Dunstan v Chief Executive, Department of Corrections
[2023] NZHC 3221
•17 November 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-002159
[2023] NZHC 3221
UNDER the New Zealand Bill of Rights Act 1990 and Corrections Act 2004 BETWEEN
TANYA FELICITY DUNSTAN
PlaintiffAND
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
Defendant
Hearing: 30 October – 1 November 2023 Appearances:
Plaintiff in person
SK Shaw and HT Reid for Defendant
Judgment:
17 November 2023
JUDGMENT OF DOWNS J
This judgment was delivered by me on Friday, 17 November 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland. Copy to: Plaintiff
DUNSTAN v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2023] NZHC 3221 [17 November 2023]
The case
[1] Tanya Dunstan was remanded in custody on 29 December 2018 until 3 January 2019. Ms Dunstan alleges aspects of her incarceration contravene s 9 of the New Zealand Bill of Rights Act 1990, which protects against torture and cruel or degrading treatment. Ms Dunstan seeks $1,277,000 in damages. She is self-represented.
Background
[2]The background is simple.
[3] On Saturday, 29 December 2018, Mr Dunstan appeared in the New Plymouth District Court on two charges of contravening a protection order and one of child abduction. The Court remanded Ms Dunstan in custody, and directed she be “brought back” on Thursday, 3 January 2019.1
[4] Ms Dunstan was taken to the New Plymouth Remand Centre.2 The centre is a small, custodial unit run by the Department of Corrections.3 Ms Dunstan arrived there at 10.05 am.
[5] All prisoners at the centre go through an induction process in which its rules are explained. As part of this process, prisoners receive an induction pack, which contains a summary of the rules. Ms Dunstan acknowledges she was given this pack.
[6] Another aspect of the induction process is a health assessment, conducted by a nurse. Ms Dunstan had not been in custody before. Records describe her as “tearful”. Consequently, Ms Dunstan was placed on 60-minute observations until the morning of 31 December 2018. This meant Ms Dunstan had to be checked by a Corrections officer every 60 minutes, including overnight.
1 Warrant to detain Ms Dunstan (under s 168(4) of the Criminal Procedure Act 2011 and r 3.5 of the Criminal Procedure Rules 2012).
2 The centre.
3 The Department.
[7] For the duration of her detention, Ms Dunstan was placed away from other prisoners. Male and female prisoners may not mix, so Ms Dunstan was placed in a cell by herself, away from male prisoners. The only other female prisoner did not arrive until 2 January 2019, and she was at risk of self-harm. That prisoner was placed in a special cell, on a different floor to Ms Dunstan.
[8] Ms Dunstan was returned to the District Court, as required, on Thursday, 3 January 2019. She was granted bail.
[9] Ms Dunstan was collected from the court by Linda Smyth, a close friend, and Ms Smyth’s daughter, Rebecca Phillips. Ms Dunstan told them she had been repeatedly woken and not given appropriate food. Ms Dunstan also told Ms Phillips she had not been allowed to make telephone calls.
The claim
[10] We now move forward more than three years. On 10 October 2022, Ms Dunstan filed her claim in this Court.
[11] On 15 March 2023, Associate Judge Gardiner directed Ms Dunstan file an amended claim to clarify its “legal basis”:4
I explained to Ms Dunstan that she needed to remove from the statement of claim any evidence, so that the claim is confined to the essential facts that give rise to her claim. She should also remove the references to case law, which will form part of her legal submissions for the hearing. She needs to identify the precise sections of the legislation, or other laws she says the Department of Corrections breached when she was detained between 28 December 2018 and 3 January 2019. She should only identify the specific sections or laws she says were breached and eliminate others.
Ms Dunstan needs to set out each alleged breach as an individual cause of action. So, for example, her first cause of action might be for breach of s 77 of the Corrections Act 2004. Under that heading she will set out the essential facts that she claims establish that this section of this Act was breached. She will then state the relief she seeks in relation to that cause of action.
4 Dunstan v Chief Executive, Department of Corrections [Minute] HC Auckland CIV-2022-404- 002159, 15 March 2023 at [2]–[4].
Drafting pleadings is difficult for anyone, and I encourage Ms Dunstan to approach the Auckland Community Law Centre for assistance.
[12] Ms Dunstan filed an amended claim the following day. It contains six causes of action, each with a corresponding “issue”.5 I reproduce the six issues as they contain the gist of Ms Dunstan’s claim:
Issue [1]: I was detained for 6 days in solitary confinement, repeatedly asked how I was going to kill myself. I was tormented and tortured with food and sleep deprivation. All contact prevented and denied- including with any solicitor or people to ask to be bailed at. In reviewing the notes made and provided to me on 24 May 2022, I follow up with the intention of litigation to protect myself and other victims of abuse and inhumane treatment. I never received any written documentation about my segregation of total isolation from any contact with my family, friends, even written correspondence or other prisoners. This was in breach of my rights and liberties.
Issue [2]: I was told I could not make calls as I had no credit on a calling card- when I asked to have my wallet to transfer this was declined- when people attempted to call me they were refused to be transferred and when they asked to put money on my calling card this was denied. The fact corrections have now allegedly “not recorded” my inhumane treatment is of further concern.
Issue [3]: My mail was read and thrown back at my feet days later being told “we don’t mail out internationally.” When I asked why I wasn’t told so I could mail it domestically to be sent on Sue said: “you’re a smart woman, I figured you’d work it out- anyone no mail for the rest of the week”. My torment with corrections officer “Sue” and her accomplices was inhumane and cruel. The fact corrections have now allegedly “not recorded” my inhumane treatment is of further concern.
Issue [4]: There is nothing from the notes of my day 3 assessment when the male nurse questioned the corrections officer about my sleep torture or food being withheld. If no notes were made, that is in breach of my rights and in accordance with standard health care outside of prison. Further- concealment of evidence prejudicing me in proceeding arguably a criminal offense to mislead the courts and prevent a fair hearing. [s 116 Crimes Act 1961].
Issue [5]: I was prevented my rights to visitors and the people who did call to ask to speak to me / see me were refused- apparently corrections has “lost the records” of these calls. I strongly suggest you locate these to avoid further litigation of deliberately acting to pervert the course of justice.
Issue [6]: The corrections department concealment of information, prejudicing me in proceedings and further compounding the emotional and psychological damage inflicted on me preventing closure.
5 The amended claim also contains a seventh cause of action and “issue”, alleging van Bohemen J wrongly delayed the trial. This contention could not sustain any cause of action (even if correct), and I say no more about it for this reason.
[13] Ms Dunstan contends the conduct identified in each of these issues, individually or collectively, amounted to torture or cruel or degrading treatment in contravention of s 9 of the Bill of Rights Act. Ms Dunstan also contends the conduct identified in each issue involved a breach of the Corrections Act 2004, entitling private law relief. Finally, Ms Dunstan alleges the Department owed her a duty of care which it breached, and which is actionable by “a tort of negligence”.6 As observed, Ms Dunstan seeks damages of $1,277,000.
Trial
[14]Trial took two and a half days.
[15]Ms Dunstan testified, as did Linda Smyth and Rebecca Phillips.
[16] The Department called four witnesses: Jack Saju, a nurse at the centre; Jennifer Rangiwananga, a former nurse at the centre; Shane Bennett, a Corrections officer; and Martainn Cuff, another Corrections officer.
[17] Only Mr Cuff recalled Ms Dunstan. Mr Cuff was on duty on 29 December 2018, when Ms Dunstan arrived. He recalled her as friendly but quite emotional.
Core contentions
[18]The issues mentioned reduce to contentions that Ms Dunstan was:
(a)In solitary confinement for six days.
(b)Deprived of food.
(c)Deprived of sleep.
(d)Precluded visits.
6 Amended statement of claim, para 12.
(e)Prevented from sending mail.
(f)Prevented from making telephone calls, including an initial call.
[19] Ms Dunstan also contends the Department has concealed information about her.
[20] I consider each contention separately, then address what this means for Ms Dunstan’s claim.
Analysis
Was Ms Dunstan in solitary confinement?
[21] The concept of solitary confinement is simple enough, but absent a single definition.7 The core idea is that a prisoner is deprived of human contact for an unreasonable period, absent justification, or as a form of punishment.
[22] Ms Dunstan contends her detention amounted to solitary confinement as she was in a cell by herself, away from other prisoners, for six days.
[23] As will be recalled from the background, this situation reflected circumstance. Ms Dunstan was the only female prisoner until 2 January 2019, and the other prisoner had to be kept on a separate floor given risk of self-harm. Ms Dunstan also had to be kept apart from male prisoners. That she was is unremarkable.
[24] Ms Dunstan accepted in cross-examination that she saw Corrections staff at least four times each day: at breakfast, lunch, and dinner times, and when staff unlocked her cell so she could shower. Ms Dunstan also accepted there was a button in her cell which she could press to speak with staff.
[25] On 29 December 2018, Ms Dunstan interacted with staff during the induction process. On the same date, Ms Dunstan also had a health assessment with a nurse.
7 See Attorney-General v Taunoa [2006[ 2 NZLR 457 from [190] and Tanoa v Attorney-General
[2007] NZSC 70, [2008] 1 NZLR 429 from [184].
Ms Dunstan also saw a nurse the next day. Until 9.47 am on 31 December 2018, Ms Dunstan was checked hourly.
[26]I find Ms Dunstan was offered time in the yard given the following evidence:8
Q. You also would have been offered yard time daily, is that right?
A. As I saw it, there was nowhere to go. So, they would open my cell and I had the space of the wing which was from the end wall where I was up to the shower. I never went outside while I was there. Whether that was offered or not or in what capacity they imagined I would have access to this yard or how that would have taken place, it seemed humiliating, like they were taunting me with an opportunity of freedom that I simply did not have and, as according to them, had no access to because I was the only female prisoner at a male prison.
THE COURT:
Q. Just help me. Were you offered yard time?
A.They opened the gate and said: “You can go out,” and I said: “Where would I go?” At no stage was I inducted. I had no idea where yard time was where the yard was or what that meant. I just knew that I felt vulnerable and threatened, primarily by the Corrections staff, and I wanted to minimise my contact with them as much as possible.
[27] I do not doubt Ms Dunstan felt isolated and vulnerable. However, given the features identified, I conclude she was not in solitary confinement irrespective of how that concept is defined.
Was Ms Dunstan deprived of food?
[28]Section 72 of the Corrections Act 2004 provides:
72 Diet
(1)Every prisoner must be provided with a sufficient quantity of wholesome food and drink based on the food and nutritional guidelines for the time being issued by the Ministry of Health, and drinking water must be made available to every prisoner whenever he or she needs it.
(2)As far as practicable in the circumstances, in providing food and drink to prisoners, allowance must be made for the various religious, spiritual, and cultural needs of the prisoners.
8 Notes of evidence, p 12, li 19 to p 13, li 2.
(3)A medical officer or health centre manager may prescribe a particular diet for a particular prisoner.
[29] These requirements constitute minimum entitlements by s 69(1)(c) of the same Act.
[30] Ms Dunstan’s amended claim is broad on this subject; it records she was “tortured with food ... deprivation”. Ms Dunstan swore an affidavit on 7 October 2022 in the same terms, albeit the affidavit appends an email sent by Ms Dunstan on 31 May 2022 to the Ombudsman, in which she says, “security staff seemed annoyed I said I was lactose intolerant and refused to give me breakfast that wasn’t weetbix and milk which I couldn’t drink/eat”.
[31] In cross-examination, Ms Dunstan said she told the nurse who conducted the initial health assessment she was lactose intolerant, but she was not provided with a dairy-free breakfast until either 31 December 2018 or 1 January 2019. It follows the pleaded allegation of “torture” by food deprivation has no correlation to what Ms Dunstan actually alleges: that she was not given a dairy-free breakfast on two or three mornings. Furthermore, the evidence implies this occurred on one or two mornings only.
[32] Ms Dunstan did not arrive on 29 December 2018 until 10.05 am—presumably after breakfast. Her records for that day are silent on the topic of lactose intolerance, unlike those for 30 December 2018, which refer to dairy products as causing her diarrhoea. Food at the centre is delivered from Whanganui, so immediate correction of the problem was not possible. On Ms Dunstan’s evidence, the problem was corrected either the next morning, or on the morning of 1 January 2019, through provision of “a Marmite sandwich or something”.9 All of which means Ms Dunstan was not given a suitable breakfast on one or two mornings—30 December and perhaps 31 December 2018—albeit through no fault on the part of the Department.
9 Notes of evidence, pp 24–25.
[33] This leaves one matter here. Mr Cuff said “plenty of fruit” was available at breakfast in any event. Ms Dunstan said fruit was not available to her, as she had “already been intimidated, harassed and as I saw it, threatened”.
[34] I do not accept this aspect of Ms Dunstan’s evidence. It is not supported by any other evidence. Moreover, while Ms Dunstan told Ms Smyth and Ms Phillips the food had not been appropriate, she did not tell either she had been intimidated, harassed, or threatened during her incarceration.
Was Ms Dunstan deprived of sleep?
[35] Ms Dunstan’s amended claim is broad on this subject also; it records she was “tortured with ... sleep deprivation”. Ms Dunstan’s affidavit of 7 October 2022 is in the same terms, albeit the email referred to earlier says:
(a)“I was woken almost hourly with a torch in my face to wake me up”.
(b)“When I placed a mattress over the window to get sleep, I was woken by being physically shaken”.
[36] In cross-examination, Ms Dunstan said (a) occurred on the nights of 29, 30 and 31 December 2018 and (b) occurred on the night of 31 December 2018. Ms Dunstan also said in cross-examination she complained of sleep deprivation to a male nurse on 1 January 2019.
[37] Ms Phillips said Ms Dunstan told her people kept checking her at night, shining torches in her face. Ms Smyth said Ms Dunstan told her she had been woken repeatedly.
[38]Mr Cuff said staff:
… go through with a flashlight and shine it at the floor or ceiling inside the cell. We do not shine the flashlight straight on the prisoner, we just shine it at the floor or the ceiling of the cell to ascertain they are in there and okay. To check that they are okay, we have to ascertain they are breathing. If we cannot see any movement from the prisoner, we shine the torch a bit closer in their direction to see if we can be sure that they are breathing and there is no sign of self-harm or suicide.
[39] Mr Cuff said if Ms Dunstan had placed a mattress against the door during the day, staff would have entered the cell and asked her to remove it. However, had Ms Dunstan placed a mattress against the door during the night, the position would have been different:
At night, we cannot enter the cell without permission from management. That is to keep staff safe, so that staff do not open the cell door at night and have a hiding prisoner escape. Opening a cell door at night has a procedure, and it is a big deal. It is taken so seriously, that opening the door without permission could result in staff losing their job.
[40] Mr Cuff added if staff had entered Ms Dunstan’s cell at night, that would be recorded in an incident report.
[41] Mr Bennett gave similar testimony. He said entry to a cell at night required the approval of a manager at Whanganui Prison, would be recorded in an incident report, and unauthorised night-time entry of a cell constituted “a sackable offence”.
[42] No record exists of any night-time entry to Ms Dunstan’s cell; of a complaint of sleep deprivation on 1 January 2019; or of a consultation with nursing staff on that date. However, as observed, Ms Dunstan had assessments with nursing staff on 29 and 30 December 2018. Associated records are silent about sleep. Mr Saju, a nurse, said had a complaint about sleep been made, he would have documented that and spoken to a Corrections officer. Instead, Mr Saju recorded on 30 December 2018 that Ms Dunstan was “tearful at times due to the current situation and being separated from her children”. The hourly checks on Ms Dunstan ended the following morning.
[43] I conclude that while Ms Dunstan was woken inadvertently by the hourly checks on 29 and 30 December 2018, Corrections staff did not intentionally deprive her of sleep, or enter her cell at night and shake her awake. I treat the significance of night-time cell entry, the absence of a corresponding record, and the lack of need for that to occur as meaning it did not. Rather, I find Ms Dunstan became sleep-deprived during her incarceration because of the nature and unfamiliarity of her environment; the hourly checks until the morning of 31 December 2018 (which were for her welfare); and associated stress and anxiety.
Was Ms Dunstan prevented visits?
[44] Section 73(1) of the Corrections Act provides a prisoner is entitled to at least one visitor each week.
[45] Ms Dunstan is correct she was not allowed visitors at the centre. But this is because no visits are available at the centre, which is explained in the induction pack and which Ms Dunstan had. Mr Cuff and Mr Bennett said had Ms Dunstan been in custody for more than six days, she would have been transferred to Arohata Prison to facilitate in-person visits. Their evidence recognises the statutory entitlement to visitors is weekly; Ms Dunstan was not in custody for a week.
Was Ms Dunstan prevented from sending mail?
[46] Section 76 of the Corrections Act provides a prisoner may send as much mail as they wish, subject to payment of postage as addressed by regulation. Regulation 83 of the Corrections Regulations 2005 provides the prison must pay the postage of up to three standard letters per week, per prisoner, within New Zealand, and may pay postage in excess of that.
[47] Ms Dunstan said in evidence she wrote three letters, all to Australian addressees. None were sent because of that fact. As will be apparent from the provisions above, this response was available to the Department.
[48] Ms Dunstan also said a staff member by the name of “Sue” threw her mail back at her and taunted her about it. For the reasons set out at [68] onward, it is unlikely this occurred.
Was Ms Dunstan prevented from making telephone calls, including an initial telephone call?
[49] Section 77(3) of the Corrections Act provides a prisoner is entitled to make at least one outgoing telephone call each week of up to five minutes’ duration. Section 77(6) provides a prisoner may be required to meet the cost of a telephone call or pay a fee.
[50] Regulation 85 of the Corrections Regulations provides “unless the manager of a prison thinks it is in the interests of the prisoner or some other person, no prisoner may receive any incoming telephone call”. Regulation 87(4) provides a prisoner must, immediately after reception to a prison, be allowed one free telephone call within New Zealand to advise the prisoner’s next of kin of their location.
[51] Ms Dunstan testified she was prevented from making any telephone calls during her incarceration. Ms Dunstan said she asked to phone her father in Australia, to phone the Australian Consulate (in New Zealand), and to access her mobile phone to identify a New Zealand-based number to call.
[52]Mr Cuff said:10
... To have an initial phone call, the prisoner needs to provide us with a phone number to ring, and we then repeatedly try that phone number. We always do an initial phone call the day a prisoner comes in. That initial phone call was usually used by a prisoner to ask others to drop off phone cards to NPRC as a one-off initial drop, as it would have just been explained to the prisoner as part of the induction that phone cards were the method for them to use to make outgoing phone calls.
Ms Dunstan has said she requested a phone call with the Australian Consulate. I do not recall, from my interactions with Ms Dunstan, her making such a request to me and I do not recall any staff mentioning to me that Ms Dunstan had made such a request. That is something I would remember if she had asked for it. Prisoners do have the right to ask for a phone call to their consulate and that is something we do provide, but it is an odd request and odd requests do stick with me, and we would have filed noted that request had she made it.
Once a prisoner has told us the phone number to ring for their initial phone call, we call a Corrections 0800 number and they check IOMS for protection orders or any alerts preventing contact, and if there are no concerns then they call the phone number and ask if that person wants to speak with the prisoner. If there is no answer, the call centre tries two or three times more before saying there is ‘no answer’ and they will file note that. We will keep trying over the course of the week until we get an answer. To then have that number available for the prisoner to make outgoing calls to, we then send the number to Whanganui Prison and the administration staff add it to the system and give us a PIN number loaded with approved phone numbers, which we pass on to the prisoner.
I remember the initial phone call process being part of Ms Dunstan’s induction, because I remember at the time there was something stopping her from being allowed to ring her children or partner. I recall the at-risk assessment being done, which involves going through a series of questions
10 Brief of evidence dated 26 September 2023 at paras 3.30–3.33.
about their mental health, and it is a big list of questions but after that happened, I recall handing over to a colleague whose job it was to obtain the initial phone call number from Ms Dunstan, run the required IOMS checks and call the call centre with the phone number. But I remember Ms Dunstan was racking her brain for a phone number to ring. I recall that part of the induction process, but I had no further part in Ms Dunstan’s induction so cannot recall which phone number she usually provided for her initial phone call.
[53] In cross-examination, Mr Cuff said another officer dealt with Ms Dunstan’s initial phone call, as he left to deal with other duties. However, Mr Cuff said he did recall Ms Dunstan trying to recollect a telephone number to call. Ms Dunstan asked Mr Cuff if she would have been prevented from accessing her mobile phone to retrieve a number. Mr Cuff said she would, as prisoners are not allowed to access any mobile phone, as these can and have been misused by prisoners.
[54]Records contain no entry of an initial call by Ms Dunstan.
[55] I find Ms Dunstan did not make an initial telephone call, or any other. This determination is consistent with the records. It is also consistent with all of the other evidence, including Ms Dunstan’s and that given by Ms Phillips. However, I also find Ms Dunstan was not prevented from making calls as she alleges. Ms Dunstan’s entitlement was confined to calls within New Zealand, and Ms Dunstan had difficulty in recollecting a New Zealand-based number. It is likely she asked to access her phone to retrieve a number, and equally likely that request was refused on security grounds, hence legitimately. Therein, I apprehend, lies the source of Ms Dunstan’s frustration.
[56] I am not persuaded Ms Dunstan asked to call the Australian Consulate, for the reasons identified by Mr Cuff; that he would have remembered such a request—and documented it. I accept Ms Dunstan believes she made such a request, but I consider she is mistaken. Calls to a consulate are afforded, and it is not obvious why such a request would not be facilitated. To the extent Ms Dunstan alleges staff acted maliciously toward her, I am not persuaded this is so. Ms Dunstan was unknown to staff, a first-time prisoner, and described as “a polite individual”. That she would be
the target of malicious behaviour is, in the circumstances, improbable.11 This observation introduces some more general ones about the evidence.
[57] Ms Dunstan argued I “must” accept all of her trial testimony because (a) she was at the centre, and I was not and (b) the Department’s witnesses addressed her evidence indirectly; three of the four witnesses did not even recall her.
[58] I do not accept this submission for three reasons. First, as plaintiff, it is incumbent on Ms Dunstan to prove her case to the civil standard. Second, a case must be decided on the totality of the evidence, not just the plaintiff’s. In this context, that includes the records placed in evidence, the systems and procedures described by Corrections staff, and obviously, the evidence of those staff. Third, I consider Ms Dunstan has a tendency to exaggerate, wittingly or otherwise. An example is at [30], when an allegation of “torture” by food deprivation is no more than the absence of a dairy-free breakfast on one or two occasions. Another is at [35], when an allegation of “torture” by sleep deprivation is quite removed from what occurred. Expressed more directly, I consider Ms Dunstan’s testimony unreliable. I consider Ms Dunstan has misinterpreted and misremembered what occurred during her incarceration, so that she now perceives malice and mistreatment when, in fact, there was neither. This may be because the experience was novel, stressful, and frightening—even discombobulating.
Has the Department concealed information about Ms Dunstan?
[59] No evidence exists to substantiate Ms Dunstan’s contention the Department has concealed information about her.
[60] In her closing address, Ms Dunstan emphasised a single page of the centre’s records for 1 January 2019 is missing. Ms Dunstan said that page would have shown she complained of sleep deprivation on 1 January 2019. That, she said, was why the page is “missing”.
11 For completeness, Ms Dunstan also said she was wrongly denied incoming calls to the centre. Regulation 85 addresses this complaint, as does the evidence from the staff, which was that no incoming calls for prisoners are permitted.
[61] That a single page is missing does not necessarily imply anything sinister. After all, Ms Dunstan did not complain about her treatment until 2022, and the records go back several years. Approached the other way, Ms Dunstan’s incarceration at the centre is documented, and that documentation is unremarkable.
[62] Ms Dunstan also said it was significant that closed-circuit television footage from the centre is no longer available. This is because such footage is retained only for one month, unless a timely request is made to save it.12 No such request was made.
Summary
[63] Mr Dunstan was not in solitary confinement or deprived of food or sleep. A suitable breakfast was not available once or twice, through no fault of the Department. Ms Dunstan became sleep deprived, again through no fault of the Department. Ms Dunstan was not wrongly denied visitors, as her entitlement to a visitor had not crystallised. Ms Dunstan was not prevented from sending mail or making telephone calls, as the Department was not obliged to facilitate mail or calls beyond New Zealand. The Department has not concealed information about Ms Dunstan.
[64] All aspects of Ms Dunstan’s claim fail on the facts. Consequently, no question arises of torture; of cruel or degrading treatment; of a breach of statutory duty, of any claim in tort; or of consequential damage. I add this. Even if I had accepted Ms Dunstan’s evidence as reliable (which I do not), doubt attaches to whether it could sustain the pleaded claims given the very high threshold required for torture or cruel or degrading treatment;13 and the law in relation to the other claims.14
[65] This leaves my reasons for trial rulings, which I said would accompany the judgment.
12 Affirmation of Tara Helm dated 25 September 2023.
13 See Tanoa v Attorney-General, above n 7.
14 For example, see Harriman v Attorney-General [2015] NZHC 3197.
Trial rulings
[66] On the first day of trial, I set aside three subpoenas issued at Ms Dunstan’s request, one in relation to Jack Saju; a second in relation to Suzanne Steuart-Muirhead; and a third in relation to Paul Keegan.
[67] I set aside the first as the Department had said it was calling Mr Saju as a witness, in response to Ms Dunstan wanting him called. I made my ruling conditional on Mr Saju being called by the Department, which he was. Ms Dunstan cross-examined Mr Saju.
[68] I set aside the second and third subpoenas as I was satisfied neither proposed witness had relevant evidence to offer. A little history is needed. On 2 October 2023, Ms Dunstan filed an application concerning subpoenas in relation to “Susan Bennett” and Paul Keegan. Ms Dunstan believed “Susan Bennett” was the “Sue” who had thrown her mail back at her and taunted her. The application came before Fitzgerald J as Duty Judge. The Department explained to the Judge that no one called “Sue” worked at the centre while Ms Dunstan was there.15 The Judge declined to make any order in relation to “Susan Bennett” for this reason.16 The Judge allowed a subpoena to issue (in the usual way) in relation to Mr Keegan but noted the Department may seek to set it aside, which it later did.
[69] Immediately before trial, Ms Dunstan obtained a subpoena for Ms Steuart-Muirhead, on the basis she was “Sue”. In response, Ms Steuart-Muirhead swore an affidavit17 in which she explained she had never worked at the centre; indeed, that she had never been there. I, therefore, set aside the subpoena on application by the Department.
[70] Paul Keegan is a lawyer in New Plymouth. Ms Dunstan wanted Mr Keegan to testify to demonstrate (a) she should not have been remanded in custody; and (b) the warrant for her detention was invalid. Ms Dunstan said Mr Keegan could speak to
15 Shane Bennett did, and he testified. Mr Bennett is, obviously, male.
16 Fitzgerald J directed the Department to file an affidavit (or affirmation) confirming what she had been told. An affirmation of Emily Totman was later filed in accordance with the direction.
17 Dated 27 October 2023.
both aspects. I set aside Mr Keegan’s subpoena as Ms Dunstan’s claim did not allege false or wrongful imprisonment; rather, it alleged mistreatment during imprisonment. Ms Dunstan also said Mr Keegan’s potential testimony had “contextual relevance”. That could not be correct as Mr Keegan was not at the centre and played no role in Ms Dunstan’s incarceration, beyond perhaps, being duty solicitor at the New Plymouth District Court on 29 December 2018. I, therefore, also set aside that subpoena.
[71] On day two of the trial, Ms Dunstan invited me to revisit my determination in relation to Mr Keegan. Ms Dunstan also asked me to require the Department to call Helen Chitty as a witness. Ms Chitty was a Corrections officer at the centre when Ms Dunstan was there but had since left the Department. Ms Dunstan said Ms Chitty must be “Sue”.
[72] Ms Dunstan had, by then, alleged “Sue” was “Susan Bennett”, then Ms Steuart-Muirhead. Ms Dunstan had also cross-examined the Department’s witnesses about “Sue’s” appearance according to this description: mid to late fifties, short, reasonably stocky, with short blonde or grey hair. No one recognised anyone by that description. Ms Dunstan had also shown each of the witnesses an enlarged photograph of “Sue”, albeit wearing a mask, apparently taken from social media. No one recognised the person shown in the photograph.
[73] Against this background, I declined to require the Department to call Helen Chitty, even assuming such an order could be made. I also declined to draw an adverse inference in relation to Ms Chitty not being called by the Department.18 Either would have been contrary to the interests of justice, as Ms Dunstan had not raised the issue of Ms Chitty’s possible attendance until the weekend immediately before trial; Ms Chitty was no longer employed by the Department, “Sue” played a modest role in the alleged events; and real doubt attached to whether “Sue” existed.
18 Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731.
[74]I also declined to:
(a)Require the Department to answer Ms Dunstan’s questions about the selection of its witnesses. Quite apart from the question of jurisdiction, that was a matter for the Department.
(b)Revisit my determination in relation to Mr Keegan. Circumstances had not changed to permit that.
Result
[75]Ms Dunstan’s claim is dismissed.
Costs
[76] If the Department seeks costs, it should file and serve a submission of no more than eight pages on or before 2 February 2024; and Ms Dunstan should respond with a submission of not more than eight pages on or before 16 February 2024. I will then determine costs on the papers (as usually happens).
Postscript
[77] After the trial concluded, Ms Dunstan was banned (by another Judge) from commencing or continuing civil proceedings, absent permission from a Judge of this Court.19 I give Ms Dunstan permission to respond in relation to costs, if sought by the Department, in the manner identified at [76].
……………………………..
Downs J
19 Re Dunstan [2023] NZHC 3176.
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