Henderson v Read - [2006] VSC 304

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Henderson v Read

Details

AGLC: Henderson v Read [2006] VSC 304
Case: [2006] VSC 304
Decision Date: 15 August 2006

CaseChat Overview and Summary

In the matter of Henderson v Read, the dispute arose from the process and decisions involved in a Governor’s Hearing under Part 7 of the Corrections Act 1958. The applicant, Henderson, a prisoner charged with drug-related offences in prison, challenged the procedural fairness of the hearing and the decision to prematurely allocate an IDU (Injecting Drug User) status. The case was heard in the Supreme Court of Victoria, where the court was tasked with examining the validity of the Governor’s Hearing and the allocation of the IDU status.

The primary legal issues before the court involved whether the Governor’s failure to make certain witnesses available at the hearing denied the applicant of natural justice and whether the decision to allocate an IDU status was made prematurely. The court had to interpret and apply sections 50 and 53 of the Corrections Act 1958 in this context. The applicant argued that the lack of witness availability compromised the fairness of the hearing, and that the IDU status was allocated before sufficient evidence was gathered.

The court held that the failure to make certain witnesses available did not necessarily breach the principles of natural justice, as the availability of witnesses is not an absolute requirement. However, the court found that the decision to allocate an IDU status was indeed premature. The court reasoned that the decision was made without sufficient evidence, which contravened the statutory requirements set out in section 50 of the Corrections Act 1958. This conclusion was reinforced by the interpretation of section 53, which mandates that such status be allocated based on a comprehensive assessment.

The court ordered that the decision to allocate an IDU status be quashed, and that a new hearing be conducted to properly assess the evidence and determine the appropriate status. The court also directed that the Governor ensure the availability of relevant witnesses in future hearings to uphold the principles of natural justice.

Orders