MC.02 Misconduct pre-hearing

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The purpose of this section is to ensure all administrative procedures are completed in a timely fashion prior to the substantive hearing, so ensuring that the hearing is a meaningful event.

Misconduct pre-hearing criteria

  1. Prisoner has been served with:
    1. [MC.01.Form.01 Misconduct Report]
    2. [MC.01.Form.02 Notice to prisoners charged with a disciplinary offence]

MC.02.01 Scheduled hearing date

  1. The charge must be heard within 14 days of being laid unless an adjournment is granted.
  2. The prisoner may apply to an inspector of corrections to have the charge dismissed, if 14 days has passed since the charge was laid and the misconduct has not been adjourned.
  3. The date for the hearing is arranged so that the charge can be heard reasonably promptly and allows adequate time for:
    1. the prosecutor to prepare the prosecution case, and
    2. the prisoner to prepare for his or her defence.

MC.02.02 Adjournments

  1. The person prosecuting the disciplinary offence, or the prisoner who is charged, may apply before or during the disciplinary hearing to have the hearing adjourned.
  2. A person who is holding a disciplinary hearing may adjourn the disciplinary hearing if all parties consent to the adjournment.
  3. The application for adjournment must be considered before the Visiting Justice, or hearing adjudicator who is scheduled to hear the misconduct.
  4. A hearing to decide whether a disciplinary hearing should be adjourned may be held by way of a telephone conference, electronic device or video link if the prisoner charged with the disciplinary offence, the person prosecuting the disciplinary offence, and the person holding the disciplinary hearing agree in writing.
  5. If a disciplinary hearing has been adjourned, the prisoner may apply to an inspector of corrections to have the charge dismissed if the charge is not heard within 21 days of being laid.

MC.02.03 Disclosure / witness(es)

  1. Prisoners should be given copies of any incident reports or other prison reports that are relevant to their case and will be presented as evidence* by Corrections Services. This should be done subject to the requirements of the [Privacy Act 2020]. Consultation must occur prior to the release of any intelligence reports including with the manager regional intelligence of the originating unit.
  2. The [MC.02.Form.01 Witnesses] must be made available to the prisoner upon their request, this form can be issued by any officer.

* See [Corrections Act 2004 Section 121 Notice to be given of intention to produce evidence of recording].

MC.02.04 Representation at disciplinary hearing or appeal hearing

  1. A prisoner may contact his or her legal adviser for the purpose of assisting with the preparation of their defence, or appeal.
  2. 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.
  3. The prisoner may apply to have a legal adviser represent them at the disciplinary or appeal hearing. If a prisoner requests permission under [section 135 of the Corrections Act 2004] to be legally represented at a hearing of a charge, the request must be considered by either the hearing adjudicator, or by the Visiting Justice scheduled to hear the charge(s).
  4. A hearing adjudicator or Visiting Justice who considers an application from a prisoner for a legal representative to be present at a hearing, must provide the prisoner and the prison director with a written summary of his or her reasons for the decision to decline or permit the prisoner to have legal representation at the hearing. This is done by completing the appropriate section on the MC.02.Form.02 Record of Hearing (RoH)] in IOMS and [Form 135 Legal representation request] prosecutor form. If the prisoner is not advised of the result, he or she can apply to an inspector of corrections to have the charge dismissed.
  5. When an application for legal representation 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.
  6. If the prisoner asks for legal representation at the hearing of a charge before a hearing adjudicator and this request is granted, the hearing must be adjourned to be heard before a Visiting Justice.
  7. The prison director must 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).

MC.02.05 Facilities provided to prisoner preparing for defence

  1. A prisoner may apply to the prison director for permission to have a support person at the hearing, this cannot be another prisoner.
  2. Prison directors must ensure that prisoners preparing their defence are provided reasonable access to a telephone and writing material, prior to the hearing.