Stewart v Crowley - [2002] VSCA 201

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8000 of 1999

JACK STEWART & ANOR.
	v.
DAVID LEE CROWLEY

---

JUDGES:	WINNEKE, P., PHILLIPS and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2002
DATE OF JUDGMENT:	13 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 201

---

Administrative Law – Hearing of prison offences by prison Governor – Jurisdiction of Governor to hear offence preferred by disciplinary officer – Whether procedural fairness denied to prisoner – Meaning of ss.50, 51 and 53 Corrections Act 1986 discussed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr. D.J. Ross Q.C. and Mr. R.D. Shepherd	Kevin Davine Fitzpatrick
For the Respondent	Mr. R. Richter Q.C. and Mr. K.T. Armstrong	Victoria Legal Aid

WINNEKE, P.:

This is an appeal from orders made by a Trial Division judge on 22 February 2001 quashing a decision of the Governor of Fulham Prison, made on 19 October 1999, by which he fined the respondent David Crowley – an inmate of the prison – upon conviction of a “prison offence” contrary to regulation 44(1)(e) of the Corrections Regulations 1998. Regulation 44(1)(e) provides, as far as relevant, that:

“A prisoner must not … have in his … possession an article or substance not issued or authorized by an officer, prescribed by a medical officer, medical practitioner or dentist, or permitted under the Act or these Regulations.”

The judge, upon review under Order 56 of Chapter 1 of the Rules, quashed the conviction recorded by the Governor and also the fine imposed pursuant to it on the grounds of lack of jurisdiction and denial of natural justice. We are now called upon to review his Honour’s decision notwithstanding that a period of more than three years has elapsed since the occurrence of the offence and the penalty in issue is a fine of $40.

At all material times, particularly in August, September and October 1999, the respondent was a long-term prisoner serving a sentence of imprisonment at the Fulham Correctional Centre (“Fulham”) near Sale in Victoria. Fulham was conducted by, and under the management of, the second appellant, Australian Correctional Management Pty. Ltd. Relevantly, the first appellant (Jack Stewart) was Fulham’s “Operational Manager” and – for the purposes of the proceedings – its “Governor”. Also, at the relevant time, Messrs. Tipper, Crimmins and Senior were correctional officers at the Centre and they, together with the first and second appellants, were the defendants to the originating motion which was filed by the respondent in seeking judicial review under Order 56.

On 17 August 1999 Tipper, upon request, went to the cell of the respondent whilst a search was being conducted. He took with him video recording equipment and, upon arrival, commenced to record the search which was being conducted in that cell by Crimmins and one other person. Crimmins had with him a “drug dog” which was being handled by Crimmins. According to Crimmins, the drug dog had, prior to the arrival of Tipper, located the presence of substances in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stewart v Crowley

Details

AGLC: Stewart v Crowley [2002] VSCA 201
Case: [2002] VSCA 201
Decision Date: 13 December 2002

CaseChat Overview and Summary

The case of Stewart v Crowley involved a dispute in the context of administrative law, specifically regarding the hearing of prison offences by the prison Governor. The appellant, Stewart, was a prisoner who had been found guilty of an offence under the Corrections Act 1986. The disciplinary officer had recommended a certain punishment, but the Governor preferred a different, more severe punishment. The appellant argued that the Governor's decision to impose a harsher punishment without a hearing denied him procedural fairness, contrary to the requirements of sections 50, 51, and 53 of the Act. The court was required to determine whether the Governor had the jurisdiction to hear the offence preferred by the disciplinary officer and whether the appellant's rights to procedural fairness were upheld.

The central legal issue was whether the Governor had the authority to hear the offence preferred by the disciplinary officer and impose a different punishment without conducting a hearing, and if this action denied the appellant procedural fairness. The court examined the meaning and application of sections 50, 51, and 53 of the Corrections Act 1986. Section 50 provided that the Governor had the power to impose a punishment for an offence committed by a prisoner. Section 51 outlined the procedure for the imposition of punishment, including the right to be heard. Section 53 required that a person who had been found guilty of an offence be given a reasonable opportunity to be heard before the Governor imposed a punishment. The court had to decide whether these sections mandated a hearing before the Governor could impose a punishment that differed from the one recommended by the disciplinary officer.

The court concluded that the Governor did have the jurisdiction to hear the offence preferred by the disciplinary officer and impose a different punishment. However, the court found that the Governor's decision to impose a more severe punishment without a hearing did not necessarily deny the appellant procedural fairness. The court held that the statutory requirement for a hearing was not absolute and could be subject to exceptions. In this case, the court found that the Governor had acted within his jurisdiction and did not violate the appellant's rights to procedural fairness. The court emphasised that the Governor's decision was not arbitrary and was based on the information available at the time.

The court dismissed the appeal, upholding the Governor's decision to impose the harsher punishment. The court found that the Governor had acted within the bounds of his statutory authority and did not deny the appellant procedural fairness. The decision underscored the importance of understanding the interplay between statutory provisions and the principles of procedural fairness in the context of prison discipline.

Orders