A.07.03 Conducting An Appeal (National Procedure)

Procedure Standard

• A prisoner’s right to appeal against a decision of the Hearing Adjudicator is fairly and justly actioned.

Procedure

1. If a prisoner is dissatisfied with any decision of a Hearing Adjudicator, they may, no later than 14 days after the date of the decision, request in writing (A.07.03.F1) that the decision be referred by way of appeal to a Visiting Justice under section 136 of the Corrections Act 2004.
2. If an appeal against a decision of a Hearing Adjudicator is received, it must be referred to a Visiting Justice for hearing as soon as possible. The Prison Manager must arrange for the District Court Registrar to be advised that an appeal has been lodged and that the services of a Visiting Justice are required.
3. If the appeal relates to the finding(s) and / or the sentence imposed by the Hearing Adjudicator, the sentence is suspended until the appeal is heard and determined by the Visiting Justice.
4. If in the opinion of the Prison Manager, the offending prisoner constitutes a risk to the security of the prison, the prisoner is placed on segregation until such time as the appeal is heard.
5. A prisoner whose case is referred by way of an appeal to a Visiting Justice may contact his or her own legal adviser for the purpose of assisting with the preparation of the appeal. He or she may also apply to the Visiting Justice to have the legal adviser represent them at the appeal hearing.
6. The Department of Corrections is not liable for the cost of any legal assistance incurred in the preparation of a prisoner’s appeal or in the provision of any legal representation for a prisoner at an appeal hearing.
7. If the appeal relates to a refusal to allow the prisoner to be legally represented, the Visiting Justice must consider the appeal and can confirm the Hearing Adjudicator’s decision or reverse it. If the Visiting Justice allows the appeal, he or she must hear, or as the case requires, rehear, the whole case.
8. Where the appeal relates to any finding of the Hearing Adjudicator, the Visiting Justice rehears the whole case, and either reverses the finding or confirms it.
9. Where the finding is confirmed, the Visiting Justice either confirms the penalty or substitutes any penalty that the Hearing Adjudicator could have imposed (section 136(4) Corrections Act 2004).
10. Where the appeal relates only to the penalty imposed by the Hearing Adjudicator, the Visiting Justice considers only the penalty and either confirms the penalty or substitutes any penalty that could have been imposed by the Hearing Adjudicator (section 136(5)).
11. The Visiting Justice documents the decision on the Record of Hearing Form (A.07.02.F2), stating the finding(s) and reasons for the finding(s), and penalties imposed and the reasons for the penalties. The penalties imposed must be recorded in IOMS. The original copy of the signed Record of Hearing Form is placed on the prisoner’s file, a copy is given to the prisoner, and a copy sent to National Office (Prisoner Records). The results and decisions of the Visiting Justice are noted in the prison's Punishment Book. These results and decisions must be recorded in IOMS.
12. The prisoner is advised in writing of the Visiting Justice's decision.
13. There is no statutory right of appeal against the decision of a Visiting Justice. The decision can be the subject of judicial review proceedings in the High Court. Any prisoner who enquires about this should be referred to his or her lawyer. The enforcement of any penalty imposed by a Visiting Justice is not suspended pending a judicial review (unless the High Court directs suspension).

Key Roles and Responsibilities

Prison Manager

• Advise prisoners of their rights of appeal.

Prosecuting Officer

• Advise District Court Registrar.
• Prepare for appeal hearing.
• Record hearing outcomes and penalties in IOMS.

Visiting Justice

• Decide appeal.
• Document decision.

Prisoner

• Initiate appeal process. A prisoner has 14 days, commencing on the day after the Hearing Adjuducator's decision, in which to lodge an appeal against teh sentence, conviction or both.

Corrections Officer

• If a prisoner informs you he wants to appeal, complete form (1 AF.A1), prisoner application to appeal.
• Photocopy the appeal form, the misconduct form and the record of hearing form that states the Hearing Adjudicator’s decision and punishment.
• Send copies to the Appeals Co-ordinator.
• Place the original documents in the appeals section of the Misconducts Pending Folder; enter the details on the coversheet of that section.
• The Appeal Coordinator will uplift the original documentation prior to the appeals hearing.
• If a prisoner wishes to withdraw his appeal, complete Form (1AF-A2) Application to withdraw Appeal.
• Appeals Coordinator is informed.
• Send a copy of the application to the Appeals Coordinator.
• The prisoner can now undergo his punishment.
• If the prisoner serves his sentence, after 7 days two copies of his misconduct form are sent to the typist. One copy is placed on the prisoner’s file and the other is sent to Head Office

Process Summary

See Related Links to access the Process Summary: Conducting an Appeal.

Process Steps