18 May 2012

Phone privileges

In Rich v Scaife [2012] VSCA 92 the Victorian Court of Appeal has found that the withdrawal of telephone privileges from prisoner Hugo Rich was contrary to law.

 Rich was prevented from calling his wife on a designated number after he allegedly used a diverter to call another person.

The Court considered whether -
  • permission to speak by telephone from the Metropolitan Remand Centre to a nominated person on a designated telephone number is a ‘privilege’ within the meaning of s 48 of the Corrections Act 1986 (Vic) 
  • withdrawal of permission to speak to the nominated person on the designated telephone number amounted to ‘withdrawal’ of privilege within the meaning of s 50 or s 54A of the Corrections Act
  • use of a telephone diverter to speak to someone other than the nominated person amounts to the prison offence of acting contrary to good order, management or security of prison within the meaning of Reg 44(1)(o) of the Corrections Regulations 1998 
  • a prison officer is empowered to withdraw privilege otherwise than in accordance with s 50 or 54A of the Act.
The Court found that Rich's alleged conduct amounted to a prison offence and should have been investigated under Corrections Act 1986 (Vic) s 50 before a decision to withdraw his call privileges could be made.

The Court stated that -
The appeal has taken an inordinate time to come to hearing. Principally, that is due to the fact that the appellant is self-represented and is serving a lengthy sentence of imprisonment. He does not have the capacity to prosecute the appeal with the diligence ordinarily expected of litigants. But there are also indications that he did not receive the level of co-operation from prison authorities that one might have hoped. Ultimately, the matter was listed on 9 March 2012 for the appellant to show cause why the appeal should not be dismissed for want of prosecution. After hearing argument that day, the court made directions to enable the appellant to obtain access to legal resources which he considered were necessary in order to prepare the appeal for hearing. Then, when the matter returned to court a week later, the court made orders that the matter be fixed for hearing to be heard as a matter of priority on 4 May 2012, with the appellant to file a written argument by 16 April 2012 and the respondent to file his written response by 16 April 2012.