Rainsford v Governor of HM Prison at Ararat
[2000] VSC 141
•19 April 2000
| SUPREME COURT OF VICTORIA | Do not Send for Reporting |
| COMMON LAW DIVISION | Not Restricted |
No. 6753 of 1999
| JAMES ERNEST RAINSFORD | Plaintiff |
| v | |
| THE GOVERNOR OF HER MAJESTY'S PRISON AT ARARAT | Defendant |
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JUDGE: | Eames J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 - 7 April 2000 | |
DATE OF JUDGMENT: | 19 April 2000 | |
CASE MAY BE CITED AS: | Rainsford v The Governor of HM Prison at Ararat | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 141 | |
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Administrative law - Prison and prisoners – Prison offence – Corrections Regulations 1998, Regs 44(1)(a), 45, 47, 48 – Corrections Act 1986, Part 7 – Conduct of Governor's Hearing – Whether denial of procedural fairness – right to cross examine witnesses – right to call witnesses – witnesses not compellable – hearsay evidence – charge form disclosing contradictory references to relevant regulations – incorrect identification, in part, of the relevant provision.
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APPEARANCES: | Counsel | Solicitors |
The Plaintiff in Person | ||
| For the Defendant | Mr R. D. Shepherd | Chris Devlin |
HIS HONOUR:
This is an application for judicial review brought pursuant to Order 56.02 of the Rules of the Supreme Court. The Plaintiff, a prisoner, seeks an order in the nature of certiorari to quash the finding and orders made on 25 June 1999 by the Governor of Her Majesty's Prison at Ararat in the hearing of a charge for a prison offence. The title of "Governor" has subsequently been changed to "Operations Manager".
The Plaintiff, James Rainsford, was charged that, contrary to Regulation 44(1)(a) of the Corrections Regulations 1998, he assaulted or maliciously threatened another person on 20 June 1999. The alleged victim was another prisoner, David Andrew Marsden.
The events leading to the charge
On Sunday, 20 June 1999, at about 7.30 p.m., the prisoner, David Marsden, approached Prison Officer Nievaart reporting a cut lip and alleging that he had been assaulted by Rainsford. Prison Supervisor, Cheryl Smith, deposed that having been alerted by Nievaart, she attended at Nievaart's station and observed the injuries to Marsden, whom she then interviewed. Marsden complained that following a disagreement over a television program, Rainsford had grabbed him by the scruff of the neck and thrown him into the cell table and had threatened him. At the time of these events, Marsden and Rainsford were sharing a cell, together with two other prisoners, Bowers and Miller. On the same day, Smith interviewed Rainsford and she says she also interviewed Bowers and Miller. Following these investigations she authorised Rainsford's separation from the other prisoners, for a period of two days. She served on Rainsford an order for separation, and arranged for photographs to be taken of Marsden's injuries.
The Charge and the hearing
Prison Supervisor Smith conducted her investigation into the report of the assault pursuant to s.50(2) of the Corrections Act 1986 (hereafter called “the Act”). No challenge was made as to her entitlement to do so, and none is permitted, by virtue of s.50(9). A decision was taken under s.50(5)(d) to charge Rainsford with a prison offence, and on 21 June 1999, Rainsford was charged with the offence of assaulting or malicious threatening Marsden.
On 25 June 1999, the Governor, Allan Culph, conducted a hearing, pursuant to his powers under Section 51 of the Act. No complaint is made as to the entitlement of Culph to conduct such a hearing pursuant to Section 51.
The Charge Sheet, which had been handed to Rainsford, contained, on its reverse side, detailed information concerning the provisions of the Act and Regulations concerning the conduct of such a hearing. The form which he was handed was, in fact, one that had been printed for the purpose of the conduct of such hearings under the Act and the Corrections Regulations 1988. The form was outdated, in its reference to the 1988 regulations. Those regulations had been repealed, and replaced by the Corrections Regulations 1998. The heading of the charge sheet noted, correctly, "Section 48 – 53 Corrections Act", but it then had a heading, "Regulations 66, 74 – 75 Corrections Regulations 1998". The charge brought against Rainsford was identical to the offence created by Regulation 74 of the 1988 Regulations. That offence is now to be found in Regulation 44 of the 1998 Regulations. The information on the reverse side of the form handed to Rainsford, although mentioning the Corrections Regulations 1988, was, nonetheless, as relevant and applicable to the 1998 regulations, and the 1996 Act, as it had been to the former regulations.
The information set out on the reverse side of the charge sheet provided a step by step indication of what would occur at the hearing and, in particular, informed Rainsford that he would be given the opportunity to cross-examine the informant and the informant's witnesses, and would be given the opportunity to present his case and to call any relevant witnesses.
According to the affidavit of Culph (which for the most part is not in dispute), at the outset of the hearing Culph explained the nature of Governor's hearings to Rainsford and asked him if he had the charge sheet (which showed, on its reverse side, the nature of the hearings). Rainsford said he had it. Culph then took Rainsford through the process which would occur, and told him that a disciplinary officer, namely Smith, had conducted an investigation. Culph told Rainsford he would be asked how he pleaded and told him that he would be given the opportunity to put his case and to call witnesses. He told Rainsford the range of penalties which could be imposed. Rainsford told me that he had said to Culph, at the outset of the hearing, that he knew how the Governor's hearing procedure worked. He said to me that he was not confused as to his rights to call witnesses.
Culph then read the charge, to which Rainsford replied, "Not guilty because I was provoked by Marsden removing the antenna equipment from its proper place in the prison, for which I have responsibility". According to both Culph and Smith, Smith then gave evidence, which evidence was comprised entirely by her reading from a written report. I quote that report in full:
"On Sunday 1930 hrs I received a telephone call from Prisoner Officer Nievaart in Lonsdale unit regarding prisoner Marsden. He was in the Lonsdale office and stated he had been assaulted.
I attended Lonsdale unit and spoke to prisoner Marsden. He stated there had been a disagreement between himself and prisoner Rainsford over a TV program. Rainsford had become angry and thrown prisoner Marsden into the cell table and also threatened him further. Prisoner Marsden was bleeding from the mouth and had a graze on the left side of his body.
I then spoke to prisoner Rainsford who stated he had had a disagreement with prisoner Marsden and bumped him into the cell table. Prisoner Rainsford was then escorted to the front by Prison Officer Nievaart.
I then interviewed the other two occupants of cell 13, prisoners Bowers and Miller, who stated there was an altercation between prisoners Rainsford and Marsden over a TV program. They said Rainsford wanted to watch the cricket and the other three did not as they did not watch sport in that cell. Prisoner Rainsford had only been in the cell for a few days and had tried to push them around. He always wanted his own way and when he didn't get it he became angry.
I then placed prisoner Rainsford in cell 3 lock up. Senior Prison officer Tulloch then photographed prisoner Marsden's injuries and returned him to his cell.
I submit this report for your information.
Cheryl Smith
Supervisor
H.M. Prison Ararat"
After reading that statement, Rainsford was asked by Culph whether he had any questions or anything to say, to which he replied, "No". Culph then said it was his opportunity to put his case and to call any witnesses.
According to Culph, Rainsford then made an admission. In his affidavit, Culph recorded the response in the following terms:
"He said that he admitted that he had picked up Prisoner Marsden by the scruff of the neck and had thrown him across the room. He said that he was provoked by Mr Marsden's attempts to improperly remove a television antenna from its proper place in the prison for which he said he had responsibility, and that was an act of provocation".
Culph told Rainsford that such provocation was slight. He asked Rainsford whether Rainsford could have walked away or reported the incident, and said to Rainsford there was an anti-bullying policy at the prison. Rainsford then said that he wanted to call witnesses. He had provided a written list of witnesses, naming the two prisoners, Bowers and Miller. In response, Culph said he would first talk to the prisoners to see if they were prepared to give evidence. Culph told Rainsford that he was doing so because he had no power to compel witnesses to give evidence. He said Rainsford replied, "No problems". He asked Rainsford to step outside the room while Culph spoke to the prisoners. In an affidavit, Culph said that he spoke to the prisoners, who declined to give evidence because were they to do so, it may, "come back on them later". He told them they were not obliged to give evidence, and they said they would not. Rainsford was then brought into the hearing room where Culph reported what the witnesses had said, to which Rainsford responded, "Yeah, that would be right", and shrugged his shoulders. In his evidence before me, Rainsford agreed that those events occurred and that he did respond as Culph had said.
Culph asked him what he wanted to do, and Rainsford said that he was not guilty, because Marsden had been removing the antenna lead and he was entitled to defend it. He said he was not guilty and that was all he wanted to say. According to Culph’s Affidavit, Culph then said: "That is no defence, as in line with the anti-bullying policy, he did not have the right to grab a prisoner by the scruff of the neck and throw him across the room to protect property. I said on his own admission there would be sufficient for a finding that the charge was proven".
In his evidence before me, Rainsford basically agreed with Culph's account. Rainsford said he told Culph that he was entitled to use "reasonable force to restrain someone from taking something that he is legally responsible for". Rainsford told me that he had agreed with Culph when Culph said to him, "Well, you admit you're guilty".
Culph said that after telling Rainsford that Rainsford’s own words at the hearing were sufficient to prove the charge, Rainsford then stated that he wanted to argue that there were mitigating circumstances. Culph told him that he found the charge of assaulting Marsden proved, and that he did not accept that reasonable force had been used, "when on his own admission he had picked up Prisoner Marsden by the scruff of the neck and had thrown him across the room". Culph told him there was no defence based on defending property.
Culph then announced that he would fine Rainsford $60.00 and rejected Rainsford's request that it be paid at $1.00 per week.
The grounds upon which judicial review is sought
In his grounds set out in the Originating Motion with which these proceedings commenced, Rainsford identifies the following matters as constituting errors of law:
"1)The Governor erred in due process of the Corrections Act, Sections 48-53.
(a) He failed to allow witnesses be called for the defence.
(b) He failed to call witnesses to support the charge, namely the informant, the alleged victim, medical evidence.
(c) He failed in not allowing the defence to cross-examine.
(d) He failed to supply a statement of complaint from the alleged victim.
(e) He failed to ensure that the prison visitor attended the hearing.
2)The Governor erred in law in finding the charge proven, under all the circumstances.
3)The Governor erred in hearing the charge as 44A, under Charge of a Prison Offence, as it should have read, 74A".
During the course of the hearing before me, and largely as a result of questions which I raised myself, an additional ground (f) was added, in the following terms.
"Taking into account irrelevant matters, namely, hearsay statements attributed to Prisoners Miller and Bowers".
The Scheme of the legislation: The conduct of a Governor’s hearing
By Section 53(2) of the Act, the Governor must allow the Prisoner at a hearing, "reasonable opportunity to call relevant witnesses and cross-examine the person conducting the case against the prisoner and witnesses called by that person".
By Section 53(4), upon being found guilty by the Governor, the Governor may impose penalties, ranging from a reprimand, to a fine not exceeding $100, and withdrawal of privileges for a period not exceeding 14 days for each offence. By Section 53(5) the payment of fines may be recovered by deduction from funds due to the prisoner.
The Corrections Regulations 1998 (hereinafter called “the Regulations”) make provision for the conduct of the Governor’s Hearing, in Division 2. Relevant regulations are as follows:
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.
Regulation 46 requires that the prisoner be given notice of the time and place of hearing and also written advice of the charge and the procedure to be adopted. Regulation 47 elaborates on the steps which must be taken at the hearing. That regulation reads as follows:
"47. Preliminary steps if prisoner present at the hearing
(1)If a prisoner charged with a prison offence attends the hearing of the charge –
(a)the prisoner must be informed of the procedure for the hearing; and
(b) the charge must be read to the prisoner; and
(c)the prisoner must be given an opportunity to state his or her plea.
(2) The charge must include –
(a) the name of the informant; and
(b)the details of the place of the alleged contravention; and
(c)the details of the relevant provision of the Act or Regulations allegedly contravened."
Regulation 48 is an important provision, by reference to which many of the complaints made by the Plaintiff need to be considered. That Regulation reads as follows:
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.
Under Regulation 52, once the guilt of the prisoner had been determined, the Governor must, among other matters, authorise in writing the payment of any fine imposed out the amount of money held on behalf of the Prisoner in the Prisoner Trust Account.
I turn now to consider, each of the grounds raised in the Originating Motion.
Ground 1(a): Failed to allow witnesses be called for the defence
The complaint here relates to the failure of the prisoners Miller and Bowers to give evidence on behalf of Rainsford. Rainsford had give written notice that he wanted to call them to give evidence. Although the ground is expressed in terms suggesting that Culph actually prevented the calling of these witnesses, Rainsford does not dispute that he agreed with Culph’s proposal that he first speak to them, in Rainsford’s absence, and ask them if they wanted to give evidence. Nor does Rainsford dispute that when he was told that they declined to give evidence he accepted that that was so. The real complaint seems to be that, by talking to the proposed witnesses, Culph may have influenced them not to give evidence.
The procedure adopted by Culph in speaking to the two prisoners, and doing so in the absence of Rainsford, was obviously one which could give rise to suspicion on behalf of a prisoner, facing a charge, that witnesses had been improperly influenced by the Governor. Culph, however, was placed in a difficult situation. Although the legislation gave Rainsford the right to call witnesses in his defence, Culph had no power to compel persons to give evidence. The legislation made no provision for witnesses to be compelled to give evidence. Furthermore, whilst Culph had an obligation to ensure that the rights of the accused prisoner were respected, he also had an obligation to other prisoners, imposed by s.20(2) of the Act. That obliged him, as an officer in charge of prisoners, to “take all reasonable steps for the safe custody and welfare of the prisoners.” Also s.20(1) imposed an obligation “to take all reasonable steps for the security of the prison or part of the prison”.
In Binse v Williams[1] Charles JA, with whom Tadgell and Callaway JJ agreed, held that s.20(1) made the Governor responsible “for the management, security and good order of the prison and the safe custody and welfare of the prisoners”, and that s.20 (2) imposed a positive obligation on the Governor to take all reasonable steps for the welfare of prisoners. Culph said, and I accept, that in speaking to the prisoners in the absence of Rainsford he was motivated by concern for the welfare of the two other prisoners.
[1][1998] 1 VR 381, at 392
Although Rainsford said that he wanted the two prisoners called, there was nothing to suggest, at all, that they had indicated their willingness, let alone enthusiasm, to so participate. To the contrary, the evidence given by Smith would have suggested that they were most unlikely to be willing witnesses. Given that Rainsford had already indicated that, at best, he was only disputing the degree of force which he had used, and was asserting that he had been provoked by Marsden and had an entitlement to use physical force, it is doubtful whether the prisoners really had anything relevant to contribute. It seems highly probable that Rainsford would have been compelled to resort to cross examination of the proposed witnesses - if he was allowed - if there was to be any prospect that they could have assisted his cause. However, Rainsford had a right to call witnesses, even if that proved to be an unwise decision. The question is whether the action taken by Culph, not objected to at the time, amounted to a denial of Rainsford’s rights under the legislation, or to have otherwise constituted a denial of natural justice.
In a most interesting article by Matthew Groves[2], which examined the law relating to the conduct of prison hearings throughout Australia - and which reviewed Australian and international case law on the relevant issues - the learned author considered a situation akin to that which Culph had to address. The author observed that cross-examination in such situations may exacerbate conflict between prisoners. He noted, too, that the calling of witnesses can also cause great inconvenience, delay and expense. He noted that prisoners called to testify might rightly complain that they had been placed in an awkward position. Noting that there was no power to compel persons to give evidence, and that that amounted to a significant impediment to the effectiveness of the right to call witnesses, he nonetheless suggested that the legislative injunction to conduct the hearing with as little formality, and as expeditiously, as possible, meant that the right to call witnesses might have to give way to other considerations, in some situations. He concluded that a review of the authorities suggested that “where the nature or purpose of the evidence of an intended witness is not reasonably apparent, in the light of the circumstances of the alleged offence, nor explained by a party, a court will be reluctant to hold a refusal to allow the witness to be called is a denial of natural justice”[3].
[2]“Proceedings for Prison Disciplinary Offences: the Conduct of Hearings and principles or Review”, by Matthew Groves, Monash University Law Review, Vol 24, No2, 1998, page338, at 374-379.
[3]Op cit, at p 379.
The short answer to the complaint made in this ground is that Rainsford was not denied the right to call witnesses for the defence. Of course, had the proposed witnesses been intimidated by the Governor, so as to decline to give evidence when they otherwise would have wished to do so, there would have been a denial of the right to call the two prisoners as witnesses. However, there is no evidence, at all, to suggest that that was the case here and, indeed, Rainsford did not himself, either at the hearing or before me, seriously suggest that that had been the situation.
Regulation 48(e) provided that the prisoner must only be given “a reasonable opportunity” to present his case, including calling “relevant witnesses”. In my view, Rainsford was not denied a reasonable opportunity to call two prisoners as witnesses.
Ground 1(b): The Governor failed to call the informant, the victim, and medical evidence
The Act does not speak of “the informant”, although the regulations do so (in Regulation 48, and elsewhere). Who is the ”informant” is not specified, but Regulation 47(2)(a) requires that the charge name "the informant", and in this case Prison Office Nievaart was shown as the informant. Nievaart had little to do with the matter under investigation, and would have had very little evidence to give, had he been called. Rainsford did not suggest how Nievaart's evidence might have been of assistance to his case. The person who conducted the investigation, and who, under s.50(5)(d), was the person who was authorised to charge the prisoner, namely, Smith, would seem to me to have been a more appropriate person to be named as informant.
Reg 48(a) required that “the informant must present evidence to support the charge”. The regulation did not compel the informant to be a witness, although Reg 48(c) implied that he would be. That regulation stated that the prisoner was to be given a reasonable opportunity “to cross examine the informant”. The informant, Nievaart, was not, in fact, present at the hearing, and Culph told Rainsford that that was so, before the hearing commenced. Rainsford made no complaint to Culph about the absence of the informant, and he conceded before me that at no time did he state that he wanted the informant to be called as a witness. In my view, the obligation under Regulation 48(c) was met.
In my view, it would not be a proper course were a person to be named as informant who had no relevant evidence to give, as a device to deny efficacy of the right of cross-examination given by Regulation 48(c). The terms of Regulation 48(c) suggest to me that it would normally be the case that the person whose allegations were to be used against the prisoner should be the informant, and should be available for cross-examination. That conclusion is given greater weight by reference to s.53(2) of the Act, which also provides for the right of cross-examination, but in slightly different terms to those used in Reg 48(c). Section 53(2) reads:
“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.” (My emphasis)
I do not conclude that in this case the motivation for having someone other than Smith named as informant was a deliberate, and inappropriate, strategy. I will later deal with an allegation made by Rainsford that Smith herself was not present, at all, at the hearing. It is sufficient to note, at this point, that I have no doubt that Smith was present, gave evidence, and was available for cross examination, but Rainsford did not seek to cross examine her, no doubt expecting that Marsden, and perhaps others, would give evidence.
Rainsford agreed, in his evidence before me, that at no time did he request that medical evidence be produced. Rainsford suggested to me that although he had not asked that medical evidence be called he expected that it would be. He was not willing to concede that the injuries suffered by Marsden were necessarily caused by him (although, in evidence, he accepted that that was possible). I was not actually informed whether there had been any medical treatment given to Marsden, but I will assume that there had been.
I do not consider that there was any breach of any legislative obligation, or breach of any principle of natural justice, disclosed by the complaint in this ground with respect to the absence of medical evidence or the absence of the informant.
As to the absence of Marsden, the alleged victim, Rainsford did not request that he be called as a witness. Rainsford did not develop any argument before me as to his complaint concerning the absence of Marsden. The position with Marsden, may, however, be thought to be somewhat different to that of the informant and the medical witnesses, about whose absence Rainsford also complained in this ground upon which he sought judicial review.
Although he did not expressly say that this was the case, it may well have been that Rainsford simply assumed that Marsden would be called as a witness. That would not have been an unreasonable expectation. Rainsford may well have wanted to cross-examine him. Indeed, having observed his approach to the case, in the hearing before me, I suspect that Rainsford would have chosen to cross-examine Marsden whatever had been the effect of his evidence. As Rainsford made clear, before me, he was not prepared to concede that Marsden’s injuries were caused in his struggle with Marsden, and had he cross-examined Marsden he may have also pressed his complaint that Marsden had provoked him, or might have sought to minimise the extent of any physical contact between them. He would have been entitled to seek to make whatever points he could. The absence of Marsden denied him the chance to make those points through cross-examination of Marsden.
As I have said, Rainsford did not develop this ground of appeal. Whilst, making allowance for the fact that he was not legally represented – a considerable disadvantage in a case such as this - it seemed to me that it was a ground which Rainsford regarded as less important than others, which he did develop in argument. However, taking the situation at its worst, from his point of view, he was denied the chance to cross-examine the alleged victim. That disadvantage was made more serious by the fact that Marsden’s account of the incident was given to the Governor, as hearsay evidence, through the reading of the investigating officer’s report.
Regulation 48(a) stipulates that the informant “must present evidence to support the charge”. Regulation 48(b) stipulates that the informant must be given a reasonable opportunity to call relevant witnesses. The informant had the opportunity to call Marsden, but chose not to do so. In some circumstances that might be to the advantage of the charged person, but given that a hearsay account of Marsden's complaint was presented to the Governor there was no advantage to Rainsford in Marsden's absence.
In his evidence before me, Culph said that in reaching his conclusion that Rainsford was guilty of the offence he did not, in fact, rely on the statements attributed to Marsden, Miller or Bowers in the report read out by the investigating officer, Smith. That might be difficult to accept, in some circumstances, but I do accept that Culph was being truthful in giving that evidence. Although he did not concede that his statements amounted to an admission of guilt of the offence, many of the statements which Rainsford agrees he did make from the moment when he was asked to plead to the charge did amount to admissions, and Culph said he regarded them as such. In those circumstances, it is quite believable that Culph acted solely on Rainsford’s own admissions. Indeed, he told Rainsford during the hearing that he was acting on Rainsford 's own statements, and was treating them as admissions, and Rainsford agrees that Culph said so.
In summary, Rainsford did not ask for Marsden to be called as a witness, Marsden was not a witness called by the informant, and the Governor, in reaching his decision, did not rely upon Marsden’s hearsay statement. In those circumstances, I do not consider that it has been demonstrated that there was a breach of Regulation 48. Nor do I conclude that Rainsford was denied natural justice by the failure of Marsden to be called as a witness.
Even if there were a technical breach of the regulations by the failure to call Marsden (and I do not conclude that there was any such breach), it would not have been such as to justify the grant of relief in the nature of certiorari, because there is no evidence that Rainsford was, in fact, disadvantaged by the absence of Marsden. That need not always be the case in hearings of this kind. I should make it clear that I would not regard it as proper that hearings might be conducted, as a matter of course, without calling the alleged victim of a prison offence. The terms of s.45 emphasise that such a hearing should be conducted with expedition and without formality, and that the Governor is not bound by the rules of evidence. That means that hearsay evidence could be admitted. It does not, however, mean that only hearsay evidence should be admitted, nor that it should be admitted as a matter of course.
In my view, it is the assumption of the draftsperson of regulations 48(a) and (b) that the informant would call viva voce evidence, although hearsay evidence would also be admissible. It would not be a proper exercise of the powers of a Governor, in the conduct of a hearing, or of those officers prosecuting the case, to simply adopt a strategy of naming as informant a person who had no relevant knowledge of the events, and then not calling the victim, but, instead, introducing his evidence as hearsay, so as to avoid any cross examination by the accused prisoner. I do not conclude, however, that that was a tactic deliberately employed here. Were I to have concluded otherwise, the outcome of this case may well have been different[4].
[4]The courts will need to maintain scrutiny of this procedure. I note that in Henderson v Beltracchi, a decision of Mandie J delivered on 9 June 1999, and involving a disciplinary hearing at a private prison, his Honour observed that a request to call the informant had been denied on the basis that he was not a relevant witness. His Honour held that the named informant was “a designated or nominal informant, not a relevant witness . . .”
In making the comments I have, as to the absence of Marsden from the hearing, I stress that there could be quite proper reasons why the victim of an assault, or other prison offence, (or other witnesses), might not be called. The requirement of expedition might be one factor, and so too might be the considerations addressed earlier, of the welfare of the victim and other prisoner witnesses. The alleged victim of a prison offence is no more compellable as a witness in a Governor’s hearing than is any other prisoner. Whilst the courts must carefully scrutinise the conduct of prison disciplinary hearings which are the subject of complaint, so as to ensure that prisoners are not denied those civil rights to which are entitled under relevant legislation and at common law, the Courts should also be slow to intrude into the prison disciplinary process unless clear grounds exist for intervention. The dynamics, dangers and, at times, irrationality of a prison setting are far removed from the relative tranquillity of the Supreme Court, and the court should be slow to second-guess trained and (in this case) senior prison officers, as to the weight to be given to various factors which might be relevant to the decision as to the calling of witnesses.
In this case, I was not told that it was a consideration of his welfare which led to the decision not to call Marsden. Indeed, I was not told whether he had been invited to give evidence. If he was not asked, or, if asked, was not pressed to do so by prison officers, no doubt considerations of his welfare would have been taken into account, and properly so. Whilst there may have been legitimate considerations for not calling the victim it should not, however, have simply been assumed that he would not be called. If he was not to be called, then that was a decision which needed to be taken after careful thought, having regard not only to the welfare, and the entitlement of the witness to decline to give evidence, but also the rights of the prisoner charged with the offence. Given that it was the Governor who had to decide the case, the decision to call witnesses as part of the informant’s case, or to approach people to be witnesses, should be one taken by the informant, or another senior officer, and not by the Governor himself, although there would be nothing wrong in the Governor checking with a proposed witness, at the hearing, that he was willing to give evidence.
Ground 1(c): Failure to permit cross-examination
Section 53(2) and Reg 48(c) both impose an obligation that the prisoner-defendant is given a reasonable opportunity to cross-examine witnesses.
This ground is not made out. Whilst Rainsford, curiously, disputed that it was Smith who gave evidence, rather than another officer, he did not challenge Culph’s evidence that at the conclusion of the evidence of the one witness who gave evidence, Rainsford was asked if he had any questions, and he said he did not. There is no evidence, at all, that he was refused the opportunity to cross-examine the witness.
Ground 1(d): Failure to supply a statement of the alleged victim
There is no section, or regulation, which requires that a statement of an alleged victim be supplied to the accused person. Section 50(2) requires that the investigating officer must give the prisoner an opportunity to make an explanation for the alleged offence, before deciding whether to lay a charge. That must involve informing the prisoner of the allegation against him, at least in broad terms. In this case, there was no written statement taken from the victim, Marsden.
In its terms, the complaint made under this ground must fail, in that there was no obligation that a statement of the victim be supplied to Rainsford. Insofar as the real complaint is that Rainsford was denied procedural fairness by not being given adequate notice of the case that he was to meet, I do not consider that he was disadvantaged in that way. The complaint made by Marsden was a simple one. Although, as emerged in the hearing before me, there was some dispute as to whether Rainsford had thrown Marsden across the cell - as opposed to having pulled him back into the cell, and then wrestled him - the areas of dispute were minimal. I do not doubt that Smith explained to Rainsford the substance of the case made against him when, as investigating officer, she investigated the case and asked for his reaction to Marsden’s complaint.
Ground 1(e): Failure to ensure that the Prison Visitor attended the hearing
The Act provides, at s.35, for the appointment of “official visitors”. By s.47(1)(j) every prisoner has a right to make complaints concerning prison management to the official visitor. Nowhere in the Act is it provided that the official visitor should be in attendance at a Governor’s hearing. Rainsford told me that in adding this ground he had simply assumed that there was such provision. Whether the official visitor was entitled to attend the hearing, had he or she chosen to do so, I do not need to decide. Rainsford did not ask the Governor, nor approach an official visitor with a request, that an official visitor be in attendance.
There is no substance in this ground.
Additional Ground 1(f): Taking into account irrelevant matters, namely, the hearsay statements of Miller and Bowers.
As indicated earlier, this ground was added primarily as a result of matters I raised during the course of the hearing of the case. I have substantially dealt with the issues raised under this ground when dealing with earlier grounds.
In his evidence before me, Culph said that he did not have regard to the hearsay statements of Miller and Bowers in finding Rainsford guilty, but relied, in fact, on the admissions made by Rainsford at the hearing, and on the photographs of the injuries to the victim. I accept Culph's evidence as to that, and I believe that Rainsford did make admissions (as he did in the hearing before me). Whether the admissions made by Rainsford were, as Culph recalled, that he grabbed the victim "by the back of the neck and hurled him across the room", or merely that he grabbed him by the back of his collar and pulled the victim back into the room and then wrested with him (as he said in evidence before me), may be open to doubt. Culph said he was not now certain of the words used by Rainsford. It is quite clear, however, that Rainsford had admitted assaulting Marsden. He does not dispute that he made such an admission. He quibbles only with details of the manner of assault. His primary contention was that he was entitled to use reasonable force to "defend" property, a contention which it was open to Culph to reject.
There is no doubt that Regulation 45 permits hearsay evidence to be given at such a hearing. Reg 48(c) requires that the prisoner be given a reasonable opportunity to cross-examine “the informant’s witnesses (if any)”. That anticipates that there may be no witnesses called, at all, and, thus, anticipates the possibility that the case presented might be entirely based on hearsay statements.
As Reg 45(c) stipulates, the Governor is not bound by the rules of evidence, but may be informed on any matter in such manner as he or she thinks appropriate. The authority given to the Governor to determine the processes he or she will adopt should not be read down by the court, save that the governor’s power in this regard must be consistent with the provisions of the Act and Regulations, and must not constitute a breach of relevant principles of procedural fairness. As Evatt J observed, of a provision such as Reg 45(c), such a provision “does not mean that the rules of evidence may be ignored”[5].
[5]R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, at 256.
The mere fact that evidence is hearsay, even in a court of law, does not mean that it is inadmissible, if received without objection: Radford v R[6]. Thus, in this case, the hearsay evidence could be tendered, and be acted upon by the Governor. For the reasons stated earlier, however, it is important to stress that whilst in determining the manner in which he or she will be informed - in the exercise of his or her discretion under Reg 45(c) - the Governor might accept hearsay evidence, it is not the best and most reliable evidence on which to base decisions which can have important consequences for an accused prisoner[7]. In his evidence before me Culph accepted that to be so, and said that that was, in effect, why he chose not to rely on the hearsay statements contained in Smith’s report, but to act on Rainsford’s own statements at the hearing. In essence, Culph spelt out to Rainsford that that was, in fact, how he was proceeding.
[6] (1993) 66 A Crim R 210, at 232-4, per Phillips CJ and Eames J.
[7]See R v Board of Visitors of Hull Prison ; Ex parte St Germain (No.2) [1979] 3 All ER 545, at 552-3, per Geoffrey Lane LJ. The use of hearsay evidence where there is no opportunity for the prisoner to cross examine the source of the information has been described as the “most obvious” case where the use of hearsay evidence would offend the right to a fair hearing: see M.Groves, supra, at 388-9.
I should add, that having allowed - if not positively encouraged - Rainsford to add this new ground so as to allow examination of the appropriateness of the introduction of hearsay evidence through the evidence of Smith, Rainsford then somewhat complicated the situation by advising that he wished to dispute that Smith attended the hearing, at all. He suggested that it was someone else who was the sole witness in the hearing, and not Smith. It was not made clear whether he accepted that that person had read Smith’s report of her investigation, so that the hearsay evidence was therefore, introduced through him, or whether his contention was that the hearsay evidence was not introduced, by anyone, at all. If it was the latter, then the new ground of appeal was itself irrelevant; if it was the former, then the question remained to be considered, whoever it was who introduced the hearsay evidence.
I have no doubt that Smith did give the evidence which she claimed on oath before me that she had given. How Rainsford had got that wrong I do not know. Initially he was anxious to call Marsden, Miller and Bowers to establish that Smith did not give that evidence. He had subpoenaed them to attend the Supreme Court and they had been transported from Ararat to that end. However, given that none of them had been present for the Governor’s hearing, it is difficult to see how they could have added much to the issue, in any event. As it was, Rainsford decided not to call them. I should say that they had been subpoenaed not just for that purpose, but under a misapprehension held by Rainsford that these proceedings would entail a complete re-hearing of the charge which he had faced, rather than being confined to examination of questions of law.
I conclude that Ground 1(f) has not been made out.
Ground 2: The Governor erred in finding the charge proved.
As noted in the last paragraph, Rainsford misapprehended the nature of these proceedings. An application under Order 56 of the Supreme Court Rules, for judicial review in the nature of certiorari, does not permit the re-hearing of the original hearing: Craig v South Australia[8]. What these proceedings are concerned to examine is whether there has been error in the process which was undertaken, and whether there has been a denial of natural justice, or a failure to comply with the provisions of the legislation.
[8]Craig v State of South Australia (1995) 184 CLR 163, at 175.
The only possible basis on which this ground could succeed would be if it was shown that there was no evidence, at all, on which a reasonable tribunal, acting reasonably, could have come to the conclusion which it did: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation[9]. That is a very high test for judicial review, and can not possibly be met in this case.
[9][1948] 1 KB 223, at 228-9.
In his affidavits filed in this case, Rainsford deposed that he got into an argument with Marsden over which television program should be watched, and Marsden then pulled out the television aerial cord and was about to leave the cell. As he was about to do so, Rainsford deposed, "I grabbed the Prisoner to prevent him from leaving the cell with the cord, as I was responsible for the cord. He refused to give me the cord, so I tried to take it from him, but he chose to wrestle with me for the cord, which lead to him falling to the ground, at which time he dropped the cord in question, so I picked the cord up and went back to the television and replaced it; at the same time the other prisoner, went and told the prison officers that I assaulted him". In his evidence before me Rainsford said that he grabbed Marsden by the collar of his shirt, near his neck, and pulled him backwards into the cell where he then wrestled with Marsden on the floor for some minutes. Rainsford is a large man who looks very fit and strong. The photos of Marsden show him to be a person of very slight stature, and, by appearance, possibly somewhat timid of disposition. Rainsfrod did not dispute that in the struggle Marsden may have struck the table in the cell, and may have sustained the injuries shown on the photographs.
Rainsford's account of what occurred in the Governor's hearing did not differ markedly from that of Culph. He said that after being informed that the two witnesses did not wish to give evidence, he then pleaded his case, "that under common law, I am permitted to use reasonable force to restrain someone from removing something for which I am legally responsible for, as I didn't assault him, nor did I threaten him".
There was ample evidence on which the Governor could have come to the conclusion that Rainsford was guilty of the offence with which he was charged, and this ground must fail.
Ground 3: The Charge was brought under REG.44A instead of REG.77A
In his last of three Affidavits, responding to affidavits of Culph and Smith, Rainsford complained that the Charge Form which was presented to him was, "null and void", on the basis that it was a form which related to the legislation as it had existed prior to the repeal of the Corrections Regulations 1988, and their replacement by the Corrections Regulations 1998.
Furthermore, on the charge sheet which was handed to Rainsford the handwritten statement of the offence included the notation that the charge was brought under “44A”. The word “Regulation” was not used. The printed portions of the form, however, after providing for the place of the offence to be inserted on the form, then stated that “this is an offence under Regulation 74 of the Corrections Regulations 1988”. As stated earlier, the prison was continuing to use forms which had been printed for use under the former regulations. The charge which was brought against Rainsford would formerly have been under Reg 74 of the repealed 1988 regulations, but was now brought under Reg 44(1)(a) of the 1998 regulations. Thus, the printed words in the form were inapplicable, and the handwritten words referred to Regulation 44A, instead of 44(1)(a).
Regulation 47(2)(c) requires that the charge must include “the details of the relevant provision of the Act or regulations allegedly contravened”.
Counsel for the Governor gave very little attention to this ground, submitting that it was a trivial complaint and that it needed to be assessed against the requirement of Reg 45, i.e. that the proceedings be conducted with as little formality as possible. Although it would be easy to simply dismiss this complaint out of hand, it is not a trivial matter, in my opinion.
The fact that the regulation makes it mandatory that the relevant provision be specified is important in itself. Although these proceedings were much more informal than would be the case were they heard in a court, the fact that there was no legal representation and that the proceedings were being dealt with expeditiously and informally meant that there should be greater, not less, emphasis on ensuring that the accused prisoner was given a fair hearing. By s.53(3) the prisoner has a right to be represented by another prisoner, if the Governor approves. If prisoners are to represent themselves or to avail themselves, perhaps, of the services of a “cell block lawyer”, they are entitled, at least, to know precisely what charge they have to meet. It could be, for example, that a prisoner might prepare a defence having regard to the provisions set out in a copy of the 1988 regulations, not appreciating that those provisions were different to the provisions relevant to his charge. I agree with the learned author, Matthew Groves, that the provision of adequate notice of the charge which the prisoner has to meet is of “fundamental importance” to a fair hearing[10].
[10]M.Groves, supra, at 359; see too R v Small Claims Tribunal; Ex parte Cameron [1976] VR 427, at 432, per Anderson J, who described proper notice as being a “cardinal principle”.
I accept, and it was not disputed by Rainsford, that before the hearing commenced the Governor read out the charge and told him, correctly, that it was brought under Regulation 44(1)(a). Rainsford did not suggest that he was misled in any way by the misdescriptions on the charge sheet. He contended that the errors meant that the charge was “null and void”, even if he was not misled.
It was unfortunate that an out of date charge form was used, which at several places, (including its heading), referred to the 1988 regulations. Although the written words of the charge and the reference to “44A” went part of the way to cure the deficiencies, there was a potential breach of Regulation 47(2)(c). However, even if there was a breach of regulation 47(2)(c), it would not follow that the plaintiff should be granted relief in the nature of certiorari.
Certiorari is a discretionary remedy, unless it might be said that the defect goes to jurisdiction. It is a difficult question whether the procedural defect, here, is one which goes to jurisdiction. The question was not argued before me. If the procedural step is a pre-condition to the exercise of the power to conduct the hearing then it would be a defect which vitiates the orders made: Craig v South Australia[11]; City of Enfield v Development Assistance Corp[12].
[11] (1995) 184 CLR 163, at 177-8.
[12](2000) 74 ALJR 490, at 496.
In R v Thomas; Ex parte Sheldons Consolidated Pty Ltd[13], Kaye J held that the requirement that reasonable notice of a proposed conciliation hearing be given to all interested parties was a condition precedent to jurisdiction, and would justify a grant of prohibition. A defect which concerned a matter which was ancillary to jurisdiction, or was merely incidental to jurisdiction would not justify a grant of certiorari: Glenville Homes Pty Ltd v Builders Licensing Board[14]; R v Bjelke-Petersen; Ex parte Plunkett[15]. A defect which related purely to a matter of procedure would not justify a grant of relief, but it is not always clear what falls into that category: see R v Evatt; Ex parte Master Builders Association (NSW)[16]; Parisienne Basket Shoes Pty Ltd v Whyte[17]; Posner v Collector for Interstate Destitute Persons (Vic)[18].
[13][1982] V.R. 617, at 625, per Kaye J.
[14][1981] 2 NSWLR 608, at 616, per Glass JA.
[15][1978] Qd R 305, at 311, per Wanstall CJ.
[16](1974) 132 CLR 150, at 155, where a grant of a right of appearance to a group which was not a registered industrial organisation was held not to be a failure of a condition precedent for jurisdiction, but a mere procedural error.
[17](1938) 59 CLR 369, at 385, per Starke J, where a time limit for the laying of an information was held to not be an essential pre-condition to jurisdiction.
[18](1946) 74 CLR 461, at 476-7, per Starke J, where a requirement of personal service of a complaint was held to be a mere procedural irregularity.
The defect here is not one amounting to a total failure to provide details of the relevant provision of the regulations under which the charge was brought. Arguably, the relevant regulation was identified as being Regulation 44 - by virtue of the handwritten “44A” which appeared alongside the written statement of the charge. If so, it was misdescribed as 44A, not 44(1)(a). There was also potential confusion caused by not giving the title of the 1998 regulations, and giving, instead, the title of the 1988 regulations, but those additional and erroneous references to the 1988 regulations neither confused Rainsford, nor displace the fact that reference to regulation 44 was, in effect, made in the charge sheet.
Given the fact that there was potential (but, in this case, not actual) confusion created by the additional erroneous words on the charge sheet, but not a complete failure to comply with the requirement of Reg 47(2)(c), I do not conclude that there has been a failure to comply with a procedural requirement which constitutes a pre-condition to the conduct of the hearing. If, however, I was wrong about that, it would be necessary to consider whether I could, or should, refuse to grant relief in the nature of certiorari by reference to a discretion which, so counsel for the Governor submitted, I retained.
Mr Shepherd submitted that I did retain such a discretion to refuse relief in the nature of certiorari even if I found that the grounds of complaint had been made out. However, in the case where the defect goes to the jurisdiction of a tribunal, there has been doubt expressed whether the court does retain any discretion, at all, to deny relief[19]. Nonetheless, where a person has participated in the proceedings, knowing of the defect, then a discretion to refuse certiorari has been applied: see R v Lilydale Magistrates’ Court; Ex parte Ciccone[20], per McInerney J. I would not, however, conclude that this was the case here. Although I am satisfied that Rainsford was not, in fact, misled by the errors on the charge sheet, I do not conclude that he knew them to be errors at the time of the hearing, nor that knowing they were errors he intentionally sat by while the hearing proceeded, with a view to later challenging the decision, should he not like the outcome of the hearing (as had been the situation in case with which McInerney J was concerned).
[19]See Aronson & Dyer, Judicial Review of Administrative Action, 1996, at p. 759.
[20][1973] VR 122, at 131-4.
It has been held that in the case of a complaint that concerned the general management of a prison, rather than the conduct of disciplinary proceedings, there must be a clear infringement of the Act or Regulation if the court is to intervene with certiorari: Rich v Groningen[21]. The same demand for patent error to be demonstrated has not been expressed in the case of the review of disciplinary proceedings, but it is nonetheless relevant, in my opinion, if the breach of the regulation, in this instance, appears to be partial only, and to be more of a technical kind, rather than having actually misled the prisoner or caused any discernible disadvantage to him in the defence of the charge.
[21](1997) 95 A Crim R 272, at 274-5, per Gillard J; see, too, Bromley v Dawes (1983) 34 SASR 73;
R v Classification Committee, Ex parte Finnerty (1980) VR 561
Mr Shepherd, for the Governor, submitted that the failure to follow a provision of the Act or Regulations, even if amounting to total non compliance, would not necessarily lead to a grant of certiorari if the plaintiff could not show that the departures from the mandatory legislative requirements deprived him of the possibility of a successful outcome at the hearing. If the outcome, either as to penalty or finding of guilt, must inevitably be the same, if the decision was set aside and the matter was then re-heard, it would be inappropriate to grant relief: Stead v State Government Insurance Commission[22]; Henderson v Beltracchi & Others[23]. However, the courts will not use this consideration as a reason for refusal of relief unless the futility of the order is clearly established[24].
[22](1986) 161 CLR 141, at 145.
[23][1999] VSC 135, Mandie J
[24]Aronson & Dyer, supra, at 761.
If there is to be a re-hearing it is inevitable that Rainsford would be again convicted, because his own admissions are sufficient to prove the offence. However, I was not told that he would certainly be prosecuted again, should this application succeed, and I am not prepared to assume that he could be, or would be.
When dealing with prison disciplinary proceedings, the courts have been cautious in exercising their discretion to grant relief by way of judicial review: see R v Deputy Governor of Parkhurst Prison; Ex parte Leech[25]; Maybury v Osborne[26]. As the learned author, Michael Groves, amply demonstrates in his article, that caution may at times have been inappropriate, but the present case does not seem to me to be one justifying intervention. For the reasons stated above, I am not persuaded that such procedural error has been established, if at all, as would justify relief by way of certiorari.
[25][1988] AC 533, at 566, per Lord Bridge, at 581-583, per Lord Oliver.
[26][1984] 1 NSWLR 579, at 588-9, per Lee J.
Conclusion
The courts need to be vigilant in examining complaints about prison disciplinary hearings. As is well illustrated in the article by Michael Groves[27], the reluctance of courts, until comparatively recent years, to intervene in situations of apparent injustice, on the basis that prison disciplinary matters are best left to the prison officers, produced unfortunate results, as was noted by the Royal Commissioner in the 1978 report into New South Wales Prisons[28].
[27]M.Groves, supra, at 349-356.
[28]J.F.Nagel, Report of the Royal Commission into New South Wales Prisons, NSWGP, 1978, Ch 25.
Sometimes judicial scrutiny leads to a clear conclusion that there has been a denial of natural justice in the conduct of such hearings. In R v Yatala Justices; Ex parte Robinson[29], for example, Zelling J described what had there occurred as being “about as much a travesty of a summary hearing as it is possible to imagine”. The present case, however, seems to me to fall at the other extreme, but in so concluding I am influenced by the fact that the prisoner was really not disputing the allegation of assault, only its severity, and was mainly wanting to highlight the conduct which he said provoked its cause. In making those observations I recognise, however, that caution is required. Rainsford was unrepresented both before the Governor and before me. Notwithstanding his abundant self confidence, his skills as an advocate were limited. The principles of law relating to judicial review are quite complex and technical, and I did not have the benefit of receiving cogent submissions on Rainsford’s behalf.
[29][1981] 28 SASR 276, at 280, per Zelling J, with whom King CJ and Jacobs J agreed..
I note that in one of his Affidavits, Rainsford complained about the amount of the fine, but that is not a matter which is raised before me by any of the grounds of complaint in this proceeding. The fact that the penalty, by way of $60.00 fine, might seem low is somewhat misleading. Whilst it may be low in the context of the criminal justice system, in the context of prison earnings it is a significant sum, and is more than half the maximum fine which could have been imposed. Furthermore, although no specific complaint is now made as to this, he also suffered a loss of some visitor privileges. Thus, the opportunity to adequately present a case with respect to penalty is itself important. However, whilst making allowance for those considerations, in the circumstances of this case I am not persuaded that elimination of the conduct of which complaint is made would have been likely to have produced a different outcome. In my opinion, the deficiencies which I have identified in the proceedings are not such as to justify the grant of judicial relief in the nature of certiorari.
Finally, I note some other matters raised by Rainsford during the hearing before me. He contended, that only persons who were legally qualified should be entitled to conduct hearings for prison offences. That is a matter for the legislators, not for the court. He complained, too, that the conduct of such hearings constitutes a breach of the International Covenant on Civil and Political Rights, but that covenant is not part of domestic law in Australia[30].
[30]Sinanovic v R (1998) 72 ALJR 1050; Minogue v HREOC (1999) 166 ALR 129.
I conclude that the plaintiff’s application for judicial review should be dismissed.
I will hear the parties as to the terms of the orders which I should make, and as to any applications which they wish to make.
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