Stewart v Crowley
[2002] VSCA 201
•13 December 2002
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 | 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 a computer in the cell. The substance found was a quantity of green vegetable matter, later identified as cannabis. Tipper, in accordance with the Corrections Regulations 1998, handed the material found to one Senior Constable Dawkins of the Victoria Police for investigation. Regulation 66 provides that:
“The Governor must ensure that … a drug of dependence seized in a prison is given to a member of the police force as soon as possible.”
On the following day Tipper, as he was required to do, told the respondent that he (that is the respondent) would be subject to a “60 day ban” on contact and participation visits. At all material times thereafter the respondent alleged that the matter found in the computer had been “planted” by other persons.
Tipper, who was a “disciplinary officer”, so nominated in accordance with the provisions of the Corrections Act 1986 and the regulations made thereunder, was subsequently present when Senior Constable Dawkins interviewed the respondent on 23 August 1999. Tipper himself made a statement to the Victoria Police on 9 September 1999. On 7 October 1999 Tipper received a memorandum from the Victoria Police which was entitled “Result of Investigations”. Inter alia, the memorandum stated:
“Offence : Possess Cannabis
Date of I/V [sic] 17 August 1999. Result : Brief not authorised by S/Sgt Macklewaring on 21.9.99.
Referred back to Fulham Centre for disciplinary action.”
Part 7 of the Corrections Act 1986 is entitled “Prison Discipline”. Relevantly, Part 7 contains the following sections:
“48Definitions. …
In this Part –
‘disciplinary officer’ means a prison officer –
(a) nominated by the Secretary as a disciplinary officer; or(b)in a class of prison officers nominated by the Secretary as disciplinary officers.
‘prison offence’ means a contravention of this Act or the regulations.
‘register of offences’ means the register of prison offences established in accordance with the regulations.”
“50Prison Offences.
(1)If an officer suspects that a prisoner has committed a prison offence the officer must as soon as possible report the fact to the disciplinary officer.
(2)The disciplinary officer must make proper investigation of all alleged prison offences which come to the officer’s notice and must give the prisoner alleged to have committed the offence an opportunity of making an explanation.
(3)If, after investigating an alleged prison offence, the disciplinary officer is satisfied that no offence has been committed, the disciplinary officer is to take no further action.
(4)If, after investigating an alleged prison offence, the disciplinary officer is satisfied that the offence has been committed but is trivial, the disciplinary officer need take no further action.
(5)Subject to sub-section (4), if after investigating an alleged prison offence the disciplinary officer is satisfied that the prisoner has committed the offence, the disciplinary officer must record the offence in the register of offences and may, in addition, do one of the following:
(a)reprimand a prisoner; or
(b)withdraw one of the prisoner’s privileges for less than 14 days; or
…
(d) charge the prisoner with the prison offence; or
(e)take steps to have the matter dealt with under the criminal law.
(6)A charge for a prison offence must be in writing, and the disciplinary officer must as soon as possible give a copy of the charge to the Governor and the prisoner.
…
(9)A decision or purported decision of the disciplinary officer under this section cannot be appealed against, reviewed, challenged or called in question in any court.”
“51Governor’s action where charge laid.
On receiving a copy of a charge for a prison offence the Governor may do
any of the following –
(a)if satisfied that the prison offence should have been dealt with by the disciplinary officer, refer the matter back to the disciplinary officer to be dealt with under section 50(5);
(b)if the Governor believes that the Governor has an interest which would prejudice the fair hearing of the charge, refer the matter to another Governor for hearing;
(c)hear the charge;
(d)take steps to have the matter dealt with under the criminal law.”
“53 Governor’s hearing
(1)If a charge is to be heard by the Governor of the prison or by another Governor, the Governor of the prison must –
(a)not less than 72 hours before the hearing
(b)…
(c)…
give notice to the prisoner of the time, date and place of the hearing.
(2)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.
(3)…
(3A)…
(4)If at a Governor’s hearing the Governor finds that the prisoner is guilty of the prison offence, or the prisoner admits the truth of the charge, the Governor may impose any of the following penalties –
(a)a reprimand;
(b)a fine not exceeding one penalty unit;
(c)withdraw one or more of the prisoner’s privileges for a period not exceeding 14 days for each prison offence committed, but not exceeding in total 30 days;
…
(6)For each prison offence committed the Governor must not under sub-section (4) impose more than one of the penalties listed in that sub-section.”
In addition to the procedures provided by the statute, the regulations made pursuant to the Corrections Act also contain provisions relating to the procedures to be adopted at a “Governor’s Hearing”. In so far as they appear to be relevant to the current proceedings they include the following:-
“45Conduct 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.”
“48.Procedure if prisoner pleads not guilty.
If the prisoner does not plead guilty –
(a)the informant must present evidence to support the charge;
(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.”
Evidence before the Judge
Tipper said that, before receiving the “result of investigations” from the Victoria Police on 7 October 1999 he had not reached the “point of satisfaction”[1] that a prison offence had been committed by the respondent. He said that what moved him from the position of “lack of satisfaction” to one of satisfaction was the document he had received from the Victoria Police which contained the words “offence : possess cannabis”. In his view he had complied with requirements of regulation 66 of the Corrections Regulations in handing the substance found in the cell to the police. Having satisfied himself that the substance was cannabis, he took the appropriate steps to pursue that with the General Manager of Fulham who directed him, as “the disciplinary officer” within s.50, to prepare a charge. On 7 October 1999 after receiving the police document, he prepared the charge. He agreed that, before that time, no entry had been made in the register of offences. In fact the prison offence, charged pursuant to Regulation 44(1)(e), was entered in the register of offences at the hearing of the charge on 19 October 1999 by Stewart. By operation of s.9C of the Corrections Act, Stewart, as the Operational Manager of the prison, was authorized to perform the functions of “Governor”. Stewart himself was a “disciplinary officer” for the purposes of the Act.
[1]Compare s.50(3), (4) and (5).
In the affidavit material put before his Honour by the respondent, the respondent said that Crimmins, on the hearing of the charge on 19 October 1999, had given evidence that the search of the respondent’s cell had been made as a result of information obtained through prison intelligence. He said that he had put it to Crimmins that the video tape, which had been played during the course of the proceedings, showed that the dog had not indicated that there was any substance in the computer and that in fact he (i.e. Crimmins) was deliberately turning the dog’s head in the direction of the computer to make it appear that the dog had discovered something. He claimed that he had asked for the video tape to be re-played so that he could demonstrate the point he was making. His request was refused. The respondent maintained at all times that he was unaware of the presence of the package inside the computer and that it was his belief that the drug had been planted there by the correctional officers or some other person.
The evidence of the correctional officers was that the dog had been inside the cell before the time that Tipper had arrived with the video equipment, and that the dog had identified substances in the computer before Tipper arrived. They also deposed to the fact that, at the hearing before the Governor, the respondent had put to Crimmins a number of times that he (Crimmins) had intentionally turned the dog’s head towards the computer, which allegation Crimmins denied on each occasion; and that, after the third question in similar form, Crimmins had responded that he had already said “No” and asked whether he had to answer the question again. Their evidence was that Stewart had then said to the respondent that Crimmins had answered the question and asked the respondent to “move on and ask another question”. In response the respondent said that he wanted to call witnesses. Stewart had then asked the respondent whether he had wanted to put anything further to Crimmins and the respondent replied that he did not.
The “Security Tape”; the “exclusion of the respondent from the hearing”
At the hearing before the judge the respondent said that he had called another prisoner by the name of Galli who had given evidence that, prior to the search of the cell, the computer had security tape covering “the back wall” of the computer. At the Governor’s hearing the respondent had produced pieces of that tape which he said he had found on the floor of his cell after removal from the computer. At that point the Governor had stopped the hearing and excluded the respondent from the hearing room whilst he conferred with Tipper in the presence of Crimmins and another prison officer. In evidence Tipper said that the discussion in the absence of the respondent was with regard to procedures which applied concerning the sealing of computers and not the issue of the particular tape on that specific computer. Stewart said he wanted to enquire why this tape, which was used to seal urine samples, had been used for sealing electrical appliances because, if that was the case, it was an inappropriate use and a breach of security. He said that he had spoken to Tipper and Crimmins about this, not for the purpose of obtaining evidence for the hearing, but because he wanted to deal immediately with a security issue with which he was concerned. For this reason he had deemed it inappropriate for the issue to be discussed in front of the prisoner. According to the respondent, he had been told upon his return to the room by Stewart that he (i.e. Stewart) was accepting the explanation of Crimmins that “there was no security tape on the computer”.
The findings of the Judge
His Honour found that s.50 of the Corrections Act imposes a mandatory requirement upon the duly appointed disciplinary officer (in this case Tipper) to record the prison offence in the “Register of Offences”, and to do so after the officer was satisfied that the prisoner had committed a prison offence, and before taking the further action contemplated by the section. His Honour found that Tipper was “satisfied” that a prison offence had been committed when he sent the substance to the police, because on that day he had told the respondent of the “60 day ban” upon him. It was then, his Honour concluded, that he should have entered the offence in the register. His Honour was also satisfied that, when he handed the substance to the police, Tipper was intending that the matter should be “handled as a criminal matter” within the meaning of s.50(5)(e) of the Corrections Act. He was, according to his Honour, “passing the matter to the police for them to take action … if they thought appropriate”, and, therefore, it was not open to him also to take action under sub-s.(5)(d) and to charge the prisoner with a prison offence.
His Honour also found that it was Stewart who had entered the offence in the register; and that the Act did not contemplate that he should do so, albeit that he was a “disciplinary officer”, because he was the person appointed to hear the charge. He could not “lay the charge, and then hear it”.
In his Honour’s view, s.50 of the Act “carefully set(s) out a procedure” which is required to be strictly followed. It requires that “no action is to be taken in respect of a prison offence unless the disciplinary officer is satisfied that the offence has been committed …, records the offence in the register …, and then exercises his discretionary judgment in determining which of the four alternatives should follow”. The section, his Honour concluded, required strict compliance with this “stepped approach” and its provisions “did not provide for relaxation of the mandatory requirements”. His Honour rejected arguments of the appellants that such a construction makes the task of the prison officers an impossible one because:
(a)it means that they cannot send a “discovered substance” to police pursuant to the regulations without forfeiting the right of preferring a charge for a “prison offence” in the event that the police, for their own good reasons, decide not to prefer charges against the prisoner in the courts. The disciplinary officer, his Honour said, can “protect himself … by making it clear on what basis the contact with [the police] has been made. … With a modicum of care, the problem can be avoided”.
(b)the “prison offence” is a distinctly different offence from any which could be laid by the police in the courts, requiring proof of different elements and, probably, in accordance with different standards. The “matter” referred to in s.50(1)(e), according to his Honour, was not the “prison offence” but the “incident which was the subject of the investigation”.
His Honour further concluded that the construction of s.50 which he preferred did not amount to “reviewing” or “calling into question” the conduct of the disciplinary officer because it is not challenging the merits of what the officer had done, as distinct from construing the section in accordance with what he had done. Thus, it was not a matter to which sub-s.(9) of s.50 of the Act had application and, therefore, review was not in this instance excluded.
Denial of Natural Justice – refusal to allow further cross-examination of Crimmins
His Honour formed the view that the evidence about this issue was, generally, unsatisfactory. His Honour, however, accepted that the respondent had never seen the video-tape of the search before the “Governor’s hearing”. He further accepted that the respondent had asked to have the tape re-played during his cross-examination so that he could demonstrate his point that the dog was not interested in the computer in support of his proposition that the drug had been “planted”. He was not prepared to accept Tipper’s evidence that the tape had been replayed “in part”. His Honour concluded that:
“… natural justice in the circumstances … would require that the person charged have an adequate opportunity to present his case including an adequate opportunity to cross-examine on the important evidence of the video-tape. I am satisfied that Stewart refused to allow [the respondent] to cross-examine Crimmins further, using the video-tape, and that in the circumstances of the case that constituted a breach of s.53, regulation 48, and a denial of natural justice at common law.”
Denial of Natural Justice in requiring the respondent to leave the hearing.
His Honour referred to the fact that the respondent’s case before the Governor was that, before the initial search, “security tape” had been attached to the computer in five places; and that when the initial search was conducted those tapes were in place; but were not in place when he was later recalled to the cell. His evidence, in this respect, had been corroborated by Galli. This evidence, his Honour said, went directly to his claim that the substance found had been “planted”. It was the case for the appellants that there never were any “security seals” on the computer and that, when the tape was produced, Stewart had requested the respondent to leave the hearing room whilst he (Stewart) spoke to the prison officers about issues concerning the use of this urine analysis tape for sealing electrical items. Stewart said it was a matter affecting “security” and needed to be cleared up immediately; and not in the presence of the respondent. He said that Tipper had “told him that no tape was used to secure electrical goods”. He conceded, however, that the respondent had alleged that these “seals” had been removed. The prison officers denied that that was so. His Honour found that, whatever was said when the respondent was recalled to the hearing room (and there was dispute about that), the only evidence which was thereafter taken was some brief evidence from the respondent and another prisoner, one Basten. Stewart then pronounced that he found the charge proven.
His Honour concluded that the respondent had been excluded from the hearing room whilst Stewart had conferred with Crimmins, Tipper and another officer about matters directly relevant to the issues in dispute between the parties. He further found that Stewart made no effort to inform the respondent, when he returned, of the substance of the discussion; in particular that he had been told by Tipper that urine analysis tape was not used for the purpose of sealing electrical items. In that sense, his Honour concluded, Tipper had become a witness giving relevant evidence about matters in dispute “behind the back” of the person charged. This was a denial of natural justice.
Ultimate Conclusion
His Honour, thus, concluded that Stewart lacked jurisdiction to hear the charge of a prison offence; and that the respondent was denied natural justice in the course of the hearing. In the light of his conclusion that there was a want of jurisdiction, the decision of the Governor should be quashed and there should be no re-hearing. Accordingly, it was not necessary to consider what orders should follow from the denial of natural justice which he had found. These conclusions were reflected in the final orders which he made.
Appeal
The appellants have challenged his Honour’s findings and orders upon a large number of grounds. Mr. Ross, who appeared with Mr. Shepherd for the appellants in this Court, reduced them to manageable proportions. He submitted that the judge was in error in concluding that Stewart, as Governor, had no jurisdiction to hear and determine the charge laid against the respondent; and he further submitted that the judge was in error in concluding that natural justice had been denied to the respondent in the course of the hearing. Specifically, he contended that his Honour was in error in concluding that the Governor’s jurisdiction to hear a charge for a prison offence pursuant to s.51(c) of the Corrections Act was dependent upon compliance by the disciplinary officer with the provisions of s.50(5) of the Act; and that – in any event – his Honour erred in his interpretation of the requirements imposed upon the disciplinary officer by the latter sub-section. Further, Mr. Ross submitted that his Honour was in error in concluding that Stewart’s refusal to allow the respondent to further cross-examine the witness Crimmins on the video-tape, in the circumstances which existed, amounted to an infringement of s.53 of the Act and the regulations and thus, a denial of natural justice. Furthermore, Mr. Ross submitted, his Honour should have found that the hearing had been suspended -–and the respondent excluded from the hearing room – for “security reasons”, and that, accordingly, Stewart was not bound to disclose to the respondent the content of his conversation with Crimmins and Tipper, or to give to the respondent the right to further cross-examine those witnesses. In this respect, Mr. Ross submitted, his Honour had improperly placed an onus on the appellants to demonstrate that principles of natural justice had not been breached, and failed to consider what effect any such breach would have had upon the outcome of the proceedings.
Mr. Richter, who appeared with Mr. Armstrong for the respondent, submitted that his Honour’s conclusion that Stewart embarked upon the hearing without jurisdiction to do so was correct, for the reasons which he gave. He submitted that strict compliance by the disciplinary officer with the provisions of s.50(5) was a pre-requisite to the Governor’s jurisdiction under s.51. In particular, it was contended that his Honour was correct to conclude that, on a proper construction of ss.50, 51 and 53 of the Act, the entering of the charge in the Register by the disciplinary officer was a condition precedent to the preferment of the charge for a prison offence and, thus, to the jurisdiction of the Governor to hear such a charge. His Honour was also correct to conclude, so it was submitted, that – in giving the substance to the police – the disciplinary officer had “[taken] steps to have the matter dealt with under the criminal law”, and that such action precluded any subsequent authority to charge the respondent with the “prison offence”. Furthermore, Mr. Richter contended, his Honour was correct to conclude that Stewart’s refusal to allow the respondent to further cross-examine Crimmins on the video recording and, more particularly, his suspension of proceedings to allow him to confer with the respondent’s accusers in the absence of the respondent amounted to breaches of natural justice.
For my own part, I think his Honour was in error in concluding that the first appellant had no jurisdiction to enter upon the hearing of the charge, but was correct to conclude that there had been a denial of natural justice to the respondent by suspending the hearing, sending the respondent out of the hearing room, and conferring with “officer witnesses” in the absence of the respondent.
Jurisdiction
Part 7 of the Corrections Act is designed to confer powers upon prison officials to administer discipline within the prison for the commission of offences against the regulations, and to do so with expedition. The provisions of Part 7 are calculated to provide a balance between the power of the corrections officials to maintain discipline within a system where discipline is essential and the rights of prisoners who are to be subjected to that discipline. In that context, it is true to say that the provisions are “describing prisoners’ rights”[2]. It is in this context that the provisions of Part 7 fall to be construed. The maintenance of discipline in accordance with Part 7 is divided between “the disciplinary officers”, nominated by the Secretary of the Department, on the one hand, and the “Governor” of the establishment on the other. The powers of discipline committed respectively to the disciplinary officers and to the Governor by s.50 on the one hand, and ss.51 and 53 on the other, are interdependent only to the extent that the Governor can hear a charge for a “prison offence” which has been preferred by a disciplinary officer (s.50(6)), and the Governor can refer “the matter” back to the disciplinary officer if he is satisfied that the offence should have been dealt with by that officer (s.51(a)). In my view, strict compliance by the prison officer with the provisions of s.50(5) is not an essential pre-requisite to the Governor embarking upon the hearing of a charge pursuant to s.51. If the charge is before the Governor, it can only be because a copy of it has been given to him in accordance with s.50(6). It was not in dispute in this case that the charge had been served on the prisoner in the manner referred to in s.50(6). It was delivery of the charge to the Governor which gave the Governor jurisdiction to hear the charge. I agree with the remarks of Ashley, J. in Dimozantos v. Governor of Barwon Prison & Anor[3] where his Honour said:
[2]Cf. The speech of the Minister in introducing the Corrections Bill; Hansard, Legislative Council, 20 November 1986, p. 1232; Binse v. Williams [1998] 1 V.R. 381 at 384.
[3] Unreported, Supreme Court of Victoria, 21 June 1993 at page 16.
“I next observe that what s.50(6) requires the Governor to be given is a copy of a charge for a prison offence in writing. It is receipt of that document which triggers the Governor’s powers under s.51.”
The Governor, in my view, is not required – as a pre-requisite to exercising the jurisdiction given to him under s.51 - to satisfy himself that the disciplinary officer has strictly complied with the provisions of s.50. It would be, I think, surprising if he had to do so having regard to the privative provisions of s.50(9) which provide that “a decision or purported decision of a disciplinary officer under this section cannot be … reviewed, challenged or called in question in any court”.[4] Tipper’s decision to charge the respondent, in his capacity as disciplinary officer under s.50, was the culmination of a series of other decisions made by him, and it is not suggested that they were made otherwise than in good faith and, on their face, within his power[5], save, of course, for the argument that, having acted under paragraph (e) of s.50(5), he could not then act under paragraph (d). Accordingly, (subject to this last), the decisions taken should not be regarded, at least in this Court, as invalid[6]. In this respect it is of interest to note the comments of the author (Matthew Groves) in an interesting article in the 1998 volume of the Monash University Law Review entitled “Proceedings for Prison Disciplinary Offences : the Conduct of Hearings and Principles of Review”[7]. The learned author noted in respect of s.50 of the Corrections Act (Vic.), correctly in my view, that:
“The investigation is designed to filter alleged incidents of misconduct, rather than to accord any preliminary procedural rights upon prisoners. This view is fortified by the inclusion of a strong privative clause precluding any review of any actions or decisions of disciplinary officers (s.50(9)). Accordingly a prisoner cannot expect to stymie a charge at this stage, particularly by way of relief under a judicial review application … .”
In these circumstances, I am unable to accept his Honour’s conclusion that s.50(9) had no application because it was not “the merits” of what Tipper had done which was being “called into question” by the respondent.
[4]This provision was saved from invalidity (if, indeed, it needed to be) as a consequence of the operation of ss.18(2) and 85 of the Constitution Act 1975, by virtue of s.4(1) Constitution (Supreme Court) Act 1989, as extended by s.6 of Act No. 35 of 1991. Cf. Broken Hill Pty. Company Ltd. v. Dagi [1996] 2 V.R. 117 at 157 ff. per Tadgell, J.A.
[5]cf. Dimozantos v. Governor of Barwon Prison & Anor., supra, per Ashley, J. at 20-1.
[6]R. v. Hickman; ex parte Fox & Clinton (1945) 70 C.L.R. 598 at 615-6 per Dixon, J.
[7](1998), Vol. 24 Monash University Law Review No.2, 338 at footnote 27.
In any event, I differ, with respect, from his Honour’s view that the provisions of s.50 are to be interpreted as laying down a “stepped approach”, strict compliance with which is a condition precedent to a valid charge and, thus, to jurisdiction of the Governor to hear it under s.51 and s.53. His Honour interpreted s.50 as imposing upon the disciplinary officer a mandatory requirement to record the prison offence in the register of offences after he had become satisfied that the offence had been committed, and before he took any further action in accordance with the section. In his Honour’s view, the scheme of the Act required such a “step”, because (inter alia) “It would help to ensure that the person who laid the charge (or reprimanded the prisoner or referred the matter to the police) had given serious thought to the matter and would offer some protection to prisoners by regulating and formalizing procedures for the handling of prisoner offences”. Thus, by finding that Tipper had, contrary to his evidence, satisfied himself that the respondent had committed the prison offence by the time he handed the substance to the police, his Honour concluded that there was a breach of the first “step” in the “stepped approach” because he had failed to enter the offence in the register by that time.
Furthermore, so his Honour found, Tipper had thereafter elected “to take steps to have the matter dealt with under the criminal law” (s.50(5)(e)) by handing the substance to the police, and thereafter being present whilst the police interviewed Tipper and later making a statement to the police himself. Because the “discretionary actions” available to the disciplinary officer under s.50(5)(a), (b), (d) and (e) were, in his Honour’s view, mutually exclusive, the taking of one of them precluded the disciplinary officer thereafter from taking any other of them – notwithstanding that the first action taken had “come to nought”. Therefore, because Tipper had chosen to take the action prescribed by s.50(5)(e), it was beyond his power to thereafter charge the respondent under paragraph (d) when informed by the police that they were not proposing to take action and “referred [the matter] back to Fulham Centre for disciplinary action”. In those circumstances, his Honour concluded, the charge laid by Tipper against the respondent on 7 October 1999 was a nullity, and the Governor had no jurisdiction to hear it.
This approach to the interpretation of the Act, in my view, reads too much into the relevant provisions and is apt to stultify, rather than assist, their evident purpose of maintaining discipline within the prison system. I cannot accept that s.50 imposes an obligation upon the disciplinary officer to follow a “stepped approach” of the type identified by the judge as a condition precedent to the preferment of a valid charge. It is true that s.50(5) provides that, if after investigation the disciplinary officer is satisfied that the offence has been committed, he or she “must record the offence in the register … and may, in addition, do one of the following …”. However, it does not say that the recording of the offence in the register must be made at any particular time. It is to be observed that the offences to which it refers are, predominantly, those which are found in regulation 44 of the Corrections Regulations 1998. Many of them are of a minor character which will attract immediate discipline in the form of reprimand or a direction for loss of privileges for a period of less than 14 days if they are found being committed by the disciplinary officer. To expect him to “stay his hand” until he had made the necessary entry into the register would, in my view, be calculated to prevent effective discipline rather than to promote it. It seems to me that the requirement (implied by the word “must”) of entry into the register is an administrative one which is designed to promote transparency in the disciplinary process and to prevent arbitrary behaviour. The register to which the section refers, the relevant page of which was before his Honour, is entitled “Register of Prisoner Charges” (and not “register of offences”) and provides only for entries relevant to offences in respect of which charges have been laid. A cursory glance at it suggests that each of the relevant columns has been completed by the same person at the same time; presumably at the completion of the hearing of the charge. The fact that the person hearing the charge completes the registration of details does not mean, as his Honour appears to have thought, that he was “laying” the charge as well as hearing it.
It may well be that the reason for the words “must record the offence in the register” is to be found in the legislative history of s.50. When the Corrections Act was first introduced into the law of this State in 1986, s.50(5) provided that:
“Subject to sub-section (4) if after investigating an alleged prison offence, the chief prison officer is satisfied that the prisoner has committed the offence, [he or she] may do any of the following:
(a) …
(b) …
(c) record the offence in the register of offences;
(d) …
(e) …”.
Paragraphs (a), (b), (d) and (e) were in substantially the same form as they are now. Paragraph (c) can there be seen to be “out of kilter” with the other paragraphs which were each designed to invest the relevant officer with a power of a particular form of discipline. By Act No. 16 of 1991 the legislature amended the section to remove paragraph (c) so as to exclude it as a form of discretionary option and to insert it into the body of the section as a requirement rather than a discretion. It is apparent from the Explanatory Memorandum and the second reading speech that the government of the day did not regard the amendment as imposing a condition precedent to the taking of additional action but rather as a “… contribution to ensuring that a high standard of good administration and management of the correctional system is maintained”[8]. Thus, clause 12 (the relevant clause) of the Explanatory Memorandum provides that it was designed “to empower a disciplinary officer to record an offence committed by a prisoner and adopt one of various measures to deal with the offence”. In introducing the bill into the Assembly the relevant Minister said of the proposed amendment:
“Improvements have been made to prisoner discipline by extending the senior prison staff who can address minor disciplinary matters. These members will be known as Disciplinary Officers who will be able to enter all offences committed by a prisoner into a register of offences and, in addition, impose a single penalty on a prisoner.”[9]
There is nothing in this history which suggests that the purpose of the amendments was to make the entry into the register a condition precedent to the valid preferment of a charge.
[8]Second reading speech, Hansard, Assembly, 15 November 1990 at 2059.
[9]Op. cit. 2059.
Nor, with respect, can I agree with his Honour’s conclusion that the fact that the disciplinary officer took the step of sending the substance to Senior Constable Dawkins, and thereafter was present at a record of interview and made a statement to the police, amounted to “taking steps to have the matter dealt with under the criminal law” pursuant to s.50(1)(e); or that – if it did – it precluded him from charging the respondent with the prison offence under s.50(1)(d) of the Corrections Act when the police referred the matter back for disciplinary action. It is not at all clear to me what is meant by “[taking] steps to have the matter dealt with under the criminal law”, although it might be thought that it requires more conclusive action than the paragraph which it replaced in 1991 which had spoken of “[referring] the matter to the police to be dealt with under the criminal law” (my emphasis). However, in my view, the steps which were taken by Mr. Tipper, and which his Honour identified, amounted to no more than asking the police to investigate the circumstances to determine whether an offence had been committed. As I have said, regulation 66 of the Corrections Regulations provides that:
“The Governor must ensure that … a drug of dependence seized in a prison is given to a member of the police force as soon as possible.”
It was under this regulation that Tipper said he acted when the substance was found. It would, I think, be surprising if compliance with this obligation were to preclude a prison officer from charging a prison offence under sub-paragraph (d) of s.50 in the event that the police declined to take any action. Whatever is the ambit of the expression :
“… the disciplinary officer … may do one of the following:
(e) take steps to have the matter dealt with under the criminal law”,
it must mean something more than what Tipper did here.
If his Honour is correct, and the officer was precluded, in the circumstances which obtained here, from charging the prison offence, it would significantly detract from the maintenance of discipline within the prison[10]. In my opinion – and bearing in mind the obvious purpose of the legislation – the taking of steps to “have the matter dealt with under the criminal law” must mean the taking of steps by the officer which will put the matter before a court which has the power to deal with “the matter”, as distinct from merely sending the substance (as prison authorities are required to do under regulation 66) to the police for investigation. Indeed, in the course of his submissions, counsel for the respondent conceded that this was a course open to the disciplinary officer. It had been put to his Honour that the prison offence here charged was not one known to the criminal law, and was, therefore, not a “matter” capable of being dealt with under “the criminal law”[11]. However his Honour, in the case under appeal, took the view that the “matter” was not the “prison offence” but rather the circumstances surrounding “the incident”. I am not, for my own part, entirely sure whether this is correct because, upon the hearing of the charge, the Governor himself can “take steps to have the matter dealt with under the criminal law” (s.51(d)), or, if he sees fit, can remit the “matter” back to the disciplinary officer to be dealt with by him under s.50(5), presumably under paragraphs (a) or (b), if he is satisfied that the matter should have been so dealt with in the first place. This suggests that the legislature did not see much, if any, difference between the “matter” if dealt with by the disciplinary officer and the “matter” to be dealt with by the criminal law. However that may be, in this case Tipper did not, I think, act under paragraph (e) of s.50(5) and so, on any view, was not precluded from acting under paragraph (d). When the Corrections Act speaks of “taking steps to have the matter dealt with under the criminal law” it means more than merely referring a substance to the police, as required by regulation 66 of the CorrectionsRegulations. Rather it means preferring or causing to be preferred a charge in a court which has jurisdiction to hear it.
[10]As a result of his Honour’s decision in this case, the legislature – by Act No. 45 of 2001 – amended s.50. Section 34(3) of the Corrections (Custody) Act 2001 deleted sub-paragraph (e) from s.50(5) and inserted a new sub-section (5A) in the following form:
“(5A)In addition to any action the disciplinary officer may take under sub-sections (5)(a), (b) or (d), the disciplinary officer may also take steps to have the matter dealt with under the criminal law.”
The Minister’s second reading speech (Hansard, Assembly, 3 May 2001, p.1037) did not suggest that the amendment was designed to make a change to existing procedure. He said:
“Technical difficulties have recently arisen in relation to the operation of disciplinary hearings where a disciplinary officer has ‘taken steps to have the matter dealt with under the criminal law’ by referring the matter to the Victoria Police. … This poses significant operational difficulties because prison providers need to be able to ensure that they can manage prisoners who commit prison offences, even where these offences are not criminal offences. Accordingly, the bill clarifies the current provisions to ensure that they are consistent with long-standing practices which are necessary for the safe custody and welfare of prisoners.” (my emphasis.)
[11]Contrast Henderson v. Beltracchi (1999) 105 A.Crim.R. 578 where Mandie, J. considered that every prison offence might be a “summary offence”.
It is for the reasons stated that I have come to the conclusion that his Honour was in error in construing the provisions of s.50(5) of the Corrections Act as providing a strict code to be followed by the disciplinary officer, any departure from which would result in the Governor being deprived of jurisdiction to hear the charge which had been put before him. Nor do I consider that the disciplinary officer had taken steps to have the matter dealt with under the criminal law, so as to preclude his charging the prisoner under paragraph (d).
Natural Justice
Mr. Richter did not labour those reasons given by his Honour concluding that there had been a denial of natural justice by failing to permit the respondent to cross-examine Crimmins – or to further cross-examine him – by reference to the video-tape. In my opinion, once the Governor had embarked upon the hearing of the charge, it was a matter for him to determine whether the boundaries of permissible cross-examination had been exceeded; and it was within his legitimate jurisdiction to conclude whether he would be assisted by further cross-examination by the respondent of Crimmins with or without reference to the video tape.
However, in my view, his Honour was quite correct in his conclusion that the Governor had breached the rules of procedural fairness by excluding the respondent from the hearing whilst he made inquiries of the informant and his witnesses relevant to the critical issue which had been raised by the respondent; namely whether urine analysis tape had been used to seal the computer. The requirements of natural justice:
“… must depend on the circumstances of the case, the nature of the inquiry, the rules under which the [decision maker] is acting, the subject matter that is being dealt with and so forth.”[12]
[12]Russell v. Duke of Norfolk [1949] 1 All.E.R. 109 at 188; Kioa v. West (1985) 159 C.L.R. 550 at 627 per Brennan, J.; Henderson v. Beltracchi, supra, at 588 per Mandie, J.
Granted that the Governor was dealing with a matter involving prison discipline, and that he was a prison officer who was, presumably, not familiar with intricate rules of procedure or law, he must – at least – be assumed to have known that the procedure upon which he had embarked required, in the interests of fairness to the person accused, that all information which he received relevant to the charge before him should be taken in the presence of that person. It is not suggested, nor do I suggest, that the Governor – in making inquiries about a matter material to the facts in issue “behind the back of the respondent” – was intending to act unfairly. However, I am left with the clear view that, in acting as he did, the conduct of the Governor had given rise to a reasonable suspicion that a proper hearing and a proper and fair determination would not be afforded to the respondent, and that procedural fairness had been denied to him[13]. I am quite prepared to accept that the Governor became concerned, during the course of the proceedings, at the presence of urine analysis tape in the cell of the respondent. The presence of such tape in the cell of a prisoner would undoubtedly raise a “security issue” in the mind of a person responsible for the proper conduct and security of the prison. Nevertheless, the issue which had been raised in the quasi-judicial hearing upon which the Governor had embarked involved the determination of who had been responsible for the introduction of the tape into the respondent’s cell. It was inimical to the interests of a fair hearing of that issue for the respondent to be excluded from the room whilst the person responsible for determining the issue conducted a private inquiry with the informant and his witnesses about the provenance of the tape. Such an inquiry could only have been conducted to enable the Governor to satisfy himself on matters which he was obliged to fairly determine in the proceedings then before him. In so conducting himself a suspicion of bias, inconsistent with the fair performance of the Governor’s duties, must have arisen with the consequence that “a substantial distrust of the result must exist in the minds of reasonable persons”[14]. I agree with the judge that there was no reason for the Governor not to have postponed his inquiry until he had determined the issues which had been put before him in the proceedings. I also agree with his Honour that, in the circumstances to which I have referred, the rules of natural justice had been significantly breached.
[13]cf. Ewart v. Lonie [1972] V.R. 308 at 313; R. v. Lilydale Magistrates’ Court [1973] V.R. 122 at 131.
[14]cf. R. v. London County Council (1894) 71 L.T. 638 at 639.
Conclusion
For the reasons stated, I am of the opinion that his Honour was in error in concluding that the Governor had no jurisdiction to entertain the charge which had been preferred against the respondent; but that he was correct to conclude that the rules of natural justice had been breached in the course of the hearing. As I have said, the judge himself had concluded that a re-hearing of the prison offence was “not open” because of his findings as to want of jurisdiction; but had refrained from determining what orders would flow from his finding that there was a denial of natural justice. Mr. Ross submitted that, in the event that this Court should conclude that the Governor did have jurisdiction to hear the charge, but that procedural fairness had been denied in the course of the hearing, we should remit the matter for a further hearing or, at least, remit the matter to the trial judge to determine what result should follow in the light of the Court’s conclusions. For my own part, I do not believe that such a procedure would be appropriate or fair. More than three years have passed since this prison offence was committed, and I am far from satisfied that, due to the lapse of time, a fair hearing could now be afforded to the respondent. Accordingly, it is my view that the appropriate order for this Court to make is that the appeal be dismissed.
PHILLIPS, J.A.:
I agree with the President.
BATT, J.A.:
I agree with the conclusions of the President and with his Honour’s reasons, which I have had the benefit of reading. I add some remarks of my own.
Particularly when compared with the terms in which s.50(5) of the Corrections Act 1986 was originally enacted, the words “must record” in sub-s.(5) are obligatory, but the obligation is incomplete or non-compliance with it is without consequence here, in that, for the several reasons given by the President, the prisoner concerned cannot found on the non-compliance a challenge to the doing by the disciplinary officer of one of the acts enumerated in the lettered paragraphs of sub-s.(5). I agree too that a temporal sequence between the obligatory recording and an enumerated optional act is not set up by sub-s.(5).
A disciplinary officer proceeding under sub-s.(5) for a first time (an expression I use to distinguish the process from that of proceeding on a reference back from the Governor under s.51(a)) may do only one of the optional acts enumerated. That is what the sub-section says – “one of the following”. It does not say “one or more”. “One” cannot be pluralised, whether into “two” or “all” or otherwise. Again, the matter is put beyond doubt by reference to the original form of the sub-section, which spoke of “any of the following” and included, as paragraph (c), recording the offence in the register.[15] It is not inconsistent with the foregoing view that a disciplinary officer proceeding on a reference back, who by hypothesis
initially acted under paragraph (d) of s.50(5), should do an optional act different from his initial act. That is indeed required in order to avoid an inextricable circle. The different act can properly be done because the reference back operates as a re-grant of power or re-enlivens the discretion. But again, in this process, the disciplinary officer may do only one optional act, though this time the officer is practically limited to opting between paragraphs (a) and (b), the Governor, by opting against the course in paragraph (d) of s.51, having effectively ruled out the same course in paragraph (e) of s.50(5).
[15]It is unnecessary to consider the effect of the word “or” at the end of each of the first four lettered paragraphs. Although “any” frequently has a plural reference, it certainly seems not to do so in s.51, for the several acts there enumerated are mutually inconsistent.
I agree that the meaning of the expression “take steps to have the matter dealt with” is by no means clear: the three verbs or verbal phrases italicised, not to mention the word “matter”, are extremely vague. Is the compound expression merely conative or inchoative (as the expression “take steps with a view to having the matter dealt with” would clearly be) or is it, on the other hand, perfective, denoting achievement (meaning “take steps to have, and succeed in having, the matter dealt with”)?[16] It could be either, depending on context, and the context here is slight even when the legislative history of the expression is included. But a concluded view need not be expressed, for, even if the first and less demanding alternative interpretation is correct, Tipper did not select this option: he did not seek to invoke the criminal law.[17]
[16]Even then, the denotation of “dealt with” in the present context may not be disposal or finalisation, but prosecution or hearing.
[17]It may be noted that, on the other interpretation, a disciplinary officer who had referred the matter to prosecuting authorities would be at liberty to take action under another paragraph in the event that those authorities declined to lay a charge.
3
0
0