Henderson v Beltracchi [1999] VSC 135

5. The four defendants to the proceeding are named as Mr John Beltracki (the correct spelling is "Beltracchi"), Mr Shane Hamilton, and Mr Shane (the correct name is "Scott") Dixon (all three being described as Correctional Managers at Fulham) and Australasian Correctional Management Pty Ltd. No points were taken as to whether the correct person or persons had been named as defendants.

8. The grounds relied upon by the plaintiff, as set out in the originating motion (as amended), are:

"(a) That the first named Defendant, Correctional Manager Mr. John Beltracki erred in law at a General Managers Hearing in finding that the charge against the Plaintiff under Section 48-53 of the Corrections Act 1986 and Regulation 44 of the Corrections Regulations 1998 was proven beyond reasonable doubt in that he refused: (i) The Plaintiff to call witnesses (ii) To accept into evidence a briefing paper for Victorian prisons `Urine Drugs of Abuse Testing: Detection Times and Interpretation of Urine Results'. (iii) To allow the Plaintiff to cross examine the informant of the charge. (b) That the second named Defendant, Mr. Shane Hamilton erred in law under section 48-53 of the Corrections Act in that: (i) He incorrectly filled out the Notification of Charge of a Prison Offence form. (ii) He refused to allow the Plaintiff the 72 hour waiting period before the hearing. (d) That the first named Defendant erred in law in that, in respect of the one offence, he both imposed a fine and withdrew privileges from the Plaintiff, contrary to section 53(6) of the Corrections Act 1986.

Particulars

The first Defendant, having convicted the Plaintiff of one offence under Regulation 44(1)(f) of the Corrections Regulations 1998. (a) fined the Plaintiff $30.00 (b) banned the Plaintiff from contact visits."

13. Part 7 of the Act deals with "Prison Discipline" and relevantly provides as follows:

"48. Definitions 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; `privilege' in relation to a prison means any of the privileges determined in accordance with the regulations for that prison; `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. ... 50. Prison 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 a disciplinary officer under this section cannot be appealed against, reviewed, challenged or called in question in any court. 51. Governor'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; or (b) if the Governor and prisoner agree to a shorter period, within the shorter period; or (c) if the prisoner is due to be discharged from prison within 7 days of the alleged prison offence occurring or if, in the opinion of the Secretary, a period of notice shorter than 72 hours is necessary for the security or good order of the prison, within the period determined by the Secretary - 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) At a Governor's hearing the prisoner, if he or she attends the hearing may be represented by another prisoner if the Governor approves. (3A) If a prisoner, having been given notice under sub-section (1) of the time, date and place of the hearing, refuses or fails to attend the hearing, the Governor by whom the charge is to be heard may proceed to hear and determine the charge in the prisoner's absence. (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 1 penalty unit; (c) withdrawal of 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; (5) The payment of fines imposed under sub-section (4) may be recovered by deduction in accordance with the regulations from moneys payable to, or held by or for, the prisoner. (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." 54A. Power of Secretary to withdraw privileges (1) If the Secretary is satisfied that - (a) an investigation into whether a prisoner committed a prison offence is being carried out; or (b) a prisoner has been charged under section 50(5)(d) with a prison offence; or (c) steps have been taken to have an alleged prison offence dealt with under the criminal law - the Secretary may withdraw one or more of the prisoner's privileges for such period as the Secretary thinks fit. (2) The Secretary may only withdraw a prisoner's privileges under sub-section (1) if he or she is satisfied that it is necessary to do so in the interests of the management, good order and security of the prison concerned. (3) The withdrawal of privileges under sub-section (1) does not affect the imposition of any other penalties under this Part or under the criminal law in respect of the prison offence."

17. In addition to the statutory provisions, the Corrections Regulations 1998 provide as follows:

"36. Prisoner Privileges (1) Annually, each Governor must submit to the Secretary, for the Secretary's approval, a list of prisoner privileges to operate in the prison for all prisoners or for various classes of prisoners. (2) The Secretary may approve or refuse to approve the list submitted under sub-regulation (1), or approve it with changes and may, at any time, delete from, or add to, the list of prisoner privileges to operate in a prison. (3) The privileges for the time being appearing in a list approved under this regulation are the privileges determined for the prison. ..... 44. Prison Offences (1) A prisoner must not-- ..... (f) take or use alcohol, a drug of addiction or drug of dependence or an unauthorised substance or article that has not been lawfully issued to the prisoner or take or use alcohol or a drug of addiction or drug of dependence lawfully issued in a manner that was not prescribed or authorised; 45. Conduct 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.

46. Prisoner must be given details of the charge and hearing procedure

A Governor who is required to give a prisoner a notice under section 53(1) of the Act of the time, date and place of the hearing must also, on giving notice, give the prisoner written advice of--

47. Preliminary steps if prisoner present at the hearing

(1) If a prisoner charged with a prison offence attends the hearing of the charge--

(a) the prisoner must be informed of the procedure for the hearing; and

(b) the charge must be read to the prisoner; and

(c) the prisoner must be given an opportunity to state his or her plea.

(2) The charge must include--

(a) the name of the informant; and

(b) the details of the place of the alleged contravention; and

(c) the details of the relevant provision of the Act or Regulations allegedly contravened.

(a) the informant must present evidence to support the charge; and

(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. "

43. On 2 July 1998 the plaintiff was temporarily moved from Fulham to Port Phillip Prison for the purpose of attending certain court cases at the Melbourne Magistrates' Court. He was transported between Port Phillip Prison and that court on or about 3 and 6 July 1998 and then on 7 July 1998 he was returned and transported back to Fulham. On his return he was ordered to provide and did provide two urine samples. On 16 July 1998 the plaintiff was informed by Mr Hamilton that the first sample taken on 7 July 1998 was "positive" to cannabinoids and had a reading of "16" and that the cut-off point was "15". The plaintiff requested that the second sample be tested. This was done and the second sample also tested "positive".

46. In paragraph 6 of his affidavit sworn 28 September 1998, the plaintiff swears that whilst being transported to and from court, "on or around" 3 and 6 July 1998, he "was exposed passively to cannabis being smoked by other persons unknown to me in the vehicle used to transport prisoners to and from court" ("the passive smoking defence"). I note that in answer to this paragraph of the plaintiff's affidavit, Mr Beltracchi, the Corrections Manager (Operations) at Fulham, in his affidavit sworn 21 October 1998 deposes that "I believe as a result of my inquiries in this matter that [the plaintiff] ingested the drug cannabis intentionally and not by reason of him inhaling it passively".

49. On 16 July 1998 the plaintiff said to Mr Hamilton that he had not used cannabis and that the positive result must be due to passive smoking in the police van with other prisoners and Mr Hamilton said to him, in substance, that if that was his defence, he should "present it at the hearing" and his role was just to inform the plaintiff of the reading.

52. On 13 August 1998 the plaintiff was given a form of Notification of Charge of Prison Offence whereby he was charged by Mr Hamilton (the designated disciplinary officer) on the information of Mr Dixon with the offence of "take or use alcohol, a drug of addiction or drug of dependence or an unauthorised substance or article that has not been lawfully issued to the prisoner or take or use alcohol or a drug of addiction or drug of dependence lawfully issued in a manner that was not prescribed or authorised" allegedly committed on 7 July 1998, contrary to Regulation 44(1)(f) of the Correction Regulations 1998. (No ground was raised relating to the inappropriate manner in which the charge was framed or the lack of particulars.)

55. The Notification form advised that "[P]roceedings relating to this matter will take place at a General Manager's hearing to be held on Date and Time to be Advised: ------ before Terry Easthope (General Manager) or Nominee." The space for the time and date of hearing was left blank. An endorsement stating "I agree to waive the 72 hours waiting period" was not signed. Page two of the form contained a summary of the procedures required or provided for under the Act. The plaintiff enquired at the time of service as to the time and date of hearing and was told that he would be advised at a later date. He was told that he had a right to waive the 72 hour period but said that he did not want to. At about this time, the plaintiff discussed the passive smoking defence with a prison officer and drug treatment manager, Mr J. Worters. The contents of the conversation are a matter of dispute but Mr Worters did provide the plaintiff with a copy of a paper by a Dr Olaf Drummer. The plaintiff then wrote a letter to Dr Drummer asking him to be a witness by telephone at the Governor's hearing.

58. On 19 August 1998, without any further prior notification, the plaintiff was informed that the charge would be heard that day and five minutes later he was brought before Mr Beltracchi in his capacity as the Governor's delegate (see s.24 of the Act). Mr Hamilton was also present. The plaintiff complained that he had not been given 72 hours notice and, in substance, indicated the need for a 72 hour adjournment but this was refused. The charge was read out and the plaintiff pleaded not guilty. I find that the plaintiff produced to the hearing a list of three witnesses whom he wished to call, which he had hastily hand-written upon being notified of the hearing. They were Dr Drummer, Mr Worters and Mr Hamilton.

61. The plaintiff said he wanted to call witnesses. Mr Beltracchi asked who he wished to call. He said he wanted to call Mr Hamilton and Dr Drummer. Mr Beltracchi said that Shane Hamilton was present and that Dr Drummer did not appear to be a relevant witness as he was not present when the urine sample was taken. The plaintiff was asked to explain his defence and why he was pleading not guilty. The plaintiff said in substance that he had passively smoked cannabis whilst being transported to Melbourne for a court case. He said he wished to produce a paper written by Dr Drummer entitled "Briefing Paper for Victorian Prisons". Mr Beltracchi said in substance that it was unnecessary for him to present the paper as he had read it, was aware of its contents and it could not be considered by him as its findings contravened the guidelines contained in a document entitled "Victorian Prison Strategy". The plaintiff said that he wished to cross-examine the informant and to view the Certificate of Analysis. Mr Beltracchi refused both of these requests "on the grounds of relevance". Mr Beltracchi said that the informant was a designated or nominal informant not a relevant witness and that the level of cannabis was not put in issue, merely whether that level could result from passive smoking.

64. The plaintiff then questioned the level of cannabis recorded. Mr Dixon (the informant) is said to have advised by telephone that the reading detected in the first sample was "16" and in the second sample "15". However, it is not clear whether the second sample result was conveyed to the plaintiff.

67. The plaintiff then said that he had passively smoked cannabis in a prison van and described the circumstances, namely, that he had been in the prison van when one "joint" had been passed around and smoked by other prisoners but not himself. Mr Shane Hamilton said that such a high level as 16 could not be the result of passive smoking in the van.

70. Mr Beltracchi told the plaintiff that he did not accept the passive smoking defence and he found the charge proved and fined the plaintiff the sum of $30.00.

73. The defendants called as a witness in this proceeding Mr Dennis Ramantas, a medical scientist, who had tested the two samples. Mr Ramantas said that testing a urine sample for cannabis was a two stage process. The first stage was an immunoassay screening process. The accepted standard cut-off point for cannabis at that stage was 50 nanograms per millilitre so that any reading in excess of 50 was treated as positive and only samples with readings over 50 went to the second stage. The second stage was GCMS (gas chromatography mass spectrometry) which tested for the active ingredient, a particular metabolite or analyte called delta 9 tetrahydrocannabinol or "THC". The standard cut-off point for THC was 15 nanograms per millilitre. A sample was deemed positive if it was above 15 ng/ml. The plaintiff's first sample which gave a result of 16 ng/ml at the second stage was thus positive. The second sample (which would be degraded) was not positive, however its accepted use was merely to "confirm the presence of that drug and not how much".

76. The plaintiff deposes that he had wished to call evidence to show that the positive cannabis reading which he described as "very small" was indicative of passive smoking and did not support the charge of using or taking a drug of dependence. For that purpose, he wanted to call (by telephone) Dr Drummer, Associate Professor in Forensic Medicine (Monash University), who was the author of a paper entitled "Briefing Paper for Victorian Prisons - Urine Drugs-of-Abuse Testing: Detection Times and Interpretation of Urine Results". In his paper, Dr Drummer states, inter alia, that passive inhalation to cannabis smoke can occur and the degree of exposure will determine the urine readings for cannabinoids. He refers to one study in which exposure for 30 minutes in the confined area of a motor vehicle to the smoking of a 1.5% cigarette produced plasma concentrations of THC of 1.3 to 6.3 ng/ml (but that the screening results did not exceed the 50 ng/ml cut-off). After dealing with a number of other matters in the paper, Dr Drummer concludes that "[t]here are a number of limitations associated with urinalysis for drugs-of-abuse which must be recognised to avoid misinterpretation. While not all factors have been included in the briefing paper, hopefully readers will find some benefit. In cases of doubt, or dispute, it is recommended to seek expert advice".

80. The Office of the Correctional Services Commission has issued a document entitled "Victorian Prison Drug Strategy" ("the Drug Strategy"). The Drug Strategy has been "adopted" at Fulham. The Drug Strategy sets out procedural guidelines for the analysis of urine samples at an accredited pathology laboratory. Section 5.9 of the Drug Strategy provides for initial identification by Enzyme Immunoassay testing with a threshold for cannabis of 50 ng/ml and for confirmation using Mass Spectrometry. However, it must be noted that section 5.10 of the Drug Strategy provides that where a positive result can be directly attributed to a drug not issued by a medical practitioner, the level required to return a positive result will be "above 0.00 micrograms per millilitre".

83. The Drug Strategy (section 2) provides for deterrence of drug use by "the imposition of the Identified Drug User (IDU) status and associated sanctions". The Drug Strategy provides that any prisoner found guilty of certain prison offences (including taking or using a drug of addiction) at a Governor's hearing (or in court) will receive an IDU status. An IDU1 status (first offence) is subject to a number of "sanctions" including "restricted access to the Contact Visit program" for three months.

86. Mr Dixon (the informant and a prison officer with the duties of "urinalysis co-ordination") deposes that there is "an automatic 60 day ban that is imposed on contact visits until a Governor's hearing in the event of a prisoner providing a urine sample positive for a drug". He describes this as a "mandatory requirement of the prison". Mr J.R. Myers, the Operations Manager at Fulham, deposes to the same effect and describes it as a "necessary management strategy". Mr Dixon and Mr Myers further depose that a prisoner is given an IDU status if his urine sample tests positive to a drug. As a result, the plaintiff was given an IDU status on 10 July 1998 when the first sample result was received and recorded on the "PIMS computer" and the 60 day contact visit ban was automatically imposed. I note that the Drug Strategy does not appear to envisage either that an IDU status should be given upon receipt of a positive result and before conviction or that such a ban should be automatically applied but the Drug Strategy does not have the force of law and may, no doubt, be supplemented by further administrative or management measures, formal or informal. A prison governor is entitled to take appropriate steps for the security of a prison and the welfare of the prisoners (s.20 Corrections Act 1986; Binse v Williams [1998] 1 VR 381). In any event, the plaintiff did not canvass this aspect but rather relied upon the contact visit ban to mount a different argument which I consider below.

89. At the conclusion of the Governor's hearing, Mr Beltracchi advised the plaintiff that the contact visit ban would be "extended to 3 months". I find that this was not stated by Mr Beltracchi as part of the penalty for the prison offence. I am satisfied, on the material, that it was a statement of his understanding of the effect of the application of the Drug Strategy and of prison policy, namely that the three month ban under the Drug Strategy was applicable but its commencement dated back to the imposition of the 60 day ban on 10 July 1998.

93. Mr Neal, who appeared as counsel for the plaintiff, submitted that there had been a failure to comply with the principles of natural justice and a failure to allow the plaintiff to present his case or to give him a fair opportunity to present his case at the Governor's hearing. This was constituted primarily by the refusal to permit the plaintiff to call Dr Drummer as a witness and also by the refusal to permit him to rely on Dr Drummer's paper, the refusal to allow the plaintiff to cross-examine the informant and the refusal of the adjournment. It was submitted that this offended common law principles and was also in direct breach of s.53(2) of the Act which provided that 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.

96. Mr Neal submitted, in effect that the plaintiff wished to call evidence concerning the analysis results which would or might tend to support the truth or likely truth of the passive smoking defence but was denied the opportunity to do so. He submitted that the passive smoking defence was open because the offence charged did not cover involuntary inhalation of a drug.

99. Mr Neal further submitted that there had been a clear failure to comply with s.53(1) of the Act which relevantly provided that the Governor must, not less than 72 hours before the hearing, give notice to the prisoner of the time and date of the hearing. Mr Neal said that this breach of the statute was an element of the failure to give a fair hearing and substantially prejudiced the hearing. [However, although he said that it was also a "substantial vice", not merely a formality and an "error of law", Mr Neal did not contend that such non-compliance rendered the hearing a nullity or that the requirement was mandatory in nature or went to jurisdiction. I will therefore abstain from considering that question.]

102. Mr Shepherd, who appeared as counsel for the defendants, accepted that the court had jurisdiction to grant prerogative or like relief in relation to a Governor's hearing if an appropriate ground were established and he specifically conceded that certiorari lay for a denial of natural justice in relation thereto, if established. However, he contended that no such ground was made out. Mr Shepherd submitted that the refusal to hear evidence from Dr Drummer was not a denial of procedural fairness because there was nothing to suggest that his evidence would be relevant or probative. Mr Beltracchi was familiar with the contents of Dr Drummer's paper, which were of no assistance to the plaintiff.

105. Mr Shepherd further submitted that, in considering the question of procedural fairness, and the granting of any relief, all the relevant circumstances should be taken into account and these included policy issues - the importance of the policy aimed at reducing drug use in prisons and the policy that prison discipline should not be removed to the courts.

108. Further, Mr Shepherd submitted that passive smoking was not a defence to a charge of "take or use... a drug of addiction" because involuntary inhalation was covered by the word "take", the offence being one of "absolute" or, at worst, "strict" liability. Accordingly, it was submitted that no evidence of the kind sought to be led could possibly have established a defence. Generally, relief could be refused on grounds of triviality or futility. Mr Shepherd submitted that the plaintiff had 72 hours to prepare for the hearing and was not prejudiced by the failure to give the required notice of the date and time of the hearing or by any refusal of an adjournment. He submitted that cross-examination of the informant would have served no useful purpose. There was therefore no procedural unfairness in those aspects.

"The proper construction of s.44(1)(f) of the Corrections Regulations 1998 is a strict liability offence or one of absolute liability. Allen v United Carpet Mills Pty Ltd and Another [1989] VicRp 27; [1989] V.R. 323. There is no indication of intent required to constitute the offence. The offence may also be a criminal offence under other Federal or State Laws in which event there is a presumption of mens rea in all criminal offences: Cameron v Holt [1980] HCA 5; (1980) 142 CLR 342. In offences of a serious nature courts will be hesitant to impute strict liability: He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523. The offence under regulation 44(1)(f) is one of a Prison security and welfare offence and regulatory nature. As stated in `Criminal Law' (Gilles), strict liability will be construed where it would assist observance and enforceability, save the prosecution having to prove mens rea and: `the citizen, knowing that they may be convicted merely upon proof of voluntary commission of the physical elements of the offence, will tend to exercise more caution in the conduct of activities which expose her or him to the risk of contravention of the law in question.' At 93. The plaintiff took no step prior to the test to inform any person that he had passively smoked cannabis. Had he done so the enforcement of the regulations would have been assisted. This consideration was mentioned favourably in He Kaw Teh in a reference to Lim Chin Aik v The Queen [1963] AC at p174: `it is pertinent also to enquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.' This policy principle is arguably applicable to drug offences in prison where there is a low penalty under s.51 of the Act and minimal or no stigma. It is also consistent with the drug free Prison environment envisaged by the Drug Strategy."

119. The requirements of natural justice depend on the particular statutory framework, the nature of the inquiry, the rules under which the tribunal was acting, the subject-matter that is being dealt with, indeed all the circumstances of the case (see Mobil Oil Aust. Pty Ltd v Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 504 per Kitto J: "What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances"). See generally: Kioa v West [1985] HCA 81; (1985) 159 CLR 550.

122. In my view, here, the legislature has itself expressly provided the essential framework of fair procedure which "must" be adhered to in s.53(1) and (2) of the Act and these are the very requirements which were not complied with. The plaintiff was not given notice of the time and date of the hearing "not less than 72 hours before the hearing" nor did he agree to a shorter period. I am further satisfied that the plaintiff was not given a reasonable opportunity to call a witness, namely Dr Drummer, and that his evidence may have been relevant for reasons which I will state below. In my opinion, the plaintiff needs to show that these departures from the Act deprived him of the possibility of a successful outcome either in relation to conviction or in relation to penalty. It was to negate this possibility that the defendants submitted that another hearing would be futile because it could not produce a different result (cf. Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145; Ex parte Napier v Executive Director Corrective Services (unreported, Supreme Court of Western Australia, Full Court, 15/8/94, Butterworths Unreported Judgments BC9401819 at p.7)).

125. In this regard, it is necessary to deal with the defendants' submissions that the offence is one of absolute or strict liability.

128. In He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523, the majority of the High Court re-affirmed the presumption that mens rea is an essential ingredient in every offence (per Gibbs CJ at 528-9, Mason J agreeing, and per Brennan J at 565-6) but it may be excluded either expressly, or by necessary implication arising from the words used and the subject matter involved. In the generally accepted terminology, "mens rea" need not be proved where the offence is one of "strict" liability but in that class of offence the prosecution must still prove (if raised by the accused) the absence of an honest and reasonable belief by the accused as to any state of facts which, if true, would have made the relevant acts innocent. The offence will be one of "absolute" liability if no mental element need be proven.

131. It is appropriate first to look at the words used in treating the offence because "[t]he full definition of every crime contains expressly or by implication a proposition as to a state of mind" (per Stephen J in R v O'Connor [1980] HCA 17; (1980) 146 CLR 64, 96-7). By regulation 44(1) (f) of the Corrections Regulations a prisoner must not "take or use" alcohol, a drug of addiction or a drug of dependence or an unauthorised substance or article that has not been lawfully issued. In my opinion the words "take" and "use" in this context both connote knowledge of that which is being taken or used. I note also that most, if not all, of the prison offences created by regulation 44 involve by their very nature an ingredient of intention or knowledge.

134. Looking at the subject matter covered by regulation 44, it is true that the offences are "regulatory" in nature in that they are aimed at the maintenance of prison discipline and are the subject of relatively light penalties under s. 53(4) and (6) of the Act when dealt with by a Governor. However, the Act contemplates that prison offences may be "dealt with under the criminal law" (s.50(5), s.51(d)) and it is clear that, in so providing, the Act contemplates that the "alleged prison offence" may itself be the subject of a charge under the criminal law (s.54A(1)(c)). It would appear to follow (although this aspect was not debated before me) that a prison offence is a summary offence for the purpose of the Sentencing Act 1991 (see s.112(1) and (2) of the Sentencing Act) and it would therefore seem that a prison offence, if the subject of proceedings under s.105(1) of the Act in the Magistrates' Court, would be punishable by a term of imprisonment of up to two years (see ss.7(a), 113A and, possibly, 113C of the Sentencing Act) although the matter is not free of doubt - again, this aspect was not debated before the Court. It would seem arguable, therefore, that prison offences if and when dealt with under the criminal law are potentially subject to significant penalties. This factor, if valid, would weigh against any conclusion that the offences are ones of absolute liability or even of strict liability.

137. I am not persuaded by reference to the words used, the context or the subject-matter, that there is no requirement of proof of mens rea, in the full sense of guilty knowledge, in relation to the subject offence (or prison offences generally). I note also that, insofar as the requirement of mens rea or of honest and reasonable mistake might not have assisted the plaintiff even on his own version of the facts, this was not canvassed at the Governor's hearing because the issue there was seen as one of "active" versus "passive" smoking.

140. In any event, it seems to me that the passive smoking defence was at the very least relevant to penalty and that, if established, the fine (admittedly small) may not have been imposed at all.

143. It cannot be said, in my view, that calling Dr Drummer would have been futile. It is possible that Dr Drummer's evidence may have assisted the plaintiff in creating reasonable doubt as to his guilt or in establishing a basis for his version of the facts to be taken into account on penalty. In my opinion, in light of the contents of Dr Drummer's paper, there was such a possibility, even if it was not a very strong possibility. That is to say, evidence from Dr Drummer may have supported the possibility that the plaintiff's urine reading was at least not inconsistent with the passive smoking defence. The evidence of Dr Drummer was not likely to be irrelevant or of no value in relation to the passive smoking defence either as a defence to the charge or, if not, as relevant to penalty. The evidence in the end may have been detrimental to the plaintiff's case but, nonetheless, relevant (cf. Ex Parte Napier, supra, at p.5). I would add that, whilst the penalty was small, the procedural defects were fundamental. I do not regard the matter as falling into the "trivial" class wherein relief might be refused.

146. For the foregoing reasons, I consider that the conviction and fine should be quashed on the grounds of a denial of natural justice and procedural fairness.

150. Mr Neal submitted, in written submissions after the hearing, that, if the conviction and penalty were quashed, the court should not grant a stay of any further charge for the same offence (as he had originally sought) but that a declaration should be granted "to the effect that any decision to prosecute the plaintiff again in respect of his actions on 7 July 1998 would be contrary to law by reason of the fact that the plaintiff has already suffered a penalty for a charge based on the same facts". The "penalty" referred to was the automatic three month contact visit ban under the Drug Strategy. I do not consider that such a declaration is appropriate for a number of reasons. The contact visit ban was not a penalty within the meaning of the Act. It was not the withdrawal of a "privilege" as defined by the s. 48 of the Act and by the Regulations (it was concededly not on any list as required by reg. 36(1)). I am not satisfied that any further ban would be imposed if the plaintiff were convicted on a re-hearing. I should add that I am of the strong view that a re-hearing (if any) should be conducted either by the Governor or by a delegate other than Mr Beltracchi. Any charge should be properly framed. However, I say nothing as to whether there should or should not be such a re-hearing at this stage.

154. The finding made, the conviction of the plaintiff of a prison offence, and the fine imposed, by Mr Beltracchi on 19 August 1998 are all quashed. Order the defendants to pay the plaintiff's costs including any reserved costs.