Genge v Visiting Justice, Christchurch Prison

[2021] NZHC 532

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000212

CIV-2020-409-000616 [2021] NZHC 532

BETWEEN

RICHARD GENGE

Applicant

AND

VISITING JUSTICE, CHRISTCHURCH MENS PRISON

First Respondent

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Second Respondent

AND

ATTORNEY-GENERAL

Third Respondent

CIV-2020-425-000080

BETWEEN

RICHARD GENGE
Applicant

AND

VISITING JUSTICE, INVERCARGILL PRISON

First Respondent

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Second Respondent

AND

ATTORNEY-GENERAL

Third Respondent

Hearing:	22 February 2021 via telephone conference
Appearances:	R Genge, Applicant, in person W S Taffs for the Respondents
Judgment:	16 March 2021

GENGE v VISITING JUSTICE, CHRISTCHURCH MENS PRISON [2021] NZHC 532 [16 March 2021]

JUDGMENT OF NATION J

[1]    In proceedings CIV-2020-409-80 (the Invercargill matter), Mr Genge seeks a declaration that staff of the Department of Corrections abused their power, that he receive $1,000 a day for five days of cell confinement and $500 a day for 21 days loss of privileges. The proceedings result from his being charged with failing to obey an order from a corrections officer on 26 July 2019. He was found guilty of the charge by a Visiting Justice in a decision of 13 September 2019, after a hearing on 6 September 2019. He was sentenced to five days’ cell confinement and 21 days’ loss of privileges.

[2]    In proceedings CIV-2018-409-212 and CIV-2020-409-616 (the Christchurch matters), judicial review proceedings resulted from Mr Genge being charged and found guilty of breaching a rule of the prison made pursuant to s 33 of the Corrections Act 2004. The hearing as to that was on 2 August 2017. The rule forbade any prisoner from sparring/fighting in any area of the prison including yards, cells and recreation areas. Mr Genge seeks a declaration that the Visiting Justice’s decision was invalid and $500 per day for the time he was penalised through loss of privileges.

[3]    There was a telephone conference with counsel for the respondents and Mr Genge on 9 February 2021. In a minute of 10 February 2021, Mander J recorded that Mr Genge considered a half day should be sufficient to hear each of the review applications. Mr Genge had no objection to them being heard consecutively over the course of a day. Mander J directed the registry to allocate one day for that purpose.

[4]    Mander J noted the Crown, after discussion with Mr Genge, would file a memorandum confirming arrangements for the hearing of the two review applications. Mander J also directed Mr Genge to apply in writing if he wished to pursue the appointment of amicus curiae.

[5]Mr Genge filed such applications in both proceedings on 18 February 2021.

[6]    Mr Taffs, for the respondents, filed a memorandum proposing timetabling for both proceedings on the assumption that, following discussion with Mr Genge, the proposed timetable would be acceptable to him.

[7]    During the further telephone conference on 22 February 2021, Mr Genge confirmed the proposed timetable was acceptable. I made directions accordingly and recorded them separately in a minute.

The requested appointment of amicus curiae or counsel to assist

[8]    In his application for the appointment of counsel to assist, Mr Genge said, as a prisoner, he does not have physical possession of 10 boxes of property (mostly legal papers) and does not have access to case law, judicial decisions, Judges’ comments or precedent law, as the respondents do. Mr Genge referred to the limited number of lawyers who are available to take civil legal cases on legal aid. He submitted the appointment of counsel to assist would be in the interests of justice.

[9]    Mr Genge also argued it is in the interests of justice for counsel to be appointed because the proceedings involve issues of public interest and importance. He said there is an issue as to the extent to which directions from a prison director can, through rules or regulations, over-ride statute legislation. The second issue of public interest Mr Genge noted is whether it should be admissible for prisoners to be punished for an activity where no rule forbids that activity.

[10]   Mr Genge referred to the way the Court of Appeal has, in the context of criminal trial proceedings, recognised that it may be necessary for a court to appoint counsel to assist where a defendant is unrepresented and that it may be necessary for counsel to assist to be appointed on the basis they will act in a partisan way.1

[11]   The respondents’ position is that (notwithstanding Mr Genge’s aversion to legal aid lawyers) the possibility of representation by a legal aid lawyer should properly be explored before this Court entertains an application for the appointment of counsel to assist.

1      Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [53].

Discussion

[12]   In Fahey v R, the Court of Appeal discussed the potential need for courts to appoint stand by counsel in the context of a criminal trial and the importance of ensuring a fair trial and avoiding the risk of a miscarriage of justice where a defendant was, through the trial process, at risk of a conviction and the serious consequences which could flow from that. Mr Genge is not exposed to those risks or potential consequences through the proceedings in which he is currently engaged.

[13]   The principles relating to the appointment of counsel to assist in civil court proceedings was discussed by the High Court in Erwood v Holmes.2

[14]   The core nature of the role and its primary purpose is to assist the court rather than the parties to the litigation.3

[15]The categories of cases in which counsel may be appointed are not closed.

Counsel to assist has been appointed where:4

(a)        important issues arise for determination but a party to the proceeding has chosen not to participate (thereby ensuring an effective contradictor);

(b)       the case raises issues likely to significantly affect the interests of a sector of society which is not represented in the proceeding;

(c)        the case involves complex issues of human rights or international law; and

(d)       the case involves confidential information which cannot be disclosed to a defendant, or their counsel.

[16]   An appointment should not be made where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid has been refused or a party is otherwise unable or unwilling to access a lawyer.5 The court will

2      Erwood v Holmes [2017] NZHC 1278, [2017] NZAR 971.

3 At [39].

4 At [39].

5 At [40].

not appoint counsel to assist to remedy any perceived deficiency in the legal aid regime.6

[17]In Taylor v Small, Davison J in the High Court stated:7

The Court’s power to appoint counsel to assist the Court is not appropriately employed to provide a party with legal counsel simply because they have elected to be self-represented.

[18]   I have not been persuaded it will be of assistance to the court to appoint counsel to assist, simply because Mr Genge is self-represented.

[19]   In the proceedings over the Invercargill matter, Mr Genge does, in the intituling to the proceedings, refer to the:

Judicature Amendment Act 1972 Crown Proceedings Act 1950 Declaratory Judgments Act 1908 Corrections Act 2004

Corrections Regulations 2005 Prison Service Operations Manual

Department of Corrections Code of Conduct New Zealand Bill of Rights Act 1990

[20]In submissions already filed, Mr Genge refers to various legal authorities.8

[21]   Despite that, it is apparent from an affidavit filed in support of his application, sworn on 25 November 2019, and his statement of claim that his complaints are of a factual nature and challenge the determination the Visiting Justice made as to those matters. In his statement of claim, Mr Genge complains it was unfair he be charged

6 At [25].

7      Taylor v Small [2020] NZHC 1410 at [14].

8      Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34; New Zealand Bill of Rights Act 1990, s 27; State Sector Act 1988; Corrections Act 2004, s 6(2); Jacinta Ruru, Paul Scott and Duncan Webb The New Zealand Legal System: Structures and Processes (6th ed, LexisNexis, Wellington, 2016); Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, 2014); and various other judgments of the High Court, Court of Appeal and House of Lords.

for refusing an order to go to his cell. He claims he went directly to his cell, away from a group of prisoners that were outside the cell, some of whom were given direct orders to get locked up, refused and were not charged.

[22]   As to the Christchurch matter, Mr Genge complains the sparring he was involved in was promoted as appropriate in a circuit exercise video that played in the prison. He says it was unfair for him to be prosecuted for an exercise which he claims the Department of Corrections promoted as being acceptable. He says it was unfair for him to be charged when the person shown on the video footage was engaged in the same exercise and not charged.

[23]   Mr Genge is not asking for the appointment of counsel to assist because he has been unable to obtain legal representation. Reading his application, I am satisfied he has not sought legal representation with legal aid. In his application, Mr Genge frankly acknowledges he does not trust lawyers, especially Legal Aid lawyers. He also does not trust those who administer Legal Aid because he was refused Legal Aid funding for an appeal against a conviction.

[24]   I am also not satisfied there is any particular aspect of this case or issue involved that is of such importance, either to the public or indeed to Mr Genge, that the Court would be assisted by appointing counsel to assist. It is apparent from documents already filed in the proceedings that Mr Genge will be well able to identify the issues he wishes to pursue during the proceedings. In his application, he says he thinks he has identified the areas to be focused upon. He is an experienced litigant. He says in his application that he does not want counsel assisting the court to present arguments. He suggests counsel should be appointed to assist in case the proceedings evolve into an area where he “not being trained in law, has no knowledge and can offer no argument because the subtleties of law are beyond him”.

[25]   In my assessment of the information Mr Genge has put before this Court and of what appears to be at issue, the prospects of such a difficulty arising are remote. The issues in both proceedings appear to be factual, not legal. If legal issues do arise, as is apparent from Mr Genge’s reference to what he considers to be relevant

legislation and case law, it is likely he will be able to refer to such legislation as may be relevant to the arguments he wishes to advance.

[26]   I accordingly decline, as to both proceedings, Mr Genge’s application to have this Court appoint counsel to assist.

Solicitors:
Crown Solicitor, Christchurch

Copy to:
R Genge, Applicant.