Forrest v The Visiting Justice, Christchurch Prison HC Christchurch CIV 2010-409-975
[2010] NZHC 1084
•22 June 2010
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2010-409-000975
UNDER Sections 4 and 8 of the Judicature
Amendment Act 1972
BETWEEN BRENDON DOUGLAS FORREST Plaintiff
ANDTHE VISITING JUSTICE, CHRISTCHURCH PRISON First Defendant
ANDDEPARTMENT OF CORRECTIONS Second Defendant
Hearing: 22 June 2010 (by telephone) Appearances: Plaintiff in person
V Casey for Crown
Judgment: 22 June 2010
JUDGMENT OF HON. JUSTICE FRENCH
Introduction
[1] Mr Forrest is a prison inmate who is facing a number of disciplinary charges.
[2] He has filed judicial review proceedings challenging a decision made by a hearing adjudicator to refer the charges to a Visiting Justice. The statement of claim seeks various declarations and an order quashing the charges.
[3] Mr Forrest has now applied for an interim order to prevent the Visiting
Justice from proceeding to hear the charges until this Court determines the substantive judicial review proceedings.
FORREST V THE VISITING JUSTICE, CHRISTCHURCH PRISON AND ANOR HC CHCH CIV-2010-409-
000975 22 June 2010
Factual background
[4] During April 2010 Mr Forrest was charged with various disciplinary offences under s 128 of the Corrections Act 2004, namely damaging institutional property, being in possession of an article without the approval of an officer, and assault.
[5] Mr Forrest says he appeared before the prison’s hearing adjudicator. The statement of claim suggests there was only the one appearance. However Mr Forrest told me on the conference call this morning that there were in fact two appearances, the first being adjourned because of an ongoing internal investigation.
[6] In any event, at some point the hearing adjudicator decided to refer the case to a Visiting Justice for hearing and determination, rather than hear it himself.
[7] In making that decision, the hearing adjudicator was purporting to exercise his powers under s 134 of the Corrections Act, which provides as follows:
134 Decision as to who is to hear charge
(1)If a complaint alleging an offence against discipline is brought before a hearing adjudicator, the adjudicator may, at any time before making a decision as to whether the charge is proved, refer the case to a Visiting Justice for hearing and determination in accordance with section 137.
(2)A hearing adjudicator may exercise the powers conferred by subsection (1) only if the adjudicator considers—
(a)that the conduct that is alleged to constitute the offence may warrant a higher penalty than can be imposed by the adjudicator under section 133; or
(b)that, because of the complexity of the issues likely to arise (including, without limitation, points of law), it would be appropriate for the case to be referred to a Visiting Justice; or
(c) that both paragraphs (a) and (b) apply.
(3)If a hearing adjudicator exercises the powers conferred by subsection (1), the adjudicator must forward a summary of his or her reasons for the decision to the Visiting Justice.
[8] It is common ground that the reason the hearing adjudicator made the decision to refer the matter to a Visiting Justice was because of the seriousness of the allegations.
[9] The matter has yet to be heard by the Visiting Justice, although it is highly likely a hearing date will be set before these judicial review proceedings can be heard in the High Court.
[10] The statement of claim alleges the following grounds of judicial review:
i)The adjudicator failed to consider a request made by Mr Forrest for legal representation, thereby breaching the principles of natural justice. Mr Forrest submits that because he made an application for legal representation, the adjudicator was under a legal duty to consider and determine the application before making his referral decision.
ii) No reason exists to transfer the proceedings to the Visiting
Justice, and therefore the decision was unreasonable.
iii)Mr Forrest has not been given adequate time to prepare a proper defence to the charges.
iv)A strip search which led to discovery of evidence in respect of one of the charges was unauthorised and therefore a breach of s 21 of the New Zealand Bill of Rights Act 1990, rendering the evidence inadmissible.
[11] In support of his argument that the adjudicator was obliged to consider his request for legal representation, Mr Forrest relies on s135 of the Corrections Act. Section 135 states:
135 Applications for legal representation
(1)If a prisoner requests permission to be legally represented at the hearing of a charge alleging an offence against discipline, the request must be considered and determined by—
(a) a hearing adjudicator; or
(b) if the case has been referred to a Visiting Justice under section 134, a
Visiting Justice.
(2) In determining whether to grant permission to a prisoner to be legally represented, the hearing adjudicator or Visiting Justice must have regard to—
(a)the seriousness of the conduct that is alleged to constitute the offence and the magnitude of the penalty that is likely to be imposed:
(b) the complexity of the issues that are likely to arise at the hearing (including, without limitation, points of law):
(c)any procedural difficulties likely to be encountered (for example, the need to cross-examine witnesses):
(d)the capacity of the prisoner concerned to present his or her case effectively:
(e)the need for reasonable speed generally in decision-making required for the determination of charges relating to offences against discipline:
(f)the need to ensure that hearings of those charges are conducted fairly as between—
(i) different prisoners:
(ii) the complainant and the defendant:
(g) any other matter that the adjudicator considers relevant.
(3)If a request under subsection (1) is considered by a hearing adjudicator and the adjudicator permits the prisoner to be legally represented at the hearing, the adjudicator must refer the case to a Visiting Justice for hearing and determination in accordance with section 137.
(4)If the hearing adjudicator does not permit the prisoner to be legally represented, that hearing adjudicator or another hearing adjudicator must hear and determine the case in accordance with section 133, unless it is referred to a Visiting Justice under section 134.
(5)A hearing adjudicator or Visiting Justice must provide the prisoner and the prison manager with a summary in writing of his or her reasons for the decision to permit or, as the case may require, not to permit the prisoner to be legally represented.
Discussion
[12] Section 8 of the Judicature Amendment Act 1972 provides:
8 Interim orders
(1)Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:
(a)Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:
(b)Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:
...
(2)Where the Crown is the respondent (or one of the respondents) to the application for review the Court shall not have power to make any order against the Crown under paragraph (a) or paragraph (b) of this section; but, instead, in any such case the Court may, by interim order,—
(a)Declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:
(b)Declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.
(3)Any order under subsection (1) or subsection (2) of this section may be made subject to such terms and conditions as the Court thinks fit, and may be expressed to continue in force until the application for review is finally determined or until such other date, or the happening of such other event, as the Court may specify.
[13] It is well established that before a Court can make an interim order under s 8, it must be satisfied the order sought is reasonably necessary to preserve the position of the applicant. Even if that threshold 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 substantive claim and all the repercussions, public and private, of granting interim relief.
[14] Mr Forrest submits an interim order is necessary to protect his position. He contends his judicial review proceedings will be rendered pointless if in the meantime he has already been found guilty of the charges and served any penalty,
particularly in circumstances where unlike the High Court, a Visiting Justice does not have the power to make declarations under the Bill of Rights Act.
[15] I have carefully considered all of Mr Forrest’s submissions.
[16] However, I have decided that the application for interim orders should not be granted.
[17] I have come to that conclusion for the following reasons:
i)I am not satisfied that an interim order is necessary to preserve Mr Forrest’s position. No question of guilt or innocence has been addressed, and no evidence has been heard.
ii) Further, his substantive case is weak.
iii)Section 134 does not confer any right to a hearing prior to the adjudicator’s decision to transfer proceedings to the Visiting Justice: see Department of Corrections v Taylor [2009] NZCA
129 and [2009] NZSC 80.
iv)In my view, correctly interpreted s135 of the Corrections Act means that a request for legal representation is only required to be considered by a hearing adjudicator, if the adjudicator is going to be the one to determine the charge. There is no obligation on an adjudicator to consider a request for legal representation if the case is transferred to a Visiting Justice.
v)Any alleged failure to provide time to prepare a defence will be a consideration for the Visiting Justice.
vi)The seriousness of the charges was a proper ground for transferring the proceedings under s134, bearing as it does on penalty.
vii)The lawfulness or otherwise of the search, and the admissibility of the resulting evidence, is a question for the Visiting Justice.
viii)There is a significant public interest in an effective and speedy resolution of prison disciplinary charges. The granting of an interim order especially in circumstances where the substantive case is weak would be contrary to that public interest.
[18] For all these reasons, I am satisfied that Mr Forrest’s application for interim orders should not be granted.
[19] The application is accordingly dismissed.
[20] If there is any issue as to costs, counsel for the second defendant should file a memorandum, with Mr Forrest to have an opportunity to file submissions in reply within ten working days of receiving the Department’s memorandum.
Solicitors:
Crown Law Office, Wellington
Copy to Plaintiff
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