A.07.02 Hearing A Disciplinary Charge (National Procedure)

Procedure Standard

• Hearings comply with legislative and procedural requirements

Requirement

• R1 Disciplinary Penalties

Procedure

1. Every hearing and examination must be in the presence of the prisoner charged with the offence (sections 133(2) and 137(2)).
2. The prisoner, the prisoner’s support person (if approved), legal adviser (if permitted), the prosecuting officer, charging officer, witnesses and interpreter if required, are called before the person authorised to hear the charge.
3. The prosecuting officer reads the charge and the prisoner is asked for a plea.
4. If the prisoner pleads guilty to the charge, before any penalty is imposed they (or their legal adviser on their behalf) are given the opportunity to make an explanation or plea in mitigation (A “plea in mitigation” is any factors the prisoner thinks the person conducting the hearing should take into account when deciding on a penalty). Any support person may be invited to speak by the person conducting the hearing. (They cannot speak unless invited to do so by the person conducting the hearing (cl 29 schedule7)).
5. If the prisoner pleads not guilty, the prosecuting officer calls evidence to prove the charge which is presented in the form of sworn statements or oral evidence from prosecution who state from their own knowledge what happened. (Note that incident reports are not sworn statements and if a charge is defended will be insufficient to prove the prosecution’s case).
6. The prisoner / legal adviser is entitled to cross-examine each witness after the witness’s evidence is given.
7. When the prosecutor's case is completed the prisoner is asked whether they intend to give evidence or call witnesses, or make a statement explaining their conduct.
8. The prisoner may give evidence, and / or call witnesses, and may make a statement.
9. After hearing all the evidence the person hearing the charge decides whether the case has been proved beyond reasonable doubt and informs the prisoner of his or her decision.
10. If the case is proved and the prisoner found guilty, before imposing any penalty the prisoner, or their legal adviser on their behalf, is given the opportunity to make an explanation or plea in mitigation (A “plea in mitigation” is any factors the prisoner thinks the person conducting the hearing should take into account when deciding on a penalty). Any support person may be invited to speak by the person conducting the hearing. (They cannot speak unless invited to do so (cl 29 schedule 7)).
11. The prisoner is advised in writing of their right to appeal to a Visiting Justice under section 136 of the Corrections Act 2004 (A.07.02.F1) (cl 45 schedule 7).
12. If the case is not proved it must be dismissed.
13. The Hearing Adjudicator may refer the case to a Visiting Justice for hearing and determination at any time before making a decision, if he or she considers the conduct alleged to constitute the offence may warrant a higher penalty than the Adjudicator can impose or because of the complexity of the issues likely to arise, or both (section 134 Corrections Act 2004).
14. A Visiting Justice may refer the case back to a Hearing Adjudicator for hearing, rehearing and determination before making a decision. 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).
15. The finding(s), and reasons for the finding(s), and any penalties imposed, and reasons for imposing those penalties, are recorded on the Record of Hearing Form (A.07.02.F2).
16. All original signed documents are placed on the prisoner’s file, with copies sent to National Office (Prisoner Records) and a copy given to the prisoner.
17. A copy of the signed Acknowledgement of Receipt of Hearing Decision Form (A.07.02.F3) is to be placed on the prisoner’s file with the completed (A.07.01.F1) and (A.07.01.F3) forms.
18. The prisoner’s Unit Manager is informed of the decision, and if any penalty of cell confinement or forfeiture of privileges is imposed it takes effect immediately, except where the prisoner appeals (section 136(6)).
19. The details of the charge and any penalty imposed are entered in the prison’s Punishment Book and signed and dated by the person imposing the penalty (cl 36 schedule 7).
20. The hearing outcomes and the penalties imposed are recorded in IOMS.
21. The evidence, if any, is returned to the exhibits safe until the outcome of any appeal.

Location and design of the hearing room

• The designated hearing room must create an atmosphere of integrity and impartiality (perferably the room used for New Zealand Parole Board hearings if a purpose built room for Visiting Justice hearing is not available).
• The room will contain a chair for the Visiting Justice, the court taker, the prosecuting officer, the prisioner and any other witnesses.
• The room will contain a table that is to be placed in a position separating the prisoner from the Visting Justice and the court taker.
• Note: The design of the room and its contents must be such that security can be assured as far as reasonable possible.

Key Roles and Responsibilities

Hearing Adjudicator/ Visiting Justice

1. Ensure prisoner and prosecuting officer has had adequate opportunity to prepare their case.
2. Hear and determine any request by the prisoner to be legally represented at their hearing.
3. Hear charge, prosecution and defence.
4. Satisfy themselves that charge has been proven beyond reasonable doubt.
5. Enter any penalty imposed on Record of Hearing Form (A.07.02.F2) and in Punishment Book
6. Inform prisoner of any appeal rights.

Prosecuting Officer and Prisoner

1. Present their case.
2. Cross-examine witnesses.
3. Ensure prisoner has a copy of their appeal rights (A.07.02.F1) and appeal form (A.07.03.01).
4. Ensure all relevant forms are signed, where applicable, and filed accordingly.
5. Complete hearing outcomes and penalties in IOMS.

Prisoner

1. Present their case.
2. Cross-examine witnesses.

Escorting Officers (two)

• The escorts must perform a rub down search of the prisoner before he / she enters the room used for the hearing.
• The escort must ensure that the prisoner keeps his / her hands at his / her sides.
• All prisoners appearing at a Visiting Justice hearing must be escorted by at least two officers at all times.
• The two escort officers are not to include those staff who are acting as a witness or a prosecutor.
• The escort staff must stand immediately behind the prisoner throughout the hearing, one either side of the seated prisoner.