MC.03 Misconduct hearing and penalty

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The purpose of this section is to ensure that the hearing proceeds in accordance with the legislative requirements and prisoners are informed of their rights and entitlements.

Misconduct hearing and penalty criteria

  1. Every hearing and examination must be in the presence of the prisoner charged with the offence.
  2. A charge in respect of a disciplinary offence must not be prosecuted by the manager of the prison concerned or a staff member who will be a witness at that hearing.
  3. If a prisoner is charged with a disciplinary offence and is awaiting hearing the prisoner:
    1. retains the minimum entitlements referred to in [section 69 of the Corrections Act 2004] and the prisoner must not be punished at any time before the disciplinary hearing has concluded
    2. may not be punished more than once for the same disciplinary offence.

MC.03.01 Hearing room and attendees

  1. The designated hearing room must create an atmosphere of integrity and impartiality (preferably 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 or hearing adjudicator, the court taker, the prosecuting officer, the prisoner and any other witnesses.
  2. The room will contain a table that is to be placed in a position separating the prisoner from the Visiting Justice and the court taker. The design of the room and its contents must be such that security can be assured as far as possible.
  3. Hearings may proceed by way of electronic device or video link. (See [MC.03.01.Res.01 Audio Visual Link (AVL) Misconduct Hearing Protocol])
  4. 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.

MC.03.02 Prisoner to be escorted at all times

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

MC.03.03 Misconduct hearing

  1. The person conducting the hearing must ensure a prisoner charged with an offence understands and participates in their disciplinary hearing.
  2. The prosecuting officer reads the charge and the prisoner is asked for a plea.
  3. If the prisoner pleads guilty (or their legal adviser on their behalf) to the charge, before any penalty is imposed the following occurs:
    1. The prosecutor reads out the misconduct description.
    2. The prisoner is given the opportunity to make a "plea in mitigation".
    3. 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.
  4. If the prisoner pleads not guilty, the prosecuting officer calls evidence to prove the charge. The evidence is presented in the form of statements or oral evidence from prosecution.
    Note: Incident reports are a statement of facts, so if a charge is defended they are sufficient to prove the prosecution's case if all parties agree and the prisoner has no questions of the evidence provided.
  5. The prisoner / legal adviser is entitled to be heard and to cross-examine witnesses. Any evidence given can be heard through the witness being sworn on oath or otherwise.
  6. When the prosecutor's case is completed, the prisoner is asked whether they intend to give evidence and/or call witnesses for their defense.
  7. The prisoner may give evidence, and/or call witnesses.
  8. Any hearing may be either held in person or via any suitable electronic medial application.

MC.03.04 Adjourning a misconduct hearing

  1. A person who is holding a disciplinary hearing must adjourn the hearing if:
    1. he or she is satisfied that the prisoner who is charged with the disciplinary offence has not had a proper opportunity to prepare his or her defence or
    2. he or she is satisfied that a material witness is not available to give evidence at the disciplinary hearing; or
    3. the prisoner is charged with a disciplinary offence under [section 129 or 130(1) of the Corrections Act 2004] and the prisoner wishes to obtain an independent analysis of the urine sample.
    4. It is decided that the matter should be referred to a Visiting Justice.

MC.03.05 Decisions

  1. 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 hearing adjudicator can impose or because of the complexity of the issues likely to arise, or both.
  2. A Visiting Justice may refer the case back to a hearing adjudicator for 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.
  3. After hearing all the evidence, the hearing adjudicator or Visiting Justice hearing the charge decides whether the case has been proved beyond reasonable doubt, and informs the prisoner of his or her decision.
  4. The hearing adjudicator or Visiting Justice will make one of the following four decisions:
    1. decline to proceed with the hearing and request the appropriate authority to prosecute the prisoner e.g. NZ Police
    2. dismiss the case if it cannot be continued if the hearing process has commenced
    3. find the prisoner not guilty if insufficient evidence is provided to prove the charge, if the prisoner pleaded no guilty
    4. find the prisoner guilty.
  5. Prior to imposing any penalty, the prisoner, or their legal representative, must be given the opportunity to make a "plea in mitigation" or allow a support person to speak on behalf of the prisoner (they cannot speak unless invited to do so).
  6. The person holding the hearing must record in writing the finding(s), reasons for the finding(s), any penalties imposed, and the reasons for imposing those penalties, using the [MC.02.Form.02 Record of Hearing (RoH)] in IOMS.

MC.03.06 Imposing penalty

  1. No penalty under [section 133 or section 137 of the Corrections Act 2004] (refer [MC.01.Sch.02 Schedule of penalties]) may be imposed on a prisoner charged with a disciplinary offence unless:
    1. a disciplinary hearing is held; and
    2. either the prisoner pleads, or is found guilty of the disciplinary offence.
  2. Penalties are subject to the following conditions:
    1. are not cumulative and cannot be deferred
    2. cannot be in the form of an order for the prisoner to come for sentence later if called upon
    3. cannot be a suspended sentence (i.e. to take effect only if future conduct is unsatisfactory).
    4. If loss of privilege is to be imposed theses must be read out to the prisoner and they must be allowed to make any comments, and their circumstances must be taken into consideration.
  3. A penalty imposed under [section 133 or 137 of the Corrections Act 2004] commences on the date it is imposed and may not be cumulative upon any other penalty imposed under [sections 133 or 137 of the Corrections Act 2004].
  4. On completion of the hearing process the prisoner is to be provided with:
    1. a copy of the completed [MC.02.Form.02 Record of Hearing (RoH)] from IOMS
    2. a copy of the [MC.03.Form.01 Acknowledgement of receipt of hearing decision] (retain the original copy signed by prisoner)
    3. a copy of the [MC.03.Form.02 Right to appeal to a Visiting Justice] if hearing before hearing adjudicator.

MC.03.07 Post hearing

  1. 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.
  2. The hearing outcomes and the penalties imposed are recorded in IOMS.
  3. The prisoner's unit PCO is informed of the decision, and if a penalty of cell confinement or forfeiture of privileges is imposed it takes effect immediately, except where the prisoner appeals. If a prisoner is given a penalty of cell confinement the health centre manager must be informed.
  4. Daily visits to prisoner under cell confinement (Reg 156): The manager of a prison, or an officer authorised by the manager of a prison for the purpose, must at least once a day visit a prisoner confined under a penalty of cell confinement.
    1. Any officer authorised by the prison director for the purpose must be any unit PCO of the prison. This includes the unit PCO of the unit in which a prisoner is being held for the purpose of the penalty of cell confinement. Excludes the “charging” officer.
  5. All original signed documents are placed on the prisoner's file (under tab f), a copy is given to the prisoner and a copy of the [MC.01.Form.01 Misconduct Report] and the [MC.02.Form.02 Record of Hearing (RoH)] must be uploaded to IOMS.