MC.01 Filing a disciplinary charge

The purpose of this section is to ensure the procedures relating to the filing of a disciplinary offence meets the required legislation and related standard.

Filing a disciplinary charge criteria

  1. A charge can be filed against a prisoner if:
    1. an incident has occurred and there is a record of it (e g. : IOMS incident report, drug test result, [IR.06.Form.01 Manual notification of incident], file note, video recording)
    2. the prisoner involved in the alleged incident is not subject to investigation by:
      1. the NZ Police
      2. an inspector of corrections
      3. the Office of the Ombudsman, or
      4. other official agency.
  2. No charge against a prisoner will proceed to a disciplinary hearing if:
    1. the prisoner has been charged with a criminal offence relating to the same incident that gave rise to the disciplinary offence, or
    2. the prison director is awaiting a decision by the Police as to whether the prisoner will be charged with a criminal offence in relation to that incident.
      1. the charge must be filed against a prisoner within seven days of being advised by the Police that they will not be charging the prisoner with a criminal offence.
  3. No complaint alleging that a person has committed an offence against [section 130 of the Corrections Act 2004]may be laid while that person is on temporary release from custody under [section 62 of the Corrections Act 2004], but the complaint may be laid once that person returns to prison.

MC.01.01 Charging a prisoner with a disciplinary offence

  1. A misconduct must be generated immediately following an incident or a staff member becomes aware of the act or omission alleged to constitute the offence (if the prisoner / prisoners involved are going to be charged with a disciplinary offence) and preferably before the end of the reporting officers shift and at the latest by midday the following day. If it is not practicable in the circumstances for the primary witness to generate the misconduct, it can be completed by any other member of staff. A prisoner charged with a disciplinary offence may apply to an inspector for the charge to be dismissed if the charge was not laid within 7 days after the date on which a staff member became aware of the act or omission alleged to constitute that offence.
  2. Where an unauthorised item is located in a cell shared by two prisoners, both prisoners may be held responsible, and can be charged with committing an offence against discipline if:
    1. prison staff are unable to determine if only one prisoner was responsible for the unauthorised item being located in the cell, and
    2. it is in an area that both prisoners had control, and
    3. the prisoners did not report to prison staff that the unauthorised item was in the cell.
  3. All breaches of discipline committed by a prisoner can result in a disciplinary offence charge, however for minor or unintentional breaches staff must consider the option of dealing with the incident under [section 132 of the Corrections Act 2004] It is at the discretion of the witnessing staff whether to charge a prisoner.
  4. When charging a prisoner, the process for staff is as follows:
    1. a [MC.01.Form.01 Misconduct Report] in IOMS is to be completed and, where applicable, the evidence / exhibit is secured and preserved. The form must be filled out as follows:
      1. describe the incident or circumstances giving rise to the alleged disciplinary offence
      2. the charge is to be written in such a way that the prisoner can be in no doubt as to the offence alleged. Use only the particular words or expressions which accurately describe the offences and can be proven. 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.
      3. When the appropriate offense is chosen, templates will display in the misconduct description, the required information must be added to the bracketed areas. Any template not utilised must be deleted. Copying and pasting the incident report into the misconduct description is not acceptable.
  5. The Misconduct Report will be reviewed by the prosecutor. The review is to ensure that the misconduct meets the evidential standard required to seek a conviction. If it does not meet this standard, further evidence maybe requested from the charging officer / staff member, and if it falls below the required standard this misconduct will be cancelled.

MC.01.02 Segregate prisoners who constitute a risk to the security of the prison

  1. If in the opinion of the prison director the offending prisoner constitutes a risk to the security of the prison, the prison director may:
    1. direct that the prisoner be placed on segregation pursuant to [section 58 of the Corrections Act 2004] (Refer POM [M.01.03 Segregation of prisoners - standard requirements])
    2. revoke any approved temporary release or temporary removal until the charge is heard.

MC.01.03 Referral to prosecutor

  1. The prosecutors must approve all misconduct reports prior to the charge being laid.
  2. Where a prosecutor determines not to have a misconduct heard before a hearing adjudicator or Visiting Justice, the prosecutor:
    1. will record this decision electronically in IOMS (Maintain Misconduct Details), clearly stating the reason for not proceeding with the misconduct.
    2. must forward a copy of the decision outlining reasons not to proceed with the misconduct to staff members line manager and the charging officer, as soon as is practicable.
  3. Where a prosecutor determines that charges will proceed, they must complete the "Approval" section in IOMS (Maintain Misconduct Screens).
  4. Set a date for hearing and advise the prisoner.
  5. Issue the prisoner with a copy of the finalised [MC.01.Form.01 Misconduct Report] from IOMS promptly (within seven (7) days) of a staff member becoming aware of the alleged disciplinary offence, and explain the reasons. A charge in respect of a disciplinary offence is laid when the prosecutor (or other staff member) gives the prisoner who is the subject of the charge a copy of the completed Misconduct Report.
  6. Provide the prisoner with a copy of the [MC.01.Form.02 Notice to prisoners charged with a disciplinary offence] and explain the content to the prisoner, or give the prisoner the opportunity to read the notice.
  7. Request the prisoner to sign the [MC.01.Form.03 Acknowledgment of receipt of notice].
  8. The prosecutor must endorse the [MC.01.Form.03 Acknowledgment of receipt of notice] if the prisoner has refuses to sign the notice, and note on the form that the prisoner has refused to sign. If the prisoner refuses to accept the misconduct paperwork this must be noted on the [MC.01.Form.03 Acknowledgment of receipt of notice] and countersigned by another officer or staff member.

MC.01.04 False allegation against staff charge

  1. 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:
    1. 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
    2. can only be heard by a hearing adjudicator from another prison, or a Visiting Justice
    3. may not be laid until any investigation of the allegation by an inspector of corrections, Ombudsman or other official agency has been completed.