Department of Corrections v Taylor [2009] NZCA 129; [2009] 3 NZLR 34 (8 April 2009)

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Department of Corrections v Taylor [2009] NZCA 129 (8 April 2009); [2009] 3 NZLR 34

Last Updated: 2 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA318/2008
[2009] NZCA 129

BETWEEN THE DEPARTMENT OF CORRECTIONS
Appellant

AND ARTHUR WILLIAM TAYLOR
First Respondent

AND THE VISITING JUSTICE AT AUCKLAND PRISON
Second Respondent

Hearing: 16 February 2009

Court: Ellen France, Harrison and Cooper JJ

Counsel: V E Casey for Appellant
First Respondent in person
No appearance for Second Respondent
H D M Lawry as amicus curiae

Judgment: 8 April 2009 at 2.30 pm

JUDGMENT OF THE COURT

1. The appeal is allowed and the decisions of the hearing adjudicator dated 25 October 2007 and that of the Visiting Justice of 30 January 2008 are reinstated.
2. No order for costs.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No

Introduction [1]
Issues on appeal [7]
Factual background [8]
The decision of the High Court [14]
The statutory scheme [21]
First issue: must the hearing adjudicator hold a hearing before referral
under s 134(2)(a)? [42]
Second issue: ability to consider previous history [60]
Third issue: relief [69]
Disposition [70]
Costs [71]

Introduction

[1] The first respondent, Arthur Taylor, is a prisoner at Paremoremo Prison. In October 2007 he was charged with an offence against prison discipline after a search of his cell disclosed a cell phone charger. The matter was brought before a hearing adjudicator. The adjudicator decided to refer the case to a Visiting Justice under s 134 of the Corrections Act 2004.
[2] Mr Taylor was found guilty after a hearing before a Visiting Justice. He was sentenced to ten days confinement in his cell and 35 days loss of privileges.
[3] Mr Taylor brought judicial review proceedings which alleged, amongst other matters, breach of natural justice by the hearing adjudicator in deciding to refer the case to a Visiting Justice.
[4] In a decision now reported at [2008] NZHC 642; [2008] NZAR 613, Wylie J concluded the adjudicator breached the principles of natural justice in determining without hearing Mr Taylor that the case should be referred to a Visiting Justice. The Judge also considered the adjudicator took into account an irrelevant consideration when he decided that Mr Taylor’s previous breaches of prison discipline were relevant to the decision under s 134. Wylie J set aside the hearing adjudicator’s decision.
[5] The Department of Corrections appeals against Wylie J’s decision. The second respondent abides the decision of the Court.
[6] We note that an earlier hearing of this matter before the permanent Court was adjourned at Mr Taylor’s request. He said that without access to computer facilities he had been unable to adequately prepare his submissions. The hearing was rescheduled to coincide with the hearing of another appeal involving Mr Taylor and to meet the appellant’s concern that the hearing not be unduly delayed. In adjourning the matter, the Court decided that an amicus should be appointed. Mr Lawry was subsequently appointed as amicus.

Issues on appeal

[7] The appeal raises three issues:

(a) Is it necessary for the hearing adjudicator to hold a hearing before referring cases to a Visiting Justice under s 134(2)(a)?

(b) Were Mr Taylor’s earlier breaches of prison discipline irrelevant to the decision under s 134? and
(c) Should the decision under s 134 have been set aside?

Factual background

[8] The cell phone charger giving rise to the charge was found in Mr Taylor’s cell on 19 October 2007 following a routine search. Mr Taylor was not in the cell at the time.
[9] Mr Taylor was advised that he was being charged with an offence against prison discipline under s 128(1)(f) of the Act in relation to the charger. He was given a misconduct report and acknowledged receipt of that report. The report included a standard form notice to prisoners charged with a disciplinary offence. The form set out the procedure which would be followed and described the prisoner’s rights.
[10] The complaint was brought before the hearing adjudicator on 25 October 2007. The adjudicator decided to refer the case to a Visiting Justice. A record of hearing form was filled out and the reasons for the referral noted: “[d]ue to seriousness of offence referred to VJ (cell phone charger).”
[11] Nothing further occurred until 16 January 2008 when Mr Taylor was called before the Visiting Justice. He entered a plea of not guilty. Mr Taylor’s defence was that another prisoner had placed the cell phone charger in his cell in his absence and without his knowledge. Mr Taylor gave evidence to that effect. The prisoner alleged to have placed the charger in Mr Taylor’s cell also gave evidence and he said he had put the charger in the cell.
[12] Mr Taylor also submitted to the Visiting Justice that the charge should be dismissed because it had not been heard reasonably promptly as required by the Corrections Regulations 2005.
[13] The hearing was adjourned by the Visiting Justice so the prosecution could provide a statement of the reasons for delay. That statement was provided and made available to the Visiting Justice when the charge was next called on 30 January 2008. The Visiting Justice found that in all the circumstances the charge had been heard reasonably promptly. Mr Taylor was found guilty and sentenced to ten days confinement in his cell and 35 days loss of privileges. The Visiting Justice also ordered forfeiture of the cell phone charger to the Crown.

The decision of the High Court

[14] Mr Taylor’s claim in the High Court raised a number of matters which are not now in issue. In terms of the matters before us, the key finding in the High Court was that a hearing, albeit not a “particularly formal hearing”, was required before the discretion under s 134 was exercised: at [43].
[15] In reaching that conclusion, Wylie J relied on a number of contextual matters, as follows:

• (a) “[T]he prisoner will be at a significant disadvantage – he or she will often be poorly educated, and in a vulnerable position”: at [41];
• (b) The referral power has “potentially serious consequences”, ie, the prisoner is exposed to a “more severe penalty regime”: at [41];
• (c) Section 134 itself refers to a complaint alleging an offence against discipline being “brought before” an adjudicator: at [42];
• (d) The Notice of Hearing form records that the prisoner charged with the offence is required to plead. Clause 31, Sch 7 to the Corrections Regulations 2005 also requires the charge to be put and the prisoner to plead;
• (e) The Act requires the adjudicator to make a decision and forward a summary of his or her reasons for that decision to the Visiting Justice: s 134(3);
• (f) Any prisoner dissatisfied with a decision of an adjudicator may appeal to the Visiting Justice;
• (g) Every hearing must be in the presence and hearing of the prisoner, who is entitled to be heard: s 133(2) and cls 23 and 24, Sch 7; and
• (h) Section 139 refers to the way in which any hearing or application under any of ss 133 to 138 may be conducted.

[16] On the nature of the hearing required before the adjudicator makes the decision to refer the case to the Visiting Justice, the Judge said at [43]:

It does not have to be a sophisticated or even particularly formal hearing – but the Act contemplates a hearing of some kind. That hearing has to be conducted fairly. Notice of the hearing should be given. The prisoner should be told that the adjudicator is considering referring the case to a Visiting Justice. The prisoner should be given the opportunity to make submissions on whether or not referral is appropriate.

[17] Wylie J then considered whether the hearing requirement had been met in this case. His Honour’s view was that any hearing on the referral point was “very informal” at [32]. The Judge continued at [32]:

It does not appear that the charge was put or that Mr Taylor was asked to plead – nevertheless a plea of not guilty was recorded on the Record of Hearing form. Importantly, it does not seem that Mr Taylor was given the opportunity to make submissions on whether or not the case should be referred to a Visiting Justice.

[18] Wylie J therefore reached the view that what had occurred was unfair to Mr Taylor. It was in breach of the principles of natural justice, s 27(1) of the New Zealand Bill of Rights Act 1990 (“the Bill of Rights”), the 2004 Act s 133(2), and the Corrections Regulations, cls 23, 24 and 31 of Schedule 7.
[19] The other critical finding for present purposes was the conclusion that Mr Taylor’s convictions for earlier breaches of prison discipline were irrelevant and so should not have been considered. The Judge said at [48] to [49] that was because under s 134(2)(a) the only relevant conduct was that alleged to constitute the offence, and the consideration is whether or not that “conduct” may warrant a higher penalty.
[20] Wylie J concluded that the adjudicator’s decision should be set aside to recognise the fundamental nature of the rights that had been breached. An order was made declaring the decision made by the adjudicator on 25 October 2007 to refer the matter to a Visiting Justice invalid and setting aside that decision. As a consequence the Visiting Justice’s decision of 30 January 2008 was also set aside.

The statutory scheme

[21] The issues on the appeal require consideration of the statutory scheme. We turn first to the critical features of the Corrections Act.
[22] In terms of s 5(1), the purpose of the corrections system is to “improve public safety and contribute to the maintenance of a just society”. That purpose is to be achieved in various ways including by:

• (b) providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners; and
• (c) assisting in the rehabilitation of offenders and their reintegration into the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions;

[23] The principles guiding the corrections system are set out in s 6 of the Act and include, relevantly, that the system:

6(1) ...

(f) ... must ensure the fair treatment of persons under control or supervision by –

(i) providing those persons with information about the rules, obligations, and entitlements that affect them; and

(ii) ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:
[24] Further, s 6(1)(g) states that:

[S]entences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision:

[25] Although there are some changes, the 2004 Act maintains the two-tier system of prison discipline that operated under the Penal Institutions Act 1954. That is, prison disciplinary matters may be dealt with either by hearing adjudicators or by a Visiting Justice.
[26] Hearing adjudicators are employees of the Department of Corrections designated as adjudicators by the chief executive in accordance with s 15(1) of the Act.
[27] Every District Court Judge is a Visiting Justice for every prison: s 19(1). In addition, the Governor-General may, on the recommendation of the Minister of Justice, appoint any Justice of the Peace or barrister or solicitor to be a Visiting Justice: s 19(2). The Minister is required to keep in mind the need for a reasonable balance between Justices of the Peace and lawyers holding this position: s 19(3).
[28] The Act sets out a number of offences against discipline. In terms of this case, s 128(1)(f) provides that a prisoner who has any article in his or her cell without the approval of an officer commits an offence against discipline.
[29] The powers of a hearing adjudicator in relation to offences against discipline are set out in s 133 of the Act. A hearing adjudicator can hear any complaint relating to any offence against discipline alleged to have been committed by a prisoner and may examine any person in relation to the alleged offence on oath or otherwise.
[30] Section 133(2) provides that every hearing and examination must be “in the presence and hearing” of the prisoner charged. The prisoner has the right to be heard and to cross-examine any witness.
[31] The penalties that may be imposed by a hearing adjudicator are set out in s 133(3) and include forfeiture of privileges and cell confinement. There is also a power to order forfeiture in relation to offences under s 128(1)(f): s 133(4).
[32] The hearing adjudicator has power to decline to proceed with the hearing and instead request the appropriate authority to prosecute the prisoner: s 133(5).
[33] Section 134 contains the power to refer the case to a Visiting Justice and is central to this case. Section 134 provides as follows:

Decision as to who is to hear charge

(1) If a complaint alleging an offence against discipline is brought before a hearing adjudicator, the adjudicator may, at any time before making a decision as to whether the charge is proved, refer the case to a Visiting Justice for hearing and determination in accordance with section 137.

(2) A hearing adjudicator may exercise the powers conferred by subsection (1) only if the adjudicator considers–

(a) that the conduct that is alleged to constitute the offence may warrant a higher penalty than can be imposed by the adjudicator under section 133; or

(b) that, because of the complexity of the issues likely to arise (including, without limitation, points of law), it would be appropriate for the case to be referred to a Visiting Justice; or
(c) that both paragraphs (a) and (b) apply.
(3) If a hearing adjudicator exercises the powers conferred by subsection (1), the adjudicator must forward a summary of his or her reasons for the decision to the Visiting Justice.
[34] Section 135 of the Act deals with applications for legal representation by a prisoner at the hearing of a charge alleging an offence against discipline. If a prisoner requests legal representation and that request is granted, the case must be dealt with by a Visiting Justice: s 135(3).
[35] If a prisoner is dissatisfied with any decision of a hearing adjudicator the prisoner may, within the 14-day time limit, request that the decision be referred by way of appeal to a Visiting Justice. On receiving that request the prison manager must promptly refer it to a Visiting Justice: s 136(1).
[36] The penalties that may be imposed by a Visiting Justice on the hearing of a disciplinary offence are set out in s 137(3) and include forfeiture of privileges and cell confinement. As with the hearing adjudicator, an order for forfeiture may be made in relation to the article in respect of which an offence under s 128(1)(f) was committed: s 137(4)(a).
[37] There are limits on the penalties that may be imposed by the Visiting Justice if the case was referred to the Visiting Justice for hearing under s 134(2)(b), ie because of the complexity of the issues, rather than because of the seriousness of the alleged offence: s 137(5).
[38] Again, as is the case for the hearing adjudicator, s 137(6) provides that the Visiting Justice can decline to proceed with the hearing and ask the relevant authority to prosecute the prisoner instead.
[39] Despite anything in ss 134 to 137, a Visiting Justice may, before making a decision as to whether the charge is proved, refer the case to a hearing adjudicator for hearing or re-hearing and determination in accordance with s 133: s 138.
[40] Both Mr Taylor and Mr Lawry place some reliance on s 139, as did Wylie J. We set the section out in full:

139 Mode of hearing or reaching decisions

Any hearing or application under any of sections 133 to 138 may be conducted or, as the case requires, determined with all or any of the interested persons participating by way of video link, rather than by being present in person.

[41] The second aspect of the statutory scheme is provided by the Corrections Regulations. The Regulations contain a detailed set of requirements for disciplinary offences. These requirements are set out in summary form in the appendix to this decision. The material in the appendix is largely taken from the written submissions for the appellant. In addition, reg 150(1) requires discipline and order in the prison to be maintained with “firmness and fairness”.

First issue: must the hearing adjudicator hold a hearing before referral under s 134(2)(a)?

[42] Having set out the background against which the case is to be decided, we turn first to the question relating to whether a hearing is required before referral under s 134(2)(a).
[43] In our view there is no requirement in the Act or the Regulations that a hearing must be held before the decision to refer under s 134(2)(a) is made. Nor do the principles of natural justice or the Bill of Rights require a hearing. We explain our reasons for this conclusion below.
[44] The statutory scheme provides a range of protections. But, when hearings are required, the Act and/or the Regulations specify that. We do not see a need to read in an additional requirement in order to protect prisoners’ rights. In this respect, we agree with Ms Casey that the focus of the statutory hearing requirements is on the hearing of the charge. As we shall explain, that reflects the fact that the real point of concern in natural justice terms arises at the time the charge is determined rather than at this preliminary stage in the process.
[45] The other matters relied on by the Judge (see [15](c) to (e) and (g) above), such as the requirement to plead to the charge, do not in our view carry with them a requirement to hold a hearing on the decision to refer when the statutory scheme is viewed as a whole and in its context.
[46] We accept that referral to the Visiting Justice does expose the prisoner to the risk of higher penalties as both Mr Taylor and Mr Lawry emphasise. That is because the maximum penalties that can be imposed by the Visiting Justice are higher. Indeed, this may well be a reason for referral: Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 at [46] and [48] and see also McGrath J dissenting at [90]. The table below illustrates the difference in the maximum penalties under the 2004 Act.

Comparison of maximum penalties:

	Hearing adjudicator	Visiting Justice
Forfeiture/postponement of privileges	28 days	Three months
Forfeiture of earnings	Seven days	Three months
Cell confinement	Seven days	15 days

[47] As this Court also noted in Drew at [45], the penalties that can be imposed by either an adjudicator or the Visiting Justice are “substantial”. The further point made by Mr Taylor and Mr Lawry is that the prisoner may often be in a position of disadvantage, for example, because of lack of legal assistance.
[48] These factors in another context may well suggest hearing rights. However, in this case there are a number of contextual matters that suggest otherwise.
[49] First, it is important as McGrath J said at [85] in Drew, that:

The Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system. It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living. Closely linked to the imperative of continuing order is the maintenance of the integrity of prison security ... .

[50] Those observations remain relevant in the context of the 2004 Act. We note here Mr Lawry’s submission that an analogy can be made with the criminal courts, for example, with the procedural protections applicable to a youth offender when the Court is deciding whether the case should be moved to the District Court or the High Court for sentence. Because of the sorts of considerations identified by McGrath J, we do not consider this comparison is a helpful one.
[51] Mr Taylor and Mr Lawry submit that the disciplinary processes would be enhanced by providing input from the prisoner into the decision to refer a case to the Visiting Justice. Here, for example, it is suggested that an opportunity for a hearing would have enabled Mr Taylor to clarify the number of earlier relevant offences in issue. The utility of a hearing would, it is submitted, militate against any concerns about resultant delay in the process. But, as Ms Casey submits, there is a need for an efficient and speedy resolution, particularly, of these preliminary matters. The figures cited in Drew at [41] were in the order of about 8,800 offences involving Superintendent hearings per year plus about 800 Visiting Justice hearings. That figure is likely to have increased with the increase in the prison muster. There are practical difficulties in requiring a right of hearing on the referral decision in that numerical context.
[52] Second, while there is potential for a higher penalty, the Visiting Justice must still impose an appropriate penalty. Mr Taylor makes the point that the “sentencing” range is the higher one. But, if a lower penalty is justified, the Visiting Justice can impose it. The decision to refer means that the question of what is an appropriate penalty will be considered by an independent judicial officer.
[53] In any event, the nature of the decision is such that the position is not irretrievable. The matter can be corrected by the hearing before the Visiting Justice. While there is an impact on the possible penalty that can be imposed, by that stage the prisoner can make appropriate submissions and be heard on that matter. It is relevant in this regard that the Visiting Justice can refer the matter back to the hearing adjudicator if that is appropriate. Mr Taylor suggests that the ability to refer back in this way is limited but s 138(2) says only that the Visiting Justice can refer back if he or she considers that:

(a) it is appropriate for the case to be heard by a hearing adjudicator; and

(b) the case can effectively be determined by the hearing adjudicator without reference or further reference, as the case may be, to a Visiting Justice.

[54] The power for a later decision maker to correct an error may not necessarily tell against a hearing right. But in this case it is relevant, in determining what procedural protection is necessary, that any disadvantage experienced by the prisoner can be remedied when the matter comes before the Visiting Justice. In that context, we do not see the loss of the appeal right as critical either. Any appeal to the Visiting Justice is a rehearing de novo so the prisoner is in the same position before the Visiting Justice at first instance as on an appeal.
[55] For these reasons, we do not accept Mr Taylor’s submission that a hearing is necessary in relation to the decision to refer under s 134(2)(a) in order to protect prisoners’ rights.
[56] Finally, as we have noted, both Mr Taylor and Mr Lawry rely on s 139. They say that section imposes a requirement to hold a hearing on the decision to refer. We disagree. Section 139 simply sets out how the hearing may be carried out, if a hearing is to take place. In particular, the section makes it clear that a hearing may be conducted by video-link and that appearance in person is not necessary. This point is reinforced by the heading which, as we have noted above, refers to the “mode” of hearing.
[57] Accordingly, we do not consider that the failure to hear Mr Taylor on the decision to refer the charge to the Visiting Justice was a breach of the Act, the Regulations, the principles of natural justice or of any rights arising under the Bill of Rights.
[58] We add that the appellant also argued that the decision to refer a matter to the Visiting Justice was not a statutory power of decision and so not subject to judicial review. That submission is based on the definition of a “statutory power of decision” in s 3 of the Judicature Amendment Act 1972. Section 3 defines “statutory power of decision”, relevantly, as a power affecting the “rights, powers, ... duties, or liabilities of any person”. The appellant’s submission is that the referral of the charge does not involve a determination of rights and so on as referred to above.
[59] We do not consider it necessary to resolve this issue because, on our analysis, even if the decision is reviewable, there is no need for a hearing.

Second issue: ability to consider previous history

[60] Before dealing with the substance of this issue, we need to first briefly explain that we agree with the appellant that the decision to refer in this case was made under s 134(2)(a). This issue arises out of Mr Lawry’s submissions. Mr Lawry makes the point that the hearing adjudicator did not identify on which paragraph within s 134(2) he was relying. However, as we have noted above, the adjudicator was clear on the hearing form that referral was “due to the seriousness” of the offence. This clearly indicated reliance on s 134(2)(a) and nothing further was required.
[61] In any event, in his affidavit filed in the proceedings, the adjudicator gave a fuller explanation. He said:

The issue with Mr Taylor was that he was known to be a habitual offender in this area. When this charge came before me, I knew that over the past few years he had about 10 to 20 charges in relation to cellphones and cellphone components. Considering his long history I regarded this charge as an offence that might warrant a higher penalty than I could impose, and so should go to the Visiting Justice. ...

The key factor in Mr Taylor’s case was that he was a habitual offender, and it was therefore an appropriate case for the Visiting Justice to consider whether a more serious punishment should be ordered if the charge on this occasion was made out.

[62] We add that Mr Taylor and Mr Lawry take issue with the number of Mr Taylor’s previous offences involving cell phones. The material before the Court is not particularly clear but we do not consider that this issue is critical. It is plain the adjudicator was relying on knowledge of a number (not specified) earlier, similar charges. That there were a number is not disputed.
[63] Having dealt with these preliminary matters, we turn to the issue on the appeal. The issue is whether s 134(2)(a) focuses only on the actus reus of the offence or whether consideration can also be given to a prisoner’s relevant previous history because that history may result in the offence being treated more seriously in terms of the ultimate penalty.
[64] In supporting the Judge’s interpretation, both Mr Taylor and Mr Lawry rely on the reference in s 134(2)(a) to the prisoner’s “conduct”. They say this part of the section shows a conscious decision to restrict the consideration to the actual allegedly offending conduct.
[65] The use of the word “conduct” is slightly awkward and gives some support to the submission that the Judge was right to read this section as only allowing consideration of the actus reus of the charge. That said, we agree with the appellant that such an approach is not the most natural reading of the section. Conduct may well warrant a higher penalty where it occurs against a background of similar previous breaches of discipline. That is not to focus on conduct other than that charged, but simply to consider matters relevant to the assessment of the gravity of the offending.
[66] Further, we consider the narrower approach undermines the legislative policy. We say that because the 1954 Act contained a list of specified offences that could only be heard by a Visiting Justice. Those matters were determined by applying a list of specified offences. It is clear that in the 2004 Act, the legislature has moved away from that system to a more general discretion. On the Judge’s approach, referral would only be available for those more serious incidents which under the 1954 Act would have been within the auspices of the Visiting Justice. That is inconsistent with the purpose of the changes to the Act.
[67] In addition, the fact that referral under s 134(2)(a) is because a higher penalty may be warranted suggests that factors such as previous history which will be relevant to that penalty should be a part of the consideration. It would be surprising if reasons that might justify a higher penalty had to be ignored when determining whether to refer the matter to the Visiting Justice.
[68] For these reasons, the hearing adjudicator was entitled to consider Mr Taylor’s previous history in determining the seriousness of the matter.

Third issue: relief

[69] The appellant argued that even if the hearing adjudicator had erred in an administrative law sense, Wylie J should not have set aside the decision. Given our decision that no hearing was required and that the hearing adjudicator did not err when considering Mr Taylor’s past conduct, we do not address the question of relief.

Disposition

[70] The decisions of the hearing adjudicator of 25 October 2007 and of the Visiting Justice of 30 January 2008 are reinstated. The penalties imposed on Mr Taylor stand. We understand that there are five days cell confinement and 30 days loss of privileges still to serve.

Costs

[71] The appellant submits that costs should follow the event and seeks costs in the High Court as well.
[72] Mr Taylor pointed out that he had initially engaged counsel to argue the appeal and had incurred some costs in that respect. He said he should be reimbursed for those. Mr Taylor argues that even if unsuccessful on the appeal he should not pay costs. In this context, he submits the proceedings were not vexatious and deserved to be properly argued.
[73] In the High Court, Wylie J expressed the preliminary view that this was not a case where a costs award was appropriate. We agree. The point raised was novel and of broader interest. We therefore make no order for costs.
[74] Mr Lawry’s costs as amicus will be met in the usual way.

Solicitors:
Crown Law Office, Wellington

APPENDIX

Schedule 7 of the Corrections Regulations 2005

• information to be given to the prisoner before the hearing (cl 7-8);
• assistance allowed before a hearing (cl 19-22);
• the need for the prisoner to be present and the obligation on the person conducting the hearing to ensure that the prisoner understands and participates in the hearing (cl 23-24);
• the ability to have a support person present (cl 26-30) (the possibility for legal representation is dealt with under s 135);
• the opening of the hearing (the charge must be read and the prisoner asked to plead) (cl 31);
• the conduct of the hearing if the prisoner pleads not guilty (case to be presented, opportunity to call witnesses and cross-examine) (cl 32);
• the requirement that the prisoner who is found or pleads guilty must be given the opportunity to make an explanation or plea in mitigation before a penalty is imposed (cl 35);
• the formal steps to be followed once a penalty is imposed (cl 36-37);
• the requirement to provide the prisoner with a copy of the findings and reasons (cl 37);
• provision for adjournments (cl 40-43);
• the requirement that the prisoner found guilty by a hearing adjudicator is to be notified in writing of their right to appeal to a Visiting Justice (cl 45); and
• Provision for dismissal of charge if not heard within 14 days of being laid (cl 11(a) or within 21 days of an adjournment (cl 11(b)).