A.07.01.R1 Completing Misconduct Reports/Laying Charges (National Requirement)

Completing Misconduct Reports

When Preparing a Misconduct Report the following is to be noted.

1. In writing a Misconduct Report Form (A 07.01.F1) the exact words of the Corrections Act 2004 defining the offence are to be used, followed by a statement of the particulars of the alleged offence.
2. The charge is written in such a way that the prisoner can be in no doubt as to the offence alleged.
3. In selecting the correct words, use only the particular word or expression which accurately describes the offences and which appears to the charging officer to be capable of proof. For example, when charging a prisoner with an offence under section 128(1)(a) of the Corrections Act 2004 it is necessary to make it clear whether the charge is that of disobeying a lawful order of an officer or staff member, or, that of failing to comply with a Corrections regulation or a rule of the prison.
4. No prisoner may be disciplined more than once for the same disciplinary offence.

Laying Charges

Charges are laid promptly

1. A charge in respect of a disciplinary offence must be laid promptly after and within 7 days of when a staff member becomes aware of the act or omission alleged to constitute that disciplinary offence, unless the prisoner is the subject of an investigation under section 128(2)(b) of the Corrections Act 2004 or clause 50(b) of Schedule 7 of the Corrections Regulations. In such a case, the charge may only be laid after the investigation is complete (cl 5 schedule 7).
2. No complaint alleging that a person has committed an offence against section 130 of the Act may be laid while that person is on temporary release from custody under section 62, but the complaint may be laid once that person returns to prison.
3. If a complaint is laid alleging an offence against section 130, it must be determined in accordance with sections 133 to 140 and the person against whom the complaint is laid must be treated as if he or she were a prisoner at the time when the act or omission alleged to constitute the offence occurred (section 130(4) Corrections Act 2004).
4. A charge in respect of a disciplinary offence is laid when a staff member gives the prisoner who is the subject of the charge a copy of the completed Misconduct Report (A 07.01.F1).
   At the same time the prisoner is given a copy of the Misconduct Report, the prisoner must also be given a copy of the “Notice to Prisoners Who Have Been Charged With a Disciplinary Offence” (A.07.01.F2).
5. A prisoner may apply to an Inspector to have a charge dismissed if the charge is not laid within 7 days of a staff member becoming aware of the act or omission alleged to constitute that disciplinary offence (cl 10 Schedule 7).

False allegations against staff members of prisons

6. If the charge is one of making allegations against a staff member of a prison or security officer knowing it to be false (section 128(1)(j) Corrections Act 2004) the charge can only be laid if the supervisor of that staff member or security officer gives his or her written approval to the laying of the charge (section 128(2)(i) and (ii). The charge may not be laid until any investigation of the allegation by an Inspector, Ombudsman or other official agency has been completed.
7. If the charge is one of making allegations against a staff member of a prison or a security officer knowing it to be false, the charge can only be heard by a Hearing Adjudicator from another prison, or a Visiting Justice.