Drew v Attorney-General

IN THE COURT OF APPEAL OF NEW ZEALAND

CA189/00

BETWEEN	ANDREW LAWRIE DREW
Appellant

AND	THE ATTORNEY-GENERAL
First Respondent

AND	THE VISITING JUSTICE
Second Respondent

Hearing:	19 October 2000
Coram:	McGrath J McGechan J Salmon J
Appearances:	A Shaw for NZ Council for Civil Liberties Inc. A S Butler for First Respondent
Judgment:	15 March 2001

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

The New Zealand Council for Civil Liberties applies to intervene in an appeal against a judgment of John Hansen J dismissing an application by the appellant for judicial review of orders made against him in prison disciplinary proceedings.
The background is that the appellant, while an inmate of Paparua Prison, was charged under prison disciplinary regulations with the use of heroin without the authority of a medical officer. The charge was laid under s32A(1)(a) of the Penal Institutions Act 1954. The procedure stipulated for hearing the charge and any subsequent appeal was set out in the Penal Institutions Regulations 1999. They have since been revoked but were applicable at the time of the events the subject of the appeal.
At a hearing on 17 August 1999 before the Deputy Superintendent of the prison the charge against the appellant was held to have been proved and a penalty was imposed on him of 7 days cell confinement, 28 days loss of privileges and 7 days loss of remission. The appellant exercised his right of appeal to a Visiting Justice and on 18 October 1999 Noble DCJ heard the appeal, conducting a fresh hearing as required by the regulations. He was satisfied that the charge was proved and reset the penalty in the same terms. A consequence for the appellant, over and above the penalty imposed on him, was that his status as a prisoner changed and as a consequence his visiting conditions were altered.
The appellant then brought judicial review proceedings in the High Court challenging both decisions. First he challenged the validity of the regulations which he said contradicted his rights as a person charged under s24(c) of the New Zealand Bill of Rights Act 1990. The focus of this challenge was on the absence of provision in the regulations entitling a person charged to representation by counsel at either level of hearing. The appellant had been permitted to have legal advice prior to and he was accompanied by a lawyer at the hearing before the Visiting Justice. However the lawyer was not permitted to speak on his behalf at the hearing.
The second basis of challenge was to the fairness of the hearing before the Deputy Superintendent. The third basis concerned alleged unfairness of the appeal hearing because of failure to give weight to a letter received by the appellant from a pathologist which addressed evidence to be given by an ESR scientist in support of the charge. The evidence of the scientist concerned drug levels shown on analysis of a sample of urine taken from the defendant. In the letter the pathologist had commented on the levels of codeine prescribed to and taken by the appellant in the weeks prior to the sample being taken. The pathologist made observations which suggested a possible linkage between the level of morphine shown in the urine sample and the appellant’s codeine intake.
The judicial review proceeding was heard by Hansen J on 23 June and he delivered judgment on 16 August 2000. He dismissed the appeal. In summary he concluded that a breach of prison disciplinary regulations was not an “offence” in terms of s24 of the Bill of Rights Act affirming rights of persons “charged with an offence”. Accordingly the rights under s24 did not apply to the appellant. In case, however, s24 did apply he went on to hold that the provisions in the regulations in relation to representation were justifiable limitations of the appellant’s rights under s5 of the Bill of Rights Act.
On the second ground the Judge held there was nothing in the material before him indicating the appellant was not given a fair hearing before the Deputy Superintendent, and, if there were defects, they were cured by the fresh hearing before the Visiting Justice. As to the third ground the Judge considered the way that the letter from the pathologist was dealt with before Noble DCJ was fair, pointing out that the visiting Justice had assisted the appellant with his cross-examination. The points made in the pathologist’s letter had also been taken into account. The decision of the appellant to tender the letter rather than endeavouring to call the pathologist as a witness was one taken on legal advice. In all the circumstances that ground also failed.
The appellant has appealed to this Court. He will be represented at the hearing by counsel. The grounds of appeal will raise human rights issues and the Court has been informed that counsel for the appellant, who was excused from attendance at the hearing of this application, will present a full argument.
The matter presently before the Court is an application by NZ Council for Civil Liberties Inc. to intervene in the proceedings in order to advance an argument on human rights law and principles in relation to detained prisoners. Through his counsel the appellant has indicated he neither supports nor opposes the application for intervention. Counsel for the first respondent, who made submissions drawing our attention to overseas practice in deciding such applications, abides the decision of the Court on this application.
The relevant power of the Court to admit persons who are not parties to an appeal before it lies under R19(2)(a) of the Court of Appeal (Civil) Rules 1997. This provision simply indicates the Court may direct service of a notice of appeal “on any person who is not a party” to the proceeding appealed from.
Although the Court has recognised the broad nature of this power to permit interventions at the appellate stage of litigation, it has over the years exercised the power with restraint. The principal purpose of litigation is to resolve disputes between parties and to allow outsiders to participate has been seen by the Court as creating a risk of expansion of issues, elongation of appellate hearings and overall increase in the cost of litigation to parties. More recently, the Court has however, recognised that in some special situations the power to permit intervention can constructively be exercised more liberally, while emphasising “that does not mean it should ever be exercised as a matter of course or lightly”: New Zealand Fire Service Commission v Ivamy (1995) 8 PRNZ 632, 633.
In that case the Court granted an application by an association of employers to intervene in an appeal which was concerned with rights under employment legislation to representation in employment contract negotiations. This was a subject at the heart of the relevant legislation and the Court considered it reasonable to grant the request. In doing so it reiterated that intervention by such an association would not be appropriate simply because the outcome might establish a principle of importance to members. The Court said:
An interest group such as the Employers Federation is able to help its members by providing advice and information for those involved in litigation. Normally there is no need or reason for the organisation as such to participate in the hearing. Moreover many cases, in the field of employment law as in other fields, raise questions of principle transcending the particular facts and are likely to be relevant as precedents and as expositions of principle for other cases also; and that alone is ordinarily clearly not enough to warrant extending rights of hearing beyond the parties to the particular dispute. (p633).
Subsequently, in Wellington City Council v Woolworths New Zealand Ltd [1996] 2 NZLR 436, the Court permitted a national association of local authorities to intervene in an appeal concerning the operation by a local authority of a differential rating system. The Court did so because it saw the appeal as raising issues of general principle and public policy which were of fundamental importance to local authorities in the field of rating.
In the present case the applicant is a long established national association incorporated for the purpose of promoting respect for and observance of fundamental human rights. It has previously, in the pursuit of its objects, itself or through affiliates, initiated or been permitted to intervene in litigation raising human rights issues. It points to appearances in similar circumstances by equivalent overseas groups in the appellate courts of their own jurisdictions. The applicant’s particular concern in the present case is with the rights of prison inmates, which for it has been a matter of long standing concern. The substantive appeal directly raises the question of legal representation in prison disciplinary proceedings.
Appeals raising issues under the New Zealand Bill of Rights Act are of course decided within the normal adversary framework of our litigation process. The contest is generally between a citizen and the State, but even so it remains a dispute between parties and the factors that have been seen as requiring restraint to be exercised before allowing outsiders to participate are equally relevant.
Furthermore bodies such as the applicant bring and are seen to bring a political motivation to the litigation in which they take part in the sense that their purpose is often to have the currently understood state of the law either changed or reaffirmed, depending on the context. In New Zealand policy decisions of this kind are generally the role of the legislature assisted by the executive government. The Court needs to be sensitive to any suggestion that it is conducting a form of judicial inquiry into desirable policy in this area. That is a further factor reinforcing the Court’s traditional restraint in allowing those not parties to the appeal to participate in cases involving questions of public law.
On the other hand, as the Woolworths decision recognises, appeals raising legal questions on matters concerning the public interest regularly require the Court to have regard to wider implications in reaching its decisions than those of immediate concern to the parties. Cases raising fresh issues under the Bill of Rights can be of this character. In such situations the Court can at times be assisted by those whose experiences enable them to bring special insights to the issues being addressed by the Court. Where the assistance likely to be offered outweighs any potential detriments to the various interests the Court should continue its practice of allowing intervention.
In the present case the applicant puts emphasis on its legal expertise, in particular in international human rights jurisprudence, as indicative of its ability to give the Court significant assistance on the issues raised by the appeal. Where, however, the parties to an appeal have made plain they will themselves provide full submissions it will be unusual for the Court to regard the foreshadowed legal content alone as demonstrating the necessary likely value of an intervener’s contribution. Indeed in future applications the Court would expect an applicant for intervention to submit an affidavit outlining the general experience and expertise which it believes can assist the Court. In the present case we are prepared to accept that the area of prison inmates’ rights under prison disciplinary processes does raise issues of special concern to the applicant which has expertise of a general kind to offer which could well give the Court further insights into the issues that those presented in the parties’ submissions. Both parties have taken a neutral stance to the application. We regard it as important that the Court has not addressed the question of the rights of persons charged under prison disciplinary processes since the Bill of Rights was enacted in 1990. We are also satisfied that the potential detriments we have discussed can be covered by allowing the applicant to participate on terms.
The application under Rule 19 is granted on the condition that the applicant is to file and serve on the parties a written submission 21 days prior to the date set for hearing the appeal. Leave is also granted for the applicant’s counsel to attend the hearing but the Court will reserve the question of whether or not it will hear counsel orally. The Court is likely to set time limits for any permitted oral elaboration of an intervener’s written submissions. It is of course open for those advising the applicant to liaise with counsel for the appellant (or for that matter the Crown) who have the principal responsibility for raising and arguing the issues which the Court must determine on the appeal.

Solicitors

N B Dunning, Wellington, for NZ Council for Civil Liberties Inc.
Crown Law Office, Wellington, for First Respondent

[2001] NZCA 107

15 March 2001