Genge v Visiting Justice at Christchurch Men's Prison
[2017] NZHC 3168
•15 December 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2017-409-000342 [2017] NZHC 3168
BETWEEN RICHARD GENGE
Applicant
AND
THE VISITING JUSTICE AT CHRISTCHURCH MENʼS PRISON First Respondent
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
Second Respondent
THE ATTORNEY-GENERAL Third Respondent
Hearing: 5 December 2017 Appearances:
R Genge - Applicant Appears in Person
No Appearance for First Respondent
C A Griffin for Second and Third RespondentsJudgment:
15 December 2017
JUDGMENT OF GENDALL J
GENGE v VISITING JUSTICE AT CHRISTCHURCH MENʼS PRISON [2017] NZHC 3168 [15 December
2017]
Table of Contents
Para No
Introduction [1] Background [3] The review application [21] Standard of Judicial Review [27] The statutory context for prison discipline matters [30] Resolution of the issues [37] Issue 1 – Did Mr Genge have fair notice of the hearing date before the
Visiting Justice
[38] Issue 2 – Was the fact the Visiting Justice hearing proceeded in the absence of
Nurse Laughton as a material witness for Mr Genge lawful and fair?
[52] Issue 3 – Whether or not Mr Genge received written reasons to decline legal
representation at the hearing?
[67] Issue 4 – Whether the change to Mr Genge’s security classification following the
misconduct conviction was lawful, fair and not unduly prejudicial?
[78] AncillaryIssues: [90] Claims by Mr Genge of perjury and collusion [91] Alleged delay in bringing this review proceeding [95] Reliefand remediessought [97] Conclusion [100] Costs [105]
Introduction
[1] The applicant, Richard Genge (Mr Genge), brings this application for judicial review with respect to a prison disciplinary conviction imposed against him. This was on a charge involving an offence against discipline under s 128(1)(c) Corrections Act
2004. The charge was one of behaving in an offensive, threatening and intimidating manner towards a prison doctor. The charge was heard and found proven by the Visiting Justice, Hikatea Carolynn Bull (Ms Bull), over four years ago on 17 October
2013. Mr Genge served the full penalty imposed of 10 days’ loss of privileges. He did not seek to review the decision of the Visiting Justice at any time until the present claim was filed in May 2017. His security classification was also reviewed and increased following his 17 October 2013 conviction. Similarly he did not challenge that determination at the time.
[2] At the hearing of this application, on 5 December 2017, Mr Genge appeared in person by AVL link. Ms Griffin appeared for the second and third respondents. There was no appearance for the first respondent. On 21 September 2017 Mr Powell, counsel for the first respondent, had filed in this Court an appearance for the first respondent advising that she would abide the decision of the Court in respect of Mr Genge’s application for review but he appeared:
Pursuant to r 5.50 of the High Court Rules so that the first defendant may:
be heard on the question of costs should any person seek costs against it in the course of this proceeding;
… and
Pursuant to r 5.51 of the High Court Rules the first defendant’s rights are reserved in the event that a party takes a step in the proceeding that is against the interests of the first defendant.
In this judgment, I refer to the respondents/defendants collectively, except where the context requires differentiation.
Background
[3] Mr Genge is currently an inmate at Christchurch Men’s Prison serving a life sentence. He has been a prisoner for over 24 years now following convictions for murder and rape.
[4] In September 2013 Mr Genge was housed at Rolleston Prison, a low security institution. On 17 September 2013 he was charged with the offence I have noted above of behaving in an offensive and intimidating manner towards a prison doctor. This charge was advanced on the basis that he had verbally abused and intimidated the doctor during a scheduled medical appointment at Rolleston Prison a month earlier.
[5] On 30 September 2013 the charge was scheduled to be heard before a Hearing Adjudicator (Mr David Campbell). Mr Genge suggests that at this hearing it was explained to him he could not call the prison doctor alleged to be the recipient of his offensive and intimidating behaviour. The 30 September 2013 hearing was adjourned and referred to a further hearing before a Visiting Justice.
[6] On 17 October 2013 the hearing before the Visiting Justice, Ms Bull, took place. The charge was found to be proven, and a penalty of 10 days’ loss of privileges was imposed. There is no right of appeal from a prison disciplinary conviction and Mr Genge at the time did not seek to review the conviction. Instead he filed the present review application more than 3.5 years later.
[7] Mr Genge’s core allegations are that various disciplinary and managerial decisions were unlawful, unfair, unreasonable and biased. He considers his rights under ss 25 and 27 of the New Zealand Bill of Rights Act 1990 (NZBORA) were breached.
[8] Specifically, Mr Genge contends that he was only told he would be appearing before the Visiting Justice on 16 October 2013, less than 24 hours prior to that hearing. He says he should have had much greater notice. He claims that he was not given the standard MC.02.Form.01 Witness Form in line with MC.02.03(2) of the Prison Service Operations Manual (PSOM), although this form should have been provided to him at least 24 hours after the charge was laid.
[9] Mr Genge contends that although he applied for legal representation for his hearing, and that his appointed lawyer, Mr Tim Fournier, rang the prison to inform them that legal representation was requested, the Visiting Justice refused him legal representation for the hearing.
[10] Mr Genge submits that the Visiting Justice was meant to provide him with a written summary of her decision to decline legal representation. This was in line with MC.02.04(4) of the PSOM, and should have been recorded on the “MC.02.Form.02B Record of Hearing – Visiting Justice”, but Mr Genge says this did not take place.
[11] Mr Genge also contends that the hearing was unfair because he was not permitted to call a witness, namely a nurse who was present at the doctor’s appointment.
[12] Mr Genge states that because of this decision he was moved the following day out of Rolleston Prison to Rawhiti No. 2, a High Security Unit at Christchurch Men’s Prison.
[13] In addition to the disciplinary decision, Mr Genge maintains that his prisoner classification was improperly reviewed on 18 October 2013 when, at that time, it was increased to “High”. Previously his prisoner classification review as of 8 April 2013 until that October date was one of “Low”. I note at the outset that Mr Genge’s security classification was revised to “Low Medium” in December 2013, and has been revised on many occasions subsequently.
[14] Mr Genge contends that his prisoner reclassification and his removal from Rolleston Prison to Christchurch Men’s Prison was not supported by published policy, nor did it comply with the prescribed procedure for prisons. He suggests his reclassification contravenes certain provisions in the PSOM. Further, he says it constitutes an additional punishment which contravenes a slew of domestic and international law. Mr Genge refers to the Corrections Regulations 2005, s 26(2) of NZBORA, Article 30(1) of the United Nations Standard Minimum Rules for the Treatment of Prisoners (imported by way of s 5(1)(b) of the Corrections Act), Article
14(7) of the International Covenant on Civil and Political Rights, and provisions in the
Human Rights Act 1993.
[15] As to the security classification issue, earlier on 1 December 2011 Mr Genge had been transferred from Christchurch Men’s Prison to the Kowhai Unit at Rolleston Prison, a lower security prison. Rolleston Prison has a general focus on prisoner employment and work to release. This transfer was at the request of Mr Genge and was assisted by Principal Corrections Officer Mr Ken Frost (Mr Frost), who helped facilitate the move. According to the respondents, this involved advocating for
Mr Genge with prison management, because of what was said to be his serious violent offence record and his history of negative engagement with staff. These were all suggested to be barriers at the time to his transfer to Rolleston Prison.
[16] Nevertheless, the transfer was achieved. The respondents say too that Mr Frost who was instrumental in achieving the shift discussed with Mr Genge at the time a set of expectations if he was going to reside at Rolleston and matters which would not be tolerated. These included poor behaviour towards staff and non-compliance with the Unit’s rules, either of which could result in his return to Christchurch Men’s Prison.
[17] A short time later, on 11 April 2012, again on Mr Frost’s recommendation that he be granted an “override”, Mr Genge achieved low security classification at Rolleston Prison. A condition of this override was that “any prolonged slip in behavioural standards or return of a positive/refusal drug test” would result in a reclassification.
[18] The respondents note that after what seemed to be a settled period in 2012, around mid-2013 Mr Genge began receiving a series of poor staff reports, details of which are before the Court. These culminated in the incident on 17 September 2013 giving rise to the present application.
[19] The respondents say it was as a result of Mr Genge’s deteriorating behaviour throughout 2013 and the misconduct charge, that the regular six monthly review of security classification which had been initiated on 18 October 2013 resulted in him being reclassified as “High” security. It followed from this classification that
Mr Genge was unable to stay at Rolleston Prison, and that was the reason for his transfer back to the high security Rawhiti Unit at Christchurch Men’s Prison.
[20] Shortly thereafter, however, in December 2013, perhaps at the instigation of Mr Frost, staff initiated a further review of Mr Genge’s security classification. At that time an override was again granted to classify him as “Low Medium”. This was despite what was said at the time that Mr Genge had behaved in a manner making “an override almost impossible”. Once this reclassification to “Low Medium” was made, Mr Genge was moved to the lower security Kotuku Unit.
The review application
[21] Generally, on all these matters, Mr Genge contends that the Department of Corrections (the Department) has breached published policy, and both domestic and international law, by its treatment of him. He contends the Department has acted against best practice and against its own Code of Conduct.
[22] He seeks a review of the conduct and decision of the Visiting Justice and the Department following the disciplinary hearing, and with regard to his later security reclassification and removal from Rolleston to Christchurch Men’s Prison.
[23] Mr Genge’s grounds of review can be distilled into four essential issues, all relating to matters of fairness and natural justice, namely:
(a) whether Mr Genge did not have fair notice of the hearing date before the Visiting Justice;
(b) whether the hearing proceeding in the absence of a witness for
Mr Genge was unlawful and unfair;
(c) whether Mr Genge did not receive the required written reasons for the decline of legal representation at the hearing; and
(d)whether the change to Mr Genge’s security classification following the misconduct conviction was unlawful, unfair and caused him undue prejudice.
[24] In his statement of claim filed 25 May 2017, Mr Genge seeks the following remedies:
(a) A declaration that the Visiting Justice’s decision was invalid.
(b) The Applicant’s class (security classification) be returned to low or minimum.
(c) The Applicant be housed in the self care unit at Christchurch Men’s
Prison.
(d) The Applicant receive $100.00 a day for every day his class was altered from 18/10/2013, until the low class is reinstated.
(e) The Department of Corrections publish a public apology stating, not only was the Visiting Justice’s sentence quashed but that damages were awarded and placement in the Self Care Unit at Christchurch Men’s Prison was also part of the High Court’s judgment.
[25] In response, the respondents’ initial position is that Mr Genge’s delay in bringing the present application is undue and without reasonable excuse. They say that seeking to review these matters over four years after they occurred, in all the circumstances here, causes them undue prejudice. Relevant records, it is said, have been lost, and witness recall of material events has understandably suffered. The second respondent says this necessarily prevents it from now advancing a complete and informed defence. Next, the respondents note that although Mr Genge’s security classification was reviewed and increased following his conviction here, and as a consequence he was transferred out of Rolleston Prison, this misconduct conviction and his reclassification has had no enduring impact upon him, because of the later subsequent classification reviews.
[26] Finally, the respondents contend that the present application for review should be dismissed both on its merits and also through this Court declining to exercise its discretion as to remedy. They maintain that the Court cannot be certain that any prima facie gap in the record, or potential error of law that may possibly be identified, could
not otherwise have been answered in favour of the respondents had this matter been reviewed in a timely manner.
Standard of judicial review
[27] Judicial review is the supervisory function of the Court concerned with ensuring public power is exercised according to the law.1 In exercising that function to assess a decision and determine whether it ought to be allowed to stand, the Court is primarily concerned with examining procedural compliance, not the substance of the decision itself.2
[28] There is recognition in New Zealand that grounds of review tend to overlap in practice, and there may be no fine distinctions between them.3 Here Mr Genge’s submissions pertaining to the grounds of unfairness and unreasonableness could be summed up by the question: – did the decision-maker…direct (herself) properly in law and then act according to law. (She) must observe the criteria expressly or implicitly laid down in the legislation. So (she) must call (her) attention to matters (she is) bound…to consider and they must exclude considerations which on the same test are extraneous.4
[29] Regarding the standard and intensity of the review, the “normal” intensity of review has been described by the Supreme Court as being whether the information, objectively assessed, reasonably supported the decision, not just whether there was information on which the decision-maker could act.5
The statutory context for prison discipline matters
[30] Section 201(d) Corrections Act provides for regulations to be made to ensure the good management of prisons and otherwise and these may include provisions:
…
1 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).
2 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
3 Wilson v Auckland City Council [2007] NZAR 711 (HC) at [17], referring to New Zealand Fishing
Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 548.
4 New Zealand Maori Council v Attorney-General [Lands Case] [1987] 1 NZLR 641 (CA) at 678.
5 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [31].
(d) ensuring the discipline of prisoners, including (without limitation) regulating the granting and loss of privileges, regulating the laying of complaints relating to offences against discipline, and prescribing the procedures for the hearing of those complaints.
[31] Regulations to this effect have been made in the Corrections Regulations 2005 (the Regulations). From these, and in particular in reg 150(1), it is clear that the overarching requirement for the conduct of prison disciplinary hearings is to ensure the firm but fair maintenance of discipline and order within prisons. All disciplinary proceedings are to be conducted in accordance with Schedule 7 to the Regulations, which sets out relevant procedure matters.
[32] From the often cited and authoritative decision of the Court of Appeal in Drew v Attorney-General6 it is recognised that the character of such prison disciplinary proceedings are administrative rather than criminal. This has been applied without any dissent to disciplinary proceedings which have since been heard under the Corrections Act such as Department of Corrections v Taylor.7
[33] In Drew v Attorney-General McGrath J observed:
[85] The Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system. It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living…
[34] McGrath J further distinguished in particular the key differences between the prison disciplinary process and the prosecution of a criminal offence itself. In doing so, he outlined the following:8
(a) Penalty levels that can be imposed for a disciplinary offence are far lower than those available in respect of a criminal offence for similar or the same conduct.
(b)A prison disciplinary offence does not form part of a criminal conviction history as does a criminal offence.
6 Drew v Attorney-General [2002] 1 NZLR 58 (CA).
7 Department of Corrections v Taylor [2009] 3 NZLR 34 (CA) at [49] – [50].
8 Drew v Attorney-General, above n 6, at [89] – [91].
(c) The prison disciplinary offence system operates in a more inquisitorial manner than the adversarial general criminal justice system.
[35] In Drew v Attorney-General the Court of Appeal made mention of the statistics relating to hearings such as the present. It was considered that, on average up to approximately 8800 Prison Adjudicator hearings were taking place per year, with 800
Visiting Justice hearings over similar periods.9 As a result, the thousands of prison
hearings noted in Drew each year necessitated a swift and essentially summary procedure for disciplinary charges to be determined.
[36] Given this, relevant features of the prison disciplinary scheme which affect the present proceeding derived from the Corrections Act and Regulations must, as I see it, include:
(a) Prisoners are to receive notice of the charge against them, together with information concerning procedural requirements and their obligations and rights when defending a charge – Schedule 7, cls 7 and 8.
(b)Charges must be heard “reasonably promptly”. Notwithstanding this, a prisoner is to be given “sufficient time to enable the prisoner to prepare his or her own defence” – Schedule 7, cl 9.
(c) Time limits exist for the hearing and determination of the charges heard by Hearing Adjudicators. If a hearing is not adjourned it must be determined within 14 days or a prisoner can apply to have it dismissed. If a hearing is adjourned, the period is to be 21 days – Schedule 7, cl 11.
(d)The assistance before a hearing to which a prisoner is entitled and the applicable limits of this, including a prisoner’s limits on legal
representation at hearings is detailed – Schedule 7, cls 19 – 22.
9 Drew v Attorney-General, above n 6 at [41], and restated by the Court of Appeal (noting a likely increase with greater prison muster numbers) in Department of Corrections v Taylor, above n 7, [2009] 3 NZLR 34 (CA) at [51].
(e) Prisoners have the right to call witnesses and cross-examine prosecution witnesses. A prisoner is, however, responsible for their witnesses and generally for associated expenses – Schedule 7, cls 32,
38 and 39.
(f) An adjournment can be requested and must be granted by the person hearing the charge if a prisoner has not had “a proper opportunity” to prepare their defence or if a material witness is unavailable – Schedule 7, cl 41.
(g)Once a Hearing Adjudicator decision is given, there are appeal rights from that decision to a Visiting Justice. A decision of a Visiting Justice, however, cannot be appealed (although it is subject to review, as has occurred here) – Schedule 7, cl 45 – 46, and s 136 Corrections Act.
Resolution of the issues
[37] I turn now to consider each of the four essential grounds for review advanced by Mr Genge as outlined at para [23] above.
Issue 1 – Did Mr Genge have fair notice of the hearing date before the Visiting Justice?
[38] For this ground, Mr Genge maintains he was not at any point told the date of his Visiting Justice hearing prior to the day before that hearing, 16 October 2013. He alleges this was unfair and a breach of natural justice.
[39] On this, there can be no doubt that in light of the Regulations referred to above, prisoners must be given fair notice of disciplinary hearings.
[40] As to what constitutes fair notice, I am satisfied that in the context of prison disciplinary proceedings which, as I have noted, are to proceed on an administrative basis, the practical reality is that such fair notice may only be a matter of days. Material before the Court shows that many charges against prisoners are heard in the same week as they were laid or a subsequent week. This is perhaps unsurprising given
that in certain circumstances a prisoner can apply to have a charge before a Hearing
Adjudicator dismissed if it has not been heard within 14 days of being laid.
[41] In the present case, the period from the date of the hearing before the
Adjudicator to the date of the hearing before the Visiting Justice was 17 days.
[42] Mr Genge contends, however, that he was given only one day’s formal notice of the actual date of his hearing before the Visiting Justice. This is despite the fact that he does not dispute that on 30 September 2013 he knew that his charge had been referred to a Visiting Justice.
[43] In this respect, there is evidence before this Court of the form of notice which Mr Frost says was provided to Mr Genge at the time. Mr Frost deposes that he provided Mr Genge with this form along with the Misconduct Report on 20 September
2013. The form sets out all the procedural information required by a prisoner on defending a disciplinary charge and the hearing process itself. Mr Frost goes on to depose that he understands the copy of this notice given to Mr Genge has since been lost.
[44] Before the Court is also the “Record of Hearing Form – Hearing Adjudicator” signed by the Hearing Adjudicator Mr Campbell on 30 September 2013. It specifically notes as to referral to a Visiting Justice, a date of hearing on 17 October 2013.
Mr Genge’s position is that he did not receive this form but, given the passage of time since September 2013, it is impossible now to confirm what may have happened then.
[45] What does seem clear, however, is the unequivocal statement from Mr Frost’s affidavit to the following effect:
27.What is clear is I did personally advise Mr Genge of the hearing date the day before on 16 October 2013. I am fairly sure that if I had been told the date any earlier then I would have communicated it to Mr Genge the day I received the information. My assumption is I personally did not receive confirmation of the hearing date until
16 October 2013. I have a very general recollection of telling
Mr Genge he needed to be “ready” for his Visiting Justice hearing the next day.
28.I do not remember Mr Genge making any complaint to me about that, particularly that his witnesses weren’t available or it was too short
notice. I believe that is something I would have recorded in writing and informed the prosecutor as it may affect the hearing. I can only speak in general terms though about my usual practice as I cannot remember anything more about this matter. I did confirm to the Visiting Justice at the hearing on 17 October 2013 when the subject came up that he was “officially informed yesterday” by me.
[46] Notwithstanding these matters, as I have noted above, it is clear that Mr Genge knew his disciplinary charges had been referred to the Visiting Justice by the Hearing Adjudicator on 30 September 2013. An issue arises as to whether it is reasonable for Mr Genge, in the words of the respondents, to effectively “sit on his hands” for 16 days after the charge was referred to the Visiting Justice and to take no preparatory steps on the basis that he says he was still waiting for a hearing date to be allocated. As the respondents note, that was effectively how the Visiting Justice conceived of it, and they submit that was a justified response. The respondents say Mr Genge, through his past experience, was well aware of the disciplinary procedures involved here. Clearly, there was a need and common practice for the prison discipline charges against Mr Genge to be resolved speedily.
[47] Next, the respondents say that, notwithstanding his denials, Mr Genge was in fact given fair and specific notice of the date of his hearing at the Adjudicator Hearing on 30 September 2013 (as recorded on the Record of Hearing form (noted at para [44] above). Given that record, there was no reason for him not to have been so informed at that time.
[48] Two matters are apparent here. The first is that the prosecutor before the
Visiting Justice, Mr Graham, at the hearing advised that Mr Genge was in fact told the
17 October 2013 hearing date at the Adjudicator Hearing. Mr Graham, it seems, firmly maintains that position despite Mr Genge’s denials. Secondly, evidence was given at the hearing before the Visiting Justice by Justine Stack, a prison officer, that Mr Genge did have knowledge of the Visiting Justice hearing date prior to 16 October
2013. The transcript shows she informed the Visiting Justice that Mr Genge had told her on Monday 14 October 2013 that his hearing would be on Thursday 17 October
2013. An exchange followed between her and Mr Genge, and she said:
You’ve phoned your lawyer at least twice with me…about this case, this week
[week commencing 14 October 2013].
And:
…you’ve been throwing out since Monday [14 October 2013] that you’re going up on Thursday [17 October 2013].
[49] In response, Mr Genge before me contended that Ms Stack “was lying”, and on issues such as this noted that others, including Mr Graham, “were also lying”. I will address these issues later in this judgment. Suffice to say at this point that there is no material evidence of any kind before me to bear out these allegations advanced by Mr Genge.
[50] Lastly, a critical fact remains that the positions of the parties on this point cannot now be conclusively reconciled some four years after the events in question. That is a necessary product of the delay which has occurred here. Potentially relevant documents are unavailable and have been lost. Full versions of the “Record of Hearing” forms, possible emails and other notifications of the hearing date and records once held by Mr Genge or the prison are no longer available. Witnesses, too, cannot be expected to recall in detail information as to this issue following such a delay.
[51] On balance, I am satisfied that Mr Genge has not established that he did not in fact know the date of the hearing before the Visiting Justice prior to 16 October 2013, the day before that hearing. Given that he failed to challenge in a timely manner the outcome of the Visiting Justice hearing when proper discovery processes could have been undertaken and given also the fact that he has been unable to challenge in any material way what evidence was before the Visiting Justice over his advance notice of the hearing date, I am satisfied no reviewable error has occurred regarding this aspect.
Issue 2 – Was the fact the Visiting Justice hearing proceeded in the absence of
Nurse Laughton as a material witness for Mr Genge lawful and fair?
[52] Accompanying the first issue noted above is Mr Genge’s claim that because, as he says, he did not know the hearing date until the very last moment, he was unable to arrange for a material witness, Nurse Laughton, to attend the hearing. Mr Genge says that when Ms Bull did not adjourn the hearing he was improperly and unfairly
denied a witness contrary to the Regulations.10 He says also this was a breach of his rights under s 25(f) NZBORA.
[53] By way of preliminary comment, I note that s 25 NZBORA applies only to criminal proceedings and does not apply to prison disciplinary proceedings. In Drew v Attorney-General11 (adopted in Taylor12) the Corrections Act 2004 is noted to provide for “a regime of prison discipline that is separate from the Criminal Justice system”.13 It is not helpful therefore to draw analogies between the procedural protections that apply under the criminal law and the different situation which prevails in administrative proceedings such as the present. The proper approach, the Court considered in Drew v Attorney General14 focuses on whether there has been a breach of natural justice in terms of s 27 NZBORA.
[54] It appears that at the outset of the hearing before the Visiting Justice, Mr Genge did request an adjournment on the basis that he wished to call Nurse Laughton as a witness and he said he had not had sufficient time to prepare for that purpose or the hearing in general.
[55] Mr Graham, as best he can recall, confirms that he did not know Mr Genge wanted Nurse Laughton as a witness until the morning of the hearing. Notwithstanding this, it seems he took steps and used his very best endeavours that morning to attempt to secure her attendance. This was unsuccessful, however, because she required her union representative to accompany her to the hearing, and that representative was unavailable that day.
[56] Mr Frost, elaborates on this in his affidavit:
29.My best recollection is the first I heard Mr Genge wanted to have Nurse Hannah Laughton called as a witness was at the Visiting Justice hearing. The transcript of the hearing records Ms Laughton was willing to appear but could not because she needed a representative from the New Zealand Nurses Association (NZNA) present with her. This makes sense because Ms Laughton was a trainee nurse at the
10 Corrections Regulations 2005, sch 7, cl 41(b)
11 Drew v Attorney-General, above n 6.
12 Department of Corrections v Taylor, above n 7.
13 Drew v Attorney-General, above n 6, at [85].
14 Drew v Attorney-General, above n 6.
time. She was still completing her qualifications and very likely had no familiarity at all with the disciplinary process. In my experience it is very likely the NZNA would appear with a trainee nurse in such circumstances. Unfortunately no NZNA representative was available on 17 October 2013.
[57] It is clear, too, that the Visiting Justice facilitated the attendance at the hearing of another of Mr Genge’s requested witnesses by granting a short adjournment to the afternoon. On returning in the afternoon, when it became apparent that Nurse Laughton, because of the unavailability of her union representative, would still not be able to give evidence, the Visiting Justice ruling the hearing would proceed. She did so on the basis that she considered Mr Genge had known of the referral to the Visiting Justice since 30 September 2013 even though he may not have been aware of the precise date and thus he had “quite sufficient time” to make the necessary arrangements for his witnesses. This view is consistent with the early notification and advice to prisoners in the Notice to Prisoners Charged With A Disciplinary Offence form that it seems Mr Genge received which stated:
…you will need to advise the Manager of your Unit in advance of your hearing if you wish to call any witnesses so that their attendance can be arranged.
[58] Mr Genge did not do this. He contends this is because he did not know of the
17 October 2013 hearing date until at best the day before but, as I have noted above, there must be some question mark over this.
[59] During the hearing, the Visiting Justice explained in relation to this issue:
I have made a decision on this one [unavailability of the witness Nurse Laughton] and that is…you may have been told yesterday that today was the date, but the matter that I am ruling on here is that on 30th of September which is quite some time ago, you knew that you were appearing, you saw the Adjudicator, you knew that there would be another date, that is your responsibility, I’m sorry that you have missed that opportunity, we will now proceed.
[60] Once again, the time delay in Mr Genge bringing the present application has meant that there is a paucity of documentation on a range of matters affecting this incident and, despite prison staff clearly making endeavours to assist by contacting witnesses and the like, there is simply no record of Mr Genge requesting Nurse Laughton and his other required witness until the eleventh hour.
[61] As referred to above, Mr Genge was able to call his second witness, Officer Chadinha at short notice, and he gave evidence before the Visiting Justice that afternoon. Mr Chadinha gave evidence as to the demeanour of the prison doctor on arriving within a short period after the incident. His evidence was as follows:
…there was an emergency call made that went off at the – on the monitor down at the medical unit, and I just responded to it…there was a female nurse
[in the room when I got there], there was a nurse, Don Cross, and there was a shaken, very shaken doctor, he was white in the face and he – you could see
he was very upset…yes he looked very upset.
[62] Mr Genge before me endeavoured to complain that his witness, Mr Chadinha, had come up with something in his evidence which was quite different from what he understood Mr Chadinha would say. Notwithstanding this, Mr Chadinha’s evidence before the Visiting Justice was direct and unequivocal. Mr Genge did not suggest that Mr Chadinha was lying or mistaken in any way. And, that evidence was clearly of some influence for Ms Bull in carrying out her role as Visiting Justice here.
[63] In addition, Mr Genge was able to extensively cross-examine the only witness for the prosecution, Nurse Don Cross, who was present at material times around the incident and when it was said that Nurse Laughton was only on the periphery of events. Indeed, it appears undisputed that Nurse Laughton was certainly not present in the medical room when the incident with the doctor occurred as she was simply waiting outside the room. It seems too that it was only Nurse Cross who made an incident report here, although it is acknowledged that this report was said to be a joint report following discussions between Nurse Cross and Nurse Laughton. Nevertheless, no notes or reports from Nurse Laughton were before the Visiting Justice and, in determining the charge against Mr Genge, she makes no finding or comment upon Nurse Laughton’s role.
[64] The respondents suggest, therefore, that it is arguable Nurse Laughton’s attendance was not genuinely required because she was not a “material witness”, and thus there could be no breach of sch 7, cl 41(b) of the Regulations.
[65] Whilst I do not necessarily accept this argument, even if Nurse Laughton was seen as a “material witness” here, I am satisfied that the Visiting Justice did not err in
allowing the hearing to proceed on the basis of her determination that Mr Genge had in large part caused the difficulty in which he found himself. It is true that this matter had been the subject of a partial preliminary consideration by the Adjudicator on
30 September 2013 and Mr Genge was aware then that matters were to go before a Visiting Justice thereafter. Although it is a finely balanced issue, I am satisfied that the Visiting Justice was entitled to take the view she did.
[66] Again, but perhaps in this situation by only a reasonably fine margin, I find that no reviewable error occurred in the decision to proceed with the hearing despite the unavailability of Nurse Laughton as a witness.
Issue 3 – Whether or not Mr Genge received written reasons to decline legal representation at the hearing?
[67] Mr Genge has alleged that he never received a written summary of reasons from the Visiting Justice for her decision declining his request to be legally represented at the hearing.
[68] Section 135(5) of the Corrections Act requires such written reasons to be provided:
135 Applications for legal representation
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(5) A hearing adjudicator or Visiting Justice must provide the prisoner and the prison manager with a summary in writing of his or her reasons for the decision to permit or, as the case may require, not to permit the prisoner to be legally represented.
[69] This issue is specifically addressed by Ms Bull in an affidavit dated
9 November 2017 filed in this proceeding. She affirms that:
2.…I make this affidavit to provide a report to the Court to assist in relation to a specific matter. This matter is my decision on Mr Genge’s request for legal representation at the hearing.
3.My practice without exception is to provide a written record of the decisions for granting or declining legal representation. These reasons will include separate bullet points addressing, where relevant, each of the elements of s 135(2) of the Corrections Act 2004. There is a
standard form sheet available for this purpose and again it is my practice to use that form.
4.During the hearing, I orally provided my reasons for declining Mr Genge’s application to have legal representation. I understand these reasons are reflected in the transcript of the hearing at Tab 5 of the Record of Proceedings. My usual practice is to subsequently record the reasons in written form during an adjournment.
5.There were several Corrections Officers present at the hearing. I would have passed the handwritten reasons for the decision to one of them, who would then have given it to Mr Genge.
She reinforces her position by reference to a specific exchange during the hearing:
6.I have total certainty and recall that Mr Genge received the handwritten reasons at this hearing, because of what happened at the hearing. After we resumed, the prosecution and Mr Genge each took their turns presenting their cases. When it was Mr Genge’s turn, he was not happy that a nurse could not be present whom he wanted to give evidence. At this point he asked for my name, and tried to read it off a document he had in front of him. He enquired if my name was Helen Bell. I commented that it was “Bull”, not “Bell”. I also spelled out my name for him. I believe the document he had in front of him was the handwritten reasons for the decision to decline representation which had been given to him.
[70] Mr Graham’s affidavit of 2 November 2017 tends to confirm this position. He deposes:
12.I believe the Visiting Justice provided Mr Genge with the form summarising her reasons to decline legal representation after she made her decision. As a prison file copy cannot be found, that suggests I may have mistakenly not organised a copy for Mr Genge’s file. While my own memory is not strong on this part of the hearing, the reason I think Mr Genge did receive the form is because the transcript records Mr Genge referring to a document with the Visiting Justice’s signature on it in the context of a discussion about legal representation. He says:
Q. Well whose is this signature here, (inaudible
10:16:36) I can’t have legal representation.
A. Well it is Hikatea Bull.
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The legal representation form is the only document a prisoner will receive from a Visiting Justice during the actual hearing.
[71] The position of the second and third respondents is that this evidence supports the view that the standard legal representation form was completed and provided to Mr Genge but has now somehow been lost through the passage of time and intervening events. All this, it is said, is simply another consequence of Mr Genge’s undue delay in filing these proceedings. In any event, however, the clear recall of Ms Bull in her affidavit and that of Mr Graham in his, strongly support the view that, despite Mr Genge’s claim to the contrary, written reasons as to the declining of representation were provided to him.
[72] I agree. I add that, in my view, this position is further supported by two additional matters.
[73] These are, first, that the transcript demonstrates that Ms Bull, in delivering her decision on legal representation, recited verbatim to Mr Genge the exact two preliminary statement paragraphs of the relevant form. This must suggest that Ms Bull had the form immediately in front of her when giving her reasons orally.
[74] The second additional reason also arises from comments recorded in the transcript of the hearing where, upon close listening to the audio recording which was before the Court, and especially of parts marked “inaudible”, reference is seemingly made to the relevant document:
[Mr Genge]: Before you finish, Justice, it says here the person considering your request to be legally represented will give you a written summary of the reasons. Is this your summary…
[Visiting Justice]: Yes.
[Mr Graham]: I’ll get that for you.
[75] From Mr Genge’s reference noted above to “it says here” this would appear to be his reading from page 1 of the Notice to Prisoners Charged With A Disciplinary Offence Form from the fourth paragraph of the section under the heading “Legal Representation”. Mr Genge appears to say to Ms Bull “is this your summary”? A logical and reasonable inference from all of this is simply that Mr Genge at that point is referring to the form containing the written reasons for Visiting Justice Bull declining legal representation for Mr Genge.
[76] Lastly, it is clear, too, from Mr Graham’s affidavit that legal representation of prisoners at hearings of this type, particularly where the charges are not particularly complex, is a comparatively rare occurrence. He noted that most disciplinary charges such as those faced by Mr Genge were uncomplicated and proceeded swiftly with few, possibly only one or two, witnesses. They were normally determined within about two weeks of a charge being laid.
[77] All these matters, together with the fact that before me Mr Genge placed little before the Court to cast any doubt on the evidence of Ms Bull and Mr Graham I have noted above, lead me to the inevitable conclusion that, in all the circumstances, there is no reviewable error on this particular issue.
Issue 4 – Whether the change to Mr Genge’s security classification following the misconduct conviction was lawful, fair and not unduly prejudicial?
[78] Mr Genge here contends that the change to his security classification from “Low” to “High” on 18 October 2013 following the Visiting Justice Hearing was unlawful and prejudiced him as he was transferred out of Rolleston Prison back to the High Security Unit at Christchurch Men’s Prison.
[79] Sections 47 and 48 Corrections Act govern the setting and review of security classifications. Relevantly, ss 47(3) and (4) provide:
47 Security classifications
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(3) The security classification of each prisoner must—
(a) be undertaken and reviewed in the prescribed manner; and
(b) be reviewed—
(i) at least once in every 6 months, unless an exemption from this requirement is prescribed; or
(ii) whenever there is a significant change in the prisoner’s circumstances.
(4) For the purposes of subsection (3)(b)(ii), there is a significant change in a prisoner’s circumstances if—
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(c) the prisoner does anything that, in the opinion of the prison manager, involves serious misconduct; or
(d) in the opinion of the prison manager, there is an event, or a change in the prisoner’s circumstances or behaviour, that indicates that the prisoner’s present security classification may be inappropriate.
[80] As I have noted above, the core allegations advanced by Mr Genge are that his reclassification decision was unlawful, unreasonable and motivated essentially by bias.
[81] In his case, what does seem clear is that Mr Genge had regular six monthly classification reviews between his reclassification in April 2012 to “Low” and his change to “High” on 18 October 2013. What is also clear from the material before the Court is that, around the time of the April 2012 reclassification decision which resulted from an “override” instigated largely by Mr Frost, there were discussions with Mr Genge to give him prior notice that any “prolonged slip in behaviour” post April 2012 would result in a further reclassification and put his place at the reduced security Rolleston Prison in jeopardy. Mr Frost refers to this in his affidavit.
[82] It is apparent, too, from Mr Frost’s affidavit that, subsequent to April 2012 there was a noticeable decline in Mr Genge’s behaviour in the Unit at Rolleston Prison. It appears this included behaviour which it is said was aggressive and confrontational towards other prisoners and staff. It also involved unacceptable verbal abusive outbursts over a four month period prior to the September 2013 misconduct at issue here.
[83] Before me, Mr Genge in his submissions endeavoured to contest a number of the prison officer reports regarding his behaviour at the time. No material and independent evidence was before me, however, as to these aspects and the pattern that emerged seemed to show a consistent approach from Mr Genge.
[84] In light of all this, the misconduct at issue here was properly seen as a serious matter so far as senior prison officers and management was concerned. It involved threats or intimidation towards staff, and especially professional visiting staff such as
doctors. None of this could properly be tolerated in any objective sense. As Mr Frost deposes:
…it is exactly the sort of thing that Mr Genge ought to have known would not be tolerated based on our discussion in late 2011 about coming to Rolleston.
[85] In my view, there can be no doubt that Mr Genge’s accumulation of poor behaviour reports and the entire factual matrix over this previous five month period, which escalated to the serious misconduct situation arising here, was what triggered the discretion afforded to the prison management to review Mr Genge’s security classification under ss 47(4)(c) and (d) Corrections Act.
[86] In this regard, decisions such as Taylor v Chief Executive of the Department of Corrections, 15 demonstrate this Court will, to a reasonable extent defer to prison management decisions such as this which affect the safety and security of prisons and prisoners.
[87] Once the reclassification decision to “High” was made, it necessarily followed that Mr Genge’s transfer out of Rolleston Prison would take place. Rolleston does not house high security prisoners, and transfer was therefore inevitable.
[88] Overall, the respondents contend that Mr Genge was also treated fairly by prison staff following his transfer to Christchurch Men’s Prison. Soon after his transfer he was provided with another opportunity to move to a lower security unit and, indeed, within two months of the October 2013 reclassification he was granted an override to reduce his classification to “Medium Low”. It is true also that since that time Mr Genge’s security classification has been further reviewed on a number of occasions. Even if some error had occurred in a decision made over four years ago in October 2013, it is suggested there is little utility in the Court granting relief at this point. I leave that matter on one side, however.
[89] In my view, there can be no doubt here that in all the circumstances no error of law occurred in the change to Mr Genge’s security classification in October 2013. The
15 Taylor v Chief Executive of the Department of Corrections [2011] 1 NZLR 112, [2010] NZCA
371.
classification resulted from a combination of prior events culminating in the serious misconduct charge.
Ancillary issues
[90] Several additional issues surfaced at the hearing of this matter which require brief mention. I now do so.
Claims by Mr Genge of perjury and collusion
[91] At the review hearing before me, Mr Genge endeavoured to suggest that several parties who had appeared before the Visiting Justice had lied and committed perjury on a number of issues, in an endeavour to wrongly influence the outcome of that hearing. These claims effectively involved suggestions of collusion amongst parties representing the respondents.
[92] This was the first occasion, however, on which these claims had been made by
Mr Genge. Essentially, his review application did not contain suggestions to this effect.
[93] No evidence of any kind was before the Court to support these bald allegations that parties had lied. The allegations too, in my view, related essentially to peripheral matters and did not affect the true basis upon which the Visiting Justice made her decision in this case.
[94] It is neither necessary nor appropriate, in my view, to list in detail Mr Genge’s unsubstantiated allegations of perjury/lying. Suffice to say that, given they were entirely unsupported in any way, and as I see it, quite contrary to other evidence before the Visiting Justice, I have no hesitation in rejecting these claims that parties here lied on significant matters and perjured themselves at that hearing.
Alleged delay in bringing this review proceeding
[95] As I have noted at the outset, the respondents have contended that they are prejudiced by the lengthy delay of nearly four years which has occurred in this case in
Mr Genge bringing these proceedings. Matters relating to this delay have already been canvassed above.
[96] In my view, given the decision which is to follow on the substantive issues relating to this review proceeding, I need say nothing more regarding this delay question. It is true, however, that the delay seems to be unexplained. In my view, it must add to the difficulty which arises in any proper challenge being mounted to the Visiting Justice’s decision here.
Relief and remedies sought
[97] Lastly, I mention for completeness one final matter. As will be apparent, I have found that there was no reviewable error in the decision of the Visiting Justice, or of the prison authorities, in reviewing Mr Genge’s security classification. Notwithstanding these conclusions, if I had determined that some reviewable error had occurred here, I would have found that it was simply not appropriate to grant any relief to Mr Genge this many years after the events in question. Subsequent events clearly have overtaken the decisions that were made at the time, and I am satisfied there is simply no real ongoing impact for Mr Genge relating to those decisions.
[98] As to matters concerning his current prison management, housing and security classification, it is clear these can only be determined by reference to the circumstances materially impacting upon Mr Genge today and in the future.
[99] I am of the view that there is simply no utility here in granting relief to
Mr Genge had I determined that this was a case where some reviewable error occurred.
Conclusion
[100] In these proceedings Mr Genge’s essential complaint is not that as a result of the way the hearing before the Visiting Justice proceeded he had been found to have committed the offence with which he was charged. His complaint appears to be simply about the fairness of the hearing itself, the shortness of time in which he was given notice of the hearing and the decision of the Visiting Justice to deny him legal representation for the hearing.
[101] Having carefully read and considered all the material before the Court and the transcript of what occurred at the hearing, I am satisfied first, that Mr Genge was aware for some time of the hearing of these disciplinary charges against him, similar to a number of previous charges which he had faced in this context, secondly, that under all the circumstances the decision that he not be permitted legal representation for the hearing was not improper, and thirdly, that Mr Genge was given every reasonable opportunity at the hearing to present his case and to challenge the case against him. The evidence before me advanced for the respondents is cogent and compelling.
[102] As to penalty, there is no doubt that Mr Genge was able to make submissions on this issue. The penalty that was imposed was reasonable in all the circumstances and it has long since been served.
[103] Throughout these proceedings, essentially Mr Genge complains 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 satisfied that neither have occurred. In addition, I am satisfied he was not treated unreasonably or unlawfully, either with regard to proof of the charge against him or as to the penalty imposed.
[104] The present application for judicial review is therefore dismissed.
Costs
[105] As the successful parties, the second and third respondents here would, as usual, be entitled to costs. If costs are sought, counsel for the second and third respondents (and in addition counsel for the first respondent if he may also seek costs (despite abiding the decision of the Court)) are each to file memoranda as to any costs that they seek within 10 working days of today. Mr Genge is to file his response by way of memorandum within a further 10 working days after receiving those submissions. I will deal with the issue of costs on the basis of those memoranda. The memoranda on costs are to be no longer than five pages.
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Gendall J
Copies to: Applicant
First Respondent
Charlotte Griffin, Barrister, Wellington, for Second and Third Respondents
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