agreement on each of the pieces of evidence before me as to the manner of him blocking the doorway with his hand across it.
I am satisfied that Prison Officer Stibbard has not acted lawfully in this way and I am satisfied from the evidence, including Prison Officer Stibbard's and Prison Officer Baker's statements made to the prison authorities and in evidence by cross-examination, that Prison Officer Stibbard pushed Ms Smith in some fashion to stop her leaving that part of the unit. He had determined she must wait. Prison Officer Baker's evidence was that "Leo tried to push her back into the lounge by pushing towards her with both hands". Ms Smith was, in my view, entitled to resit this behaviour and I am satisfied that is the appropriate description of her actions."
Later her Worship found:
"I am satisfied that Mr Stibbard pushed Ms Smith, as I have said, with both hands when she tried to disobey his direction to her and I am satisfied from the evidence before me, Ms Smith's physical response to Mr Stibbard's contact was proportionate and responsive to his actions. His injuries were inflicted, in my view, as a result of the attempts to unlawfully restrain Ms Smith in her endeavours to resist him."
The Magistrate found that the order made by Prison Officer Stibbard was not authorised by s. 23(1) and, further, that the force which he used was not necessary within the meaning of sub-section 2.
It was open to the learned Magistrate to find that the manner in which Prison Officer Stibbard conducted himself was without lawful authority. In circumstances where the force used by Prison Officer Stibbard was found to be unlawful, the respondent was entitled to form the view which she did that she could resist the force being used by Prison Officer Stibbard. It was open to the Magistrate to conclude that there were reasonable grounds for the respondent's belief. It was also open to the Magistrate to form the view, which is not in fact the subject of any ground of appeal, that the conduct of the respondent was, in all the circumstances, proportionate.
In those circumstances the learned Magistrate was entitled to conclude, as her Worship clearly did, that the prosecution had failed to establish beyond reasonable doubt that the respondent did not believe on reasonable grounds that the force she used was necessary.
For those reasons I allow the appeal with respect to the Ground set out at paragraph 2.1(b) of the order made by Master Wheeler on 20 May 2002. I dismiss the appeal with respect to the Grounds set out in paragraphs 2.1(a) and 2.2 of that same order. I will hear the parties as to the question of costs.
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