Genge v Chief Executive, Department of Corrections

[2017] NZHC 305

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-877 [2017] NZHC 305

IN THE MATTER OF

An application for judicial review

BETWEEN

RICHARD GENGE Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

First Respondent

ATTORNEY-GENERAL Second Respondent

Hearing:	7 December 2017
Counsel:	R Genge (self-represented) C A Griffin and R F Niven for First and Second Respondents
Judgment:	1 March 2017

INTERIM JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]      The applicant, Mr Genge, is serving a sentence of life imprisonment for murder imposed in 1997, with a non parole period of 15 years.  He was sentenced to concurrent terms of imprisonment for kidnapping and rape.

[2]      Mr Genge’s non parole period expired in or about September 2009 and he remains a prisoner.

[3]      In proceedings in this Court under CIV-2016-409-397 (“the substantive proceedings”),  Mr  Genge  alleges  that  his  rights  have  been  breached  by  the

respondents in a number of respects which affect his right to liberty. He pleads a

GENGE v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2017] NZHC 305 [1 March 2017]

breach of statutory duty, misfeasance in public office, and his arbitrary detention. He says that those breaches have the effect that he cannot and will not be granted parole. The substantive judicial review under CIV-2016-409-397 will be heard on

10 May 2017, and Mr Genge must prepare for that.

[4]      Mr  Genge  says  that  the  staff  employed  by  the  Chief  Executive  of  the Department of Corrections (“the Department”) are in breach of his rights under the International Covenant on Civil and Political Rights (“ICCPR”) and/or the first Optional Protocol to the International Covenant on Civil and Political Rights and in breach of the New Zealand Bill of Rights Act 1990 (“the NZBORA”).

[5]      The current proceedings, CIV-2016-409-877, are intermediate judicial review proceedings, for what Mr Genge says are decisions and circumstances put in place which  have  hampered  his  ability  to  prepare  for  the  substantive  proceedings. In particular,  these  concern  his  access  to  electronic  and  networked  methods  of research.

[6]      Mr Genge is concerned with his ability to properly mount the substantive proceedings,  because  he  is  representing  himself  and  is  subject  to  custodial restrictions, including the lack of internet access.  He has a longstanding view that his legal representation over time has been flawed or inadequate, and he has thus chosen to represent himself.  That is his right, but it comes up against the reality of his position that his application for internet access is made as a serving prisoner.

This application

[7]      In preparation for the substantive proceedings, Mr Genge wishes to consider

“International and European jurisprudence regarding arbitrary detention”.   To that end, he sought access to internet and computer facilities to assist his litigation in line with the Prison Service Operations Manual  (“the Manual”).   That request was declined by the Department, through the Prison Director, on 5 July 2016.

[8]      Mr Genge says that he sought access in line with F.07.01 of the Manual but that correct procedure was not followed by the Department.  Accordingly, he says that flawed procedure has resulted in multiple further breaches under the Corrections

Regulations 2005, the State Sector Act 1988, the NZBORA, and Article 14(1) of the

ICCPR.

[9]      Mr Genge says that he has been denied “equal standing” before the Court to bring this judicial review proceeding, and he has a reasonable expectation in law that he should have access  to a computer and the internet to pursue research as he chooses.  He says the response to his request has made it “almost impossible” for him to access relevant case law, while acknowledging that certain legal material has been made available to him and that there are other ways in which he has been offered assistance.

[10]     One further aspect of concern is where the research material to which he has access is to be stored when he does not have immediate access to it.  He has other issues  about  the  Department’s  employees  seeing  his  correspondence  which  is relevant to these proceedings.

[11]     Mr Genge’s grounds for relief in this application are breach of natural justice through the Department not following the Manual, denying him access to relevant case law, and thus denying him equal standing.  Overall, he says that the breaches meant that his right to self-representation has been “undermined”.   He pleads a mistake of fact in the denial of access to a computer, an error of law in the failure to follow the Manual and the Corrections Regulations 2005, and he says that there is a reasonable apprehension of bias, that the Prison Director may not have brought an impartial  mind  to  the  decision  denying  him  access  to  a  computer  while  he  is self-represented. He also says the Prison Director’s Decision was flawed and unreasonable in being reached before following the protocol in the Manual.

[12]     Mr Genge seeks a declaration that the Prison Director’s Decision is invalid, that it be quashed and that he be given access to a “computer laptop” at his own expense, to keep in a cell in line with the procedures set out in F.07.01 through to F.07.03 of the Manual.

[13]     He  seeks  an  order  that  he  be  allowed  access  to  a  telephone  at  staff convenience in line with prison procedure, and that he be present when staff (he names Mr Kahu), are photocopying or emailing documents for him.

Respondents’ position

[14]   The respondents plead that the Crown cannot be sued for breaches of international covenants for which there is no direct cause of action in New Zealand law.

[15]     The Department’s position is that prisoners are not permitted access to a personal computer with internet access, whether the request is considered under the F.07 policy or otherwise.  It says that reg 193 of the Corrections Regulations 2005, which concerns the provision of assistance to prisoners involved in criminal and certain immigration matters, does not apply to civil litigation by prisoners.   The F.07 policy, which implements reg 193, provides a discretion to assist prisoners with facilities for civil litigation.

[16]     The Department pleads that “Corrections Officers have attempted to assist the applicant with any reasonable request for assistance with his civil litigation within the natural and reasonable constraints of the prison environment”.  That has included locating and providing copies of requested legislative provisions and  potentially relevant case law on a staff computer.  The Department recognises that Mr Genge cannot be expected to identify specific cases by name or other identifying particulars because although arbitrary detention is his focus, his research inquiries are broader. Corrections Officers do not have the necessary skills to select legal resources, and the Department recognises the risk that unskilled searches may lead to the supply of incorrect or irrelevant information.

[17]     It also says that Mr Genge can seek civil legal aid and instruct a lawyer engaged to conduct legal research for him, or someone outside the prison, to conduct that research.  At a practical level, the Department says that there are physical limits on the amount of documentation that may be kept inside a prisoner’s  cell, and Mr Genge is allowed to keep more than the five ring binders while he has litigation on foot.

[18]     If the Court finds a reviewable error or errors of law, the Court is asked to exercise its discretion not to grant relief, because of the policy-driven general prohibition on a prisoner accessing the internet in prisons, and any reviewable error or errors of law can be remedied administratively.   The statement of defence recognised the argument that there have been procedural errors, but they have or can be fixed.

[19]     The Department’s position is that the arrangements made for Mr Genge so far have exceeded those usually available to prisoners in these circumstances, and that Mr Genge has been treated “generously”.

[20]     If the material that Mr Genge seeks is not available to the prison and is sought from the NZLS Library, then there is a cost involved which Mr Genge has not agreed to meet.

[21]     The Department says that the extent of independent and skilled legal research assistance given to Mr Genge, and its payment for that, means that Mr Genge’s application  for  judicial  review  should  be  dismissed  as  he  is  as  well  placed  to represent himself in the upcoming civil proceeding CIV-2016-409-397, as any other similarly situated prisoner, representing himself.

[22]     Ultimately, Mr Genge’s application, to which this judgment relates, comes up against the fundamental position taken by the Department as to internet access by prisoners in light of security considerations.

The evolution of this application

Minute of 16 November 2016

[23]     Dunningham J, by Minute of 16 November 2016, ordered by consent that research be undertaken, and research material be provided to Mr Genge reflecting New Zealand, UK, European Court of Human Rights and other jurisprudence, and commentary from the UN Human Rights Committee and the relevant articles of ICCPR.

[24]     Assistance was to be given pursuant to the New Zealand Law Society Library in Christchurch, with two hours of legal research in the first instance, with the costs falling to the Department.   The research was to cover legislation, case law and commentary from the last 10 years relating to arbitrary detention of prisoners.  The focus was the detention of prisoners past their parole eligibility dates, due at least in part to a lack of rehabilitation treatment or services being offered to, or completed by a prisoner seeking parole.

Hearing of 7 December 2016

[25]     At the hearing, the Department accepted an error was made by not providing Mr Genge with the relevant form to make his original request, notwithstanding the prohibition concerning internet access, so that the F.07 Policy was not applied as it should have been before his application was declined in July 2016.

[26]     However,  the  Department  had  already  gone  to  some  lengths  to  assist Mr Genge, providing stationery supplies and postage, sourcing requested legislation, and making attempts to search Judicial Decisions Online on a staff computer with Mr Genge.   It had arranged “legal calls”, photocopying, emailing of documents to court and counsel, and a departmental solicitor to visit Mr Genge to discuss possible assistance  in  arranging  for  a  search  of  international  jurisprudence.  Mr  Genge remained dissatisfied.

[27]     Having recognised the procedural error in processing Mr Genge’s application in the first place, the Department offered to start afresh.   The fresh Decision was made   on   9   November   2016   and,   following   Dunningham   J’s   Minute   of

16 November 2016, two hours research have been completed and the product of that provided to Mr Genge.  The Department agreed to fund a further two hours research into Canadian and Australian authorities for Mr Genge, and this task was expected to be completed by Christmas 2016.

The Regulatory scheme

[28]     Mr Genge’s argument that he should have access to computer facilities is in part based on reg 193 of the Corrections Regulations 2005, which reads:

193 Assistance with proceedings

(1)  This regulation applies to –

(a)     any prisoner who is appealing or applying for leave to appeal against any conviction, order, or sentence; and

(b)     any accused prisoner who is preparing his or her defence or plea in mitigation; and

(c)     any prisoner detained under the Immigration Act 2009 who is preparing for any process or proceeding under that Act.

(2) When a prisoner to whom this regulation applies is preparing an appeal, application, defence, or plea, or preparing for any proceeding under the immigration Act  2009,  the  manager  of  a  prison  must,  as  far  as  is reasonably practicable in the circumstances,

(a)     ensure that the prisoner is provided with adequate facilities to do so, to the extent that this is consistent with the maintenance of safety and security requirements; and

(b)     facilitate  contact  between  the  prisoner  and  any  adviser  or assistant (other than another prisoner) helping the prisoner to do so.

(Emphasis added)

[29]     The  reference  to  “adequacy  of  the  facilities”  is  set  against  a  consistent approach  taken  by  the  Department  to  the  maintenance  of  safety  and  security. Counsel Ms Griffin says, and I agree, that the terms of reg 193 do not require the Department to provide facilities to prisoners involved in civil litigation, nor in any event, do they establish entitlement to access a computer.   Where there is a “demonstrated  need”  for  access  which  cannot  be  met  by  other  means,  the Department has a discretion.

[30]     A prisoner may only be issued with and keep an item of property that is “authorised property”, as declared by rules made by the Department under s 45A of the Corrections Act 2004 (“the Act”).  The rules make no provision for a computer with internet capability.  There is room for an exception, but the Department says that is conditioned against access to the internet.

[31]     Under the Manual, P.05.Res.01 provides that an item that is prohibited under the Act and cannot be authorised is that which:

may be used to circumvent practices or procedures in the prison, including:

(a)       any electronic  device  (other  than  a  device  used to assist  with  a disability)  capable  of  transmitting sound,  computing information, functioning as a telephone (including a cellular or mobile telephone or any other means of communication) or communicating in any other way using any technology (including telecommunications, radio-communication, internet, broadcasting technology)...

[32]     This may cover the kind of computer appliance that Mr Genge seeks.

[33]     Under  the  Manual,  the  Prison  Director  must  consider  the  ability  of  the prisoner to access material by other means, for example through a lawyer, whether there are resources required in terms of staff time, and whether the prisoner will meet the costs.1

Readiness for the substantive proceeding

[34]     Matters  are  moving  towards  fixture.  The  respondents  served  discovery bundles on Mr Genge on 8 November 2016, some 200 documents which relate to the period between 2003-2016. The substantive proceedings contemplate a decade of prison decision making, and the respondents anticipated (but may have reviewed) filing four affidavits, including an affidavit of the Department’s principal psychologist.

[35]     Ms Griffin recognises that as Mr Genge is self-represented, and limited by the confines of the prison environment.  It is incumbent to ensure the proceeding is properly prepared for hearing.  She filed a further memorandum of 24 January 2017, which  addressed  the  legal  assistance  given  to  Mr  Genge  since  the  hearing  on

7 December 2016 and in particular, referred to computer access given to another prisoner, Mr Arthur William Taylor.

[36]     The memorandum refers to Mr Genge asking counsel to request the Law Library to include within its final two hours some research on “ex post facto” laws, which the Library agreed to do.  Mr Genge had been given a package of research

material just before Christmas, which was not given to Crown Law.

1      Prisons Operation Manual, F.07.03(3)(a)-(d).

[37]     Other requests made by Mr Genge, and acted on, include the provision of various statutes, copies of the Corrections Regulations 2005, Crimes Act 1961, and his unredacted early prison files.  Crown Law Office does not want to see material that Mr Genge is researching before his submissions are ready, but the index from the Law Library is available, so the Court could consider the adequacy of legal research assistance and facilities available to him now.  The adequacy of the research available and provided to Mr Genge is clearly relevant.

[38]     Mr Genge will likely have other research he wishes to undertake as his preparation develops.  Ms Griffin submits that he can provide search references to a community law centre and request copies, and he could ask a third party to assist him with searches of free legal databases.  He could ask a lawyer to act, if necessary pro bono, to source the materials he needs from library research.

[39]     Mr Arthur William Taylor’s access to research material was addressed by Allan J in Taylor v Chief Executive, Department of Corrections.2      Mr Taylor was given  access  to  various  electronic  resources  to   defend  himself  in  criminal proceedings, pursuant to his rights under s 24(d) of the NZBORA.  He was subject to strict terms and conditions of access to a computer and printer facilities, to defend the   criminal   proceedings,   which   conditions   I   do   not   repeat   here.      As   a

self-represented  criminal  defendant  he  needed  to  view  the  electronic  police disclosure and the decision to allow this was taken measured against serious security risks personal to Mr Taylor.  This was a privilege made available to Mr Taylor for limited periods, and for quite specific reasons.  Mr Taylor had no approval to access the internet, and there was concern that through illicit means he may do so via a modified prison computer and an unauthorised external device.   His research was conducted largely through third persons, and CDs were routinely inspected.  He had assistance from prosecution counsel and prison staff, access to legal text books and Brookers Law Partners’ material.   He was given access to a work room given the amount of paperwork, and during the proceedings he had access to a small computer suite at Auckland Prison during unlock hours.   The extent of access afforded to

Mr Taylor turned largely on the nature of his proceedings, and was heavily tailored

2      Taylor v Chief Executive of the Department of Corrections (No 2) HC Auckland

CIV-2011-404-3227, 5 August 2011.

and conditional by reference to Mr Taylor’s particular circumstances.    I do not consider that they demonstrate a warrant for the kind of access which Mr Genge seeks in his particular situation.

[40]     Mr Genge has now had his security classification changed to “low-medium” and has been moved to a lower security unit as of 10 January 2017.  The unit is open to the outdoors.  Prisoners eat in a dining room, and there is a hobby and recreation room, but no computer room.  He has longer hours of unlock, but he is unemployed and not currently on a programme.   Still, his new hours of unlock are 7.00am to

8.30am and from 11.00am until 9.15pm.  The previous restraints placed on him in the Rawhiti Unit are no longer in issue since his move to the Te Ahuhu Unit.

Discussion

[41]    I consider that the admitted deficiency in the procedure adopted by the Department has been cured by subsequent steps taken to furnish Mr Genge with the relevant material, and by the Department’s reconsideration following its initial decision to decline Mr Genge’s application.

[42]     To  mount  his  fundamental  case  which  relates  to  his  parole  eligibility, Mr Genge says he needs to access, of his own volition and in his own way, and confidential to him, all legal research which may assist his argument as it develops. For example, when this matter was heard on 7 December 2016, he was able to refer to cases which he had considered and their reference to other cases and authorities which he considers may be helpful to him.  He does not have to predict the utility of such further enquiries to make his case for this judgment, only that they may assist his cause.

[43]     Mr Genge’s point is that as he has chosen to be self-represented, which is his right, he should have access to all information which might be relevant to his cause, and he has been deprived that by internet access not being made available to him. Standing against that are underlying issues of prison security which the Court would not override without there being an injustice which could not be countenanced. The Court cannot, and should not, given the narrative of this particular issue, assume that

Mr Genge will not be able to access research material which could assist his argument.

[44]     There are practicalities  behind  the Department’s  position, principally and properly that of security.  An affidavit provided by Ms Williams for the Department traverses, in some detail, these security and public safety conditions.  I consider that Crown  Law,  through  Ms Griffin,  has  gone  to  considerable  lengths  to  try  to accommodate Mr Genge and his requests. Not only has research access to authority been facilitated, but Mr Genge is now in a lower security setting which gives him greater work opportunity.   That in itself, however, still does not answer his fundamental point that he should be able to undertake his own research.

[45]     It  is  not  clear  on  the  material  before  me  whether  Mr  Genge  has  made sufficient progress using the assistance given him to date.   I do not know what submissions he has been able to formulate, even in draft, towards the substantive judicial review hearing.  In other words, the efficacy of the research available is not before me, and if there are specific matters which Mr Genge wishes to pursue further, then the history of this litigation suggests that the Crown Law Office would assist as before, although I accept there will be limits.

[46]     All the suggestions put to me by Crown Law Office for a practical resolution of this are sound, namely that Mr Genge acquire the assistance of another person outside of the prison, for example, community law officers, or that he apply for legal aid.  He will not engage a lawyer, which presumably would be under legal aid, and that is his choice.  However, there are disadvantages that go with that.

[47]     The evidence before the Court demonstrates why the Department applies a security standard to a decision regarding use of the internet within the prison.  There is no such right of internet access, as a matter of course.  I have read the evidence in support of the Department’s position and the Court cannot gainsay those security considerations.

[48]     For the Department’s decision to be successfully challenged it must, in my view, be shown to be so unreasonable in the context of the case that the only course

properly available to it is to somehow make an exception for Mr Genge.  It is idle to canvas all the hypotheticals which might be so, but I am of the view that they do not apply  here,  at  least  on  the  evidence  currently  before  the  Court.  Mr Genge  has received a great deal of assistance, out of which he can make a case.  He has a high level of literacy, and he writes almost in a calligraphic hand, and puts his  case together with cogency. There is much evidence of that on the Court file.

[49]     The fundamental question is whether Mr Genge should have the unfettered access he seeks to follow a line of enquiry which suits him but which may yield nothing more than he has achieved to this point.  I consider that he should not, and that the Department did not act unreasonably or err in law in any way pleaded when it declined to give him such access.   The Department has shown itself willing to assist him, has made a change in his security classification, and co-operated with regard to the provision of research. On the evidence before me and the submissions made, I am sure that it will continue to do so if there is warrant for that.  I do not consider Mr Genge’s allegations of bias and partiality on the part of the Prison Directors, to be substantiated.   Far from exhibiting bias or a closed mind, the Department has gone above and beyond to assist and accommodate Mr Genge.  In these circumstances, it cannot be said that there is bias, actual or the perception of such.

[50]     The missing element for the purpose of final judgment on this application is that which Mr Genge has not found, and which may lie beyond his present reach simply because he does not know of it, or would flow from a line of enquiry he wishes  to  take,  but  is  not  made  available  to  him  with  the  assistance  of  the Department.  That remains to be seen, but can be addressed by the Court should it arise.  On the information before me, I can identify only the possibility of a gap.

[51]     Another  consideration  should  be  mentioned.    Mr  Genge  is  probably  not aware that there is an obligation on counsel to ensure the Court is fully informed of all authority relevant to the case, whether of assistance to a party’s argument, or that of an opposing party. Authority cannot simply be withheld because it does not assist the party’s case.  Thus, the Crown Law Office will have an obligation to provide the

Court with all information which may assist Mr Genge or otherwise, if he has not located such. This is another form of protection of Mr Genge’s position.

[52]     It follows that I find there are no grounds for judicial review made out, but the Court will be alert to an indication that Mr Genge has identified a line of research enquiry which he should be able to undertake.

[53]     This judgment is interim, so that any residual issue may be referred back to me, or the trial judge.  Costs are reserved, although that may be nugatory.

…………………………………..

Nicholas Davidson J

Copies to:

Mr Genge (self-represented) Crown Law, Wellington Charlotte Griffin, Wellington