Re Wiffen - [2000] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: RE WIFFEN; EX PARTE SINCLAIR [2000] WASC 286

CORAM: MILLER J

HEARD: 9 NOVEMBER 2000

DELIVERED : 1 DECEMBER 2000

FILE NO/S: CIV 1351 of 2000

MATTER :Application for a Writ of Certiorari against WILLIAM CHARLES WIFFEN a Justice of the Peace visiting Hakea Prison

EX PARTE
ADRIAN GEORGE SINCLAIR
Applicant

Catchwords:

Prerogative writs - Certiorari - Prisoner accused of prison offence - Obligation of visiting Justice to have witnesses called - Application of Prison Regulations 1982 reg 66 and reg 67

Legislation:

Prisons Act 1981, s 70(i), s 72, s 74, s 75, s 76

Prison Regulations 1982

Result:

Order absolute for a writ of Certiorari

Representation:

Counsel:

Applicant: Mr P J Hogan
Amicus Curiae : Ms B M A Van Reyk

Solicitors:

Applicant: Patrick Hogan
Amicus Curiae : State Crown Solicitor

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

Re Fawcett; Ex parte Ord, unreported; FCt SCt of WA; Library No 940299; 15 February 1994
Re Stowell; Ex parte Buckley, unreported; SCt of WA; Library No 9030; 2 September 1991

Case(s) also cited:

Hall v New South Wales Trotting Club (1977) 1 NSWCR 378
Re Devereux; Ex parte Kuczynski, unreported; SCt of WA; Library No 940265; 24 May 1994
Stampalia v The Racing Penalties Appeal Tribunal of Western Australia & Ors [2000] WASCA 24

MILLER J: This is the return of an order nisi for a writ of certiorari against William Charles Wiffen, a Justice of the Peace, visiting Canning Vale Prison. On 30 September 1999 at Canning Vale Prison, Mr Wiffen ("the Justice") conducted, pursuant to s 74 of the Prisons Act 1981, a hearing of a prison offence. That offence was alleged to have been committed by the applicant, the charge being that on 12 August 1999, the applicant, being a prisoner at Canning Vale, did not submit himself for the purpose of having a body sample taken from him contrary to s 70(i) of the Act. To this charge the applicant pleaded not guilty. Although the charge sheet does not say so, the Justice found the charge proven and disposed of it by imposing upon the applicant 7 days' separate confinement with 28 days' loss of remission.
It is unnecessary to document the various steps that preceded the hearing, but in an affidavit sworn 27 March 2000 and filed in the proceedings, the applicant contended that on 12 August 1999, he was required to provide a sample of urine for analysis and provided with containers for that purpose. He claims to have informed the officers who made the request that he had already urinated that morning but that he would try to provide a sample. He contends that he did try for several minutes but was unable to provide the sample required. He contends that he was then taken to the management observation area but there he was not offered water which he had requested. He claims that when he made the request, he was told that he was not entitled to water. Subsequent requests were all refused. He contends that when asked if he was refusing to supply a sample and questioned whether he knew of the penalties for refusing, he said that he was not refusing, but that without water he could not be expected to supply the sample. He was then informed that he would be charged with refusing to provide a sample and released from observation.
The procedure for the taking of urine samples within Canning Vale Prison is set out in Local O 8. This Order is entitled "procedure for alcohol/drug offences". Clause 1.2 of the Order provides that if a prisoner states he cannot void, he is to be offered 400 ml of fluid in the form of two cafe bar cups. No more than this quantity of fluid is to be given to the prisoner in a six‑hour period and no more fluid is to be given to him after that time. The Order provides in cl 2 that a prisoner who refuses to supply will be charged under s 70(i) of the Act and placed in Close Supervision in accordance with the Director General's r 3(L) on conviction of the charge.
The applicant contends that when he appeared before the Justice on 30 September 1999, he stated that he had been frustrated in efforts to prepare a defence to the charge and gave only to the Justice the copy of O 18 which was received by the Justice "as part of his case". Paragraph 21 of the affidavit of the applicant is in these terms:
"21.The prosecutor said that medical evidence stated that a body produces a certain amount of urine in a certain time so order 18 had no bearing, therefore I had refused. I stated that I had not even been at the management observation area for the prosecutor's specified period of time. I said that if medical evidence was allowed by the prosecutor, then psychological evidence should be allowed for the defence. The prosecutor said that it was not.
22.I made several other arguments. I was told that the charge was proved. I was (given) [sic] 7 days solitary confinement and 28 days loss of remission."
The original grounds upon which the order nisi for the writ of certiorari was granted related to the question whether the Justice had made an error of law on the face of the record in failing to take into account that the prison officer who gave evidence against the applicant had failed to comply with the provisions of Local O 18 and in failing to consider whether the applicant's failure to provide the sample was a deliberate failure or whether he was physically unable to provide it. In the alternative, it was contended that the Justice had acted in breach of the rules of natural justice in failing to take into account these matters. Those grounds of appeal were amended at the hearing before me to allege:
"(a)William Charles Wiffen made an error of law on the face of the record in his enquiry into and determination of the charge referred to in this application in that he failed to require the prosecutor to call the witness Marsh in order to give the applicant the opportunity to cross‑examine that witness pursuant to Regulation 66(c) of the Prisons Regulation in circumstances where there was a conflict of evidence between the applicant and the statements made by the witness Marsh in the Incident Report;
(b)William Charles Wiffen acted in breach of the rules of natural justice in his enquiry into and determination of the charge referred to in this application in that he failed to require the prosecutor to call the witness Marsh in order to give the applicant the opportunity to cross‑examine that witness pursuant to Regulation 66(c) of the Prisons Regulations in circumstances where there was a conflict of evidence between the applicant and the statements made by the witness Marsh in the Incident Report."
Although the Director General of the Ministry of Justice filed a Notice of Intention to be Heard in the proceedings, counsel representing the Director General advised at the hearing that his client did not wish to oppose the application. No submissions were filed on behalf of the Director General and no oral submissions made. However, affidavits of two prison officers were filed on behalf of the Director General prior to the hearing. An affidavit of Alistair Marsh, a senior prison officer at Hakea Prison Complex, Canning Vale, sworn 7 July 2000, relates that on the 12 August 1999, the applicant was required to provide a urine sample. The reason for the request is unknown. Officer Marsh has deposed to the fact that the applicant arrived at unit 1 at 8.05 am and in accordance with the normal practice was placed in an observation cell. When Officer Marsh commenced to strip search the applicant, the latter is alleged to have said, "This is bullshit. I'm refusing to piss." Marsh claims that he then explained to the applicant the consequences of refusing (that he would be charged and if found guilty would receive the same penalty as if he had returned a positive finding following analysis), in response to which the applicant is said to have replied, "I don't give a fuck, I'm not pissing." According to Marsh, he then concluded there was no point in completing the procedure and informed the applicant that he would be charged. Marsh specifically denies that the applicant was not offered water or that the applicant at any time requested water or that he told the applicant he was not entitled to water. Marsh duly reported the matter in an Incident Report which was in the following terms:
"Description of Incident: Sir, on Thursday 12th August 1999 I was rostered senior officer in unit one. At approx 0805 hrs, Prisoner Sinclair A. was placed in observation cell D10 ex U2 pending supply of a urine sample. As he was being strip searched Sinclair said to me 'This is bullshit.' 'I'm refusing to piss.' I explained to Sinclair that if he refused he would be charged and if found guilty he would receive the same penalty as if he had returned a positive test on a urine sample. Sinclair replied 'I don't give a fuck, I'm not pissing'. I then informed Sinclair that he would [sic be] charged and he was then returned to unit two. Report submitted for your information."
Brian John Evans, a first-class prison officer at Hakea Prison Complex swore an affidavit on 7 July 2000 in which he states that he was the prosecuting officer before the Justice on 30 September 1999. He can recall the applicant "making several arguments before the visiting Justice" but has no recollection as to the exact nature of what was said. He can recall handing to the Justice a copy of Officer Marsh's Incident Report. He confirms that no witnesses were called at the hearing.
Section 72(1) of the Prisons Act provides that a visiting Justice may inquire into and determine any charge of a minor prison offence. Section 74 provides that every charge of a prison offence shall be heard and determined in the presence of the prisoner charged and in either the prison where it is alleged the offence was committed or some other suitable place. Section 74(3) provides that a prison officer authorised in writing by the superintendent to do so, may appear before a Justice on the hearing of the charge and conduct the prosecution. It must have been pursuant to this provision that Officer Evans appeared before the Justice in this case. Section 75(1) of the Act provides that where a minor prison offence is alleged to have been committed by a prisoner and the prisoner does not admit the charge, the charge shall be determined by the Superintendent or visiting Justice, as the case may be, in accordance with the procedure prescribed by regulations. Section 75(2) provides that the Justice is not bound by the rules of evidence "but may admit any evidence which in his opinion is relevant to the charge and may decline to admit repetitious material".
The relevant regulations are the Prison Regulations 1982. Part VIII is headed "Prison Offences" and reg 66 and 67 thereof set out the procedures to be followed where a Justice deals with a prison offence. Those Regulations are 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)."
It will be seen that reg 66 requires that witnesses shall be called. When called, there shall be an examination‑in‑chief and the prisoner is entitled to cross‑examine them. Further, the prisoner is then required to give evidence on his own behalf or call witnesses if he wishes. Regulation 67 gives to the Justice the power to direct that a particular witness be called. The provisions of reg 66(f) are curious, because they cut across the importance accorded by the law to the right of an accused person to remain silent in criminal proceedings. However, nothing turns on that in this case. The fact of the matter is that no witnesses were called in this case and prima facie the provisions of reg 66 were not complied with. They are, however, mandatory provisions and in combination with the provisions of s 76 of the Act require that where there are witnesses who can support a charge, they shall be called. Once called, they are liable to be cross-examined by the prisoner. None of that occurred in this case. There is no reason to suggest that Officer Marsh could not have been called.
The grounds upon which the writ of certiorari are sought contend that the Justice made an error of law on the face of the record and/or breached the rules of natural justice in his inquiry into in determination of the charge by failing to require the prosecutor to call Marsh in order to give the applicant the opportunity to cross‑examine him. It is contended that the Justice was required to do this because of the conflict of evidence between the applicant and statements made by Marsh in the Incident Report.
However, the obligation existed whether or not there was a conflict in the evidence between the applicant on the one hand and Marsh on the other. The fact of the matter is that reg 66 required the prosecuting prison officer to call Marsh. Once called, the prisoner was entitled to cross‑examine him. Whilst s 75(2) of the Act entitles the Justice to admit evidence relevant to the charge without being bound by the rules of evidence, this, presumably, gives to the Justice the power to admit documentary evidence without the requirement for strict proof. It does not take away from the procedural requirements of reg 66 and reg 67. Because the procedural requirements of those regulations were not met in this case, it follows, in my view, that the order nisi for the writ of certiorari should be made absolute.
Although I was referred at the hearing to a number of cases dealing with the obligation of quasi-judicial tribunals to observe the rules of natural justice and to cases concerned with the conduct of inquiries (particularly racing cases), it is unnecessary to refer in detail to these cases because of the specific provisions of the Prison Regulations to which I have made reference.
In Re Stowell; Ex parte Buckley, unreported; SCt of WA; Library No 9030; 2 September 1991, Murray J outlined the basis upon which the remedy of certiorari would be available in the context of the hearing of a prison offence by a visiting Justice. His Honour (at 8) said:
"I proceed on the basis that the remedy of certiorari will be available where an administrative or judicial authority or tribunal has legal authority to determine questions involving or affecting rights in the sense that the relevant rights may not only be those recognised by or to which the law will give effect as such, but may also include what have come to be described as 'legitimate expectations' as to a particular result or mode of procedure. The remedy will be available in respect of the decisions of such persons, bodies or tribunals which are of the character that it may be said of the relevant authority that it has the duty to act judicially in the broadest sense of that word. And having such a duty, the authority acts either in excess of its jurisdiction, at least in the sense that the proceedings in question are tainted by some denial of natural justice, or in excess of the authority's legal power, at least to the extent that the error is one of law appearing on the face of the record in question. It is well accepted of course that precisely the same test for availability of the remedy will be applied in respect of bodies having legal authority to determine questions affecting the rights of prisoners: R v Board of Visitors of Hull Prison; ex p St Germain [1979] QB 425."
In Re Fawcett; Ex parte Ord, unreported; FCt SCt of WA; Library No 940299; 15 February 1994, Wallwork J (with whom Franklyn and Owen JJ agreed) said in relation to a very similar factual situation (at 8):
"In this case the applicant had a right that the hearing would be conducted in accordance with the rules of natural justice and the Prison Act and Regulations. He had wished to present evidence in his defence by way of written statements. The visiting Justice refused to adjourn the case to enable the statements to be presented. The applicant also wished to call the prisoner Mr Dair to give evidence in relation to the charges. Mr Dair was readily available. The tendering of written statements could constitute evidence pursuant to ref 66(b). The applicant was entitled to call witnesses subject to lawful restrictions, pursuant to ref 66(f)."
His Honour added at 10 ‑ 11:
"The visiting Justice in this case should have considered whether an adjournment to enable the statements to be presented would have been in the interests of justice. He knew that a letter may have arrived within a short period of time. The failure of the Justice to allow the applicant to call evidence from the available witness and the statement deprived the applicant of a reasonable opportunity to present his case.
In Ex parte Rushton, unreported; FCt SCt of WA; Library No 2758; 29 November 1979, Burt CJ, with whom Wickham J agreed, when discussing proceedings on a complaint of a minor prison offence which was heard before a visiting Justice of the Peace said:
'The proceedings before a visitor upon a complaint charging a prisoner with the commission of a minor prison offence are, I think, of a kind amenable to control by prerogative writ and the power and the duty to "hear the complaint" require that they be conducted in a way which does not offend the rules of natural justice.'
I would add to the above that the hearing of complaints against prisoners within the confines of a prison involves a very serious responsibility with which the authorities have been entrusted. The proceedings must be conducted properly in accord with the Act and Regulations and the principles of natural justice."
These cases support the view that I have taken that there was at least a breach of the rules of natural justice which led to the conviction of the applicant in this case. That breach was constituted by the failure of the Justice to follow the procedures which are so clearly set out in reg 66 of the Prison Regulations 1982. For these reasons, at the hearing of this matter I made the following orders:
(1)There be an order absolute for a writ of certiorari.
(2)The writ of certiorari be issued to William Charles Wiffen to quash his decision made on 30 September 1999 whereby he found that on Thursday 12 August 1999, the applicant did not submit himself for the purpose of having a body sample taken from him contrary to s 70(1) of the Prisons Act 1981 and the decision be quashed upon return without further order.