Knight v Minister for Corrections [2003] VSC 412

Knight v Minister for Corrections [2003] VSC 412 - VSC 2003 case summary — Zoe

[73]

35 On the second matter, proceeding no. 7945 of 2002, the sharp metal lengths or nails found concealed in the plaintiff's pens on 21 August 2002, I am satisfied on the evidence given before me that an offence by the plaintiff was committed. The objects - notably one 3 inch sharpened metal length or nail and one 8 inch sharpened metal length or nail, each concealed in a pen - were found in the plaintiff's cell on 21 August 2002.[2] On that day the plaintiff was given the opportunity before being charged of making an explanation of the presence of the items in his cell: Prison Supervisor Smith's affidavit para. 4. Although Ms Smith's evidence at T.120 l.29-121 l. 5 appears absolute it should be read in the light of her affidavit para. 4 and her re-examination at T.127 l.12-14. It may be that Ms Smith understood the question at T.120 l.25-29 to relate to her personally giving the opportunity, which she did not. Mr Wyley did in her hearing. That is sufficient. The plaintiff was then charged with an offence contrary to Regulation 44(1)(e) Corrections Regulations 1998 of having an unauthorised article in his possession (exhibit D). The charge set out (in stamp form) the offence, following the words of Regulation 44(1)(e) (incorrectly stated to be Regulation 44(e)). It did not specify the objects found. It specified the time, date and place of finding. The plaintiff knew precisely what the charge was and what it related to; although he has feigned blindness in relation to that. Notice was given by the stamp on the charge sheet. In my view it would be preferable in future if the offending items were typed or written out on the charge sheet also, as indeed Mr Shepherd acknowledged in submissions. The hearing was to be on 25 August 2002 but was adjourned to 19 September 2002. The plaintiff was informed of the adjournment and adjourned date and consented to it: s.53(1)(b) Corrections Act 1986. At the hearing the objects were produced.[3] The procedure following at the hearing is set out in the affidavit of Presiding Governor Walker of 13 December 2002[4] and other parallel affidavits. I accept the evidence of the officers Reeves, Wyley and Smith who gave evidence before me and who impressed me as truthful. I accept the evidence of Mr Walker who gave evidence before me who impressed me as truthful and fair. His answer at T.130 l. 23-26 was plainly a logical exposition upon the premise articulated by the plaintiff in the plaintiff's question, not a statement that at the inquiry on 19 September 2002 he had a closed mind. The plaintiff was given, in my view, a full opportunity of making an explanation as required by s.50(2) Corrections Act 1986. The Governor invited the plaintiff to say what he wanted to say in explanation and in mitigation.[5] There is no sequential requirement in s.50(2) of opportunity to make an explanation between finding of guilt and penalty, unlike in a court of law. Regulation 49(c) requires the Governor upon a plea of guilty to "invite the prisoner to make a plea concerning penalty". There is no such requirement in Regulation 48 (procedure on plea of not guilty). However after a plea of not guilty and a finding of guilt, generally, as a matter of fairness, a Governor should give that opportunity to a prisoner, unless the conduct or explanation by the prisoner at the hearing or other circumstances make the opportunity inappropriate. The plaintiff was not denied natural justice and was not wronged by the inquiry. I refuse the relief sought in that matter likewise.

[75]

37 Finally of these first four matters, proceeding no. 4596 of 2002. This proceeding relates to three separate incidents: first, the provision on 1 May 2001 by the plaintiff to another prisoner for removal from Barwon Prison of two computer disks; second, the finding on 21 July 2001 in the plaintiff's cell of a sharpened prison-issue knife secreted in a magazine; and third, the finding on 7 August 2001 in the plaintiff's cell of a pocket radio issued in and to another unit (Acacia Unit). As to the 1 May 2001 matter (the computer disks) the plaintiff on 3 May 2001 was, on the one charge sheet, charged with an offence contrary to regulation 44(g) (correctly 44(1)(g)) following the words of the regulation, as to sending an unauthorised article. The Governor's hearing was stated to be on 7 May 2001. On 7 May the plaintiff was told that the hearing would be on 9 May, which it was. The plaintiff on 9 May 2001 at the Governor's hearing pleaded guilty to this first offence. The second offence charged was an offence contrary to regulation 44(o) (properly 44(1)(o)) of committing an act contrary to the good order, management and security of the prison. The plaintiff at the 9 May 2001 hearing pleaded not guilty to that charge. It was competent to specify the two offences on the one charge sheet. It was competent to lay two charges, as the actions of the plaintiff had two distinct characters: one the physical act and the second the security risk. As I have previously said, it would be better to state in writing the relevant fact of the offence as well as state the regulatory offence; but that does not invalidate the proceeding: the plaintiff knew precisely what was charged, and he pleaded differentially to the charges. The proceeding at the Governor's hearing on 4 May 2001 is set out in Mr Clements' affidavit paragraph 9. The plaintiff was fairly and properly treated. The unauthorised sending out of computer disks was a serious breach of security. As to notice, the plaintiff was given 72 hours notice (s.53(1)(a)) of the proposed hearing on 7 May; at the hearing on 9 May the plaintiff did not request an adjournment or demur from the hearing proceeding then and there (the plaintiff being articulate); and the plaintiff suffered no prejudice thereby. There is nothing in the plaintiff's now complaint about notice. As to the lack of written statement of procedure, it is true that no such statement was provided as it should have been under Regulation 46(b). But the plaintiff well and fully knew, from previous familiarity, the procedure to be followed, which procedure also was orally stated at the commencement of the hearing; and the plaintiff was not prejudiced or disadvantaged in any way by the written deficiency. In the circumstances this is a technical deficiency only. However a Governor henceforth should ensure that the procedure is in print and provided prospectively to prisoners. As to the second matter, the 4 August 2001 Governor's hearing as to the finding on 21 July 2001 in the plaintiff's cell of a sharpened prison-issue knife secreted in a magazine (and a $5 note, inconsequential before this Court) like considerations apply to notice and I shall not repeat them. The knife was prison issue but its sharpening was not and was a serious breach of security. The circumstances of the Governor's hearing are set out in Mr Clements' affidavit paragraphs 11 and 14. It would have been wholly inappropriate for a demonstration of the sharpened knife to have been performed in the limited spatial confines of the hearing room. The Governor under Regulation 45(c) was entitled to be informed in such manner as he thinks appropriate. The evidence to support the charge (Regulation 48(a) was oral and the knife was inspected by Mr Clements outside the hearing room. This was proper in the circumstances. In my view the procedure followed was fair and regular. As to the third matter, the finding on 7 August 2001 in the plaintiff's cell of a pocket radio issued in another unit (Acacia Unit), this matter falls far short of the two other serious security breaches (the computer disks and the sharpened knife). However for the proper and safe conduct of a prison, officers need to know where items are and regularity needs to be observed in that regard. As to notice of the Governor's hearing on 15 August 2001, like considerations as stated above in relation to the 4 May hearing apply and I shall not repeat them. Likewise as to the lack of written notice as to the procedure of the hearing. The offence (of having the pocket radio in Banksia Unit where it was not authorised) contrary to Regulation 44(1)(e) was made out.[8] In conclusion as to these three matters the subject of proceeding 4596 of 2002, the complaints of the plaintiff have not been made out, either to the strict level appropriate for the relief he seeks or on the merits (which in fairness to all the parties I also have considered on the evidence). I refuse the relief sought in each instance.

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Judgment (113 paragraphs)

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