Genge v Chief Executive of the Department of Corrections

[2025] NZHC 981

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-000477 [2025] NZHC 981

IN THE MATTER OF       An application for judicial review

BETWEEN  RICHARD GENGE

Applicant

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

First Respondent

AND  ATTORNEY-GENERAL

Second Respondent

Hearing:                   4 March 2025 Appearances:  Applicant in Person

W Taffs for Respondents

Judgment:                28 April 2025

JUDGMENT OF CULL J

[1]                 Richard Genge is serving a life sentence of imprisonment and is currently in the Kotuku Unit at Christchurch Men’s Prison. He seeks judicial review of decisions relating to a search of his cell, which culminated in disciplinary proceedings against him. During the search, Ara Poutama Aotearoa | Department of Corrections (Corrections) staff located two images: one pornographic and the other gang-related.1

[2]                 Mr Genge seeks declarations and orders quashing the decisions of the hearing adjudicator and claims damages including exemplary damages.

1       Ara Poutama Aotearoa | Department of Corrections and its Chief Executive are referred to as “Corrections” in this judgment.

GENGE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS and ATTORNEY- GENERAL[2025] NZHC 981 [28 April 2025]

[3]                 Corrections submit that this proceeding is an abuse of process and oppose the application for review.

Background

The search

[4]                 Following a tip-off that he had a knife or shank, the Site Emergency Response Team (SERT) removed Mr Genge from his cell on 17 May 2024. Unit officers then searched the cell.

[5]                 The search did not reveal a weapon. However, the officers located a folio of drawings. They considered two of the drawings inappropriate. Their evidence is that one drawing depicted a woman including “every part of her genitalia … [and] anus” whilst the other was of “a Mongrel Mob back patch”. Mr Genge accepts that the drawings belonged to him. He characterises the drawings as his “artwork”, noting that he gained his Diploma of Art and Creativity in December 2013. Following the subsequent disciplinary hearing, the drawings were destroyed.

Pre-hearing conduct

[6]                   The charging officer, Mr Sol, generated an incident report and a misconduct report. On 20 May 2024, Mr Genge was charged with a misconduct for possessing pornographic and gang-affiliated material, under s 128(1)(f) of the Corrections Act 2004 (the Act), which provides:2

128 Offences by prisoner

(1) Every prisoner (whether inside or outside a prison) commits an offence against discipline who—

…

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

[7]                 Corrections say that Mr Genge refused to sign an acknowledgement of service of the misconduct report and the document entitled ‘Notice to Prisoners Charged with

2      Corrections Act 2004, s 128(1)(f).

a Disciplinary Offence’, which explains the disciplinary process because the “last sentence of the report is incorrect”.3

[8]                 Mr Genge says he was not provided with any incident reports or a witness list prior to the disciplinary hearing. Mr Genge was stood down from his employment on pay pending the hearing.

Disciplinary hearing

[9]                 On 22 May 2024, the disciplinary hearing was held before an adjudicator, Mr McArdle, who is the Unit Manager of the Kotuku Unit. Mr Genge and Corrections differ in their accounts of the hearing.

[10]             Mr Genge maintains that in breach of his right to natural justice, he was not afforded the opportunity to call witnesses. Mr Genge’s version of the hearing is that he pleaded not guilty and the incident report was read. He was then found guilty after the adjudicator looked at the drawings. He maintains he did not have the opportunity to say anything further until after he was found guilty. Mr Genge says that he has not been given written notice of his right to appeal to date.

[11]Corrections submit that the hearing proceeded as follows:

(a)The proceeding was opened by reading the charge to the applicant. Mr Genge was asked whether he understood the charge and confirmed he did. He entered a plea of not guilty.

(b)Ms Thomson, the prosecutor, asked the adjudicator and Mr Genge whether the incident report could be read, instead of witnesses being called. Both agreed, and Ms Thomson had no concerns about Mr Genge’s understanding and consent. The incident report was then read and the applicant replied “yes” when asked if he agreed with the report.

3      Corrections’ evidence is that this was served on 20 May 2024.

(c)The drawings were produced and Mr Genge confirmed they belonged to him, noting that they were his “artwork”. Ms Thomson then asked Mr Genge if he had anything to say or evidence to give, and he reiterated that the drawings were his “artwork”. Corrections say that Mr Genge did not dispute the search or ask for witnesses to be called.

(d)The adjudicator, Mr McArdle, examined the drawings, entered them into evidence, and reconfirmed with Mr Genge that they were found in his cell. No dispute was raised about the search at this point.

(e)Mr McArdle indicated his view that the drawings were pornographic and gang-related, respectively. Mr Genge again contested the view that the former was pornographic, noting it was art. He stated he could draw what he wanted. Mr McArdle concurred but noted that if the drawings were inappropriate or unapproved, he may be charged with a misconduct.

(f)Mr McArdle found the charge proven and explained his reasons orally. He rejected Mr Genge’s explanation that the pornographic drawing was “artistic”.

(g)Mr McArdle then proceeded to sentence Mr Genge. As the matter was low level and Mr Genge had not received a misconduct since 2019, he was convicted and warned, without further penalty.

(h)Ms Thomson said she advised Mr Genge that he had the right to appeal. He indicated that he would consider doing so. Appeal forms were both available from Ms Thomson and within each unit. Corrections accepts that Mr Genge was not given written notice of his right to appeal, as he has claimed.

Decisions under review

[12]             Mr Genge seeks judicial review of the decisions made by Corrections on several grounds, including his legitimate expectation that the prescribed procedures

under the Corrections Regulations 2005 (the Regulations) and the Prison Operations Manual would be followed; that his right to natural justice to question witnesses was breached; that the hearing adjudicator was biased; that the removal of his rights was tainted by unreasonableness; and that Corrections staff acted with misfeasance in public office. He also alleges that the New Zealand Bill of Rights Act 1990 (BORA), the Act, the Regulations, the Prison Operations Manual and the Department of Corrections Code of Conduct have been breached by Corrections, in addition to breaches of the Universal Declaration of Human Rights (UDHR) and United Nations International Covenant on Civil and Political Rights (ICCPR).

[13]The following decisions are the subject of Mr Genge’s challenge:

(a)The search of his cell, including both the substantive decision to search the cell and the manner in which it was searched.

(b)The decision to stand him down from work pending the hearing.

(c)The procedure followed leading up to and during the hearing, including:

(i)the decision not to provide Mr Genge with the incident report;

(ii)the decision to have the hearing adjudicated by Mr Genge’s unit manager, which Mr Genge contends breaches the Regulations;4

(iii)Mr Genge’s inability to question witnesses: he maintains that none were present, he was not offered the chance to call witnesses, and he was not provided a witness list to fill out, in breach of the Prison Operations Manual;5 and

(iv)Being found guilty when the Prison Operations Manual had been breached (in particular, MC.03.03(4)), so that no evidence

4      Corrections Regulations 2005, sch 7, reg 4(a).

5      Prison Operations Manual, MC.02.03.

was heard by either party, which Mr Genge contends was an institutional abuse of power.6

(d)The finding that Mr Genge was guilty of misconduct, including the findings that:

(i)His drawings  were articles capable of being prohibited under  s 128(1)(f) under the Act;

(ii)The charge was permitted by the Prison Operations Manual, the Regulations or the Act;7 and

(iii)The first drawing was pornographic, a finding which he says breached his freedom of expression.

(e)The failure to give Mr Genge written notice of his right to appeal, in breach of reg 45 of the Regulations.

The legal context

[14]             This review challenges the lawfulness of decisions and procedure derived from the secondary and tertiary enactments of Corrections’ Authorised Property Rules and the Prison Operations Manual.8 It is therefore appropriate to have regard to the statutory purpose of the Act with the two competing principles— the maintenance of public safety and the fair treatment of prisoners:9

6        Principles guiding corrections system

(1)The principles that guide the operation of the corrections system are that—

(a)    the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:

6      Mr Genge cites Prison Operations Manual, MC.03.03(4) in his submissions for this point. He submits that Ms Thomson’s evidence misleads the Court by referring to MC.03.07(4), which he says was not enacted until 6 November 2024. He maintains that at the time, the relevant policy was MC.03.03(4).

7      Bill of Rights Act 1990, s 14.

8      Authorised Property Rules, dated 7 May 2024 and issued under Corrections Act 2004, s 45A.

9      Corrections Act 2004, s 6(1)(a) and (f).

…

(f)     the corrections system must ensure the fair treatment of persons under control or supervision by—

(i)providing those persons with information about the rules, obligations, and entitlements that affect them; and

(ii)ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:

[15]Both principles are relevant because s 6(2) provides:

(2)Persons who exercise powers and duties under this Act or any regulations made under this Act must take into account those principles set out in subsection (1) that are applicable (if any) so far as is practicable in the circumstances.

The prison disciplinary system

[16]             Prisoners are required to obey lawful orders, regulations, and prison rules.10 Mr Genge is ultimately challenging a disciplinary process and decision that found him in breach of that obligation.

[17]             The Act provides for a system of prison discipline separate from the criminal justice system with more lenient maximum penalties than the latter. As noted in Drew v Attorney-General, the disciplinary framework is a two-tier system, comprised of hearing adjudicators and “Visiting Justices”.11 Lower-level disciplinary proceedings are held before hearing adjudicators, who are department employees appointed under s 15 of the Act. Independent Visiting Justices are also appointed under s 19 of the Act. Mostly, although not exclusively, Visiting Justices consider prisoner appeals from hearing adjudicator findings.

[18]             In Genge v Visiting Justice, Christchurch Men’s Prison and Others, Gendall J set out the process for such disciplinary proceedings:12

10     Section 40, Corrections Regulations 2005, reg 150 and Genge v Visiting Justice, Christchurch Men’s Prison [2021] NZHC 1727 at [2].

11     Drew v Attorney-General, [2002] 1 NZLR 58 (CA) at [86]–[87], per McGrath J.

12     Genge v Visiting Justice, Christchurch Men’s Prison, above n 10Error! Bookmark not defined., a t [5].

[5] The Corrections Regulations 2005 specify the necessary procedure for disciplinary proceedings. The charge the prisoner faces must be read, and they must be asked to plead to it.13 If the prisoner pleads not guilty, both the prisoner and the prosecuting person must present their cases and be given the opportunity to call witnesses who may be cross-examined.14 The adjudicator must find the case made out beyond reasonable doubt before finding the prisoner guilty of the offence.15

The authorised property framework

[19]             Corrections’ authorised property framework is derived from s 43 of the Act, which provides:

43 Authorised Property

(1)   A prisoner may be issued with, or allowed to keep, authorised property subject to—

(a)    any condition set out in rules made under section 45A; and

(b)    any special conditions imposed by the prison manager relating to the use of the property; and

(c)    the condition described in section 44(1).

(2)   Despite subsection (1), the prison manager may refuse to issue or allow a prisoner to keep an item of property if he or she has reasonable grounds to believe that—

(a)  the item may be used to injure the prisoner or any other person, or to damage property; or

(b)   the item is a camera, tape recorder, or electronic device that may be used to record security features or actions in the prison; or

(c)  the item may be used to circumvent practices or procedures in the prison; or

(d)   the item has been obtained through coercion of a prisoner or as a result of other improper behaviour; or

(e)  the item is objectionable; or

(f)    the item may assist a prisoner to—

(i)  discover new methods of committing offences; or

(ii)  continue offending; or

(g)    the item may interfere with the effective management of the prison.

…

13     Corrections Regulations 2005, sch 7, cl 31.

14     Clause 32.

15     Clause 34.

[20]             Under s 45A(1), the Chief Executive “must, in respect of all corrections prisons, make rules declaring the items of property that prisoners may be issued with or allowed to keep”.16 The Chief Executive also may make rules imposing conditions that attach to such items.17

[21]             The rules governing the property permitted in prisons are contained in the Authorised Property Rules, which prescribe the property that prisoners are authorised to be issued with or to keep. The ‘Property’ section of the Prison Operations Manual, meanwhile, sets out the procedures related to receiving, categorising, issuing, storing, recording and authorising prisoner property.18

Issues

[22]             From the pleadings and the parties’ submissions, the following three principal issues can be consolidated and summarised as:

(a)whether, in convicting Mr Genge of the misconduct, Corrections (and its agents) directed itself properly in law and acted according to law.19

(b)whether there was a breach of natural justice, procedural impropriety or a breach of Mr Genge’s legitimate expectation of procedural fairness that led to or arose from the process resulting in his conviction.20

(c)whether Mr Genge’s application for judicial review is an abuse of process.

16     Corrections Act 2004, s 45A(1)(a).

17     Section 45A(1)(b).

18     Prison Operations Manual, P.01–P.11.

19  New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 678 as cited in Genge v Visiting Justice, Christchurch Men’s Prison, above n 10Error! Bookmark not defined., a t [9]. I consider that this encapsulates Mr Genge’s claims that Corrections erred in law, breached BORA, used its powers for an improper purpose, considered extraneous considerations, and reached an unreasonable conclusion in convicting him for the misconduct.

20 This incorporates Mr Genge’s arguments in respect of the failure to provide him with incident reports, the hearing adjudicator, witnesses and evidence, and failure to offer Mr Genge notice of his right to appeal.

Was the conviction for misconduct lawful?

[23]             Mr Genge submits that the adjudicator erred in law because there is no legal basis for the charge of misconduct. His reasons are:

(a)The article he possessed for the purposes of s 128(1)(f) of the Act was paper, purchased through the prison buy-up system, which requires the approval of prison officers and is not unlawful.

(b)If the images were pornographic and gang-related respectively, no rule prohibits his possession of them.

(c)Even if pornographic material is prohibited, he says that his “nude” drawing was “artwork”. Mr Genge relies on a decision of the Film and Literature Board of Review (the Bergman decision) concerning hentai cartoons21 and photographs, one of which displayed a female of ambiguous age, inserting a finger into her vagina. The Board considered the image should be unrestricted.22 Mr Genge submits, on this basis, that there are very few activities that are not protected within the ambit of freedom of expression. Further, he objects to the definition of pornography as any material depicting genitalia in P.05.02 of the Prison Operations Manual, as he says it relates exclusively to incoming property being received.

[24]             Mr Taffs for Corrections submits that Mr Genge’s first reason oversimplifies the rules governing property in prison as the prior approval of the paper is irrelevant. The misconduct did not relate to the paper itself but Mr Genge’s alteration of the paper beyond the parameters of its approval.

[25]             In response to Mr Genge’s second reason, Mr Taffs draws attention to the Authorised Property Rules, which detail the property that prisoners are allowed to

21     Hentai is a subgenre of anime and manga that is sexualised or sexually explicit.

22     Decision of the Film and Literature Board of Review (OFLC refs 20000307.000-.028 and 2000307.031-.041) at [89(b)] [Bergman].

keep.23 It follows that items not included in the enclosed schedules are not permitted.24 Pornography is not included in those schedules. Additionally, sch 1.3 expressly precludes “objectionable” books, magazines, and newspapers, including those which are “pornographic”. Schedule 4 provides that authorised clothing must “be of a neutral colour… not associated with a gang”.

[26]             Mr Taffs relies on P.05.02 of the Prison Operations Manual, which defines pornography within the prison environment, “as any material depicting genitalia”.25 In the same section, material is deemed objectionable including when it “describes, depicts, expresses or otherwise deals with matters… [including] gang insignia, gang related material”.26

[27]             Corrections submit that it is clear that pornographic and gang-related articles are not authorised and require an officer’s approval to possess them. One of the Corrections officers involved, Ms Willetts, explained that explicit material often leads to inappropriate comments toward female staff, and prohibiting gang-related articles helps keep inter-gang conflict at a low level.

[28]             As to Mr Genge’s characterisation of his drawing as artwork, Corrections submit that the Bergman decision is not relevant. Given the bespoke framework of the Corrections context, Corrections say that classification of hentai cartoons and photographs within the community under the Films, Videos and Publications Classification Act 1993 has no bearing on authorised property in prison.

[29]             Mr Taffs relies on the Court of Appeal decision in Hudson v Attorney-General, which considered the balance between the infringement on freedom of expression in restricting access to certain materials and the objectives served by the authorised property framework in prison.27 The Court held that s 43(2) of the Act, which empowers prison managers to restrict items of property, necessarily implies that prison

23     Authorised Property Rules, above n 8, issued under Corrections Act 2004, s 45A.

24     In support of this point, Corrections cite the explanatory note to the Authorised Property Rules, which do not comprise part of the rules themselves.

25     Prison Operations Manual, P05.02(1)(h).

26 P.05.02(1)(i)(ii).

27     Hudson v Attorney-General [2023] NZCA 653, [2024] 3 NZLR 745.

managers have the power to restrict prisoner rights, including freedom of expression.28 However, the Court declined to define “objectionable” for the purposes of s 43(2)(e).29 Mr Taffs submits that in a highly regulated environment, a heightened definition of objectionable is not required: “open to objection, undesirable, offensive, disapproved of” is appropriate.30

Discussion

The “article”

[30]             I accept Mr Taffs’ submission that it was open to Corrections to determine that an approved article can be altered by a prisoner beyond the scope of its approval. Under the Authorised Property Rules, prisoners are permitted various necessities that might be fashioned into a weapon.31 The initial approval of the article does not extend to altering its nature into a different, prohibited article. I therefore reject Mr Genge’s submission that Mr McArdle — and more generally, Corrections — erred in law by finding that the article was no longer the same as the pre-approved paper.

Is possessing a pornographic and/or gang-related article prohibited?

[31]             Mr Genge’s contention that neither “pornographic” nor “gang-related” articles were subject to a specific prohibition requires further analysis. Generally, ignorance of the law is not a defence and offences against the predecessor section to s 128(1)(f) were considered strict liability offences.32 However, the Act sets a clear directive that prisoners must be provided with “information about the rules, obligations and entitlements that affect them” as a prerequisite of fair treatment.33 Consequently, if a prohibition existed, the issue of whether Mr Genge had sufficient information about

28 At [57].

29     At [47]–[50].

30     Corrections cite the Shorter Oxford Dictionary for this definition.

31     Authorised Property Rules, above n 8.

32 Jackson v Attorney-General [2006] 2 NZLR 534 (HC) at [35] held, in relation to a misconduct charge under s 32(1)(g) of the Penal Institutions Act 1954 (which arose from the plaintiff being unaware he was in possession of cannabis), that an offence against that provision was to 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.”

33 Corrections Act 2004, s 6(1)(f).

the rules governing him is material to whether it was correct in law to charge and convict him under s 128(1)(f).

[32]             I consider that there were bans on pornography and gang-related material and that Mr Genge was sufficiently informed of them for the reasons that follow. First, Corrections are obliged to make rules declaring the items of property that prisoners may be allowed to keep and that duty is discharged by the promulgation of the Authorised Property Rules.34 While the Authorised Property Rules themselves contain relatively specific schedules (including property that can be issued and prison-owned property), I accept Mr Taffs’ submission that the only obligation on Corrections under s 45A is to declare “items of property that prisoners may be issued with or allowed to keep”.35 Parliament did not intend that Corrections should be required to specify the property that a prisoner is not allowed to keep, in order to preclude certain types of property in prison. I therefore do not accept Mr Genge’s submission that a specific prohibition on pornographic and gang-related material was required for the articles to be prohibited.

[33]             The “explanatory notes” — which are not a part of the Rules, but are a relevant extrinsic aid — assist in putting Mr Genge on notice of the boundaries of authorised property.36 The explanatory notes are particularly relevant to interpreting the property regime because, to the extent that prisoners are put on notice of the Authorised Property Rules, they must naturally also be aware of the explanatory notes that form part of the same document.37 The relevant parts of the notes provide as follows:

Note: This document includes explanatory “notes” which are not part of the rules being made by the Chief Executive under section 45A of the Corrections Act 2004 (“the Act”). The purpose of these notes is to point out: (i) relevant requirements that apply under the Act or the Corrections Regulations 2005 (“the Regulations”); and (ii) relevant Departmental policies.

General conditions and explanatory notes related to the issue and use of Authorised Property

34     Section 45A(1).

35     Section 45A(1).

36  Authorised Property Rules, above n 8, explanatory notes.  I consider this is analogous to referring to an explanatory note to a Bill in taking a purposive statutory interpretation approach: Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 364, 379.

37 In this way, the principle in the Corrections Act 2004, s 6(1)(f) is satisfied.

1.      Note that the following rules apply pursuant to section 45A of the Act.

Only   property   specified   in   the   schedules   contained   herein is

authorised property that prisoners may be issued with or be allowed

to keep in accordance with section 43 of the Act.   Prisoners may not

be issued with or allowed to keep any other property items.

2.      …

3.The fact that an item of property is authorised property does not mean a prisoner has the right to be issued with or allowed to keep, use or wear that property at any time. The issue and use of all property is conditional.

4.A prison manager will not issue or allow a prisoner to keep an item of property even if it qualifies as authorised property if:

a.the prison manager considers the item is likely to interfere with the security and good order of the prison (e.g. gang related

paraphernalia and any items with gang related colours, symbols
 or imagery);

b.the prison manager considers the item is likely to negatively affect the prisoner’s successful rehabilitation and reintegration; or

c.the item breaches any Act of Parliament or Regulations, Department of Corrections Policy, or restrictions imposed by other government organisations such as the Office of Film and Literature Classification.

…

(emphasis original, underlining added)

[34]             The explanatory notes therefore inform the purpose of the wider authorised property framework: only the items detailed are permitted in prisons. Mr Genge was on notice that articles not listed in the Authorised Property Rules were not permitted. The decision-maker, accordingly, cannot have erred in law by failing to require the existence of a positive ban on pornographic or gang-related material for the articles to be unauthorised. The charging provision, s 128(1)(f), affirms this by providing that the aspect of the possession of the article that makes it an offence is that it is possessed “without the approval of an officer”.38

[35]             Before me, the parties did not address whether “pornographic” and “gang- related” were conditions attaching to property governed by rules under s 45A(1)(b) of

38     Section 128(1)(f).

the Act, rather than items of property governed by rules under s 45A(1)(a). However, the conclusion would be the same: a condition attaching to articles of authorised property is that they are not permitted to be pornographic or gang-related, and Mr Genge was on notice of that.

[36]             Various references to such a condition lead me to this conclusion. Corrections rely on sch 1.3 of the Authorised Property Rules which expressly precludes “objectionable” books, magazines, and newspapers, including those which are “pornographic”. Schedule 1 is entitled “Property permitted on reception”, and sch 1.3 explicitly relates to “items [which] may be issued to [a] prisoner on reception”. Meanwhile, sch 4 provides that authorised clothing must “be of a neutral colour… not associated with a gang”. I consider that both references are relevant to whether Mr Genge was on notice that there was a condition attaching to authorised property, that it could not be “pornographic” and “gang-related”.

[37]             A further resource, linked within the Prison Operations Manual, is entitled “Items that are prohibited to be in the possession of or issued to prisoners (Prohibited Items)”. This document lists both “Posters, books, pictures etc. that is [sic] objectionable” and “Gang related paraphernalia”. The sole purpose of this document is to “emphasise that these items are not authorised property”, and the preface notes that it is not a complete list.39

[38]             Mr Taffs also refers to the definitions of ‘pornographic’ and ‘gang-related’ contained in P.05 of the Prison Operations Manual. P.05 relates to the procedures for adding property items to or removing property items from the Authorised Property Rules. The definitions of “pornography” and “material… considered objectionable” (including material which “describes, depicts, expresses, or otherwise deals with matters such as: … gang insignia, gang related material”) are contained within a list of considerations that the general manager custodial must consider when reviewing such an application.

[39]             While Mr Genge is correct that the purpose of this part of the Prison Operations Manual is relatively specific and the definitions are not included in the Authorised

39     Prison Operations Manual Resources, P.05.Res.01.

Property Rules themselves, they are contained in the Prison Operations Manual. Mr Taffs emphasises that both the Prison Operations Manual and Authorised Property Rules are readily available to prisoners and submits that it is well-known that prisoners are not allowed gang-related material or pornographic articles. Although there was no direct evidence to support this submission, reference was made during oral submissions to the express signage placed in the shared area of the prison cell blocks. In any event, the rules governing processes relating to property being received into the prison from visitors or from third parties, and property applications to the general custodial manager, exist in tandem with the rules that govern property within prisons. I consider Mr Genge had sufficient information that a condition of possessing property in prison was that it should not be “pornographic” or “gang-related”.

[40]             I therefore consider that the decision-maker did not err in law by finding that there was a legal basis for the misconduct. It was not necessary for Corrections to establish that a positive ban exists on gang-related or pornographic drawings to permit a charge for either under s 128(1)(f). Mr Genge was put on notice by virtue of gang- related and pornographic articles not being included within the Authorised Property Rules. This was reinforced by the various references to the condition that articles generally should not be pornographic or gang-related.

Was it correct in law to find that the image was pornographic and therefore unauthorised property?

[41]             The next issue raised by Mr Genge is that his allegedly pornographic drawing was not, in fact, pornographic. He says that it was incapable of being deemed unauthorised property, because it was his artwork. Relatedly, he submits that his freedom of expression was wrongfully limited by the finding that the drawing was pornographic.40 To illustrate this submission, Mr Genge produced copies of well- known nudes painted by famous well-respected artists. As a result of the destruction orders, Mr Genge’s drawing was not available.

[42]             As noted, in the Prison Operations Manual, “pornography” is defined as any material depicting genitalia.41 This is in addition to any material considered

40     Bill of Rights Act 1990, s 14.

41     Prison Operations Manual, P.05.02(1)(h).

objectionable.42 The evidence from the Corrections witnesses describes the drawing as pornographic. Ms Willetts says the completed drawing showed a woman in a naked state with her legs spread so every part of her genitalia was visible, including her anus. She considered the drawing was pornographic and degrading to women. The description of the drawing was confirmed by Ms Thomson and Mr Sol.

[43]             I consider the description of the drawing is captured by the ordinary meaning of the word “pornographic” and is beyond the scope of art designed to elicit purely ‘aesthetic’ feelings.43 Relevantly, Corrections did not charge or convict Mr Genge in respect of his other drawings, which were of the naked human form, but not as explicit.

[44]             Given my determination, it is not necessary to consider Corrections’ alternative submission that under s 43(2), a prison manager also has a wide-ranging discretion to refuse to allow a prisoner to keep an item of property if they have reasonable grounds to believe the item is “objectionable”.44 In the absence of a definition of ‘objectionable,’ a context specific assessment by Corrections will be required to determine whether material reaches the threshold required.45 This was not required here in light of the decision that the drawing was found to be pornographic.

Freedom of expression

[45]             Mr Genge is correct to submit that his right to freedom of expression is engaged by a rule or decision restricting his ability to create such drawings.46 Because there is no record of the hearing, it is unclear whether it was raised. Nevertheless, it is appropriate to have regard to the authorities on the right to freedom of expression under BORA.

[46]             In D (SC 31/2019) v New Zealand Police (which was applied in similar circumstances, in Hudson) Winkelmann CJ and O’Regan J determined that it is appropriate to balance the objectives of legislation against the level of intrusion into

42 P.05.02(1)(a).

43 The Oxford English Dictionary defines pornography as “The explicit description or exhibition of sexual subjects or activity in literature, painting, films, etc., in a manner intended to stimulate erotic rather than aesthetic feelings; printed or visual material containing this.”

44     Corrections Act 2004, s 43(2)(e).

45     e.g., Hudson v Attorney-General, above n 27, at [50].

46 As was found at [45].

the rights involved, when assessing whether an incursion on an applicant’s freedom of expression is demonstrably justified.47 The purposes of the relevant powers (to make rules declaring the items of property that prisoners may be allowed to keep under s 45A and to determine that property is unauthorised pursuant to those rules) are thus in issue.

[47]             The limit on Mr Genge’s freedom of expression was in this case prescribed by law. The purposes of the corrections system support this view. Section 5(1) of the Act provides that the purpose of the corrections system is to “improve public safety and contribute to the maintenance of a just society”.48 As Hinton J observed in Nuku v Chief Executive, Department of Corrections:49

[24]   The purpose and principles of the corrections system are set out at ss 5 and 6 of the Act. In particular, s 6(1)(a) provides:

(a)the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:

…

[25]   The scheme of the Act and the Regulations makes it clear that no prisoner has any absolute right of access to any item of property. Ellis J made a similar observation in Hudson v Attorney-General.

[26]    Section 43(1) of the Act, provides that prisoners may be issued with, or allowed to keep, authorised property, subject to the limits and conditions in the AP Rules and any special conditions imposed by the prison manager.

[27]    Section 43(2) of the Act then places significant qualifications on the possession of any authorised property. …

[28]    Regulation 33 of the Regulations provides that a manager of a prison may refuse under s 43(3) of the Act to allow a prisoner to keep any item of authorised property in certain circumstances. Those circumstances include an emergency in the prison; where prison security is threatened; or where the presence of an item in a shared cell threatens the safety or welfare of any prisoner in that cell.

[29]    To emphasise the fact that no right to property on the part of a prisoner is absolute, s 69(2) of the Act makes it clear that even those minimum entitlements which a prisoner has to a bed and bedding can be removed in certain circumstances, including an emergency or threats to security or safety.

47     D (SC 31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213 at [100]–[101] and

[108] as cited in Hudson v Attorney-General, above n 27, at [51].

48     Corrections Act 2006, s 5(1).

49     Nuku v Chief Executive, Department of Corrections [2018] NZHC 2549 at [24]–[31] (footnotes omitted).

[30]    The explanatory note to the AP Rules also makes it clear that the issue and use of all property is conditional and, even where an item qualifies as authorised property, a prison director is still entitled under circumstances outlined in the Act to refuse to allow a prisoner to keep it.

[31]    If corrections were prohibited from carrying out its functions in accordance with the Act and the Regulations, it would be acting inconsistently with the principle in s 6(1)(a) of the Act, which as noted provides that public safety is the paramount consideration.

[48]             I consider s 128(1)(f), the section under which Mr Genge was charged, affirms this point. There is an implied power to restrict prisoners’ rights, including the right to freedom of expression, insofar as they fall outside of the framework prescribing permissible property within prisons.

[49]             I deal then with the proportionality assessment of the decision to restrict Mr Genge’s right to create pornographic artwork. The value of this particular type of expression is low, compared with that which is political, intellectual and educational.50

[50]             Nevertheless, rights infringements, which are “not a necessary corollary of the conditions of imprisonment,” must be carefully evaluated, to establish whether the type of intrusion is justified.51 In Hudson, the Court of Appeal considered whether prisoners’ access to magazines that “included sexualised depictions of women” should be restricted under the authorised property framework.52 In deciding that the purported exercise of power under s 43(2) to restrict Mr Hudson’s access to such magazines as “objectionable” material was not demonstrably justified, the Court of Appeal expressly noted that in the magazines in question there was “no nudity and the content cannot be properly described as pornographic”.53 The Court concluded:54

[73] We emphasise too that the above analysis is specific to the magazines which were put before us in evidence and which, we were given to understand, are available on an unrestricted basis to the wider community. It will remain open for Corrections to establish in a future case that restricting access to different magazines, with different and more objectionable content, amounts to a demonstrably justified limit on a prisoner’s s 14 right to freedom of expression.

50     Hudson v Attorney-General, above n 27, at [64].

51 At [65].

52 At [67].

53 At [67].

54 At [73].

[51]             Where human rights are engaged in a penal context, prison authorities will be supervised intensively.55 However, the evidence before me from an experienced Corrections officer, Ms Willetts, is that:

7. In my experience, it is important to maintain discipline in a prison environment. There are rules which may at first instance appear to be restrictive. However, it is important to remember that in a prison environment what may seem like small lapses in discipline can become significant issues to the good order of the prison/Unit.

…

19.… Many of the prison staff in Christchurch Men’s Prison are female. Having this level of explicit material in a prison often results in gross comments towards female staff, particularly around lockup. Naked images are also sometimes put on the walls of prisoner’s cell [sic] which is also degrading. …

20.The Kotuku Unit has prisoners from a large number of different gangs. In the most part we do not have issues between inter-gang conflict. However, this is in part due to our rules around no gang insignia or iconography being permitted….

[52]             While I note that the Court in Hudson had a greater quantity of evidence (including specialist evidence) before it, which it did not consider sufficient to establish that banning the magazines in question was a justified limitation under s 5 of BORA, two differences are material here. First, unlike in Hudson, Ms Willetts gives direct evidence of the harassment of female staff which occurs, when pornographic images have circulated at Christchurch Men’s Prison. This is more direct evidence than the hypothesised risks advanced before the Court in Hudson.56

[53]               Further, unlike Hudson, where there was substitutable content freely available in the prison environment, pornographic material of the nature produced by Mr Genge is not available (except illicitly).57 I consider the totality of the evidence before me sufficiently demonstrates a causal nexus between access to pornography and the harm Corrections seeks to prevent in disallowing access to it in the prison environment.

55 At [63].

56 At [68].

57     Cf at [68], [70].

[54]             The degree of intrusion on Mr Genge’s freedom of expression was not significant. As noted, I understand that only one of several of Mr Genge’s drawings was destroyed, although various portrayed the human form.

[55]             On balance therefore, I find Corrections has discharged their burden of establishing that the exercise of power, which determined that Mr Genge’s drawing was pornographic (and therefore unauthorised property), represents a justified limit on Mr Genge’s s 14 right.58

Has there been a breach of natural justice?

[56]             Mr Genge has also raised various alleged procedural defects that he says either breached natural justice requirements or contravened procedural requirements in the Regulations and Prison Operations Manual. He maintains that he had both a legitimate expectation that procedural requirements would be correctly followed and that his right to natural justice under BORA should have been observed.59

[57]In particular, he cites the following issues:

(a)The search of his cell was an abuse of process;

(b)He was stood down from work inappropriately;

(c)He was not provided with the incident report;

(d)The appointment of Mr McArdle as adjudicator made the decision a biased one;

(e)He was unable to call witnesses and not provided with a witness list;

(f)No, or insufficient, evidence was presented; and

(g)He was not provided with written notice of his right to appeal.

58     Child Poverty Action Group Inc v Attorney-General [2013] NZCA 402, [2013] 3 NZLR 729 at

[91] as cited in Hudson v Attorney-General, above n 27, at [71].

59     Bill of Rights Act 1990, s 27(1).

The Search of the Cell

[58]             Mr Genge objects to the decision to search his cell. He says that the search arose from an abuse of process, because he had previously succeeded in having a rule of the Prison Director overturned.60 Mr Genge expresses cynicism that officers were looking through a paper folio for a weapon. He submits that this would breach the Corrections code of conduct, if the search was in fact a pretext.

[59]             Further, Mr Genge objects to the manner in which his cell was searched. He submits that having unit officers rather than SERT members conduct the search was unusual, particularly if they were looking for a weapon. He emphasises that SERT is a tactical response team and that its operational procedure and practice precludes unit staff from engaging in searches during its operations.

[60]             Corrections submit that Mr Genge’s narrative is misconceived. First, it was reasonable to mitigate the risk of a shank or knife in the prison environment by searching Mr Genge’s cell. Secondly, it was not unusual for Corrections staff to have searched for a bladed weapon between sheets of paper, given the need to be thorough to combat inventive concealment of weapons. Thirdly, the search was undertaken consistently with SERT policy, and an officer may search a prisoner’s cell at any time for the purpose of detecting any unauthorised item under s 98 of the Act.61 Even if a breach of SERT policy existed, the respondents submit that it was plainly not in bad faith, as SERT had already searched a number of cells that day. Corrections say that there is no evidence of unprofessional conduct related to the search by Corrections staff.

[61]             It is coincidental that a previous proceeding brought by Mr Genge, which resulted in the revocation of the relevant prison rule, relatively proximately precipitated the search of his cell. On the information before me, however, I cannot take this point further and accept Mr Taffs’ submission that it is reasonable to mitigate the risk of a shank or knife in the prison environment by conducting a search.

60     Genge v Prison Director, Christchurch Men’s Prison and Others HC Christchurch (CIV-2024- 409-17), 6 March 2024 at [3].

61     Corrections Act 2004, s 98.

[62]             Corrections have been unable to produce the SERT policy with which they assert the search was compliant. This is concerning. Corrections’ lack of records should not operate against Mr Genge’s claim.62 However, I do not consider that Mr Genge has been able to adduce convincing evidence that the search was an abuse of power, as his submission rests on his own contention that the approach taken was abnormal.

[63]             Even if he had done so, Corrections have rebutted any such evidence by offering cogent affidavit evidence, explaining the choices underpinning the search. In particular, Ms Willetts’ evidence is that:

9.On 17 May 2024 Mr Genge’s cell was searched. This happened after an anonymous tipoff had been received that Mr Genge had some sort of knife or shank hidden in his cell.

10.Every day cells are searched within the Unit. Three cells and two common areas are chosen to be searched. Which cells and areas are to be searched is determined by a computer programme so that they are random. We do not have influence in which cells are searched on a daily basis.

11.Search of prisoners’ cells is important. It is an ongoing struggle to ensure that contraband is not within the prison. Contraband can include a number of different items ranging from tobacco, controlled drugs, tattoo guns, and weapons. Each of these poses risks to the good order of the prison and also to the safety of prisoners and staff.

12.In my experience, prisoners are very inventive in where they hide these items. They are often found in very unexpected places. As a result, a thorough search is required to be confident that contraband is actually found.

13.In [sic] 17 May 2024 the Site Emergency Response Team (“SERT”) arrived in the Unit.  They were searching a number of cells that day.  I cannot remember exactly how many they searched but it would have been between about six and 10. This was in addition to the usual daily randomised searches.

14.Because of the number of cells which were to be searched, Unit staff, including myself and [Mr] Sol searched Mr Genge’s cell as tasked by the SERT team who were running the operation in the unit. Any officer is able to search a cell, irrespective of their rank….

62     Taylor v Attorney-General (No 3) [2022] NZHC 3170 at [304] and Mitchell v Attorney-General

[2025] NZHC 172 at [46].

[64]             Accordingly, I reject Mr Genge’s submission that the search of his cell was an abuse of process, on the evidence before me.

Standing Mr Genge down from work

[65]             In his submissions of 27 August 2024, Mr Genge objects to being stood down from work. His evidence is that servery workers like himself are unlocked an hour prior to other workers, meaning he was detained in his cell an hour longer (until unit unlock at 9.00am) as a result of this decision. He maintains that this constitutes a punishment and breaches MC.03(3)(a) of the Prison Operations Manual, which provides:

3If a prisoner is charged with a disciplinary offence and is awaiting hearing the prisoner:

a.retains the minimum entitlements referred to in [section 69 of the Corrections Act 2004] and the prisoner must not be punished at any time before the disciplinary hearing has concluded

[66]             Mr Taffs submits that standing Mr Genge down from his cell was not a punishment. He says that, in fact, this policy was analogous to any suspension from work pending investigation. I do not have any further evidence from Corrections before me about the basis on which this decision was made.

[67]             However, the decision to stand Mr Genge down did not interfere with any of the minimum entitlements referred to in s 69 of the Act. These entitlements are to physical exercise, a bed and bedding, food and drink, access to private visitors, access to statutory visitors and specified visitors, access to legal advisers, to receive medical treatment, to send and receive mail, to make outgoing calls, to exercise any right conferred by regulations under the Act to communicate, and to information and education.63

[68]             The question, therefore, is whether standing Mr Genge down from work, including the requirement that he remain in his cell for an extra hour, constituted ‘punishment’. I do not consider that the argument that the later cell unlock time

63     The scope and manner of exercise of these entitlements is further detailed by the Corrections Act 2004, ss 70–78; and Corrections Regulations 2005, regs 71–117.

constituted “punishment” is a tenable one. As the Court of Appeal noted in Taylor v Chief Executive of Department of Corrections, I should be cautious in overreaching in respect of matters relating to the security and good order of a prison.64 Taking Mr Genge’s view that the later release time was “punishment” to its logical extension, it would apply to every prisoner who is not a servery worker. This is not a tenable interpretation. Clearly, this policy is a prerequisite of running the prison efficiently, where a prisoner is not engaged in work requiring an earlier unlock time.

[69]             The issue of whether the decision to stand Mr Genge down from work constituted punishment is more complex. In McEwen v Spring Hill Corrections Facility, Department of Corrections, the Court considered the argument that a formal process should be followed before accommodation and working arrangements were altered to the detriment of a prisoner, following a charge of misconduct.65 In that case, Mr McEwen was stood down (pending a disciplinary hearing) and eventually dismissed from his employment, and removed from an internal self-care unit because a plug of tobacco was located in his room. There was a real risk that these decisions could impact Mr McEwen’s appearance before the Parole Board, as it was directly material to his efforts toward rehabilitation and reintegration into the community. On the facts, Van Bohemen J concluded:66

[91] … I am satisfied that, while the prison authorities had the power to remove Mr McEwen from the self‐care unit and to terminate his employment at the light engineering workshop, in taking those decisions they did not take account of the principle in s 6(1)(f) that the corrections system must ensure Mr McEwen’s fair treatment by ensuring that decisions about him were taken in a fair and reasonable way and, accordingly, did not comply with the principles of natural justice. To that extent, I uphold Mr McEwen’s complaint against the Department of Corrections.

[70]             Even in the more extreme circumstances of that case, the only relief granted was a declaration for the Parole Board’s benefit that the requirements of natural justice had not been observed. The Court found:

64     Taylor v Chief Executive of Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [89].

65     McEwen v Spring Hill Corrections Facility, Department of Corrections [2020] NZHC 724.

66 At [91].

(a)Work opportunities are not one of the privileges that may be lost or suspended through penalties imposed under s 133, when a hearing adjudicator determines that a disciplinary offence is proved.67

(b)Except as provided in pt 5A of the Regulations which relates to the prisoner placement system, the work a prisoner undertakes falls within the broad powers of the Chief Executive and prison managers.68 The only mandatory requirements in respect of those decisions relate to the type of work offered and the nature of the work a prisoner can be directed to perform.69

(c)Under the current provisions:70

no prisoner has a right to any particular form of activity to promote  his  or  her  rehabilitation  or  reintegration,  including work opportunities. That conclusion is reinforced by s 82B, which applies to opportunities and programmes as well as accommodation, and makes it clear that a prisoner has no legitimate expectation of being provided with the same or similar opportunities or programmes throughout the whole terms of his or her sentence. Much is left to the discretion of the Chief Executive and prison managers.

[71]             The Court in McEwen held that prison authorities have the power to terminate a prisoner’s employment, without that constituting a pre-emptive punishment.71 I reject Mr Genge’s submissions that being stood down from work constitutes a punishment, particularly as he was still receiving his salary.

Incident Report

[72]             Mr Genge submits that because he was not offered the incident report, the process breached MC.02.03(1) of the Prison Operations Manual, as well as the Regulations. MC.02.03(1) provides:

1.    Prisoners should be given copies of any incident reports or other prison reports that are relevant to their case and will be presented

67 Corrections Regulations 2005, reg 158 as cited at [47].

68 At [50].

69 At [52].

70 At [54].

71 At [91].

as evidence* by Custodial Services. This should be done subject to the requires of the [Privacy Act 2020]. Consultation must occur prior to the release of any intelligence reports including with the manager regional intelligence of the originating unit.

2.    The [MC.02.Form.01 Witness] must be made available to the prisoner upon request, this form can be issued by any officer.

* See [Corrections Act 2004 Section 121 Notice to be given of intention to produce evidence of recording].

[73]Meanwhile, reg 6 of sch 7 of the Regulations provides:

6 A charge in respect of a disciplinary offence is laid when a staff member gives the prisoner who is the subject of the charge a written notice that includes the following:

(a)a description of the incident or circumstances giving rise to the alleged offence:

(b)a statement of the provision under which the prisoner is charged.

[74]             I accept that the failure to provide Mr Genge with an incident report was in breach of both the Regulations and the Prison Operations Manual. Additionally, as a matter of natural justice, Mr Genge should have been given a copy of the incident report in advance of the hearing. This goes to the heart of the natural justice requirement that, in the context of a disciplinary proceeding, Mr Genge must be given notice of the allegations against him and have sufficient opportunity to prepare a response.72 This requirement is reflected in the Prison Operations Manual excerpt above. A failure to disclose all relevant evidential material is a prima facie breach of the requirements of procedural fairness.73

[75]             Nevertheless, a breach of a mandatory procedural requirement is not always decisive.74 In the Corrections context, this Court has held that “minor transgressions

72 Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 727; Murdoch v New Zealand Milk Board [1982] 2 NZLR 108 (HC) at 114–117; and Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 14, 16 as cited in Philip A. Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, 2021) at [25.4.1].

73  Rich v Christchurch Girls’ High School Board of Governors (No 1) [1974] 1 NZLR 1 (CA) at 9, 11.

74 Hill v Wellington Transport District Licensing Authority [1984] 2 NZLR 314 at 318. See also Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459 at [131].

or failure to comply with the requirements in the Corrections Regulations will not necessarily be sufficient to set aside a decision in the prison disciplinary context”.75

[76]             The evidence before me is that Mr Genge was provided a misconduct report and a document entitled “Notice to Prisoners Charged with Disciplinary Offence” on 20 May 2024, explaining the disciplinary process. A document entitled “Prisoner Misconduct Acknowledgement Form” is appended to Ms Thomson’s affidavit and annotated with the comment “Prisoner refused to sign stating the last sentence of the report is incorrect”. The substance of the misconduct report and incident report is nearly identical. Further, Ms Thomson’s evidence is that Mr Genge consented to the reading of the incident report at the hearing.

[77]             The procedure adopted by Corrections could and should have been better to ensure that Mr Genge was provided with all of the material relevant to the hearing in advance. However, I consider that the defect was cured when he was provided with another report containing the same information namely, the misconduct report, in advance of the proceeding.

The adjudicator

[78]             Mr Genge objects to the appointment of Mr McArdle as the adjudicator of the hearing. He contends that this breaches reg 4(a) of sch 7 of the Regulations, which provides:

4A hearing adjudicator may conduct a disciplinary hearing if, and only if, he or she—

a.does not have direct responsibility for the day-to-day management of the prisoner charged with the disciplinary offence concerned; and

[79]             Mr Genge submits that, as Mr McArdle manages his unit, he has direct responsibility for managing him.

75     Shaw v Attorney-General (No 2) [2003] NZAR 216 (HC) as cited in Taylor v Visiting Justice at Auckland Prison [2008] NZAR 613 (HC) at [34].

[80]             Corrections submit that there is no breach of regulation 4. Mr McArdle is a residential manager of three units, who does not have direct responsibility for the day- to-day management of Mr Genge. Each unit is operated by a Principal Corrections Officer, under whom Senior Corrections and Corrections Officers engage with prisoners.

[81]             I am satisfied that there has been no breach of cl 4 and that Mr McArdle’s role as adjudicator did not bias the proceeding. The account of the arrangement advanced by Corrections is consistent with previous judicial interpretations of the meaning of “day-to-day management” for the purposes of the same clause.76 Ultimately, there are two layers of direct management of Mr Genge below Mr McArdle, meaning that he does not fall within the category of management envisaged by that clause.

Witnesses

[82]             Corrections submit that Mr Genge’s further objections to the procedure of the hearing largely rest on a factual dispute, which cannot be resolved on the current state of the evidence.

[83]             Mr Genge takes issue with the availability of witnesses at the hearing and his ability to call them, claiming he was not provided with a witness list. He notes that he anticipated that the charging officer would attend. He says that the charging officer’s absence was contrary to reg 32(b) of sch 7 of the Regulations, which provides:

32       If the prisoner pleads not guilty,—

…

(b)the prisoner must be given the opportunity to present his or her case and to call witnesses on his or her behalf…

[84]             Further, Mr Genge submits that MC.03.03(7) was contravened when no witnesses were afforded to him, as this provision provides that “The prisoner may give evidence, and/or call witnesses”. Additionally, on this point, he suggests that the hearing should have been adjourned, under MC.03.04 of the Prison Operations Manual, which provides that:

76     Mitchell v Chief Executive Officer, Department of Corrections [2014] NZHC 1860 at [33], [35].

1. A person who is holding a disciplinary hearing must adjourn the hearing if:

…

b.he or she is satisfied that a material witness is not available to evidence at the disciplinary hearing

[85]             Mr Genge maintains that the charging officer was a material witness. He says that his absence displayed bias in the process and defied natural justice. He submits that the principles in s 6 of the Act (requiring fair treatment of those under central supervision and that sentences must not be administered more restrictively than is reasonably necessary) have been breached for the reasons listed above.77 He says that these principles were mandatory considerations, as prescribed by statute, requiring due deliberation by the decision-maker.78

[86]             Corrections respond that Mr Sol’s attendance at the disciplinary hearing was not required, particularly as Mr Genge confirmed to the adjudicator and prosecutor that witnesses were not required. Because Mr Genge accepted that the drawings were his, Corrections say that there was little benefit to calling witnesses in this case. However, Corrections note that if Mr Genge asked to adjourn the proceeding to call witnesses, that adjournment would have been granted as a matter of policy. Corrections emphasise that the facts are often agreed between parties without witnesses or evidence being required in various kinds of proceedings, meaning that this process is not inherently offensive.

[87]             Additionally, Corrections note that Mr Genge has confirmed for the purposes of this proceeding that he does not intend to seek leave to cross-examine any witness. Therefore, to the extent that the procedural issues turn on disputed facts, the respondent contends that Ms Thomson’s account should be preferred, as she is an experienced prosecutor who lacks a reason to hold hostility toward Mr Genge.

[88]             I accept that this is, in essence, a factual dispute that is inappropriate for judicial review.79 On the limited evidence before me, however, I consider that Mr Genge’s

77     Corrections Act 2004, s 6(1)(f) and (g).

78     Joseph, above n 72, at [23.2.3(5)].

79     See a similar discussion in Genge v Chief Executive of the Department of Corrections [2018] NZHC 1827 at [84].

claims in respect of his right to call witnesses do not hold weight. His position is contrary to the prosecutor’s account of the hearing and contrary to the existing policy on the right to call witnesses. Ms Thomson’s evidence is that:

41.     I am aware that Mr Genge has indicated he was not provided with the opportunity to call witnesses or have them called by the prosecution. This is not correct. At no time did Mr Genge make any request of myself to have any witnesses called or indicate that he wanted any called by the prosecution. In particular, he did not indicate that he wanted [Mr] Sol called as a witness. Mr GENGE [sic] was also served with MC.01.Form 2 (exhibit 2) on 20.5.24. Note the witness paragraph (page 2) Notice must be given to unit in advance if a witness is required. In this instance staff would have complete MC.02.Form 01 – Witness request form, (exhibit 8). [sic] which would then be forwarded to Prosecutions. This was not forthcoming prior to the hearing.

42.     I am aware that Mr Genge has deposed that Mr McArdle asked whether Mr Sol would be attending and that I said that he was “on his way”. I do not have any recollection of this and had not expected Mr Sol to attend unless required.

43.   It is common for disciplinary hearings to be adjourned if a prisoner requests a witness to be made available. No request was made in this case and I have no doubt that the hearing would be adjourned if he had in fact made such a request.

[89]             I therefore do not accept that Mr Genge’s legitimate expectation or right to natural justice was contravened by the inability to call witnesses that he alleges.

Sufficiency of evidence

[90]             In respect of the sufficiency of the evidence advanced to prove the misconduct charge, Mr Genge appends to his affidavit the version of MC.03.03(4) of the Prison Operations Manual that he says was in effect at the time of the hearing as follows:

If the prisoner pleads not guilty, the prosecuting officer calls evidence to prove the charge. The evidence is presented in the form of sworn statements or oral evidence from the prosecution. (Note that incident reports are not sworn statements, so if a charge is defended, they are not sufficient to prove the prosecution’s case). underline added.

[91]             Mr Genge notes, and Corrections accept, that the burden of proof at a disciplinary hearing is beyond reasonable doubt under the Regulations.80 Given that only the report was read, Mr Genge submits that this threshold cannot have been met.

80     Corrections Regulations 2005, sch 7, reg 33.

[92]             However, the version of the Prison Operations Manual, as at 1 April 2024, provided by the respondents suggests that MC.03.03(4) in fact provided:

If the prisoner pleads not guilty, the prosecuting officer calls evidence to prove the charge. The evidence is presented in the form of statements or oral evidence from prosecution.

Note: Incident reports are a statement of facts, so if a charge is defended they are sufficient to prove the prosecution's case if all parties agree and the prisoner has no questions of the evidence provided.

[93]             Meanwhile, Corrections says that the hearing proceeded consistently with the Prison Operations Manual, given the applicant’s consent to accept the facts contained in the report.

[94]             I accept Corrections’ submission that the use of the incident report at the hearing was not in breach of the operative version MC.03.03(4). Web archives corroborate that Corrections’ version was the applicable wording of MC.03.03(4) during the relevant period.

[95]             Ms Thomson’s evidence about the process followed at the hearing additionally is that:

12.I then requested of the adjudicator and Mr Genge whether the searching officer’s incident report could be read instead of witnesses being called. …

13.Mr Genge agreed. He responded promptly, to this request, stating ‘yes’. Mr Genge is familiar with the misconduct system and how these hearings work. I do not believe his consent for this was improperly given.

[96]             On the evidence, the decision to accept the incident report as the form of evidence adduced, in addition to the drawings themselves, was not a procedural defect. The evidence advanced was to the requisite standard to prove the misconduct charge beyond reasonable doubt.

Notice of appeal

[97]             Mr Genge also notes that he was not given written notice of his right to appeal to a Visiting Justice, as required under reg 45. Regulation 45 of sch 7 provides:81

45 A hearing adjudicator who finds a prisoner guilty of a disciplinary offence must promptly give the prisoner written notice of his or her right to request that the decision be referred by way of appeal to a Visiting Justice under section 136 of the Act.

[98]Corrections accept that the requirement under reg 45 was not fulfilled.

[99]             The request to appeal the decision of a hearing adjudicator must be made by a prisoner, no later than 14 days after the date of the decision.82 Mr Genge’s right to appeal has therefore lapsed.

[100]         It is clear that Mr Genge was not provided with MC.04.Form.01, which is the form prisoners are required to fill out if they wish to give notice of their appeal. However, Ms Thomson’s evidence is that he was served with MC.01.Form.02, which is the ‘Notice to Prisoners Charged with a Disciplinary Offence’. This document includes the following passage:

After the Hearing:

After the hearing you will be given a copy of the finding, reasons for it and penalty imposed. You will also be advised of any right of appeal that you have if you are not satisfied with the decision made.

Any penalty imposed by the Hearing Adjudicator will start immediately following the hearing. The penalty will be suspended when you provide a written request to appeal the decision of the Visiting Justice.

[101]         This passage can be taken to both affirm Mr Genge’s legitimate expectation that he would separately be advised of a right to appeal after the hearing and to put him on notice of his right to appeal more generally.

81     Corrections Regulations 2005, sch 7, reg 45.

82     Corrections Act 2004, s 136(1).

[102]         Ms Thomson’s evidence is that she verbally informed Mr Genge of his right to appeal the conviction and/or penalty. In particular, she documents an exchange during which she asked:

32.… “you do have the right to appeal this conviction and or [sic] penalty, do you wish to appeal today?”

33.Mr Genge replied to me that he would “think about it”. This conversation took place in the hearing room and Mr Genge was then escorted away from the hearing room venue.

34.I took this to mean that he was thinking about whether he would appeal. Prosecutors have written appeal forms with them during hearings. The practice is to assist a prisoner to complete the form immediately if they wish to appeal.

35.Otherwise, prisoners have 14 days in which to appeal and appeal forms are available in each unit. …

[103]         Mr McArdle was under an obligation to provide Mr Genge with written notice of his right to appeal, under reg 45. The failure to provide Mr Genge with written notice of his right to appeal was a procedural defect. As this Court has held, “[N]otice of the effect of failing to meet the [prescribed] period is directly linked to the … right to be heard”.83 I do not consider that the forms being generally available in the unit is sufficient to meet the requirement of reg 45.

[104]         However, no amount of rule formalism can override the context of this judicial review application and that minor transgressions or failure to comply with the Regulations will not always be sufficient to merit setting aside the decision.84 In these circumstances, I consider that the failure to provide Mr Genge with his written notice of appeal was, at most, a technical defect. First, Mr Genge is an experienced and frequent litigant.85 He has brought various applications for judicial review against Corrections and has had one such application struck out on the basis that he did not follow the appropriate appeal pathway prior to seeking to judicially review the decision.86 He has also utilised the right of appeal to a Visiting Justice previously.87

83     Combined Beneficiaries Union v Auckland City COGS Commission [2008] NZAR 546 (HC) at

[36] as cited in Joseph, above n 72, at [25.4.1].

84     Joseph, above n 72, at [22.4.3] and Shaw v Attorney-General (No 2), above n 75.

85     Genge v Visiting Justice, Christchurch Men’s Prison [2022] NZHC 2925 at [10], per Gendall J.

86     Genge v Chief Executive of the Department of Corrections, above n 79, at [84]–[86].

87     See for example Genge v Visiting Justice Christchurch Men’s Prison [2017] NZHC 2936.

[105]         Second, while the obligation to provide Mr Genge with written notice of his right to appeal was not fulfilled, I accept that he was given notice of his right to appeal orally. Ms Thomson’s evidence on this point is cogent. Her evidence was not challenged and I note that the obligation to provide notice was not hers, but she gave the advice nevertheless.

[106]         Although there was a procedural defect in not providing Mr Genge with the written notice of his right to appeal, I consider that it is not determinative. Relief is not warranted on this point.

Is Mr Genge’s application for judicial review an abuse of process?

[107]         Corrections submit that Mr Genge should have appealed, despite not having been given written notice of his right to appeal, as anticipated by the disciplinary regime, because he was aware of his appeal rights and had the means to initiate such an appeal. Because adjudicator hearings do not generate a meaningful record of evidence, an appeal would have given Mr Genge the benefit of a de novo hearing to remedy any error of fact or law. On this basis, Mr Taffs submits that I should exercise my discretion to dismiss the judicial review because judicial review ought not to be available where the relevant appeal period has expired. Commencing judicial review proceedings to interrupt the conduct of criminal proceedings has been found to be an abuse of process.88

[108]         Further, Mr Taffs submits that even though the Court is empowered to grant relief despite the right of appeal,89 the remedy of appeal was available and more appropriate in this case.90 For this proposition, the respondents cite Genge v Chief Executive of the Department of Corrections, where Mr Genge’s judicial review was struck out inter alia, as the appeal right to a Visiting Justice had not been exhausted:91

[84]  In any event, in this case, the basis for Mr Genge’s application for review turns on a factual finding that is clearly disputed. Mr Genge’s position that he was not given an opportunity to present his “defence” is contrary to the

88     DGN v Auckland, Manukau, Papakura and Waitakere District Courts [2015] NZHC 3338 at [29]– [32].

89     Judicial Review Procedure Act 2016, s 16(3)(a).

90     Auckland Acclimatisation Society Inc v Sutton Holdings Ltd [1985] 2 NZLR 94 (CA) at 103.

91     Genge v Chief Executive of the Department of Corrections, above n 79, at [84]–[86] (footnotes omitted).

prosecutor's account of what happened and, more importantly, to the brief written record made by the hearing adjudicator. Judicial review is not a process suited to resolving fundamental factual disputes, and cross- examination is not allowed as of right in judicial review proceedings. Furthermore, in this case, Mr Genge would be challenging the record of the decision-maker himself because it differs from Mr Genge’s assertion. It would be rare, if ever, that leave would be granted to cross-examine someone acting in the capacity of a judicial officer.

[85]  All these factors point to the fact that if Mr Genge had a concern about the procedure of the hearing in which he was found guilty, the only appropriate course of action was to appeal the decision to the Visiting Justice.

[86]   For these reasons, I consider his application to review the decision of the hearing adjudicator is an abuse of process. The proper course of action, having regard to the statutory scheme of the Act and the regulatory scheme for prison discipline, is that a right of appeal should be exercised in relation to a hearing adjudicator’s decision where there are challenges to the findings, or to the procedure adopted by the hearing adjudicator, as there were in this case. I accept that the time for appeal has gone and Mr Genge now no longer has that option. That does not change my view on whether judicial review is available to challenge this decision.

[109]         Mr Taffs submits that the applicant was not prejudiced by the absence of the appeal form. Mr Genge was advised of his right to appeal by the prosecutor at the hearing. In summary, Corrections submit that Mr Genge was apprised of the right to appeal, was aware that seeking judicial review prior to an appeal is fraught, and that he chose to litigate the matter through judicial review, nonetheless. Given the lack of recording in disciplinary hearings, Corrections say that the Court is presented with an ill-fitting case requiring factual determinations and the proceeding therefore is an abuse of process.

[110]         I accept that Mr Genge has brought various applications in the past for judicial review of Corrections’ decisions. However, this proceeding was not, in its totality, an abuse of process. The substantive decision engaged Mr Genge’s freedom of expression. It is not clear to me whether that was grappled with by the decision maker. Meanwhile, the failure to provide Mr Genge with an incident report and with written notice of his right to appeal were legitimate procedural defects. Whilst I accept Corrections’ view that any defects, by and large, would have been able to be ameliorated on appeal, the failure to provide Mr Genge with his written notice of appeal undermines the persuasiveness of that argument. The right of appeal was relevant to Gendall J’s analysis.

[111]         Prisoners are in a vulnerable position and whilst experienced, Mr Genge is a self-represented litigant. As the Court of Appeal put it:92

Mr Genge's claims … are simply ill-conceived and prone to failure. He is liable to pay costs, and costs have been ordered against him. But patently he cannot meet that obligation. Undeterred, and beyond any real risk to his pocket, he issues another review application where he perceives his rights have been infringed. His self-judgement on such matters is not good — as he candidly acknowledges — although (for what it is worth) he says he is learning. He is plainly at risk of an order being made under s 166 if he continues to advance serial, misconceived judicial review applications about the prison disciplinary system. Rather than foist the burden of such proceedings on the state, unrelieved by the payment of costs on failure, some supervision may be justified.

[112]         I consider that this proceeding was, on balance, meritless but not an abuse of process. I therefore do not propose to decline the application for judicial review on that basis.

[113]         I note for completeness however that some of Mr Genge’s arguments, addressed below are not responsibly made, supporting the Court of Appeal’s view that Mr Genge is at risk of an order under s 166 of the Senior Courts Act 2016.93

Minor breach

[114]         First, Mr Genge submits that he would have been more appropriately dealt with under s 132(1) of the Act. This provision requires an officer to deal with minor breaches of discipline by stopping and explaining the breach to the prisoner, instructing the prisoner to correct their behaviour and allowing the prisoner to make amends to anyone aggrieved by the breach.

[115]         The last time Mr Genge advanced this argument, the findings of Gendall J on this point were upheld by the Court of Appeal.94 I consider that they equally apply here and respectfully adopt them:95

92     Genge v Visiting Justice at Christchurch Men’s Prison [2019] NZCA 583 at [17] (footnotes omitted).

93 At [17].

94     Genge v Visiting Justice [2022] NZCA 371 at [25], discussing Genge v Visiting Justice, Christchurch Men’s Prison, above n 10, at [63].

95     Genge v Visiting Justice, Christchurch Men’s Prison, above n 10Error! Bookmark not defined., a t [62]–[64].

[62]   Lastly, Mr Genge has endeavoured to argue that, because his breach was minor or unintentional, it should have been dealt with under s 132(1) of the Corrections Act 2004. This could have involved a simple reprimand and an instruction to correct his behaviour in the future along with possibly an option to allow him to make amends.

[63]   Section 132(2), however, provides that a minor or unintentional breach can still result in a prisoner being charged with a disciplinary offence. A decision to charge a prisoner like Mr Genge here is always an exercise of discretion.

[64]    Nothing is before me to suggest that this discretion was exercised on behalf of the respondents in a manner which would make it subject to judicial review here. I reject this further argument Mr Genge has endeavoured to advance.

[116]         Given that again Mr Genge has not advanced any evidence of the discretion being exercised inappropriately in this proceeding, I consider that this point should not have been advanced.

Tort of misfeasance in public office

[117]         Mr Genge also submits that the tort of misfeasance in public office has been perpetrated by either a deliberate act or omission attenuated by malice or a deliberate act knowingly in excess of official powers. He says that these actions arise from Mr McArdle fulfilling the role of adjudicator, and the various alleged incidents of perjury and perverting the course of justice by Mr Sol and Ms Thomson.

[118]         Corrections submit that these claims cannot satisfy the requirement that any identified person acted with malice towards Mr Genge, or with knowledge or reckless indifference that their conduct was unlawful and likely to injure him.96 Mr McArdle lacked day to day management of Mr Genge. Meanwhile, the allegations of inappropriate conduct and perjury by Ms Thomson and Mr Sol are unsubstantiated and thus, not responsibly made.

[119]         The relevant principles were set out by the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd.97 As Mr Taffs submits, the relevant element is that the defendant must have either acted in bad faith (for an ulterior motive

96     Corrections also do not accept that the other principles of the tort of misfeasance are made out:

Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 at [40]–[44].

97     At [40]–[45].

with intent to injure another) or knowledge that they were acting outside the scope of the power conferred, or been recklessly indifferent) and that this was likely to injure the plaintiff. Damage must also have been suffered.

[120]         I accept that this claim has no evidential foundation. Mr McArdle was not acting in bad faith or outside the scope of his powers in any manner likely to injure Mr Genge. He legitimately presided over the adjudication hearing. In respect of Mr Genge’s allegations against various Corrections’ officials of perjury and actions taken in bad faith, there is simply no evidential basis for his allegations. There is no evidence on which he can advance either a claim of targeted or non-targeted malice, against Ms Thomson or Mr Sol on the information before me. Nor is there any evidence that any Corrections official involved acted in bad faith (knowing that what they were doing was unlawful) or knowing that they lacked the power to do the act complained of and that the way they acted would probably injure Mr Genge. Mr Genge has not particularised any actual loss or damage which he claims he suffered through the disciplinary proceeding.

[121]         I note that this is not the first time that Mr Genge has advanced a meritless claim in the tort for misfeasance in public office.98 I consider that this argument was also inappropriately advanced.

Conclusion

[122]         For these reasons, I am satisfied that Corrections did not err in determining that Mr Genge was capable of being charged and convicted of a disciplinary offence under s 128(1)(f) for possessing a pornographic and gang-related article, without authorisation.

[123]         I am also satisfied that almost all of the allegations by Mr Genge in respect of procedural deficiencies fail. I accept that the failure by Corrections to provide an incident report was cured by the other information provided to Mr Genge. The failure to provide Mr Genge with written notice of his right to appeal was a procedural defect,

98     Genge v Chief Executive, Department of Corrections [2022] NZHC 2508 at [101]–[103].

but on the facts was ultimately technical in nature and not determinative of the judicial review application. I therefore do not consider relief appropriate.

[124]         As noted, Mr Genge’s application for judicial review included an inappropriate tort claim for misfeasance in public office, which he has raised similarly in a previous proceeding. While the repeated claim is an abuse of process, I decline to deem this entire proceeding an abuse of process. However, Mr Genge should be on notice that repeated meritless claims of misfeasance may well justify such proceedings to be deemed abusive in the future.

Result

[125]The application for judicial review is declined.

Cull J

Solicitors:

Crown Solicitor’s Office, Christchurch for the Respondents