Genge v Chief Executive of the Department of Corrections
[2018] NZHC 1827
•23 July 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000903
[2018] NZHC 1827
BETWEEN RICHARD GENGE
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Respondent
AND
ATTORNEY-GENERAL
Second Respondent
Hearing: 22 May 2018 Appearances:
Applicant in person
M McKillop for the Respondents
Judgment:
23 July 2018
JUDGMENT OF DUNNINGHAM J
[1] Since 1 September 2015, Christchurch Men’s Prison has had a rule in place prohibiting prisoners from going into other prisoners’ cells. On 7 September 2017, the applicant, Richard Genge, who is a serving prisoner, was seen by a Corrections Officer going into another prisoner’s cell. The incident was also recorded on camera.
[2] It was determined that Mr Genge should be charged with breaching the rule and the charge was heard on 2 October 2017, before a hearing adjudicator. After hearing from the sole prosecution witness, whom Mr Genge did not seek to question, the hearing adjudicator found the case proven. He sentenced Mr Genge to five days off privileges.
GENGE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZHC 1827 [23 July 2018]
[3] Mr Genge did not appeal that decision. He now seeks to have the decision judicially reviewed on the grounds that:
(a)he was not allowed to call witnesses or present a defence; and
(b)he was charged with that offence when he says other prisoners were warned and not charged for the same conduct.1
[4] The respondents have applied to strike out the statement of claim and dismiss the proceedings on the grounds that each cause of action is not reasonably arguable or is an abuse of process.
[5] In Mr Genge’s notice of opposition to the application to strike out, he then raised a further matter which, although not pleaded in the statement of claim, effectively challenges the rule that underlies the charge. He asserts it is unlawful because:
(a)it is a “blanket punishment”; and
(b)it is inconsistent with ss 5 and 6 of the Corrections Act 2004 (the Act), and other legislative provisions that require prisons to treat prisoners humanely and to assist in their rehabilitation and reintegration into the community.
[6] The respondents consider this cause of action in judicial review is sufficiently arguable that they would not apply to strike it out at the interlocutory stage. In the interests of efficiently addressing the substance of Mr Genge’s claims, the respondents proposed, and Mr Genge agreed, that this hearing would address both the substantive challenge to the lawfulness of the rule and the strike out application.
1 Although this was not, strictly speaking, included in his pleadings it was raised in a document entitled “submissions” filed at the same time, and was supported by documentary evidence he filed to demonstrate some other prisoners had not been charged or, if they had, they received a caution and no penalty.
The issues
[7] The issues raised by the respondents’ interlocutory application to strike out the statement of claim are as follows:
(a)Is the hearing adjudicator’s decision amenable to review?
(b)If it is, should the application for review of the decision be struck out, in any event, as an abuse of process because it amounts to a collateral attack on the concluded disciplinary proceedings where the applicant was found guilty, or because it is frivolous?
[8]The issues raised by Mr Genge’s challenge to the rule are as follows:
(a)Is the Prison Manager’s rule preventing prisoners from entering other prisoners’ cells lawful?
(b)If not, what relief ought to be granted to Mr Genge? In particular, should his disciplinary conviction be quashed?
[9] As a matter of logic, I address the challenge to the rule first, as the charge of breaching the rule rests on the assumption it is lawful.
Is the rule lawful?
The rule
[10] The management of prisons is directed by the Act. Section 33 of the Act authorises the manager of a prison to make rules “that the manager considers appropriate for the management of the prison and for the conduct and safe custody of the prisoners”. Section 33(5) provides that “[a]ny rules made under [this section] must not be inconsistent with this Act, the Sentencing Act 2002, the Parole Act 2002, or any regulations made under any of those Acts”.
[11] The relevant rule in this case was made by the Director of Christchurch Men’s Prison and provides that … “from the 1st of September 2015 prisoners are not permitted to go into other prisoners cells” (sic).
[12] At the time the rule was promulgated, it was notified to prisoners along with an explanatory comment. It read as follows:
Christchurch Men’s Prison has a zero tolerance for violence therefore the following rule will be enforced by staff.
Pursuant to Section 33 of the Corrections Act 2004 from the 1st of September 2015 prisoners are not permitted to go into other prisoners cells.
This is necessary owing to the number of prisoner assaults.
Any prisoner who assaults another prisoner will face disciplinary proceedings which could include external Court charges reclassification and relocation.
[13] Mr David Pattinson, the acting Prison Director of Christchurch Men’s Prison, provided an affidavit explaining the purpose of the rule. Although the rule was not made by him, but by a former prison director of Christchurch Men’s Prison, he says in his experience as a prison director:
…a rule of this nature is not uncommon, and is designed to address safety risks which arise when prisoners are able to enter another person’s cell without supervision. … [T]he rule is also intended to mitigate incidents theft of property in cells, tattooing in cells, recruitment into gangs and concealing contraband in other prisoners’ cells.
[14] He explains that the rule was made to address the number of assaults on other prisoners and on prison staff that were occurring inside cells as there was no security camera coverage in cells, making such assaults difficult to investigate. He states that before this rule was made, there were a number of violent incidents at Christchurch Men’s Prison, where prisoners were targeted within their own cells. Indeed it was common ground that the rule was made shortly after an inmate of Christchurch Men’s Prison was beaten to death in his prison cell by fellow inmates. He considers the rule is necessary to keep prisoners safe from assault and other harmful behaviour and says he has no intention to revoke the rule.
[15] Mr Peter Scott, a Corrections Officer employed at Christchurch Men’s Prison, provided an affidavit which explained that all prisoners are informed of this rule when
they receive a copy of the prison rules at the time they enter the prison. Furthermore, to avoid confusion over what constitutes going into another prisoner’s cell, an information sheet has been distributed to all prisoners which includes pictures to illustrate that the cell’s doorframe is the threshold which must not be crossed in order to comply with the rule.
Mr Genge’s submissions
[16] Mr Genge challenges the lawfulness of the rule, relying on the requirement in s 33 of the Act that rules made by a prison manager must not be inconsistent with the Act.2 Section 6 of the Act requires, among other things, that offenders should be “given access to activities that may contribute to their rehabilitation and reintegration into the community”.3 He says s 5(1)(b) of the Act imports the United Nations Standard Minimum Rules for the Treatment of Prisoners, which require a prison to minimise any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings except to the extent necessary, for example, to maintain discipline.4 The rule, he says, is counterproductive to those goals.
[17] Mr Genge also submits that the rule comprises a “blanket punishment”, which is unlawful. Although the rule is promulgated on the pretext that the prison has “zero tolerance for violence”, there is already a rule which addresses that issue and provides that “any prisoner who assaults another prisoner will face disciplinary proceedings which could include external Court charges, reclassification and relocation”. He accepts that if someone is violent then they should be charged, but if they are not, then they should not be and there is no need to prohibit all interaction in cells to achieve a reduction in violence.
[18] To support his contention that interaction in cells should be encouraged, he submits that human nature is social and a rule of this type precluding social activity “would not be enacted in the community regardless of how many assaults happened”.
2 Section 33(5).
3 Section 6(1)(h).
4 See, for example, Rules 3, 4 and 5 of the United Nations Standard Minimum Rules for the Treatment of Prisoners.
By regulating such social interaction the rule goes “against human nature”. For prisoners such as himself who are serving long or indeterminate sentences, having to deal with “an awkward, semi-social existence” does not help their rehabilitation or reintegration into the community. By reinforcing isolation as normal, he submits that the prison is thereby hindering positive change and pro-social interaction, which is contrary to the Act’s principles.5
[19] He also notes that to the extent the New Zealand Bill of Rights Act 1990 can be accommodated in prison life, it should be. That Act provides for freedom of association and he says this supports his right to be allowed to socialise with a friend in his prison cell. He expresses concern that many of the prisoners who have been charged with being in cells were not violent and, furthermore, the rule has not stopped assaults. What it does do is punish prisoners for attempting to socialise in a pro-social manner.
[20] In support of these submissions, Mr Genge relies on the evidence of Matiu Zijlstra, a therapist who is a “contracted provider to the Department of Corrections, Psychological Services under the Bicultural Therapy Model”. He gives opinion evidence as to why he believes that “the practice [of] banning inmates from visiting each other’s cells is unilaterally and unequivocally unfounded for a number of personal and practical reasons”.
[21] In his statement Mr Zijlstra sets out 11 reasons for holding that view. They include that “inmates serving long sentences become addicted to isolation” and they “risk developing further ensconced forms of institutionalisation through not being allowed to enter or have other inmates enter their cells”. He notes the practice of “banning inmates from choosing who comes into their space and cell forfeits the opportunity to develop intimate emotional connections and set appropriate boundaries regarding development of the ability to ask people to leave and leave both premises and relationships when asked to, a key feature in domestic violent (sic) relationships”. He considers the practice of having other inmates visit could “easily be administered
5 While some of these submissions comprise opinion evidence, I afforded Mr Genge some latitude, as a lay litigant, to explain his personal experience of the effects of the rules as he perceived them.
across security classifications and timeframes served using inmate to cell placement relative to a units layout or colour coding on doors”.6
[22] In short, he considers the practice of allowing inmates to go into another prisoner’s cell and learning how to regulate and manage that social interaction is an important step towards a prisoner’s rehabilitation and reintegration.
[23] Relying on this evidence, and his own explanation of how difficult it is to interact normally in the communal recreation area, Mr Genge says the rule unreasonably restricts prisoners’ ability to engage in rehabilitative social activity, and does not, as the prison says, stop violent incidents from occurring.
The respondents’ submissions
[24] The respondents rely on the full text of the empowering legislation, along with Mr Pattinson’s evidence, to argue that the rule is lawful and reasonably balances the prison’s role of ensuring the conduct and safe custody of prisoners with their obligation to contribute to their rehabilitation and reintegration into the community as far as is reasonably practicable.
[25] They accept that the prison manager’s power to make rules is circumscribed by s 33 of the Act in that:
(a)the rule must not be inconsistent with the Act, the Sentencing Act, the Parole Act, or any regulations made under any of those Acts;
(b)the rule must not relate to authorised property that prisoners may be issued with or allowed to keep; and
(c)the manager must consider the rule to be appropriate for the management of the prison and for the conduct and safe custody of the prisoners.
6 Although his statement did not go further to explain exactly how this system would work.
[26] The last of these criteria includes an element of subjective assessment on the part of the decision-maker as to whether the rule is appropriate for the purpose of managing the prison. When the exercise of a discretion is engaged in this way, the respondents note that the Courts generally show more deference to the decision-maker’s assessment. However, they accept that the exercise of a power under a broad discretion would be invalid if it thwarted the policy and objects of the empowering Act.7
[27] In this case, s 6 of the Act sets out the principles guiding the Act. These include, relevantly:
6 Principles guiding corrections system
(1)The principles that guide the operation of the corrections system are that—
…
(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:
(g)sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision:
(h)offenders must, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community:
(i)contact between prisoners and their families must be encouraged and supported, so far as is reasonable and practicable and within the resources available, and to the extent that this contact is consistent with the maintenance of safety and security requirements.
7 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53].
[28] It is clear from this, and from general legal principles, that the Department of Corrections has obligations to ensure the safety of prisoners, and also has positive obligations to ensure their humane treatment in accordance with s 23(5) of the New Zealand Bill of Rights Act.
[29] In this case, the respondents’ evidence explains the prison manager’s rationale for the rule and why he considers it to be appropriate for prisoner safety. The rule is intended to reduce the incidents of violence which occur inside prisoners’ cells and which would be otherwise difficult to prevent and investigate. It also decreases the opportunity for other harmful behaviour to occur in any area where prisoners are particularly vulnerable because of the absence of cameras. There is therefore an objective basis for the prison manager to consider the rule is appropriate for improving the safety of prisons.
[30] To the extent that Mr Genge says the rule goes further than necessary and limits the opportunities for social interaction, the respondents’ evidence explains that there are other opportunities for interaction between prisoners which occur outside individual cells, for instance, through employment and treatment programmes and meal times for low security prisoners.
[31] The respondents also reject the suggestion that this is a “blanket punishment”. As with any rule prohibiting particular conduct, it is by nature a blanket measure. However, the response to a breach of the rule can vary. Section 132 of the Act provides that a prisoner need not be charged with a disciplinary offence for breaching a prison rule:
132 Minor or unintentional breaches of discipline
(1)As far as practicable in the circumstances and if appropriate, an officer must deal with a minor or an unintentional breach of discipline by a prisoner in the following manner:
(a)by stopping the breach of discipline and explaining the nature of the breach to the prisoner committing the breach:
(b)by instructing the prisoner to correct his or her behaviour:
(c)by allowing the prisoner to make amends to any person aggrieved by the breach.
(2)If a minor or an unintentional breach of discipline is not dealt with under subsection (1), this section does not prevent a prisoner from being charged with a disciplinary offence.
[32] Even if charged, the hearing adjudicators and Visiting Justices have the power to impose penalties of various lengths or to impose no penalty at all and so the penalty for breach can be tailored to respond to the particular circumstances.
Discussion
[33] As Mr Genge acknowledged, the prison manager has a range of obligations when running a prison. He or she has to ensure the safety of prisoners and staff, while facilitating opportunities for socialisation which would assist in reintegrating and rehabilitating the prisoners.
[34] Those competing considerations are acknowledged in the United Nations Standard Minimum Rules for the Treatment of Prisoners at r 3 where it says:
… the prison system shall not, except as incidental to justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
They are also reflected in the principles guiding the corrections system as set out in s 6(g), (h) and (i) of the Act.8
[35] The issue in this case is whether there is a reasonable basis for the manager to say that the rule is required for proper reasons, including the safety of persons under the manager’s control or supervision and the maintenance of discipline. I am satisfied that the respondents’ affidavit evidence establishes that it is. It is clear that anti-social behaviour, including assaults, one of which was fatal, have occurred within prison cells. It is more difficult to identify the perpetrators of such behaviour and prevent its recurrence because of the absence of security cameras in prisoners’ cells. There is a logical basis for enacting a blanket prohibition on such visits. It is impracticable for prison staff to determine whether a particular visit is for social reasons or to do something which is in breach of prison rules.
8 As set out in [27] above.
[36] While the prison must provide activities that contribute to the rehabilitation and reintegration of prisoners, I accept there are good reasons for ensuring that social activities occur in settings other than in the prison cells. While Mr Genge takes issue with the suitability of the venues in which social interaction can occur, that of itself is insufficient to make the rule unlawful.
[37] Mr Genge’s next point was that prison assaults have not stopped as a result of the rule. However, there was no quantitative evidence presented as to the effect of the rule on the number of prison assaults. In my view, it could be unrealistic to expect the rule on its own to stop prison assaults and there was no evidence to suggest the rule had had no impact on the level of assaults. As a matter of logic, the ability of prison staff to hold prisoners accountable for assaults and other anti-social behaviour and to prevent their recurrence must be greater when the rule is enforced than without the rule.
[38] In summary, I am satisfied that the rule is intended to enhance the safety of prisoners and so falls within the prison manager’s powers as conferred on him by the Act. Given the evidence as to the opportunities for interaction with other prisoners that occurs outside inmates’ cells, for instance through employment, treatment programmes and meal times, I consider that the Department of Corrections is acting lawfully in making a rule to control one facet of prisoner interaction, and in doing so is not acting inconsistently with the principles outlined in the Act relating to rehabilitation and reintegration.
[39] I also reject the submission that the rule is a “blanket punishment”. As with all rules, it applies equally to all inmates. The actual punishment imposed for breach of the rule has, as Mr Genge’s evidence demonstrates, ranged from a simple warning with no further consequences, to a loss of privileges following a disciplinary hearing, as in Mr Genge’s case. Of course, if the breach was accompanied by other more serious behaviour, such as an assault, the consequences for the perpetrator would be more serious again.
[40] Accordingly, I am satisfied that the rule is lawful and Mr Genge’s challenge to it is dismissed.
The strike out application
[41] The respondents’ strike out application relates to Mr Genge’s application for judicial review of:
(a)the decision to charge him with being in another prisoner’s cell in breach of the rule; and
(b)the hearing adjudicator’s decision to find him guilty without hearing from him.
Events leading to the charge of being in breach of the rule
[42] On 17 September 2017, Mr Genge was seen leaving another prisoner’s cell by two corrections officers. When confronted by them, Mr Genge responded by saying “am I on a charge?”. Security camera footage confirmed that Mr Genge had entered another prisoner’s cell in contravention of the rule. He was duly charged with that breach three days later.
[43] Mr Scott, a Corrections Officer, gave evidence that outlined the process of hearing the misconduct charge against Mr Genge. He explained that he was the prosecutor. The charge was heard before a hearing adjudicator on 2 October 2017. Mr Scott called Ms Hooper, one of the officers who had seen Mr Genge leaving the cell, and she gave evidence of what she saw. After she had given her evidence, Mr Genge was given the opportunity to ask her questions, which he declined.
[44] Although Mr Genge had given notice of an intention to call witnesses at the hearing (which included Ms Hooper), Mr Scott’s recollection was that when Mr Genge was asked if he wanted to offer a defence and call witnesses, he indicated that he would offer his defence at the Visiting Justice hearing. Mr Scott says that at that point in the hearing, the escorting officer would normally co-ordinate other corrections officers to bring the witnesses to the hearing room, but this was unnecessary in this case because Mr Genge did not want to call them.
[45] The hearing adjudicator then found the case proven and sentenced Mr Genge to five days off privileges. Mr Scott also explains that, as is his usual practice, he provided a right of appeal form to Mr Genge. However, no appeal was ever received by the prosecutions team. As the misconduct charge was heard on 2 October 2017 and he had 14 days to appeal, the misconduct file was closed off on 17 October 2017.
[46] Proceedings before a hearing adjudicator are not recorded. The only record of the hearing are the hearing adjudicator’s notes which contain details such as the names of those present at the hearing, the prisoner’s plea, any documents produced and a brief record of the finding of the hearing adjudicator and the reasons for the finding. In this case, the hearing adjudicator’s notes of the hearing read as follows:
Officer Hooper: I was in compound and observed Genge drop his laundry off and then go into cell 59. As we approached I saw him exit cell 59. When questioned, Genge said “Am I on a charge?” Genge was asked if he had any questions for Officer Hooper. He replied no. He then said he would offer his defence to the VJ. He was informed that given no evidence in support of himself, I found him guilty and sentenced to 5 o/p.
[47] Mr Genge’s version of what transpired is that he was denied the opportunity to present a defence and, once he had said he did not wish to question Officer Hooper, the hearing adjudicator went straight to making a decision.
[48] For completeness, it is clear that Mr Genge’s proposed defence is not that he did not breach the rule, but that four other prisoners acknowledged they had breached the rule, but none of them were penalised for breach of that rule. Instead, two (Messrs Topp and Davey) were given a warning (they were told via the intercom to leave the cell or they would be charged). A third prisoner, Mr Murphy went into a cell where a fight broke out. The cell resident was charged with fighting. Mr Murphy was charged with being in the cell in breach of the rule and received a caution. A fourth prisoner, Mr Taylor, was also charged with being in another cell but, after the charge was heard, he also only received a caution. The gist of Mr Genge’s “defence” is that the Department of Corrections is biased against him and he should have been treated like other prisoners and not penalised for the breach.
Legal principles relating to strike out
[49] There are two broad grounds on which a proceeding may be struck out.9 First, the Court may strike out all or part of a claim if it discloses no reasonably arguable cause of action.10 Second, a claim can be struck out if it is an abuse of the Court’s processes under one of the grounds in High Court r 15.1(1)(b)-(d).
[50] The approach to striking out a claim if it discloses no reasonably arguable cause of action was summarised by the Court of Appeal in Attorney-General v Prince and Gardner.11 The principles are as follows:
(a)Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation;
(b)The cause of action must be clearly untenable. It is inappropriate to strike out a claim summarily unless the Court can be certain that it cannot succeed;
(c)The jurisdiction is to be exercised sparingly, and only in clear cases;
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument; and
(e)The Court should be particularly slow to strike out a claim in any developing area of the law, particularly where a novel duty of care is alleged.
[51] The Court can also strike out proceedings where they are an abuse of the Court’s processes. The respondents point out that when review proceedings are commenced instead of exercising a statutory right of appeal, they may be struck out as an abuse of process.12
9 High Court r 15.1
10 High Court r 15.1(1)(a).
11 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.
12 Reekie v Legal Services Agency [2010] NZAR 617 (HC) at [32].
A: Is the charging decision amenable to review?
The respondents’ submissions
[52] The respondents submit that any cause of action challenging the charging decision is not reasonably arguable. While the respondents acknowledge that a Court can review a prosecutorial decision in some circumstances, such decisions are not amenable to review after a hearing has concluded and the charge is found to be proven. At that point, any challenge to the merits of the charging decision has been overtaken by the substantive disciplinary proceedings and the only option is to challenge the conviction. In other words, the respondents say that it is axiomatic that the decision to charge Mr Genge in this case was lawful, because the hearing adjudicator found that the offence against prison discipline was proven.
[53] Furthermore, this cause of action is also an abuse of the Court’s process because the relief sought would be moot. Even if the charging decision was unlawful, the Courts do not treat every downstream decision as being void.
[54] Finally, they submit that the challenge to the charging decision is an abuse of the Court’s process as it amounts to a collateral attack on the concluded disciplinary proceedings where Mr Genge was found guilty.
Mr Genge’s submissions
[55] Mr Genge submits the decision to charge him was inherently unfair when other people committing the same offence, at around the same time, were not charged. He says that this shows a personal prejudice against him by Corrections staff including because he is Māori. It also conflicts with reg 6(1) of the Corrections Regulations 2005, which requires prison managers to be responsible for the “fair” care of its prisoners, and the principles guiding the Corrections system contained in s 6 of the Act. These include, relevantly, s 6(1)(f) which requires the system to “ensure the fair treatment of persons under control or supervision by …. ensuring that decisions about those persons are taken in a fair and reasonable way”.
[56] He also considers the charging decision was unfair because the prisoners who were simply warned or cautioned entered prison after the rule came into force so have not known any other rule regime. However, he has been incarcerated for more than 23 years and has had to alter his behaviour to adjust to this rule, putting him at a disadvantage. Furthermore, the prisoners who were warned are serving shorter sentences and are not reliant on the discretion of the New Zealand Parole Board for their release in the way that Mr Genge is. This disciplinary offence against him will likely be taken into account when he applies for parole.
The legal principles applying
[57] While it is recognised that judicial review is available in respect of a decision to prosecute, that is only in exceptional circumstances. The Court will generally not intervene unless it has shown that the prosecuting authority acted in bad faith or brought the prosecution for a collateral purpose.13
[58]The Court of Appeal explained in Fox v Attorney-General that:14
The courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the court’s own function of responsibility for conduct of criminal trials. This reluctance to interfere on the ground that the prosecution is thought to be inappropriate is widely apparent in the common law jurisdictions …
[59] That sentiment was reflected in the leading decision on judicial review of a decision to prosecute; Polynesian Spa Ltd v Osborne. In that case, Randerson J summarised the reasons for the Court’s reluctance to intervene in prosecutions by way of judicial review as follows:15
(a)It is important that the proper constitutional boundaries be observed. The discretion to prosecute on behalf of the state is a function of executive government rather than the courts whose function is to ensure the proper and fair conduct of trial.
(b)Criminal proceedings should not generally be subject to collateral challenge. Entertaining challenges of this kind outside the trial and
13 Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [64].
14 Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [31].
15 Polynesian Spa Ltd v Osborne, above n 13, at [62].
appeal process is likely seriously to disrupt the criminal justice system.
(c)As noted in Fox in the same passage, decisions to initiate and continue prosecutions generally involve a high content of judgment and discretion in the decisions reached.
(d)Where a prosecution ensues, the courts possess an inherent power to stay or dismiss a prosecution for abuse of process. Fox reviewed the principles upon which a court may act to protect against such an abuse.
(e)The conclusion on behalf of a prosecuting authority than an offence has been committed is merely an expression of opinion which is capable of being challenged in court.
(f)If factual errors are made in an investigation by a prosecuting authority or if there is further or other material which a defendant considers ought to have been weighed by the prosecuting authority, there is an opportunity to explore and test such issues at trial and to bring such further evidence as the defendant sees fit.
(citations omitted)
[60] The limitations on the Court’s ability to review a decision to prosecute were also considered in DGN v Auckland, Manukau, Papakura, and Waitakere District Courts.16 In that case, France J considered an application by Mr N for an order quashing the decision to prosecute him. The provisions of the Criminal Procedure Act 2011 applied to the charge. Given that the purpose of that Act was “to set out the procedure for the conduct of criminal proceedings” and it provided “carefully crafted appeal rights depending upon the nature of the decision being appealed”, France J concluded that there would need to be “[c]ompelling reasons to step outside the legislative scheme” and allow judicial review, saying “judicial review should not be seen as a way to circumvent that scheme”.17
[61] France J also noted that one of the aims of the Criminal Procedure Act and its associated rules was to “provide firm timeframes to ensure that progress of these matters is achieved”. To allow recourse to processes outside the statutory scheme
16 DGN v Auckland, Manukau, Papakura, and Waitakere District Courts [2015] NZHC 3338, [2018] NZAR 137.
17 At [28]-[31].
“simply reintroduces unnecessary delay in circumstances where an alternative effective route for the same challenge is available”.18 Consequently, he held that:
(a)the judicial review process was not suited to a proceeding of the sort Mr N sought to bring; and
(b)the proceeding would, in large part, be a collateral challenge to a prosecution, requiring the hearing of much of the evidence that would be called at the prosecution itself, and this highlighted the inappropriate nature of the proceedings.
[62] Furthermore, he said there was nothing in the pleaded facts to suggest that the Crown Solicitor was motivated by bad faith or a collateral purpose and so “the narrow opening for judicial review of a decision to prosecute” was not engaged in that case. The application for judicial review was therefore struck out on the basis it amounted to a collateral challenge to the prosecution which sought to argue the merits of the prosecution in a different forum from that prescribed by the legislation.
[63] The respondents invite me to apply the same principles to Mr Genge’s challenge of the prosecution decision, noting that the scheme for laying and hearing charges under the prison disciplinary system is clearly prescribed in schedule 7 to the Corrections Regulations. Like the Criminal Procedure Act, it envisages closely constrained timeframes and provides a right of appeal from a decision of a hearing adjudicator.
Discussion
[64] The challenge to the charging decision is, in fact, contained in Mr Genge’s submissions of 26 October 2017 rather than his pleadings. However, like the respondents, I have afforded Mr Genge some latitude and treated this as if it were a pleaded claim.
18 At [33].
[65] The essence of his claim is that because he “was charged while others were warned for the same thing on the same day, the Department of Corrections exhibits bias and extreme unfairness”. He then refers to the evidence he has adduced from several prisoners which confirms that some of them simply received a warning, or, if charged, they received only a caution. He relies on this evidence to pursue his claim that the decision to charge him was unfair.
[66] I accept that the exercise of prosecutorial discretion is reviewable, and the Court’s natural reluctance to intervene in charging decisions is normally reflected in the intensity of review and the availability of relief.19 However, this is a case where I am satisfied the claim could never succeed on the pleaded facts. Of the four prisoners he refers to, two were in fact charged just as Mr Genge was. The decision as to the penalty in respect of the two who were charged was made by an independent hearing adjudicator and is not a function of the charging decision.
[67] In any event, the mere fact that some prisoners were charged and some were only warned could never, of itself, be sufficient to impugn the decision to charge. This is particularly so when s 132 of the Act provides that officers should deal with minor or unintentional breaches of discipline by giving a warning.
[68] Nothing in those pleaded facts would be sufficient to found the type of exceptional circumstances in which a prosecutorial decision could be subjected to judicial review. They do not disclose circumstances which could support a finding that Corrections staff acted in bad faith, unlawfully or with a collateral purpose in making the decision to charge him, and such exceptional circumstances would need to be arguable to allow the application to proceed.
[69] Thus, although there is a small range of circumstances in which charging decisions could be amenable to review, this is clearly not one of them. The claim challenging the charging decision is struck out on the basis it could not succeed on the pleaded facts.
19 Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 (CA) at [35].
Is a hearing adjudicator’s decision amenable to review in the absence of an appeal?
The respondents’ submissions
[70] The respondents submit that a hearing adjudicator’s decision is not amenable to judicial review in circumstances where the right to appeal to a Visiting Justice has not been exercised, as in those circumstances, “relief would inevitably be declined by the Court”. In any event, it is an abuse of process in that it avoids engagement with the proper statutory dispute mechanism and seeks to challenge concluded disciplinary proceedings by way other than appeal.
[71] The prison disciplinary regime contained in the Act and the associated regulations provides a comprehensive right to challenge a hearing adjudicator’s decision through a rehearing before a Visiting Justice. Because there is no meaningful record of the evidence considered by the hearing adjudicator, a truly de novo hearing must be conducted by the Visiting Justice. Any error of law or fact or alleged unfairness can be addressed through such an appeal. In the respondents’ submissions, the existence of a statutory appeal procedure means that judicial review should only be available after appeal rights are exhausted.
[72] While the respondents accept that the Court is empowered to grant relief in judicial review proceedings where a right of appeal also exists,20 they point out that such relief is discretionary and will be refused if the remedy of appeal is more appropriate.21 They also point out that there is no reason to take a different approach when the right to appeal has expired. If that were the case, Mr Genge could simply wait out the appeal period and then commence judicial review proceedings. The respondents also submit there is a strong analogy to the criminal justice system which provides a statutory procedure for appeals from the lower Courts. Commencing judicial review proceedings to interrupt the conduct of criminal proceedings, and to step outside the legislative scheme for appeals in the absence of compelling reasons, is an abuse of process.22
20 Judicial Review Procedure Act 2016, s 16.
21 See, for example, Auckland Acclimatisation Society Inc v Sutton Holdings Ltd [1985] 2 NZLR 94 (CA) at 103.
22 DGN v Auckland, Manukau, Papakura, and Waitakere District Courts, above n 16, at [29]-[32].
Mr Genge’s submissions
[73] Mr Genge submits that to deny him the right to seek judicial review of a decision for procedural unfairness in the hearing before the hearing adjudicator would be effectively to deprive him of a true right of appeal to the Visiting Justice. The hearing before the Visiting Justice would, by default, be the first instance hearing and the first time his defence was heard. He considers it would be unfair to deprive him of his statutory entitlement to two tiers of hearing in which his defence could be heard.
Discussion
[74] The right to seek judicial review of a determination by a tribunal or other public authority is enshrined in s 27(2) of the New Zealand Bill of Rights Act and, as the respondents acknowledge, is not necessarily precluded by the existence of a right of appeal. That said, the default position, particularly within the criminal justice system (or an analogous system such as the disciplinary system under the Act) envisages that rights of appeal will be exhausted before judicial review is entertained. This is reflected in practice by the fact that decided cases involving judicial review of prison disciplinary decisions under the Act all involve decisions of the Visiting Justice.23 The one exception to this is a challenge of a decision by a hearing adjudicator to refer a matter to the Visiting Justice which was not a decision on the substance of the charge.24 None of them involve review of a hearing adjudicator’s decision on the charge itself.
[75] I do not accept Mr Genge’s argument that he should be able to avail himself of judicial review in order to preserve his right of appeal to the Visiting Justice. As was noted in Department of Corrections v Taylor, the right to be heard by the Visiting Justice was relevant in determining what procedural protection was necessary at an earlier stage in the disciplinary proceedings as:25
23 Forrest v Visiting Justice [2014] NZHC 634; Johansen v Department of Corrections HC Dunedin CIV-2009-412-238, 27 October 2009; Craig v Visiting Justice at Auckland Prison, HC Auckland CIV-2007-404-5156, 6 June 2008; McKean v Attorney—General [2007] 3 NZLR 819 (HC); Percival v Attorney-General [2006] NZAR 215 (HC).
24 Taylor v Department of Corrections [2009] NZSC 80, [2009] 3 NZLR 34 and earlier decisions in the same proceedings where Mr Taylor’s application for judicial review of a procedural decision by a hearing adjudicator was unsuccessful.
25 Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34 at [54].
…any disadvantage experienced by the prisoner can be remedied when the matter comes before the Visiting Justice. In that context, we do not see the loss of the appeal right as critical either. Any appeal to the Visiting Justice is a rehearing de novo so the prisoner is in the same position before the Visiting Justice at first instance as on an appeal.
[76] I accept that, in the normal circumstances, the existence of full appeal rights in low level disciplinary proceedings such as this would preclude any right to judicial review. However, given the breadth of s 16 of the Judicial Review Procedure Act 2016, I am not prepared to hold that a decision of a hearing adjudicator could never be amenable to judicial review and I would not strike out the application on this basis alone. Instead, I go on to consider the particular circumstances of this case and whether an application for judicial review in this case is untenable or an abuse of process.
B: Should the application for review of the hearing adjudicator’s decision be struck out in any event as untenable or an abuse of process?
The respondents’ submissions
[77] The respondents argue that appeal rights under the Act should be exhausted before seeking judicial review. Mr Genge would need to show exceptional circumstances to warrant commencing review proceedings and he has not. He has not provided an explanation of why he did not appeal to the Visiting Justice, nor has he explained why the alleged deficiencies in the hearing adjudicator’s decision could not have been cured using the statutory appeal process.
[78] Mr Genge has now served his punishment of five days off privileges and he is now out of time to appeal to the Visiting Justice. There is no ongoing prejudice alleged to arise out of the hearing adjudicator’s finding or the penalty imposed. In any event, the penalty imposed of five days off privileges was negligible. The combination of these factors demonstrates that Mr Genge’s application for review is frivolous and ought to be struck out as an abuse of process.
Mr Genge’s submissions
[79] Mr Genge says the principle at issue is important. He says he was denied the right to present a defence which is, of course, a fundamental principle of natural justice
enshrined in international conventions, legislation, and the common law. The application is not therefore frivolous or otherwise an abuse of process.
Discussion
[80] While I cannot rule out there being a circumstance where judicial review of a hearing adjudicator’s decision might be permissible I consider that, in normal circumstances, and having regard to the purpose and principles of the disciplinary regime in the Act, judicial review should not be permitted.
[81] The statutory scheme for prison discipline was comprehensively explained in the judgment of McGrath J in Drew v Attorney-General.26 While that concerned the predecessor to the current Act, I consider that discussion of the statutory scheme applies equally to the current Act.
[82] McGrath J observed that the policy of the statutory scheme was that misconduct by prisoners should, principally, fall on those responsible for the operation of the prison and that is achieved by a “two tier disciplinary process” which he described as follows:27
At the first level the prison disciplinary system is administered by the senior officers in the prison, with the aim that the great majority of incidents will be dealt with at this level in a fair, timely and effective manner consistent with the need to maintain order. An important safeguard for prisoners who become subject to the process at this level is a right of appeal against any finding by the Superintendent that a complaint concerning an offence against discipline has been proved and against the penalties that may consequently be imposed.
[83] He explained that the second tier of the disciplinary system involved an independent outside adjudicator in the form of a Visiting Justice.28 In exercising their appellate jurisdiction, Visiting Justices “are scrutinising the outcome of the internal first level prison disciplinary process” and are able “to correct any errors in the earlier adjudications by prison administrators”.29 At the first stage, “the requirements of natural justice must accommodate to a reasonable extent the constraints of effective
26 Drew v Attorney-General [2002] 1 NZLR 58 (CA).
27 At [86].
28 At [87].
29 At [100].
prison administration. These include the need for a measure of expedition in the process”, and this gives “the first tier of the prison disciplinary scheme a low-level, complaint related character”.30
[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 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.31 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.
[87] In any event, standing back, no injustice is done. Mr Genge did not dispute the factual findings on which the charge was based, nor could he as he was recorded on camera as going into the fellow inmate’s cell. His sole defence was that he should
30 At [104]-[105].
31 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 554.
not have been charged. For reasons already discussed, that could not be an arguable defence to the charge.
[88] Accordingly, because judicial review is not an appropriate way to circumvent that the statutory scheme for the hearing of prison disciplinary matters and because the circumstances of this case are not amenable to resolution by judicial review, the application is allowed and the proceeding is struck out as an inappropriate use of judicial review.
Costs
[89]Costs are reserved.
Solicitors:
Crown Law, Wellington Copy to: Mr Genge
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