The purpose of this section is to ensure the procedures relating to the appeal meet the required legislation and related standards, and any penalties imposed are managed accordingly.
- A prisoner has 14 days after the date of the decision to appeal the decision of a hearing adjudicator.
- If the prisoner appeals the decision of a hearing adjudicator they must complete MC.04.Form.01 Prisoners Appeal.
- On receipt of the MC.04.Form.01 Prisoners Appeal, any penalty imposed by the hearing adjudicator is suspended until the appeal is disposed of. The prosecutor must:
- record the appeal in the unit misconduct book
- suspend sentence (IOMS)
- 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, and enter the details on the coversheet of that section
- contact the District Court Registrar to arrange for a Visiting Justice to hear the appeal
- advise the prisoner of the date for the appeal hearing.
- If in the opinion of the prison director, 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.
- If the appeal relates to a refusal to allow the prisoner to have legal representation, the Visiting Justice must consider the appeal and confirm the hearing adjudicator's decision or reverse it. If the Visiting Justice allows the appeal, he or she must then hear the whole case.
- Where the finding is confirmed, the Visiting Justice either confirms the penalty imposed, or substitutes another penalty that the hearing adjudicator could have imposed (section 136(4) Corrections Act 2004).
- The Visiting Justice documents the decision on the MC.02.Form.02b Record of hearing - Visiting Justice, stating the finding(s), the reasons for the finding(s), the penalties imposed and the reasons for the penalties. The penalties imposed must be recorded in IOMS.
- The original copy of the signed MC.02.Form.02b Record of hearing - Visiting Justice 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.
- 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).
MC.04.02 Withdrawal of appeal
- Prior to the matter being heard before the Visiting Justice, under section 136 of the Corrections Act 2004, the prisoner may withdraw his or her appeal at any time.
- To withdraw an appeal, the prisoner must provide their unit staff with a completed MC.04.Form.02 Notice of prisoners request to withdraw appeal.
- If the appeal has been adjourned part-heard, a copy of the notice must be provided to the Visiting Justice, for their consent to withdraw the appeal.
- When this notice is received, (or on receiving notice that the Visiting Justice has consented to the appeal being withdrawn) the appeal is deemed to be withdrawn:
- the prisoner is not required to appear before the Visiting Justice
- the prisoner cannot request a further appeal on the same ground for the same misconduct (i.e. conviction or penalty)
- the notice to withdraw the appeal will be recorded on the MC.02.Form.02b Record of hearing - Visiting Justice and referred to the Visiting Justice for their endorsement.
- the punishment book is to be endorsed "Appeal withdrawn by (full name of prisoner) on (dated and signed)"
- the prisoner will be given an updated copy of the MC.02.Form.02b Record of hearing - Visiting Justice.
- The original penalty imposed by the hearing adjudicator remains and commences from the date the appeal was withdrawn.
Note: The Prosecutor is responsible for recording the charge in the punishment book. Only the hearing adjudicator or the Visiting Justice is to record misconduct outcomes in the punishment book.