Re Allen
[2006] WASC 198
•5 SEPTEMBER 2006
RE ALLEN; EX PARTE MOCANU [2006] WASC 198
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 198 | |
| 05/09/2006 | |||
| Case No: | CIV:1584/2006 | 23 AUGUST 2006 | |
| Coram: | McKECHNIE J | 23/08/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Order absolute for writ of certiorari to quash the decision of the visiting Justice | ||
| B | |||
| PDF Version |
| Parties: | MARIANA ALEXANDRINA MOCANU JANETTE ALLEN COLIN BEAUCHAMP MARIA CHATWIN |
Catchwords: | Administrative law Application for certiorari Prisons and prison discipline Charge of offence Visiting Justice Obligation to follow regulations |
Legislation: | Prisons Act 1981 (WA) Prisons Regulations 1982 (WA) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
Application for a writ of certiorari against COLIN BEAUCHAMP, a Justice of the Peace visiting Bandyup Women's Prison
Application for a writ of certiorari against MARIA CHATWIN, Superintendent of Bandyup Women's Prison
MARIANA ALEXANDRINA MOCANU
Applicant
AND
- JANETTE ALLEN
First Respondent
COLIN BEAUCHAMP
Second Respondent
MARIA CHATWIN
Third Respondent
Catchwords:
Administrative law - Application for certiorari - Prisons and prison discipline - Charge of offence - Visiting Justice - Obligation to follow regulations
Legislation:
Prisons Act 1981 (WA)
Prisons Regulations 1982 (WA)
Result:
Order absolute for writ of certiorari to quash the decision of the visiting Justice
Category: B
(Page 3)
Representation:
Counsel:
Applicant : Mr N D C Dillon
First Respondent : Mr B P King
Second Respondent : Mr B P King
Third Respondent : Mr B P King
Solicitors:
Applicant : Hammond Worthington
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
Third Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 4)
1 McKECHNIE J: The applicant is a sentenced prisoner. She sought orders nisi for writs of certiorari against the first respondent, the Superintendent of Boronia Pre Release Centre for Women; the second respondent, a Justice of the Peace visiting Bandyup Women's Prison and; the third respondent, the Superintendent of Bandyup Women's Prison.
2 On the day of hearing the applicant discontinued proceedings against the two Superintendents, the first and third respondents.
3 Mr King sought and obtained leave to represent all respondents as a person interested and consented to an order for discontinuance in respect of the first and third respondents, with no order as to costs.
4 On 10 April 2005 the applicant was charged with threatening behaviour towards a prison officer. The charge was heard by the second respondent who was a visiting Justice at Bandyup Prison on 18 April 2005. The applicant was convicted and a penalty of 7 days in confinement was imposed.
5 The offence alleged against the applicant was under the Prisons Act 1981 (WA) s 70(h) and was able to be dealt with as a minor prison offence (s 73). By the Prisons Act s 75 the visiting Justice was required to determine the matter in accordance with the procedure prescribed by Regulations.
6 Prisons Regulations 1982 (WA) reg 66 and reg 67 set out the procedure as follows:
"66. Determination of prison offences
Where a prison offence is dealt with before the superintendent or a visiting justice and the prisoner charged denies the truth of the charge, the procedure subject to section 76 of the Act shall be as follows -
(a) the prosecuting prison officer shall state the case against the prisoner and call any witnesses in support of the charge;
(b) the superintendent or visiting justice may take evidence on oath, affirmation or otherwise at his discretion;
- (c) the prosecuting prison officer shall conduct the examination in chief of each witness and the prisoner may cross-examine each witness;
(d) the prosecuting prison officer shall be permitted to re-examine each witness on matters arising out of cross-examination;
(e) the prosecuting prison officer shall then close his case; and
(f) the prisoner shall then give evidence on his own behalf or call his witnesses and paragraphs (c), (d) and (e) shall apply subject to necessary modification.
- 67. Conduct of proceedings
(1) The superintendent or the visiting justice -
(a) shall conduct proceedings expeditiously and without undue adjournment or delay;
(b) shall keep or cause to be kept an adequate record of proceedings;
(c) may question a witness called; and
(d) may direct that a particular witness be called or call and question a witness.
(2) The prosecuting prison officer and the prisoner charged shall be permitted to question any witness called and questioned under subregulation (1)(d)."
8 On 2 June 2006 the applicant's solicitors filed an application seeking an order nisi for a writ of certiorari as against the second respondent. As amended at the hearing on 23 August 2006, the order nisi sought to quash the decision of the second respondent made on 18 April 2005 on the following grounds:
(Page 6)
- "Denial of Natural Justice:
The Second Respondent denied the Applicant natural justice in that the Second Respondent:
(a) failed to conduct the proceedings in accordance with Regulation 66 of the Prison Regulations 1982;
(b) failed to advise the Applicant of the case that had been brought against her;
(c) informed the Applicant that he would find the Applicant guilty even if she did call witnesses and present her case; and
(d) formed a preconceived view as to the Applicant's guilt without properly hearing the matter.
Error of Law
(a) the Second Respondent failed to conduct the proceedings in accordance with Regulation 66 of the Prisons Regulations 1982;
(b) the Second Defendant failed to call witnesses in support of the charge in circumstances where the Applicant had advised the Second Respondent of her intention to cross examine the witnesses to be brought in support of the charge, contrary to Regulation 66(a) of the Prison's Regulations; and
(c) The second Respondent failed to allow the Applicant to cross-examine witnesses pursuant to Regulation 66(c) of the Prison Regulations."
9 The affidavit evidence in dispute relates to the first ground – entitled "Denial of Natural Justice".
10 The second respondent, through counsel, concedes that he made the error of law particularised under the heading "Error of Law". Having regard to the undisputed evidence, the concession is rightly made.
11 By O 56 r 11 of the Rules of the Supreme Court an application for certiorari must be made within 6 months unless the delay is accounted for to the satisfaction of the Court to which the application is made.
(Page 7)
12 The applicant was born in Romania on 15 April 1961 and arrived in Australia on 14 December 1995 being granted permanent visa on 7 April 1997. The applicant had a number of issues with the prison authorities, generally bound up in the applications which were discontinued. They related principally to her security rating and her transfer from Boronia to Bandyup Prison. From her affidavit and the correspondence it is clear that she was pursuing what she asserted to be her rights after decisions had been made that affected her. Immediately following her conviction on the minor prison charge, through a friend, the applicant made enquiries of the Ombudsman. Over the next 9 months she pursued an application for freedom of information and consulted three sets of solicitors who were unable to carry the matter forward to a conclusion. An enquiry was instituted within the Department of Corrective Services and that enquiry took some time.
13 The second respondent disclaimed any prejudice as a result of the delay. I take into account that the hearing was flawed and not conducted in accordance with law. I further note a concession by the second respondent (appropriately made having regard to the evidence before me) that the conviction on the minor prison charge may adversely impact on the applicant's capacity to successfully challenge deportation from Australia and to apply for parole in due course. The delay from 18 October 2005 to 2 June 2006 is significant. However, in all the circumstances, including the fact that the applicant, although a sentenced prisoner with the difficulties that occasions, has nevertheless made serious efforts to correct what she perceived to be an injustice prior to taking these proceedings, I conclude that the applicant has satisfactorily explained the delay.
14 In the event that I reached such a conclusion, the second respondent was content that I finally resolve the matter.
15 Accordingly, I ordered that:
• The order nisi for certiorari be made absolute.
• The decision of the second respondent be quashed.
• The matter be returned to another Justice to be dealt with according to law if the complainant intends to proceed with a rehearing.
16 I made these orders at the conclusion of the hearing and these are my reasons for making those orders.
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