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 unless the prisoner refused to attend or was removed from the hearing through their disruptive behaviour.
  2. A charge in respect of a disciplinary offence must not be prosecuted by the general manager custodial 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 audio visual link or remote access facility with all or any of the interested parties participating in this manner. (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 refusing to attend a disciplinary hearing

  1. If a prisoner refuses to attend a hearing, the prisoner must be spoken to by a member of staff from the unit, SCO or above. The prisoner must be warned that if they refuse to attend, the hearing may be conducted in their absence.
  2. The officer speaking with the prisoner must complete [MC.03.Form.03 Refusal to attend Adjudicator or Visiting Justice Hearing], noting the reasons why the prisoner is refusing to attend. The prisoner must be given a lawful order to attend the hearing, any response from the prisoner to that order must be noted on [MC.03.Form.03 Refusal to attend Adjudicator or Visiting Justice Hearing].
  3. The completed [MC.03.Form.03 Refusal to attend Adjudicator or Visiting Justice Hearing] must be signed and dated by the officer (the prisoner is not required to sign it) and presented to either the hearing adjudicator or Visiting Justice.
  4. The hearing adjudicator or Visiting Justice may have questions they wish the officer to answer. The hearing adjudicator or Visiting Justice may not make a decision to proceed with a hearing without the prisoner unless they have received evidence from an officer that the prisoner was given the opportunity to attend the hearing and has refused.
  5. The completed [MC.03.Form.03 Refusal to attend Adjudicator or Visiting Justice Hearing] must accompany the misconduct and be uploaded into IOMS on completion of all aspects of the hearing process.
  6. If at any time before a decision is made as to whether the charge is proven and the prisoner changes their mind and wishes to attend the hearing, the prisoner must be afforded the right to do so. If this occurs the hearing adjudicator or Visiting Justice must cease the hearing in their absence and, commence a new hearing with the prisoner present.

MC.03.03 Prisoners who are unable to attend hearing

  1. If a prisoner is unable to attend for a “legitimate” reason including but not limited to, off site appointment, rehabilitation course or programme or transferred, the hearing adjudicator or Visiting Justice must adjourn the hearing to a date that the prisoner can attend the hearing. This must be documented on [MC.02.Form.02 Record of Hearing (RoH)] in IOMS, [MC.03.Form.03 Refusal to attend Adjudicator or Visiting Justice Hearing] doesn’t need to be completed.
  2. If a prisoner claims that they are too unwell to attend the hearing medical must be contacted and asked to attend to assess the prisoner and determine whether the prisoner is fit to attend or when the prisoner is likely to be fit to attend.
  3. If it is determined that the prisoner is unfit to attend, the hearing must be adjourned to a suitable date, this must be documented on [MC.02.Form.02 Record of Hearing (RoH)] in IOMS.
  4. If medical are unable to attend to assess the prisoner, the adjudicator may determine the prisoner’s wellness to attend utilising their own judgement, and any other information from unit staff and take this into account when deciding whether it would be unfair to continue with the hearing (natural justice). Any action taken or decision made must be documented on [MC.02.Form.02 Record of Hearing (RoH)] in IOMS.
  5. If it is determined that the prisoner is fit to attend the hearing and continues to refuse the process for prisoners refusing to attend a disciplinary hearing must be undertaken, and the form [MC.03.Form.03 Refusal to attend Adjudicator or Visiting Justice Hearing] must be completed.

MC.03.04 Disruptive prisoner during a hearing

  1. If a prisoner becomes so disruptive that it becomes unsafe, or impractical to continue the hearing with the prisoner present, the prisoner may be removed from the hearing venue.
  2. If a prisoner is removed from the hearing, reasonable efforts must be made to placate the prisoner and have them return to the hearing venue. If these efforts are unsuccessful, the hearing may continue in the prisoner’s absence.
  3. Any actions / decisions taken around the prisoner’s presence at the hearing must be documented in full on [MC.02.Form.02 Record of Hearing (RoH)] in IOMS.

MC.03.05 Conducting a hearing in the prisoner's absence

  1. If it is determined that the prisoner is refusing to attend for no “legitimate” reason, the hearing may go ahead in their absence.
  2. A plea of not guilty must be entered and the process for a defended hearing must be adhered to.
  3. The witness, if available, must present their evidence in person.
  4. If this is not practicable, the witness may present their evidence through audio visual link, or a remote access facility in accordance with [section 139 of the Corrections Act 2004]. Any witness appearing via audio visual link or other remote access facility is at the discretion of the hearing adjudicator or Visiting Justice.
  5. If the witness is unavailable and cannot present their evidence by any other means, as there will be no cross examination, the hearing adjudicator or Visiting Justice may allow the prosecution to present all admissible reports as their evidence in chief.
  6. If the prisoner becomes disruptive during the hearing, and a plea has been entered, the hearing may continue in the manner the plea dictates.
  7. If the prisoner is removed prior to a plea being entered, the hearing must be conducted in the same manner as if the prisoner refused to attend.

MC.03.06 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.03.07 Misconduct hearing

  1. The person conducting the hearing must ensure a prisoner charged with an offence understands and participates in their disciplinary hearing unless, the prisoner has refused to attend or was removed from the hearing due to their disruptive behaviour.
  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 defence.
  7. The prisoner may give evidence, and/or call witnesses.
  8. Any hearing may be either held in person or with all or any interested party attending via any suitable audio visual link or any remote access facility.

MC.03.08 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.03.09 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.03.10 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. A hearing adjudicator or Visiting Justice may instead of imposing a penalty under [section 133 or 137 of the Corrections Act 2004], make an order under [section 133(4A) or 137(4A) of the Corrections Act 2004] suspending the imposition of a penalty for a period set out in the order.
  5. This suspension must not exceed 3 months beginning on the day the order was made. If the prisoner is charged with a subsequent offence against discipline within the time specified in the order, they will be ordered to appear before the hearing adjudicator or the Visiting Justice for both the previous offence and the subsequent offence.  At that hearing, the hearing adjudicator or Visiting Justice must deal the penalty for the previous offence and the subsequent offence. Penalties imposed cannot be cumulative.
  6. If, after hearing all the facts pertaining to an alleged offence against discipline, the hearing adjudicator or Visiting Justice finds the offence proven, or if the prisoner has pleaded guilty to the offence, the option exists to suspend the imposition of any penalty. 
    Suspending the imposition of a penalty is to be approached in two steps:
    1. Whether suspending the imposition of a penalty is appropriate [1] in the circumstances; and if so,
    2. What period of suspension would be appropriate [2].
  7. 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.
  8. When a hearing is held in the prisoner’s absence the finding and any penalty imposed [under section 133 or 137 of the Corrections Act 2004] must be communicated to the prisoner in question, this must be done by the prosecutor.

[1] Appropriateness

If the hearing adjudicator or Visiting Justice is considering issuing a warning, after hearing the facts and any mitigating factors relating to the offence and the prisoner, the adjudicator should consider whether the issuing of the warning alone would deter the prisoner from committing further breaches of discipline.

If there is evidence to suggest that further breaches of discipline may occur (for example, multiple previous warnings awarded at a hearing or pursuant to [section 132 of the Corrections Act 2004]) the adjudicator may want to consider suspending the imposing of a penalty for a period up to, but not exceeding, three calendar months.

Hearing adjudicators or Visiting Justices should not consider suspending the imposition of a penalty for offences that are likely to result in sentences at, or above, the mid-range of penalties available to them, or that involve the following.

  • Violence or threats of violence towards others
  • High value contraband articles
  • Drug related offending (as per [section 129 of the Corrections Act 2004])
  • Tattooing.

[2] Period

  1. Information to calculate the period of suspension may be sought from the prosecutor who will be able to provide information relative to penalties commonly awarded previously at their site for similar offending.
    1. If the subsequent offence is proved, the Hearing Adjudicator or Visiting Justice may not make another order under [section 133(4A) or 137(4A) of the Corrections Act 2004] in respect of the subsequent offence.

MC.03.11 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 of the Corrections Regulations 2005): The general manager custodial, or an officer authorised by the general manager custodial 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 general manager custodial 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.