A.07.01 Dealing With Offences (National Procedure)

Procedure Standard

Disciplinary actions are documented, comply with statutory and regulatory requirements and arrangements for the hearing made.

Requirements

R1 Completing misconduct reports/Laying Charges
R2 Offences by Prisoners
R3 Adjournment of Disciplinary Hearings
R4 Applications for Legal Representation

Procedure

If an officer believes a prisoner has committed a disciplinary offence, the officer should use his or her discretion on how to proceed further.
As far as practicable in the circumstances and if appropriate, an officer must deal with a minor or an unintentional breach of discipline by a prisoner in the following manner:
- by stopping the breach of discipline and explaining the nature of the breach to the prisoner committing the breach;
- by instructing the prisoner to correct his or her behaviour;
- by allowing the prisoner to make amends to any person aggrieved by the breach (section 132(1) Corrections Act 2004).
If a minor or unintentional breach of discipline is not dealt with as in (2) above, this does not prevent a prisoner from being charged with a disciplinary offence (section 132(2)).
No officer may take disciplinary action against a prisoner which is retaliatory in nature or inconsistent with the standards of treatment of other prisoners in similar circumstances. If a prisoner has made a complaint against an officer that has not yet been heard, that officer should not lay further charges against the prisoner until after the complaint has been finalised without first consulting their supervising officer.
If the conduct of a prisoner is considered serious enough to be an offence against discipline, a Misconduct Report Form (A.07.01.F1) is completed to requirements in IOMS and, where applicable, the evidence / exhibit is secured and preserved.
The charging officer must advise their prosecutor and their PCO / Unit Manager in writing of the IOMS misconduct report within 24 hours of completing the report in IOMS.
If in the opinion of the Prison Manager, the prisoner constitutes a risk to the security of the prison, the Manager may direct that the prisoner be placed on segregation pursuant to section 58 of the Corrections Act 2004 (Refer PPM B.20) and may revoke any approved temporary release or temporary removal until the charge is heard.
The Misconduct Report Form (A.07.01.F1) must describe the incident or circumstances giving rise to the alleged disciplinary offence and state the exact words of, and legal authority for, each offence the prisoner is being charged with, and the statement of the date and place where, the offence is alleged to have occurred (Cl 6 Schedule 7).
The Misconduct Report Form (A.07.01.F1) is to be signed off as reviewed in IOMS by the relevant Unit PCO and / or Unit Manager, as soon as practicable. The misconduct will be signed off by the Unit PCO and/or Unit Manager completing the “Reviewed By” and “Review Date” sections of the Misconduct Activity Screen in IOMS.
The authority for approving the Misconduct Report Form. (A.07.01.F1) in IOMS is that of the prosecutor. The approval will be given by the prosecutor completing the “Approval” sections of the Misconduct Activity Screen in IOMS.
Where a decision is made by the prosecutor not to have a misconduct heard before a Hearing Adjudicator or Visiting Justice, the prosecutor will record this decision electronically, clearly stating the reason for not proceeding with the misconduct.
A copy of the reasoning not to proceed with the misconduct must be forwarded to the Prison Manager and / or the prosecutor’s line manager, as soon as practicable.
The prisoner must be given a copy of the finalised Misconduct Report Form (A.07.01.F1) promptly. A charge is laid when his or her copy of the Misconduct Report Form is given to the prisoner. If a copy of the Misconduct Report Form is not given to the prisoner within 7 days of a staff member becoming aware of the alleged disciplinary offence, the prisoner may apply to an Inspector to have the charge dismissed. (cl 10 schedule 7) (Refer A.07 01.R1).
A copy of the “Notice to Prisoners Charged With A Disciplinary Offence” (A.07.01.F2) must be given to the prisoner at the same time he or she is given a copy of the Misconduct Report Form, or reasonably promptly afterwards (cl 7 schedule 7).
The reasons for the Misconduct Report are explained to the prisoner.
The prisoner is asked to acknowledge receipt of the Misconduct Report Form (A.07.01.F1) and the Notice to Prisoners Charged with Disciplinary Offence Form (A.07.01.F2) on the Acknowledgement Form (National Form) (A.07.01.F3). If the prisoner is given the forms but refuses to acknowledge receipt of them, the officer must indicate this on the Acknowledgement Form (National Form) (A.07.01.F3). The completed Acknowledgement Form is placed with the prosecution copy of the Misconduct Report Form (A.07.01.F1).
The prisoner should be asked by the prosecutor if there are any witnesses he / she intends to call at the hearing. The Witnesses Form (National Form) (A.07.01.F4) should be used for this purpose. Where practicable, there should be a lapse of at least 24 hours from the time the charge is laid and the prisoner has been given the Notice to Prisoners Charged with a Disciplinary Offence Form (A.07.01.F2) before he / she is asked to advise their witnesses. A copy of the completed Witnesses Form (National Form) (A.07.01.04) is placed with the prosecution copy of the Misconduct Report Form.
The date for hearing is arranged so that the charge can be heard reasonably promptly but the prisoner and the prosecuting officer must be given sufficient time to prepare their cases. The charge must be heard within 14 days of being laid unless an adjournment is granted or the prisoner can apply to an Inspector to have the charge dismissed (cl 11 schedule 7).
The prisoner must be informed of the date of the hearing.
The person prosecuting the disciplinary offence, and the prisoner who is charged, may apply before or during the disciplinary hearing to have the hearing adjourned. Adjournments may be granted in certain circumstances (Refer: A.07.01.R3).
The prisoner may contact his or her legal adviser for the purpose of assisting with the preparation of his or her defence.
The prisoner may apply to have a legal adviser represent them at the disciplinary hearing.
The Department of Corrections is not liable for the cost of any legal assistance provided in the preparation of a prisoner’s defence or in representing a prisoner at a hearing but the prisoner is entitled to apply for legal aid if they wish.
If a prisoner requests permission to be legally represented at the hearing of a charge alleging an offence against discipline, the request must be considered and determined by a Hearing Adjudicator or, if the case has been referred to a Visiting Justice under section 134, a Visiting Justice.
When determining whether to grant a prisoner permission to be legally represented, the Hearing Adjudicator or Visiting Justice must have regard to the factors set out in section 135 (2) of the Corrections Act 2004. (Refer to A.07.01.R4 for further information).
A Hearing Adjudicator or Visiting Justice who considers an application from a prisoner to be legally represented at a hearing, must provide the prisoner and the Prison Manager with a written summary of his or her reasons for the decision to decline or permit the prisoner to be legally represented. The appropriate section on the Record of Hearing Form (A.07.02.F2) is to be used for this purpose.
If a Hearing Adjudicator grants the prisoner permission to be legally represented at the hearing, the Hearing Adjudicator must refer the case to a Visiting Justice for hearing and determination (section 135(3)).
When an application to be legally represented has been accepted, the prisoner must be advised in writing within 14 days of the charge being laid or within 21 days if an adjournment was agreed, that the charge has been referred to a Visiting Justice. Record of Hearing Form (A.07.02.F2) should be completed to show that this has occurred. If the prisoner is not so advised, he or she can apply to an Inspector to have the charge dismissed (cl 17 schedule 7).
If a Hearing Adjudicator declines the prisoner’s request to be legally represented at the hearing the Adjudicator or another Hearing Adjudicator must hear and determine the case in accordance with section 133, unless it is referred to a Visiting Justice under section 134 for consideration of a higher penalty or because of the complexity of issues involved (section 135(4)).
Where the Hearing Adjudicator considers a higher penalty may be warranted than he or she can impose or that because of the complexity of issues likely to arise, or both, it is appropriate the case be considered by a Visiting Justice, the Hearing Adjudicator may, at any time before making a decision as to whether the charge is proved, refer the case to a Visiting Justice for hearing and determination in accordance with section 137. In these circumstances, the Adjudicator must forward the Visiting Justice a summary of his or reasons for the decision to refer the case to the Visiting Justice under section 134. The appropriate section on the Record of Hearing Form (A.07.02.F2) is to be used for this purpose.
Where the charge is to be heard by a Visiting Justice, necessary arrangements are made and the prisoner is advised of the date of the hearing.
If a Hearing Adjudicator or Visiting Justice considers that the prisoner should be charged before a Court with an offence, he or she may at any time before making a decision as to whether a charge is proved, decline to proceed with the hearing and request the appropriate authority to prosecute the prisoner. In these circumstances, the person conducting the hearing must forward a summary of their reasons for making the request to the appropriate authority.
Despite anything in sections 133 to 137, a Visiting Justice may, before making a decision as to whether the charge is proved, refer the case to a Hearing Adjudicator for hearing or rehearing and determination in accordance with section 133. The Visiting Justice may only do this in cases where he or she considers it is appropriate for the case to be heard by a Hearing Adjudicator and that the case can effectively be determined without further reference to a Visiting Justice (section 138).

Refer to Related Links to access Flow Diagram Dealing with Offences

Key Roles and Responsibilities

Visiting Justice

Hear and determine prisoners’ appeals against decisions of Hearing Adjudicators.
Hear and determine cases referred by Hearing Adjudicators pursuant to section 134.
Hear and determine cases where Hearing Adjudicators have given a prisoner permission to be legally represented.
Refer offence to the Police where severity of offence warrants.
Refer case back to Hearing Adjudicator for hearing, rehearing and determination under section 133 in appropriate cases.

Hearing Adjudicator

Hear and determine charges against prisoners laid under sections 128 to 131 of the Act.
Hear and determine any requests made by prisoners to be legally represented.
Refer the case to a Visiting Justice when prisoner has been granted permission to be legally represented.
Refer case to a Visiting Justice if considers that a higher penalty may be warranted than can be imposed under section 133 or because of complexity of issues or both.
Refer offence to the Police where severity of offence warrants.

Charging Officer

Decide whether the alleged breach of discipline is serious enough to be brought to the attention of the prosecutor or whether the prisoner’s action can be dealt with in a less formal manner.
Prepare Incident Report and Misconduct Report in IOMS.
Advise Unit PCO and / or Unit Manager of the Incident Report and Misconduct Report.
Secure and preserve evidence.

Unit PCO / Unit Manager

Review the Misconduct Report Form (A.07.01.F1) in IOMS before approval by the prosecutor.
Ensure the prisoner is given the Misconduct Report Form (A.07.01.F1) and Notice to Prisoners Who Have Been Charged with a Disciplinary Offence Form (A.07.01.F2) promptly and within 7 days of the staff member becoming aware of the act or omission.
Ensure the prisoner is asked to sign a copy of the Acknowledgement Form (National Form) (A.07.01.F3) and that the form is placed with the prosecution copy of the Misconduct Report Form.
Ensure that the prisoner is given copies of any incident or other prison reports that are relevant to the charge if they request them.
Ensure that access to the telephone and writing material is available should a prisoner, prior to the hearing, wish to apply to an Inspector of Corrections to have the charge dismissed.
Ensure the prisoner is provided with paper and writing materials to prepare their defence if the prisoner asks for those things, and as far as practicable, facilitate contact between a prisoner and any adviser or assistant helping the prisoner prepare the defence (other than another prisoner or a person who is a prohibited visitor).

Prison Manager

Direct that a prisoner be placed on segregation pursuant to section 58 of the Corrections Act 2004 if he or she is considered to pose a risk to the security of the prison, and revoke any approved temporary release or temporary removal until the charge is heard (Refer PPM B.20).

Prosecuting Officer

Determine whether a misconduct is serious enough to be scheduled at a hearing before a Hearing Adjudicator or Visiting Justice.
Approve the misconduct report in IOMS.
Advise the Prison Manager and / or line manager if a decision is made not to proceed to a hearing.
Obtain and secure reports, supporting evidence and witnesses.
Prepare their case.
Liaise with the Court Registrar to obtain Visiting Justice if appropriate.
Set date for hearing and advise the prisoner.
If prisoner has been given permission by Hearing Adjudicator to be legally represented, advise prisoner when charge has been referred to Visiting Justice for hearing.
Complete hearing details and outcomes in IOMS.

Prisoner

Prepare their defence.
Contact Legal Adviser if desired.
Apply for permission to have a support person if desired.
Advise of their intention to call witnesses.
Apply to Hearing Adjudicator or Visiting Justice to be legally represented if desired.

Previous Next Show Contents

| | | | | | | | | | | | | | | |