Appeal To The Central Discipline Committee

Section 4 of the Discipline (Student) - Guidelines

4.1  Grounds for Appeal

(See Section 11 of Statute 4.1)

A student may appeal to the Central Discipline Committee (CDC)

• against a fine imposed under S4.2, 4.3 and 4.5
• against a penalty imposed by a FDC/Small Committee of the CDC

on one or more of the following grounds:

• excessive penalty
• bias on the part of the Committee or a member of the Committee based on information that was not known to the student at the commencement of the hearing
• significant procedural irregularity
• new evidence of a substantial nature not presented and not reasonably available at the time of the original hearing

Appeal on penalty

Grounds for an appeal against a penalty would normally include:

• the FDC/Small Committee of CDC did not give sufficient weight to evidence of the student’s circumstances (health / emotional / financial); or
• evidence of the student’s circumstances was not presented to the FDC / Subcommittee; or
• Student’s circumstances have changed / new evidence is available.

Bias

Natural justice requires that a student be given an opportunity to be heard by an independent and impartial decision maker. However, the possibility of bias might depend on the subjective impression of the student. It will not be necessary for a student to prove that a Committee/member of a Committee was actually biased; proof of a reasonable perception of bias will be sufficient.

Test

Would a reasonable observer who was aware of the facts suspect a lack of impartiality on the part of a Discipline Committee or a particular member of the Committee?

If the facts on which the apprehension of bias is based were known to the student at the outset or during the hearing, and the student did not object, the CDC may dismiss the appeal.

If a CDC decides that apparent bias has been established, the decision of the FDC or Small Committee of CDC must be set aside and the CDC must re-hear the case.

Significant procedural irregularity

A procedural irregularity will be significant if it has caused a failure to accord natural justice e.g. that the student was not properly informed of

• the accusation
• the date and place of hearing
• the student was not given sufficient time to prepare a defence/to contact witnesses/obtain other evidence
• the student was not permitted to have an assistant at the hearing. However, a student will not be permitted to delay the hearing unreasonably on the ground that he/she wishes to be accompanied by a particular assistant if a satisfactory alternative is available.
• the charge was substantially amended at the hearing and the student was asked to respond to matters which he/she could not reasonably have been expected to answer
• an incident relating to the conduct of the hearing occurred which was prejudicial to the student.

New evidence

The evidence presented by the student must call into question a finding made by the FDC or Small Committee of CDC which was material to  the Committee's determination of guilt, in the sense that it may have caused the Committee to find one way rather than another.

4.2  Membership of a CDC

 Under section 11, a CDC shall normally consist of:

• a chair who shall be an academic staff member from the central discipline panel who is also a member of the Faculty of Law;
• 3 academic staff members of the central discipline panel;
• 2 student members of the central discipline panel.

Exception: where a CDC is established to hear and determine an appeal on the grounds of excessive penalty, a quorum will be sufficient (3 members) See S11.8 of the statute.

4.3  Procedure of a CDC

Prior to convening a hearing, the Chair of the CDC must consider the notice of appeal and other relevant papers to determine if the appeal is frivolous, vexatious, misconceived or lacking in substance. If so the appeal is dismissed by the chair and the student provided notice in writing of this decision and reasons. If not, the appeal proceeds to a hearing by the CDC.

 In the hearing and determination of an appeal:

1. the student may be represented by a friend or legal representative and the faculty case is presented by a member of the faculty.

2. a CDC is not bound to act in a formal manner and the rules of evidence do not apply although such rules will be used as a guide in determining relevance and probative value of evidence;

3. during a hearing, witnesses are excluded except when giving evidence; 

4. a CDC has the right to put questions at any stage to any party or witness or representative; 

5. in an appeal, including a rehearing, the transcript/minutes of the meeting of the prior discipline committee, the student’s evidence before that committee and the reasons for that committee’s decision, may be admitted in evidence; 

6. the CDC will act in accordance with procedural fairness.

A University Solicitor will represent a faculty only when an appeal arises from a decision under S4.2, 4.5 or 4.6 of the Statute, or the student is represented by an external solicitor or barrister.

4.4  Order Of Proceedings (Appeals)

4.4.1   At all appeals, the chair of the CDC commences by reading the charge, the prior committee’s finding and the nature of the appeal.

Excessive Penalty/Bias/Procedural irregularity

4.4.2  The student/representative presents the appeal case by providing any information on the student’s circumstances not available to the prior Committee or allegedly given insufficient weight by that Committee or staff member who fined the student. The student’s representative may also adduce evidence with the faculty/University representative having the right to cross-examine and the student/representative having the right to re-examine.

4.4.3  At the close of the student’s case, or if no evidence is adduced, the faculty representative/University Solicitor makes submissions in reply.

4.4.4  The CDC retires to reach its decision.

4.4.5  The student and the student’s representative are recalled and the CDC formally announces its decision. If an appeal on penalty is upheld, the CDC will announce the new penalty to be imposed.

4.4.6  If an appeal on the ground of bias or procedural irregularity is upheld, the CDC must set aside the decision of the prior committee and rehear the case immediately or at another date set by the committee.

New evidence of a substantial nature not presented to earlier committee

4.4.7  The student/representative will give a brief outline of the new evidence to be presented and how this impacts upon the decision or a significant finding of the earlier committee. If the evidence was available at the time of the prior hearing, the student/representative will explain why it was not adduced.

4.4.8  The CDC will invite submissions from the student and the faculty/university representative on whether the CDC should confine the hearing to the new evidence or whether the committee should rehear the case in full.

4.4.9   If the CDC decides that the hearing will be confined to the new evidence, the student/representative will adduce the evidence.

4.4.10 The faculty/university representative will have the right to cross examine each witness and the student/representative will have the right to re -examine on the matters raised in cross-examination.

4.4.11  When the appeal case is closed, the faculty/university representative may adduce evidence with the student having the right to cross-examine and the faculty/university having a right to cross-examine on the matters raised in cross examination and/or make submissions that the appeal is not made out.

4.4.12 The CDC retires to decide whether the appeal case has been proven. When a decision is reached, the CDC formally announces whether the appeal is upheld or dismissed.

4.5  Order Of Proceedings (Re-Hearing)

4.5.1 The faculty/University representative adduces evidence.

4.5.2  The student/representative has the right to cross-examine each witness and the faculty/University representative has the right to re-examine on the matters raised in cross examination.

4.5.3  When the university’s case is closed, the student/representative adduces evidence with the faculty/University representative having a right to cross-examine and the student/representative having the right to re-examine on the matters raised in cross-examination.

4.5.4  At the close of the student’s case, the student/representative may make submissions that the charge has not been proved and the faculty/University representative may make submissions in reply thereto.

4.5.5  The CDC retires to reach its decision as to guilt but not as to penalty.

4.5.6  If the CDC decides that the charge has been proven, it will first give the faculty/University representative and then the student/representative, an opportunity to make submissions on the penalty imposed by the prior committee.

4.5.7  The CDC retires to consider whether the penalty imposed by the prior committee should be upheld or varied. When a decision is reached, the CDC formally announces its decision.

4.5.8  At the end of the hearing, the Secretary should collect from Committee members hard copies of case documents for safe storage and destruction when no longer required. Committee members should delete electronic copies of case documents no longer required.

4.6  Written Notification of Decision

The student must be given written notice of the decision and reasons of the CDC. The faculty should also be provided with this notice. Where there is a suspension or exclusion the Manager, Enrolments must be informed and, for international students, the ESOS Compliance Officer. Where exclusion relates to University premises, the Security Manager should be informed.