Rich v Scaife [2012] VSCA 92

1 This is an appeal from a judgment given in the Common Law Division on 22 November 2007. The judge dismissed the appellant's claim for a declaration that the respondent acted contrary to law by withdrawing one of the appellant's prison telephone calls privileges and refused the appellant's claim for an injunction to restrain the respondent from continuing to deny the appellant that privilege.

2 The appeal has taken an inordinate time to come to hearing. Principally, that is due to the fact that the appellant is self-represented and is serving a lengthy sentence of imprisonment. He does not have the capacity to prosecute the appeal with the diligence ordinarily expected of litigants. But there are also indications that he did not receive the level of co-operation from prison authorities that one might have hoped. Ultimately, the matter was listed on 9 March 2012 for the appellant to show cause why the appeal should not be dismissed for want of prosecution. After hearing argument that day, the court made directions to enable the appellant to obtain access to legal resources which he considered were necessary in order to prepare the appeal for hearing. Then, when the matter returned to court a week later, the court made orders that the matter be fixed for hearing to be heard as a matter of priority on 4 May 2012, with the appellant to file a written argument by 16 April 2012 and the respondent to file his written response by 16 April 2012.

3 On 12 May 2005, the appellant was charged with multiple offences of dishonesty and remanded in custody to Port Philip Prison. On 17 June 2005, he was charged with further offences of murder, armed robbery and theft of a motor car. On 15 September 2006, he was transferred to the Metropolitan Remand Centre at Truganina.

4 At relevant times, Regulation 36 of the Corrections Regulation 1998 provided that:

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.

5 Pursuant to Regulation 36, by list dated 19 December 2006 the Secretary granted as a privilege: 'telephone calls'.

6 Prior to that, on 7 August 2006, the Director, Prison Services, had issued Director's Instruction No: 4.7 'PRISONER COMMUNICATIONS', providing inter alia for the use of telephones by prisoners.

7 Clause 2.1 of Director's Instruction No. 4.7 provided that :

2.1 General

The use of telephones by prisoners is a privilege, and prisoners can be denied access under defined circumstances. The following criteria apply in determining access to and use of telephones by prisoners.

• access to telephones is available to prisoners to maintain communication links with family, friends, and essential community ties.
• prisoners are responsible for the cost of telephone calls
• eligibility to make telephone calls is dependent on good behaviour and can be withdrawn where a prisoner has been charged with an offence or received full loss of privileges resulting from a disciplinary hearing.
• the privacy of calls will be respected except where there is reason to believe that the use of telephones by prisoner may constituted a threat to the good order and security of the prison.
• calls between prisoner and their legal representatives, the Ombudsman or the Office of Police Integrity are to be treated as confidential.

2.2 Telephone Access

Prisoners may use telephones where they are available for prisoner use and at times determined by the General Manager.

Telephone calls to the prisoner's legal advisers will be granted as part of the normal allocation, except that unsentenced prisoners are entitled to a telephone call to a legal adviser upon reception.

Any additional or free telephone calls will only be made when prisoners are under the supervision of staff of the unit within which the prisoner is held. The approval of the Unit Supervisor is to be obtained prior to the call being made. These calls will only be approved where exceptional circumstances can be demonstrated.

...

A record of all additional or free calls is to be kept in the form of Schedule 4.7(10).

A prisoner's entitlement to telephone access will generally be in accordance with Schedule 4.7(3).

2.5 Arunta Controlled Telephone System (ACTS)

The Arunta Controlled Telephone System (ACTS) is a computer based pay telephone system for prisons, managed by Corrections Victoria.

...

The ACTS only allows approved numbers to be called.

Should a prisoner be found to be using a phone diverter, then that prisoner will lose the ability to use that number indefinitely.

2.7 Entitlement & Approved Numbers

Application for approved numbers should be made by the prisoner on the appropriate form Schedule 4.7(2).

...

Under the Arunta Controlled Telephone System prisoner may make telephone calls only to those numbers which have been authenticated and to people who have indicated their willingness to accept calls...

11 While in Port Philip Prison, the appellant completed a Schedule 4.7(2) form in which he nominated the telephone numbers of the persons with whom he wished to be able to speak by telephone. It included a telephone number on which he wished to be able to speak Ms Sandra Blackney, who is the appellant's wife. We shall call that telephone number 'Ms Blackney's original number'. Permission to make telephone calls in accordance with that request was subsequently granted.

12 On 23 October 2007, the appellant wrote to Nicholas Paul Selisky, the Operations Manager of the Metropolitan Remand Centre, advising that the Governor had that day approached the appellant in the prison yard and told the appellant that: 'You've lost your phone access, it has been removed'. The appellant stated that he had then checked the position and established that his permission to contact Ms Blackney on Ms Blackney's original number had been withdrawn.

13 On the same day, Senior Prison Officer Scott Jell sent a memorandum to Mr Selisky, which stated that:

...

On [23 October 2007] as part of my duties, I read the recent intelligence reports on the prison computer system. I then observed a report that had been entered onto the system regarding the prison telephone activity of prisoner Hugo RICH CRN 13705.

It had become apparent that at 0856 hours on 16/10/07, RICH dialled a number he had listed under the name of Sandra BLACKNEY after previously giving her instructions to divert this call. RICH then spoke to a Court Registrar by the name of Chris TEMPERLEY and had a conversation about legal matters regarding prisoner Xin LIANG CRN 187663.

As a result of the call diversion, the phone number attached to the name of Sandra BLACKNEY has now been placed on the prohibited numbers list of prisoner RICHS' prison telephone account.

14 The next day, Senior Officer Jell submitted a Schedule 1.19(1) Incident/Injury/ Investigation Report Form to Supervisor Hardiman who was designated in the report as disciplinary officer. The Report classified the incident as 'Reportable' and summarised it as follows:

AT 0856 HOURS RICH DIALLED A NUMBER HE HAD LISTED UNDER THE NAME OF SANDRA BLACKNEY AFTER PREVIOUSLY GIVING HER INSTRUCTIONS TO DIVERT THIS CALL. RICH THEN SPOKE TO A COURT REGISTRAR BY THE NAME OF CHRIS TERPERLEY AND HAD A CONVERSATION ABOUT LEGAL MATTER [sic] REGARDING PRISONER XIN LIANG CRN 187663.

The form then described the 'INITIAL ACTION TAKEN' thus:

PHONE NUMBER BELONGING TO SANDRA BLACKNEY HAS NOW BEEN PLACED ON THE PROHIBITED NUMBER LIST OF PRISONERS RICH'S PRISON TELEPHONE ACCOUNT.

The form was noted as 'finalised', and signed by Supervisor Hardiman as the disciplinary officer, and dated 24 October 2007.

15 On 28 October 2007, Miss Carley Wood, the receptionist at the Metropolitan Remand Centre, received a telephone call from Sandra Blackney advising of a new telephone number on which she could be contacted by the appellant. At that time, it was the practice at the Metropolitan Remand Centre to allow the receptionist to receive requests of that kind to assist prisoners in maintaining family ties using the Arunta Controlled Telephone System. In accordance with the practice, Miss Wood completed a request for telephone access form in the name of 'Hugo Rich' specifying the number so advised by Ms Blackney as the 'New Number'.

16 On 29 October 2007, the appellant appeared before Bell J in the Practice Court and moved ex parte for a mandatory injunction to compel the respondent to restore the appellant's permission to contact Ms Blackney on Ms Blackney's original number. Bell J declined to deal with the application ex parte and ordered that the Prothonotary receive the applicant's origination motion and affidavit in support of the application and that it be made returnable inter partes before the judge in the Practice Court on 7 November 2007.

17 On 30 October 2007, the request for telephone access prepared by Miss Wood on 28 October 2007 was processed by Prisoner Officer Rickards. As part of the process, she telephoned Ms Blackney on the new number and asked if she were prepared to receive telephone calls from the appellant on that number. She also told her that such telephone calls may be recorded and monitored. Ms Blackney said that she was willing to receive calls on the new number, and thus Prisoner Officer Rickards that day granted permission for the appellant to have telephone conversations with Ms Blackney on the new number.

18 On the same day, the appellant submitted a welfare telephone call request form requesting permission to call Ms Blackney's original number. The form gave as the reason for the request:

I require a welfare call (legal reasons) to my wife on 30/10/2007 at 7:15pm.

Seemingly, the appellant was not aware at that point that he had been granted permission to call Ms Blackney on the new number.

19 On 31 October 2007, the welfare telephone call request form was marked by a prison officer as:

NOT APPROVED. Phone number [****][1] listed as prohibited number. Telephone call not approved. S Blackney also listed as [####].[2] This number available on prisoner's current ARUNTA contact list.

20 Later that day, Mr Selisky attended the appellant's unit and advised the appellant that the Welfare telephone request had been denied but that the appellant had approval to call Ms Blackney on the new number. The appellant replied that the new number was not Ms Blackney's number but rather that of his step daughter and that he had not requested the new number to be approved. Mr Selisky offered to remove the new number from the approved telephone numbers list but the appellant declined. While Mr Selisky was in the appellant's unit, he called the new number and spoke to Ms Blackney to reconfirm that she was prepared to receive telephone calls from the appellant on the new number. The new number was, therefore, left on the approved numbers list and the appellant thereafter used it to make telephone calls to Ms Blackney.

21 In his originating motion, the appellant alleged that his conduct had been treated and, therefore, should have been investigated as a prison offence in accordance with s 50 of the Corrections Act 1986 ('the Corrections Act'). Section 50 provides that:

50 Prison offences

(1) If an officer within the meaning of Part 5 or an escort 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 subsection (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.

(5A) In addition to any action the disciplinary officer may take under subsection (5)(a), (b) or (d), the disciplinary officer may also 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.

He further alleged that the respondent had contravened s 50, in that:

On 23 October 2007 the defendant arbitrarily removed and cancelled the plaintiff's telephone privileges from the prison location and did so in the direct contravention of the mandatory requirements arising from the statutory framework: i.e. he did not adhere to the standard of conduct required in the exercise of certain duties, powers or functions while exercising discretions and therefore did not -

1. as soon as possible report the fact of an allegation of claimed prison offences to the disciplinary officer;
2. ensure that a proper investigation of all alleged prison offences took place as is required;

1. extend to the plaintiff the right or opportunity of making an explanation in the course of mandatory investigation as is required; and

1. extend the to the plaintiff [sic] the benefit of non-delegable statutory protection decreed by Parliament from the enactment calling and requiring 'the test of satisfaction' from the designated disciplinary office's [sic] discretion before any disciplinary penalty may be considered or applied as it required (cf. s 50(3)(4)(5)(a)(b) and (d) or (e) of the Act).

...

The defendant's decision to arbitrarily remove and cancel the plaintiff's telephone privileges ad infinitum from the prison's telephone control system at this location, is, in all the circumstances, ultra vires.

On 23 October 2007 the defendant furthermore arbitrarily refused to both extend and permit or grant the provision of an emergency 'welfare' telephone call to both the Bail coordinator of the Supreme Court of Victoria and that of my wife. The net affect [sic] of this decision is that the plaintiff is being held in virtual incommunicado and this action is, in all the circumstances unreasonable given his enforced relationship of dependence with the prison system and there fore the decision is ultra vires.

...

The defendant furthermore arbitrarily refused to permit supervised telephone calls for the plaintiff or introduce an expansion of the operational system in respect of the purported approved 'the Welfare Telephone Call System' to [i]nclude telephone access to any appointed coordinator, Registrar at Agency, Tribunals, or Court.

Arbitrarily denying the plaintiff both realistic and supervised access to the business units of an Agency, Tribunal, or Court, given his status as an unrepresented litigant and accused is, in all the circumstances -

1. unreasonable, as it lacks any plausible justification by reason of the fact there has been an error in a finding of fact which is critical to the decision; or
2. the decision-maker has given inadequate weight to a relevant factor of importance; or

1. has given excessive with to a relevant factor of no importance and is inconsistent with other decisions of a like nature; and therefore the decision is, in all the circumstances, ultra vires.

1. An order in the nature of a mandatory interlocutory injunction compelling the defendant without any other consideration to instantaneously re-activate all business keeping records as they were on 22 October 2007 in respect to the plaintiff's previously approved telephone numbers recorded on the prison's telephone control system so that calls may be both made and consumed [sic] without delay.
2. An order in the nature of certiorari restraining the defendant to rely on the impugned decision dated 23 October 2007 in respect of the removal and cancellation of the full import of the plaintiffs telephone privileges indefinitely.

1. An order in the nature of declaration confirming the mandatory prison's disciplinary procedures do not empower a decision-maker to arbitrarily remove and cancel the performance of the prisoner telephone privileges without first conducting an investigation within the terms of the enactment and any decision taken in the absence of these conditions stand[s] as containing no plausible justification, would be unreasonable and therefore null and void.
   1. An order in the nature of both mandamus and declaration compelling the defendant to raise and introduce an operations order, instruction or policy to ensure that the prison's welfare telephone call system provide and permit prisoners to have supervised telephone access to any appointed coordinator or registrar from an agency, tribunal and court to the business entities if required.
   2. An order in the nature of both mandamus and declaration compelling the defendant to take all reasonable operations decisions to ensure that provision of additional prisoner telephone infrastructure in all accommodation units n which the ratio does not accord with the general State-wide policy i.e. one public telephone per 16 to 20 prisoners.

23 In the affidavit sworn by the appellant in support of the application on 29 October 2007, he deposed that:

Access to my wife through the controlled telephone system has been the only means upon which [sic] of trying to maintain a very basic level communication to 'essential community ties' to 'maintain communication link with the family and friends' and exclusively used on a daily basis in advance of trying to find the services of both a solicitor and barrister to represent me given and due to the fact that I am not represented by any legal representation for my criminal matters.

24 In the affidavit, the appellant also submitted that:

... the provisions of the administrative procedure found within the Director's Instruction 1.19 'Incident Reporting' and Director's Instruction 1.16 'Disciplinary Process' apply and in this instance these where [sic] not followed.

I furthermore submit, that the administrative procedures as set out within the directives for incident reporting and the disciplinary process viz-a-viz the enactment only empowers an officer to withdraw a 'privilege' and that this must be done in accordance with the strict legislative framework of the Act. That process dictates that a proper investigation of the alleged prison offence must be conducted and further more that the prisoner alleged to have committed the offence must also have an opportunity of making an explanation.

Further, it is submitted that no disciplinary officer has ever approached me making any allegation, and therefore I verily believe and conclude that no proper or any material investigation of the required has taken place at all.

...

I also submit a telephone call made to a business unit of a court could not, under any circumstances or satisfaction, that there is 'a strong probability that a prisoner's use of the telephone will constitute a threat to the good order and security of the prison, threatens the safety of the general public or may be used in association with the commission of a criminal offence' and therefore both requiring an on masse policy that the privacy and/or confidentially [sic] of all calls be breached and recorded.

...

It is also submitted in the 21st century of prison management in not having comparable and/or equal public telephone booth infrastructure, as is available within all other prison locations in the State, and in the field of public administration which exercises responsibility over its population with the concept of a 'relationship of dependence' and governed almost entirely by the exercise of discretion which can, and often does, generate a wide range of grievances, that such an unbolted policy so practised is a too great of an infringement of the notion of safety or welfare of the prisoner, and the pursuit such an aim is clearly outside the notion of fairness and that of the obligatory realm of the prerequisite statutory framework of legislation.

Moreover, restricting prisoners to a controlled telephone system at this location purportedly a new remand facility, to only ever having a capacity to accommodate no more than 5 calls per hour within any accommodation unit holding 52 prisoners, and given the consideration to 'peak demands' trying to 'speak to lawyers', could not be consistent with the State-wide requirements...

25 The appellants' application came on for hearing before Lasry J on 7 November 2007 after being referred out of the Practice Court by Cummins J. After some argument, it was adjourned on the appellant's application to allow him time to consider submissions made by counsel for the respondent. It came on again on 15 November 2007 but was further adjourned on the appellant's application because he wished to read the transcript. It came on once more on 19 November 2007 on which day the argument was completed.

26 As the judge explained in his reasons for judgment, the appellant put his case below on the basis that 'telephone calls' were a 'privilege' within the meaning of s 48 of the Corrections Act, which could only be withdrawn in accordance with s 50 or, on an interim basis, in accordance with s 54A, and that neither s 50 nor s 54A had been complied with.

27 'Privilege' is defined in s 48 of the Corrections Act as follows:

privilege in relation to a prison means any of the privileges determined in accordance with the regulations for that prison.

28 Section 54A provides that:

(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 subsection (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 subsection (1) does not affect the imposition of any other penalties under this Part or under the criminal law in respect of the prison offence.

29 The judge found or at least said that he proceeded on the basis that 'telephone calls' were a privilege within the meaning of s 48. He noted that the list of privileges, dated 19 December 2006, purported to be made pursuant to reg 36(1). This list indeed includes 'telephone calls' as a prisoner privilege.

30 The judge held, however, that neither s 50 nor s 54A applied because his Honour considered that making a telephone call to a number that is diverted was not a 'prison offence' and, that in any event, the revocation of the appellant's ability to speak to Ms Blackney on her original number did not amount to the 'withdrawal' of the privilege of 'telephone calls'.

31 Before this court, the appellant contended that the judge erred in holding that the making of a diverted telephone call was not a prison offence within the meaning of the Corrections Act.

32 At relevant times, prison offences were defined in the Corrections Regulations 1998 as follows:

44. Prison Offences

(1) A prisoner must not-

(a) assault or maliciously threaten another person;

(b) act in a disruptive, abusive or indecent manner, whether by language or conduct;

(c) engage in gambling;

(d) traffic in unauthorised articles or substances;

(e) have in his or her possession an article or substance not issued or authorised by an officer, prescribed by a medical officer, medical practitioner or dentist, or permitted under the Act or these Regulations;

(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;

(g) send a letter threatening or harassing in nature or send or receive a letter or parcel containing an article or substance that the prisoner knows to be an unauthorised article or substance;

(h) act in a way which is prejudicial to or threatens prison property;

(i) without the direction or permission of an officer -

(i) be in a place where he or she is not permitted to be; or

(ii) leave the place where he or she is required to be;

(j) work in a careless or negligent way;

(k) breach a condition of a custodial community permit;

(l) disobey a lawful order of an officer;

(m) fail to comply with a direction under 29A of the Act;

(n) in relation to tests conducted under section 29A of the Act -

(i) interfere with a test or sample; or

(ii) adulterate or substitute a sample;

(o) commit an act or omission that is contrary to the good order, management or security of the prison or the security of the prisoners;

(p) attempt any of the above.

33 The judge considered the question of whether unauthorised use of a diverter was a prison offence within the meaning of Regulation 44(1)(o) but held that it was not. His Honour explained his conclusion thus:

It was submitted by the defendant that the alleged conduct of Mr Rich was contrary to the instructions relating to prisoner communications, but it did not represent the commission of a prison offence. On that basis, the procedures for withdrawal of a prisoner privilege as set out in ss 50 and 54A were not applicable.

I accept that the making of a telephone call by a prisoner to a number that has been diverted is not a prison offence which would attract the provisions of s 50 of the Act nor, for that matter, s 54A.

34 With respect, we take a different view. We think it clear that unauthorised use of a diverter was capable of constituting a prison offence within the meaning of Regulation 44(1)(o). Furthermore we draw the inference that SPO Jell suspected it was a prison offence within the meaning of Regulation 44(1)(o), which is why he reported it to Supervisor Hardiman as a disciplinary offence.

35 Counsel for the respondent argued before the judge, and argued again before us on appeal, that SPO Jells' actions in placing Ms Blackney's original number on the list of prohibited numbers was at most a partial withdrawal of the telephone calls privilege and consequently did not amount to the withdrawal of a privilege within the meaning of s 50 or s 54A.

36 The judge accepted that argument. His Honour said that

Mr Rich's contact with Ms Blackney has now been restored, having been interrupted. He told me in the course of submissions that the new number is not the number that he needs, and he wants the old number reinstated. As I followed his submissions, that was due to the fact that the new number would not provide him with contact with Ms Blackney, and therefore in turn to potential legal representatives, other than late in the day when the phones available for use at the MRC were at their busiest.

The evidence as to the way in which the new number has been used seems to be at odds with that proposition. There is not a dispute on the evidence that Mr Rich is still able to make telephone calls to Ms Blackney using the replacement number, although Mr Rich complains about it being less convenient. The records of calls indicate that he is availing himself of the new number.

Endeavouring to apply a sensible approach, I would be of the view that if the privilege of making telephone calls was removed altogether or if particular phone numbers were removed from the approved numbers list thus undermining the real benefit of the privilege, there may be relief that could be obtained. However, in my opinion, that is not what occurred in this case.[3]

37 We take a different view. Subject possibly to de minimis exceptions, we consider that to prevent a prisoner speaking to a person approved by the Governor on a telephone number previously approved for that person is pro tanto to withdraw the 'telephone calls' privilege and, therefore, to withdraw a privilege within the meaning of ss 50 and 54A.

Was the withdrawal of privilege imposed as a disciplinary measure?

38 Counsel for the respondent argued in the alternative that, if placing Ms Blackney's original number on the list of prohibited numbers was the withdrawal of a privilege, it was not imposed as a disciplinary measure as such but rather pursuant to the power inherent in the conditional terms on which the privilege was granted, to deny access to a number on which a prisoner has used a diverter. In effect, the argument ran as follows.

39 Section 21 of the Corrections Act makes the Governor of a prison responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners. Section 22A confers on the Governor all of the powers and functions of a prison officer under the Act. Under s 23 of the Corrections Act, an officer may give any order to a prisoner which the officer believes to be necessary for the security or good order of the person or the safety or welfare of the prisoner or other persons. Under s 17, the Secretary is authorised to exercise all or any of the powers or functions of a Governor of a prison or a prison officer under the Act and to exercise those powers in relation to a particular prison or class of prisons or in relation to all prisons in Victoria.

40 As has been noticed, Director's Instruction No: 4.7 was issued by the Director, Prison Services on 7 August 2006 as delegate of the Secretary. We infer that it was issued pursuant to s 17 of the Corrections Act. Subsequently, on 19 December 2006, the Secretary approved 'telephone calls' as a prisoner privilege for the coming year. She did so by means of an ex facie unqualified one line entry 'telephone calls' in the list of that date. The necessary implication, however, is that the one line entry 'telephone calls' was calculated to import the content of Directors Instruction No: 4.7.[4] Thus, insofar as Director's Instruction No: 4.7 provided for the use of telephones by prisoners, it informed and qualified the content of the privilege.

41 So, the respondent contended, the privilege of 'telephone calls' was only ever a privilege to make telephone calls to telephone numbers approved in accordance with Schedule 4.7(3) 'to people who have indicated their willingness to accept calls';[5] and the privilege was from the outset subject to the condition that, if the appellant 'be found to be using a phone diverter, [he] would lose the ability to use that number indefinitely'.[6]

42 The judge did not consider that it was necessary to decide the argument. We reject it. The difficulty with it is that clause 2.5 of Directors' Instruction No. 4.7 was not self-executing. In the way in which it was expressed, it was incapable of operating without a finding first being made that the prisoner had used a phone diverter and, in providing that the prisoner would lose the ability to use that number 'indefinitely', it presaged an exercise of discretion in the determination of the time for which the loss of the privilege to call that number should endure. But, clause 2.5 did not empower an officer to undertake those tasks. In terms, it assumed the existence of a head of power dehors Instruction No. 4.7. And, subject to what is said below, the only available head of power is s 50 of the Corrections Act.

43 In turn, since the power to punish conferred by s 50 is conditioned on the conduct of an investigation in accordance with s 50, one is driven back to the position that it is not open to take away indefinitely a prisoner's privilege of being able to call a particular number otherwise than in accordance with s 50.

44 Under s 54A, the Secretary is empowered to deprive a prisoner access to a particular telephone number on an interim basis pending an investigation in accordance with s 50. Section 54A(1) expressly confers the power on the Secretary, and thus upon her duly appointed delegates pursuant to s 9A of the Corrections Act. It is also conceivable that a prison officer might reasonably consider it necessary to restrict access on a very short term basis pursuant to s 23, pending report to the disciplinary officer.

45 But neither of those possibilities is applicable in this case. Here, as the appellant complains, the disciplinary officer, Supervisor Hardiman, failed in his statutory obligation to investigate SPO Jells' report of a suspected prison offence under s 50, and accepted SPO Jell's recommendation effectively to impose as a punishment an indefinite ban on the appellant's privilege of being able to call Ms Blackney on her original number, without affording the appellant his statutory right of an opportunity of making an explanation.

Was the use of the diverter treated as an offence?

46 Counsel for the respondent argued then that, assuming use of the diverter were capable of amounting to an offence under Regulation 44(1)(o), it should not be thought that SPO Jell or Supervisor Hardiman necessarily approached it as such. It was equally likely, counsel said, that SPO Jell placed Ms Blackney's original number on the list of prohibited numbers pursuant to s 23 of the Corrections Act in exercise of his powers as a prison officer under that section to 'give any order to a prisoner which the officer believes to be necessary for the security or good order of the prison or the safety or welfare of the prisoner or other persons'.

47 We do not accept that submission. SPO Jell could not have conceived of himself as acting under s 23 because, in point of fact, he did not 'give any order' to the appellant whether under s 23 or at all. He simply placed Ms Blackney's original number on the list of prohibited numbers without communicating with the appellant and thereby denied the appellant the privilege of being able to call Ms Blackney on that number.

48 Further, unless SPO Jell in fact conceived of the use of the diverter as a prison offence, there would have been no reason for him to report the matter to Supervisor Hardiman qua disciplinary officer. The only functions of a disciplinary officer are functions under Part 7 of the Corrections Act, which deals exclusively with the investigation and punishment of prison offences.

49 It is also significant that SPO Jell and Supervisor Hardiman were conspicuously absent from the witness box. For reasons which were never explained, neither of them swore an affidavit as to what they intended or the powers under which they conceived themselves to be acting; thus making the inference all the more compelling[7] that SPO Jell placed Ms Blackney's original number on the list of prohibited numbers as a punishment for the appellant having used a diverter on that number and that Supervisor Hardiman, as disciplinary officer, ratified that decision.

50 Moreover, even if SPO Jell or Supervisor Hardiman conceived of himself as acting under s 23 of the Corrections Act, it could only have been because he considered that the appellant's use of the diverter was to the prejudice of the 'security or good order of the prison or the safety or welfare of the prisoner or other prisoners' within the meaning of s 23. Hence, it would follow that SPO Jell and Supervisor Hardiman had reason to suspect that the appellant had acted 'contrary to the good order, management or security of the prison or the security of the prisoners' and, therefore, suspected the commission of a prison offence within the meaning of Regulation 44(1)(o). That is to say that, because of the relative identity of language if the conduct was caught by s 23, it also fell within regulation 44(1)(o).

51 Accordingly, it does not matter whether SPO Jell or Supervisor Hardiman turned his mind to the application of Regulation 44(1)(o). The withdrawal of a telephone privilege may not be imposed as a disciplinary measure except in accordance with s 50 or s 54A and the requirements of ss 50 and 54A are mandatory and cannot be avoided by attempting to disguise or even honestly but misguidedly

51 treating a disciplinary punishment as something else.[8] The procedure laid down in s 50 should have been followed.

52 In our view, Supervisor Hardiman acted contrary to s 50 of the Corrections Act, by failing to investigate SPO Jell's report of the appellant's use of a diverter to call Mr Temperley, and by failing to give the appellant an opportunity of making an explanation, before acting upon SPO Jell's recommendation and thereby confirming the withdrawal of the number from approval.

53 We add for completeness that if, contrary to our view, clause 2.5 did constitute a head of power to revoke the privilege as well as defining the condition for the revocation of the privilege, there would still have been a need to give the prisoner an opportunity to be heard.

54 Instruction No: 4.7 was silent as to any procedure to be followed in determining whether a prisoner has used a phone diverter. In that respect, it stood in marked contrast to the procedure which at relevant times was laid down in Part 4 of Division 1 of Corrections Regulations 1998 for the investigation of alleged prison offences; which required that the prisoner be given details of the charge and the option of a Governor's hearing. But because the loss of ability to call a particular telephone number restricted the privilege of telephone calls, we consider that would have been enough to require that the prisoner be given notice of the allegation that he had made use of a diverter, and an opportunity to offer an explanation, before a final decision was made about the matter.[9]

55 The question then is what if any relief the appellant should be granted. Counsel for the respondent argued that, if we were satisfied there had been a breach of s 50 or 54A, we should nonetheless refuse relief because, if the matter were remitted for re-consideration, there could not possibly be a different result.[10]

56 We reject that submission. To put it at the lowest, it is at least possible that the appellant would be able to provide an explanation which might lead to a finding that no offence was committed or, more likely, that a less severe punishment should be imposed.

57 Counsel for the respondent also argued that relief should be refused on the basis that it would be inutile. He made the point that, since the use of the diverter was not investigated as a prison offence, it was never found to be a prison offence and, therefore, there is no record in the prison records system of the appellant having committed such an offence. To that extent, he said, the appellant's record is clean. Furthermore, in counsel's submission, since the events in issue occurred some five years ago, the appellant has been relocated to HM Prison Barwon, where any decision as to which telephone numbers he may call must be made by the Governor of that prison as opposed to the respondent or any other officer of the Metropolitan Remand Centre. Consequently, it was said, there is no purpose in requiring Supervisor Hardiman or his replacement to reconsider whether the appellant should any longer be denied access to Ms Blackney's original number.

58 We reject that submission too. Assuming, as we were told, there is no explicit record of the appellant having committed a prison offence by using a diverter on Ms Blackney's original number, there is nevertheless a record of him having used the diverter and of the fact that the officers responsible for the security of the Metropolitan Remand Centre gauged the use of the diverter to be a sufficiently serious threat to the security and good order of the Centre as to warrant imposing a ban of indefinite duration (now some five years and continuing) on the appellant's privilege of being able to call Ms Blackney on her original number. If, as we have found, that could only be done if it were a prison offence, there remains a risk that it would be so viewed by those who consult the record. That record, which is called the 'PIMS' record, is available to all authorised prison officers throughout the prison system. It is at least possible that it will inform decisions to be made from time to time as to the conditions in which the appellant is kept, the privileges to be allowed him, and, if he offends, the punishment to be imposed on him. In our view, therefore, he has a real and legitimate interest in ensuring that the record is accurate. At the least, the fact that the indefinite ban on his use of Ms Blackney's original number was imposed is likely to weigh with the Governor of HM Prison Barwon in determining which telephone numbers the appellant is permitted to call, and in particular whether he should now be permitted to call Ms Blackney on her original number.

59 In those circumstances, we consider that it is only fair that the decision to place Ms Blackney's original number on the appellant's prohibited numbers list should be quashed and that the respondent should be required to amend the PIMS and other relevant records to show that the decision has been quashed by order of this court by reason that it was invalidly made in contravention of s 50 of the Corrections Act.

60 The final question is whether the matter should be remitted to Supervisor Hardiman for investigation and redetermination pursuant to s 50. On one view of the matter, it should be. Looking at the problem in terms of principle, if the appellant's use of a diverter were a prison offence, it should be investigated in accordance with s 50 and, if found to have been committed, the fact of its commission and the punishment imposed should be recorded in prison records. In this case that could only be achieved by remitting the matter to Supervisor Hardiman for redetermination in accordance with law.

61 Looking at the matter practically, however, counsel for the respondent urged us not to remit the matter to Supervisor Hardiman because, in counsel's submission, too much time has gone by, and too much has changed, to permit any reconsideration of the matter to serve a useful purpose.

62 In face of counsel's submission, and since the appellant understandably saw no reason to oppose it - so that, in effect, we have not heard from him why the matter should not be remitted - we are disposed to accede to counsel's request not to remit the matter for reconsideration.

63 In the result, we shall allow the appeal and declare that the decision of Supervisor Hardiman of 24 October 2007, to endorse the recommendation of SPO Jell of 23 October 2007 (that Ms Blackney's original number be placed on the prohibited numbers list of the appellant's telephone account) ('the Decision'), was made contrary to s 50 of the Corrections Act and thus was and is void.

64 We shall also order that the respondent forthwith make and do all such documents instruments acts and things as may reasonably be necessary to ensure that all Corrections Victoria and other prison records, including without limitation the PIMS record, be amended to show that the Decision was made contrary to s 50 of the Corrections Act and for that reason was declared void by order of this court.

[2] The new number appeared in the form.

[4] The implication is necessary because, but for Director's Instruction No: 4.7, the privilege of 'telephone calls' would otherwise be devoid of definition and content.

[6] Ibid clause 2.5; cf Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1, 73 [198] (Gummow J).

[7] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308 (Kitto J); Heydon, Cross on Evidence, Aust Ed [1215].

[8] Dimozantos v Governor of Barwon Prison & Director General of Customs (Unrep. Vic SC, 21/6/93 (Ashley J)); Groves, Proceedings for Prison Disciplinary Offences[1998] MonashULawRw 14; , (1998) 24 Mon LR 338, 391; Aronson, Dyer & Groves, Judicial Review of Administrative Action, 4th Ed, [7.330].

[9] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J).

[10] Ngyyen v Minister for Immigration Local Government and Ethnic Affairs (1998) 88 FCR 206, 213; Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 419 [75] (Redlich JA).