Clarke v Chief Executive of the Department of Corrections

[2023] NZHC 1651

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-49

[2023] NZHC 1651

BETWEEN

DAVID WILLIAM CLARKE

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

28 June 2023

Appearances:

A L Pinnock for Applicant

M J Mortimer-Wang and C S A Fleury for Respondent

Judgment:

29 June 2023

JUDGMENT OF EATON J

(As to Interim Relief)

This judgment was delivered by me on 29 June 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CLARKE v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2023] NZHC 1651 [29 June 2023]

[1]        The applicant is a prisoner presently housed at the Otago Corrections Facility (OCF). By application dated 5 June 2023, he applied for judicial review of a decision made by the respondent to transfer the applicant from the OCF to Christchurch Prison “within a few days”.1

[2]        The applicant seeks interim orders prohibiting his transfer from the OCF pending determination of the substantive application to review.

[3]        The applicant was unrepresented when filing the current applications. He is now represented by Ms Pinnock. Mr Mortimer-Wang, on behalf of the respondent, opposes both the substantive application and the application for interim orders.

Process to date

[4]        The application for interim relief was first called before me as Duty Judge on 6 June 2023. A telephone conference was urgently convened. At that time, Mr Clarke understood he was to be transferred to Rolleston Prison at 7 am the following day. He had filed an unsworn affidavit in support of the application for interim relief. At the telephone conference, counsel for the respondent advised that the transfer decision impacted a number of inmates and was being implemented in two stages. Since being served with the proceedings, the manager of the OCF had agreed not to transfer     Mr Clarke until Stage 2, then scheduled for 13 June 2023. The application for interim relief was adjourned to Friday, 9 June 2023.

[5]        On 9 June 2023, the respondent filed a notice of opposition and an affidavit from the Prison Director of the OCF, David Miller, together with submissions in opposition to the application for interim relief. Mr Clarke had only recently received that material and sought time to prepare a response. Mander J granted an adjournment to 14 June 2023 for a fixture to determine the interim relief application. Mr Miller’s affidavit advised that the applicant’s date of transfer was “still to be confirmed pending his application for interim orders”.

1      The decision was to transfer Mr Clarke to Rolleston Prison.

[6]        On 12 June 2023, Mr Clarke filed an affidavit in response to Mr Miller’s affidavit. On 13 June 2023, Osborne J issued a minute advising the parties that the substantive application could be heard on 28 June 2023. Given that early hearing date, Osborne J proposed that the 14 June hearing be vacated in favour of a substantive hearing on 28 June 2023. Osborne J enquired whether the respondent would voluntarily refrain from transferring the applicant until 28 June 2023. Agreement was reached, and the interlocutory hearing was vacated. In consenting, the respondent noted: “The Chief Executive’s position is intended to be a practical response to the Court’s minute.”

[7]On 14 June 2023, Mr Clarke filed further brief response submissions.

[8]        By memorandum of 20 June 2023, Mr Clarke gave notice of his intention to engage counsel. It was implicit within the memorandum that Mr Clarke would be seeking an adjournment of the substantive hearing. By memorandum of the same date, Mr Mortimer-Wang advised that an adjournment application was not opposed but gave notice that if the 28 June hearing date was not to be utilised for the substantive hearing, the respondent intended to proceed to transfer Mr Clarke to Rolleston Prison on an operationally convenient date from 29 June 2023 onwards. Counsel proposed the application for interim orders be heard on 28 June 2023.

[9]        On 22 June 2023, Ms Ryan, a partner with the law firm, Solomons, filed a memorandum on behalf of Mr Clarke, confirming arrangements for legal representation were underway and that counsel, Ms Pinnock, had been provisionally engaged. Ms Ryan advised that legal representation was subject to a grant of legal aid and that an adjournment of the substantive hearing would be necessary to enable that application to be processed. She advised that, if legal aid was granted, Solomons would act as instructing solicitors to Ms Pinnock. A one-month adjournment of the substantive application was sought with consequential variations of timetabling directions. The substantive application was adjourned, and the application for interim relief was set down for hearing on 28 June 2023.

[10]       On 28 June, Ms Pinnock appeared for Mr Clarke, having secured an interim legal aid grant, and Mr Mortimer-Wang appeared with Ms Fleury (via VMR) on behalf of the respondent.

The interim relief application

[11]      The applicant seeks an interim order under s 15 of the Judicial Review Procedure Act 2016 prohibiting the respondent from transferring him to Rolleston Prison. The respondent opposes the application.

[12]      Ms Pinnock submits says the transfer decision was unlawful in that the decision-maker did not comply with the requirements of s 54 of the Corrections Act 2004 (the Act) and in particular failed to have regard to Mr Clarke being isolated from his son and partner if transferred to Rolleston Prison. Ms Pinnock contends that if  Mr Clarke is transferred to Rolleston Prison he will be:

(a)denied face-to-face, bi-monthly visits with his son;

(b)denied face-to-face, twice-weekly visits from his partner;

(c)denied fortnightly to monthly, fact-to-face counselling sessions with his counsellor; and

(d)unable    to   retain   the   regular    ongoing   AVL   contact   with   his United Kingdom family;

[13]      Mr Clarke has deposed that the proposed transfer will isolate him from his family and would have a tremendous impact on his mental and emotional wellbeing.

[14]In opposing the application for interim relief, Mr Mortimer-Wang submits:

(a)the Courts take a careful approach to interim orders which cut across decisions as to prison management;

(b)Mr Clarke does not have a strong substantive claim;

(c)there will be negative consequences for the Department of Corrections (the Department) if an interim order is granted;

(d)many of the alleged negative consequences for Mr Clarke will be mitigated; and

(e)an interim order is not necessary to preserve the Court’s ability to grant effective relief in the substantive application for review.

Legal principles

[15]Section 15 of the Judicial Review Procedure Act 2016 provides:

15       Interim orders

(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.

(2)The interim orders referred to in subsection (1) are interim orders—

(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:

…

(3)However, if the Crown is a respondent,—

(a)the court may not make an order against the Crown under subsection (2)(a) or (b); but

(b)the court may, instead, make an interim order—

(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:

(ii)declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.

(4)An order under subsection (2) or (3) may—

(a)be made subject to such terms and conditions as the court thinks fit; and

(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.

[16]      In Minister of Fisheries v Antons Trawling Company Ltd, the Supreme Court confirmed the general approach to interim relief under the predecessor to s 15 of the Judicial Review Procedure Act.2 The Supreme Court held:3

Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.

[17]The purposes of interim relief are:4

… to relieve the applicant from the adverse effects of a challenged decision until the challenge is heard and determined, and to preserve the ability of the Court to grant effective relief if the challenge is successful.

[18]      Of particular significance to the present application, the Court must consider whether the applicant would be unfairly prejudiced by reason of a delay in obtaining a final hearing.5

[19]      A two-stage enquiry is appropriate. At the first stage, the applicant must establish a position that is necessary to preserve. At the second stage, the Court will consider whether it is appropriate to exercise the wide discretion to make an order. The overall interests of justice must be considered.6

2      Minister of Fisheries v Antons Trawling Company Limited [2007] NZSC 101, (2007) 18 PRNZ 754.

3 At [3].

4      Greer v Chief Executive of Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [24].

5      Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).

6      ENZA Ltd v Apple & Pear Export Permits Committee HC Wellington CP266/00, 18 December 2000 at [17].

Discussion

Position to preserve

[20]      Mr Mortimer-Wang, whilst submitting that Mr Clarke does not have a right, entitlement or expectation that he be housed in a particular prison, acknowledges that the question of a “position to preserve” in judicial review is a wider enquiry than whether a right exists. This position was both conceded by the respondent and accepted by the Court in Wallace v Chief Executive of Department of Corrections.7

[21]      Mr Clarke seeks to remain at the OCR. I accept he has a position to preserve. Mr Mortimer-Wang does not suggest otherwise.

Discretion to grant relief

[22]I first consider the apparent strength of the applicant’s claim for review.

[23]      There is no doubt the Chief Executive may direct the transfer of a prisoner. Section 53(1) of the Act provides that a prisoner may be transferred on the direction of the Chief Executive, from any prison to any other prison in which he or she may be lawfully detained. Section 54(1) prescribes the reasons the Chief Executive may transfer a prisoner from one prison to another. Each of those reasons relates to an individual prisoner. Section 54(3) is relevant to the transfer decision under review. It provides:

(3)A prisoner may be transferred by the chief executive from one prison (the first prison) to another prison—

…

(b)to enable effective management of the national prisoner muster:

…

[24]Of particular relevance to Mr Clarke’s substantive application is s 54(4):

(4)When considering whether to transfer a prisoner for 1 or more of the reasons set out in subsection (1) or when considering how a transfer for 1 or more of the reasons set out in subsection (2) or subsection (3)

7      Wallace v Chief Executive of the Department of Corrections [2022] NZHC 2464 at [56].

is to be effected, the chief executive must, as far as is reasonably practicable, have regard to—

(a)the desirability of providing the least restrictive environment for the prisoner that is consistent with the maintenance of public safety and the safety of staff members and other prisoners; and

(b)the need to facilitate the rehabilitation and reintegration of the prisoner into the community, taking into account the availability and location of appropriate services and programmes that will contribute to the achievement of those objectives; and

(c)the desirability of ensuring that the prisoner is detained at a location as close as is practicable to his or her family.

[25]      Mr Miller’s affidavit explains the transfer decision. His affidavit merges the issues that arise in both the substantive and interim relief applications. He deposes that the decision to transfer Mr Clarke was made for prison muster reasons. Mr Miller describes two “big picture” factors behind the decision to transfer Mr Clarke and other OCF prisoners. First, the Department is facing extreme staffing pressures across the prison network, leading to considerable stress on the Department’s ability to maintain safe staff-prisoner ratios. The prison muster is managed to ensure the most effective outcomes for prisoners and staff.

[26]      Second, three units at Christchurch Men’s Prison are to close. Those units have held high security prisoners who require placement in other appropriate units. At the same time, new modular units for low security prisoners have come online at Rolleston Prison. Those units are not suitable for high security prisoners. The solution reached was that the OCF would become the high security prison for the Southern Region. The high security prisoners from Christchurch Men’s Prison are to be transferred to the OCF, and many of the low security prisoners presently housed at the OCF are to be transferred to Rolleston Prison to take up the new modular units. The decision was made to close Unit 31, where Mr Clarke is presently housed. The intention is for the approximately 60 prisoners held in that unit to be transferred to Rolleston Prison for muster reasons.

[27]      Mr Miller deposes that the specifics of who and when those prisoners were to be transferred was considered by a group of staff at the OCF, including the Receiving

Office, Health, Programme Co-ordinators, Principal Corrections Officers, and others. The purpose of that exercise was to consider personal circumstances bearing on the intended transfer, including upcoming court hearings, Parole Board hearings, programmes, employment, and health status.

[28]      Mr Clarke is in voluntary protective segregation. Mr Miller deposes that all low security, voluntary protective segregated prisoners are being transferred to Rolleston Prison, and there are no options within the OCF to house Mr Clarke under the voluntary protective segregation regime at OCF. Mr Miller says that if Mr Clarke was not transferred, extra staff resources would have to be dedicated to keeping a unit or part of a unit open solely for Mr Clarke. He says the point of the transfer is to ensure prisoners are housed in appropriate conditions and achieve safe staff-prisoner ratios, and if Mr Clarke were to remain in the OCF on a medium-term basis, that goal is jeopardised.

[29]      Mr Miller is confident Rolleston Prison can facilitate phone and AVL contacts and in-person visits for Mr Clarke. He acknowledges there may well be practical constraints which will impact on the face-to-face visits Mr Clarke has with his son and partner.

[30]      He deposes that Rolleston Prison has a health team that can offer support for Mr Clarke’s mental health.

[31]      In Wallace, Grice J considered a challenge to a large-scale transfer of prisoners from Arohata Prison to Christchurch Women’s Prison to address staffing issues and related safety and welfare issues. Grice J observed:

[88] This is a case where the Court must exercise some caution before intervening in administrative or management decisions of government agencies or departments involving logistical complexities. This must particularly be so when staff and prisoner safety and possibly that of the public, may be put at risk. As the Court of Appeal put it in Taylor v Chief Executive of Department of Corrections, the Court must be careful to avoid stepping into what are management decisions involving resource allocation.

(footnote omitted)

[32]      The decision to transfer Mr Clarke was made to effectively manage the prison muster. Necessarily, the decision engages staff and prisoner safety and welfare issues.

[33]      Further, the essential context of the current challenge is a statutory scheme that expressly disclaims any legitimate expectation as to conditions. Section 82B of the Corrections Act provides:

82B No legitimate expectation as to conditions, etc

(1)To avoid doubt, a prisoner does not have any legitimate expectation of—

(a)being accommodated in, or of being provided with, the same or similar conditions during the whole term of his or her sentence, period of remand, or other period of detention; or

(b)being provided with the same or similar programmes or opportunities during the whole term of his or her sentence, period of remand, or other period of detention.

(2)Subsection (1) does not affect any entitlement conferred on a prisoner by this Act or regulations made under it.

[34]As Lang J noted in Reekie v Attorney-General:8

… there is no requirement in the Act or Regulations that a Prison Manager must consult or seek input from a prisoner before a decision is made to effect a transfer to another prison. Nor is there any requirement that prisoners be consulted about the manner in which they are conveyed from prison to prison. Obligations of that kind would obviously be wholly impracticable given the number of prisoners Corrections is required to transfer between prisons for a variety of reasons on a daily basis. Those responsible for making such decisions therefore have a considerable degree of discretion so long as the transfer is being made in accordance with s 54(1) to (3) of the Act and taking into account the matters set out in s 54(4).

(footnote omitted)

[35]      Mr Mortimer-Wang submits that the approach of Grice J was appropriate and ought to be adopted. I agree. This Court will appropriately be reluctant to intervene in a prisoner transfer in any case where staff-prisoner ratio and consequential safety issues are raised. I accept the submission made by Mr Mortimer-Wang that a transfer decision is a multifactorial, operational decision that properly falls to administrative decision-makers, subject to procedural supervision by this Court. The Court ought to

8      Reekie v Attorney-General [2019] NZHC 1679 at [76].

be cautious to prohibit administrative action that appears to have a lawful and procedurally proper foundation.

[36]       The evidence presently available indicates Mr Clarke’s transfer decision fell within a permitted statutory ground, being s 54(3)(b) of the Act.  Consequently, the  s 54(4) considerations, including familial proximity, fall to be assessed in the context of how and not whether a prisoner is transferred. This factors against the granting of interim relief.

[37]      Ms Pinnock submits that no regard was had to familial issues in making the transfer decision. Mr Miller says prison staff took into account the face-to-face visits with Mr Clarke’s son.9 He refers to correspondence between Catholic Social Services and the Principal Corrections Officer, Philip Savage, dated 16 September 2022 and referring to the supervised visits with the son.10 Mr Miller deposes that, on the material he has reviewed, he believes Mr Clarke’s family circumstances were known to staff at OCF and were considered as part of the transfer decision.11 I am not persuaded the respondent failed to have regard to familial considerations.

[38]      Ms Pinnock submits the respondent has not considered all available alternatives to a transfer to Rolleston Prison. She refers in particular to the possibility of Mr Clarke being housed in the Intervention Support Unit. Mr Mortimer-Wang submits it is not for this Court to conduct an inquiry as to whether all alternatives to a prison transfer have been explored. He submits such an inquiry falls clearly outside the scope of substantive review and interim relief. I agree.

[39]      At this interim stage, the decision to transfer Mr Clarke appears to be lawful and reasonable. On the evidence I have reviewed, I am not persuaded the substantive review application has great merit.

9      Affidavit of David Miller at para 27.

10     At 28.

11     At 30.

Adverse effects and effective relief

[40]      Ultimately, I consider this application to be determined by the assessment as to whether an interim order is necessary to preserve the Court’s ability to grant effective relief in the substantive application. Mr Clarke’s transfer to Rolleston Prison is not irreversible. In the event his substantive application is successful, he will be transferred back to the OCF.

[41]      In the meantime, whilst I accept he and his family will suffer distress and anxiety because of physical separation, I do not consider that immediate consequence to reach the threshold to justify interim relief. It is likely the substantive application will be determined within months. Mr Clarke enjoys court ordered, facilitated face- to-face visits from his son every two months. The number of visits impacted by a refusal to grant interim relief is minimal. Ms Pinnock observes that the current Family Court orders require those visits to be conducted at the OCF. In my view, there should be little difficulty having the visitation orders amended to respond to the transfer.

[42]      As Mr Miller has deposed, there will be facilities available at Rolleston Prison to  permit  AVL  visits  and  face-to-face  visits.  The  circumstances  personal  to   Mr Clarke’s partner and child will dictate whether face-to-face visits can be conducted. As Ms Pinnock acknowledges, there is no evidence addressing that issue before the Court.

[43]      Ms Pinnock refers to the evidence Mr Clarke is on a wait list for a surgical procedure at Dunedin Hospital. It is not known where Mr Clarke is on that list or when that surgery might take place. In those circumstances, I do not consider this factor favours a grant of interim relief.

[44]      Finally, I am satisfied that appropriate mental health specialists will be available to assist Mr Clarke to deal with the distress arising from the transfer.

Result

[45]The application for interim relief is declined.

[46]      I direct the Registrar to liaise with counsel to ensure the substantive hearing is heard on the earliest available date. Counsel should agree a timetable for the filing of any further evidence and submissions.

[47]      Given Ms Pinnock’s indication that Mr Clarke is legally aided, no costs issue should arise. If that is not the case, Mr Mortimer-Wang is to file a costs memorandum within five working days.

...................................................

Eaton J

Solicitors:

Crown Law Office, Wellington Solomons, Dunedin

Copy to:

Adriana Pinnock, Barrister, Dunedin