Re Director Of Acacia Prison Mr Nick Cameron

[2015] WASC 100

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE DIRECTOR OF ACACIA PRISON MR NICK CAMERON; EX PARTE DE BARTOLO [2015] WASC 100

CORAM:   ALLANSON J

HEARD:   18 MARCH 2015

DELIVERED          :   18 MARCH 2015

PUBLISHED           :  23 MARCH 2015

FILE NO/S:   CIV 1373 of 2015

MATTER                :An application for Interlocutory Injunction against the Director of Acacia Prison, Mr Nick Cameron and the Department of Corrective Services

EX PARTE

GIOVANNI DE BARTOLO
Plaintiff

AND

THE DIRECTOR OF ACACIA PRISON, MR NICK CAMERON
First Respondent

THE DEPARTMENT OF CORRECTIVE SERVICES
Second Respondent

Catchwords:

Interlocutory injunction - Prison offence - Whether superintendent may refer aggravated offence to visiting justice - Turns on own facts

Legislation:

Prisons Act 1981 (WA), s 3(1), s 70(1)(i), s 71, s 72, s 73(1), s 78, s 79
Prisons Regulations 1982 (WA), reg 26B, reg 26C, reg 26D, reg 26E

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Respondent          :     No appearance

Second Respondent      :     No appearance

Solicitors:

Plaintiff:     In person

First Respondent          :     No appearance

Second Respondent      :     No appearance

Case(s) referred to in judgment(s):

Nil

1. ALLANSON J:  I heard this application on 18 March 2015, as an urgent matter.  At the end of the hearing I dismissed the application and said I would later publish my reasons.  These are my reasons.

2. Giovanni De Bartolo is a sentenced prisoner, currently held at Acacia Prison.

3. Mr De Bartolo has been charged with an aggravated prison offence. It is alleged that on or about Tuesday, 16 December 2014, he failed to supply a non‑adulterated sample of urine, contrary to s 70(1)(i) of the Prisons Act 1981 (WA).

4. Under s 71 of the Prisons Act, the charge of a prison offence may be made by any prison officer and shall be brought to the attention of the superintendent of the prison.  The superintendent has a range of actions available, including to refer the charge to a visiting justice.

5. Mr De Bartolo says the charge against him has been referred to a visiting justice.  In this application for an interlocutory injunction, Mr De Bartolo seeks an order restraining the prison director from having that charge heard and determined by the visiting justices.

6. As I understood his complaint, Mr De Bartolo relied upon the following matters:

   1.The charge is of an aggravated prison offence, and such an offence must be heard by a court of summary jurisdiction.

   2.The charge is wrong in law because, on the face of the material provided to him, he has been charged with failing to submit a body sample when he did supply a sample.

7. In practical terms, Mr De Bartolo is concerned that he may not be given a fair hearing before a visiting justice.

8. The first complaint appears to arise from a misunderstanding of pt VII of the Prisons Act.  Mr De Bartolo argues that a visiting justice may not hear and determine a charge of an aggravated prison offence.  In that he is correct.  But that does not mean that a visiting justice may not inquire into and determine the charge which has been brought against him.  The scheme of the Act is as follows:

9. Section 71 provides that any charge of a prison offence may be referred to a visiting justice (there are other options, which it is not necessary to consider). Under s 72, a visiting justice may inquire into and determine any charge of a minor prison offence. Under s 73(1), where a charge of an aggravated prison offence is referred to a visiting justice the visiting justice may, as he thinks appropriate and having regard to the nature and particulars of the alleged offence and the extent of his powers under s 78, either:

   (a)direct the superintendent to commence a prosecution for an aggravated prison offence in a court of summary jurisdiction; or

   (b)inquire into and determine the charge as a minor prison offence.

   The term 'superintendent' is defined to mean the superintendent or other officer or prison officer who is at the relevant time in charge of a prison: s 3(1).

10. That is, while the charge is initially brought as an aggravated prison offence, the visiting justice may only inquire into and determine it as a minor offence. The visiting justice may only impose the penalties for a minor prison offence set out in s 78 of the Prisons Act. In contrast, where a court of summary jurisdiction convicts a prisoner of an aggravated prison offence, the penalties that may be imposed are found in s 79 and are far more severe.

11. In short, there is no arguable case that it was wrong in law to refer the charge to a visiting justice.  

12. The second argument does raise a question of the proper construction of s 70 of the Prisons Act.  The offence under the section is committed if the prisoner 'does not submit himself for the purpose of having a body sample taken where he is required to do so under this Act'. 

13. The circumstances in which a prisoner may be directed to 'submit himself' are found in pt IIIA of the Prisons Regulations 1982 (WA). The superintendent of a prison may direct a prison officer to take a sample at random of the blood, saliva, sweat or urine of prisoners to determine whether an aggravated drug offence or an aggravated alcohol offence has been committed. This may be a random test (under reg 26B(1)) or if the superintendent has reasonable grounds for suspecting such an offence (reg 26B(2)).

14. Regulation 26D provides that a prison officer may require a prisoner to provide a sample.  Regulation 26E provides:

    (1)A prisoner who is required to provide a sample under regulation 26D shall ‑

    (a)submit himself for the purpose of having the body sample taken; and

    (b)cooperate fully in providing the sample.

15. Mr De Bartolo says that he did in fact co‑operate fully and provided a sample.  That is a matter that the visiting justice, or a summary court, will determine.  It is not appropriate for this court to intervene on the assumption that the visiting justice may make a mistake.

16. Although the application was in the form of an application for an interlocutory injunction, it was not entirely clear whether Mr De Bartolo was seeking only interlocutory relief, or was seeking a permanent injunction.  In the circumstances, it makes no difference to the result.  He has not shown an arguable case for relief.