Gorgus v Chief Executive of the Department of Corrections
[2024] NZCA 610
•22 November 2024 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA225/2023 |
| BETWEEN | ASHOR CHRISTIAN GORGUS |
| AND | CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS |
| AND | ATTORNEY-GENERAL |
| Hearing: | 26 September 2024 |
Court: | Courtney, Cooke and Collins JJ |
Counsel: | D J Dufty for Appellant |
Judgment: | 22 November 2024 at 11 am |
JUDGMENT OF THE COURT
AThe application to adduce further evidence is granted in part.
BThe appeal against the substantive decision of the High Court — [2023] NZHC 450 — is dismissed.
CThe appeal against the costs award made in the High Court — [2023] NZHC 2097 — is allowed. We direct that costs lie where they fall in the High Court.
DThere is no order for costs in this Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
Mr Gorgus, who at all relevant times was a prison inmate at Auckland Prison, appeals a judgment of Woolford J in which the Judge largely dismissed his claims arising from a period when Mr Gorgus was placed on directed segregation (segregation) under s 58(1)(a) of the Corrections Act 2004 (the Act).[1] Mr Gorgus also appeals a judgment of Woolford J ordering Mr Gorgus pay costs in the sum of $28,431.50.[2]
[1]Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 450 [High Court judgment].
[2]Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 2097 [costs judgment] at [24].
Woolford J granted a declaration that Ara Poutama Aotearoa | Department of Corrections (Corrections) breached Mr Gorgus’ right to natural justice affirmed by s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA) when it:[3]
(a)omitted to provide Mr Gorgus with his segregation paperwork in a timely manner; and
(b)omitted to forward Mr Gorgus’ request for review to a Visiting Justice in a timely manner;
but the Judge otherwise dismissed Mr Gorgus’ claims.[4]
[3]High Court judgment, above n 1, at [84].
[4]At [85].
Mr Gorgus maintains on appeal that Woolford J erred by:
(a)not considering an application to exclude evidence;
(b)concluding that the placement of Mr Gorgus in segregation for 14 days was lawful and did not breach s 23(5) of the NZBORA;[5] and
(c)ordering Mr Gorgus pay costs in the sum of $28,431.50.[6]
The segregation regime
[5]New Zealand Bill of Rights Act 1990, s 23(5) provides that “[e]veryone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person”.
[6]Costs judgment, above n 2, at [24].
Sections 57, 58 and 61 of the Act set out the relevant provisions of the segregation regime. The relevant parts of those sections provide:
57Denial or restriction of prisoner’s opportunity to associate with other prisoners
The opportunity of a prisoner to associate with other prisoners must not be denied or restricted, except in accordance with this Act.
58 Segregation for purpose of security, good order, or safety
(1)The prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if, in the opinion of the manager,—
(a)the security or good order of the prison would otherwise be endangered or prejudiced; or
(b)the safety of another prisoner or another person would otherwise be endangered.
(2) If a direction is given under subsection (1),—
(a)the prisoner concerned must promptly be given the reasons in writing for the direction and any subsequent direction under subsection (3)(c):
(b)the chief executive must promptly be informed of the direction and the reasons for it.
(3) A direction under subsection (1)—
(a)must be revoked by the prison manager if there ceases to be any justification, under subsection (1), for continuing to restrict or deny the opportunity of the prisoner to associate with other prisoners:
(b)may be revoked at any time by the chief executive or a Visiting Justice:
(c)expires after 14 days unless, before it expires, the chief executive directs that it continue in force:
…
61Accommodation to be provided if segregation direction in force
(1)A prisoner who is subject to a direction under section 58, section 59, or section 60 must be provided with accommodation with prescribed items and features that meets prescribed standards.
(2)Those items, features, and standards may—
(a)differ from the items and features provided in, or the standards required to be met for, accommodation for prisoners who are not subject to a direction under section 58, section 59, or section 60:
(b)differ depending on whether the direction was issued under section 58, section 59, or section 60:
(c)differ depending on the particular reason for the issue of a direction under any of those sections.
Also relevant is s 69(1) of the Act, which sets out a prisoner’s minimum entitlements including when the prisoner is subject to directed segregation:
69 Minimum entitlements
(1) Every prisoner has the following minimum entitlements:
(a) physical exercise, as provided for in section 70:
…
(d) access to private visitors, as provided for in section 73:
(e) access to statutory visitors and specified visitors:
(f) access to legal advisers, as provided for in section 74:
(g) to receive medical treatment, as provided for in section 75:
…
(i)to make outgoing telephone calls, as provided for in section 77(3):
(j)to exercise any right conferred on prisoners by regulations made under this Act to communicate using any specified device or medium of communication:
(k)access to information and education, as provided for in section 78.
These entitlements are subject to limitations in s 69(2) and (4)–(6) of the Act, which we will address where relevant.
The Prison Operations Manual, guidelines issued by the chief executive of Corrections under s 196 of the Act, provides that if segregation is approved by the Prison Director or his delegate, a copy of all documents relevant to the approval must be given to the prisoner within one working day of the direction.[7] This reflects s 58(2)(a) of the Act.
[7]Department of Corrections Prison Operations Manual at [M.07.03].
Consistent with s 58(3)(b) of the Act, the Prison Operations Manual sets out the procedure for a Visiting Justice to review a segregation direction. That procedure involves four steps:[8]
(a)The prisoner completes a prisoner complaint form.
(b)Staff must immediately advise a Principal Corrections Officer (PCO) or a Residential Manager of the request and enter the details into the Integrated Offender Management System (IOMS) database.
(c)The PCO or Residential Manager is required to forward the request to the Director Office of Commissioner Custodial Services no later than the first working day from receipt of the request.
(d)The Director Office of Commissioner Custodial Services is required to forward all relevant documentation to the court that supplies a Visiting Justice to the prison. This is also required to be done on the first working day following the day the request is received.
Background to making the segregation orders
[8]At [M.07.04.04].
Mr Gorgus has an extensive history of criminal offending, dating back to 2000. His convictions are mainly for crimes of dishonesty. Corrections has however assessed Mr Gorgus as having a propensity for violence. He disputes that assessment saying he has no convictions for violence and that he is not a violent person.
From 10 January 2019 to 21 May 2019, Mr Gorgus was a remand prisoner at Mt Eden Correctional Facility. He received 15 misconduct reports. It transpired that none of those misconduct reports were the subject of any further action.
On 20 and 21 May 2019, Mr Gorgus is reported to have made a number of threats against Corrections staff and their families. This led to him being transferred on 21 May to Auckland Prison, which is a maximum security facility. Normally, remand prisoners are not accommodated in maximum security facilities.
On 8 July, Mr Nui, a Rehabilitation and Residential Manager at Auckland Prison, recorded that during an incident which involved the use of force on another prisoner, Mr Gorgus yelled out at staff and was abusive and threatening towards them. He is reported to have kicked his cell door and yelled out derogatory remarks about Corrections staff. Corrections officers turned on their body cameras to record Mr Gorgus’ behaviour.
On 9 July, a Corrections officer completed an incident information report concerning an attack on a Corrections officer by another prisoner who was restrained by use of force. During the incident, Mr Gorgus was again heard threatening staff, being verbally abusive and kicking his cell door. Staff thought that Mr Gorgus was trying to provoke other prisoners into being violent and non‑compliant.
Later that day, Mr Salevao, a PCO, made an application to the Prison Director for Mr Gorgus to be placed into segregation under s 58(1)(a) of the Act. The reason for this application was concern that Mr Gorgus’ behaviour was a threat to the security and good order of the prison. The application was orally approved at 2.30 pm on 9 July. The direction was to apply for 14 days. A written direction was made later on 9 July by the Deputy Prison Director.
Following the making of the direction, Mr Gorgus was transferred to a cell in Unit 10, Te Aranga Hou. He was housed in cells in Unit 10 until the direction expired on 22 July 2019. The management plan prepared by Corrections for Mr Gorgus during his directed segregation reflected the minimum entitlements set out in s 69 of the Act.
The evidence
In the High Court, Mr Nui accepted that the processes for the implementation and review of the directed segregation order did not meet the standards set out in the Prison Operations Manual in two respects:
(a)Mr Gorgus did not receive a copy of his segregation paperwork until 18 July; and
(b)the Visiting Justice did not see Mr Gorgus until 14 August, over a month after he had requested that the Visiting Justice review his placement in segregation.
Mr Nui explained that these delays were attributable to administrative errors and staff absences.
The acknowledged delays in providing Mr Gorgus with the relevant paperwork concerning the making of the segregation order and the delays in him accessing the Visiting Justice led to Woolford J making the declarations we have set out at [2].
Application to adduce further evidence
Mr Gorgus did not have the benefit of counsel in the High Court. Mr Dufty was recently assigned to represent Mr Gorgus in this Court.
Mr Dufty has applied to adduce further evidence on appeal. That evidence comprises an affidavit from Mr Gorgus. Mr Dufty says the relevant parts of the affidavit concern:
(a)Evidence about the size of the exercise yard adjacent to the cell Mr Gorgus occupied when he was in Unit 10; and
(b)previous complaints made by Mr Gorgus against Corrections staff. These complaints comprise 118 pages of annexures to Mr Gorgus’ affidavit.
Mr Dufty submitted the affidavit from Mr Gorgus was fresh, credible, and cogent and therefore satisfies the criteria for admitting new evidence.[9]
[9]Lawyers for Climate Change Action NZ Inc v Climate Change Commission [2023] NZCA 443 at [12], citing: Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192–193; and Paper Reclaim Ltd v Aotearoa International Ltd(Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].
The application to adduce further evidence was opposed on the basis that it does not meet the high threshold for leave to adduce further evidence set out in r 45 of the Court of Appeal (Civil) Rules 2005.
Analysis
We agree with the respondent that the proposed new evidence is not fresh. Even allowing for the difficulties Mr Gorgus faced when conducting his own case, it should have been abundantly clear to him that his complaint about exercise included that the exercise area adjacent to his cell was too small and did not have exercise equipment. Thus, Mr Gorgus knew evidence about the size of the exercise area to which he had access from his cell was relevant. He chose to deal with the absence of that evidence by cross‑examining Mr Nui, who estimated that the approximate exercise area was “maybe 12 by eight metres”. The evidence Mr Gorgus now wishes to adduce sets out information obtained under the Official Information Act 1982 from Corrections, which says the exercise area in question was approximately 3.1 by 3.25 metres, which is considerably smaller than the area that Mr Nui estimated.
The proposed evidence about Mr Gorgus’ complaints about Corrections staff was referred to by Mr Nui in his brief of evidence dated 27 August 2021. Mr Gorgus had the opportunity to reply to that evidence and adduce what he says is evidence of misconduct of Corrections staff.
Apart from the evidence concerning the size of the exercise area adjacent to the cells in Unit 10, the proposed new evidence lacks credibility and cogency. In particular, the 118 pages of complaint‑related documentation preceded the events in issue and is not relevant to Mr Gorgus’ amended statement of claim in which he limited his allegations about misconduct on the part of Corrections staff to events when he was placed into segregation.
We are satisfied the evidence concerning the dimensions and description of the exercise area adjacent to cells in Unit 10 is both credible and cogent in the sense that it provides information in relation to one of Mr Gorgus’ complaints and corrects inadvertently misleading information provided by Mr Nui. It is in the interests of justice that we admit that evidence. That is, however, the only part of Mr Gorgus’ application to adduce new evidence that we will grant. The balance is declined.
Was there a failure to consider an application to exclude evidence?
On 19 August 2022, Mr Gorgus filed an application challenging the admissibility of evidence in Mr Nui’s brief. The respondent suggested that those challenges be dealt at the trial. According to notes made at the time by counsel for the respondents, when the trial began on 31 August 2022, Woolford J suggested Mr Gorgus’ application to exclude evidence be dealt during the course of the hearing.
Mr Gorgus does not appear to have pursued his application to exclude evidence during the trial. Instead, Mr Gorgus elected to cross-examine Mr Nui on the evidential matters that Mr Gorgus objected to. He questioned Mr Nui about whether or not some of the misconduct charges referred to in his brief of evidence had been withdrawn. Mr Nui accepted that was correct.
We agree with counsel for the respondent that evidence of Mr Gorgus’ incidents of misconduct before and during his time on segregation was admissible. Mr Gorgus maintained that the decision to place him in segregation was punitive, unlawful and in breach of s 25(c) of the NZBORA. Thus, evidence concerning why Mr Gorgus was placed in segregation, which helped inform the assessment of the risk he posed, was relevant and not unfairly prejudicial.
We also reject Mr Gorgus’ argument that he did not have the opportunity to respond to the allegations that he was involved in the incidents mentioned by Mr Nui. Mr Nui’s brief of evidence was filed in sufficient time for Mr Gorgus to have the opportunity to file reply evidence and give evidence in the High Court to respond to the conduct attributed to him. He also took advantage of the opportunity to cross‑examine Mr Nui about the incidents that led to him being placed into segregation.
We can see nothing wrong in the way in which Woolford J managed issues concerning the admissibility of evidence, particularly when as it now appears, Mr Gorgus did not pursue his application but rather chose to cross-examine on the very evidence that he wished to have excluded.
Was Mr Gorgus’ placement in segregation lawful?
There are two parts to the challenge to the decision to place Mr Gorgus into segregation:
(a)the initial decision to place him segregation was flawed because the claims that he had misconducted himself were never proven; and
(b)once he was placed in segregation his continued detention in that facility was unlawful because the conditions of segregation breached his rights under s 23(5) of the NZBORA to “be treated with humanity and with respect for the inherent dignity of the person”.
The decision to place in Mr Gorgus in segregation
In the High Court, Mr Gorgus appears to have laboured under the impression that as the 15 misconduct charges initiated when he was in the Mt Eden Correctional Facility were not progressed and were either withdrawn or lapsed, that he had been acquitted of those matters.[10] He then maintained that evidence about those matters was inadmissible and that absent the evidence of those complaints, the High Court should have concluded that the decision to place him in segregation was unlawful.
Analysis
[10]High Court judgment, above n 1, at [40].
There are two reasons why we do not accept that the decision to place Mr Gorgus in segregation was unlawful:
(a)It is not necessary for misconduct charges to be proven before they can be taken into account when assessing a prisoner’s security risk. The reasons why misconduct charges have not been progressed may relate to administrative decisions unconnected to the merits of the allegations. The evidence of prior incidents and misconduct charges could legitimately be taken into account when Corrections officers made the assessment of the risk that Mr Gorgus posed to the security and good order of the prison.
(b)The decision to place Mr Gorgus in segregation was preceded by two incidents in Auckland Prison in which he abused Corrections officers and endeavoured to incite other prisoners to take physical action against Corrections officers. Those two incidents by themselves justified the placing of Mr Gorgus into segregation.
Conditions of segregation
Most of Mr Gorgus’ challenges to his continued segregation relate to his access to physical exercise and the conditions available for physical exercise.
Exercise
Section 70 of the Act provides for the minimum entitlements that inmates have to physical exercise:
70 Exercise
(1)Every prisoner (other than a prisoner who is engaged in outdoor work) may, on a daily basis, take at least 1 hour of physical exercise.
(2)The physical exercise referred to in subsection (1) may be taken by the prisoner in the open air if the weather permits.
There were two areas where Mr Gorgus could undertake physical exercise, namely, the general exercise yard and the small area adjacent to his cell.
The complaints about Mr Gorgus’ access to the general exercise yard are twofold:
(a)he was handcuffed when in that yard; and
(b)he had limited access to that yard. Mr Gorgus says he had access to the general exercise yard three times a week for about 30 minutes on each occasion.
Mr Dufty submitted that whilst it may have been appropriate to handcuff Mr Gorgus when he was being transferred from his cell to the general exercise yard, there was no need to keep him in handcuffs once he reached the yard as no other prisoners were in the general exercise yard at the times Mr Gorgus was there.
Analysis
It appears the reason Mr Gorgus was handcuffed when in the exercise yard related to the assessment of the risk he posed. While the evidence is vague as to whether other prisoners were in the general exercise yard when Mr Gorgus was in that facility, it is unlikely other prisoners would have been in the general exercise yard with Mr Gorgus. Corrections officers however would have been required to be present in the yard carefully monitoring Mr Gorgus’ behaviour whilst in that area.
We are in no position to second guess the decisions made concerning the risk posed by Mr Gorgus when he was in the general exercise yard. Like Woolford J, absent satisfactory evidence to the contrary, we accept that there were legitimate reasons to be concerned about the level of risk posed by Mr Gorgus and that it was considered necessary to handcuff him when he was in the general exercise yard in order to mitigate those risks, including the potential risks to Corrections officers.[11]
[11]At [61]–[62].
We have examined the summary of prisoner movement logs during the time that Mr Gorgus was in Unit 10. Unfortunately, those records are very incomplete. There are no records for four of the days that Mr Gorgus was in Unit 10.
The summary of prisoner movement logs records that Mr Gorgus was in the general exercise yard only once; on 14 July 2019 for 30 minutes. That conflicts with Mr Gorgus’ recollection of events. He suggested he was in the general exercise yard on three occasions each week during the time that he was in Unit 10.
When cross-examined in the High Court, Mr Gorgus accepted he had access to the small exercise area adjacent to his cell every day. The evidence is he usually declined to use the small exercise yard.
Thus, while the prisoner movement logs are far from clear, it would appear that Mr Gorgus did have access to the ability to exercise outside of his cell most of the time that he was in Unit 10.
Mr Gorgus complains that maintaining him in handcuffs when he was in the general exercise yard meant he was unable to perform the types of exercises he would have liked and that the small exercise area adjacent to his cell was inadequate for the purposes of exercise.
We accept that Mr Gorgus would not have been able to perform the types of exercises that he may have wished to have performed when in the general exercise yard and in the small area adjacent to his cell. As was noted by Woolford J, it was however quite possible for Mr Gorgus to have performed exercise programmes as such as the 5BX developed for the Canadian Airforce and other calisthenics work out plans that can be performed in small spaces without exercise equipment.[12] He was also offered the opportunity to exercise in the larger exercise yard on occasions. We do not accept that because he was handcuffed when in the larger yard that Mr Gorgus was denied the minimum requirements for exercise under s 70 of the Act.
[12]At [55].
Absent more compelling evidence, we agree with Woolford J that Mr Gorgus’ right to physical exercise was not breached when he was placed in segregation.
Access to telephone for calls to nominated lawyers
Regulation 86 of the Corrections Regulations 2005 provides that a prisoner must have access to a phone at all reasonable times so they can contact their legal advisor. Regulation 86(1)(a) states:
86 Access to telephones generally
(1) The manager of a prison—
(a)must ensure that a remand prisoner has access to a telephone at all reasonable times for the purpose of communicating with his or her legal adviser or to arrange bail:
…
Regulation 87(1) provides that access to a telephone for the purposes set out in reg 86(1)(a) must be free of charge.
Mr Gorgus’ complaint in relation to this ground of his appeal is that he was only allowed to use the telephone when he had access to the general exercise yard and that other than when he was in the general exercise yard, his requests to make legal calls were denied.
Unfortunately, the prison records do not enable us to determine whether or not Mr Gorgus was denied the ability to call his lawyer. As Woolford J noted:
[33] … The records note that Mr Gorgus made 19 telephone calls during his time in segregation to the Complaints Response Desk (x 2), the Office of the Ombudsman (x 3), the Inspector of Corrections (x 7), Legal Aid (x 2), and fines or reparation enquiries (x 5). He also spoke with lawyer Sue Gray on 9 July 2019, immediately before the segregation direction and with lawyer, Richard Francois, on 24 July 2019, soon after segregation ended. …
When cross-examined, Mr Gorgus acknowledged that there were two lawyers on his list of pre-approved persons whom he could have called but, he maintained there were other lawyers he wanted to contact. Before us, Mr Dufty submitted that the requirement by Corrections that lawyers be pre-approved on a list of contact persons for a prisoner meant that there was no flexibility to enable Mr Gorgus to contact any lawyer that he wished without going through the process of having another lawyer added to the list of persons whom he could contact.
Mr Dufty submitted that the process was inflexible and unlawfully restricted Mr Gorgus’ right to access a lawyer.
Analysis
There is no evidence that Mr Gorgus’ right to contact a lawyer was unreasonably fettered by Corrections. He appears to have contacted two lawyers on either side of the time that he was placed in segregation. He also made multiple other telephone calls whilst he was in segregation. Regulation 86 clearly contemplates that prisoners can only contact their legal advisor, that is to say, a lawyer engaged to act for the prisoner. A prisoner cannot as of right call any lawyer in the hope the lawyer may wish to act for the prisoner.
The requirement that lawyers’ names be placed on a list of approved persons whom a prisoner can telephone ensures that prisoners know in advance which lawyers they can call and, if they wish to, change or add to the lawyers whom they can contact. Prisoners also know there is a process for enabling them to apply to have other lawyers added to the list of persons they can phone.
Absent evidence tending to show that Mr Gorgus was actually denied the right to contact a lawyer during the time he was in segregation, we are unable to agree that the right afforded to him under reg 86 of the Corrections Regulations was infringed.
Access to medical visits
The Prisons Operation Manual requires regular staff and medical visits to prisoners placed in segregation. Mr Gorgus maintains that none of the required staff visits were carried out. Mr Nui, on the other hand, said that he notified the health centre manager about Mr Gorgus’ placement in segregation on 10 July 2019 and that health team nurses do rounds and that Mr Gorgus would have been seen by a health professional every day.
Mr Dufty submitted that Mr Nui’s evidence on this point was hearsay.
Analysis
There is no evidence before us in the form of notes or other records that help us determine whether or not medical staff visited Mr Gorgus on a regular basis. All we have is Mr Nui’s evidence that as a matter of routine, nurses visited prisoners in segregation every day. Absent evidence to support Mr Gorgus’ claim we are unable to conclude that Mr Gorgus’ access to medical visits was frustrated.
Other entitlements
In the High Court, Mr Gorgus complained that he was denied the following additional entitlements:
(a)visits;[13]
(b)access to books;[14] and
(c)continuance of programmes and education.[15]
[13]High Court judgment, above n 1, at [34].
[14]At [35].
[15]At [36].
Woolford J said that these matters had no merit.[16] In particular, Mr Gorgus accepted under cross-examination that he was entitled to receive visits from family and friends, but that such visits would be “non-contact visits”. Further, the complaints about access to books, continuance of programmes, and education was not supported by any evidence.
[16]At [58]–[59].
These ancillary matters were not pursued in Mr Dufty’s submissions. That is an understandable approach given the paucity of evidence on these matters.
Summary
The two substantive grounds of appeal we have summarised at [3](a)] and [3](b)] fail to gain traction, primarily because of the large gaps in the evidence and because of misunderstandings on the part of Mr Gorgus concerning the relevance of challenged evidence.
Costs appeal
As we have noted at [3](c)], Mr Gorgus appeals the order requiring him to pay costs in the sum of $28,431.50.[17] That sum reflected a 25 per cent reduction from the standard scale costs that would otherwise have been awarded.[18]
[17]Costs judgment, above n 2, at [24].
[18]At [8].
Mr Dufty accepts that usually costs follow the event.[19] Nevertheless, he submits that costs should lie where they fall given Mr Gorgus had some success in the High Court and a declaration was issued in his favour. The respondents reject that reason for allowing the appeal against the costs order. They say the two issues that underpin the declarations made in favour of Mr Gorgus were conceded by Corrections before trial, and that in any event, the 25 per cent reduction in costs was an acknowledgment of Mr Gorgus’ partial success in the High Court.
[19]High Court Rules, r 14.2(1)(a).
In Attorney-General v Udompun, this Court cautioned against rigidly applying normal costs rules in circumstances which discourage litigants from bringing NZBORA claims.[20] That caution reflected a concern that significant cost awards against plaintiffs in circumstances like that of Mr Gorgus could result in the weakening of NZBORA protection.
[20]Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186] per McGrath, Glazebrook, William Young and O’Regan JJ.
Most of the claims brought by Mr Gorgus fail primarily through the lack of cogent evidence being properly placed before the High Court. The issues raised however extend beyond Mr Gorgus’ personal interests and may generally impact on the entitlements of prisoners placed into segregation. Those entitlements are important safeguards to the way prisoners are treated. Some of the matters raised by Mr Gorgus, such as the size of the exercise area, raised genuinely arguable points. We would not want other potential plaintiffs armed with more compelling evidence to be dissuaded from bringing NZBORA claims.
There is a further related factor. As we have stressed, the records kept by Corrections concerning the provision of Mr Gorgus’ minimum entitlements were inadequate. It is important that such records be maintained, in part to ensure that the minimum entitlements are provided. Appropriately, this is a requirement of the Prison Operations Manual.[21] In circumstances where a prisoner alleged that the entitlements have not been so provided it should be a straightforward matter to resolve by reference to these records. Such records were not properly maintained here. This has contributed to the disputes as to fact that have given rise to the litigation.
[21]Department of Corrections, above n 7, at [M.07.02.01].
Accordingly, we propose to allow the appeal against costs and direct that costs in the High Court lie where they fall.
Mr Gorgus was in receipt of legal aid in this Court. No costs order is required in this Court.[22]
Result
[22]Legal Services Act 2011, s 45(2).
The application to adduce further evidence is granted in part.
The appeal against the substantive decision of the High Court — [2023] NZHC 450 — is dismissed.
The appeal against the costs award made in the High Court — [2023] NZHC 2097 — is allowed. We direct that costs lie where they fall in the High Court.
There is no order for costs in this Court.
Solicitors:
Meredith Connell, Wellington for Respondents
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