Henderson v Read
[2006] VSC 304
•15 August 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9585 of 2005
IN THE MATTER of the Corrections Act 1986 (Vic)
| JOHN WILLIAM HENDERSON AND MARTIN GEORGE SEELEY AND GEOFFREY CURTIS LEMAY | Plaintiffs |
| V | |
| MS TRACEY READ, SUPERVISOR AND DESIGNATED DISCIPLINARY OFFICER AT PORT PHILIP PRISON (AND OTHERS ACCORDING TO THE ATTACHED SCHEDULE) | Defendants |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 June | |
DATE OF JUDGMENT: | 15 August 2006 | |
CASE MAY BE CITED AS: | Henderson & Ors v Read & Ors | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 304 | |
ADMINSTRATIVE LAW – Judicial review –Governor’s Hearing under Part 7 of Corrections Act 1958 – Prisoners charged with drug-related prison offences – Governor’s failure to make witnesses available at hearing –Whether denial of natural justice – Allocation of IDU status prematurely– Whether decision made to allocate IDU status prematurely – Corrections Act 1958 s 50, s 53
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Dr D J Neal SC and Mr S Pillay | Victoria Legal Aid |
| For the Defendants | Mr J Slattery | Wisewoulds |
HER HONOUR:
By an amended originating motion filed on 4 November 2005, each plaintiff seeks orders in the nature of certiorari, quashing:
(a)a decision to convict him of offences under reg 44(1)(e) and reg 44(1)(o) of the Corrections Regulations 1998 (“the Regulations”), made by the eleventh defendant, Mr Tsangas, a Governor at Port Philip Prison (“the prison”), and
(b)a decision to impose the status of Identified Drug User (“IDU status”) upon him, made by the first defendant, Ms Read, a Designated Disciplinary Officer at the prison.
The plaintiffs complain that they were denied natural justice in relation to the challenged decisions. They also seek orders that all record of the quashed decisions be removed from their files and prison records.
The Regulations
The offences with which the plaintiffs were charged are contained in reg 44(1)(e) and reg 44(1)(o) of the Regulations :
“44. Prison Offences
(1) A prisoner must not— …
(e) have in his or her possession an article or substance not issued or authorised by an officer, prescribed by a medical officer, medical practitioner or dentist, or permitted under the Act or these Regulations; …
(o) commit an act or omission that is contrary to the good order, management or security of the prison or the security of the prisoners; …”
The Corrections Act 1986
The decision of Mr Tsangas relating to each of the plaintiffs was made after he had conducted a Governor’s Hearing under Part 7 of the Corrections Act 1986 (“the Act”). Both the Act and the Regulations contain provisions relating to the charging of prisoners with offences and the conduct and procedures at a subsequent disciplinary hearing. It is convenient to refer to them here.
Part 7 of the Act relevantly provides:
“50. Prison offences
(1) If an officer within the meaning of Part 5 … 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.
…
(5) .. 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— …
(d) charge the prisoner with the prison offence. …
(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.
…
53. Governor's hearing
(1) If a charge is to be heard by the Governor of the prison or by another Governor, the Governor of the prison must—
(a) not less than 72 hours before the hearing; …
give notice to the prisoner of the time, date and place of the hearing.
(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 ….”
The Regulations repeat the obligations in s 53(2) of the Act and further provide:
“45. Conduct of Governor’s Hearing
In conducting a Governor’s hearing, the Governor –
(a)in addition to ensuring that the hearing is conducted in accordance with the Act, must ensure that it is also conducted in accordance with this Division; and
(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 on 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 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.”
Findings of fact
There is little dispute between the parties as to the relevant facts. I will make any necessary findings relating to contentious matters.
The Victorian Prison Drug Strategy 2002
In March 2002, Mr Dennis Roach, as Acting Commissioner at the prison, introduced measures under a Corrections Victoria policy known as the “Victorian Prison Drug Strategy 2002” (“the VPDS”). The VPDS replaced the Victorian Prison Drug Strategy 1992 and was introduced into all Victorian prisons. Its aims include the improvement of measures for keeping drugs out of prisons, the reduction of prisoner drug use and the prevention of health problems, violence and other harm resulting from drug taking inside prisons.
The VPDS uses differential management of prisoners to provide incentives for the cessation or reduction of alcohol and drug use. The measures are imposed in the context of an “Identified Drug User program” (“the IDU program”) under which a prisoner may be assigned what is known as an “IDU status”. IDU status attracts the imposition of management measures, the main one being exclusion from the prison’s contact visit program. The IDU program recognises that contact visits provide a major source of drug supply and that they are highly valued by prisoners.
Under cl 3.1 of the VPDS, a prisoner is regarded as having an active IDU status upon entry of the relevant information in the computerised “Prisoner Information Management System” (“PIMS”). Clause 3.3 of the VPDS provides that an IDU status may not be imposed upon a prisoner until he or she has been found guilty, at a Governor’s Disciplinary Hearing, of a prison drug or alcohol related offence under reg 44 of the Regulations.
Nevertheless, under cl 4.1.1, once a prisoner is charged with a prison drug-related offence which does not attract an automatic IDU status, the prisoner is allocated what is described as a “nominal IDU/B status” during the period leading up to a hearing. The prisoner will be regarded as ineligible for access to the contact visit program during that period, provided that the Governor’s Hearing takes place within 21 days. Contact visits will be resumed if the hearing is not held within that time.
The plaintiffs
Upon his admission to prison, each of the plaintiffs entered into a contract under the Port Philip Prison Contract and Privileges Scheme. The contract scheme provides for progression through levels, described as “base”, ”upper” and “enhanced”, with consequential entitlements. Each of the plaintiffs had progressed to the enhanced level under his contract. None had ever had an IUD status in the prison.
Each plaintiff was employed at relevant times up to 23 September 2005 in what is known as the “small laundry” at the prison. It is a pre-requisite of employment in that area that a prisoner does not have an IDU status.
The discovery of the home brew
On 23 September 2005, the plaintiffs were advised that an alcoholic substance described as “home brew” (“the home brew”) had been found in the small laundry, that morning. Mr Shane Lyons, a prison officer accompanied by a dog handler, Mr Paul Dunmall, made a written report of his discovery of “a large home brew inside a garbage bag hidden in the top of a disused washing machine” in the small laundry. Mr Dunmall made a written report to the same effect.
Alcohol is an unauthorised substance at Port Phillip Prison. The procedures for the disposal of unauthorised substances are set out in a document entitled “Operational Instruction No 28 Disposal of Contraband” which was tendered in evidence. Clause 28.4 of the instructions provides that unauthorised items found in the possession of a prisoner will be “subject to further investigation”. Provision is made for the manner in which an unauthorised item shall be disposed of, after finalisation of the investigation. There is no evidence of any investigation or testing of the contents of the plastic bag containing the home brew.
Ms Read interviewed the plaintiffs, advising them that she was conducting an inquiry into the incident under s 50 of the Act. Each of them denied knowledge of the home brew. Ms Read made a written incident report on 23 September 2005, which referred to the denials and recommended the laying of charges under reg 44(1)(e) and reg 44(1)(o) of the Regulations. Her recommendation was approved by Mr Colin Angus, a “disciplinary officer” for the purposes of s 50 of the Act.
The plaintiffs were not given an opportunity to inspect or test the home brew. Each was moved to alternative accommodation within the prison and dismissed from his employment in the small laundry on that day, 23 September 2005. Mr Henderson and Mr Seeley were required to provide urine samples for analysis.
The charges
The plaintiffs were each charged under reg 44(1)(e) and reg 44(1)(o) as Ms Read had recommended. There is a dispute between the parties as to the date upon which they were charged. The plaintiffs contend that they were charged either on 30 September 2005 or on 7 October 2005, when they were each provided with a copy document entitled “Notification of Charge of Prison Offence” (“the Notifications”) by the officer, Mr N Assafiri. The defendants argue that the plaintiffs were charged earlier, on 26 September 2005, when an entry was made in the computerised prison management records system (known as “PIMS”). The dispute turns on the nature and effect of the Notifications.
Section 50(6) of the Act requires that a prison disciplinary officer who decides to charge a prisoner with an offence must serve a copy of the charge (which must be in writing) upon both the Governor and the prisoner. The defendants argue that the Court could not be satisfied that the Notifications constituted the written form of charge required by s 50(6). This submission is made notwithstanding that each of the documents contains a statement by Mr Angus (expressed in the present tense) to the effect that, on the information of Mr Lyons, he was charging the plaintiff in question with the offences (described as offences under reg “44(e)” and reg “44(o)”) allegedly committed on 23 September 2005 at the small laundry.
Counsel for the defendants relies upon the decision of the Full Court in Dimozantos v Governor of Barwon Prison & Anor[1] in which a written notification of a charge was held not to be a charge[2]. He contends that the documents in this case, which also purport to be notifications of charges, cannot be charges themselves.
[1](Full Court of the Supreme Court of Victoria, unreported, 14 June 1994).
[2]Ibid. at 5-6 per Tadgell, Ormiston and Smith, JJ.
Given the significance of the factual dispute and counsel for the defendants’ concession that the defendants were informed as to the usual written form of charges relating to alleged prison offences[3], counsel for the defendants was offered the opportunity to seek time to obtain instructions, in order to adduce relevant evidence. This invitation was declined and he urges the Court to make a determination on the basis of the content of the Notifications. He asks the Court to infer from the document that the charge was laid on 26 September 2005 when, as the endorsement on the document indicates, entries relating to the charges were made in the PIMS. He concedes that it would be open to the Court to infer that any evidence which might have been adduced on the question would not assist his argument.[4]
[3]At T 199 ll 22-3.
[4]See Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto, J, 320-1 per Windeyer, J; O’Donnell v Reichard [1975] VR 916 at 929 per Newton and Norris, JJ.
I am not persuaded by any of the defendants’ arguments as to the proper characterisation of the Notifications. It is not clear that the written notification the subject of Dimozantos was in the same form as those before the Court. In my view the Notifications constitute the written charges by Mr Angus, as well as a notification of those charges to the respective plaintiff required by s 53(1). I am satisfied that each of the plaintiffs was charged with offences on 30 September 2005, the date upon which Mr Angus signed the section of each of the Notifications setting out the charges.
The allocation of IDU status
It is common ground that on 26 September 2005, an IDU level 1B status[5] was allocated to each of the plaintiffs by PIMS entries made in accordance with cl 4.1.1 of the VPDS[6].
[5]Table 2 under cl 2.3 of the VPDS categorises prison drug offences into: Category A –serious trafficking; Category C- cannabis related offences and Category B – assorted other offences. Level 1 is the lowest level of offence.
[6]At T 193 ll 21-7, counsel for the defendants conceded that nominal IDU status was allocated to each plaintiff on 26 September 2005 as a result of the PIMS entries relating to the charges made on that date.
As I have found that the plaintiffs were charged on 30 September 2005, the PIMS entries were made some four days before any of the plaintiffs had been charged with any prison drug-related offence. Mr Roach’s evidence was that IDU status was imposed in accordance with the VPDS and unspecified “relevant Operational Instructions”. He notes that, on the same basis, the plaintiffs lost their positions in the small laundry and were transferred from their accommodation units, pending the investigation by Ms Read under s 50 of the Act.
There is a dispute between the parties as to whether the IDU status allocated on 26 September 2005 was of a general character or was of the “nominal” variety imposed under cl 4.1.1 of the VPDS during the period between the charging of a prisoner with a prison drug-related offence and the date of the Governor’s Hearing relating to the charge.
In so far as the plaintiffs contend that a general, rather than nominal, IDU status was imposed upon them on 26 September 2005, I am not persuaded that this was the case. Mr Roach’s evidence that the IDU status was imposed in accordance with the VPDS suggests that a nominal status was allocated. The VPDS also provides for certain consequences to follow the allocation of nominal IDU-B status. Those consequences include the automatic generation of “IDU Review Plan” forms, triggered, under cl 4.2.1 of the VPDS, by the notification of an incident onto the PIMS as “pending investigation”. Such forms were provided to each of the plaintiffs after 26 September 2005. Each form appears to follow the prescribed form in Appendix 5 to the VPDS and bears the endorsement “IDU : 26/9/05”. Each of the plaintiffs was subsequently interviewed by the prison’s drug and alcohol treatment provider, in accordance with the procedure prescribed by cl 4.2.1 of the VPDS. A nominal status is also accompanied with a period of exclusion from the prison contact visit program, under cl 4.1.1. The plaintiffs each suffered that consequence.
I am satisfied that the plaintiffs were allocated an IDU-B nominal status on 26 September 2005, notwithstanding that such status was only to be imposed, under cl 4.1.1 of the VPDS, upon them being charged, on 30 September 2005. I am not satisfied as to whose decision or inadvertent administrative error resulted in the allocation of a nominal status prematurely.
The information on the Notifications
The reverse sides of the Notifications bore information as to the conduct of the Governor’s Hearing in accordance with the procedures set out in reg 47 and reg 48. The information included the following statement :
“Under section 53 (2) of the Corrections Act, you may call relevant witnesses. The Governor should be advised in writing as soon as possible of witnesses to be called to enable appropriate arrangements to be made. The Governor may allow an excessive number of witnesses (sic).”
…
The Governor’s Hearing will be conducted according to the following procedures:
…
· If you plead not guilty the informant will present evidence to support the charge and call witnesses;
· You will be given the opportunity to cross-examine the informant and the informant’s witnesses;
· You will be given the opportunity to present your case and call relevant witnesses;
· The informant will be given the opportunity to cross-examine you and your witnesses;
· The Governor will determine whether you are guilty or not guilty after hearing all the evidence presented; …”
The lists of witnesses
Mr Seeley prepared two handwritten documents entitled :
“NOTICE – UNDER SECTION 53(2) THE FOLLOWING IS A LIST OF WITNESSES REQUIRED AT GOVERNOR’S COURT HEARING ON MONDAY 10 OCTOBER, 2005”.
One of the two notices is dated 8 October 2005 and bears Mr Henderson’s name. It lists the following witnesses:
“1 MS TRACEY READ (SUPERVISOR)
2 MS DENISE WERNER (SUPERVISOR)
3 MR MCDONALD (CORRECTIONS OFFICER)
4 MR WADE (CORRECTIONS OFFICER)
5MR BRUCE HARWOOD (CORRECTIONS OFFICER) – TO BRING IN HIS POSSESSION THE PENHYN HANDOVER LOG UNIT DIARY FOR THURSDAY 22 SEPTEMBER, 2005.
6 MR NICK COPPIN (CORRECTIONS OFFICER)
7 MR NORM DINSDALE (SUPERVISOR)
8MS MARIA KIRK (CORRECTIONS OFFICER) – AND ALL PRISONERS WHO ATTENDED THE FORKLIFT D.L.I. TESTING FOR THE PERIOD MONDAY 19/9/05 – THURSDAY 22/9/05.
9 MS FRIEDA CLIFTON (CORRECTIONS OFFICER)
10 MR JOHN CONNERLY (MANAGER)
11 MR JAMES FANECO (INMATE)
12 MR WILLIAM MCLEOD (SUPERVISOR)
13 MR COLIN ANGUS (MANAGER)
14 MR SHANE LYONS (INTELLIGENCE OFFICER)
15 MR PAUL PETERSON (INMATE).”
Mr Henderson served the notice on Mr Assafiri some time before the Governor’s Hearing on 10 October 2005. The list was amongst the papers provided to the Governor before the hearing by an operational support person, Ms Della Picca.
The other notice drawn up by Mr Seeley, with the same heading, bears his own name. It is dated Saturday, 8 October, 2005. It includes ten of the 15 names in Mr Henderson’s list of witnesses. It does not include the Corrections Officers, Mr McDonald and Mr Wade, the managers, Mr John Connerly and Mr Colin Angus, or the supervisor Mr William McLeod. The description of Ms Tracey Read in Mr Seeley’s list is also more extensive:
“1MS TRACEY READ (SUPERVISOR) – TO BRING IN HER POSSESSION THE REGISTER OF OFFENCES FOR THE PERIOD FRIDAY 23 SEPTEMBER – FRIDAY 7 OCTOBER, 2005.”
Although Mr Lemay did not state in the affidavits prepared before the hearing of the application that he had provided a list of witnesses to Mr Assafiri, he stated in his 7 June 2006 affidavit that :
“12.In preparation for the hearing I identified a number of witnesses that I wished to call. At the hearing of the matter before Mr Tsangas I advised that I wanted the witnesses called to give evidence.
13.It was my intention to seek evidence from these witnesses as to the nature of the prohibited substance that I was charged with possession of, the history of what happened to that alleged prohibited item, the basis upon which Ms Read made her decision. I was going to seek evidence of my good character. I was going to seek evidence of the fact that the small laundry is used as a thoroughfare and a large number of prisoners have free access to the small laundry area. I was going to seek evidence that the small laundry area is not locked.”
These paragraphs from Mr Lemay’s affidavit also broadly describe the evidence sought to be adduced from the witnesses named in the lists drawn up by Mr Henderson and Mr Seeley.
Mr Tsangas acknowledged receiving the list drawn up by Mr Henderson amongst the papers he received relating to the hearing of the charges. He stated that, in the normal course of events, he would receive papers relating to a Governor’s Hearing for the first time on the morning of the hearing from Ms Della Picca. Mr Tsangas said that he did not receive a list of witnesses from Mr Seeley or Mr Lemay; nor was a list presented at the Governor’s Hearing for either of them.
I have, however, made the findings of fact in relation to the provision of lists of witnesses by each of the plaintiffs to Mr Assifiri because I accept their testimony that they did so. I take into account that the defendants did not adduce any relevant evidence from Mr Assafiri or Ms Della Picca. Further, counsel for the defendants did not put in cross-examination to either Mr Seeley or Mr Lemay that he did not draw up a list of witnesses and give it to Mr Assafiri before the hearing, as he contended. It was put to Mr Lemay that he never had copy of the list and that, therefore, he had not exhibited one to any affidavit[7].
[7]T 61 LL9-19.
The hearings
On 10 February 2005, Mr Tsangas held separate hearings in relation to the charges against each of the plaintiffs.
At Mr Henderson’s hearing, Mr Tsangas discussed with him the witnesses whose names appeared on the list bearing his name. Mr Tsangas refused Mr Henderson’s request that he arrange for those witnesses to be called. He stated the view that their evidence would not be relevant. Significantly, he did not consider relevant evidence to the effect that others had had access to the small laundry. He told the Court that, in his opinion, notwithstanding that others had access to the small laundry, there would have been insufficient access or time for them to have set up a home brew.
In relation to witnesses to the discovery of the home brew, Mr Tsangas said that the informant, Mr Lyons, was the only witness he needed to prove the offences, being of the view that other persons present when the substance was found would have only repeated Mr Lyons’ evidence. When Mr Henderson explained that he wanted to call other inmates to corroborate his version of events, Mr Tsangas refused to have them called. He explained to the Court that he would have expected the other prisoner witnesses to support Mr Henderson’s account and, by inference, said that their evidence would be irrelevant, unless they were going to confess to the offence themselves.
Mr Tsangas also took the view that evidence which Mr Henderson sought to adduce from witnesses as to the results of urine testing would also be irrelevant, if the tests had produced a negative result in relation to alcohol. Under re-examination, Mr Tsangas said that such a result would not rule out the possibility that the home brew was being prepared for consumption by the plaintiffs or others.
The only evidence at each of the three hearings was from Mr Lyons, the informant, and from the plaintiff concerned.
As far as the identification of the substance as an unauthorised home brew was concerned, Mr Tsangas stated that he accepted the evidence of Mr Lyons, because he had been a prison officer for some 12 years and was also a member of the prison Security Intelligence, with substantial experience of home brews.
Mr Tsangas acknowledged that he did not see the home brew and did not believe that a sample had been retained. He said that he would not have expected that the home brew would necessarily be retained for evidentiary purposes. He did not know if Prison Operational Instructions No 28 for the disposal of the unauthorised substance had been followed. He read the officers’ reports before the hearing, but did not hear any evidence as to the length of time for which the brew had been in the machine.
Mr Tsangas also gave evidence about the state of the disused washing machine. He said that Mr Henderson had put it to Mr Lyons under cross-examination at the Governor’s Disciplinary Hearing that the machine had been locked and that Mr Lyons had denied that it was. Mr Tsangas had not inspected the machine himself and had not received any evidence as to whether the machine was locked, but did not believe that there were locks on it. Mr Tsangas was not sure whether the disused machine was of the front loading or top loading variety, although he said that he had understood it to be of the front loading type. He heard no evidence as to the length of time for which the disused machine had been in the small laundry.
Mr Tsangas was cross-examined about access to the small laundry where the substance had been found at 8.30 am on 23 September 2005. He acknowledged that he did not know, at the time of the hearing, who had been in the small laundry on the previous day. He was aware that prisoners who should not have had access to it, occasionally did. He had no knowledge as to the time at which the small laundry had been locked on the previous day or even if it had been locked. He had heard evidence from Mr Henderson that he normally asked a supervisor to lock the laundry when leaving early. Mr Tsangas believed that the relevant supervisor on duty would have been Ms Denise Werner, whose name appears on the lists of witnesses given by Mr Henderson and Mr Seeley to Mr Assafiri. Another listed witness, the supervisor of the larger laundry, Mr Dinsdale, might have been expected to lock the small laundry. Mr Tsangas was aware that, upon leaving the small laundry, Mr Henderson would normally activate a buzzer on a fence when they left. It would be up to the relevant person then to lock the small laundry. Sometimes, the prisoners left without notifying the supervisor that they were going. On 22 September 2005, Mr Henderson’s evidence was that the prisoners had left at about 12.30pm and 2.30 pm.
At the end of each hearing, Mr Tsangas found the charges proved and imposed a penalty of $40 in respect of each offence.
Mr Tsangas gave evidence that, at the time of his decision to convict the plaintiffs, he had assumed that:
(a)Mr Dunmall would corroborate the evidence of Mr Lyons;
(b) it would take a long time to set up a home brew;
(c)no-one apart from those employed in the small laundry would have had sufficient access or time to have made the home brew in the disused machine;
(d)a home brew could not be made in the small laundry without the knowledge of the plaintiffs; and
(e)because they worked in the small laundry, the plaintiffs knew that the garbage bag was in the disused washing machine.
Submissions
The applicability of the relevant administrative law principles to Mr Tsangas’s decisions with respect to the charges brought against each of the plaintiffs is common ground. He was required to accord them natural justice, acting fairly in the context of the statutory provisions relating to the hearing and decision making process.[8] The requirements of natural justice vary according to the circumstances of the case, the nature of the inquiry, the rules under which an official is acting and the subject matter of the inquiry[9]. In the case of a prison disciplinary hearing, the statutory framework must be taken into account[10].
[8]See Kioa v West (1985) 159 CLR 550 at 585 per Mason J.
[9]Mobil Oil v FCT (1963) 113 CLR 475 at 503-4 per Kitto J.
[10]Stewart & Anor v Crowley [2002] 6 VR 479 at [22] per Winneke P; Binse v Williams & Anor [1998] 1 VR 380 at 394 per Charles, JA.
Nettle, JA provided guidance as to the approach to the statutory context in Anderson (Commissioner, Corrections Victoria) v Pavic[11] at [32] when he said:
“ … prison legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration without undue influence from the courts.”
[11][2005] VSCA 244.
The plaintiffs submit that the refusal by Mr Tsangas to allow witnesses to be called deprived each of them of a favourable outcome. The defendants contest that proposition. They argue that there is no possibility that Mr Henderson would have been acquitted, had he been allowed to call his proposed witnesses.
The plaintiffs contend that the evidence from the witnesses they sought to have called was relevant to the issues of the nature of the substance found by the informant and the question as to whether the plaintiffs were in possession of that substance. A finding in favour of the plaintiffs on either issue could have produced a different result.
The defendants respond that Mr Tsangas was only obliged to give Mr Henderson a reasonable opportunity to call relevant witnesses. He also referred to the direction that proceedings before the Governor be conducted with little formality and expeditiously. The large number of witnesses listed indicated that his refusal did not deprive Mr Henderson of a “reasonable opportunity to call relevant witnesses” within the meaning of s 53(2) of the Act. The Court should bear in mind the balance to be achieved between the need for corrections officials to administer discipline in the prison with the rights of prisoners subjected to that discipline. Counsel for the defendants relies upon the statement to that effect by Winneke P in Stewart v Crowley[12].
[12](2002) 6 VR 479 at 488.
The defendants argue that the outcome would not have been different even if the proposed evidence had been given. They rely upon Mr Tsangas’s acceptance of the fact that others had access to the small laundry in certain circumstances and his conclusion that, nevertheless, the plaintiffs were the only inmates with sufficient access to install the home brew or, alternatively, that they must have known of its existence. They also rely upon the description of the evidence sought to be adduced from the witnesses: arguing that Mr Henderson did not specifically refer to the issue as to the time at which the small laundry was locked on the day before the discovery of the home brew. In those circumstances, Mr Tsangas was justified in refusing to allow the witnesses as to access to the small laundry to be made available for examination by the plaintiffs.
The plaintiffs submit that the destruction of the substance found and the failure to retain a sample for testing, examination and analysis by them constitutes a denial of their right to a fair hearing and rendered them unable to answer the charge of breaching reg 44(e). This made it impossible for them to have a fair trial. The situation could not be remedied[13].
[13]See Regina v JWS Rose[No 1] [2001] NSWSC 818 at [44] per Kirby J.
The defendants respond that there is no requirement in the Act or the Regulations that any item seized be produced or made available for inspection at a Governor’s hearing. As the home brew was liquid inside a large bag, it was not reasonably practicable to retain the item and produce it at the hearing. The defendants further argue that the plaintiffs all had the opportunity to cross-examine the informant as to the nature of the home brew and that they did so. The defendants rely, in this regard, upon Cummins J’s decision in Knight v Minister for Corrections[14] that it was proper, in the circumstances of that case, and in accordance with a fair and regular procedure, that a sharpened knife found in a prisoner’s cell not be produced in the “limited spatial confines of a hearing room”[15].
[14][2003] VSC 412.
[15][2003] VSC 412 at [37].
Mr Henderson and Mr Seeley finally contend that they were denied natural justice because they did not receive the results of their urine analysis before the hearing. The tests produced a negative result for all substances. The plaintiffs contend that such information may have materially contributed to their defence of the charges. The defendants respond that the results of urine tests were irrelevant to the charges brought against them.
Conclusions as to Mr Tsangas’s decision
I consider that Mr Tsangas’s decisions should be quashed and that the further relief sought in relation to the references to his decisions in the plaintiffs’ files and prison records should be granted.
In my view, bearing in mind the statutory requirements in relation to the conduct of a Governor’s Disciplinary Hearing, Mr Tsangas failed to accord natural justice to each of the plaintiffs. He prevented them from properly testing the cases brought against them and from properly putting their own cases. He did this by failing to make available witnesses likely to have been able to give evidence about the significant issues of access to the small laundry and the discovery of the home brew.
The evidence before the Governor suggested that there may have been a period of some hours on the afternoon of 22 September 2005 after the plaintiffs had left the small laundry, during which it was unlocked and thus accessible to others who frequented it from time to time, with or without authorisation. The plaintiffs were deprived of the opportunity to explore that issue in order to defend the charges. The evidence which might have been given by Mr Dunmall as to the nature and quantity of the home brew might also have been significant, in relation to the issue of the time at which it had been placed into the disused machine. His presence was not justifiably refused on the basis of Mr Tsangas’s assumption that he would simply corroborate that of the informant, Mr Lyons. Any discrepancies between the evidence given about the discovery by each of the two men may well have influenced the outcome of the disciplinary proceedings in favour of the plaintiffs.
I am also satisfied that Mr Tsangas’s decision is properly characterised as unreasonable on the basis that, in effect, by failing to make available the witnesses sought by the plaintiffs, he declined to hear evidence available to him of factual matters which, in the words of the members of the Full Federal Court in Luu v Renevier [16], was “likely to be of critical importance in relation to the central issue for determination”.
[16](1989)91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ.
I note that I am not persuaded that the plaintiffs were denied natural justice by the failure to make available the home brew itself, in all the circumstances. They were given the opportunity to cross-examine Mr Lyons in relation to his evidence about the substance found. On the other hand, the failure to make the witnesses, including Mr Dunmall, available for cross-examination did constitute a denial of natural justice.
I am also not satisfied that the plaintiffs were denied natural justice as a result of the failure to make available the results of their urine tests. I am persuaded by the defendants’ submissions that such evidence would not have been significant, as the home brew may have been prepared for consumption by others or at another time.
I am not persuaded that relief should be refused on the ground that a further hearing would be futile because the plaintiffs would each inevitably be convicted of the offences with which they were charged[17]. In my view, evidence from a witness whose presence was requested might well have produced a different outcome which the plaintiffs were denied by Mr Tsangas’s decision not to make witnesses available.
[17]See: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson, JJ.
In reaching my conclusions, I have borne in mind the need for caution on the part of the Court in relation to intervention in prison disciplinary processes, including decision making by senior prison officers in relation to the calling of witnesses; see Rainsford v Governor of HM Prison at Ararat[18]. In my opinion, intervention is warranted in this case.
[18][2000] VSC 141 at [47] per Eames, J.
The IDU status decision
Submissions
The plaintiffs contend that the prison Governor, through Ms Read or another officer acting on his behalf who allocated IDU status prematurely, acted outside any power under the VPDS and unreasonably, in light of its provisions.
Counsel for the defendants submits that it is not clear that any particular individual’s decision resulted in the imposition of a nominal IDU status upon the plaintiffs after the 26 September 2005 PIMS entries. Rather, the status was the result of the implementation of the VPDS process and the effect of the PIMS entry under cl 4.1.1.
Counsel for the defendants relies upon the decision of Eames, J in Kaufman v Smith and Armytage[19] to contend that the Governor has general management power under s 21(1) of the Act to change or impose an IDU status in the implementation of the VPDS. He makes this submission in the context of his argument that the plaintiffs were charged with the disciplinary offences under the Regulations on 26 September 2005 and that the allocation of nominal IDU status was made in accordance with cl 4.1.1 of the VPDS. However, he also contends that, even if the Court were to find that the PIMS entries were made prematurely, the Governor would have the necessary power to allocate the nominal IDU status to the plaintiffs under the same general power of management. In any event, he contends, the defect is one in the implementation of the process under the strategy and a breach of a minor and technical nature which would not warrant the making of the orders sought.
[19][2001] VSC 420.
Conclusions as to the allocation of IDU status
I am not satisfied that the premature PIMS entry relating to the charges was made as a result of any decision on the part of Ms Read or any other prison officer. It is more probable in my view that the PIMS entry was made inadvertently some four days before the plaintiffs were charged when, in accordance with cl 4.1.1 of the VPDS, the charges would, in the normal course, have been the subject of the PIMS entry triggering the allocation of a nominal IDU-B status.
Even if a deliberate decision had been taken to allocate a nominal IDU status to the plaintiffs some four days before its imposition would be justified under the VPDS, I am not persuaded that the decision would be beyond the Governor’s general power of governance under s 21 of the Act.
Even if the decision might be viewed as being beyond power, it is my view that such a minor deviation from the process established by the VPDS would not warrant the intervention of the Court in the governance of the prison[20].
[20]See : Anderson v Pavic [2005] VSCA 244 at [32] per Nettle JA.
I refuse the relief sought in relation to the allocation of IDU status.
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