Kotzmann v Prison Supervisor E Wang
[2015] VSC 760
•23 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 01353
| THOMAS SAMUEL KOTZMANN | Plaintiff |
| v | |
| PRISON SUPERVISOR E. WANG & Others according to the schedule attached | Defendants |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 August 2015 |
DATE OF JUDGMENT: | 23 December 2015 |
CASE MAY BE CITED AS: | Kotzmann v Prison Supervisor E Wang & Ors |
MEDIUM NEUTRAL CITATION: | [2015] VSC 760 |
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ADMINISTRATIVE LAW — Offences whilst in prison — Judicial review — Certiorari and mandamus sought in respect of the laying of charges by prison officers for prison offences and findings of guilt made by prison governor — Whether prisoner denied procedural fairness in the laying of the charges and at hearing — Relief refused — Corrections Act 1986 (Vic) ss 21, 23, 50, 53 — Corrections Regulations 2009 (Vic) regs 50, 51.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Thomas Kotzmann appeared for himself | |
| For the Defendants | Mr L Brown | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
The question in this case is whether prison officers who laid charges against a remand prisoner for prison offences, and the prison manager who heard and determined those charges, exceeded their jurisdiction and denied the prisoner natural justice and procedural fairness in doing so. The prisoner claims that they did.
On 16 March 2014, Roslyn Smith,[1] the operations manager of the Melbourne Remand Centre (MRC), found Mr Thomas Kotzmann[2] guilty of certain prison offences. At that time, Mr Kotzmann was a prisoner on remand at the MRC awaiting trial for criminal charges. The offences were alleged to arise from two incidents, one on 9 December 2013 and the other on 4 January 2014.
[1]The third named defendant.
[2]The plaintiff.
Mr Kotzmann seeks relief in the nature of certiorari to quash Ms Smith’s decision in each case that he had committed the offence, mandamus directing the prison to remove the laying of the charges and the findings of guilt from all prison records, and the return of the $40 imposed on him as penalties. As I will also briefly mention below, Mr Kotzmann has also sought to supplement the grounds for the relief he claims by alleging a failure on the part of Ms Smith to consider various human rights protected under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’).
For reasons which appear below, Mr Kotzmann has failed to make out any of the grounds upon which he seeks relief, and the relief claimed is refused.
The statutory scheme
Section 50 of the Corrections Act 1986 (Vic) (‘the Act’) authorises a prison officer, amongst other available courses, to charge a prisoner with a prison offence. Regulation 50 of the Corrections Regulations 2009 (Vic) (‘the Regulations’) prescribes prison offences.
The Governor (a term no longer used by Corrections Victoria, who instead use ‘General Manager’) and prison officers are given broad powers and duties. In particular, s 21 of the Act provides that the Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners, and is to take reasonable steps to ensure that prison officers know their powers and duties. By s 23, prison officers are empowered to 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.
Part 7 of the Act more particularly relates to prison discipline. Relevantly for the purposes of this application, s 50 specifies the process that must occur before a charge for a prison offence is laid:
50 Prison offences
(1)If an officer within the meaning of Part 5 or an escort 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 subsection (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.
(5A)In addition to any action the disciplinary officer may take under subsection (5)(a), (b) or (d), the disciplinary officer may also 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.
Section 53 then sets out the prerequisites for the holding of a disciplinary hearing, certain rights of prisoners at such a hearing, and the penalties a governor may impose:
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; or
(b)if the Governor and prisoner agree to a shorter period, within that shorter period; or
…
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.
(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.
(3A)If a prisoner, having been given notice under subsection (1) of the time, date and place of the hearing, refuses or fails to attend the hearing, the Governor by whom the charge is to be heard may proceed to hear and determine the charge in the prisoner's absence.
(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;
* * * * *
In Stewart v Crowley, Winneke P explained the purpose against which the provisions of Part 7 of the Act are to be construed:
Part 7 of the Corrections Act is designed to confer powers upon prison officials to administer discipline within the prison for the commission of offences against the regulations, and to do so with expedition. The provisions of Part 7 are calculated to provide a balance between the power of the corrections officials to maintain discipline within a system where discipline is essential and the rights of prisoners who are to be subjected to that discipline. In that context, it is true to say that the provisions are "describing prisoners' rights". It is in this context that the provisions of Part 7 fall to be construed.[3]
[3]Stewart v Crowley (2002) 6 VR 479, 488 [22] (‘Stewart’).
The content of the prison offences and more detailed procedures for the conduct of disciplinary proceedings are set out in the Regulations. Relevant to this case, the alleged contravening conduct were breaches of r 50(1)(b) and (p), namely:
50 Prison offences
(1) A prisoner must not—
(b)act in a disruptive, abusive, offensive, racist, discriminatory or indecent manner, whether by language or conduct; or
…
(p)disobey a lawful order, direction or instruction of an officer; or
The Regulations require that the Governor must ensure the disciplinary proceedings are conducted with as little formality and technicality and as expeditiously as the requirements of the Act and Regulations and a proper consideration of the matters permit.[4] The Regulations are often prescriptive, providing out the prisoner must be given written advice of the charge and the procedure of a Governor’s hearing,[5] as well as specifying various procedures that must occur if the prisoner pleads not guilty.[6]
[4]The Regulations, reg 52(b).
[5]Ibid, reg 53.
[6]Ibid, reg 55.
Grounds for review
Mr Kotzmann’s originating motion contains 16 grounds.
Grounds 1 - 10 contained common complaints in relation to the laying of the charges for the two incidents, namely that (omitting their particulars):
(a) The prison officer who laid the charge in relation to the relevant incident for want of jurisdiction was not permitted to charge the plaintiff with a prison offence.[7]
[7]Plaintiff’s originating motion between parties dated 17 March 2014, Grounds 1 and 6.
(b) The prison officer denied the plaintiff procedural fairness before laying the charge alleging the plaintiff had committed a prison offence.[8]
[8]Ibid, Grounds 2 and 7.
(c) The prison officer acted in bad faith in exercising the discretion to charge the plaintiff with the prison offence the plaintiff was charged with committing.[9]
(d) The prison officer failed to adequately frame the alleged prison offence on the charge sheet, which was served on the plaintiff, and failed to provide sufficient particulars, to the plaintiff, to permit the plaintiff to know the exact case being alleged.[10]
(e) The charge sheet, issued by the prison officer and served on the plaintiff, alleging the plaintiff committed a prison offence, did not disclose an offence pursuant to r 50(1)(b) or (p) of the Regulations (as the case may be).[11]
[9]Ibid, Grounds 3 and 8.
[10]Ibid, Grounds 4 and 9.
[11]Ibid, Grounds 5 and 10.
Additionally, in relation to the charges laid for the second incident, two additional grounds complained that:
(a) The charges contained within the charge sheet issued by the prison officer are duplicitous and offend principles of double jeopardy;[12] and
(b) The plaintiff was not provided with material requested before the disciplinary hearing was conducted, which was a denial of natural justice.[13]
[12]Ibid, Ground 11.
[13]Ibid, Ground 12.
The final four grounds concerned the disciplinary hearing itself and alleged that the operations manager (ie Ms Smith):
(a) For want of jurisdiction was not permitted to conduct the hearing on 16 March 2014;[14]
[14]Ibid, Ground 13.
(b) Conducted the hearing in a manner that denied the plaintiff procedural fairness;[15]
(c) Denied the plaintiff procedural fairness by failing to give the plaintiff a reasonable opportunity to be heard before determining the penalty imposed;[16] and
(d) Acted in bad faith in exercising the discretion to find the charges proven to the requisite standard.[17]
[15]Ibid, Ground 14.
[16]Ibid, Ground 15.
[17]Ibid, Ground 16.
In summary then, Mr Kotzmann argued in respect of each set of charges and the hearing of them:
(a) There was no power to lay the charges because the relevant prison officers failed to adhere to the procedure prescribed in s 50 of the Act before laying the charges, denied him procedural fairness before laying the charges and laid the charges in bad faith; and
(b) In conducting each hearing and making her decision Ms Smith committed jurisdictional error because:
(i) The relevant prison officers had not complied with the statutory scheme when laying the relevant charges;
(ii) There was no evidence to support the convictions;
(iii) Ms Smith acted in bad faith in finding the charges proven; and
(iv)Mr Kotzmann was denied procedural fairness during the hearing process itself in that:
The particulars of the charges were inadequate;
He was not given material that was adverse to him to enable him to prepare for the hearing;
He was given inadequate notice of the hearing;
He was not given a reasonable opportunity to call relevant witnesses;
He was not given a reasonable opportunity to cross examine witnesses for the informants; and
He was not given the opportunity to make submissions or be heard.
Facts
With that explanation of the statutory provisions and Mr Kotzmann’s complaints, I now turn to the circumstances of each incident, the process of laying the charges, the relevant steps leading to the hearing of the charges and then the hearings themselves. The evidence for what appears below was contained in affidavits filed by the parties.[18] No party sought to cross examine the witness of the other party. From the evidence presented in the affidavits, including the exhibits, I find the facts to be as follows.
[18]Affidavit of Thomas Samuel Kotzmann sworn 1 April 2014 (‘Kotzmann affidavit’); affidavit of Roslyn Smith sworn 24 July 2014 (‘Smith affidavit’).
First incident: 9 December 2013
On 9 December 2013 prison officer D Morrison and senior prison officer Christian Paepke prepared and signed a memorandum recording an incident that occurred that day at approximately 5.20 am in the Cambridge Unit of the MRC. In substance, those officers attended Mr Kotzmann’s cell to collect him for the purpose of conveying him to a court appearance that day. He was sitting on the edge of his bed.
The prison officers claim that when he was informed he was required for court Mr Kotzmann stated he was not ready and that the prison officers should come back in 20 minutes. When the prison officers offered to collect other prisoners from the unit and come back to get him if they had time, Mr Kotzmann allegedly refused. He was then again instructed to get ready but he stated words to the effect, ‘no come back later, go away’ and repeated again several times ‘go away’ using hand gestures. The prison officers claim that Mr Kotzmann was informed a report would be submitted for refusing a direction to attend reception. According to SPO Paepke, Mr Kotzmann’s cell mate appeared to be asleep on his side facing the wall.
The incident was reported to a disciplinary officer, prison supervisor E Wang.[19] On 15 December 2013 Wang signed an investigation report form setting out the results of his investigation, noting the reports of Paepke and Morrison. He summarised the incident and set out what purported to be the outcome of his discussion with Mr Kotzmann about it. The report[20] recorded as follows:
Kotzmann stated that he is SESG Escort and does not know why normal staff are collecting him in the morning. Kotzmann acknowledges that he did refuse direction because he was not ready. Upon further investigation records inform me that Kotzmann only became SESG Escort on 12.12.13 due to incident at the Magistrates’ Court.
The investigation report indicated that PO Wang determined that there should be a general manager’s disciplinary hearing.
[19]The first defendant.
[20]Part of Exhibit RS-4, (Court Book p.120).
On 31 December 2013 a notification of charge, signed by PO Wang on 15 December, was issued and delivered to Mr Kotzmann. The charge sheet described the offence as:
Section 50.1(p) — A prisoner must not disobey a lawful order, direction or instruction of an officer.
On the 9.12.13 staff gave numerous directs (sic) for you to attend reception for court. You told staff you were not ready and to go away.
The hearing of the charge for the first incident was scheduled for 4 January 2014, four days hence. On 1 January Mr Kotzmann wrote to operations manager Smith regarding two prison offence hearings, one of which related to the first incident, giving notice that he required the attendance of prison officer Wang and a prisoner, Gary Davis, as witnesses at the hearing. He also sought any audio visual recordings and the attendance of any independent witnesses at the hearing.
When operations manager Smith attended for the hearing on 4 January she became aware of Mr Kotzmann’s letter of 1 January and determined to adjourn the hearing ‘to a date to be fixed’. By two separate Notifications of Referral, both dated 26 February 2014, the hearing date for the first incident was fixed by one notice for 2 March 2014 and by the other for ’15 or 16 March 2014’. The evidence does not enable me to resolve how the ultimate hearing date of 16 March was actually fixed and notified (if it was further notified).
By letter dated 28 February 2014 Mr Kotzmann wrote to operations manager Smith. That letter concerned a raft of prison disciplinary offences which Mr Kotzmann then faced, including the charges arising from the first incident. Amongst other things, Mr Kotzmann repeated his requests for the attendance of Wang and Davis as witnesses at the hearing.
The hearing of the charge relating to the first incident took place on 16 March 2014 before operations manager Smith. It came on at 3.00 pm and was concluded by 3.20 pm. A senior prison officer, C Bradley, prepared typed notes of the hearing which recorded as follows:
Present:
PO Shanhun
SPO C Bradley
O/M Smith
SPO Paepke
……………………………………………….
Ms Smith:
Name, CRN
Ms Smith read out the charge
Kotzmann refused to sign his rights
Ms Smith in the presence of Mr Shanhun, Ms Bradley, Mr McDonagh & Mr Paepke I note your refusal to sign your rights
Ms Smith, plead guilty or not guilty
Kotzmann not guilty
SPO Paepke read from his report
Kotzmann claimed that a section 50 was not done
Ms Smith read out the interview he had with the Disciplinary Officer
Kotzmann continued to quote previous findings of court
Ms Smith continued to keep Kotzmann on track about the incident
Kotzmann questioned SPO Paepke about the morning
Ms Smith said by your own words you didn’t go with the officer when directed, you told them to go away
Kotzmann agreed with Ms Smith he did tell the staff to go away
Ms Smith by your own admission you refused to go with staff, I find the charge proven and Ms S stated (sic) a penalty $20.00
Kotzmann and (sic) another one for the supreme court and left.[21]
[21]Exhibit RS-3 (Court Book p.109).
A Notification of Charge of Prison Offence signed by operations manager Smith on 16 March 2014 records that the outcome of the hearing was that the charge was proven and a $20.00 fine was imposed.
Second incident: 4 January 2014
On 4 January 2014 senior prison officer Michael McDonagh and prison officer J Whitmore prepared and signed memoranda detailing allegations of that incident that occurred at approximately 3.45 pm in the resource room of the Cambridge Unit at the MRC. In substance they alleged that prison officer Whitmore asked Mr Kotzmann to leave the resource room as they needed to lock the door to secure bed packs which had to be locked in that room until issued to prisoners. They claim that Mr Kotzmann refused to move at which point senior prison officer McDonagh came and asked Mr Kotzmann to vacate the room. Mr Kotzmann then told prison officer McDonagh to ‘fuck off’. After a further explanation why the resource room was needed and that it would only be for half an hour after which Mr Kotzmann could be let back into the room, Mr Kotzmann allegedly said to prison officer McDonagh ‘fuck off you fucking peanut’. When again prison officer McDonagh warned Mr Kotzmann that if he refused another time to leave the room he would ‘write you up’ Mr Kotzmann then replied ‘go right ahead I told you to fuck off’. Nevertheless, at that point he did vacate the room.
Prison officer E Lamb was appointed as disciplinary officer. On 13 January 2014 PO Lamb signed an investigation report which noted the receipt of a report from M McDonagh, setting out a summary of the incident and purported to record what Mr Kotzmann had told him about the incident upon investigation, namely:
Kotzmann claims that this incident is fiction and he has no recollection of this event taking place.
On 14 January 2014 a Notification of Charge, signed by Lamb on 13 January 2014, was issued and delivered to Mr Kotzmann for a hearing to take place on 18 January 2014. The Notification of Charge[22] contained two charges which were set out as follows:
Section 50.1(p) — A prisoner must not disobey a lawful order, direction or instruction of an officer.
Refused to vacate resource room when instructed to do so by staff.
Section 50.1(b) — A prisoner must not act in a disruptive, abusive, offensive, racist, discriminatory or indecent manner, whether by language or conduct.
Verbally abusive to staff; ‘fuck off you fucking peanut’.
The date of the alleged offence was stated to be 4 January 2014.
[22]Kotzmann affidavit, exhibit ‘TSK 3’.
On the same day, 14 January 2014, Mr Kotzmann sent a letter to operations manager Smith regarding three disciplinary matters, including those arising from the second incident. In the letter he requested that prison officer Lamb and supervisor Tartaglia appear as witnesses, along with a prisoner called Murrell. He also sought any CCTV footage and that any independent witness attend the hearing.
A Notification of Referral relating to the second incident (and two other matters), dated 17 February 2014, appointed a hearing before operations manager White on 22 January 2014. Mr Kotzmann responded the next day, 18 February 2014, by letter to operations manager White requesting (pursuant to s 52(1) of the Act) a hearing before another governor. On 24 February 2014 a Notification of Referral of the charges arising from the second incident (together with another) gave notice that the hearing would now take place before operations manager Smith on 5 March 2014.
By letter dated 28 February 2014 (already referred to above at [24]) Mr Kotzmann wrote to operations manager Smith repeating, relevantly, his request for the attendance of Lamb, Murrell and Tartaglia at the hearing of the charges for the second incident, together with the production of incident reports.
On the designated hearing day, 5 March 2014, a Notification of Referral was prepared adjourning the hearing of charges relating to the second incident (along with others) to 12 March 2014. The next day, 6 March, Mr Kotzmann again wrote to operations manager Smith requesting, relevantly, the attendance of the witnesses he had previously specified. The typed notes of SPO Bradley on 12 March 2014 recorded that, at the hearing of the charges relating to the second incident, Mr Kotzmann pleaded ‘not guilty’ whereupon he was advised that the hearing would reconvene on 16 March 2014.
The hearing of the charges arising from the second incident occurred on 16 March 2014 between 2.35 pm and 2.55 pm. It was described as a ‘reconvened’ hearing. The typed notes of SPO Bradley recorded as follows:
Reconvened
16.3.14 — 14:35 — finished 14:55
Present
PO Shanhun
SPO Bradley
Informant A/SPO McDonagh
Ms Smith reconvened the hearing due to his not guilty plea.
Mr McDonagh read his report.
Kotzmann made mention of his witness … no name was mentioned.
Ms Smith, due to your unit replacement in a management unit.
Kotzmann tried to raise a previous day issue.
Ms Smith told him to stay on the day of the incident.
He kept shuffling papers saying the Act reads.
Ms Smith allowed him to quote.
Kotzmann continued then to quote from other court cases.
Ms Smith told him that she would consider all evidence.
Kotzmann started to question Mr McDonagh again about a previous day. Mr McDonagh said I am only answering questions about this day, the one I read about in my report.
Kotzmann again tried to talk about previous days.
Ms Smith told him to ask the informant about the day of the incident.
Kotzmann went on arguing about what is a lawful order.
Kotzmann kept challenging Ms Smith right to hear it with only one witness, and making comments about going to the Supreme Court and he didn’t want to waste taxpayers’ money.
Ms Smith, I have heard the evidence ‘Thomas we are going forward’.
Ms Smith gave her penalty.
Kotzmann: stated as he stood up this is going to the Supreme court.[23]
[23]Smith affidavit, exhibit RS-3 (Court Book p.108).
On 16 January 2013 operations manager Smith signed a document titled Check List for Hearing Officers recording that the charge under s 50(1)(b) was found proven and a reprimand was issued and that the charge under s 50(1)(p) was found proven and a $20.00 fine was imposed.
Did the prison officers lack power to lay the charges or deny Mr Kotzmann procedural fairness when laying the charges?
Lack of power
First, Mr Kotzmann argued that, prior to laying both charges, Wang (in respect of the first incident) and Lamb (in respect of the second incident) each failed to conduct an investigation into the alleged prison offence, as required by s 50(2), (3) and (4) of the Act and reg 51 of the Regulations.
Section 50 of the Act (set out above) identifies the courses a disciplinary officer may take after investigating an alleged prison offence, including charging the prisoner with the offence. Regulation 51 of the Regulations provides that before being satisfied an offence has occurred for which it is appropriate to charge a prisoner, the officer ‘must’ review all reports, interview relevant staff, seek additional evidence (if necessary), interview the prisoner, putting the allegation and recording the response and consider any special needs or circumstances of the prisoner.
Mr Kotzmann argued that the discretion to charge a prisoner with an alleged offence can only be lawfully exercised after the completion of an investigation in compliance with reg 51.
Even if that were so, in my view Mr Kotzmann has failed to establish that either Wang or Lamb did not comply with the requirements of the Act and the Regulations before laying the relevant charges.
In relation to the first incident, the evidence[24] shows that Wang complied with reg 51. That is, he received and noted the contents of the reports of Paepke and Morrison. There is no evidence that other staff needed to be interviewed. There is no reason to suspect or believe that additional evidence needed to be obtained: insofar as it may be contended that Mr Kotzmann’s cell mate needed to be interviewed, on the evidence (i.e. that the cell mate appeared to be asleep) there is no reason to believe that cell mate should have been interviewed. Wang put the allegation to Mr Kotzmann and recorded his response.[25] And, finally, there is no evidence of any special need or circumstance of Mr Kotzmann that required consideration.
[24]See as summarised in paras [18]–[20] above.
[25]Further, Ms Smith deposed that, whilst she did not understand the complaint about the investigations, she had spoken to Wang and Lamb who told her they spoke to Mr Kotzmann in the course of their investigations and noted his comments in their checklists they were required to fill out: see Smith affidavit’, exhibits ‘RS-4’ and ‘RS-5’.
Similarly, in relation to the second incident, the evidence[26] shows that Lamb complied with reg 51. That is, he received and noted the contents of the report of McDonagh which contained the separate memoranda written by himself and Whitmore. There is no evidence that other staff needed to be interviewed. There is no reason to suspect or believe that additional evidence needed to be obtained. Lamb put the allegation to Mr Kotzmann and recorded his response.[27] And, finally, there is no evidence of any special need or circumstance of Mr Kotzmann that required consideration.
[26]See as summarised in paras [27]–[29] above.
[27]See above n 25.
So, I reject the proposition that the prison officers lacked power to lay the charges due to alleged want of compliance with s 50 or reg 51.
Denial of procedural fairness
Secondly, Mr Kotzmann argued that he was denied procedural fairness before the charges were laid. Insofar as he was to be afforded procedural fairness before the charges were laid, having regard to the principles for discerning the content of the rules of natural justice applicable to a given case,[28] I consider that the content of those requirements in this case are essentially met by compliance with the statutory scheme for the investigation as set out in s 50 and reg 51. Given that he had the opportunity to answer the allegation in each case before the charge was laid, I reject the suggestion that Mr Kotzmann was denied procedural fairness in that respect.
[28]Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Miah (2001) 206 CLR 57, 69-70 [31]-[35] (Gleeson & Hayne JJ), 94 [129], 98 [143] (McHugh J), 115-117 [189]-[193] (Kirby J).
Further, in relation to the each charge, Mr Kotzmann argued that the charge lacked sufficient particulars to allow him to know the precise case alleged, in particular by failing to disclose how the order or direction was lawful.[29] For the first incident, the charge is set out in [21] above. For the second incident the charges are set out in [29] above.
[29]Ibid [5], [10].
In my view, especially having regard to the relatively uncomplicated nature of the events in question, the particulars of the charges were perfectly sufficient to inform Mr Kotzmann of the nature of the allegations and the legal basis for them. Whether or not he had an argument that the direction lacked some proper legal basis — which was a matter he was entitled to raise in his defence if he so chose — the particulars of the allegation were adequately disclosed.
Even if there were departures from the Act or Regulations (of which I have found none), Mr Kotzmann had to show that by such departures he was deprived of the possibility of a successful outcome.[30] ‘Technical’ breaches that did not mislead or cause Mr Kotzmann discernible disadvantage are not sufficient to lead to certiorari.[31] Mr Kotzmann did not establish that any of the claimed departures caused him any discernible disadvantage. Neither at the disciplinary hearing nor before me he did claim not to have understood the charges or what was alleged against him, nor did he identify specific other uncalled evidence that would have made a difference to the outcome.
[30]Henderson v Beltracchi (1999) 105 A Crim R 578, 589 [31] (Mandie J).
[31]Rainsford v The Governor of Her Majesty’s Prison at Ararat [2000] VSC 141, [80] (‘Rainsford’).
In addition, as correctly submitted by the defendants, strict compliance with s 50 of the Act is not required in order to confer jurisdiction on the Governor.[32] Instead, jurisdiction is given by the delivery of a charge in accordance with s 50(6) of the Act so that, in this statutory context, error in the process of laying the charge does not of itself vitiate the Governor’s subsequent decision upon hearing and determining the charge.[33]
[32]Stewart (2002) 6 VR 479, 488 [22].
[33]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388-389 [91] (McHugh, Gummow, Kirby and Hayne JJ).
Next, there was a complaint that the charges for the second incident were ‘duplicitous’ and exposed Mr Kotzmann to ‘double jeopardy’. I reject those allegations. First, the two charges were clearly distinguished in the notice of charge, each constituted by separately identified conduct. Secondly, if the real complaint was that one charge was necessarily incorporated in the other so that he was being charged and punished twice for the same matter, that complaint is misconceived. Refusing an order need not be attended by the use of indecent language; and the use of indecent language must not always occur in connection with refusing an order.
Finally, there is no evidence to support the allegation that the charges were laid in bad faith and I reject those grounds.
Did operations manager Smith lack power to hear and decide or deny Mr Kotzmann procedural fairness when hearing and deciding the charges?
Lack of jurisdiction due to statutory non-compliance in laying the relevant charges
Mr Kotzmann’s first argument was that Ms Smith was not permitted to conduct the two disciplinary hearings because neither Mr Wang and Mr Lamb had complied with the statutory scheme when laying the relevant charges.[34] The short and effective answer to that proposition is, as already stated, that the jurisdiction of the manager to hear the disciplinary charge is conferred by the delivery of the written charge to the manager under s 50(6). Any want of compliance by prison officers with the requirements of s 50(1) – (5) prior to the delivery of the charge does not negate the manager’s jurisdiction.[35]
[34]Plaintiff’s originating motion between parties dated 17 March 2014, Ground 13.
[35]Stewart (2002) 6 VR 479, 487 [22], 489 [23].
In any event, as I have found, there was no such want of compliance.
Lack of procedural fairness at the hearing
Next, Mr Kotzmann alleged that he was denied procedural fairness in the conduct of the hearings in a variety of ways.
The first ground of that complaint was that the particulars of each charge were inadequate.[36] I have already dealt with this allegation and I reject it.
[36]Plaintiff’s originating motion between parties dated 17 March 2014, Grounds 4, 5, 9, 10 and 11.
The second ground was that he was not given material that was adverse to him to enable him to prepare for the hearing.[37] Essentially, this is a complaint that he was not given a copy of the short written statements made by each prison officer of what they had observed on each relevant occasion, referred to in the summaries of the incidents set out above. All that Mr Kotzmann required to be able to prepare his answer to the charges was adequate notice of the nature and substance of the allegation: this he was given in the notification of the charge as I have stated. He was neither entitled to a preview of the evidence, nor was such a preview necessary as a matter of fairness for him to be able to prepare for the hearing.[38] I reject that ground.
[37]Ibid, Ground 12.
[38]Brazel v White [2014] VSC 344, [72], [73] (‘Brazel’).
The third ground was that he was not given adequate notice of the hearings.[39] Section 53(1) of the Act required that Mr Kotzmann be given not less than 72 hours’ notice of the time, date and place of the hearing. As stated earlier,[40] the evidence does not allow me to conclude how the time was fixed for the first incident. But I am not satisfied that Mr Kotzmann was not given at least 72 hours’ notice of the hearing place and time. Further, I am not at all satisfied that any failure to give him 72 hours’ notice of the place and time of that hearing (if there was such a failure) deprived him of the possibility of a successful outcome, either in relation to a finding on the charge or in relation to penalty. He had known of the charge since 31 December, corresponded about it numerous times, cross examined PO Paepke and made submissions at the hearing, and admitted the conduct complained of. In relation to the second incident, the evidence summarised above clearly establishes that Mr Kotzmann was given at least 72 hours’ notice. I reject this ground.
[39]Plaintiff’s originating motion between parties dated 17 March 2014, Ground 14(a).
[40]See [23] above.
The fourth ground was that he was not given a reasonable opportunity to call relevant witnesses.[41] Ms Smith was obliged to allow Mr Kotzmann such an opportunity.[42]
[41]Plaintiff’s originating motion between parties dated 17 March 2014, Ground 14(b).
[42]The Act, s 53(2).
In respect of the first incident, Mr Kotzmann sought (in a letter before the hearing) the attendance of PO Wang and his cell mate at the time of the incident, Gary Davis. It was for Mr Kotzmann to demonstrate that these were relevant witnesses.[43] Wang could only be cross examined about the process leading to the laying of the first charge; in my view, given that jurisdiction did not depend on that investigation, his evidence was not likely to be relevant. Ms Smith had no power to compel Davis to attend.[44] Further, since Mr Kotzmann admitted the actions constituting the offence it is difficult to see what relevant evidence Davis could have given even assuming he witnessed the event. And, on the evidence, it is unlikely that he did given the observation that he appeared to be asleep facing the wall at all relevant times.
[43]Brazel [2014] VSC 344, [80]; Rainsford [2000] VSC 141, [30].
[44]Rainsford [2000] VSC 141, [27].
In respect of the second incident, Mr Kotzmann sought (in a letter before the hearing) the attendance of PO Lamb, a prisoner called Murrell and supervisor Tartaglia. On the day of the hearing, as the contemporaneous notes record, Mr Kotzmann mentioned a ‘witness’ but did not identify that witness. Again, Lamb could only have given evidence of the process leading to the laying of the charge which was not likely to be relevant. It was not made clear how Murrell or Tartaglia’s evidence could have been relevant but the evidence does not establish that Mr Kotzmann pressed for either of these persons to be called.
It not being established that any of the witnesses that Mr Kotzmann says ought to have been called could have given relevant evidence, I reject this fourth ground.
The fifth ground was that Mr Kotzmann was not given a reasonable opportunity to cross examine witnesses.[45] Again, Ms Smith was obliged to afford him such opportunity.[46] It is clear that on each occasion Mr Kotzmann did cross-examine the relevant informants, namely PO Paepke and PO McDonagh. His right to cross examine was not at large but was to be directed at matters relevant to the charges. Further, Ms Smith had a duty to control the hearing and it was a matter for her to determine, within her jurisdiction, whether ‘the boundaries of permissible cross examination had been exceeded’.[47] Ms Smith deposed that she gave Mr Kotzmann the opportunity to cross examine witnesses but stopped him when his cross examination strayed to areas that were not relevant to the charges. That evidence is supported by the contemporaneous notes of the proceedings set out earlier in these reasons. In the proceeding before me, Mr Kotzmann did not establish what questions he was prevented from asking. It is apparent from the contemporaneous notes that he wanted to ask questions about other incidents occurring on previous days. He has not demonstrated to my satisfaction that he was prevented from exercising his reasonable opportunity to cross examine witnesses on either occasion. I reject this ground.
[45]Plaintiff’s originating motion between parties dated 17 March 2014, Ground 14(c).
[46]The Act, s 53(2).
[47]Stewart (2002) 6 VR 479, 493 [30].
The sixth ground was that he was not given the opportunity to make submissions or be heard.[48] It is apparent from the evidence that Mr Kotzmann did make submissions to Ms Smith in relation to the Act and Regulations and the process he was subject to and, in effect, otherwise through his challenge to witnesses. In the hearing before me, Mr Kotzmann did not establish there were any relevant submissions he was prevented from making to Ms Smith. I reject this ground.
[48]Plaintiff’s originating motion between parties dated 17 March 2014, Grounds 14(e), 15.
The final two grounds concerning the conduct of the hearings were that Ms Smith did not dismiss the charges at the close of the informants’ respective cases[49] and that she acted in bad faith in finding the charges proven to the requisite standard.[50] For a proceeding of this kind, I will take them to be a complaint that Ms Smith’s jurisdiction miscarried due to an absence of any evidence capable of supporting her findings. But, there clearly was evidence capable of supporting Ms Smith’s findings on each charge. There being no other evidence relied upon to support the allegation of Ms Smith having acted in bad faith, I also reject those grounds.
[49]Ibid, Ground 14(f).
[50]Ibid, Ground 16.
Charter considerations
Mr Kotzmann’s originating motion contained, as a particular of his ground that Ms Smith had acted in bad faith in finding the charge proven, an allegation that she failed to consider the relevant provisions of the Charter. He contended that such failure amounted to unlawfulness pursuant to s 38 of the Charter. If so, as provided by s 39, any such unlawfulness may constitute a supplementary ground for the relief he seeks by way of judicial review. It appears he gave notice of a Charter matter pursuant to s 35 of the Charter. He invoked s 24 (Fair hearing), s 25 (Rights in criminal proceedings) and s 22 (Humane treatment when deprived of liberty).
The defendants argued in detailed written submissions that ss 24 and 25 of the Charter were not engaged by proceedings at a governor’s disciplinary hearing under the Corrections Act 1986 (Vic). They further argued that, in any event, the statutory regime under Part 7 of the Act would satisfy the procedural rights guaranteed by those Charter provisions.
This matter was not argued fully before me. It is unnecessary for me to decide whether the Charter provisions apply to a governor’s disciplinary hearing. For the reasons I have already given above when dealing with each of Mr Kotzmann’s complaints, I am not satisfied that Ms Smith acted in a way that was incompatible with any of the rights Mr Kotzmann identified or that she failed to give proper consideration to them. In the result, Mr Kotzmann has not established any unlawfulness under the Charter that might provide a ground for the relief he claims.
Conclusion
It follows from all of the foregoing findings that this proceeding must be dismissed.
SCHEDULE OF PARTIES
| S CI 2014 01353 | |
| BETWEEN: | |
| THOMAS S KOTZMANN | Plaintiff |
| - and - | |
| PRISON SUPERVISOR E. WANG | Firstnamed Defendant |
| PRISON SUPERVISOR E. LAMB | Secondnamed Defendant |
| OPERATIONS MANAGER R.SMITH | Thirdnamed Defendant |
| THE METROPOLITAN REMAND CENTRE | Fourthnamed Defendant |
0
7
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