A (SC 72/2023) v Attorney-General - [2023] NZSC 144

NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF IDENTITIES OF THE APPLICANT, THE OTHER PRISONERS INVOLVED AND ALL FRONTLINE CORRECTIONS OFFICERS REFERRED TO IN THE HIGH COURT JUDGMENT REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 72/2023
[2023] NZSC 144

BETWEEN	A (SC 72/2023) Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	O’Regan and Kós JJ
Counsel:	D A Ewen, R A Kirkness and M D N Harris for Applicant A M Powell and A J Vincent for Respondent
Judgment:	1 November 2023

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.

C There is no award as to costs.

____________________________________________________________________

REASONS

The applicant (A) applies for leave to appeal against a judgment of the Court of Appeal.[1] In that judgment, the Court of Appeal dismissed A’s appeal against a judgment of the High Court dismissing A’s claim against the respondent.[2]
[1]A (CA41/2021) v Attorney‑General [2023] NZCA 166 (Gilbert, Goddard and Simon France JJ) [CA judgment].
[2]A v Attorney‑General [2020] NZHC 3401 (Doogue J) [HC judgment].
The application was out of time so an extension of time to seek leave to appeal is required. Given the delay is brief, we grant the application for an extension.
The relevant background to A’s claim against the respondent (sued in respect of Ara Poutama Aotearoa | Department of Corrections (Corrections)) is as follows.[3]
[3]The facts are set out in more detail in the CA judgment, above n 1, at [12]–[23].
A was a serving prisoner when he was assaulted by another prisoner.[4] The assault lasted for up to five minutes before Corrections staff intervened, and involved punches to his head and face. He suffered bruising to the side of his face, a cut lip and redness on the top of his head. The assault was by another prisoner, C, and took place in June 2017.
[4]There were other assaults but these were found not to have involved any breach of duty or rights and we say no more about them.
The background was that C had earlier assaulted A in April 2017. A was then moved to a separate wing of the prison. However both wings had access to the exercise yard.
The Corrections officer, K, encouraged A to go into the exercise yard. But C was in the exercise yard at the time. K said he thought there had been a reconciliation between A and C, but this must have been wrong. C assaulted A while he was in the exercise yard.
In the High Court, A claimed exemplary damages for negligence and compensation for breaches of his rights under ss 9 and/or 23(5) of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Only the claim under s 23(5) is relevant to the present application. Section 23(5) provides for a person who is deprived of liberty a right to be treated with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZSC 144
Decision Date: 1 November 2023

CaseChat Overview and Summary

In the Supreme Court of New Zealand, A applied for leave to appeal against a judgment of the Court of Appeal. The Court of Appeal had dismissed A's appeal against a judgment of the High Court, which had dismissed A's claim against the Attorney-General. A's application for leave to appeal was out of time, so A sought an extension of time to apply for leave to appeal. A also argued that the Court of Appeal had misunderstood the scope of section 23(5) of the New Zealand Bill of Rights Act 1990 and had not given sufficient weight to the jurisprudence of the European Court of Human Rights. The Court granted A's application for an extension of time but dismissed A's application for leave to appeal.

The legal issues before the Court were whether A's application for an extension of time to apply for leave to appeal should be granted, and whether the application for leave to appeal should be granted. The Court considered the delay in A's application for leave to appeal, the scope of section 23(5) of the New Zealand Bill of Rights Act 1990, and the relevance of the jurisprudence of the European Court of Human Rights. The Court held that A's delay was brief and that there was no need to revisit the scope of section 23(5) in light of the Court's decision in Taunoa v Attorney-General. The Court also held that the European Court's jurisprudence was not relevant to A's claim under section 23(5). The Court therefore dismissed A's application for leave to appeal.

A was a prisoner who was assaulted by another prisoner. A claimed exemplary damages for negligence and compensation for breaches of his rights under sections 9 and/or 23(5) of the New Zealand Bill of Rights Act 1990. The High Court Judge found that A's injuries were caused by a breach of a duty of care by a Corrections officer but that the breach did not amount to a breach of section 23(5). The Court of Appeal agreed. A sought leave to appeal to the Supreme Court of New Zealand, arguing that the Court of Appeal had misunderstood the scope of section 23(5) and had not given sufficient weight to the jurisprudence of the European Court of Human Rights. The Supreme Court of New Zealand dismissed A's application for leave to appeal.

The final orders of the Supreme Court of New Zealand were that A's application for an extension of time to apply for leave to appeal was granted, that A's application for leave to appeal was dismissed, and that there was no award as to costs.

Orders