Bai-Reddy v Attorney-General
[2024] NZHC 2433
•30 August 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001858
[2024] NZHC 2433
UNDER the Judicial Review Procedure Act 2016 and the New Zealand Bill of Rights Act 1990 BETWEEN
VENKATADRI BAI-REDDY
Applicant
AND
THE ATTORNEY-GENERAL ON BEHALF OF THE DEPARTMENT OF
CORRECTIONS
First RespondentPRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY
Second Respondent
VISITING JUSTICE AT AUCKLAND SOUTH CORRECTIONS FACILITY
Third Respondent
Hearing: 27 and 28 February 2024 Appearances:
G W Minchin for Applicant
L Dittrich and S L K Shaw for First Respondent
E A Boshier and M Holmes for Second Respondent Third Respondent abides the decision of the CourtJudgment:
30 August 2024
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 30 August 2024 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.
………………………………
Registrar/Deputy Registrar
Solicitors: Meredith Connell, Auckland
Duncan Cotterill, Auckland Crown Law
Exeo Legal
BAI-REDDY v THE ATTORNEY-GENERAL ON BEHALF OF THE DEPARTMENT OF CORRECTIONS [2024] NZHC 2433 [30 August 2024]
Table of contents
Para No
Statutory scheme[5]
Purposes and guiding principles[5]
Relationship of purposes and principles to management of the prison[7]
Segregation[11]
Security classifications [16]
Prisoner accommodation[19]
Factual background[26]
Misconduct charge following 1 May 2021 incident[29]
First period of directed segregation[32]
Second period of directed segregation[41]
Further misconduct proceedings[46]
Overview of Mr Bai-Reddy’s position [47]
Standard of review of prison decisions in judicial review[49]
First ground of review – Prison Director – illegality/procedural unfairness[53]
Ground of review[53]
Decision[56]
Second ground of review – Prison Director – procedural unfairness [59]
Ground of review[59]
Decision[61]
Third ground of review – Prison Director – illegality [65]
Ground of review[65]
Decision[67]
Fourth ground of review – Prison Director – “punishment regime” [74]
Ground of review[74]
Decision[77]
Fifth ground of review – Prison Director – directed segregation order [89]
Ground of review[89]
Decision[92]
Sixth ground of review – Attorney-General – directed segregation [105]
Ground of review[105]
Attorney-General’s involvement and submissions[109]
Decision[127]
Seventh ground of review – Visiting Justice – Visiting Justice hearing
16 June 2021[141]
Ground of review[141]
Statutory framework[143]
Visiting Justice hearing[150]
Decision[153]
Eighth ground of review – Prison Director – illegality [159]
Ground of review[159]
Decision[160]
Security classification aspects of sixth ground of review against the
Attorney-General [169] Ground of review [169] Decision [173]
Ninth ground of review – Prison Director – procedural irregularity[175]
Ground of review[175]
Decision – Requests for witnesses and evidence[185]
Decision – “Prejudicial” delay in the appeal being heard before the
Visiting Justice[189]
Tenth ground of review – Visiting Justice – Visiting Justice hearing on
7 April 2022[194]
Ground of review[194]
Decision[196]
Eleventh ground of review – Attorney-General [200]
Ground of review[200]
Decision[203]
Twelfth ground of review – Prison Director – procedural irregularity [205]
Ground of review[205]
Decision[206]
Thirteenth ground of review – Attorney-General – illegality [210]
New Zealand Bill of Rights Act claims[212] Section 25(f) – Attorney-General and the Visiting Justice[221] Sections 9 and 23(5) – Attorney-General and Prison Director[223] Section 25 – Attorney-General and Prison Director[232]
Result[234]
[1] Mr Bai-Reddy was an inmate at Auckland South Corrections Facility (ASCF) from 23 February 2018 until about 19 October 2022 when he was released on parole. ASCF is a privately operated prison managed by Serco New Zealand Ltd.
[2] Mr Bai-Reddy brings claims against the Attorney-General on behalf of the Department of Corrections, the prison director of ASCF and against the Visiting Justice at ASCF. The Visiting Justice abides the decision of the Court. The Attorney-General takes the role of contradictor in respect to those claims.
[3] In all, there are 13 grounds of judicial review plus three further causes of action under the New Zealand Bill of Rights Act 1990 (NZBORA). Broadly, they relate to management of Mr Bai-Ready’s placement at ASCF (primarily decisions made placing and keeping him on directed segregation), and complaints of how certain disciplinary processes against him were handled.
[4] First, I set out aspects of the statutory scheme and describe accommodation within ASCF. I will then provide the factual background and an overview of the parties’ positions before addressing the grounds of review.
Statutory scheme
Purposes and guiding principles
[5] The Corrections Act 2004 (the Act) sets out that the purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by:1
(a)ensuring that the community-based sentences, sentences of home detention, and custodial sentences and related orders that are imposed by the courts and the New Zealand Parole Board are administered in a safe, secure, humane, and effective manner; and
(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
1 Corrections Act 2004, s 5(1).
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; and
(d)providing information to the courts and the New Zealand Parole Board to assist them in decision-making.
[6] The principles guiding the operation of the corrections system are set out in s 6. The paramount consideration in decisions about the management or control of persons under control or supervision is the maintenance of public safety.2 The corrections system must ensure the fair treatment of persons under control or supervision by providing those persons with information about the rules, obligations and entitlements that affect them; and 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.3 Sentences must not be administered more restrictively than is reasonably necessary to ensure the maintenance of law and the safety of the public, corrections staff, and other persons under control or supervision.4
Relationship of purposes and principles to management of the prison
[7] Those who exercise powers and duties under the Act or its regulations are required to take into account any s 6 principles that are applicable, so far as is practicable in the circumstances.
[8] The Chief Executive of the Department of Corrections has the obligation of ensuring that the corrections system operates in accordance with the purposes and principles set out in ss 5 and 6.5 A prison manager is appointed under s 11 of the Act
2 Section 6(1)(a).
3 Section 6(1)(f).
4 Section 6(1)(g).
5 Section 8(1)(a).
and has certain powers and functions under s 12 and the Corrections Regulations 2005 (the Regulations). Those powers and functions include ensuring that the prison operates in accordance with the s 5 purposes and s 6 principles.6 At ASCF, the prison manager is the appointed prison director, the second respondent (Prison Director).
[9] The Regulations supplement the Act by prescribing general duties of the Prison Director. Regulation 6(1) provides that the Prison Director is responsible for the prison’s “good management and the fair, safe, secure, orderly, and humane management and care of its prisoners”.
[10] In addition to the Act and Regulations, decision-making at ASCF is guided by policies and procedures which are set out in the Policy and Procedures Manual (PPM). Where matters are not addressed in the PPM, staff will refer to the Prison Operations Manual prepared by the Department of Corrections (POM).
Segregation
[11] Section 59 of the Act empowers the Prison Director to direct that a prisoner be managed on segregation for their own safety. This power can be exercised at the Prison Director’s initiative (directed segregation, s 59(1)(b)) or at the prisoner’s request (voluntary segregation, s 59(1)(a)). A direction may only be made under s 59(1)(b) if the Prison Director is satisfied that the safety of the prisoner has been put at risk by another person and that there is no reasonable way to ensure the prisoner’s safety otherwise than by giving such a direction.
[12] The decision to manage a prisoner under s 59 is made by the Prison Director or their delegate. In practical terms, this follows a recommendation from custodial staff who interact with the prisoner and complete and submit the relevant form to the Prison Director.
[13] A direction under s 59(1)(b) must be revoked by the Prison Director if there ceases to be any justification for it.7 It will also expire after 14 days unless the Chief
6 Section 12(a).
7 Section 59(4)(a).
Executive directs that it continues in force.8 If it continues in force the direction must be reviewed by the Chief Executive at not more than three monthly intervals.9
[14] The process for extension and review involves the Prison Director completing a form for “Continuation of a Direct Segregation” outlining the reasons for recommending the extension. This is submitted to the Senior Adviser (acting as the Chief Executive’s delegate). The Senior Adviser undertakes a review and completes a section of the form that either directs segregation to continue for the period proposed or revokes the segregation direction.
[15] Segregation under ss 57 to 60 of the Act is a risk mitigation and management tool.10 It is not punitive.11 Prisoners’ minimum entitlements and requirements in relation to conditions of detention remain the same.
Security classifications
[16] Security classifications are an essential tool for the management of prisoners and operation of prisons.12 Each prisoner is given a classification to reflect the level of internal and external security risk they pose and prison managerial response. This includes the degree and nature of supervision needed for each prisoner.13 Section 47 of the Act contains the statutory obligation to assign security classification at certain junctures. Further relevant security classification requirements are outlined in s 48, particularly relating to notifying classifications to prisoners and the ability to seek review.14
[17] The PPM reflects the requirements of the Act and Regulations. It outlines the process for generating, reviewing and notifying security classifications including the procedure for reconsideration of these and practical implications of the classifications.
8 Section 59(4)(c).
9 Section 59(4)(d).
10 Stevens v Chief Executive of the Department of Corrections [2024] NZCA 153 at [17].
11 At [17].
12 Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331 at [7].
13 Corrections Act, s 47(1).
14 Corrections Regulations, regs 44–52 further detail the security classification process.
[18] Prisoners are assessed as within categories of maximum, high, low-medium, low and minimum. Prisoners are assigned to the lowest level of classification that allows for them to be safely and securely managed. Classifications are reviewed periodically. One of the grounds for reviewing a classification is when there is a significant change in the prisoner’s circumstances. This includes the occurrence of an incident that involves or was instigated by the prisoner.
Prisoner accommodation
[19] ASCF has the capacity to house up to 960 prisoners. Throughout 2021 it was operating with an average of 775 prisoners.
[20] Prisoners at ASCF are placed in accommodation corresponding to their security classification. House Block 1 houses voluntary segregation prisoners with security classifications ranging from high to minimum. House Block 2 houses those with high to low security classifications. House Block 3 houses prisoners with low security classifications and those who are considered at risk or vulnerable. Each house block has several wings.
[21] ASCF also has independent living units which house low or low-medium security, low risk, and minimum supervision prisoners. These are known as the “Residences” or “Self-care Units.” Placement in the Residences is given to prisoners who are at the appropriate stage of their sentence where reintegration is their primary focus and where they meet the eligibility criteria.
[22] Prisoners on voluntary segregation are held in House Block 1 and sometimes Wing 2 of House Block 2 if House Block 1 is at capacity.
[23] Prisoners on directed segregation are usually transferred to the Separation and Reintegration Unit (SRU) to ensure they are kept away from other prisoners and to allow for heightened observation in line with additional risks they may pose to themselves or others. The SRU is a separate building from the main house blocks at ASCF. It consists of 14 cells. Two of these are known as “dry cells” used for
segregation directions made under the Act for medical oversight.15 With the exception of the dry cells, the SRU cells have the same amenities as other cells at ASCF. A difference is that the SRU cells have a camera. The evidence detailed that this is fitted for prisoner protection and is not pointed at the bed or bathroom, with a manoeuvreable privacy screen provided. Prisoners held in the SRU are provided their minimum entitlements under the Act including at least one hour of unlock a day and access to visitors.16
[24] Sometimes prisoners on directed segregation remain in one of the main houseblocks where they are managed as segregated. This occurs when the SRU is full or when the prisoner needs to be separated from other prisoners in the SRU. The SRU will sometimes house prisoners who are subject to misconduct penalties. Penalties can only be imposed on prisoners by a hearing adjudicator or a Visiting Justice after a misconduct charge is proven.17
[25] Directed segregation may involve “denial” or “restriction” of association with other prisoners. Where association is restricted, it is considered appropriate for the prisoner to have some association with other prisoners. Where a prisoner on directed segregation is being housed in a houseblock, this association will be with others on directed segregation with whom they will share exercise/unlock time. However, prisoners managed in the SRU will usually not associate with other prisoners in the SRU because they are given different exercise/unlock times.
Factual background
[26] The genesis of Mr Bai-Reddy’s complaint follows an incident at ASCF on 1 May 2021. At that time, Mr Bai-Reddy was housed in House Block 3, Wing 2 (HB3/W2). On the afternoon of 1 May 2021, a “Code Blue” was declared in another part of ASCF while Mr Bai-Reddy’s wing was having yard time. A Code Blue refers to an incident which requires response teams to immediately report to the incident scene. All prisoners in Mr Bai-Reddy’s wing were directed to return to their cells so the incident could be dealt with.
15 Corrections Act, s 60.
16 Section 69.
17 Sections 133 and 137.
[27] Mr Bai-Reddy, together with the Wing Representative, Mr K, began collecting signatures for a “collective complaint” to express the prisoners’ frustration at having their yard time cut short.
[28] Mr Bai-Reddy says this was an attempt to de-escalate the tense situation developing. Instead, from the prison’s point of view, the action had the opposite effect. The prison characterised the conduct as nearly resulting in a riot in the wing. An “all of staff” response was called with some 40 officers responding to secure the prisoners in that wing back in their cells.
Misconduct charge following 1 May 2021 incident
[29] Following this incident, Mr Bai-Reddy and Mr K were charged under s 128(1)(k) of the Act for combining for a purpose that was likely to endanger the security or good order of the prison.
[30] Mr Bai-Reddy’s charge first came before a hearing adjudicator on 13 May 2021. Mr Bai-Reddy pleaded not guilty. The adjudicator’s notes recorded the matter was adjourned until the adjudicator could see Mr K. On 25 May 2021 Mr Bai-Reddy appeared again before the adjudicator. The matter was referred to the Visiting Justice.
[31] On 16 June 2021 Mr Bai-Reddy’s charge came before the Visiting Justice. After a hearing, including oral evidence, the Visiting Justice was satisfied the elements of s 128(1)(k) were met. Mr Bai-Reddy was convicted and sentenced to 14 days cell confinement and 85 days loss of privileges (excepting calls and in-person visits, which remained). I say more about the legislative context and process of this hearing later when addressing Mr Bai-Reddy’s claims regarding this.
First period of directed segregation
[32] Prior to the 1 May incident, Mr Bai-Reddy had expressed some generalised concerns for his safety to staff and to external agencies such as the Office of the Inspectorate of the Department of Corrections. Although these were non-specific, they were addressed.
[33] After the 1 May incident, Mr Bai-Reddy was relocated from HB3/W2 to HB2/W4 while Mr K was moved to the SRU to separate both of them from the wing and each other while the investigation into the incident was completed.
[34] Upon being relocated to HB2/W4, Mr Bai-Reddy began expressing concerns for his safety more regularly. Mr Bai-Reddy did not identify who posed the danger. Custodial staff had also been alerted by other prisoners that threats were made against Mr Bai-Reddy. Responding to these concerns, on 21 May 2021 the Prison Director placed Mr Bai-Reddy on “directed protected segregation” under s 59(1)(b) of the Act. On 23 May 2021, the Senior Adviser, Ms Kumar (acting as the Chief Executive’s delegate) reviewed and confirmed this direction. Mr Bai-Reddy was moved to the SRU. He continued to raise issues relating to safety and complained about his placement in ASCF.
[35] On 2 June 2021, the Prison Director recommended extending Mr Bai-Reddy’s directed segregation to 20 June 2021 under s 59(1)(b) on the basis of Mr Bai-Reddy’s continued safety concerns.
[36] As set out above, on 16 June 2021 Mr Bai-Reddy was found guilty of misconduct and sentenced to 14 days cell confinement. At the end of that period, Mr Bai-Reddy says that the Prison Director informed him that he would be moving to HB2/W4. However, Mr Bai-Reddy says he elected to stay in directed segregation because he was fearful of his safety in that unit. He would not go on voluntary segregation. In the circumstances the Prison Director recommended extending the 21 May 2021 order until 20 July 2021. The Senior Adviser reviewed and signed off on that extension.
[37] The directed segregation order was then further extended by the Senior Adviser on review following recommendation by the Prison Director to 19 August 2021. On 19 August 2021, the Prison Director made a further recommendation to extend the 21 May 2021 order to 20 November 2021. The Senior Adviser reviewed and signed this on 20 August 2021.
[38] The backdrop to these extensions is that during the relevant period, ASCF staff attempted to find other suitable house blocks for Mr Bai-Reddy. An effort to transfer Mr Bai-Reddy off-site was also initiated. Mr Bai-Reddy continued to express generalised concerns for his safety such that ASCF staff were unable to identify specifically who posed the risk, or how the risk could be managed through non-associations. Blocks proposed by Mr Bai-Reddy were all ones for which he was ineligible or were not considered appropriate to manage his safety.
[39] The first period of directed segregation came to an end on 19 November 2021 when it was revoked on the basis that a suitable wing (HB3/W3) had been identified.
[40] In terms of where Mr Bai-Reddy was located while on directed segregation, for the period from 21 May to 3 September 2021, he was held in the SRU (for 14 days of this time he was on cell confinement due to his misconduct penalty). For the period from 3 September to 4 November 2021 he was managed on directed segregation in HB2/W4. Between 4 November and 19 November 2021 he was managed in the SRU.
Second period of directed segregation
[41] On 18 November 2021 ASCF staff attempted to move Mr Bai-Reddy to HB3/W3 but he refused citing safety concerns related to certain individuals. ASCF staff met with Mr Bai-Reddy and confirmed that none of the individuals he named as posing risks to him resided in HB3/W3. Mr Bai-Reddy agreed to move to HB3/W3 on 19 November 2021.
[42] After the transfer, Mr Bai-Reddy told prison staff that he had been threatened by a gang member in HB3/W3. He asked that no action be taken because of fear of retaliation. Prison officers nonetheless charged the prisoner. On 28 November 2021 Mr Bai-Reddy was assaulted by another prisoner. Mr Bai-Reddy sustained a fractured nose, chipped tooth and concussion.
[43] After this incident, a decision was made by the Prison Director to place Mr Bai- Reddy back on directed segregation pursuant to s 59(1)(b) for 14 days. The order commenced on 29 November 2021 and was due to expire on 12 December 2021.
Mr Bai-Reddy remained in HB3/W3 following the assault but was managed on directed segregation there until 9 December 2021, when he was moved to the SRU.
[44] The 29 November 2021 order was extended following recommendations by the Prison Director and review by the Senior Adviser on 10 December 2021, 24 December 2021, 27 January 2022, 10 February 2022, 26 February 2022 and 28 March 2022. During the period from 9 December 2021 to 15 December 2021 Mr Bai-Reddy was held in the SRU. Between 15 December 2021 and 28 April 2022 he resided in HB1/W2.
[45] Ultimately Mr Bai-Reddy signed on to voluntary protective segregation on 28 April 2022.
Further misconduct proceedings
[46] Mr Bai-Reddy was charged with further misconduct in August 2021 relating to holding contraband. I set out the relevant facts later when addressing the grounds of review claims associated with this.
Overview of Mr Bai-Reddy’s position
[47] Mr Bai-Reddy believes that he was being punished for being a “serial complainer” and that ASCF staff were deliberately seeking to thwart his progression to parole, both by the charges laid and the directed segregation, and their reactions to his proposals for alternative accommodation. Added into that, he refers to a change to his security classification to “high” (ultimately reviewed down to “low”) as retaliatory due to these proceedings and as further steps by the prison staff and Senior Adviser to hamper his efforts to achieve parole.
[48] In submissions, Mr Minchin on behalf of Mr Bai-Reddy made strong criticisms about the motivations and conduct of prison staff and the Senior Adviser. These effectively were allegations of bad faith about their conduct. In large part, these are not pleaded. Moreover, Mr Bai-Reddy did not seek cross-examination of any of the relevant witnesses from the respondents. Where pleaded, I will deal with these
allegations, but at the outset I record that the evidence falls far short of substantiating them.
Standard of review of prison decisions in judicial review
[49] Imprisonment, by necessity, brings inevitable constraints. However, those constraints do not take away a prisoner’s usual civil rights or render the exercise of authority within the prison context immune from judicial review.18
[50] Decisions made by prison staff in relation to the day-to-day operations of a prison have generally been afforded deference by the Court.19 Judicial review is not intended to be a mechanism to resolve factual matters.20 Courts are reluctant to interfere with genuine and reasonable factual views and value judgements.21 In particular, directions relating to segregation under s 59 of the Act require the applicant to establish a material error of law within the context of broadly conferred powers relating to day-to-day management of a prison.22 In Stevens v Chief Executive of the Department of Corrections Andrew J expressed this threshold as the “high hurdle of an absence of probative evidence to support the impugned decisions”.23
[51] Segregation decisions are not determinations of fact as to whether something has occurred, but involve judgement as to the risks posed and the measures available to deal with that.24 As Woolford J noted in Gorgus v Chief Executive of the Department of Corrections:25
All that is required is that there be credible and reasonable evidence of such risk. To expect more would have a chilling effect on the ability of Corrections’ staff to make day to day security decisions. Some latitude in making such assessment must be accorded to Corrections.
18 Chief Executive of the Department of Corrections v Smith [2020] NZCA 675 at [8].
19 Mitchell v Attorney General [2021] NZHC 2946 at [63].
20 Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662 (PC) at 681.
21 Smith v Attorney-General, above n 12, at [55] citing: Re Erebus Royal Commission; Air New Zealand Ltd v Mahon, above n 20, at 683–684; Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [21]; and New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
22 Stevens v Chief Executive of the Department of Corrections [2023] NZHC 1051 at [29].
23 At [30].
24 At [29].
25 Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 450 at [41]–[42] although in the context of s 58.
[52] This approach is supported by the Court of Appeal in the way it dealt with the appeal in Stevens v Chief Executive of the Department of Corrections.26 Andrew J had approached review of directions or other conduct under s 59(1) by considering whether there was probative evidence to support the decisions made. In dismissing an appeal, the Court of Appeal in substance affirmed that approach by concluding that the Judge’s findings were justified by the evidence. The Court concluded that the prison manager directed himself to the statutory criteria and had a sufficient basis to conclude that the criteria were met. The segregation decision was one that a reasonable decision-maker could reach.27
First ground of review – Prison Director – illegality/procedural unfairness
Ground of review
[53] The first, second and third grounds of review relate to the 1 May incident and its aftermath. By his first ground of review, Mr Bai-Reddy seeks declarations that:
(a)The Prison Director acted unlawfully, by charging Mr Bai-Reddy under s 128(1)(k) for being involved in a complaint he was entitled to make under the complaints system.
(b)He had a reasonable expectation that the Prison Director would have warned him after involvement in lodging collective complaints in February and April 2021 that collective complaints would be responded to harshly.
[54] This ground of review is based on the misconception that the conduct Mr Bai-Reddy was charged with was simply the making of the complaint.
[55] The background is that the form used to file complaints does not contemplate more than one person filing the document. Mr Minchin’s submissions focussed on the complaints process provided for under the Act and what he regarded as a tension
26 Stevens v Chief Executive of the Department of Corrections above n 10.
27 At [74] and see also [118].
between it and the stated objective of that system.28 He emphasises that ventilation of a grievance of itself has a positive value on security and good order. Mr Minchin submitted there is nothing that prevents “collective complaints” and the charge Mr Bai-Reddy faced sought to punish him for that, creating a situation where his protection from fear of adverse consequences is undermined.
Decision
[56] I do not see merit in this ground of review. It challenges the broad prosecutorial discretion of prison staff to lay a charge under s 128(1)(k). The charging officer was entitled to charge Mr Bai-Reddy with misconduct based on the information he received.
[57] The decision to charge was not based on a collective complaint being made per se, but on the facts and circumstances of 1 May 2021. As I raised at the hearing, a prison riot in itself can also be characterised as a collective complaint. However, it is not for that reason immune from consequence. Mr Bai-Reddy’s position ignores the context, which is that this “collective complaint” of 1 May 2021 was initiated in the midst of a volatile situation in circumstances where prison staff considered his actions were liable to inflame matters. The concern was that Mr Bai-Reddy played a material role in the events that involved approximately 40 staff members being deployed to respond and prisoners being on the verge of riot.
[58] This context underlines why there is also no merit in Mr Bai-Reddy’s assertion that he somehow had a legitimate expectation that collective complaints would not be treated harshly. No such expectation could have been raised simply by the making of earlier collective complaints.
28 Corrections Act, s 152(1)(b): “to ensure that all persons under control or supervision … are able to make a complaint if and when they choose to do so, without fear of adverse consequences” and the offence with which he was charged under s 128(1)(k) of combining “with other prisoners for a purpose that is likely to endanger the security or good order of the prison”.
Second ground of review – Prison Director – procedural unfairness
Ground of review
[59] Section 133 sets out the powers of a “hearing adjudicator” in relation to offences. A “hearing adjudicator” is someone designated for that function pursuant to s 15 of the Act. If a complaint alleging an offence against discipline is brought before a hearing adjudicator, he or she may refer the case to a Visiting Justice. Section 134 sets out when such a referral may occur. The Visiting Justice may refer a matter back to a hearing adjudicator pursuant to a broad discretion to do so.29
[60] In this ground of review Mr Bai-Reddy complains that Mr K’s charge was determined by a prison adjudicator whereas his charge was removed from the prison adjudication process and referred to a Visiting Justice. He seeks a declaration that in doing this the Prison Director acted unfairly including by seeking a much harsher penalty for Mr Bai-Reddy than it did for Mr K.
Decision
[61] This ground of review fails. There was a legitimate basis under s 134(2)(b) for referring the matter to a Visiting Justice. As his contemporaneous note records, the hearing adjudicator considered that the misconduct charge was complex, and it was appropriate for the charge to be referred accordingly. The lengthy transcript of the hearing before the Visiting Justice also bears this out.
[62] Mr Minchin referred me to some inconsistencies in file notes as to why the matter was referred to the Visiting Justice. The primary record of this is the adjudicator’s contemporaneous note. To the extent there is reference to adjourning for further evidence, I accept Mr Boshier’s submission that this is not inconsistent with adjourning the matter because the matter was complex.
[63] Referral to a Visiting Justice exposes a prisoner to risk of higher penalties. That is because of the jurisdiction of a Visiting Justice. Mr Bai-Reddy complains that the Prison Director sought and obtained penalties higher than could have been imposed
29 Section 138.
by the adjudicator. However, it is for the Visiting Justice to impose an appropriate penalty.30 If a lower penalty is justified, the Visiting Justice can impose it.31 The Visiting Justice did not seek to remit the matter back to a hearing adjudicator implying that he considered it appropriate that he be seized of the matter.
[64] I accept Mr Boshier’s submission that the decision to remove Mr Bai-Reddy’s charge from the prison adjudication process was both consistent with the process prescribed by the Act and sensible. There was no procedural unfairness nor other basis for review.
Third ground of review – Prison Director – illegality
Ground of review
[65] This ground of review, headed “illegality,” asserts that in placing or seeking to place Mr Bai-Reddy in HB2/W4 and HB3/W3, the Prison Director was in breach of s 6(1)(g) of the Act, which states as a guiding principle that sentences must not be administered more restrictively than is reasonably necessary to ensure the maintenance of law and the safety of the public, corrections staff, and other persons under control or supervision.
[66] A related allegation concerns Mr Bai-Reddy’s management on directed segregation in HB3/W3 after having been assaulted in that wing on 28 November 2021. Mr Bai-Reddy asserts that this was a “breach” of the purposes of the corrections system:
(a)In s 5(1)(a) to ensure custodial sentences and related orders are administered in a safe, secure, humane and effective manner.
(b)In s 5(1)(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
30 Department of Corrections v Taylor [2009] 3 NZLR 34 (CA) at [52].
31 At [52]. I acknowledge that the Visiting Justice recorded his (incorrect) understanding that the matter had been referred due to the higher penalties available.
Standard Minimum Rules for the Treatment of Prisoners” known as the Mandela Rules.
Decision
[67] Although the pleading catalogues movements of Mr Bai-Reddy between 4 May 2021 and 29 November 2021, in submissions Mr Minchin emphasised Mr Bai-Reddy’s placement in HB2/W4 on 4 May 2021 after the 1 May incident, when Mr K was moved to the SRU.
[68] Mr Minchin submits that the Prison Director and staff purposely placed Mr Bai-Reddy in HB2/W4 on 4 May 2021 to set up a situation where he would be unsafe so that they could then place him on directed segregation on 21 May 2021 and keep him in that regime. He suggests that the prison staff were or should have been aware of the perception by other prisoners of better treatment of Mr Bai-Reddy over Mr K in placement of the latter in the SRU following the 1 May incident and that this was designed to cause Mr Bai-Reddy to be a target of racial tension (Mr K being Tongan, and Mr Bai-Reddy, Indian). By that means, Mr Bai-Reddy contends that the Prison Director “engaged s 59 segregation by its own action”.
[69] This is an assertion of bad faith. I find no evidence that the Prison Director and prison staff were acting other than bona fide and for proper purposes. The two men were sensibly removed from the wing where the incident had taken place and separated from each other. I reject Mr Bai-Reddy’s submission that the decision to place him on directed segregation was (as Mr Bai-Reddy also submitted) to “punish [him] for his part in the collective complaint”.
[70] Mr Bai-Reddy also complains that the Prison Director should have known of safety risks to him when he was later placed back in HB2/W4 and HB3/W3 respectively (including when placed there while being managed on directed segregation). He says he was subjected to threats and taunts in the exercise yard and was under continual stress in what he saw as a dangerous environment. He contends that the risks could have been avoided by placing him in another wing of ASCF.
[71] I return later to an analysis of the various segregation and placement decisions including Mr Bai-Reddy’s assertion that there were other options. For present purposes it suffices to say that in my view, criticisms of how the Prison Director was managing the dynamic situation are unjustified and do not meet the threshold for review.
[72] Mr Minchin submits that in keeping Mr Bai-Reddy in HB3/W3 under directed segregation after he was assaulted in that wing the Prison Director was somehow using other prisoners in a “disciplinary capacity.”32 I find no evidence of this. Moreover, the prisoner who assaulted Mr Bai-Reddy had been removed from the House Block so was no longer present while Mr Bai-Reddy was managed on directed segregation in HB3/W3.
[73] More generally I accept Mr Boshier’s submission that the Prison Director adhered to the principles and purposes of the Act when making the decisions to relocate Mr Bai-Reddy. Prison placement is a complex matter which must take into account the needs of each prisoner, the other prisoners they can associate with, and whether the prisoner poses any risks. The safety of each prisoner and the good order of the prison are the paramount considerations. I do not consider that these were compromised in the Prison Director’s management of Mr Bai-Reddy.
Fourth ground of review – Prison Director – “punishment regime”
Ground of review
[74] In this ground of review, Mr Bai-Reddy contends that in periods he was held in the SRU under a directed segregation order he was unlawfully held in “punishment cells”. He says he was subject to “the punitive punishment cell regime” there despite not being in the SRU for misconduct. He also says he was unlawfully subject to the punishment cells in the period following 30 June, when he elected to stay there rather than be moved to HB2/W4, where he says he did not feel safe. He says his safety was at risk in circumstances where the Prison Director should have known of that risk. He says that while on directed segregation he was in “solitary confinement.”.
32 This is the basis for his assertion that minimum entitlements of prisoners were not met in HB3/W3, by reference to the Mandela Rules.
[75] This claim does not identify any particular head of review but the prayer for relief suggests that the claim is that the Prison Director acted ultra vires the Act in the manner in which they treated Mr Bai-Reddy.
[76] He seeks declarations that the following actions “breached” ss 5(1)(b) and 6(1)(f):
(a)The Prison Director’s imposition of the “punishment cells” on Mr Bai-Reddy during the period when he was not there for misconduct.
(b)The Prison Director’s placement of Mr Bai-Reddy in “solitary confinement” when the directed segregation order directed that segregation was only to be restricted not denied.
(c)The Prison Director’s placement of Mr Bai-Reddy in solitary confinement for such an extended period.
Decision
[77] Sections 5 and 6 respectively set out the purposes of the Act and principles guiding its operation as I outlined earlier.33 To recap, s 5(1)(b) provides that the purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by (among other things) “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 [Mandela Rules]”. Section 6(1)(f) states the principle (as relevant) that the corrections system must ensure the fair treatment of persons under control or supervision by ensuring that decisions about those persons are taken in a fair and reasonable way.
[78] Mr Bai-Reddy’s submissions under this head pointed to various pre-conditions for “solitary confinement” under the Mandela Rules that he said were not complied with by the Prison Director. For reasons I will come to, I reject Mr Bai-Reddy’s assertion that he was held under conditions of “solitary confinement”. As well, I
33 At [2].
address the assertions he makes by viewing them from the perspective of the regime under the Act. The Court of Appeal has said that the reference to the Mandela Rules in s 5(1)(b) does not mean that they have been adopted in New Zealand.34 Any breaches of minimum standards are to be assessed by reference to the applicable domestic legislation and regulations.35
[79] First, Mr Bai-Reddy contends that the orders were not made “pursuant to the authorisation of competent authority” which he derives from words used in the Mandela Rules as a pre-condition for solitary confinement. He says that the Prison Director had no power to make the segregation orders because s 10(f) of the Act includes among the powers unable to be delegated by the Chief Executive “the powers conferred by section 58 or section 59(1)(b) (which relate to the segregation of prisoners on the grounds of security, good order, or safety; or for the purpose of protective custody)”. He submits that the Prison Director could only make segregation orders in exigent circumstances, subject to them being ratified by a senior adviser to whom power is delegated by the Chief Executive.
[80] This submission mirrors an unsuccessful argument advanced in Stevens v Chief Executive of the Department of Corrections which was dismissed by Andrew J36 and then by the Court of Appeal.37 The Court of Appeal in Stevens confirmed that where s 58 empowers the Prison Director to direct segregation, there is no statutory, regulatory or policy requirement for authorisation of the Chief Executive to be given before a direction is implemented. Nor is the exercise of power contingent on circumstances of urgency.38 Although that aspect of the decision related to s 58, the Court later also confirmed that there was no need for “ratification” of a decision under s 59(1)(b).39
34 Attorney-General v Taunoa [2006] 2 NZLR 457 (CA) at [259].
35 Gorgus v Chief Executive of the Department of Corrections, above n 25, at [19].
36 Stevens v Chief Executive of the Department of Corrections, above n 22.
37 Stevens v Chief Executive of the Department of Corrections, above n 10.
38 At [50].
39 At [98]. In its terms s 59(1)(b) does not confer any power on the Chief Executive at all, but on the prison manager. However, in context s 10(f) necessarily refers to the Chief Executive’s powers relating to the segregation direction made by the prison manager under s 59(1)(b), being the Chief Executive’s power to revoke the direction and continue it in force under s 59(4).
[81] Turning to the assertion that Mr Bai-Reddy was held in “solitary confinement”, the opportunity to associate with other prisoners is important. That is why association cannot be restricted or denied except under the circumstances prescribed by the Act, and prisoner minimum conditions must be maintained where practicable. Segregation has the potential to be psychologically harmful.40 Whether the orders and their extension were appropriately made are the focus of the fifth and sixth grounds of review, which alleges that they were made and extended when the grounds for them were not met. It is under that head that their justification (and therefore length of segregation) is appropriately considered.
[82] For present purposes, I emphasise that segregation is not a punitive measure. Moreover, in this case, access was appropriately restricted not denied. Mr Bai-Reddy was permitted to associate with prisoners to the extent that association remained consistent with his directed segregation: ensuring his safety. Allegations of punitive treatment or of being in solitary confinement therefore relate to the conditions in which Mr Bai-Reddy was kept under directed segregation, not the orders per se.
[83] Mr Bai-Reddy describes the SRU as “punishment cells”. That description is inapt. As set out earlier, the SRU is not just used to house prisoners subject to misconduct penalties, but also those who are on directed segregation, including for medical reasons. It has the same amenities as other cells, other than having a camera.
[84] To the extent that Mr Bai-Reddy’s cell was missing a particular amenity (he complains it did not have a chair for a period and issues with having his request for a television fulfilled) these are simply operational matters that are not appropriately advanced as grounds for judicial review. I note that the absence of a chair was due to the room configuration, with the ledge of the bed fulfilling this function. Nonetheless Mr Bai-Reddy was ultimately provided with a chair.
[85] Throughout his time on segregation, Mr Bai-Reddy was permitted to associate with other prisoners. He is recorded as playing battleships with another prisoner on an occasion he chose to take his unlock time. While Mr Bai-Reddy characterises concerns with leaving his cell as an issue of safety, he is reported as stating that time
40 At [67]; citing Toia v Prison Manager, Auckland Prison [2014] NZHC 867 at [179].
he was offered in the yard was “a waste of time” and on a separate occasion responding to whether he wanted to take his unlock that he was “happy staying in his cell” and would use the yard when he felt like it. The affidavits filed for the Prison Director recount and refer to base documents showing the extent to which Mr Bai-Reddy chose to stay in his cell, and efforts made by staff.
[86] Mr Bai-Reddy was afforded his other minimum entitlements including phone and Skype calls, contact with legal counsel and welfare checks from a nurse. The ASCF records recorded daily interactions with staff, casual interactions with those in the unit as well as calls to external agencies. Mr Bai-Reddy had access to books and other recreational facilities; and had access to rehabilitation pathways to progress off segregation. He also used the kiosk and CMS.
[87] Mr Bai-Reddy raises an issue of being handcuffed. This was not pleaded and is strongly rejected in the affidavits filed on behalf of the Prison Director, who point to CCTV footage as supporting this is not so.
[88] In all the circumstances above, this is not a case where there is a lack of meaningful contact constituting “solitary confinement”.41 Mr Bai-Reddy was not held in solitary confinement or on a “punishment regime”. This ground of appeal fails. Because the ground fails on the facts, I do not need to interrogate further whether it was legitimate for Mr Minchin to place such direct reliance on the Mandela Rules.
Fifth ground of review – Prison Director – directed segregation order
Ground of review
[89] This ground of review seeks declarations relating to the 21 May 2021 directed segregation order and recommendations that were made by the Prison Director that the order be continued. By s 59(1)(b) the Prison Director must be satisfied that “the safety of the prisoner has been put at risk by another person” and there is “no reasonable way to ensure the safety of the prisoner otherwise than by giving that direction”.
41 Taylor v Attorney-General [2022] NZHC 3170 at [123].
[90]Mr Bai-Reddy seeks declarations that the Prison Director:
(a)breached s 59(1)(b) by imposing the order when grounds were not met;
(b)breached s 5(1)(a) by taking no steps to improve his safety;
(c)breached s 5(1)(b) of the Act by keeping him on directed segregation for a prolonged period without proper cause; and
(d)used directed segregation to punish him for his involvement in the collective complaint.
[91] Although cast as “breaches” the issue is whether the decisions made by the Prison Director under s 59 were supported by probative evidence.42 The initial directed segregation order is a decision of the Prison Director. The continuation of directed segregation involves the Prison Director considering whether circumstances are such that it should be revoked under s 59(4)(a) and making recommendations to the Chief Executive (in practical terms the Senior Adviser as their delegate) for continuation and review of the extensions of the order under ss 59(4)(b) - 59(4)(d).
Decision
[92] Mr Minchin’s submissions under this ground of review traversed matters addressed elsewhere: that it was the Prison Director’s conduct in placing Mr Bai-Reddy in HB2/W4 that created a need for segregation; that the Prison Director had no power to make an order unless there were circumstances of exigency; and that the s 59 order stated that association was restricted not denied yet he was held in circumstances of solitary confinement. I addressed the substance of those arguments in the previous grounds of review.
[93] The Prison Director made a directed segregation order on 21 May 2021. He then made recommendations to the Chief Executive that it be continued in force on 20 June 2021, 16 July 2021 and 20 August 2021. All of these recommendations were
42 Stevens v Chief Executive of the Department of Corrections, above n 10, at [30].
on the basis that there was no reasonable way to ensure Mr Bai-Reddy’s safety other than through that means and in context of concerns for his safety raised by Mr Bai-Reddy himself. On 19 November 2021, directed segregation ceased on the basis that a suitable wing, HB3/W3, had been identified.
[94] A further directed segregation order was made on 29 November 2021 after Mr Bai-Reddy was assaulted on 28 November 2021 by someone that had not been identified previously as a threat by him or anyone else. This order was continued in force by the Chief Executive by directions and review on 10 December 2021, 24 December 2021, 27 January 2022, 10 February 2022, 26 February 2022 and 28 March 2022.
[95] Mr Bai-Reddy was housed variously in the SRU, HB1/W2, HB2/W4 and HB3/W3 over the above periods.
[96] On each occasion of orders and extensions being made, the essential rationale for each decision was outlined in the relevant documentation behind the decision.
[97] Mr Bai-Reddy refers to the repeated references in the segregation documentation to his unspecified safety concerns about being placed in mainstream accommodation. He accepts that he did not name the persons he was fearful of but that naming names is a recipe for retaliation. He emphasises that it was never correct to refer to safety concerns in mainstream accommodation. He says his concerns were with certain houseblocks that were dangerous, or where he had had previous issues in HB4/W2, HB2/W2 and HB3/W3. However, he maintains that there was always the option of placing him back in his old unit, HB3/W2, or the Residences.
[98] The Prison Director acknowledges that Mr Bai-Reddy made numerous requests to be placed back in HB3/W2. The evidence is that it was not possible to place him back there because the 1 May incident occurred there. Moreover, custodial staff had been warned by other prisoners that Mr Bai-Reddy was viewed by prisoners in that wing as a troublemaker and that prisoners were unhappy with his actions. That wing was also a low-security wing with an open-door policy which made it
problematic given Mr Bai-Reddy’s security concerns. In addition, Mr Bai-Reddy had said a named prisoner had threatened him, and that prisoner was in HB3/W2.
[99] Mr Bai-Reddy was not eligible for the Residences for periods that he had an open misconduct. The Prison Director also says that the Residences were occupied by gang contingents about which Mr Bai-Reddy was raising security concerns. Mr Bai-Reddy responds that this was of no moment because prisoners are on good behaviour in the Residences, although I do not consider that to provide any basis for reassurance.
[100] In terms of other options, during 2021 Mr Bai-Reddy repeatedly declined to go to HB1 on the basis that this was for voluntary segregation. Mr Bai-Reddy was not eligible for the health block as he was not relevantly unwell or otherwise qualified for residence there.
[101] In my view, this ground of review is not made out. The initial decision to place Mr Bai-Reddy in directed segregation on 21 May 2021 was supported by probative evidence including a report by Mr Bai-Reddy of a specific belief that he would be involved in an altercation. I accept Mr Boshier’s submission that the Prison Director may have been criticised had he not segregated Mr Bai-Reddy. Each of the subsequent extension recommendations was made on the basis of a distinct enquiry into the evidence and options available and in the context of Mr Bai-Reddy’s safety concerns. The same applies to the November 2021 order.
[102] On each extension of the two orders, the recommendations to the Chief Executive were made by reference to the statutory criteria and there was a sufficient basis to conclude those criteria were met. As set out earlier, what is required for a s 59(1)(b) direction is that there be credible and reasonable evidence of a risk to a prisoner’s safety.43 The safety of prisoners is a paramount consideration.44 In the face of Mr Bai-Reddy’s continued expressed safety concerns, comments from other prisoners that they viewed him as a troublemaker, and in the absence of any appropriate alternative, the segregation decisions were not unreasonable in light of the
43 Gorgus v Chief Executive of the Department of Corrections, above n 25, at [41]–[42].
44 Stevens v Chief Executive of the Department of Corrections, above n 10, at [88].
evidence. I do not accept there is evidence that segregation was being used to punish Mr Bai-Reddy or was retaliatory.
[103] Aspects of Mr Bai-Reddy’s claim involve complaints about where he was managed on directed segregation. Mr Minchin takes issue with ASCF’s responses to where Mr Bai-Reddy wished to be housed and suggests that prisoner/s of concern to him could have been moved out of the wing he wanted to be in. The management of accommodation of prisoners within a prison facility is multi-dimensioned. It is difficult for the Court to second-guess that management without the wider perspective of all the moving parts. That is one reason why the Court is slow to interfere with operational decisions by judicial review.
[104] I acknowledge the lengthy period Mr Bai-Reddy was on directed segregation. However, Mr Bai-Reddy has not established a material error of law or other reviewable error within the context of the legislation. This ground of review fails.
Sixth ground of review – Attorney-General – directed segregation
Ground of review
[105] Under s 59 of the Act the Chief Executive has a review and oversight responsibility over decisions relating to directed segregation. In practice, in this case the Chief Executive’s oversight and review functions were delegated to the Senior Adviser to the Regional Commissioner, or when she was not available, the Acting Senior Adviser. I refer to both as the Senior Adviser.
[106]Mr Bai-Reddy seeks a range of declarations:
(a)The Attorney-General breached s 5(1)(b) of the Act, by not tasking an independent and competent person to exercise the s 59 discretion.
(b)The Attorney-General supported the first recommendation either on a factually incorrect basis or unreasonably.
(c)The Attorney-General’s failure to state how s 59(1)(b)(ii) was met was a procedural irregularity.
(d)The Attorney-General’s imposition of prolonged segregation on Mr Bai-Reddy breached ss 5(1)(b) and 6(1)(g).
(e)The determination of his security classification by the Senior Adviser was a conflict of interest.
(f)The Senior Adviser’s increase to his security classification was retaliatory and without proper foundation.
(g)The Senior Adviser’s frustration of his attempt to transfer from ASCF breached ss 5(1)(b) and 6(1)(g).
(h)The Attorney-General’s advice to the Prison Director “to circumvent the directed segregation regime by placing Mr Bai-Reddy in HB3/W3 and so forcing him to seek voluntary segregation” breached ss 5(1)(b) and 6(1)(g).
(i)The Attorney-General’s conduct breached the Mandela Rules, as adopted by s 5(1)(b) of the Act “by holding the applicant on directed segregation for an inordinate time, without a proper basis”.
[107] In the way a number of these issues were advanced by Mr Bai-Reddy, they have as their basis substantive matters which I have addressed or will address elsewhere. Issues include the Prison Director’s power to make a segregation order;45 Mr Bai-Reddy’s characterisation of the SRU as “punishment cells” and having been in solitary confinement;46 that relatedly, his segregation was in fact denied not simply restricted; that the Senior Adviser had a conflict of interest or was involved in
45 At [89] above.
46 At [74] above.
retaliatory conduct associated with Mr Bai-Reddy’s security classification;47 and that the Mandela Rules apply directly or have been breached.48
[108] Before considering the issues that remain, I set out the sequence of events and the Attorney-General’s submissions.
Attorney-General’s involvement and submissions
[109] On 2 June 2021 the Prison Director extended Mr Bai-Reddy’s segregation under s 59(1)(b) on the basis of continued safety concerns. Mr Bai-Reddy had contacted numerous staff and agencies that he feared for his safety in mainstream accommodation. The Senior Adviser formed the view that a continuation of directed segregation under s 59(1)(b) remained appropriate as there was no other way to ensure his safety. The Attorney-General submits there was credible and reasonable evidence of this risk and the decision to extend was therefore lawful and reasonable.
[110] On 18 June 2021 the Prison Director made a further direction to extend Mr Bai-Reddy’s segregation for one month. The extension was on the same basis as before: Mr Bai-Reddy continued to express concerns for his safety in mainstream accommodation but did not wish to sign on to voluntary protected segregation. The Senior Adviser reviewed and approved this decision on 18 June 2021. The Attorney-General submits that the Senior Adviser’s decision was consistent with s 59(1)(b) and does not give rise to any reviewable error. Mr Bai-Reddy had continued to express unparticularised safety concerns such that it was not possible to take him off segregation and place him into a unit on mainstream management without creating a risk to his safety.
[111] On 16 July 2021 the Prison Director again extended Mr Bai-Reddy’s segregation pursuant to s 59(1)(b) for the period of one month. The Senior Adviser reviewed the segregation direction on the same day. Mr Bai-Reddy had continued to express concerns for his safety but declined to sign on to voluntary protected
47 At [159] below.
48 At [65] above.
segregation. The Senior Adviser approved the extension for one month but indicated that staff were to actively look for a safe and suitable placement.
[112] On 19 August 2021 the Prison Director again extended Mr Bai-Reddy’s segregation for one month. Mr Bai-Reddy’s indications had remained unchanged. The Senior Adviser reviewed this decision. On 12 August 2021 Mr Bai-Reddy was interviewed by the SRU board regarding his placement on-site. Although the Senior Adviser did not attend that meeting, she deposed that she would have requested that ASCF keep her updated about that matter.
[113] The Senior Adviser also reviewed Mr Bai-Reddy’s security re-classification at his request. The classification had been increased from minimum to high following a conviction by the Visiting Justice on 16 July 2021. The Senior Adviser received the request on 11 August 2021 and completed her review on 24 August 2021. She considered that Mr Bai-Reddy’s formal score placed him at a minimum classification but was familiar with him from her oversight of his management and overrode that classification to low.
[114] Because of Mr Bai-Reddy’s continued lack of other realistic options, segregation under s 59(1)(b) remained necessary. The segregation direction was approved on 20 August 2021 and extended for three months.
[115] In September 2021 the Senior Adviser received a request from Mr Bai-Reddy to review his placement on directed segregation. She completed her review and responded to Mr Bai-Reddy on 10 September 2021 recording that Mr Bai-Reddy had already met with ASCF staff on 12 August 2021 to discuss potential placements and ways forward. The Senior Adviser explained to Mr Bai-Reddy that his proposals were not an option because they were either health units (for which he was ineligible) or the unit where the 1 May incident took place. The Senior Adviser also explained that a transfer off-site was not possible at that time and inconsistent with his rehabilitation.
[116] The segregation direction was revoked on 19 November 2021 when Mr Bai-Reddy agreed to move into mainstream accommodation (HB3/W3). As set out above, after 10 days off directed segregation, Mr Bai-Reddy was assaulted by
another prisoner. The Prison Director made a decision to place Mr Bai-Reddy back on directed segregation pursuant to s 59(1)(b) for 14 days. The order commenced on 29 November 2021 and was due to expire on 12 December 2021.
[117] The Senior Adviser reviewed the request on 1 December 2021 and considered that, in light of the recent events, there was a credible risk to Mr Bai-Reddy’s safety. She agreed to an extension of the segregation order.
[118] On 10 December 2021 the Senior Adviser approved a request to extend Mr Bai-Reddy’s directed segregation. The segregation paperwork recorded that the Prison Director and others had interviewed Mr Bai-Reddy regarding his continued directed segregation. Mr Bai-Reddy was offered voluntary protective segregation, but this was again declined. The Senior Adviser was aware that ASCF were continuing to look for alternative placements for Mr Bai-Reddy. As none were forthcoming, and in light of ongoing safety concerns, the Senior Adviser agreed to an extension to directed segregation. The extension was approved on 10 December 2021 for a further 14 days consistent with s 59(4)(c) of the Act.
[119] On 24 December 2021, the Senior Adviser received a request to extend Mr Bai-Reddy’s segregation from the acting Prison Director. She approved it on the same day. The Senior Adviser records that the acting Prison Director detailed the previous offers to accommodate Mr Bai-Reddy in other house blocks but that he had declined those and voluntary segregation. The segregation paperwork also recorded that Mr Bai-Reddy had been interviewed again on 24 December 2021 and he continued to indicate that he wished to remain on directed segregation. Mr Bai-Reddy disputes this. As ASCF was yet to determine a suitable location and Mr Bai-Reddy had declined other options available to him that could mitigate ongoing safety concerns he had raised, the Senior Adviser recommended segregation be continued under s 59(1)(b).
[120] On 27 January 2022, the Prison Director recommended that Mr Bai-Reddy’s directed segregation be extended for a further month until 28 February 2022. Mr Bai-Reddy had declined to meet with staff from ASCF on 6 January 2022 to discuss his reintegration options. The Senior Adviser was aware that staff were
actively making enquiries with other prisons regarding Mr Bai-Reddy’s options to transfer off-site. She explained in her evidence that she approved the extension of Mr Bai-Reddy’s directed segregation for a further two weeks to allow time for responses to be received. During that period, the Senior Adviser also made her own enquiries regarding options to transfer Mr Bai-Reddy.
[121] On 2 February 2022, ASCF informed the Senior Adviser they had exhausted all other options. Requests for transfer had been rejected by Spring Hill Corrections Facility, Rolleston Prison, Auckland Prison and Tongariro Prison. The Senior Adviser also made enquiries to transfer, but none were viable. Given these practical constraints and Mr Bai-Reddy’s continued safety concerns, she considered a further extension was appropriate until a placement off-site could be arranged.
[122] On 10 February 2022 the Senior Adviser received a further request to extend Mr Bai-Reddy’s directed segregation until 28 February 2022. A multi-disciplinary team meeting was held on 8 February 2022 to discuss placement options for Mr Bai-Reddy. Mr Bai-Reddy claimed he was unsafe in mainstream accommodation and did not want to move on to voluntary segregation. But he did not want to engage with ASCF staff so the Senior Adviser requested to meet with him and began to make arrangements for that meeting. However, due to a COVID-19 outbreak at ASCF, the meeting could not proceed until 26 March 2022.
[123] On 16 February 2022, the Senior Adviser wrote to Mr Bai-Reddy. She advised that the interview about Mr Bai-Reddy’s placement options could not go ahead at that time, but that she acknowledged the importance of the interview taking place. She advised that she would interview Mr Bai-Reddy when it was safe to do so.
[124] On 23 February 2022, the Prison Director recommended an extension of Mr Bai-Reddy’s directed segregation until 28 March 2022. The Senior Adviser confirmed the extension for one month on 26 February 2022 and recorded it would be reviewed by a senior adviser with Mr Bai-Reddy “within the month of March as planned”.
[125] On 28 March 2022, the Prison Director recommended a further month extension to the order. The Senior Adviser reviewed the paperwork and confirmed the decision. As noted in the request for the extension, the Senior Adviser had spoken with Mr Bai-Reddy on 26 March 2022 to discuss his placement options including both mainstream and voluntary segregation.
[126] The Attorney-General submits that the record demonstrates that on each occasion the Senior Adviser properly considered the requirements of s 59(1)(b) and the direction remained necessary and consistent with the requirements of that subsection.
Decision
[127] The substance of this ground of review is directed at the Senior Adviser’s review and confirmation of recommendations to extend Mr Bai-Reddy’s directed segregation under s 59(4). I concluded earlier that the recommendations by the Prison Director were sufficiently supported by evidence. In particular, I considered and rejected the criticism that there was always the option of placing Mr Bai-Reddy back in his old unit and that his concerns were not with mainstream accommodation per se.49 That largely addresses the substantive grounds against the Senior Adviser, viz that the extensions were reviewed on an incorrect factual basis or unreasonably having regard to the foundation criteria in s 59(1)(b).
[128] However, Mr Bai-Reddy also submits that in every instance the Senior Adviser simply “parroted” the Prison Director’s recommendations, was not independent, was not competent and in no instance considered what other options were available. There is no basis for challenging the Senior Adviser’s competence. For reasons I go on to outline, nor do the facts support lack of independent consideration of the relevant issues or a lack of review of options.
[129] I accept that the Senior Adviser was required to independently evaluate whether it was appropriate to extend the segregation orders.50 In doing so, the Senior
49 Fifth ground of review.
50 Stevens v Chief Executive of the Department of Corrections, above n 10, at [110].
Adviser was entitled to rely on the particular knowledge and judgement of the on-site staff.51
[130] However, she did not simply adopt the Prison Director’s recommendations. As she explained, the material considered in approving segregation decisions was broader than the segregation paperwork. She had regular contact with ASCF as well as direct contact with Mr Bai Reddy, including a call with him on 23 March 2022. She was also provided minutes and documentation from the SRU board. She liaised with the Operations Manager at ASCF and supervisors at ASCF as to Mr Bai-Reddy’s management on segregation. This included phone calls with the Operations Manager and updates about prisoners on directed segregation including Mr Bai-Reddy.
[131] The Senior Adviser also attended meetings at ASCF in February and April 2022 to discuss Mr Bai-Reddy’s pathway and management and received and responded to correspondence from Mr Bai-Reddy. Her evidence confirms she was actively engaged in considering the Prison Director’s recommendations for Mr Bai-Reddy as they were made. It would be wrong to view the specific segregation paperwork as the only material relied upon.
[132] Accordingly, the Senior Adviser’s judgement that directed segregation remained necessary was available, not unreasonable and arrived at by independent consideration of the risks and options. In my view there was sufficient probative evidence to maintain directed segregation.
[133] Further, I accept the Attorney-General’s submission that the Senior Adviser took extensive steps to facilitate Mr Bai-Reddy’s transfer and assist ASCF in securing alternative options for him. The allegation that she attempted to frustrate those attempts has no sufficient evidential basis.
[134] Nor is there substance in Mr Bai-Reddy’s allegation that his management on directed segregation was punitive. In contrast, the record indicates Mr Bai-Reddy’s segregation directions met the statutory requirements and were viewed as necessary to ensure his safety.
51 At [120].
[135] Mr Bai-Reddy submits that the Senior Adviser authorised all of the s 59(1)(b) recommendations without making proper reference to how ss 59(1)(b)(ii) and 5(1)(a) were met. He says a failure to state how s 59(1)(b)(ii) was met amounts to a procedural irregularity. Although the segregation paperwork does not make express reference to s 59(1)(b)(ii), when considered in the context of contact with ASCF, the discussions the Senior Adviser had with Mr Bai-Reddy, and explanations as to his continued segregation provided in both writing (September 2021) and over the phone (March 2022), it is clear that the Senior Adviser was aware of Mr Bai-Reddy’s views and the challenges in ensuring his safety. She appropriately considered the statutory criteria.
[136] Last, I consider there is an insufficient evidential basis to conclude that the Senior Adviser “forced” Mr Bai-Reddy on to voluntary protective segregation. As the Senior Adviser deposes, she attended a SRU board meeting on 8 February 2022 and suggested the board adopt a “hard approach” with Mr Bai-Reddy if he was not willing to sign on to voluntary segregation and place him in mainstream accommodation. At her meeting with Mr Bai-Reddy in March 2022 she gave Mr Bai-Reddy the option of signing on to voluntary segregation or being placed in HB3/W3 (not one of his proposed solutions) because she “would not be continuing his directed segregation order”. Mr Bai-Reddy says that returning to this block was not an option from his perspective due to his concerns that members of the Bloods gang were there, and he would not be safe.
[137] The Senior Adviser deposes that she made these comments in the context that ASCF staff had concluded that Mr Bai-Reddy’s safety concerns were being used to dictate his placement into the Residences. The Senior Adviser was required to balance that and the lengthy time Mr Bai-Reddy had spent on directed segregation against the severity of the assault on him in November 2021. Mr Bai-Reddy’s placement was a difficult issue given the paramount consideration is prisoner safety and a desire to prevent further harm. As the Senior Adviser records, the purpose of the extensions was to enable staff to re-assess safe accommodation pathways for Mr Bai-Reddy for an additional month in those circumstances.
[138] The Senior Adviser was clearly cognisant of the duration of the order and was taking active steps to find a suitable and safe alternative. Her reference to taking a
“hard approach” suggests a level of frustration. However, I do not think more can be said but that she wanted Mr Bai-Reddy to agree to one of the proposed solutions in order to bring the directed segregation order to an end. Those involved with Mr Bai-Reddy, including the Senior Adviser, were doing their best to manage a difficult situation, where options for Mr Bai-Reddy were so limited.
[139] I conclude that there is no reviewable error in relation to Mr Bai-Reddy’s segregation or the manner in which attempts to find alternative safe accommodation options were approached, including transfer.
[140] I return to allegations in this ground of review regarding the Senior Adviser’s review of Mr Bai-Reddy’s security classification and conflict of interest allegations after considering the eighth ground of review, which makes allegations against the Prison Director over Mr Bai-Reddy’s initial re-classification.
Seventh ground of review – Visiting Justice – Visiting Justice hearing 16 June 2021
Ground of review
[141] This ground of review relates to the hearing before the Visiting Justice on 16 June 2021 on Mr Bai-Reddy’s charge relating to the 1 May incident of combining with Mr K for a purpose that was likely to endanger the security or good order of the prison.
[142]Mr Bai-Reddy seeks declarations that:
(a)The Visiting Justice acted ultra vires as the hearing was conducted in breach of the Regulations allowing for witnesses to be called.
(b)The Visiting Justice’s finding that Mr Bai-Reddy was guilty of breaching s 128 was in error as a matter of law.
(c)The Visiting Justice’s lack of proportionality in sentencing Mr Bai-Reddy and Mr K amounted to a procedural irregularity.
Statutory framework
[143] Subpart 5 of the Act sets out the framework for offences against discipline and the circumstances where a misconduct charge could arise. Section 128 sets out the ways in which a prisoner commits an offence against discipline. Section 128 is reflected in the PPM. A prisoner can be charged for misconduct where an incident has occurred and there is a record of it.
[144] Section 133 sets out the powers of a hearing adjudicator in relation to offences against discipline. A hearing adjudicator is someone designated for that function pursuant to s 15 of the Act. Schedule 7 of the Regulations contains the procedural requirements for the hearing of charges. Clause 32 relevantly provides:
32 If the prisoner pleads not guilty,—
(a)the person prosecuting the offence must present the case against the prisoner, and must be given the opportunity to call witnesses; and
(b)the prisoner must be given the opportunity to present his or her case and to call witnesses on his or her behalf; and
(c)any witnesses (whether called by the person prosecuting the offence or the prisoner) may be cross-examined.
[145] Clause 40 also allows for disciplinary hearings to be adjourned. A hearing must be adjourned where a person charged has not had a proper opportunity to prepare a defence or where a material witness is unavailable to give evidence. Therefore, a hearing may proceed even in the absence of requested witnesses, provided that witness is not material.52
[146] The Regulations also detail the particular privileges that can be forfeited or postponed when an offence is proved. This includes the opportunity to make telephone calls and the use of recreational electronic equipment.53 ASCF’s policies on the adjudication process give effect to these statutory requirements.
52 As implicit from Obiaga v Visiting Justice at Auckland Prison [2018] NZHC 3095, [2019] NZAR 148 at [44].
53 Regulation 158(b) and (e).
[147] Section 136 provides that if a prisoner is dissatisfied with any decision of a hearing adjudicator, the prisoner may request that the decision be referred by way of appeal to a Visiting Justice. If the Visiting Justice finds an offence proved, he or she may impose one or more of the following penalties:54
(a)forfeiture or postponement of all or any privileges for any period not exceeding 3 months:
(b)forfeiture of earnings for any period not exceeding 3 months:
(c)confinement in a cell for any period not exceeding 15 days.
[148] Section 137(2) of the Act provides that every hearing and examination before a Visiting Justice must be in the presence of the prisoner who is entitled to be heard and to cross-examine any witness. However, hearings for prison disciplinary offences are not the same as criminal trials and are not subject to the same suite of procedural requirements that regulate criminal proceedings.55
[149] There is no appeal from a Visiting Justice decision. Judicial review thresholds must be met for any challenge to the process or associated with the decision. Where the findings of a Visiting Justice are reasonably open on the evidence, the Court will not disturb the decision in an application for judicial review.56
Visiting Justice hearing
[150] At the hearing, the Visiting Justice heard evidence from the responding officer to the 1 May incident and reviewed the CCTV. Witnesses were examined and cross-examined based on that footage. The Visiting Justice also listened to the audio recording of a call Mr Bai-Reddy made to the Prison Inspectorate, heard evidence from Mr Bai-Reddy, reviewed the collective complaint form, and read an affidavit by Mr K and written material from Mr Bai-Reddy. This included a letter tendered by Mr
54 Corrections Act, s 137(3).
55 Goldberg v Attorney-General [2004] NZAR 159 (HC) at [55]; and Mitchell v Chief Executive of the Department of Corrections [2017] NZHC 2091 at [31].
56 Genge v Visiting Justice at Christchurch Men’s Prison [2017] NZHC 35 at [95].
Bai-Reddy dated 28 May from the Department to Mr Bai-Reddy outlining a number of complaints.
[151] Mr Bai-Reddy requested to have Mr K and two other prisoners from the wing appear as defence witnesses. The Visiting Justice declined this request having received submissions on what evidence they were to give.
[152] He found Mr Bai-Reddy guilty of breaching s 128(1)(k) (combining with other prisoners for a purpose that is likely to endanger the security or good order of the prison) and sentenced him to 14 days cell confinement and 85 days loss of privileges.
Decision
[153] In my view the Visiting Justice complied with the statutory and regulatory requirements. There was no procedural breach. The witnesses Mr Bai-Reddy sought to call were not material witnesses having regard to the other evidence available, the nature of Mr Bai-Reddy’s defence and the exchanges Mr Bai-Reddy had with the Visiting Justice. The Visiting Justice made enquiries of Mr Bai-Reddy as to the nature of the evidence the witnesses were expected to give and was given Mr K’s affidavit. The purpose of calling the witnesses was to prove a fact that was not in dispute, being to establish that Mr K was the wing representative and had given directions to Mr Bai- Reddy to write the complaint for the prisoners to sign. Mr Bai-Reddy had accepted in evidence that this direction arose from his (Mr Bai-Reddy’s) initiative.
[154]Mr Bai-Reddy was not suggesting he had been forced to act as he did by Mr
K. His assertion was that he felt forced to act because he was concerned there would otherwise be violence and was proceeding to get signatures to diffuse the situation. That explanation was for the Visiting Justice to assess. In the circumstances there was no breach of Mr Bai-Reddy’s right to natural justice.
[155] The Visiting Justice came to the conclusion that what Mr Bai-Reddy was doing was in fact combining with Mr K in a way that threatened good order and security. In the “error of law” aspect of this ground of review, Mr Minchin invites me to come to a different conclusion about what Mr Bai-Reddy was doing and his intentions.
However, that engages with the substance and merits of the Visiting Justice’s decision. In my view, the conclusion reached was available to the Visiting Justice.
[156] Mr Minchin’s further submission is that the s 128 conviction was reached in error of law based on s 152. He submits that the Visiting Justice “ruled out s 152 as having any bearing on the issues before him … despite it being the applicant’s central defence and that as a matter of law, s 128 of the Act could not apply to permissible conduct”. He refers specifically to s 152(1)(b) which states as an objective that prisoners be able to make a complaint if and when they choose to do so, without fear of adverse consequences.
[157] As set out earlier in addressing the first ground of review, the s 128 charge was not based on the collective complaint or the making of the complaint or a collective complaint per se, rather it was based on the facts and circumstances of the 1 May 2021 incident. Mr Bai-Reddy played a material role in events that involved approximately
40 staff members being deployed and a near prison riot. The Visiting Justice concluded that the way the complaint was being circulated that day escalated the situation. There was no error of law in the Visiting Justice’s failure to view s 152 as material to the assessment of whether Mr Bai-Reddy’s conduct fell within s 128(1)(k).
[158] Nor do I consider the penalties imposed on Mr Bai-Reddy were disproportionately severe. The penalties imposed were within those reasonably available. The Visiting Justice as fact finder was best placed to consider Mr Bai-Reddy’s role and the appropriate penalties. This ground of review fails.
Eighth ground of review – Prison Director – illegality
Ground of review
[159] ASCF increased Mr Bai-Reddy’s security classification from minimum to high on 10 August 2021. Mr Bai-Reddy says ASCF could have reviewed his security classification in May 2021 when the protest occurred. He says ASCF became aware on 10 August 2021 that Mr Bai-Reddy intended to issue this proceeding when Mr Bai-Reddy photocopied an application for judicial review to give to his parole
lawyer. He says his review to high on 10 August was retaliatory due to this discovery or had no proper foundation. He seeks declarations to this effect.
Decision
[160] The assertion that the review was retaliatory suggests something in the nature of a conspiracy by ASCF staff. Apart from the improbability of ASCF staff reacting as suggested by Mr Bai-Reddy to (possibly) having noticed the photocopied draft claim, the chronology does not support even a tenuous basis for the connection Mr Bai-Reddy seeks to draw.
[161] First, the security classification review was triggered by the outcome of Mr Bai-Reddy’s Visiting Justice hearing on 16 June 2021. The review process was commenced on 27 July 2021, well before 10 August 2021.
[162] Second, Mr Bai-Reddy’s initial claim did not join the Prison Director. The Prison Director was not joined until 17 November 2021, when Mr Bai-Reddy filed an amended statement of claim. The joinder was at the Prison Director’s suggestion, who had become aware of the proceeding through the Department of Corrections.
[163] I also reject the alternative contention that the reclassification had no proper foundation. The Courts have demonstrated a reluctance to involve themselves in assessing a prisoner’s security risk.57 As Davidson J said in Genge v Chief Executive Department of Corrections:58
The Court will be slow to interfere with administrative decisions in the course of the day to day management of a prison where complex judgement calls are required.
[164] The security classification process and the disciplinary regime within a prison are obviously not the same, with security classifications conducted to uphold security, not to impose a punishment.59 The Court has held that there must be “an egregious element of a decision taken by Corrections for a Court to interfere”.60
57 Smith v Attorney-General, above n 12, at [8].
58 Genge v Chief Executive Department of Corrections [2018] NZHC 1302 at [37].
59 At [33]; reaffirmed in Mitchell v Attorney General, above n 19, at [46].
60 At [67].
[165] A security classification of high was recommended based on internal and external risk scores. Some of these scores were automatically generated. Others were based on evidence from Mr Bai-Reddy’s file notes, offender plan and any misconducts or incidents within the six-month period relevant to the classification review. The score for Mr Bai-Reddy was 25 (comprising an internal score of 19 and an external score of 6).
[166] The assessing officer noted the misconduct on 1 May 2021 and another on 13 July 2021 for being threatening towards staff. The review recorded the 85 days of lost privileges for the 1 May 2021 offence and noted that the 13 July 2021 offence was still open at the time of review. The review further noted that Mr Bai-Reddy could be very demanding and argumentative towards staff if things did not go his way. On 3 August 2021 the recommending officer reviewed the form and recommended the security classification as calculated. On 10 August 2021 the approving officer reviewed the form and recommended that a security classification of high was correct.
[167] In summary, there is no evidence of any improper purpose in the way in which the classification was handled. There was no cross-examination of any witness about this. The case law confirms that a high threshold for review is required. The claim fails to meet that standard. There is no egregious element. The score as calculated was open to the prison staff.
[168] In the event, Mr Bai-Reddy requested a review of his reclassification under s 48(2) of the Act. As set out above, this was conducted by the Senior Adviser on behalf of Corrections. On 24 August 2021, the Senior Adviser reviewed the decision and advised Mr Bai-Reddy that his security classification had been reviewed from high to low. It does not follow from the fact that the review was successful that the original decision of ASCF was without foundation. The Department of Corrections considered that Mr Bai-Reddy had an internal score of 16 points and an external score of six points (total of 22), so a three-point difference between the total score given by ASCF of 25.
Security classification aspects of sixth ground of review against the Attorney-General
Ground of review
[169] As signposted earlier, I deferred this aspect of the sixth ground of review against the Attorney-General to be addressed now, as it follows factually from the ground of review just discussed against the Prison Director.
[170] In undertaking a review of the Prison Director’s security re-classification of Mr Bai-Reddy, the Senior Adviser considered Mr Bai-Reddy’s incident reports and misconducts from the previous six months including his recent 16 June 2021 conviction, his penal file, sentence plan file notes and at least three officers’ opinions. She also consulted Mr Bai-Reddy’s case manager. Her advice of the outcome of the review to Mr Bai-Reddy recorded that on a point system basis his situation resulted in a minimum security classification.
[171] However, she formed the view having had familiarity with Mr Bai-Reddy through her oversight of the segregation process, that an overall classification of low “better reflected his behaviours and risks at the time”. Therefore, to that extent she overrode the security classification from a pre-populated score of minimum, based on points alone, to low.
[172] Mr Bai-Reddy says that the Senior Adviser “improperly overrode” his security classification score giving him a higher classification when she had a “conflict of interest”. The particulars of the “conflict” are that her review of the security classification was undertaken to “pressure the applicant to go on voluntary protective segregation” because a higher classification reduced placement opportunities. Declarations to this effect are sought. He also asserts that the Senior Adviser’s actions were retaliatory and without foundation.
Decision
[173] Nothing in the material supports Mr Bai-Reddy’s asserted connection between the Senior Adviser’s security classification review and the ongoing issues with his placement. There is no available inference of bad faith, bias or conflict of interest.
The Senior Adviser decreased Mr Bai-Reddy’s classification to low after it had been assessed at high by ASCF. This suggests the reverse of the improper motive asserted. I accept the Senior Adviser’s evidence that she reviewed the security classification, investigated the available evidence and formed the view that the most important factors in Mr Bai-Reddy’s case were “compliance, involvement and interaction with others and his motivation or engagement in rehabilitation and reintegration”.
[174] The assessment of low rather than minimum was an exercise of her discretion that I do not consider has been shown to have been made without foundation, for an improper purpose or due to a conflict of interest. I do not disturb it on review.
Ninth ground of review – Prison Director – procedural irregularity
Ground of review
[175] This ground of review relates to contraband found in Mr Bai-Reddy’s cell and the subsequent misconduct hearings.
[176] On 11 August 2021 Mr Bai-Reddy’s cell was searched. Officers found 17 Voltaren pills and tinfoil shaped into a pencil case. Mr Bai-Reddy was eligible only to hold a three-day supply of Voltaren which was supplied to him on an as needed basis with an allocation of four pills per day. If he did not want to continue the medication he was obliged to inform ASCF. The quantity of pills found was in excess of the three-days permitted and for that and the tinfoil he was charged under s 128(1)(f) of the Act for having unauthorised items.
[177] On 19 August 2021 Mr Bai-Reddy’s charge was considered by the hearing adjudicator. The hearing was adjourned until medical records and IMOS alerts could be provided. The charge was considered again on 25 August 2021 but was adjourned until more information about Mr Bai-Reddy’s medication could be provided.
[178] On 26 August 2021 the prison adjudicator heard the charge and found Mr Bai-Reddy guilty. Mr Bai-Reddy immediately appealed to the Visiting Justice.
[179] On 28 August 2021 ASCF staff received a “Prisoner Witness and Evidence Request” from Mr Bai-Reddy. The request was dated 11 August 2021. That request sought for Mr Bai-Reddy’s medical chart, CCTV and witnesses to be available for any forthcoming misconduct hearing.
[180] The appeal came before the Visiting Justice on 10 February 2022. Mr Bai-Reddy deposes that he only learnt about the hearing that morning. He contended that the Visiting Justice was biased and that his documents were unavailable because they were with his lawyer. The hearing was adjourned.
[181] The Visiting Justice heard the appeal on 24 February 2022 and 7 April 2022. The Visiting Justice upheld the finding of misconduct and imposed penalties for the Voltaren charge of five days of cell confinement and 20 days loss of privileges. No penalty was imposed for the tinfoil.
[182]Mr Bai-Reddy seeks declarations that:
(a)The Prison Director failed to comply with his request for evidence and witnesses to be present at his prison adjudication hearing.
(b)The Prison Director’s determination of the misconducts, before the prison adjudicator on 26 August 2021 breached natural justice as Mr Bai-Reddy’s evidence and witnesses were not considered.
(c)The Prison Director’s delay in placing his appeal before the Visiting Justice was prejudicial.
[183] Mr Bai-Reddy submits that in failing to comply with his request for evidence and witnesses to be present the Prison Director breached cl 32 of sch 7 of the Regulations. He also submits that the delay in the appeal proceeding barred him from being placed in the Residences because of his open misconduct charges. He says he was unable to complete rehabilitative steps required to be considered for parole because of this. Therefore, he submits that the delay in placing his appeal before a
Visiting Justice was prejudicial to his parole and breached the s 6(1)(g) obligation that sentences must not be administered more restrictively than necessary.
[184] This ground alleges procedural irregularity which is concerned with the process followed by a decision maker and their failure to observe natural justice or to act fairly towards the affected party.61 There are two components of Mr Bai-Reddy’s claim: one relates to witnesses and evidence, the other relates to delay. I address each in turn.
Decision – Requests for witnesses and evidence
[185] The documentary evidence relating to the first hearing and appeal before the Visiting Justice is somewhat sparce and a degree of inference is required to reconstruct what transpired.
[186] Despite Mr Bai-Reddy’s request for evidence being dated 11 August 2021, ASCF records not receiving the form until after the substantive hearing on 26 August 2021. However, the material before me suggests that the evidence the subject of that request had been discussed. For example, the hearing was adjourned on 19 August “for medical records and IOMS alerts” and then again on 25 August “until more information is captured in regards his Voltaren”. The charge was then determined when the medical information was received.
[187] I accept the Prison Director’s submission that it is unclear what further evidence beyond this was pursued by Mr Bai-Reddy. Moreover, the relevance or materiality of any of the other evidence requested in the form is unclear. The charge related to a straightforward matter, namely whether Mr Bai-Reddy had retained more Voltaren than he was entitled and whether he possessed the tinfoil as alleged. Extensive evidence and viva voce witnesses were unnecessary.
[188] Mr Bai-Reddy has not established that the adjudications were conducted in a manner that breached his right to natural justice and/or were unfair. This part of the claim fails.
61 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 411.
Decision – “Prejudicial” delay in the appeal being heard before the Visiting Justice
[189] Mr Bai-Reddy says there was “undue delay.” As the Prison Director submits, there is no statutory or regulatory timeframe by which appeals must be referred to the Visiting Justice. The requirement set by the Act is that appeals must be referred “promptly”.62
[190] The Prison Director notes that the time it can take for an appeal to be heard by a Visiting Justice can vary greatly. In some circumstances it can take up to a few months for an appeal to be heard. Here, I accept that usual timeframes were complicated by the exceptional circumstances of the COVID-19 lockdowns. On 17 August 2021 Auckland entered a COVID-19 level 4 lockdown. During those lockdowns external visitors to the prison, including Visiting Justices, were not permitted on-site at ASCF. Hearings were conducted via AVL but given the limited availability of AVL suites, Visiting Justice hearings were given a lower priority than District Court and High Court hearings. This resulted in a backlog of 40 charges awaiting a Visiting Justice. Mr Bai-Reddy’s charge was one of those.
[191] The Prison Director acknowledges an administrative oversight regarding the hearing on 10 February 2022. Mr Bai-Reddy was not informed until the day. However, when this oversight was brought to light, it was promptly attended to and the hearing was adjourned to 24 February 2022 to provide Mr Bai-Reddy time to prepare.
[192] The timetabling of hearings, particularly during COVID-19, was a matter of day-to-day management of the prison. In my view, in all these circumstances, the referral was sufficiently prompt. Having concluded that there was no impropriety in the delay, I reject Mr Bai-Reddy’s submission that there is a basis for a declaration as sought that any delay was “prejudicial” to his parole. Mr Bai-Reddy was able to complete his rehabilitative steps even while not being eligible for the Residences due to the open misconduct charge.
62 Corrections Act, s 136(1). Policies relating to ASCF’s adjudication processes are set out in the PPM. The PPM echoes the requirement in the Act that appeals must be “promptly” referred to a Visiting Justice.
[193]This ground of review fails.
Tenth ground of review – Visiting Justice – Visiting Justice hearing on 7 April 2022
Ground of review
[194] This ground of review relates to the outcome of Mr Bai-Reddy’s appeal to the Visiting Justice heard on 7 April 2022. As set out above, Mr Bai-Reddy faced two charges: possession of contraband tinfoil shaped into a pencil case and possession of more Voltaren in his cell than he was allowed. He challenges the outcome by way of judicial review.
[195]Mr Bai-Reddy seeks declarations that:
(a)The Visiting Justice was wrong to find him guilty on the Voltaren charge.
(b)The Visiting Justice’s finding that he was guilty of the tinfoil charge was unreasonable as it conflicted with the evidence.
Decision
[196] Where the findings of the Visiting Justice were reasonably open on the evidence, this Court will not disturb the decision in an application for judicial review. There must be a decision that “no sensible decisionmaker acting with due appreciation of his or her responsibilities could have arrived at”.63
[197] Mr Bai-Reddy gave evidence that foil from aluminium trays was commonly used by prisoners for artwork. He also said that he had this in the SRU and no issue had been taken with it. Evidence by the prison officers supported this. However, the Visiting Justice found Mr Bai-Reddy guilty of having contraband tinfoil but did not impose a punishment.
63 Genge v Visiting Justice at Christchurch Men’s Prison, above n 56, at [96]; quoting Dempster v Registrar-General of Land [1997] 2 NZLR 609 at 620.
[198] As to the Voltaren, Mr Bai-Reddy submits that he provided the Visiting Justice with his 2020 medical contract to hold medicine on a weekly basis. He submits he advised the Prison Director that he was not taking all of his medication but that he was unable to return or refuse it. That was disputed by the prosecution who said it could be returned simply by placing it on a tray. Mr Bai-Reddy also submits that he put into evidence his risk assessment questionnaire which said that he had not previously had poor compliance with medication.
[199] Mr Bai-Reddy plainly did have the contraband. The findings that he was guilty were available on the evidence. I do not agree that the collateral matters Mr Bai-Reddy raises go to the decision being wrong or unreasonable rather than perhaps to penalty. This ground of review fails.
Eleventh ground of review – Attorney-General
Ground of review
[200] Mr Bai-Reddy pleads that he has made extensive use of the complaints process. He says that when he sought to be transferred from ASCF to any other prison, the Senior Adviser informed other prisons of his extensive use of the complaints process. Citing his extensive protests, the Chief Executive refused Mr Bai-Reddy’s request to be transferred out of ASCF to another prison.
[201] Mr Bai-Reddy seeks a declaration that Corrections’ refusal to transfer him to another prison was an adverse consequence of his complaints and therefore breached s 152(g) of the Act.
[202] Mr Bai-Reddy submits that his transfer was “vetoed” by the Senior Adviser. He submits that she had a conflict of interest and should not have been involved in his transfer.
Decision
[203] I have addressed and rejected the conflict of interest earlier at [169]–[174]. Moreover, I do not consider the evidence relied on by Mr Bai-Reddy supports a conclusion that the refusal to transfer him was simply a consequence of the complaints
he made. It is correct that inter-prison transfer emails referred to Mr Bai-Reddy’s complaint history. This was part of his prison background. I do not accept that s 152 is engaged by the exchange of information between prisons.
[204] I agree with the Attorney-General that given the steps the Senior Adviser took to facilitate Mr Bai-Reddy’s transfer and assist ASCF to secure alternative options for him, there is no evidential basis for the suggestion that she sought to frustrate attempts to transfer Mr Bai-Reddy or that there was a “refusal” to transfer. This ground of review fails.
Twelfth ground of review – Prison Director – procedural irregularity
Ground of review
[205] Mr Bai-Reddy pleads that a decision to refuse his request for a Skype call on 6 August 2021 was a “procedural irregularity” and in breach of his minimum entitlements provided for by s 69(1)(d) of the Act. The minimum entitlements include:
(a)every prisoner is entitled to at least one private visitor each week for a minimum duration of 30 minutes;64 and
(b)each prisoner is entitled to make at least one outgoing telephone call of up to five minutes’ duration per week.65
Decision
[206] Video calling by way of Skype or otherwise is not an entitlement but a privilege.66 Mr Bai-Reddy accepts that at the time he requested a Skype call he had been subject to the loss of privileges penalty imposed by the Visiting Justice in respect to the conviction he had received arising out of the 1 May 2021 incident. Mr Bai-Reddy was therefore ineligible to receive that privilege.
64 Corrections Act, ss 69(1)(d) and 73.
65 Sections 69(1)(i) and 77.
66 Corrections Regulations, reg 158(b).
[207] Mr Bai-Reddy does not challenge this but says he ought to have been entitled to have his privileges reinstated as a matter of discretion because at the time he sought to have a Skype call there was a restriction on private visitors due to the COVID-19 alert level system that was operating.
[208] The minimum entitlement to one visitor per week is not absolute. Mr Bai-Reddy does not challenge this either. He acknowledges that it was reasonable in the circumstances for these minimum entitlements to be denied.67
[209] I do not accept that ASCF was required to provide access to Skype calls in place of private visits for Mr Bai-Reddy in this period. Contact between prisoners and their families could still be facilitated through the use of telephone calls while New Zealand was operating under the COVID-19 alert level system. Mr Bai-Reddy had access to an in-cell telephone at all times. To the extent that ASCF could have somehow waived Mr Bai-Reddy’s penalty in the particular circumstances to enable a Skype call, I do not find that there was any failure to exercise a discretion appropriately in not doing so.
Thirteenth ground of review – Attorney-General – illegality
[210] Mr Bai-Reddy’s statement of claim alleges that the Attorney-General delegated statutory powers to the Prison Director and is therefore liable for the actions of the Prison Director. He seeks a declaration that the Attorney-General failed to ensure that its delegate, the Prison Director, adhered to its statutory obligations.
[211] Mr Minchin did not address this point in submissions. In any event, this ground of review fails given my findings on the grounds of review against the Prison Director.
67 Prisoners may be denied minimum entitlements “for a period of time that is reasonable in the circumstances” if there is an emergency, prison security is threatened or any person’s health or safety is put at risk: Corrections Act, s 69(2).
New Zealand Bill of Rights Act claims
[212] Mr Bai-Reddy brings three claims under ss 9 and 13 of the NZBORA. It is for Mr Bai-Reddy to prove, on the balance of probabilities, that a breach of the NZBORA has been committed.68
[213]Section 9 provides:
9 Right not to be subjected to torture or cruel treatment
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
[214] In Taunoa v Attorney-General, Blanchard J described s 9 as capturing “treatment or punishment which is grossly disproportionate” to the circumstances so that it can fairly be described as “inhuman” in the sense given to it under art 7 of the International Covenant on Civil and Political Rights (ICCPR).69
[215] In that same case, Elias CJ considered whether punishment is disproportionately severe for the purposes of s 9 required assessment of “whether the punishment prescribed is so excessive as to outrage standards of decency”.70
[216]Section 23(5) provides:
23 Rights of persons arrested or detained
…
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
[217]Section 23(5) requires a lower standard than s 9. It captures conduct which:71
… lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so.
68 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [182].
69 At [176].
70 At [92]; quoting R v Smith (Edward Dewey) [1987] 1 SCR 1045 at [54] per Lamer J and [84] per McIntyre J.
71 At [177].
[218] Not every breach of the standards established by the Act or the Regulations will amount to a breach of s 23(5).72 An evaluative approach is required.73
[219]Last, s 25 provides:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
…
(b) the right to be tried without undue delay:
…
(f)the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
…
(h) the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:
…
[220] Section 25(f) is modelled on art 14.3(e) of the ICCPR. The purpose of s 25(f) is to give an accused “an adequate and proper opportunity to challenge and question a witness against him”.74 In Gordon v Jamaica the Human Rights Committee emphasised that art 14.3(e) of the ICCPR “does not provide an unlimited right to obtain the attendance of any witness requested by the accused or his counsel”.75 The authors of The New Zealand Bill of Rights Act: A Commentary opine that art 14.3(e) (and s 25(f)) does not give minimum entitlements for an accused to produce evidence. Rather, the purpose of those provisions is to ensure that the state is not given more power to produce, examine and cross-examine witnesses than the defence.76
72 At [181].
73 At [31] per Elias CJ, [211] per Blanchard J, [353] per McGrath J and [386] per Henry J. See also
Reekie v Attorney-General [2012] NZHC 1867 at [94].
74 R v L [1994] 2 NZLR 54 (CA) at 63; quoting Kostovski v Netherlands (1989) 12 EHRR 434 at 448.
75 Gordon v Jamaica (Judgment) UNHRC 237/87, 5 November 1992 at [6.3].
76 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015), at [23.8.2].
Section 25(f) – Attorney-General and the Visiting Justice
[221] Mr Bai-Reddy submits that the Visiting Justice’s failure to permit him to call the witnesses nominated in his witness form for the hearing on 16 June 2021 was a breach of the minimum standards of criminal procedure in s 25(f). He seeks a declaration to that effect and compensation in the amount of $20,000.
[222] Section 25 applies to criminal proceedings, not prison disciplinary processes.77 Disciplinary hearings in a prison environment are not regulated or subject to the full suite of procedural requirements that regulate criminal proceedings.78 The right protected by s 25(f) is instead given effect to by the Act and Regulations. The Regulations do not require that every request for a witness to appear by a prisoner must be granted.79 A Visiting Justice only has the ability to adjourn a disciplinary hearing if a “material witness” is unavailable.80 In my view, because the facts to which the proposed witnesses were proposed to confirm were not in dispute, the witnesses were not material. I refer to my earlier discussion of this in respect to the seventh ground of review.
Sections 9 and 23(5) – Attorney-General and Prison Director
[223] This claim relates to Mr Bai-Reddy being placed on directed segregation. He submits that throughout his period in ‘solitary confinement’ he was held on a “punishment regime” and treated in a manner breaching ss 9 and 23(5) of the NZBORA. He seeks declarations to that effect and compensation of $30,000.
[224]Specifically, Mr Bai-Reddy alleges:
(a)The respondents held him in solitary confinement for 106 days — between 20 May 2021 and 3 September 2021, and at dates between 9 November and 15 December 2021 – which amounted to disproportionately severe punishment under s 9 of the NZBORA.
77 Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85]; and see Obiaga v Visiting Justice at Auckland Prison, above n 52, at [20]–[25].
78 Mitchell v Chief Executive of the Department of Corrections, above n 55, at [31].
79 See Taylor v Visiting Justice at Arohata Prison HC Wellington CIV-2007-485-613, 24 July 2007.
80 Corrections Regulations, sch 7, cl 41(b).
(b)The respondents subjected him to a punitive regime while on directed segregation and failed to provide him with his minimum entitlements under s 69 of the Act, in particular to one hour unlock each day and visits, in breach of his right to be treated with respect for humanity and the inherent dignity of the person under s 23(5) of the NZBORA.
(c)The requirements of s 59(1)(b) were not met “at any time the applicant was placed in directed segregation”.
[225] Solitary confinement is defined in the Mandela Rules as confinement for 22 hours of more without meaningful contact – prolonged solitary confinement is when this occurs for more than 15 consecutive days.81 The Rules prohibit solitary confinement that is “prolonged” or “indefinite”.82 While not directly applicable, the Rules provide a benchmark against which to assess conduct and influence decisions under the NZBORA.83 However the overall evaluation is against the wording in the NZBORA.
[226] I agree with Isac J in Taylor v Attorney-General that the focus of the Mandela Rules as to “solitary confinement” is on the human contact experienced by a prisoner, and whether that contact is meaningful.84 As set out by Isac J:85
This imports a contextual and fact-specific inquiry into the degree, nature, duration, and quality of the human contact. That fact-specific analysis is relevant to both whether the conditions of amount to prolonged solitary confinement and, if so, whether that treatment also amounts to a breach of s 23(5).
[227] Mr Bai-Reddy’s arguments under this head that he was being held in solitary confinement and or in a punishment regime have been addressed earlier (in the fourth ground of review) as too has the lawfulness of the decisions under which he was held.
81 Rule 44.
82 Rule 43.
83 Taylor v Attorney-General, above n 41, at [113].
84 At [123].
85 At [123].
[228]By way of summary:
(a)Mr Bai-Reddy’s association was restricted not denied and had a lawful basis.
(b)Mr Bai-Reddy was afforded meaningful contact, despite his restricted status. With the exception of a handful of dates, there were daily interactions with staff including a daily welfare check by a registered nurse. There were also casual interactions with those in his unit and external agencies. Some phone and Skype calls were facilitated. Mr Bai-Reddy had a significant level of interaction with his legal counsel, sometime refusing this if it could not be facilitated by AVL as opposed to telephone.
(c)ASCF worked hard to ensure that Mr Bai-Reddy was afforded at least his minimum entitlement of one hour unlock per day and there were a number of facilities for that purpose. However, Mr Bai-Reddy regularly declined yard time. There were also multiple instances of unlock for calls and other activities in addition to the minimum entitlements (such as for use of the kiosk, a legal visit and use of CMS).
(d)Mr Bai-Reddy was provided with access to library books, recreational and educational material.
(e)Amenities in the SRU cells are consistent with other cells. While there is a camera there is also a privacy screen.
(f)Mr Bai-Reddy continued to receive his rehabilitative treatment, with the programme completing in November 2021.
[229] The manner in which Mr Bai-Reddy was treated in directed segregation falls short of the threshold for breach of s 23(5) and well short of the high threshold required
for breach of s 9. Furthermore, the segregation directions were consistent with the Act, unlike other cases where segregation has been held to be a breach of s 23(5).86
[230] Plainly, directed segregation for the purposes of protective custody can have a negative impact on a prisoner’s mental health. However, in considering the overall situation relative to some other cases, Mr Bai-Reddy was not operating under a severe disability, unlike Mr Taunoa in Taunoa. Although Mr Bai-Reddy is recorded as having “generalised anxiety” in September 2021, on his own evidence this stress appears to have resulted from his concerns for his safety – the very concerns which justified the segregation directions. Mr Bai-Reddy’s health concerns are otherwise unparticularised nor is there evidence of ongoing consequence.
[231] I agree that Mr Bai-Reddy’s prolonged period in directed segregation was lengthy and unfortunate. However, taking an evaluative approach to all the circumstances there is no breach of the NZBORA.87 Mr Bai-Reddy’s allegation of unacceptable conduct amounting to degrading treatment by ASCF staff under s 9 is not made out. As well, I am not satisfied that there has been a breach of s 23(5) in that I accept that Mr Bai-Reddy was treated with humanity and respect.
Section 25 – Attorney-General and Prison Director
[232] Mr Bai-Reddy submits that his misconduct adjudication on 26 August 2021 breached s 25(f) because his 11 August 2021 request for evidence was not considered. Further, the delay in the hearing prejudiced his chances for parole and breached s 25(b) and (h). He seeks declarations to that effect and compensation in the amount of
$10,000.
[233] As I have said, s 25 concerns the minimum standards of criminal procedure, that being distinct from the prison adjudication process. In any event, I do not agree that the substance of the complaint is made out for the reasons articulated in addressing the ninth ground of review. There is no breach of s 25.
86 See Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67; and Taunoa v Attorney- General, above n 68.
87 As is required, see above at [218].
Result
[234]The applications are dismissed.
[235] It is not clear to me whether Mr Bai-Reddy is on legal aid. If there is an issue of costs I will deal with this on the papers.
Anderson J
15
0