Genge v The Visiting Justice Christchurch Men's Prison
[2017] NZHC 2936
•29 November 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2016-409-000925
CIV-2016-409-001033 [2017] NZHC 2936
BETWEEN RICHARD GENGE
Plaintiff
AND
THE VISITING JUSTICE CHRISTCHURCH MENʼS PRISON First Defendant
AND
THE ATTORNEY-GENERAL Second Defendant
Hearing: 31 October 2017 Appearances:
Plaintiff in person
No appearance for the First Defendant
M J McKillop for the Second DefendantJudgment:
29 November 2017
JUDGMENT OF NATION J
[1] The plaintiff (Mr Genge) has been a prisoner for some 24 years following his convictions for murder and rape. He is currently an inmate at Christchurch Men’s Prison.
[2] On 7 March 2016, Mr Genge appeared before a prison adjudicator on a charge of behaving in a threatening and intimidating manner under s 128(1)(c) of the Corrections Act 2004 (the Corrections Act). That charge related to an incident which occurred on 23 February 2016, where Mr Genge had an altercation with and abused a prison officer after he and his cell had been searched. Although it was later the
subject of argument by Mr Genge before various Visiting Justices, it appears he
GENGE v THE VISITING JUSTICE, CHRISTCHURCH MENʼS PRISON [2017] NZHC 2936 [29 November
2017]
pleaded guilty. He was sentenced to 14 days off-privileges. I refer to this as the
“925 matter”.
[3] Mr Genge was also charged with a second offence under s 128(1)(c) of the Corrections Act. It was alleged that, on 19 May 2016, during the course of Mr Genge’s transportation to and attendance at a medical appointment, he behaved in a threatening manner towards various police officers. This involved abusive and threatening language directed at officers before and after Mr Genge’s medical appointment had to be cancelled partway through. It was also alleged that Mr Genge forcefully pulled and dragged the officer, to whom he was handcuffed, in the course of returning to the prison van and then again once inside the van. He pleaded not guilty to this charge before the adjudicator on 1 June 2016. I refer to this as the “1033 matter”.
[4] On 4 August 2016, both these charges came before Visiting Justice Armstrong; the 925 matter as to penalty and the 1033 matter for hearing on the charge itself.
The documentary and evidential background
[5] I have been presented with the documentary record of certain decisions made by the adjudicator. I have transcripts of the various hearings before Visiting Justices. In a hearing before the Visiting Justice on 14 April 2016, the Visiting Justice referred to her having re-listened to the recording of a hearing, also before her, on 17 March
2016 when there was discussion as to whether Mr Genge’s appeal was against sentence only. That indicated there was a record of what occurred at that hearing. Despite this, it took considerable time and some effort on Mr Genge’s part to obtain a transcript of that hearing. Mr Genge has provided a number of documents with submissions he had presented to the Visiting Justice and in support of submissions made in the Court proceedings. I have referred to those.
[6] The second defendant filed an affidavit from the prosecutor who had appeared at the initial hearings before the Visiting Justices on the 925 matter. Annexed to that affidavit were various documents providing some background to the
925 matter when Mr Genge and his cell were searched.
[7] Mr Genge swore an affidavit on 16 June 2017 in which he said “all evidence I have entered as exhibits are true and factual”, referring to 47 exhibits for the 925 matter and 11 exhibits for the 1033 matter.
[8] Mr Genge also swore an affidavit on 30 June 2017, in which he refers to the delay in obtaining a transcript of the hearing before a Visiting Justice on 17 March
2016.
[9] Mr Genge also filed an affidavit of a counsellor/therapist, Matiu Zijlstra, sworn on 26 January 2017. It refers to Mr Genge suffering from Post Traumatic Stress Disorder (PTSD) and how Mr Genge had said this affects the way he responds to certain situations.
[10] Mr Genge made detailed and lengthy submissions before me when he appeared by way of audiovisual link. He had also earlier filed written submissions referring to various legislation, conventions and regulations. I also received both written and oral submissions from Mr McKillop, appearing for the second defendant.
The 925 matter
The claim
[11] On 22 September 2016, Mr Genge filed with the High Court an application for judicial review by way of statement of claim. Mr Genge made the following claims and allegations in relation to the 925 matter:
(a) he complained about the manner in which he and his cell were searched by the “Search-Emergency-Response-Team” [sic];
(b) he claimed that, because he was anxious and felt threatened, he asked a prison officer if he was trying to start a fight, and that was the context for his remarks;
(c) he claimed that, after he had been charged, he appeared before an adjudicator, denied behaving in a threatening or intimidating manner but was sentenced to 14 days off-privileges by the adjudicator;
(d) he claimed that, when he first appeared before a Visiting Justice, the prosecutor misled the Visiting Justice by saying that Mr Genge was only appealing his sentence and by saying Mr Genge had done this in the way he had marked his appeal form;
(e) he claimed that, because of the statements by the prosecutor, he had been denied the right to appeal against the finding that he was guilty of the charge;
(f) he referred to the Visiting Justice adjourning the hearing of the appeal.
He contended that, because he had given evidence and presented a psychiatric assessment in his defence, that Visiting Justice was bound to ultimately hear the appeal but that she did not so so;
(g) he alleged that, when the hearing of the appeal proceeded before a different Visiting Justice, he was denied a fair hearing because his appeal was limited to sentence only, and because the Visiting Justice had no regard for the psychiatric report which Mr Genge had made available to the first Visiting Justice when the appeal was first called before her; and
(h) he claimed the penalty imposed was unlawful because it resulted in his being punished twice for the same offence because, while his appeal was pending, he had been punished by not being allowed to participate in a Unit barbecue.
[12] By way of remedy, Mr Genge sought:
(a) a declaration that the Visiting Justice’s decision was invalid;
(b) an order quashing the decision of the Visiting Justice; (c) Mr Genge’s classification be reinstated to low/medium; (d) Mr Genge’s mother receive $2,500 for damages;
(e) Mr Genge receive $500 a day for the 14 days he spent without privileges, a total of $7,000; and
(f) a declaration that every Visiting Justice presiding over disciplinary hearings has to be trained and have some understanding as to the relevant law and its application.
The initial search of Mr Genge and his cell
[13] It is significant that Mr Genge does not claim he or his cell were subject to an illegal search. Prison records indicate the incident started around 4.20 pm on 23
February 2016, when a prisoner “M” was seen by prison staff performing a haka in a compound area, apparently under the influence of a suspected prohibited substance. The Site Emergency Response Team (SERT) were summonsed. The Kotuku Unit was put in lock-down. A prison officer reported that he had seen Mr Genge take an unknown item from M and take it to Mr Genge’s cell. SERT then went to Mr Genge’s cell. They reported that, as they approached, they heard his toilet being flushed. Mr Genge was taken away from his cell and was searched but nothing was found either on him or in his cell. Prison officers reported that, as Mr Genge was being relocated to his cell, he made several threats to officers, inviting them to “one outs” and saying “I will fucken smash yous”, or words to that effect. The prison officers also reported that, after Mr Genge had been re-secured in his cell, they approached the nearby cell occupied by prisoner M but disengaged when M behaved threateningly towards them.
[14] In his submissions, Mr Genge made much of a claim that another prison officer had been close by him and had not reported seeing Mr Genge take anything from prisoner M.
[15] For these proceedings, it is neither necessary nor appropriate for me to express a view as to the basis or way in which SERT searched Mr Genge’s cell or person but the incident is the background to what happened subsequently.
[16] Mr Genge was charged that, on 23 February 2016, “being a prisoner at
Christchurch Men’s Prison on Tuesday 23 February 2016 he behaved in a
threatening, and intimidating manner”.1 The misconduct report relating to the event, which is produced when a prisoner is charged with an offence, stated:
On the 23rd February 2016, Kotuku Unit, at approximately 1625 hours while escorting Prisoner GENGE back to his cell after searching his cell, Prisoner GENGE became threatening by offering CO Poole to a fight and saying “I will fuck you’s”.
The hearing before the Adjudicator
[17] Mr Genge appeared before an adjudicator on that charge on 7 March 2016. In submissions before me, and at certain points before a Visiting Justice at later hearings before her, Mr Genge was to assert that at the initial hearing he never pleaded guilty to the charge but admitted that he had said something to the effect “do you want a fight” to a prison officer.
[18] There is no transcript of the hearing, however, a record of hearing form (signed by the adjudicator) notes the charges were read and the prisoner entered a plea of guilty. The finding is recorded as case proven. In the space for reasons for finding, there is a note “guilty plea and officers report”. The penalty imposed is noted as being 14 days’ forfeiture/postponement of privileges. In the space for reasons for penalty, there is a note “explanation given – credit for plea given”. The adjudicator also notes that the prisoner was given notice of appeal rights.
[19] Mr Genge signed a notice of appeal. It is the same date as the hearing before the adjudicator. The form notes that, when an appeal is made, any penalty imposed by the adjudicator is suspended until the appeal has been decided by the Visiting Justice. A note on the bottom of the form also records: “[i]f the Prisoner has pleaded guilty before a Hearing Adjudicator then the appeal will be against the severity of the sentence imposed”.
[20] The appeal form has three tick boxes in which the prisoner can indicate whether he is appealing against:
(a) both the decision of the hearing adjudicator and the severity of the sentence;
1 Under Corrections Act 2004, s 128(1)(c).
(b) the severity of the sentence alone; and
(c) a decision of the adjudicator not to allow legal representation. None of those boxes were ticked.
The first appeal hearing before a Visiting Justice
[21] There was then a hearing before Visiting Justice Welsh on 17 March 2016. The same prosecutor who had appeared at the hearing before the adjudicator appeared before the Visiting Justice. The record of hearing signed by that Visiting Justice notes it was a hearing for an appeal against penalty, and that both the prosecutor and Mr Genge produced documents but the appeal was adjourned for Mr Genge to conduct legal research. The Visiting Justice made a separate note referring to a discussion about an adjournment being necessary to do legal research. She said the matter could be heard by any Visiting Justice.
[22] The transcript of this hearing begins with introductory remarks made by the prosecutor. She referred to Mr Genge appearing before the adjudicator on 7 March
2016 with a plea of guilty, being sentenced and then, on the same day, appealing his sentence. She asked Mr Genge whether he still wished to continue with the appeal regarding sentence. Mr Genge referred to having a witness list, at which point the prosecutor interrupted and said that, as Mr Genge had pleaded guilty, the matter was an appeal against sentence only. Mr Genge’s response is recorded as being “the reality is, I didn’t really want to have put it in front of the adjudicator”. He said he was just wanting to appeal the matter before a Visiting Justice, which is why he did not say what it was he was appealing. Mr Genge then said that, on the day, he had requested the incident report and the file note. He is recorded as saying to the Visiting Justice “I plead [sic] guilty to see what the sentence would be”.
[23] Mr Genge is further recorded as saying to the Visiting Justice that he was asked by the adjudicator if he had “stepped out this officer” to which he said “yeah well I did that’s true and the reality is, I mean I did but I’m not going to be provoked. The staff provoked me.” Later Mr Genge maintained he did not plead guilty. The Visiting Justice said she would look at the records. There was then an exchange
between Mr Genge and the Visiting Justice about what had transpired before the adjudicator. He told the Visiting Justice the adjudicator had asked “did you do this?”, to which Mr Genge had said “yes I did do that” and then asked “what kind of sentence are you going to give me?”. Mr Genge reiterated the adjudicator had asked if he had “stepped the officer out” and Mr Genge said “yeah I did I did do that”. Mr Genge told the Visiting Justice that the officer involved had been “goating [sic] him”.
[24] The prosecutor is then recorded as clarifying that she was present at the hearing before the adjudicator, that there had been a discussion and Mr Genge gave a clear plea of guilty. There was further discussion between Mr Genge and the Visiting Justice over whether he had originally pleaded guilty. That discussion concluded with Mr Genge asking if he could judicially review the whole process but asking the Visiting Justice to confirm she was saying he could only appeal the sentence. The Visiting Justice confirmed this was the position.
[25] The Visiting Justice then had a discussion with Mr Genge as to why he considered the 14 days off-privileges penalty was harsh. In the course of that discussion, Mr Genge said he had two pages of a report from a psychiatrist which showed he had an anxiety problem. That was why he felt threatened by the prison officer and why he responded by threatening them back. There was further discussion about what happened when the prison officers came to Mr Genge’s cell. During that discussion, the prosecutor referred to the incident at the Unit and said there were other prisoners involved: “in other words more prisoners searched”.
[26] The Visiting Justice then had a discussion with Mr Genge about his wanting to inspect certain regulations and his not having been able to do so. This led to a discussion about whether or not there had to be an adjournment. The prosecutor expressed a concern that Mr Genge might be wanting to have a trial after he had pleaded guilty and the precedent that could set. The Visiting Justice confirmed that she was satisfied Mr Genge had in fact pleaded guilty and they were now proceeding on the basis there would be an appeal against penalty only. She allowed an adjournment of six weeks for Mr Genge to check out certain regulations and legislation.
The second and third appeal hearings before a Visiting Justice
[27] The next hearing before a Visiting Justice was on 14 April 2016. The same prosecutor appeared, as did Mr Genge and it was also heard before Visiting Justice Welsh. That hearing resulted in another adjournment to allow Mr Genge time for further legal research. At the outset, the Visiting Justice confirmed that the hearing would be only in relation to an appeal against penalty. She confirmed that was the position after re-reading her notes and after listening to a tape of the first hearing of
17 March 2016 and the records demonstrating that Mr Genge had initially pleaded guilty. She made no reference to the notice of appeal and did not refer to either being told about or seeing any notice of appeal which might have demonstrated the appeal was to be against penalty only.
[28] The next hearing, also before Visiting Justice Welsh, was on 7 July 2016. The whole of that hearing was taken up with the Visiting Justice deciding whether Mr Genge had been able to obtain the legislation he wanted and whether he required a further opportunity to make certain enquiries. The Visiting Justice heard certain evidence in relation to that. The end result was a further adjournment.
Mr Genge’s claim the prosecutor committed perjury and misled the Visiting Justice at these hearings
[29] In his statement of claim and in submissions, Mr Genge claims the prosecutor perjured herself and misled the Visiting Justice by saying Mr Genge had indicated on his appeal form that he was appealing sentence only and had provided to the Visiting Justice a copy of an appeal form showing that Mr Genge had ticked the appropriate box consistent with that.
[30] Mr Genge addressed me at some length, referring to cases and what the law required so far as intent was concerned for someone to be guilty of perjury.
[31] In her affidavit, the prosecutor said she did not recall discussing the appeal form at the hearing on 17 March 2016 and noted there was no reference to the appeal form in the transcript of that hearing. She said there was discussion before the Visiting Justice as to whether Mr Genge had pleaded guilty before the adjudicator.
[32] Mr Genge also says the prosecutor perjured herself and misled the Visiting Justice by saying at the 17 March 2016 hearing that, during the incident leading to this charge, prison officers had searched other prisoners. There is no record of such searches being carried out. A little later in the hearing, after having referred to other prisoners being searched, the prosecutor responded to a question from the Visiting Justice as to the nature of the situation that had led to the charge against Mr Genge by saying there was a “situation in the unit”. Having read the transcript of what occurred, I am satisfied that the prosecutor believed what she was saying was true. She was not giving evidence on oath so her statements as to this could not, in any way, amount to perjury. I am also satisfied that, whatever the prosecutor may have said about this, it was not material to the way Mr Genge’s appeal was ultimately dealt with.
[33] Having read the transcript of the hearing on 14 April 2016, and having seen such documents as have been produced in relation to what happened in the various hearings, I am satisfied there was no basis for Mr Genge to allege the prosecutor had perjured herself in making statements to the Visiting Justice about what had happened before the adjudicator. I am quite satisfied she never produced any document purporting to be a notice of appeal signed by Mr Genge and indicating that he was appealing against the sentence only. In his affidavit of 30 June 2017, Mr Genge stated that, in neither the recording of that hearing nor a transcript he had subsequently seen, was there any record of a discussion about what was on his appeal form, as he claims did occur. Mr Genge’s claim in this regard is thus not supported by the transcript of what was said during the hearing. It is not consistent with the documents that have been produced. The Visiting Justice did not at any time refer to any such document in deciding that the appeal was only against sentence.
The final appeal hearing before a Visiting Justice
[34] The substance of Mr Genge’s appeal was ultimately heard on 4 August 2016 before Visiting Justice Armstrong. The transcript begins with a note that it has been made from a poor-quality sound recording. The accuracy of the content could not be
guaranteed, and dialogue which could not be transcribed was indicated as
“inaudible”.
[35] The transcript begins with the prosecutor stating that it was an appeal against sentence only. Mr Genge’s responses to that are shown largely as “inaudible” but it seems likely that he was asserting again that he had not originally pleaded guilty. In response to whatever Mr Genge said about this, the new prosecutor read out s 136(5) Corrections Act 2004:
If the appeal to the Visiting Justice relates only to a penalty imposed by the hearing adjudicator, the Visiting Justice must consider only the question of the penalty, and may either—
(a) confirm the penalty; or
(b) if in his or her opinion the circumstances require it, impose in its place any penalty that could have been imposed by the hearing adjudicator.
[36] After this discussion, the Visiting Justice said he agreed with the note made by Visiting Justice Welsh at the previous hearing, that Mr Genge’s appeal could be heard before a different Visiting Justice. Mr Genge confirmed that he had now had the opportunity to do the legal research he desired. In those circumstances, Visiting Justice Armstrong was satisfied that a substantive hearing before Visiting Justice Welsh had not commenced, and the procedural issues dealt with, he was able to hear the appeal.
[37] There was nothing unlawful or unreasonable in the actual hearing of the appeal proceeding before a new Visiting Justice. In the earlier hearings, Visiting Justice Welsh had clarified whether the appeal was against sentence only and had decided, in the face of extensive submissions from Mr Genge, that an adjournment of the appeal was necessary to allow him to do further research. The hearing on 4
August 2016 proceeded as a fresh hearing at which both the prosecutor and Mr Genge were free to make whatever submissions they wished in relation to the matters at issue. Mr Genge took advantage of this to bring up a completely new issue as to his disqualification from attendance at a Unit barbecue on 8 April 2016. Although he had produced part of a psychiatric report at an earlier hearing, he was free to refer to that document again at the subsequent hearing and did in fact refer to it.
[38] I am also satisfied there was no denial of natural justice nor any procedural irregularity in the appeal proceeding as an appeal against sentence only. I am satisfied, as was the Visiting Justice, that, given the contemporaneous record from the adjudicator as to what happened at the initial hearing and Mr Genge’s own statements as to what happened at that hearing when the issue was being discussed with Visiting Justice Welsh on 17 March 2016, Mr Genge had admitted to behaving in a threatening way towards the prison officers after his cell was searched. Although he may have wanted to emphasise how it was the search that caused him to be anxious and act as he did, this was by way of mitigation, not to deny the actual offence. Consistent with that also, in his submissions to me, Mr Genge made much of how the affidavit he had filed from the therapist indicated that, by reason of his claimed PTSD, he was programmed to fight or flee when he was confronted with such a stressful situation.
[39] Mr McKillop acknowledged that, in a criminal prosecution context, the courts do not completely rule out the possibility of an appeal against conviction where there has been a guilty plea; the touchstone remains whether there has been a miscarriage of justice.2 However, even in that context, courts have emphasised that an appeal against conviction following a guilty plea will only be entertained in exceptional circumstances.
[40] Authority in the Court of Appeal demonstrates that miscarriages of justice may have occurred:3
(a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b) where on the admitted facts the appellant could not in law have been convicted of the offence charged;4
(c) where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law; and
(d) where trial counsel erred in his or her advice to an accused as to the non- availability of certain defences or outcomes.5
2 Criminal Procedure Act 2011, s 232(2)(c).
3 R v Le Page [2005] 2 NZLR 845 (CA) at [17]-[19].
4 R v Mohammed CA415/96, 13 November 1996.
5 R v Merrilees [2009] NZCA 59 at [34].
[41] Given Mr Genge’s own submissions as to what occurred both in the 925 matter and what he said at the various hearings before Visiting Justices, I am satisfied that none of those circumstances had arisen in this case.
[42] In considering the fairness as to what occurred, it is important to bear in mind the context in which these hearings take place, the informal nature of them and the penalty imposed. The distinction between the adversarial nature of true criminal proceedings and the inquisitional nature of prison disciplinary matters, has been judicially noted.6 In a criminal context, the courts have made it clear there will be significant hurdles for an appellant to face where he seeks to bring an appeal against conviction following a guilty plea. Those hurdles should certainly be no less in the prison disciplinary context although the informal and inquisitional nature of the proceedings will mean that the Visiting Justice will scrutinise carefully all the circumstances of the case.
The barbecue issue and potential double punishment
[43] After the Visiting Justice had established that Mr Genge had done the research he wanted to, Mr Genge began making submissions as to the way he asserted the Department of Corrections (the Department) had breached its own regulations, the New Zealand Bill of Rights Act 1990 (NZBORA), the Corrections Act and the Prison Services Operation Manual, and standard minimum rules for the treatment of prisoners, through his being punished while his appeal was pending. He said he had been denied the ability to participate in a cultural day, specifically a barbecue. He was referring to a barbecue which had been held in the Kotuku Unit on 8 April 2016.
[44] Mr Genge produced the notice for that barbecue. It stated the prisoners not eligible to participate would be those with:
• Pending misconducts
• Pending appeals of misconducts
• Off-privileges
6 Drew v Attorney General [2002] 1 NZLR 58 (CA) at [91].
• Cell confinement.
[45] The transcript indicates the Visiting Justice understood the point Mr Genge was making. He in fact commended him for the research he had done and the structured way he had presented the argument. He appreciated that Mr Genge’s penalty of 14 days off-privileges had been suspended pending his appeal. He recognised that Mr Genge was arguing that he would be penalised twice if he had to serve the 14 days off-privileges penalty, because he had already been denied the ability to participate in the barbecue because of his pending appeal relating to the misconduct charge.
[46] The prosecutor argued that Mr Genge’s participation in the barbecue was simply a management issue and that whether or not he had been rightly excluded from the barbecue was not an issue relevant to the appeal. Mr Genge argued to the contrary. The Visiting Justice concluded that the prison was not obliged to put on a barbecue and that, if it chose to do so, it was a matter of “prison discretion and a matter of prison management” and thus there would not be double punishment if Mr Genge had to serve the 14 days’ penalty. He then asked for Mr Genge’s submissions as to the 14 days’ penalty itself.
[47] Mr Genge then told the Visiting Justice how he had been surrounded by SERT with their shields, helmets, stab-proof vests and riot gear, and that he was told he was going to be strip-searched without explanation. He referred to his having provided Visiting Justice Welsh with the psychiatrist’s report referring to his anxiety at being surrounded by men in situations such as this, and that he regarded SERT’s search actions as being “over kill”. There was further discussion with the Visiting Justice in which Mr Genge acknowledged that he had “said something” because he was not happy with what was happening. The prosecutor submitted the penalty had been a low one considering Mr Genge’s record over the previous year, although the discussion as to that was curtailed.
[48] That discussion concluded with the Visiting Justice saying that he was satisfied in all the circumstances that 14 days was very much at the lower end of the scale. He therefore dismissed Mr Genge’s appeal.
[49] Mr Genge submitted the Department has an obligation to provide an event such as a barbecue because of its obligation to respect the culture of inmates and provide for their rehabilitation. In submissions, he said the barbecue is valued by prisoners because the food was different from what they normally receive (they have sausages and a potato salad). He said the barbecue provides an opportunity, different from the norm, for social interaction with other prisoners.
[50] Mr Genge referred in some detail in submissions before me to legislation, Regulations, and Prison policy, which he says establishes his right to attend the barbecue hosted by the prison.
[51] He referred to the “guiding principles of correction” set out in s 6 Corrections
Act, in particular s 6(1)(c), which provides:
(c) in order to reduce the risk of reoffending, the cultural background, ethnic identity, and language of offenders must, where appropriate and to the extent practicable within the resources available, be taken into account—
(i) in developing and providing rehabilitative programmes and other interventions intended to effectively assist the rehabilitation and reintegration of offenders into the community; and
(ii) in sentence planning and management of offenders:
[52] He referred to MC.03(3)(a) of the Prison Services Operation Manual, which provides that a prisoner retains his minimum entitlements pending the hearing of a charge against them.
[53] This begs the question as to whether the Department was obliged to organise and provide to prisoners a barbecue at the prison. That is a precondition for any entitlement Mr Genge might have had to attend, save for the argument, discussed below, that his being prevented from attending was a form of punishment. On the evidence available to me, I am not willing to hold the department was under an obligation to provide a barbecue for prisoners.
[54] It is clear that a Unit barbecue does not immediately fall under any of those stipulated minimum entitlements for prisoners set out in s 69 Corrections Act.
[55] Consistent with that, the minimum entitlements, as described in F.01.01 of the Prison Services Operation Manual, do not refer to events or fixtures of that nature. Those entitlements contain a footnote “at the discretion of the prison director, individual units may organise and fund barbecues/boil-ups/hangi and any other culturally related meals”. Consistent with that, prisoners had to choose whether they wished to participate and had to pay for the food they would be obtaining as part of the barbecue.
[56] Mr Genge also referred to s 72 Corrections Act, which provides that “[a]s far as practicable in the circumstances, in providing food and drink to prisoners, allowance must be made for the various religious, spiritual, and cultural needs of the prisoners”.
[57] Mr Genge argued that the Department was obliged to hold a barbecue on the basis that “it has long been held that a barbecue is part of Kiwi/New Zealand culture”. He supported this argument by reference to the provisions of ss 6(c) and 72 of the Act, referred to above. I do not accept that the general requirements to respect and provide, where practical, for cultural needs of prisoners, obliges the prison to hold a barbecue-type function which all prisoners are entitled to attend.
[58] Mr Genge also submitted that the decision he would be ineligible to participate in the barbecue because of his pending appeal was a punishment. In the discussion that took place before him at the hearing on 4 August 2016, the Visiting Justice noted that it was common, on appeals to the Visiting Justice, for prisoners to claim that, following a reported offence, decisions would be made as to their conditions which amounted to a punishment such that they should not be punished again.
[59] It has been accepted by the High Court that prison authorities will frequently have to make decisions as to the management of a prisoner to ensure his safety, the safety of all prisoners and the safety of prison officers or others dealing with them. Such decisions are not to be construed as punishment, even though that is how they
might be perceived by the subject prisoner.7
7 Shaw v Attorney-General [2003] NZAR 216 (HC). See also Watson v Chief Executive of the
[60] Despite this, in submissions, Mr McKillop said the Department accepted that, in this instance, the barbecue prohibition for Mr Genge did constitute a punishment, and the Visiting Justice had been wrong in holding that it did not. He made it clear that this concession was made solely because of the way the barbecue was being made available to prisoners and the express basis on which the prison had ruled that certain prisoners would be ineligible.
[61] There was no evidence before either me or the Visiting Justice as to the rationale for the criteria for ineligibility. Mr Genge had not raised an issue arising out of his exclusion from the barbecue at his initial hearing before the adjudicator on
7 March 2016 or his first appearance on appeal before Visiting Justice Welsh on 17
March 2016. Those hearings preceded the barbecue. He had not raised an issue about his exclusion from this at subsequent hearings before the hearing on 4 August
2016. There was also no evidence before either the Visiting Justice or me that Mr Genge had challenged the ineligibility criteria for the barbecue at the time he was given notice of it.
[62] Because there was no obligation on the prison to provide a barbecue and no prisoner was entitled, as of right, to participate in one, the holding of a barbecue would have been a privilege for the prisoners involved. The notice made it clear it was to take place outside the prisoners’ cell area in the Kotuku Unit old visits area.
[63] It may be that the prison authorities considered there would be security risks associated with this sort of occasion and, for that reason, those facing misconduct charges or awaiting the hearing of an appeal in relation to a misconduct offence gave rise to security concerns which would not apply to other prisoners and, on that basis, such prisoners should be excluded from participation. Had that been the rationale for their exclusion, the prohibition on such a basis against such prisoners could have been considered a management decision rather than a punishment.
[64] However, given the Department’s concession, I deal with this application on
the basis that, in being declared ineligible for the barbecue and being unable to
Department of Corrections [2015] NZHC 1227, [2015] NZAR 1049.
attend it on 8 April 2016, Mr Genge was punished as a result of the misconduct charge he admitted on 7 March 2016.
[65] Mr Genge then argued that he should not have been sentenced to any further penalty because legally he should not have been punished twice for the same offence. He referred to cl 49 of Schedule 7 to the Corrections Regulations 2005 (the Regulation), which provides that “[n]o prisoner may be punished more than once for the same disciplinary offence”. This is reflected in the Prison Services Operation Manual at MC03(3)(b), which similarly provides that a prisoner must not be punished twice for the same offence.
[66] Mr Genge also referred to the preceding cl 48, which provides that, if a prisoner has been charged with a disciplinary offence and is awaiting hearing, they may not be punished “at any time before the disciplinary hearing has concluded”.8
[67] Mr McKillop did not argue against the submissions which Mr Genge made in this regard. However, he submitted the real issue was over whether or not the way the Visiting Justice had dealt with Mr Genge’s appeal against sentence had in fact resulted in double punishment which required the relief sought through these proceedings.
[68] The Visiting Justice on 4 August 2016 upheld a penalty in relation to the 925 matter of 14 days off-privileges. At the same time as that penalty was imposed, the Visiting Justice imposed a penalty of seven days’ cell confinement and 40 days’ off- privileges in relation to the 1033 charge. For reasons I deal with in detail, I hold there was no error with regard to that penalty. Accordingly, the penalty imposed on the 925 matter was concurrent with and effectively subsumed in the penalty on the
1033 matter. As a result of his guilty plea, Mr Genge does have a record that he was guilty of this particular penalty charge and that a penalty of 14 days off-privileges was imposed for that. Apart from that, effectively he suffered no further penalty as a
result of that offence.
8 Corrections Regulations 2005, Schedule 7, cl 48(b).
Conclusion as to 925 matter
[69] The granting of the relief sought by way of judicial review is discretionary. But for ineligibility for the barbecue on 8 April 2016 being potentially a punishment, I do not consider there was any error in the penalty that was originally imposed by the adjudicator. At the time that penalty was imposed, it was within range, was at a low level and gave credit to Mr Genge for his guilty plea. I do not consider there was anything unlawful or unfair in the process by which Visiting Justice Armstrong reached his decision.
[70] Given the Department’s concession, the error which occurred was in relation
to the prison’s decision to exclude Mr Genge from the barbecue that took place on 8
April 2016. It is not, however, necessary for me to make any formal declaration as to this. Given the lack of any evidence as to the rationale for the criteria for eligibility both before the Visiting Justice and before me, I decline to do so.
[71] Had the Visiting Justice held exclusion from the barbecue was a punishment, as Mr McKillop said he should have, the Visiting Justice could still have held that, on top of that, a low-level penalty of 14 days’ off-privileges was still an appropriate penalty for the offending. At best, from Mr Genge’s point of view, the Visiting Justice might have allowed the appeal by varying the 14 days’ off-privileges to, say,
12 days. Either way, Mr Genge’s prison record would still show the misconduct charge had been proven and a low-level penalty imposed. This is, in substance, no different from what the record demonstrates as it now stands. Tinkering with the sentence imposed would make no material difference to the penalty that Mr Genge actually suffered.
[72] In the exercise of my discretion, I am not allowing for any of the relief he seeks in relation to the 925 matter. His application for judicial review in proceedings CIV-2016-409-000925 is declined.
The 1033 matter
[73] On 20 October 2016, Mr Genge filed with the High Court an application for judicial review as to the 1033 matter. He asserts the process by which he was penalised for the 1033 matter was unlawful because:
(a) he was denied a hearing on the charge to which he had pleaded not guilty when he appeared before the adjudicator on 1 June 2016. He claims this was done without any case being presented against him or any witnesses for the prosecution giving evidence. He claims this was not in accord with the Department’s obligations as set out in the Prison Service Operations Manual;
(b) the charge was unlawfully adjourned for hearing on 4 August 2016, after it was called before a Visiting Justice on 7 July 2016 and adjourned without any appearance from Mr Genge. He says this was in breach of the procedure provided for in terms of the Prison Service Operations Manual, various Regulations, the United Nations Standard Minimum Rules for the Treatment of Prisoners, the NZBORA and the Human Rights Act 1993;
(c) at the hearing on 4 August 2016, Mr Genge was denied the opportunity to fairly present his defence and cross-examine witnesses through the way the Visiting Justice prevented him from asking certain questions; and
(d) he claims he was not offered or given the opportunity to give evidence, make any type of defence or make any plea in mitigation, before he was sentenced.
[74] In a submission filed in the 1033 proceedings on 13 February 2017, Mr
Genge also complains “he was not allowed a unit BBQ in Rawhiti 2 unit of 24
August 2016”, contrary to s 136(6) Corrections Act.
[75] By way of remedy, Mr Genge sought a declaration that the Visiting Justice’s
decision was invalid, an order quashing that decision, costs, $1,000 a day for the
seven days Mr Genge claimed he spent in the maximum security block at Christchurch Men’s Prison, and $500 a day for the 33 other days he spent off- privileges.
[76] There was no dispute that Mr Genge had a right to defend the charge he faced and a right to natural justice in the process which was followed. He had the right to cross-examine witnesses to the extent necessary to ensure the hearing was fair and to put forward what he wanted to say in defence. Because his rights in this regard were not in dispute, there is no need for me to refer to the legislation, conventions and so on which Mr Genge mentioned as giving him such rights.
[77] Mr Genge’s allegations and claims can be dealt with in relatively short order.
[78] The adjudicator completed a record of hearing form as to Mr Genge’s first appearance before him on this charge on 1 June 2016. It records a plea of not guilty. In the concluding section of the form, the adjudicator records the case has been referred to a Visiting Justice. The reasons were noted as “refer to VJ trial. Refused to enter into any discussion.” The box for recording that “[t]he case has been referred to the Visiting Justice for hearing (s 134(1) Corrections Act 2004)” has not been ticked but, with the heading to that section of the form and the stated reasons, it is apparent the adjudicator did refer the case to a Visiting Justice under s 134(1) Corrections Act 2004.
[79] Section 134(1) permits an adjudicator, at any time before making a decision as to whether the charge is proved, to refer the case to a Visiting Justice for hearing and determination. Pursuant to s 134(2), a hearing adjudicator may do that in any case where, because of the complexity of the issues likely to arise (including, without limitation, points of law), it would be appropriate for the case to be referred to a Visiting Justice.9
[80] Consistent with the note the adjudicator had made of Mr Genge’s attitude at
the initial hearing before him, the documentary record shows that Mr Genge was provided with a copy of the misconduct report detailing the charge against him and a
9 Corrections Act 2004, s 134(2)(b).
summary of the factual basis for the charge on 25 May 2016 but refused to sign the form where he could indicate what witnesses he wanted to appear at his hearing. He also refused to sign the acknowledgement of receipt of that notice.
[81] As all that happened on both the 925 and 1033 matters demonstrates, with Mr Genge’s attitude, as recorded, the adjudicator would have had ample reason to assume that complex issues would be likely to arise, both as to the likely conduct of the hearing and potential defences that Mr Genge might raise to warrant the charge being heard before a Visiting Justice. The way the adjudicator dealt with it was consistent with the way Mr Genge claimed he had wanted the adjudicator to deal with the charge which was the subject of the 925 matter. The transfer of the charge to a hearing before a Visiting Justice did not deprive Mr Genge of the opportunity to present a defence, to cross-examine witnesses or present a defence or a plea in mitigation. There was no denial of a right to natural justice nor any breach of Regulations or legislation which entitled him to defend himself at a hearing of the charge.
[82] The matter was next called before a Visiting Justice on 7 July 2016. For some reason, which is not apparent from the record, Mr Genge did not appear at that hearing but it turned out to be of an administrative nature only with the charge being adjourned for an actual hearing at which evidence would be called on 4 August 2016. Again, nothing happened when the matter was initially called before a Visiting Justice which, in any way, denied Mr Genge a right to a hearing of the charge against him or to present a defence.
[83] The hearing of this charge proceeded before Visiting Justice Armstrong after he had dealt with the 925 matter. The prosecutor advised Mr Genge and the Visiting Justice of the particular charge. Mr Genge confirmed he wished to maintain his not guilty plea. The prosecutor announced he was calling two witnesses, the two officers who had been involved. The Visiting Justice confirmed that Mr Genge was familiar with the procedure, that there was going to be a trial and he would hear initially from the prosecution. He confirmed that Mr Genge would have an opportunity to question the witnesses. He would be able to give evidence himself and could then speak to the Visiting Justice after that.
[84] The Department acknowledges in its statement of defence that, at various points during the hearing, the Visiting Justice prevented Mr Genge from asking questions. The context in which those refusals occurred is, however, apparent from the transcript of the hearing.
[85] The first witness called was Officer Manonmony. He and another officer had been tasked to escort Mr Genge to a medical appointment outside the prison. It was his evidence that, when they arrived at the clinic, he opened the caged door and asked Mr Genge to put his hand out so he could handcuff one of Mr Genge’s arms to the prison officer. He said that Mr Genge asked him what had been said to him back at the gatehouse to the prison when Officer Manonmony had spoken to another officer. He told Mr Genge that it was confidential and he would not divulge what other officers discussed about escorts and staff. Mr Genge kept asking and then said words to the effect “[a]nswer me now or do you want to fight?”.
[86] Officer Manonmony then gave evidence that, after he asked Mr Genge if he wanted to see the doctor or did he want to go back to prison, Mr Genge became compliant and walked with the officers to the doctor’s appointment. At the doctor’s, Mr Genge told the officers they needed to take the handcuffs off and he did not want the officers in the room with the doctor. The officers said they were not permitted to do that. Mr Genge kept asking them to do so and, in the end, the doctor required them to make another appointment. The two officers stopped with Mr Genge at reception to pick up paperwork. With Mr Genge handcuffed to Mr Manonmony, Mr Genge started dragging the officer towards the exit. They then had to put him in the van. When Mr Genge was in the cage of the van, the officers left a gap so Mr Genge could put his hand out and they could uncuff him. When they asked him to put his hand out, he said words to the effect “come in and get it, you cunt” and then started dragging Officer Manonmony’s hand towards the cage, causing the officer such pain that he uncuffed it at the officer’s end. The officers then called “Controls” at the prison. Mr Genge subsequently became compliant and there was no further incident.
[87] Early in his cross-examination of Officer Manonmony, Mr Genge referred to the initial conversation which the officer had with a guard at the gatehouse when they were leaving the prison. Mr Genge asked the office what that conversation was
about. The officer said that what he was told was confidential. It was at that point that Visiting Justice Armstrong intervened and asked Mr Genge what that conversation had to do with the charge. Mr Genge said he should be entitled to ask questions about it because, in his evidence, the officer had referred to that conversation.
[88] In the exchange that followed between Visiting Justice Armstrong and Mr Genge, the Visiting Justice said he would allow questions that were relevant to the charge but he considered this question was irrelevant. Mr Genge made it plain that he disagreed. The Visiting Justice then asked him to explain how it could be relevant. Within reasonably short order Mr Genge had not provided any explanation and the Visiting Justice ruled it was not relevant.
[89] I do not consider any injustice or any unfairness resulted from the conclusion which the Visiting Justice reached in this exchange. Officer Manonmony had mentioned the conversation that occurred as they were leaving the gatehouse only as background to explain the circumstances in which Mr Genge became agitated and then first acted in the threatening manner with which he was charged. Mr Genge had not been told, at the time they were leaving the gatehouse, what was said in the conversation. It was how Mr Genge acted after that which was at issue in the hearing. As he knew nothing of what had been said between the officers, what had been said between then was of no relevance to what was at issue at the hearing. As with a Judge in Court in criminal proceedings, the Visiting Justice was quite within his rights to disallow questioning as to a matter that had no relevance to what was at issue. Disallowing the question did not affect Mr Genge’s ability to present a defence.
[90] The next exchange arose out of Mr Genge’s attempts to question the officer as to whether they had a safety plan in place before they left the prison. The prosecutor objected to the question on the basis of relevance. There was then another exchange between Mr Genge and the Visiting Justice. In that exchange, the Visiting Justice explained to Mr Genge that they needed to deal with what actually happened. The Visiting Justice explained that, because they were dealing with what actually happened and the issue of whether Mr Genge had behaved in a threatening,
abusive and intimidating manner, it did not matter whether there was a safety plan or what that plan was. Mr Genge attempted to explain why he was asking the question. At that point, his explanation seemed to be that he wanted to show the officers involved were not experienced with what they were doing, hence the need for them to have some conversation with another officer from the guardroom before Mr Genge was put in the van. This exchange ended with the Visiting Justice reminding Mr Genge to stick to the facts and to what actually happened. Mr Genge argued with the Visiting Justice, the result of which was a further encouragement that Mr Genge ask questions about what actually happened if he was disputing this.
[91] Mr Genge suggested there may not have been a safety plan in accordance with the Prison Services Operations Manual and so the officers might not have been proceeding as they were required to do. That exchange ended with the Visiting Justice saying to Mr Genge that, if he was suggesting the officers had done something they should not have done, he could put that to Officer Manonmony. That led to Mr Genge then reverting to asking questions about what had happened in the conversation between the officers and another officer from the gatehouse. With Mr Genge proceeding in this way, the Visiting Justice ruled he could ask questions only about what actually happened, that he was not to go further into safety plans but that he could ask questions relevant to the charge. He again told Mr Genge to concentrate on what actually happened.
[92] In that exchange, there was no unfair denial of Mr Genge’s right to cross- examine witnesses on matters at issue or to present his defence. Whether or not there was a safety plan, what might have been in it and whether these officers were men of experience appeared to be irrelevant to what was at issue on the charge Mr Genge had denied. He was given the opportunity to suggest there might have been some provocation or acts on the part of the officers that led to him acting as he did. He did not pursue that line of questioning. The way in which the Visiting Justice dealt with Mr Genge at that point of the hearing did not result in any breach of the requirements of natural justice.
[93] Soon after, Mr Genge again began asking questions about what had been said with the officer from the gatehouse which the Visiting Justice had earlier said he
would not permit. With that, the Visiting Justice indicated that he was concerned as to whether the hearing could proceed because of Mr Genge’s refusal to comply with his directions. Nevertheless, he gave Mr Genge another opportunity to ask a different question. The hearing proceeded with Mr Genge attempting to pursue the same line of questioning which the Judge had ruled irrelevant.
[94] The Visiting Justice then took an adjournment to consider his options in light of Mr Genge’s continued non-compliance with the Visiting Justice’s directions. After that, the hearing resumed. The Visiting Justice addressed Mr Genge and told him that, if he did not leave a line of questioning which he had held to be irrelevant, he would have no option but to bring Mr Genge’s cross-examination of this witness to an end.
[95] Mr Genge then argued with the Visiting Justice, asking the Visiting Justice if he, Mr Genge, had protection under the NZBORA and other general references to rights which Mr Genge asserted he had. After Mr Genge had attempted to ask the officer if he was aware of a section of the Corrections Act, the Visiting Justice said this was not an occasion to test the officer’s legal knowledge. At the same time, the Visiting Justice said that, if Mr Genge thought the officer had done something wrong, he should come to the point about that. Mr Genge did not put any allegation of that sort to the officer.
[96] There were then some questions and evidence as to how the medical appointment came to end and what might have been involved with the rescheduling. That ended with Mr Genge again returning to a question about the Corrections Act, a question which the Visiting Justice had earlier said was not permitted. With that, the Visiting Justice told Mr Genge that he was going to stop the cross-examination unless it went to the circumstances of what happened. Mr Genge’s response to this was to ask questions as to the health records of prisoners, a question obviously not related to what happened. With that, the Visiting Justice stopped the cross- examination, observing that Mr Genge had simply defied his directions. There was no re-examination.
[97] Having carefully read the transcript of what happened when Officer Manonmony was called to give evidence, my conclusion is that Mr Genge showed no respect for the Visiting Justice or the procedure which was available for him to properly test the evidence and the basis for the charge that had been brought against him. He responded to the Visiting Justice in ways which, at times, were offensive. Despite this, however, he was given every opportunity to test the evidence which the officer had given as to what had happened. It was through no fault of the Visiting Justice that Mr Genge did not attempt to discredit the officer’s evidence in a relevant and meaningful way.
[98] The prosecution then called its next witness, Officer Mauchline. There followed an interjectory exchange with Mr Genge, whereby Mr Genge asked for a drink but attempted to insist on having water out of a tap because he did not trust other people at the hearing if they were going to bring him water in a cup.
[99] Officer Mauchline gave evidence as to how they left the prison, the background to Mr Genge becoming “more elevated” and asking if they wanted to fight, or words to that effect, and of them taking him to meet with the doctor. He described how they came to leave the doctor and the circumstances in which Officer Manonmony was pulled along by the handcuffs towards the exit.
[100] Mr Genge began his cross-examination referring to the officer’s evidence about how the officer had said that initially Mr Genge was acting aggressively and asking for a fight. Through cross-examination, the officer simply confirmed what he had already said.
[101] Mr Genge then asked Officer Mauchline to confirm that Mr Genge was deemed high risk within the prison. He then suggested that, if he had acted as the officers claimed, he would never have been taken in to see the specialist. This was a line of questioning directed at the officer’s evidence as to what had happened. The Visiting Justice did not curtail that questioning. The Visiting Justice addressed the witness, making sure he understood what was being suggested, that, if Mr Genge had acted aggressively as had been described, then they would not have proceeded with the consultation because protocol would require that they end it there and take him
back to prison. The officer responded to that suggestion by referring to his earlier evidence as to how they had managed to calm Mr Genge down after the initial aggressive exchange.
[102] Mr Genge asked Officer Mauchline whether his partner had been “hyped up” and animated on the day of the escort. That was answered in the negative. Mr Genge began asking questions of the witness generally as to whether prison officers got “hyped up” in their work generally. The Visiting Justice intervened at that point reminding Mr Genge of the need to concentrate on what was relevant.
[103] When Mr Genge attempted to ask further questions, which were irrelevant to what was issue, the Visiting Justice brought the cross-examination to an end. There was no re-examination.
[104] It seems from Mr Genge’s questions of Officer Mauchline and his submissions to me that, at the hearing, Mr Genge had planned, through his questions, to have the officers confirm that they had instructions as to how to deal with prisoners who were causing problems during escorts. He may have hoped that, through establishing the officers had not acted in a way consistent with those instructions, he could have persuaded the Visiting Justice to accept that he (Mr Genge) could not have been acting in the threatening, abusive or intimidating way with which he was charged.
[105] Had that been the purpose of Mr Genge’s questions when he was questioning Officer Manonmony, he should have told the Visiting Justice this was so. He could have put that proposition to Officer Manonmony just as the Visiting Justice helped him do with Officer Mauchline. He did neither.
[106] Nor do I think such a line of questioning, if it had been pursued, would have made any difference to the end result. That proposition was put to Officer Mauchline, who explained that, in response to Mr Genge’s initial agitation, they had managed to calm him down so they could carry on taking him to the doctor. When the whole incident was over, they reported what had happened in ways that resulted in Mr Genge being charged. Their actions were thus consistent with Mr Genge
behaving in the way with which he was charged and which both officers had described in their evidence.
[107] After the prosecution case ended, the Visiting Justice said he was thinking he would like a short break. Before doing that, he noted they were still to hear evidence from Mr Genge and both the prosecutor and Mr Genge would have the opportunity to address him. Mr Genge is then recorded as saying “can we just get on with it, cos I’m really sick of it too”. The transcript then records “defence elects not to give evidence”. Consistent with that, Mr Genge is recorded as saying the prosecutor could give his summing up. The prosecutor and Mr Genge were then given and took the opportunity to sum up.
[108] The prosecutor very briefly summed up the evidence that had been given by the witnesses as to what constituted the threatening, abusive and intimidating behaviour. Mr Genge then responded. He claimed the officers had blatantly lied and said, if they were not lying, what they did was “in conflict with the description for the escorts”.
[109] After hearing Mr Genge’s complaints as to the manner of the hearing and the assertions he made, the Visiting Justice stated Mr Genge had not challenged crucial parts of the prosecution evidence. He was quite satisfied the officers were telling the truth. He found the charge had been proved. There was nothing unreasonable about that decision given the evidence he had heard.
[110] The Visiting Justice then sought submissions as to penalty. After the prosecutor made a brief submission, Mr Genge submitted he had been wrongly denied the opportunity to ask questions and asserted that what the officers described had not happened. The Visiting Justice told Mr Genge he had to make submissions in light of the finding that the charge had been proved. Mr Genge’s responses indicated he still wanted to argue about whether or not there had been behaviour of the sort with which he was charged. In the end, Mr Genge did make some submissions about penalty. He was particularly concerned about being made to spend time in the “pound” because it might mean he would not have the paperwork
he needed to continue with the various judicial review proceedings he had before the
Court.
[111] After an exchange about that, the Visiting Justice decided the case was a relatively serious case because there were several incidents of threatening behaviour, coupled with the action of pulling an officer along by handcuffs which the Visiting Justice said would have been quite a nasty and frightening experience. It was on that basis he arrived at the penalty which was ultimately imposed, a lesser penalty than the prosecutor had asked for. The hearing concluded with discussions over how Mr Genge might be assisted to obtain the paperwork he wanted.
[112] In these proceedings, Mr Genge’s complaint was not that, as a result of the way the hearing proceeded, he had been found to have committed the offence with which he was charged. His complaint was simply about the fairness of the hearing. Having carefully read and considered the transcript of what occurred, I am satisfied Mr Genge was given every opportunity to challenge the two officers’ evidence as to what they said had happened and he chose not to do so. He did not put it to the officers that they were lying or mistaken about what had happened. He did not suggest to them that he acted contrary to the way they described, nor give any particular account of that. The officers’ evidence as to Mr Genge’s behaviour was consistent with the undisputed fact that, with what was happening, Mr Genge’s arranged consultation with the doctor came to an end.
[113] Their evidence as to how Mr Genge acted with them was consistent with the behaviour he exhibited in relation to the 925 matter. In the affidavit Mr Genge filed in these proceedings, the counsellor/therapist, Mr Zijlstra, said that “for Mr Genge, crowds, being the centre of unsolicited attention and non-escape situations are all major triggers which queue immediately defensiveness, uncertainty, anxiety, disorientation and reliving experiences”. In submissions, Mr Genge referred to his being programmed to fight or flee in such situations. Whether or not Mr Zijlstra was right to attribute all this to Mr Genge having PTSD is not for me to determine. The way Mr Genge acted with the prison officers was, however, consistent with a “fight” response when in a situation with the officers which he did not like.
[114] Mr Genge was able to make submissions as to penalty. That penalty was imposed after he had been told he could not attend the barbecue on 24 August 2016. Because it would have been a privilege for him to attend that barbecue, his exclusion from it was inherent in the sentence of 40 days off privileges which was part of the sentence imposed for the 1033 charge. His exclusion from the barbecue did not result in his being punished twice for the same offence.
[115] Through these 1033 judicial review proceedings, Mr Genge is essentially complaining that, through the way this charge was heard and dealt with, he has been subjected to a denial of natural justice and has suffered a miscarriage of justice. I am quite satisfied that neither occurred. Whatever difficulties he encountered during the hearing were of his own making but they have not resulted in his being treated unlawfully or unreasonably, either with regard to proof of the charge or as to the penalty imposed.
[116] Mr Genge’s application for judicial review of the decisions made, as to the
1033 matter, is thus dismissed.
Costs
[117] As the successful party, the second defendant would normally be entitled to costs. The second defendant is to file a memorandum as to any costs that it seeks within 14 days. Mr Genge is to file his response by way of memorandum with 14 days after receiving those submissions. I will deal with the issue of costs on the basis of those memoranda. They are to be no longer than four pages.
Solicitors:
Crown Law Office, Wellington
Copy to:
Mr Genge, Christchurch Men’s Prison.
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