Commissioner of Inland Revenue v Buis HC Auckland CIV 2004-404-6696

[2005] NZHC 377

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2005-409-839

BETWEEN  PETER ANTHONY JACKSON Plaintiff

ANDTHE ATTORNEY-GENERAL FOR AND ON BEHALF OF THE DEPARTMENT FOR CORRECTIONS

First Defendant

ANDTHE VISITING JUSTICES AT PAPARUA PRISON

Second Defendant

Hearing:         4 November 2005

Counsel:         P N Allan for Plaintiff

A J Bennett and J Davidson for First Defendant
No Appearance for Second Defendant

Judgment:      12 December 2005

RESERVED JUDGMENT OF RANDERSON J

This judgment was delivered by me on 12 December 2005

At 2.30 pm, pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           G C Knight, PO box 768, Christchurch

Crown Law Office, PO Box 2858, Wellington

Counsel:            P N Allan, fs Legal, PO Box 13 060, Christchurch

JACKSON V THE ATTORNEY-GENERAL FOR AND ON BEHALF OF THE DEPARTMENT FOR CORRECTIONS And Anor HC CHCH CIV-2005-409-839 [12 December 2005]

[1]      On 26 July 2004 the plaintiff was a serving prisoner at Paparua Prison.  On that day his cell was searched and a small quantity of cannabis was found in a magazine.  The plaintiff was charged with having cannabis in his cell without the approval of a prison officer contrary to s 32(1)(g) Penal Institutions Act 1954 (since repealed).

[2]      It is common ground that the cannabis was in the plaintiff’s cell without the approval of an officer.  The complaint was heard by the Superintendent of the prison under s 34 of the 1954 Act.  The plaintiff appeared before the Superintendent, was found guilty, and sentenced to loss of privileges for 21 days.   The plaintiff then exercised his right of appeal to Visiting Justices under s 35(1).  The appeal was a de novo hearing under procedures set out in the Penal Institutions Regulations 2000 (also subsequently repealed).   The Visiting Justices found the charge proved but reduced the penalty to five days loss of privileges.

[3]      The loss of privileges entailed the plaintiff being locked in his cell at 7 pm rather than the usual 9.30 pm; the removal of his television, stereo and computer from his cell and the addition of one point added to his security classification.   In addition, the Department of Corrections invoked its Identified Drug User (IDU) policy which meant the plaintiff was unable to have contact visits for a period of three months.

[4]      The plaintiff has now completed his penalty and has been released from prison on home detention.  He brings this judicial review proceeding, the principal point at issue being whether the disciplinary offence required proof of mens rea. This issue was relevant because the plaintiff maintained that he did not know the cannabis was in the magazine.

[5]      The plaintiff contended that mens rea is an essential element of the offence while the First Defendant submitted that the offence is one of absolute liability and proof of mens rea is not required.

[6]      The plaintiff gave evidence before the Visiting Justices that he had left his cell that morning around 7 a.m. to work in the prison environment.  He explained that he collects magazines and arranges for their distribution.  Another inmate had dropped off some magazines the evening before.  When he left his cell, it was not locked and he did not have any means of locking it.   He added that he normally flicked  through  the  magazines  but  could  not  say that  he  did  so  in  every  case. Although he did not say so expressly, the implication from his evidence was that he knew nothing of the cannabis in question.  He explained that offending of that type would be completely out of character and that he had never tested positive for cannabis during the lengthy periods he had spent in prison.

[7]      The plaintiff called the inmate who had dropped off magazines the previous evening.   He confirmed he had done so and added he had never been known to smoke cannabis.

[8]      The plaintiff also called another inmate who stated he had dropped off some magazines on the morning in question not long after the plaintiff had left his cell.  He had done this at Mr Jackson’s request.  The magazines were sourced from three other inmates.  He did not check them before putting them in Mr Jackson’s cell.

[9]      Two prison officers gave evidence of having searched the plaintiff’s cell at approximately 9.15 am on the day in question.  Contrary to the plaintiff’s evidence, one of the officers gave evidence that the plaintiff’s cell was closed and padlocked at the time of the search.   There is no evidence as to when this had occurred.   The prison officers also gave undisputed evidence that the inmates have an induction programme in which it is explained to them that they are responsible for the contents of their cells.  They are told not to loan anything to other inmates and that they are responsible for anything found in their cells.

The decision of the Visiting Justices

[10]     In their brief decision issued on 23 August 2004 the Visiting Justices found the plaintiff guilty of the offence.  Although it is not particularly easy to discern from their decision, it is common ground that it appears to have proceeded on the basis that proof of knowledge of the presence of cannabis was not required.

[11]     As to the issue of whether the cell was locked or unlocked, the Visiting

Justices stated:

But we do have some concerns about the fact that we have had evidence from yourself that your cell was unlocked when you went to work.   Your witness put the books into your cell after you had gone to work, and yet the evidence we have of the officers was the fact that your cell was locked when they went to do the search.  We have not had any evidence as to when they were locked.  Maybe it was after you went or when, so it does suggest a little bit of doubt as to which way it happened.

[12]     After commending the plaintiff for his work in distributing the magazines, the Visiting Justices expressed concern about what would happen to the plaintiff if there was a further occurrence.  They then stated:

From what I said at the beginning, it was found in your cell, so we do find the charge proven, but we do have – will give you the benefit of the doubt, at least doubts, as to what happened and from the fact of what you are trying to do, but I would suggest that you have a good look in the magazines first, or whether you are going to continue doing it, because it is leaving yourself open if you cannot trust some of the other people.

[13]     The Visiting Justices then stated:

Just to the fact that it was in your cell you are off privileges for five days.

[14]     In summary, the effect of the decision of the Visiting Justices was to find the plaintiff guilty of the offence simply because the cannabis was found in his cell. They were aware that the plaintiff denied any prior knowledge of the cannabis and plainly had doubts as to whether that was proved.  That is evident from their advice to the plaintiff that he should be careful about receiving magazines or other material from others and taking them into his cell.  Those doubts were considered relevant to the decision.

[15]     Mr Allan’s principal submission was the charge brought against the plaintiff required proof that he was aware of the presence of the cannabis in his cell.  Since the Visiting Justices had doubts on this issue, an essential element of the charge had not been proved beyond reasonable doubt.  Mr Allan submitted, by analogy with a charge of possession of drugs under the Misuse of Drugs Act 1975, that on well established principles, possession included both the physical act of possession and an intention to possess the drug in question.   Proof of the mental element was required whether or not the charge was one of “possession” under s 32(1)(g) or whether it was simply “having” cannabis in his cell.  Mr Allan submitted that, even if  guilty  knowledge  was  to  be  presumed,  there  was  sufficient  evidence  to  the contrary raised by the plaintiff such that the onus fell on the prosecution to prove such knowledge affirmatively.

[16]     Mr Allan submitted in the alternative that the decision was unreasonable but, on the view which I take of this matter, it is unnecessary for me to consider it further.

[17]     Mr Allan also submitted there was a breach of natural justice in that the hearing was conducted contrary to s 27(1) New Zealand Bill of Rights Act 1990.  In that respect, Mr Allan relied on the decision of the Privy Council in Re Erebus Royal Commission; Air New Zealand v Mahon [1983] NZLR 662, 671. I have no difficulty in rejecting this argument. There is no evidence of any breach of natural justice other than the possibility that the Visiting Justices did not hear the plaintiff on the issue of penalty. Given that the penalty was substantially reduced, Mr Allan accepted that, even if the plaintiff had been heard on the issue of penalty, there would not have been any significant difference in outcome and Mr Allan also accepted that he could not demonstrate that any breach had caused loss to the plaintiff. The suggestion that there may have been a finding of fact without evidence is simply not sustained on the material before me.

[18]     This leaves the single issue of whether proof of mens rea was required in order to establish the charge and whether the Visiting Justices erred in deciding it was not.

[19]     Extensive submissions were presented on behalf of the first defendant.  These outlined the essential differences in the consequences of a finding of guilt on a disciplinary offence within the prison system and a finding of guilt on a criminal charge.  In that respect, I was referred to the decision of the Court of Appeal in Drew v Attorney General [2002] 1 NZLR 58. Counsel emphasised that the actual charge under s 32(1)(g) was not one of possession but merely charged the plaintiff with having the cannabis in his cell without approval. It was submitted that an absolute liability approach was required and that this was consistent with the imperatives underlying the disciplinary system which aimed to control the supply, distribution and use of drugs within the prison system. Reference was made to Regulation 114 of the Penal Institution Regulations which regulated the terms on which inmates were permitted to have authorised property in their possession. Before being issued with any authorised property, the inmate was required by the regulation to accept full responsibility for the property and to comply with any specified conditions relating to its use.

[20]     Alternatively, if the offence in question were to be approached on a strict liability basis then it was submitted that the plaintiff was required to prove total absence of fault.  This required more than simply proof of absence of knowledge.  In particular, it would require the plaintiff to prove he had taken reasonable steps to ensure that the cannabis was not placed in his cell.  It was submitted the plaintiff had not established total absence of fault on the balance of probabilities.  It was said the plaintiff had not called any evidence to establish what steps he had taken to ensure that other prisoners did not leave drugs or other unauthorised items in his cell.  He did not, for example, call evidence about having checked the magazines collected for the presence of cannabis.

[21]     Counsel  pointed  to  evidence  from  the  plaintiff  that  although  he  usually flicked through the magazines he did not think he should have to take magazines outside his cell and flick through the pages.   Reference was also made to the observation of the Visiting Justices already quoted to the effect that the plaintiff

should have a good look at the magazines first or otherwise he would be leaving himself open to a charge of this kind.

Discussion

[22]     The correct classification of offences can be one of some difficulty.   The leading authority in New Zealand is Millar v Ministry of Transport [1986] 1 NZLR

660.  A comprehensive review of the authorities was undertaken including Sweet v Parsley [1970] AC 132 (HL), R v Strawbridge [1970] NZLR 909 (CA) and Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA).

[23]     The starting point is to consider whether the text or scheme of the Act in question gives a clear indication of legislative intent whether expressly or by necessary implication.   When s 32(1) is considered as a whole, it is apparent that most of the offences created provide expressly or by necessary implication for proof of some form of mens rea.  Section 32(1) provides:

32     Offences by inmates

(1)    Every inmate commits an offence against discipline who—

(a)  Disobeys any lawful order of any officer, or disobeys or fails to comply with any regulation made under this Act or any rule of the institution made under section

7 of this Act:

(b)  Is idle, careless, or negligent at work, refuses to work, or wilfully mismanages his work:

(c) Uses or writes any abusive, insolent, insulting, threatening, profane, indecent, or obscene words:

(d)  Behaves in an offensive, threatening, insolent, insulting, disorderly, or indecent manner:

(e)  Without authority, communicates with any person, not being an inmate or an officer or any other person lawfully in the institution:

(f) Leaves his cell or place of work or other appointed place without permission:

(g)    Without the  approval of  an  officer,  has  any  article  in  his  cell  or  in  his possession, or gives to or receives from any person any article, or attempts to obtain any article:

(h) Repeatedly makes groundless or frivolous complaints: (i)  Commits any nuisance:

(j) Assaults any other inmate:

(k)   Wilfully disfigures, damages, or destroys any part of the institution, or any property that is not his own:

(l)     In any other way, offends against good order and discipline.

[24]     On analysis of s 32(1)(g) there are five distinct offences created:

a)        Having an article in a cell without approval;

b)       Having possession of an article without approval;

c)        Giving an article to any person without approval;

d)       Receiving from any person an article without approval;

e)        Attempting to obtain an article without approval.

[25]     The plaintiff was charged with the first of these offences.   The distinction between the first and second offences is essentially one of locality.   The first is directed at a prisoner having articles in his or her cell and the second is directed at articles  found  on  the  prisoner’s  person.     Prima  facie,  there  is  no  mens  rea requirement referred to in the first offence.  On the other hand, it is well established in the context of criminal law that “possession” (as required by the second of the offences) involves proof of an awareness by the accused that the article in question is in his or her actual physical custody or control and that the accused intended to exercise possession:  R v Cox [1990] 2 NZLR 275 and R v Cossey (1990) 6 CRNZ

185.

[26]     Given  the  distinction  between  the  first  and  second  offences  created  by s 32(1)(g), it would appear at first glance that the legislature did not intend to require proof that the prisoner knew that the article was in his or her cell.

[27]     Where the legislative intent is unclear, the discussion in Millar is helpful. The majority of the Court (Cooke P and Richardson J) discussed three principal category of offences:

a)        Those requiring proof of mens rea as an ingredient of the offence;

b)Offences of strict liability where the prosecution is not required to prove  mens  rea  or  fault,  but  a  defence  is  available  where  the defendant proves absence of fault on the balance of probabilities; and

c)       Offences of absolute liability where neither absence of mens rea nor absence of fault exculpates the defendant.

[28]     It was emphasised at 668 that if a penal provision is reasonably capable of two  interpretations,  the  interpretation  most  favourable  to  the  accused  must  be

adopted:   Sweet v Parsley at 149 per Lord Reid. The correct approach was then stated in Millar at page 668:

We are not attempting or proposing any drastic judicial surgery.  Where the law is settled in New Zealand, as by decisions of the Privy Council in New Zealand cases or by this Court on particular sections or their forerunners, it should remain undisturbed.   Civil Aviation Department v MacKenzie was not  meant to  disrupt firmly-settled patterns  of  statutory  interpretation  in particular fields.  Nor would it be right to exclude in advance the possibility that particular statutes creating offences, when silent as to fault or mens rea, may import absolute liability or some variant of liability outside the main stream.  But as a general approach to statutory offences when the words give no clear indication of legislative intent and there is no overriding judicial history, it will be right to begin by asking whether there is really anything weighty  enough  to  displace  the  ordinary  rule  that  a  guilty  mind  is  an essential ingredient of criminal liability.  If there is, the next inquiry should be whether the statutory purpose and the interests of justice are on balance best served by allowing a defence of total absence of fault, with the onus on the defendant.

[29]     Assuming in the plaintiff’s favour that the words of the statute give no clear indication of legislative intent and in the absence of any previous judicial history, the issue is whether there are any factors sufficiently weighty to displace the ordinary rule that a guilty mind is an essential ingredient of liability under this provision. Here, there are a number of factors tending to displace the ordinary requirement for proof of mens rea.

[30]     First, the Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system.  This point was made very clearly by McGrath J in Drew v Attorney General at [85] and [86]:

[85]     The Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system. It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living.  Closely  linked  to  the  imperative  of  continuing  order  is  the maintenance of the integrity of prison security, which includes security against the introduction and use of illegal drugs within the prison. It is a complaint in relation to the events of unauthorised use of drugs within the prison that gave rise to the disciplinary proceedings against Mr Drew which have become the subject of this appeal.

[86]     At the heart of the statutory scheme for prison discipline is the policy that is shared with many countries that responsibility for dealing with misconduct by prisoners should, in general, form part of the governmental function of prison management. In this context the Act contemplates that the principal burden of disciplinary adjudication should fall on those responsible

for the operation of the prison. That is achieved by providing under the Act a two tier disciplinary process. At the first level the prison disciplinary system is administered by the senior officers in the prison, with the aim that the great majority of incidents will be dealt with at this level in a fair, timely and effective manner consistent with the need to maintain order. An important safeguard for prisoners who become subject to the process at this level is a right of appeal against any finding by the superintendent that a complaint concerning an offence against discipline has been proved and against the penalties that may consequently be imposed (s 35).

[31]     Secondly, a finding of guilt of a disciplinary offence does not result in a criminal conviction nor does it expose the prisoner to penalties beyond those already indicated.  In this respect, the power formerly available under s 33(3)(a) for Visiting Justices to postpone an inmate’s release date was repealed with effect from 29 June

2002.

[32]     Thirdly, I accept the submission made on behalf of the third defendant that the importance of controlling access to drugs in prisons is self-evident.  The use of drugs in prison has obvious implications for discipline within the prison system as well as for the rehabilitation of offenders.  Measures to control the use of drugs in prison including random drug testing programmes were provided for in s 36B to

36BF Penal Institutions Act and in Regulations 158 to 177 Penal Institutions Regulations.  Regulation 174 provided that the IDU random testing programme was established   for   the   purpose   of   permitting   the   assessment   and   appropriate management of inmates  in  relation  to  drug use  and  alcohol  consumption.    The regulation further applied that the programme provided to all inmates found guilty of disciplinary offences relating to drugs and alcohol.

[33]     Fourthly,  the  Penal  Institutions  Regulations  make  detailed  provisions  for dealing with an inmate’s property.   An inmate may be issued with any authorised property under Regulation 113 but, as previously indicated, must acknowledge in writing that the inmate accepts full responsibility for the property and will comply with any special conditions:  Regulation 114.  The Superintendent was required to maintain a register of inmates’ property (Regulation 115) and property considered to be dangerous, a health hazard, or otherwise objectionable could be destroyed or otherwise disposed of.  This detailed regime provides a clear indication of a statutory intention to impose strict control over inmates’ property and to grant quite extensive

powers to the prison authorities to seize and destroy property of an objectionable nature.  Most importantly, the regulations required inmates to take responsibility for property issued to them.   Inmates are aware of the responsibilities imposed upon them in this respect.

[34]     Fifthly, the disciplinary offence at issue has parallels with the kind of public welfare regulatory offence discussed by the Court of Appeal in MacKenzie.   As noted in Millar at 669, offences directed at conduct having a tendency to endanger the public or sections of the public may fall into this category.

[35]     In summary, these considerations  point  towards  the categorisation  of  the offence at issue as one which does not require proof by the prosecution that the inmate knew the cannabis was in his cell.  This suggests that the offence should be treated as one of strict liability enabling an inmate to escape responsibility upon proof on the balance of probabilities that he or she had taken all reasonable steps to prevent or avoid the substance entering the cell.

Should the offence be categorised as one of absolute liability?

[36]     I do not accept the submission made on behalf of the first defendant that the disciplinary offence at issue should be categorised as one of absolute liability as described in Millar.  I reach that conclusion for these reasons:

a)        First, the penalties which may be imposed are not insignificant.  The

Superintendent (or the Visiting Justices on appeal) may impose up to

28 days loss of privileges; seven days loss of earnings and/or seven days of cell confinement.  If a Visiting Justice hears the charge in the first instance, the maximum penalties which may be imposed are up to three months loss of privileges, loss of earnings and/or 15 days cell confinement.  While I accept these penalties are less than those which are available under s 7 Misuse of Drugs Act 1975 for possession of cannabis, they represent a substantial potential penalty for an inmate found guilty of the subject offence.

b)Secondly, there are indications in the Penal Institutions Regulations dealing with inmates’ property that the responsibility for authorised property necessarily implies that the inmate is aware of the property issued to him or her.  To impose absolute liability would be to render the inmate responsible for items found in his or her cell without knowledge that those items were present and despite all reasonable care by the inmate.  The provision of an absence of fault defence is not inconsistent with encouraging inmates to take responsibility for their property.

c)       Thirdly, clause 143 of the Regulations provides a mechanism dealing with minor or unintentional breaches of discipline.   An officer may deal with the breach simply by stopping it, instructing the inmate to correct  the  relevant  behaviour  and  allowing  the  inmate  to  make amends to any person aggrieved by the breach.  A discretion exists to deal with the matter in this way rather than  laying a  disciplinary charge.  It would be anomalous and unfair if an inmate were suddenly exposed to the much more significant penalties for a breach of the regulations  without  the  possibility  of  establishing  a  defence  of absence of fault.

d)Fourthly, imposition of absolute liability would tend to encourage other inmates taking retribution against another inmate by placing cannabis or other drugs in the cell of another inmate.   Plainly, any conduct of that kind should not be encouraged by an overly strict disciplinary regime.

[37]     While I acknowledge the submission made on behalf of the first defendant that  the  enforcement  of  prison  discipline  requires  an  effective  regime  for  the detection, prosecution and punishment of offenders within the prison environment, that objective must be balanced against the interests of the inmates who ought not to be  exposed  to  significant  penal  consequences  where  they  can  demonstrate  an absence of fault on their part.

[38]     I conclude that there is no warrant for the subject offence to be treated as one of absolute liability and that it is properly categorised as an offence of strict liability. The prosecution need not prove mens rea but the inmate has a defence if he or she is able to demonstrate (on the balance of probabilities) an absence of fault.

Conclusion in this case

[39]     While the Justices expressed doubt as to whether the plaintiff was aware that the cannabis was in his cell, the plaintiff did not, on the evidence adduced, establish on the balance of probabilities that he took all reasonable steps necessary to ensure that cannabis did not find its way into his cell.  Indeed, the evidence suggests that he was aware of the possibility but did not think it was necessary for him, in all cases, to check the magazines collected to ensure that they did not contain any cannabis. That  was  a  matter  which  was  remarked  upon  by  the  Visiting  Justices  in  their decision.  Their advice to the plaintiff was that he should “have a good look” in the magazines before accepting them.  That was an obvious safeguard for the plaintiff to take given the potential for cannabis to be placed within a magazine for the purpose of transferring it within the prison environment.

Result

[40]     In these circumstances, the application for review is dismissed.  The offence was properly established and the potential defence of absence of fault was not made out by the plaintiff.  There are no other grounds for review on the grounds of breach of natural justice, mistake of law, unreasonableness or otherwise.

[41]    The question of costs is reserved.   If the first defendant seeks costs, a memorandum is to be filed within 14 days of the date of issue of this decision and the plaintiff is to file a memorandum in reply within 14 days after receipt of the first

defendant’s submissions.

A P Randerson, J Chief High Court Judge