Genge v Visiting Justice, Christchurch Men's Prison

[2021] NZHC 1727

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000616

[2021] NZHC 1727

BETWEEN

RICHARD GENGE

Applicant

AND

VISITING JUSTICE, CHRISTCHURCH MEN’S PRISON

First Respondent

CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS
Second Respondent

ATTORNEY-GENERAL

Third Respondent

CIV-2020-425-000080

BETWEEN

RICHARD GENGE
Applicant

AND

VISITING JUSTICE, INVERCARGILL PRISON

First Respondent

CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS

Second Respondent

ATTORNEY-GENERAL

Third Respondent

Hearing:	6 July 2021
Appearances:	Applicant Richard Genge Appears In Person W S Taffs for Respondents
Judgment:	9 July 2021
Reissued:	26 July 2021

GENGE v VISITING JUSTICE, CHRISTCHURCH MEN’S PRISON [2021] NZHC 1727 [9 July 2021]

JUDGMENT OF GENDALL J

This judgment was delivered by me on 9 July 2021 at 4 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

A corrected form of this judgment is issued pursuant to r 11.9 of the High Court Rules. In para [76], line 7 the word “now” is amended to read “not”.

[1]                 The applicant, Richard Genge, is currently a prisoner at Invercargill Prison. He seeks judicial review of two separate decisions by Visiting Justices which found:

(a)Mr Genge in breach of a rule against sparring in prison (the Sparring Decision), and;

(b)Mr Genge refused to obey a direction to return to his cell (the Cell Decision).

With respect to both decisions Mr Genge seeks declaratory relief that both decisions were invalid, orders quashing the decisions and damages.

The Law

[2]                 Both decisions related to breaches of the obligations imposed on Prisoners to comply with regulations, prison rules and lawful orders1 by the Corrections Act 2004 (the Act).

[3]                 As McGrath J in the Court of Appeal noted in Drew v Attorney General2 prison discipline is predominantly undertaken by hearing adjudicators who are department employees appointed by the Chief Executive under s 15 of the Act. An independent outside adjudicator, a “Visiting Justice” appointed under s 19 of the Act have first instance power to hear charges, but mostly deal with prisoner appeals from hearing adjudicator findings. Visiting Justices may impose greater penalties than hearing adjudicators and hearing adjudicators may refer complex, or higher penalty matters to Visiting Justices.

[4]                 The prison disciplinary system has more lenient maximum penalties compared with equivalent charges under the criminal justice system, and a disciplinary charge does not appear on a criminal record.

[5]                 The Corrections Regulations 2005 specify the necessary procedure for disciplinary proceedings. The charge the prisoner faces must be read, and they must

1      Corrections Act 2004, s 40; Corrections Regulations 2005, reg 150(4).

2      Drew v Attorney General [2002] 1 NZLR 58 (CA) at [86].

be asked to plead to it.3 If the prisoner pleads not guilty, both the prisoner and the prosecuting person must present their cases and be given the opportunity to call witnesses who may be cross-examined.4 The adjudicator must find the case made out beyond reasonable doubt before finding the prisoner guilty of the offence.5

[6]                 The purpose of the Corrections system is to improve public safety and contribute to the maintenance of a just society.6 The maintenance of public safety is the paramount consideration in decisions about the management of prisoners.7

[7]                 Section 70 of the Act provides that prisoners are entitled to at least one hour of physical exercise per day. Section 33 allows a Prison manager to make rules appropriate for the management of prisons and for the conduct and safety custody of prisoners. Section 164 requires that information given under the Act or regulations is to be given in a manner which a person under control or supervision can be reasonably expected to understand.

Standard of judicial review

[8]                 Judicial review is the supervisory function of the Court concerned with ensuring public power is exercised according to the law.8 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.9

[9]                 There is recognition in New Zealand that grounds of review tend to overlap in practice, and there may be no fine distinctions between them.10 Here, general submissions from Mr Genge pertaining to 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

3      Corrections Regulations 2005, sch 7, cl 31.

4      Schedule 7, cl 32.

5      Clause 34.

6      Corrections Act, s 5.

7      Section 6(1).

8      Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).

9      Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].

10     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.

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.11

[10]              Regarding the standard and intensity of the review, the “normal” intensity of review has been described by the Supreme Court as being whether information in question, objectively assessed, reasonably supported the decision, not just whether there was information on which the decision-maker could act.12

The Sparring Decision

Facts

[11]              On 3 March 2016 the Christchurch Prison Director issued what are described as the “Zero Tolerance for Violence” rules which prohibited any prisoner sparring or fighting in any area of the prison. The rules generally noted:

Christchurch Men’s Prison has a zero tolerance for violence therefore the following rule/s will be enforced by staff.

…

And stated:

Furthermore, pursuant to section 33 of the Corrections Act 2004, I am making a rule that forbids any prisoner sparring/fighting in any area of the Prison…Any prisoner breaching this rule will likely face disciplinary proceedings.

[12]              On 5 April 2017 a Senior Corrections Officer noticed unusual activity in the Te Ahuhu Unit gym at Christchurch Men’s Prison. The door was open with a towel or yoga mat covering the glass section preventing a direct view into the gym from the guard room. Using a camera, the Corrections Officer observed Mr Genge and another prisoner engaging in activity which he considered to be sparring. The other prisoner had a jandal on each hand while Mr Genge threw punches at him.  When confronted

11     New Zealand Maori Council v Attorney-General [Lands Case] [1987] 1 NZLR 641 (CA) at 678.

12     McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [31].

Mr Genge denied any involvement in sparring. He was charged with breaching a prison rule13 enacted under s 33 Corrections Act 2004, and pleaded not guilty.

[13]              It was accepted Mr Genge had been provided a copy of the “Zero Tolerance for Violence” rules. Mr Genge accepted too that he was using non-violent fighting motions, but he maintained this was simply “pads training” for fitness purposes. He contested these actions could be interpreted as ‘sparring’ – within a proper definition of that term.

[14]              After a hearing on 2 August 2017 Visiting Justice Toohey delivered her decision on 27 November 2017. She held “sparring” is a relatively common term for boxing, martial arts and more general fitness training. The rule in question clearly established that sparring was a separate and less serious matter than actual violent assault. It covered non-violent fighting motions for the purpose of fitness training. Visiting Justice Toohey found the charge proven beyond reasonable doubt.

Applicants submissions

[15]              Mr Genge takes issue with three parts of the decision. First Mr Genge submits the regulation banning fighting motions for the purpose of fitness training is invalid, particularly given that he and other prisoners are entitled under s 70 of the Act to an hour of exercise per day. He also submits that the earlier showing of a promotional video involving the same kind of motions as acceptable pads training, and subsequently charging him for similar behaviour, is entirely unfair.

[16]              Secondly, Mr Genge contends the meaning of “sparring” is ambiguous and therefore non-fighting motions could not be held to be an offence under the rule. Further, the term “sparring” has been unfairly broadened to include what Mr Genge describes simply as “pads training” without Parliament’s intention.

[17]              Thirdly Mr Genge submits it was both unfair and unreasonable not to charge the other prisoner in question at the time who was behaving in the same manner.    Mr Genge argues that by agreeing the other prisoner should not have been charged,

13     Corrections Act 2004, s 128(1)(a).

and in refusing to allow his affidavit, the Visiting Justice showed bias. Mr Genge also submits it was an error of law for the Visiting Justice to use their power or discretion not to uphold the polices of Corrections and not to charge the other prisoner.

[18]              Fourthly, Mr Genge says that where a breach is minor or unintentional it can be dealt with simply by explaining the nature of the breach and instructing the prisoner to correct their behaviour.14 This, Mr Genge submits, was the appropriate solution rather than charging him.

Respondents submissions

[19]              Mr Taffs, for the Crown, argues the regulation is valid because s 70 of the Act does not specify what type of exercise prisoners are entitled to. He says that banning a single form of exercise for security and safety reasons is entirely legitimate, and, in any event here, the promotional video referred to by Mr Genge is irrelevant. 15

[20]              He contended, too, that it was reasonably open for the Visiting Judge to conclude the actions of Mr Genge were covered by the generally understood definition of “sparring”, especially given the prison context. The Visiting Justice was referred to multiple definitions of “spar” and concluded that fighting motions for the purposes of fitness training were included as an offence under the rule. She found all the dictionary definitions defined the verb “spar” in two ways: as fighting with an opponent, or making fighting motions without hitting an opponent. The Visiting Justice opined this was consistent with the ordinary meaning of “sparring”. Mr Taffs submits that, given the context of the ‘Zero Tolerance for Violence” rules, created in response to serious assaults within the prison, it was clear this activity would be covered by the rule.

[21]              It is irrelevant, he says, the sparring was accompanied by other exercise. The use of pads, as occurred here, fits squarely within the definition of sparring.

[22]              In relation to the failure to charge the other prisoner, Mr Taffs acknowledges that the decision not to bring charges against the other prisoner was based on the fact

14     Section 132(1)

15     Genge v Visiting Justice Christchurch Men’s Prison [2018] NZHC 1457.

he was to be released within a week of the incident. A misconduct hearing would not have been brought for several months, by which time the prisoner had been released. A decision to lay charges in this circumstance requires consideration of evidential sufficiency and public interest. Mr Taffs contends the respondent was entitled to consider the limited time before the prisoner’s release, as charging him would serve no practical purpose. The decision was clearly not unreasonable.

[23]              Finally, Mr Taffs submits that while s 132(2) of the Act allows a minor breach to be dealt with informally, it also provides a discretion over whether to charge a prisoner with a disciplinary offence. There is nothing to suggest in this case the exercise of this discretion was wrong.

The Cell decision

Facts

[24]              The second decision Mr Genge seeks to judicially review concerns the charge that Mr Genge refused to obey a direction to return to his cell. At the time in July 2019, Mr Genge was a prisoner at Centre Unit in Invercargill Prison. The unit was divided into two levels with 18 cells on the bottom level and 30 cells on the upper level. Mr Genge’s cell was on the upper level.

[25]              In the early evening around 6 p.m. on 26 July 2019 there was a partial power cut affecting the lights and the power sockets of the upper prison landing at Invercargill Prison. The Corrections Officer logged a job for the power to be restored “urgently”. A job of that categorisation has a four-hour response time.

[26]              During the evening recreation, several prisoners asked when the power would be restored. The Officer in question told them he did not know but that an incident had been logged.

[27]              At around 7.25 pm lockup was called. Lockup is generally part of the normal prison routine. When lockup is called prisoners are required to return to their cells for the night. The prisoners on the lower level returned to their cells. A Corrections Officer then noticed the prisoners on the upper landing were not moving to their cells

as they should, and he was concerned about this. He repeated the call for lock up but there was no movement from the prisoners on the upper landing, who remained in the open area on seats or leaning on handrails, refusing to move. CCTV footage of the entire incident had been viewed at first instance and was again played, this time before me.

[28]              The upper landing prisoners indicated they would not move until the power was turned back on. The Officer again advised that an incident had been logged, but he was unsure when the power would be restored. He was concerned for safety and security issues at the time and he called for more staff to assist. He also told the upper landing prisoners who remained outside their cells if they did not want to be a part of this, they should go to their cells immediately. The Officer in particular instructed Mr Genge, along with seven other prisoners, directly by name, to go to their cells. As more staff arrived, the Officer reiterated that those that did not want to be “involved” should return to their cells. The Officer approached Mr Genge directly and, in response to a question, the Officer advised he did not know when the power would be restored and ordered him once again into his cell. Mr Genge at that point finally entered his cell.

[29]              Before this, the CCTV footage clearly shows Mr Genge walking up the central stairs and turning towards his cell before encountering a group of prisoners coming from the opposite direction. He blocks their way for about five seconds and interacts with them in what appears from the CCTV footage to involve the pretence of stooping lower several times and making a fabricated attempt to start to barge though them. As the CCTV footage shows, he then retreats from what seems likely to be this feigned subterfuge and walks slowly in the opposite direction around the landing and he completes a circuit of the entire unit before arriving at his cell. During this time, he stops to talk to prisoners. Clearly he has an opportunity to take a more direct path which he does not. Once at his cell Mr Genge stands outside it. He only goes into his cell when the further direct order was given by the Corrections Officer, as I note above.

[30]              Mr Genge pleaded not guilty to a charge of refusing to obey an Order. In his defence, he stated he did not disobey an order as it was not made directly to him, and he endeavours to claim he was prevented from getting to his cell by the other prisoners.

After a hearing on 6 September 2019 Visiting Justice Traicee McKenzie, following a viewing of the video footage from the Officer’s body camera, rejected Mr Genge’s evidence that he did not enter his cell because it was obstructed. She found the video clearly showed the following:

Despite four orders being made and heard, [Mr Genge] 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.

Visiting Justice McKenzie found Mr Genge had ample opportunity to comply with the lawful order but he chose not to. She sentenced Mr Genge to five days of cell confinement and 21 days of loss of privileges.

Submissions

[31]              First Mr Genge argues here that it was unlawful and unreasonable that he was charged here because he claims he was never ordered to enter his cell. He maintains he was directed to go to his cell and not into his cell. By his action in standing outside his cell he contends, therefore, that he complied with the order and should not have been charged.

[32]              In response, Mr Taffs submits Mr Genge’s claim that he was told to go to rather than into his cell simply does not withstand scrutiny. Mr Taffs contends that in the prison environment an order to return to your cell should be clearly construed as one to enter the cell itself. This is especially so where, as here, lockup was a normal routine procedure. Mr Genge was on the lower landing when lockup was initially called and, therefore, he would have been well aware of it. Mr Taffs notes that Mr Genge ignored at least four of these orders. It was plainly not the Corrections Officers’ intention that the upper landing prisoners would stand outside their cells. They were ordered to return to their cells to be locked up for the night. The interpretation Mr Genge advocates for is neither cogent nor credible. The conclusion to that effect reached by the Visiting Justice, according to Mr Taffs, was neither unreasonable nor unfair.

[33]              Secondly, Mr Genge in his submissions contends that the Visiting Justice also erred by referring to immaterial considerations like the route Mr Genge took to his cell. Mr Genge claims 11 other prisoners had impeded his access to his cell. Mr Taffs

in reply says that, even if there was an impediment, this was a momentary obstacle and after this Mr Genge could either have waited for this to clear, or he could have retreated (as he did) and taken a more direct route (which he did not).

[34]              Thirdly relying on Department of Corrections v Taylor, Mr Genge also argues the principle of fairness was infringed by the decision to charge him for standing outside his cell when others who acted similarly were not charged.16

[35]              The Visiting Justice was not persuaded this argument provided a defence to what she found was Mr Genge’s deliberate and intentional breach of a direct order. Mr Taffs notes the Corrections Officer’s decision not to charge some prisoners was because:

(a)some prisoners were due to be released in the near future and were unlikely to be tried before their release date;

and:

(b)it was difficult to identify the extent of some prisoners’ involvement from the evidence.

[36]              Mr Taffs’ recollection is that most of the prisoners who were not charged stood directly outside their cells but that, in any event, it was appropriate to charge Mr Genge because he clearly heard each of the directions, ignored them and walked away. From reviewing the footage, Mr Taffs says Mr Genge had every opportunity to return to his cell but chose to walk around the exterior of the unit. Mr Taffs suggests this shows there was no issue of unfairness here. Mr Genge was not simply waiting outside his cell. No issues of unfairness can arise when comparing his actions to those who did in fact simply wait outside their cells. The charging decisions are nuanced, according to Mr Taffs, and the approach of the officer in charge was clearly a reasonable one here. No unfairness arises.

Department of Corrections v Taylor [2009] NZCA 129.

[37]              Mr Taffs also argues that, in any event, charging decisions relating to other prisoners are irrelevant to whether misconduct was established against Mr Genge.

[38]              Fourthly Mr Genge contends that in all the circumstances prevailing here, the prisoners were required to be told when the electricity could be restored under:

(a)the principle of fairness in the Corrections Regulations17

(b)the obligation in the Corrections Act s 6(1)(f)(i) to: provide those persons with information about the rules, obligations, and entitlements that affect them; and

[39]              In response, Mr Taffs maintains that, aside from the Officer’s knowledge that the fault should be responded to within four hours, he had no knowledge of when it would be fixed. There was no unfairness in the information provided as the Officer told the prisoners what he knew. Further, the Officer was managing a stressful situation. This could have escalated and caused a risk to the safety of both staff and prisoners. As noted in s 6(1)(a) of the Act the paramount consideration is the maintenance of public safety. The obligations in s 6(1) must be taken into account in so far as they are practicable in all the circumstances. In these circumstances, Mr Taffs says, the Officer provided the appropriate amount of information.

[40]              Mr Taffs also rejects that the direction to return to cells without electricity breaches rules 13 and 14 of the United Nations Standard Minimum Rules for Treatment of Prisoners (The UN Rules). These Rules are incorporated into our domestic legislation via s 5(1)(2) of the Act. Public safety is paramount. These rules are designed to improve prison accommodation, they are not intended to provide a shield for prisoners to disobey lawful orders, where an error is clearly non-permanent.

[41]              Finally, Mr Genge submits the Officer has breached the Department of Corrections Code of Conduct and has committed the tort of misfeasance in public

17  Corrections Regulations, Pt 2, cl 6(1).  This states: Subject to the Act and to the control of the  Chief executive, the manager of the prison is responsible for its good management and the fair, safe, secure, orderly and humane management and care of prisoners.

officer. Mr Taffs submits there is no evidence before the Court that the Officer has acted in breach. He has acted lawfully in compliance with the Department’s rules.

[42]              Mr Genge contends the orders occurred where the Officer knew or ought to reasonably have foreseen the conduct would cause damage to Mr Genge in his failure to follow the regulatory procedures in relation to

(a)s 5(1)(b) of the Act (the UN Rules);

(b)s 6(1)(f) the corrections system must ensure the fair treatment of persons under control or supervision by— (i)providing those persons with information about the rules, obligations, and entitlements that affect them; and (ii) ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:

[43]              Mr Taffs submits this is untenable because per Commissioner of Inland Revenue v Chesterfields Preschools Ltd this requires Mr Genge prove the Officer acted with malice towards him or with knowledge or reckless indifference that his conduct was unlawful ad likely to injure Mr Genge. Mr Taffs submits there is nothing to suggest the Officer acted inappropriately in any way.

[44]              For all these reasons Mr Taffs submits these two judicial review applications should be dismissed.

My analysis

The sparring decision

[45]              I turn first to Mr Genge’s argument that the regulation banning boxing, fighting or sparring motions in a case such as this where they are used for the purpose of fitness training is invalid. This is particularly so, Mr Genge contends, where s 70 of the Act entitles prisoners to an hour of exercise per day.

[46]              On this aspect, Nation J in a decision he gave on 18 June 2018 relating to this particular matter, stated:18

[16]      Mr Genge submits that, if the regulation does ban fighting motions for the purpose of fitness training, that regulation is invalid. Section 70 of the Corrections Act provides that every prisoner is entitled to at least one hour of physical exercise per day.

[17]      Section 70, however, does not specify what types of exercise prisoners are entitled to, and banning one specific form of exercise for legitimate reasons does not breach that section. As recognised in Taylor v Chief Executive of the Department of Corrections, while certain rights of prisoners are recognised in the Act, those rights are not unencumbered and are “to be balanced against the interests of prison safety, security, and good order”.

[18]      Through the notice by which prisoners were advised of the rule prohibiting sparring, the Department was seeking to demonstrate a zero tolerance for violence. It is also evident from the notice that Corrections differentiated consensual fighting or sparring from the situation where one prisoner assaulted another.

[19]      Judicial notice can be taken that a rule forbidding fighting or assaults within the prison would be in the interests of prisoner and staff safety. It is also readily understandable, without having the rationale for the rule explained, that to enable prison authorities to prevent fighting, they should also prohibit what might be construed as mock fighting or sparring. If fighting were prohibited but sparring or training permitted, there would be difficulties for Corrections in distinguishing between situations where a prisoner might be sparring and another situation where the prisoner was actually fighting.

[20]      Mr Genge argues it is unfair that an orientation video was shown in the prison, including footage of someone making fighting motions for the purpose of fitness training, with supportive comments about how beneficial exercise can be. The Visiting Justice watched the video and found that it was a promotional video for Te Wananga O Aotearoa, a tertiary educational institute which appeared to have a fitness related course, and concluded it was irrelevant to the hearing.

[21]      A rule prohibiting fighting motions for the purpose of fitness training does not breach the Corrections Act, particularly as it has a clear justification.

[47]              I agree entirely with these comments by Nation J and adopt them in rejecting Mr Genge’s argument here.

[48]              Statutory provisions exist to provide for regulations and rules to be made to ensure the good management of prisons and to provide for the discipline of prisoners. From these, an overarching requirement for conducting prison operations, and indeed,

18     Genge v Visiting Justice Christchurch Men’s Prison & Ors [2018] NZHC 1457 at [16] – [21].

prison disciplinary hearings, is to ensure the firm but fair maintenance of discipline and order within prisons for security and safety reasons.

[49] The prison rule in question which was issued on 3 March 2016 by the then prison director following significant disturbances in Christchurch Men’s prison which, as I understand it, involved injury and the death of one prisoner (part of which I have outlined at [11] above) stated in full:

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.

Any prisoner who assaults staff will face external court charges, reclassification and will more than likely be transferred to Auckland Maximum Security Prison.

Any prisoner who assaults another prisoner will face disciplinary proceedings which include external court charges, reclassification and relocation.

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.

[50]              There is no question in my view that, like Nation J in his decision, I find that this regulation banning fighting and “sparring”, even if it is for the purpose of fitness training, is valid. Further, I agree that the provision of the video referred to in Nation J’s decision, which was a promotional tool from the tertiary educational institute in question, is an entirely peripheral matter here. It is not of relevance or significance to the regulation in question which I am satisfied is a valid one.

[51]              I turn now to Mr Genge’s second argument that the meaning of the word “sparring” is ambiguous and therefore non-fighting motions cannot be held to be an offence under the rule. Mr Genge contends that what he was doing here at the time was simply “pads training” which is not “sparring” and it does not infringe the rule.

[52]              The Visiting Justice was referred to a number of definitions of the word “spar”. In addition to these, the Concise Oxford English Dictionary defines “spar” as to “make

the motions of boxing without landing heavy blows, as a form of training”. In addition, the Chambers Dictionary defines “spar” as “to box, or make the actions of boxing”.

[53]              Dictionary definitions which the Visiting Justice considered included a definition in the Free Dictionary of “sparring” as, “to make boxing or fighting motions without hitting one’s opponent”.

[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. This would include Christchurch Men’s Prison which, as I have noted, provided the specific rule and prisoner instruction under the words “Prison Zero Tolerance for Violence”.

[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. Mr Genge’s actions here, which were viewed clearly on the CCTV video footage before the Court, fall squarely within the definition of sparring. I am satisfied the Visiting Justice acted reasonably in concluding that prisoners who were aware of and read the rule (like Mr Genge here) would understand that prohibiting “sparring” meant that it also prohibited fighting and sparring motions as well as trading blows. That is clearly what occurred here.

[57]I reject this second argument Mr Genge endeavours to advance.

[58]              I turn now to Mr Genge’s third argument. This was to the effect that it was unfair and unreasonable not to also charge the other prisoner in question who was behaving in the same manner, again, at the time. As I see it, there is little in this argument. As the Visiting Justice noted at [13] of her judgment, a decision was taken by the authorities not to charge the other prisoner on the basis that he was to be released

within a week of the incident in question. The matter, therefore, would be unlikely to be determined prior to his release. This is confirmed in the affidavit of the prisoner officer concerned, Mr Fraser, which is before the Court.

[59]              It is true also that, by the time the misconduct charges were in fact brought, which was some several months after the events in question, the other prisoner had been released.

[60]              Clearly, decisions to lay charges of misconduct or otherwise involve a consideration, not only of the evidential sufficiency for such charges, but also of the general public interest including the utility in laying charges that are appropriate.

[61]              As I see it, a decision not to lay a charge against his fellow prisoner did not prejudice Mr Genge, nor did it create any inconsistency or inherent unfairness here. Endeavouring to pursue such a misconduct charge against the other prisoner would have served no practical purpose. I reject this argument advanced by Mr Genge.

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

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

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

[65]              In conclusion it will be apparent, as I outline above, that the findings against Mr Genge of the Visiting Justice on the sparring decision charge were open to her to reach. Generally, Mr Genge’s complaints relate only to factual matters. Nothing has been put before this Court to show that proper grounds exist for Mr Genge’s review of

this decision. Mr Genge’s application for judicial review of the sparring decision accordingly is dismissed.

The cell decision

[66]              I turn now to Mr Genge’s second review application relating to the cell decision. His first argument relating to this application appears to suggest that it was unlawful and unreasonable that he was charged in this instance because he claims he was never ordered to enter his cell but instead he was directed to go to his cell rather than into his cell. This argument is quickly disposed of as, in my view, it bears little scrutiny.

[67]              The context of the orders given by the prisoner officer on a number of occasions, both generally to all prisoners on the upper landing, but also to Mr Genge directly, related to the general daily “lockup” to which all prisoners were subject.  Mr Genge has been a prisoner for approximately 25 years. The words “lockup” and the repeated and loud instruction from the senior prison officer in charge, even if using the words and instructions, to  “go  to  your  cell”,  are  clear.  Any  suggestion  by Mr Genge that a reasonable interpretation of these repeated directions for prisoners to return to their cells, meant that they were not to go into their cells, as I see it, is plainly misconceived. From the evidence, first, it appears Mr Genge ignored these orders on at least four occasions. Secondly, they were part of the prison’s ordinary routine with which he would have been entirely familiar and, thirdly, plainly he and the other prisoners were being ordered to return to their cells to be “locked up” for the night. The arguments relating to this aspect which Mr Genge endeavours to maintain are neither cogent nor credible. Also, as Mr Genge himself acknowledged in submissions made before me, it was not a good situation occurring in the prison at the time. He accepted that the senior prison officer in charge felt that he had lost control of what was becoming a serious incident. Mr Genge also acknowledged in his words that “Maybe I didn’t take the most direct route back to my cell but it was not a refusal to go to my cell at all”. It is also clear from the evidence provided in his affidavit by the senior prison officer that this electricity outage incident had become a serious one with non-compliant prisoners. There was nothing benign about it.

[68]              Mr Genge’s next contention is that he was endeavouring to return to his cell at the time when he was blocked in doing so, in his words, by “11 men who stood in my way”.

[69]              As I have noted above, I am 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. I also reject this argument Mr Genge endeavours to advance here. Mr Genge also complains repeatedly that he was not part of a group of prisoners causing difficulty here. That makes no difference, however, to the charge against him.

[70]              Next, Mr Genge complained that other prisoners were not charged with similar offences to him. A principle of fairness has been infringed here, he says, when the decision to charge him for “standing outside his cell” is viewed, particularly when others who purportedly acted similarly were not.

[71]In her decision, the Visiting Justice considered this argument and concluded:

I am not persuaded that the prisoner’s argument of inconsistent treatment provides him with a defence to what was clearly a deliberate and intentional breach of a direct order.

[72]              I accept this comment. In addition, I note that the ultimate responsibility for deciding whether a prisoner is charged in relation to an event like this rests with the senior prison officers concerned. Explanations regarding this aspect are before the Court. I am satisfied overall that no issue of unfairness arises as a result of the various charging decisions which were made. This included the decision to proceed with the charge laid against Mr Genge, and I find, therefore, that there is nothing which assists Mr Genge’s position relating to this aspect.

[73]              This also applies to Mr Genge’s suggestion that the Visiting Justice’s decision was unreasonable and unfair because the Visiting Justice was not persuaded by evidence which Mr Genge produced from other prisoners at the hearing. The weight

to be given to that evidence was always a matter for the Visiting Justice and it unquestionably entered into consideration. In doing so, the Visiting Justice, however, made adverse findings with respect to the cogency and credibility of Mr Genge’s explanation of the incident which she was entitled to do. This argument is also misconceived.

[74]              Next, Mr Genge appeared to complain that principles of fairness required that prisoners were to be told at the time when the electricity outage could be fixed and power restored at the prison. The available evidence indicated, however, that prison officers did disclose what they knew regarding this aspect and that, in any event, the primacy of public safety, both generally and under the Corrections Act, meant that the actions which were taken in all the circumstances were entirely reasonable.

[75]              Lastly, Mr Genge endeavours to suggest here first, that there was a breach of the Department of Corrections Code of Conduct and, secondly, that the tort of misfeasance in public office occurred in circumstances where the senior prison officer concerned committed what was claimed to be a deliberate act or omission attenuated by malice or knowingly in excess of his official powers in a situation where this conduct would cause damage to Mr Genge. The claim from Mr Genge, as I understand it, is that there was a failure on the part of Corrections to follow regulatory procedures under the Corrections Act and the United Nations Standard Minimum Rules for the Treatment of Prisoners.

[76]              On this aspect, I am satisfied the allegations of misfeasance are entirely untenable nor is there any credible evidence before the Court that the Department of Corrections Code of Conduct has been breached or that the prison officer concerned acted beyond his authority. Allegations of bad faith must always be properly particularised and clearly pleaded. This has not occurred here. Further, and in any event, any act of a prison officer in this area must cause actual loss or damage to the plaintiff. That has not been shown. The mental and physical elements of the tort of misfeasance in public office also must coalesce in the identified individual. None of this has occurred. Despite Mr Genge’s contention that there is a double standard or bias against him at play here, there was simply nothing before the Court to indicate any issue of unfairness or unreasonableness on the part of the authorities. The senior

prison officer acted entirely appropriately in the circumstances and certainly no suggestion of malice or recklessness on his part affecting Mr Genge could be properly advanced here. Therefore, the applicant’s assertions of misfeasance and breach of the Corrections Code of Conduct must fail.

[77]              For all these reasons, I find that there was no reviewable error in the cell decision made by the Visiting Justice here. I conclude that no grounds for judicial review of that decision have been made out. That application is also dismissed.

Costs

[78]              As the successful parties in opposing the present applications, the respondents would in the normal course of events be entitled to costs against Mr Genge. If costs are sought, counsel for the respondents are to file memoranda as to any costs that they seek within 15 working days of today. Mr Genge is then to file and serve his response by way of memorandum within a further 15 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

Solicitors:

Raymond Donnelly & Co, Christchurch Copy to Applicant, Richard Genge