Genge v Visiting Justice, Christchurch Men's Prison
[2022] NZCA 371
•11 August 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA439/2021 [2022] NZCA 371 |
| BETWEEN | RICHARD GENGE |
| AND | VISITING JUSTICE, CHRISTCHURCH MEN’S PRISON |
| AND | CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS |
| AND | ATTORNEY-GENERAL |
| CA440/2021 | ||
| BETWEEN | RICHARD GENGE | |
| AND | VISITING JUSTICE, INVERCARGILL MEN’S PRISON | |
| AND | CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS | |
| AND | ATTORNEY-GENERAL | |
| Hearing: | 28 April 2022 |
Court: | Cooper P, Courtney and Collins JJ |
Counsel: | Appellant in Person |
Judgment: | 11 August 2022 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal in CA439/2021 is dismissed.
BThe appeal in CA440/2021 is dismissed.
CThe appellant must pay the respondent costs for a standard appeal on a band A basis with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
These appeals arise from applications by a serving prisoner, Richard Genge, for judicial review of decisions made by two Visiting Justices upholding disciplinary charges brought against him for breaches of prison rules.
The first decision related to an incident on 5 April 2017 at Christchurch Men’s Prison when Mr Genge and another prisoner were found to be sparring in breach of a prison rule. The second related to an incident on 26 July 2019 at Invercargill Prison when Mr Genge was found to have refused to obey a lawful order to return to his cell.
The Visiting Justices rejected Mr Genge’s arguments in both cases. Gendall J dismissed appeals against those decisions.[1] Mr Genge appeals the Judge’s decision.
The statutory scheme
[1]Genge v Visiting Justice, Christchurch Men’s Prison [2021] NZHC 1727 [Decision on appeal].
Self-evidently, although prison life is communal, the residents do not participate voluntarily. The nature of the institution, the dynamics between prisoners, and between prisoners and prison staff, create specific needs in terms of keeping both prisoners and staff safe and allowing for the effective management of the prison.
The Corrections Act 2004 and the Corrections Regulations 2005 establish a system of prison discipline that reflects the needs of the prison environment. The purposes of the Corrections Act and the principles that guide the operation of the Corrections system include ensuring that custodial sentences are administered in a safe, secure, humane and effective manner[2] and that sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision.[3]
[2]Corrections Act 2004, s 5(1)(a).
[3]Section 6(1)(g).
Maintenance of discipline is a fundamental aspect of prison management. It is an offence against discipline for any prisoner to disobey a lawful order or to disobey or fail to comply with any regulation or any rule of the prison.[4] As far as practicable in the circumstances, a minor or unintentional breach of discipline is not to be dealt with by charge but rather by explaining the breach so as to correct behaviour and allowing the prisoner to make amends to any person aggrieved by the breach.[5] The ability to deal with minor breaches informally does not, however, mean that such breaches must be dealt with in this way; it is still open to the prison management to charge a prisoner even if the breach is a minor one.[6]
[4]Section 128(1)(a).
[5]Section 132(1).
[6]Section 132(2).
The Corrections Regulations provide for the management of the prison disciplinary system. They require that in every prison discipline and order must be maintained with firmness and fairness.[7] Prison managers are empowered to make rules for the management of the prison and for the conduct and safe custody of the prisoners.[8] Senior prison officers appointed by the Chief Executive as “hearing adjudicators” hear disciplinary charges.[9] Appeals from hearing adjudicators’ findings are determined by a Visiting Justice under the Corrections Act.[10]
The sparring charge
Background
[7]Corrections Regulations 2005, reg 150(1).
[8]Corrections Act, s 33(1).
[9]Sections 15 and 133; and Corrections Regulations, Sch 7.
[10]Sections 19 and 136.
On 3 March 2016 the Prison Director of Christchurch Men’s Prison introduced the following rule:
Prisoner Instruction – Christchurch Men’s Prison Zero Tolerance for Violence
Christchurch Men’s Prison has a zero tolerance for violence therefore the following rule/s will be enforced by staff.
…
Furthermore pursuant to s 33 of the Corrections Act 2004, I am making a rule that forbids any prisoner sparring/fighting in any area of the prison including yards, cells and recreation areas. Any prisoner breaching this rule will likely face disciplinary proceedings.
This rule is effective from 3 March 2016.
Mr Genge was aware of the rule; on 9 January 2017 he signed a form acknowledging various rules in place at the prison, including the zero tolerance for violence rule.
There is no dispute over the facts, which appear in an affidavit by a Senior Corrections Officer at Christchurch Men’s Prison, William Fraser. On 5 April 2017 Mr Fraser and another Corrections Officer were in a guard room at the prison. They noticed that the door to the recreation room was open but with a towel covering the glass section, obscuring the view into the gym from the guard room. Using a camera, the Prison Officers were able to see into the gym. They observed Mr Genge and another prisoner, Mr Fahey, interacting, with Mr Genge throwing punches towards Mr Fahey, bouncing on his feet and moving his head from side to side as if to avoid blows, and Mr Fahey blocking the blows with a jandal on each hand.
The Corrections Officers spoke to the men who denied sparring. Mr Genge was charged with misconduct for failing to comply with the rule.[11] Although Mr Fahey was initially advised that he would be placed on a misconduct charge for the incident, no charge was ultimately brought because he was due to be released six days later.
[11]Corrections Act, s 128(1)(a).
Mr Genge asserted that: (1) he was not sparring but merely exercising; (2) the rule against sparring was invalid; and (3) the decision to charge him was unfair. Mr Genge advanced his complaints in very similar terms before the Visiting Justice and the Judge. Likewise, in this Court, he effectively presented the same arguments, rather than identifying specific errors in the Judge’s decision.
Was “pads training” captured by the rule against sparring?
Before the Visiting Justice, Mr Genge argued that he and Mr Fahey were not sparring but were instead engaged in “pads training” as part of a general workout. The Visiting Justice recorded that:[12]
[19] Mr Genge accepted that he engaged in non-violent motions of attack and defence with his fists, by making punching motions towards the hands of Mr Fahey, who was holding pads at the time. Mr Genge maintained that his non-violent training purpose was clear, due to the use of pads (which in this case, were jandals on Mr Fahey’s hands), and the incorporation of other exercises such as burpees. There was no suggestion from the prosecution that this was a non-consensual fight or an assault. The verdict in this case therefore depends on the interpretation of sparring.
[12]Department of Corrections v Genge, 22 November 2017 [Visiting Justice at Christchurch Men’s Prison decision].
Mr Genge relied on dictionary definitions to support his argument that pads training was not sparring.[13] However, the Visiting Justice considered that the definitions:
[25] … consistently defined [to spar] as either fighting with an opponent, or making fighting motions without hitting an opponent. That is also consistent with the ordinary meaning of “spar” and “sparring”, which could be summarised as a consensual set of fighting motions between two or more participants for training purposes.
[13]Mr Genge listed as exhibits the following websites: <thefreedictionary.com>, definition of “sparring”; and < definition of “spar”. He also referenced Collins Concise New Zealand Dictionary (online ed, HarperCollins Publishers), definition of “slash” and “spar”.
The Visiting Justice accepted that there was some ambiguity as to the definition of “sparring” in the rule but was satisfied that it was a relatively common term “for those engaged in boxing and/or martial arts, and in fact also more general fitness training”.[14]
[14]Visiting Justice at Christchurch Men’s Prison decision, above n 12, at [33]–[34].
Gendall J took a similar view to the Visiting Justice as to the meaning of sparring, adding:[15]
[54] Taking into account the Visiting Justice’s explanations provided in her decision and the dictionary definitions I have outlined above, it is clear, as I see it, that the meaning of the rule in this case is particularly clear in prison environments. …
[55] This rule is intended to prohibit all forms of violence, including not only fighting and boxing but also consensual sparring. This is inherent from the rule expressly banning both “sparring/fighting”.
[56] I reject Mr Genge’s argument that the term “sparring/fighting” cannot be broadened to include a prohibition on “pads training” for fitness purposes, without language being added to expressly outline this. …
[15]Decision on appeal, above n 1.
In this Court, Mr Genge focussed on his argument that he and Mr Fahey were engaged in pads training, which was different to sparring because it did not involve any violence and was simply part of a general workout that included burpees. He did not specifically address the reliance of the Judge and the Visiting Justice on the dictionary definitions of sparring.
We are satisfied from both the dictionary definitions relied on by the Visiting Justice and by the Judge as well as other dictionary definitions that the ordinary meaning of sparring includes making the motions of boxing, as well as actually engaging in boxing.[16] As a result, the ordinary meaning of sparring includes pads training as Mr Genge and Mr Fahey were engaged in. The inclusion of other exercises in the routine does not alter that.
[16]See also Oxford English Dictionary (online ed, Oxford University Press), definition of “sparring”.
Nor do we accept Mr Genge’s argument that the general meaning is to be read down because the rule is directed towards eliminating violence in the prison and pads training does not involve violence. It is clear from the inclusion of sparring in the rule that it was directed not only to actual violence but also to circumstances in which injury or serious harm could result inadvertently or where the situation escalates. Where punches are being thrown towards another prisoner in close proximity there is always the potential for injury.
Validity of the rule
Mr Genge argued that the rule was both ambiguous and contrary to the right conferred on prisoners by s 70 of the Corrections Act to take at least one hour of exercise a day. This argument was only advanced in this form in the High Court. Gendall J dealt with it by adopting the reasoning from an earlier decision of Nation J — that s 70 does not specify the kind of exercise permitted so that banning a particular form of exercise is not inconsistent with the section.[17]
[17]Decision on appeal, above n 1, at [46], citing Genge v Visiting Justice,Christchurch Men’s Prison [2018] NZHC 1457 at [16]–[21]. This decision was set aside on other grounds.
We agree that there is no merit in the argument. Section 70 is to be construed in light of the purpose of the Corrections Act to ensure that sentences are not administered “more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision”[18] The right conferred by s 70 is therefore not an absolute right. It is plainly within the power of the prison manager to make a rule that limits the right to exercise in order to ensure the safety of both staff and prisoners. It is also plain from what we have said so far that the limitation on sparring is a reasonable limitation on that right.
[18]Corrections Act, s 6(1)(g).
Nor do we consider that there is any ambiguity in the rule. The Judge was satisfied that prisoners who were aware of the rule, as Mr Genge was, would understand that prohibiting sparring also meant prohibiting fighting and sparring motions as well as trading blows. We agree.
Unfairness in charging
Before the Visiting Justice, Mr Genge complained that he had been treated unfairly by being charged when the matter could have been dealt with informally. The Visiting Justice did not accept that the incident had to be dealt with informally, noting that s 132 does not require an informal approach to be taken and expressly permits a charge to be brought if the matter is not dealt with informally.[19]
[19]Visiting Justice at Christchurch Men’s Prison decision, above n 12, at [28].
In the High Court Mr Genge advanced the same argument but added that it was unfair that he had been charged when Mr Fahey had not. He also complained that it was unfair to treat pads training as captured by the rule because an orientation video played in the prison showed a person making fighting motions with commentary about the benefits of exercise.
As to the first argument, the Judge considered that the decision to lay a charge of misconduct involved consideration of general public interest, including the utility in laying charges that are appropriate.[20] Just because the breach could have been dealt with informally, did not mean there was an error in the decision to charge.[21] We do not see any error by the Judge in this conclusion. Section 132(2) of the Corrections Act confers a discretion on prison management to charge even when a breach could be dealt with informally. The nature of this rule — zero tolerance for violence — and the fact that Mr Genge was well aware of the rule meant that the decision to charge was clearly available.
[20]Decision on appeal, above n 1, at [60].
[21]At [63].
As to the second argument, the Judge held that because Mr Fahey had already been released by the time the investigation was complete, pursuing the same charge against him would have served no practical purpose. There was, therefore, no inconsistency or inherent unfairness in charging Mr Genge.[22] Mr Genge’s complaint that only he, and not Mr Fahey, was charged, relies on the principle that like cases should be treated alike. Ostensibly these cases appear alike, however Mr Fahey’s impending release date was a material difference which justified the different treatment. The Judge was correct to accept that Mr Fahey’s impending release significantly distinguished his case from that of Mr Genge, who is a long-time prisoner and will continue to serve his sentence and thus continue to be subject to the rule against sparring.
[22]At [61].
On the third argument, the video that Mr Genge relied on was described by the Judge as a promotional tool for Te Wānanga o Aotearoa, and Mr Genge did not disagree.[23] The Judge held, correctly, that the video had no relevance to the rule. A generalised portrayal of different kinds of exercise cannot reasonably be taken as overriding a specific rule made in the distinct context of the prison.
The charge of failing to obey an order
Background
[23]Decision on appeal, above n 1, at [50].
In July 2019 Mr Genge was being held in the Centre Unit of Invercargill Prison. The unit holds a maximum of 60 men with cells spread over two floors. On 26 July 2019 there were over 50 residents in the Centre Unit. At about 1800 hours the Centre Unit experienced a power outage which left the cells on the upper level of the Centre Unit without power or lights. An urgent job was logged with Downers (the prison contractor). A response was expected within four hours.
“Lock-up” time in the Centre Unit was 1930 hours. The normal procedure, with which all prisoners were familiar, was that the Officer in Charge of the Shift would call “lock-up” or words to that effect, which was the recognised instruction for prisoners to return to their cells for the night.
The senior Officer in Charge of the Shift that night was Michael Grey. He completed lock up on the lower level and then went upstairs to the upper level. He saw that the prisoners on the upper landing were not in their cells. He repeated the lock up instructions loudly enough for the prisoners on the upper landing to hear it. There was no movement from the prisoners on the upper landing. Two staff working on that level trying to get prisoners to return to their cells were being ignored. Mr Grey described “an eerie silence in the unit that I have never experienced in 15 years as SCO in that unit”. One of the prisoners in a group on the upper landing stated that they would not move until the power was turned back on. Mr Grey told the prisoners that the staff had been unable to reset the power and that a job had been logged with Downers. That was all the information he had to give at that point.
Mr Grey became worried about the possible escalation of the situation. He felt that he had lost control of the unit. There were three staff present but his experience was that situations of this kind could escalate quickly to a point that put staff and other prisoners at risk. More staff were summoned to assist in securing the unit. Ultimately 11 more officers attended. Mr Grey repeated the lock-up call and added that if prisoners did not want to be involved in the incident, they should return to their cells immediately. Mr Grey then began giving direct instructions to specific prisoners. Mr Genge was not one who received a specific direction. As more staff arrived prisoners began slowly to return to their cells.
Mr Grey was satisfied that Mr Genge had clearly heard his general directions to return to the cell but ignored them. He had opportunities to return to his cell but chose to walk the long way round, including taking a significant stop on the way. Mr Genge was charged with failing to obey an order, as were several other prisoners.
Mr Genge did not challenge the lawfulness of the order. Nor did he deny that he had heard the lock-up directions from the charging officer, including the direction that anyone who did not want to be involved was to go to their cell. Mr Genge’s position was that: (1) he had not refused to comply because his way was blocked by other prisoners, he had not been personally asked by the charging officer to return to his cell and the order only required him to wait outside his cell as he could not lock himself up, not having a key; (2) he had been treated unfairly because other prisoners who had acted in a similar way or been even more obstructive, had not been charged — he asserted malice on the part of the corrections officer; and (3) the lack of power in the cells was a breach of United Nations Minimum Standard for the Treatment of Prisoners (UNMSTP).[24]
Refusal to comply with the order
[24]United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) GA Res 70/175 (2016).
The incident was captured on CCTV and bodycam. The Visiting Justice who heard the charge viewed this footage, as did the High Court and this Court. The footage shows Mr Genge coming up the stairs to the upper level and turning to his right. His cell is close to that side of the stairway. A group of other prisoners had congregated between the top of the stairs and the cells on that side. Mr Genge claims that they were blocking his way and were not prepared to let him through. In fact, Mr Genge’s unsuccessful attempt to move past the group seems to us to be contrived. In any event, Mr Genge then turns and starts to walk in the opposite direction. He walks around the end of the unit and reaches the other side of the stairway. By then the group of prisoners had dispersed. Mr Genge could have crossed to the other side of the landing and gone to his cell. Instead, he continued straight ahead, completing a full circuit of the landing and taking the longest possible way round to his cell. Once there he stands outside his cell until spoken to by a corrections officer and enters the cell.
The Visiting Justice rejected the arguments that Mr Genge had not refused to comply with the order:[25]
(iii)… What is clear from the video is that, despite four orders being made and heard, the Prisoner slowly made his way, initially in the opposite direction of his cell and then slowly by a somewhat circuitous route towards his cell but did not enter until directly spoken to by the Charging Officer.
The Prisoner’s evidence that he did not enter due to his way being obstructed is implausible. Having made his way to his cell, he then stood outside rather than entering. His explanation that he did not have a key is facile. He did not enter his cell until he was personally approached by the Charging Officer which would have been the fifth order that was made by him.
[25]Department of Corrections v Genge, 13 September 2019 [Visiting Justice at Invercargill Prison decision] at [19].
The Visiting Justice concluded that Mr Genge had “ample opportunity to comply with the lawful order that was made to him and chose not to comply.”[26] The Judge similarly saw no merit in the argument that Mr Genge had not actually refused to obey the order. He viewed the suggestion that the order did not require Mr Genge to enter his cell as “neither cogent nor credible.”[27] As to the argument that Mr Genge was prevented from going to his cell by other prisoners, the Judge having viewed the CCTV footage, was:
[69] … left with an uneasy feeling regarding Mr Genge’s claim that his way back to his cell was truly “blocked” in this case. But, even accepting that this might be so, in the sense that there was an immediate impediment to his returning directly to his cell, in all the circumstances here this comprised only a momentary obstacle. In any event, as I see it, Mr Genge could have taken a more direct route than walking the entire circumference of the upper landing to reach his room. …
[26]Visiting Justice at Invercargill Prison decision, above n 25, at [20].
[27]Decision on appeal, above n 1, at [32] and [67].
There is no error in the decisions by either the Visiting Justice or the Judge. The order was lawful. It is not tenable to suggest that any prisoner, including Mr Genge, could have understood it as requiring them to stand outside their cell rather than go in. Having viewed the footage ourselves we are also in agreement that Mr Genge was not truly blocked from returning to his cell and, in any event, could have taken a more direct route even allowing for the presence of the other prisoners.
Mr Genge drew our attention to the case of another prisoner, who was also charged following the incident but whose charge was dismissed by a Visiting Justice because he had complied, albeit slowly and reluctantly. Mr Genge says that his own conduct was of the same nature. We can understand that Mr Genge might see it as unfair that the other prisoner’s charge was dismissed and his was not. But the prisoners were treated the same in the sense of both being charged. The fact that the outcome of the respective hearings differed is not a basis on which to conclude that the finding against Mr Genge was wrong.
Unfairness in being charged
Mr Genge complained that he had been charged when others had not. He particularly highlighted the fact that he had not been part of the group of prisoners who had refused to go to their cells.
Mr Grey gave evidence about the reasons for some prisoners (including Mr Genge) being charged and others not. Specifically, he said that prisoners who were due for release within a short time were not charged. In addition, the decision to charge depended to some extent on the evidence available from the CCTV footage and the extent of some prisoners’ involvement was difficult to discern from the footage. Mr Grey was satisfied that Mr Genge had heard the order and deliberately ignored it. His movements were clear from the footage. He was not being released within the near future.
The Visiting Justice did not accept that there had been any inconsistent treatment as a result of Mr Genge being charged when others were not.[28] The Judge was satisfied with the explanations for Mr Genge being charged when some others were not and concluded there was no unfairness. He expressly rejected Mr Genge’s argument that the prisoners were entitled to be given more information about the power outage and that there was malice by the corrections officers.[29]
[28]Visiting Justice at Invercargill Prison decision, above n 25, at [21].
[29]Decision on appeal, above n 1, at [74]–[76].
On appeal, Mr Genge advanced the same arguments, save for the assertion of malice by the corrections officers. We see no ground for complaint of unfairness nor any basis on which to think that Mr Genge was treated differently from other prisoners without a good reason. Mr Genge’s complaint of not being treated consistently with others in his position is the same argument as was raised in relation to the sparring charge. As we discussed then, the principle requiring like cases to be treated alike does not preclude different treatment where there are genuine differences in cases.
The discretion to charge is to be exercised having regard to all the relevant factors impacting on the circumstances of the prison and the prisoners. The fact that one prisoner is due to be released and another is not, is a reasonable basis for different treatment. Where the evidence against a prisoner is assessed as being stronger than against another, that is also a reasonable basis for different treatment.
Lack of information and lack of power in cells
Mr Genge complained that the prisoners had not been provided with information about the power outage, which they were entitled to under s 6(1)(f) of the Corrections Act. Section 6(1)(f) provides that that one of the guiding principles of the corrections system is “the fair treatment of persons under control or supervision by … providing those persons with information about the rules, obligations and entitlements that affect them”.
Mr Grey gave evidence that the prisoners were told what the situation was. There is no basis to think that more information was available. We are not satisfied that information was kept from Mr Genge. However, the internal complaints system required by the Corrections Act in all prisons was the appropriate avenue for Mr Genge’s concerns about the extent of the information provided on the evening of the outage.[30] It did not justify refusing a lawful order.
[30]Corrections Act, ss 152 and 153.
Mr Genge also argued that the power outage in the cells resulted in a breach of the UNSMRTP, rule 14 of which provides (among other things) that all places where prisoners are required to live or work shall have artificial light sufficient to read or work by without injury to eyesight. We are doubtful that a temporary, and unavoidable, power outage could amount to a contravention of the UNSMRTP. But again, the appropriate method of dealing with that issue was the internal complaints system. Mr Genge was not entitled to refuse a lawful order.
Result
The appeal in CA439/2021 is dismissed.
The appeal in CA440/2021 is dismissed.
The respondent is entitled to costs for a standard appeal on a band A basis with usual disbursements.
Solicitors:
Raymond Donnelly & Co, Christchurch for Respondents
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