Gorgus v Chief Executive of the Department of Corrections

[2023] NZHC 2313

ORDER PROHIBITING PUBLICATION OF THE REASONS IN [131] AND

[143] OF THIS JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE. PUBLICATION IN LAW

REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002071

[2023] NZHC 2313

UNDER

the New Zealand Bill of Rights Act 1990

BETWEEN

ASHOR CHRISTIAN GORGUS

Plaintiff

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

First Defendant

THE ATTORNEY-GENERAL OF NEW ZEALAND

Second Defendant

Hearing:

12–16 June 2023

Appearances:

S J Fraser for Plaintiff

S K Shaw and H L Botha for Defendants

Judgment:

24 August 2023

JUDGMENT OF EDWARDS J

[redacted version]

This judgment was delivered by me on 24 August 2023 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel/Solicitors:

S J Fraser, Wellington
Meredith Connell (Office of the Crown Solicitor), Auckland

GORGUS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2313 [24 August 2023]

TABLE OF CONTENTS

Events in overview  [4]
20–21 May 2019, MECF  [5]
23 August–22 November 2019, Auckland Prison  [12]

The Corrections Act 2004  [15]

Purpose and principles  [15]

Use of force  [20]

Strip searches  [23]

Segregation  [30]

(a)Directed protective custody  [31]

(b)Segregation for the purpose of medical oversight  [34]

Minimum entitlements  [37]

NZBORA  [39]

Admissibility of reports  [47]

The use of force incident  [55]

What happened?  [55]
Did the use of force incident breach NZBORA?  [65]

First strip search  [70]

What happened?  [70]
Did the first strip search breach NZBORA?  [76]

Second strip search  [89]

What happened?  [89]

Did the second strip search breach NZBORA?  [99] Directed segregation for purpose of medical oversight  [108] What happened?  [108]

Did the segregation for medical oversight breach NZBORA?  [114]

MECF events considered cumulatively  [125]

Events at Auckland Prison  [129]

What happened?  [129]

Was the segregation order imposed unlawfully and without reasonable

justification?  [141]

Was there non-compliance with administrative formalities?  [146]

Were the conditions of segregation unduly restrictive and were minimum

entitlements denied?  [153]

Meaningful contact  [155]
Medical and mental health services  [172]
Access to educational or rehabilitative programmes and the library                [177]
Intentional harm, provocation and antagonising behaviour  [181[

Events at Auckland Prison considered cumulatively  [184]

Should compensation be awarded?  [192]
What sum should be awarded?  [199]

Result  [204]

[1]                  In 2019 Mr Gorgus was a remand prisoner, first at Mount Eden Corrections Facility (MECF), and then at Auckland Prison. Mr Gorgus sues the defendants for alleged breaches of ss 9, 21, and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA) while he was in custody.

[2]Mr Gorgus’ claim is split across two time periods:

(a)20–21 May 2019 at MECF. Mr Gorgus alleges breaches arising out of a use of force incident on 20 May 2019, two strip searches, and the subsequent decision to place him on segregation for the purpose of medical oversight.

(b)23 August–22 November 2019 at Auckland Prison. Mr Gorgus claims breaches of NZBORA in relation to his placement on directed segregation for his own protection.

[3]                  The defendants accept that the use of force at MECF on 20 May 2019 was unreasonable. They also accept that there were failings with Mr Gorgus’ paperwork for both periods of directed segregation. However, the defendants deny that these failings amount to breaches of NZBORA and say that the remainder of Mr Gorgus’ case is without merit.

Events in overview

[4]                  Each of the events are considered in more detail later in this judgment. For present purposes, I provide a brief outline of what occurred.

20–21 May 2019, MECF

[5]                  On 20 May 2019, Mr Gorgus arrived back at MECF from a court appearance. He was taken to a holding cell. While outside the cell, a spontaneous use of force was initiated against Mr Gorgus who was restrained by all three officers present. A code blue was called, which resulted in numerous officers attending the scene.

[6]                  A Visiting Justice found that the use of force was unreasonable. The defendants accept that finding and an apology has been offered to Mr Gorgus.

[7]                  A short time after this incident, Mr Gorgus was strip searched in a designated area of the “receiving office” (a large room where prisoners are taken when they arrive at the prison). The search was recorded on CCTV. One of the officers thought he saw something partially concealed in Mr Gorgus’ buttocks during the strip search.

[8]                  Mr Gorgus was taken to a holding cell and the Prison Director was called. He was strip searched again. This search was also recorded on CCTV footage and by one of the officer’s On Body Camera. Several Corrections Officers were present at this time.

[9]                  One of the officers confirmed his belief that Mr Gorgus was concealing something between his buttocks. The assistant health centre manager was called. The Prison Director directed that Mr Gorgus be placed on directed segregation for the purposes of medical oversight under s 60 of the Corrections Act 2004 (Act).

[10]              Mr Gorgus was placed in a “dry cell” for this purpose. This is a cell with a mattress and bedding and no toileting facilities. Mr Gorgus was monitored overnight and seen by a member of the health team the following morning. No concealed item was found.

[11]              Later that morning, on 21 May 2019, Mr Gorgus was transferred  to Auckland Prison.

23 August–22 November 2019, Auckland Prison

[12]              Auckland Prison, also known as Paremoremo Prison, is a high security prison for the most serious of offenders. In 2019 it was unusual to have remand prisoners, like Mr Gorgus, held there.

[13]              On 23 August 2019, the acting Prison Director placed Mr Gorgus on directed segregation under s 59(1)(b) of the Act. This was for his own safety. His segregation

was extended on several occasions, and he remained in directed protective custody for approximately four months.

[14]              Mr Gorgus complained to the Office of the Inspectorate about the lawfulness of his segregation and his segregation conditions. The Inspectorate upheld Mr Gorgus’ complaint in two respects:

(a)the paperwork did not comply with the Prisons Operations Manual; and

(b)there was insufficient evidence recorded to provide assurance that he was seen daily by the Prison Director’s delegate.

The Corrections Act 2004

Purpose and principles

[15]              The purpose of the Corrections system is to improve public safety and contribute to the maintenance of a just society by, amongst other things:

(a)Ensuring that sentences and related orders are administered in a safe, secure, humane, and effective manner.1

(b)Providing for corrections facilities to be operated in accordance with rules set out in the Act and Regulations made under the Act “that are based, amongst other matters on the United Nations Standard Minimum rules for the Treatment of Prisoners”.2 These rules are referred to as the Nelson Mandela Rules (the Mandela Rules).

[16]              Those exercising powers and duties under the Act or Regulations must consider the principles set out in s 6 of the Act. Those that are relevant in this case include the following:

1      Corrections Act 2004, s 5(1)(a).

2      Section 5(1)(b).

(a)The maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision.3

(b)The corrections system must ensure the fair treatment of persons under control or supervision by:4

(i)providing them with information about the rules, obligations and entitlements that affect them; and

(ii)by ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaint procedure.

(c)Sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of law and the safety of the public, corrections staff, and persons under control or supervision.5

[17]              Prison managers have specific powers and functions under s 12 of the Act, including ensuring the prison operates in accordance with the purposes set out in s 5, and ensuring the safe custody and welfare of prisoners received in the prison.

[18]              The courts have recognised that the prison manager and other prison management staff are well-placed to make the day-to-day decisions about how the prison is run to maintain good order and security. The courts are hesitant about undue interference with the prison management decision-making process.6

[19]              Nevertheless, as observed by Isac J in Taylor v Attorney-General, the cases also recognise the vulnerability of those deprived of liberty to abuses of power, and

3      Section 6(1)(a).

4      Section 6(1)(f).

5      Section 6(1)(g).

6      Taylor v Chief Executive of Department of Corrections [2015] NZCA 477 at [89].

the importance of fundamental human rights – where intervention is warranted, it is the duty of the Court to intervene.7

Use of force

[20]Section 83 of the Act governs the use of force and provides:

83       Use of force

(1)No officer or staff member may use physical force in dealing with any prisoner unless the officer or staff member has reasonable grounds for believing that the use of physical force is reasonably necessary—

(a)in self-defence, in the defence of another person, or to protect the prisoner from injury; or

(b)in the case of an escape or attempted escape (including the recapture of any person who is fleeing after escape); or

(c)in the case of an officer,—

(i)to prevent the prisoner from damaging any property; or

(ii)in the case of active or passive resistance to a lawful order.

(2)An officer or staff member who uses physical force for any of the purposes or in any of the circumstances referred to in subsection (1) may not use any more physical force than is reasonably necessary in the circumstances.

(3)If an officer or staff member uses physical force in dealing with any prisoner, the prisoner must, as soon as practicable after the application of that force, be examined by a registered health professional, unless that application of force is limited to the use of handcuffs of a kind that have been [authorised] for use as a mechanical restraint.

(4)Nothing in this section limits or affects any other provision in this Act or any other enactment that authorises an officer or staff member to use physical force, or any provision of the Crimes Act 1961, or any rule of law, that makes any specified circumstances—

(a)a justification or excuse for the use of force; or

(b)a defence to a charge involving the use of force

7      Taylor v Attorney-General [2022] NZHC 3170 at [70].

[21]              Section 83(1)(c) was initially relied on in this case to justify the use of force. However, following the Visiting Justice’s report, the defendants now accept that the use of force was not reasonably necessary.

[22]              Section 83(3) is also relevant in this case. That subsection provides that a prisoner must, as soon as practicable after the use of force incident, be examined by a registered health professional, unless the application is limited to the use of handcuffs.

Strip searches

[23]              The sections governing searches of prisoners are found in pt 2, subpart 4 of the Act. These searches include rub-down, scanner searches, and x-ray and imaging technology searches.

[24]              Section 90 of the Act provides a definition of a strip search. It specifies what a person conducting the strip search may require the person being searched to do (e.g., open mouth, and bend knees until buttocks are adjacent to heels).8

[25]              The authority to conduct a strip search includes the authority to conduct a visual examination (whether facilitated by an illumination or magnifying device or not) of the anal and genital area but does not authorise the insertion of any instrument or device.9

[26]              Restrictions on searches are set out in s 94 of the Act. A strip search may only be carried out by a person of the same sex as the person to be searched,10 and it must not be caried out in view of any person who is not of the same sex as the person to be searched.11 Another officer must be present during the strip search,12 and it must not be carried out in view of another prisoner.13

8      Corrections Act 2004, ss 90(2)(a) and (f).

9      Section 90(3).

10     Section 94(1)(b).

11     Section 94(1A).

12     Section 94(3)(a).

13     Section 94(4).

[27]              Section 94(2) provides that the strip search must be conducted “with decency and sensitivity in a manner that affords to the person being searched the greatest degree of privacy and dignity consistent with the purpose of the search”.

[28]              Section 98 of the Act provides for the search of prisoners and cells. Relevant subsections provide:

(a)An officer may conduct a strip search if the officer has reasonable grounds for believing that the prisoner has an unauthorised item in their possession and has obtained the manager’s approval to the strip search.14

(b)The power to conduct a strip search may only be exercised for the purpose of detecting any unauthorised items and “if a strip search is necessary in the circumstances for the purpose of detecting an unauthorised item”.15

(c)If a prisoner is required to undergo a strip search under this section, a scanner search may be undertaken as an alternative if the chief executive has approved the device as suitable for the purpose of replacing a strip search.16

[29]              In 2019, it was mandatory for prisoners to be strip searched on their return from outside the prison.17 Mr Gorgus does not challenge the reason for the initiation of the first strip search. The focus of the challenge is on the conduct of the strip search itself.

Segregation

[30]              Sections 58 to 60 of the Act outline the limited circumstances in which a prisoner’s ability to associate with other prisoners can be restricted or denied.

14     Corrections Act 2004, s 98(3)(a).

15     Corrections Act 2004, s 98(5).

16     Corrections Act 2004, s 98(9).

17     Corrections Act as at 12 April 2019, s 98(7)(b)(i).

[31]              Mr Gorgus’ claim engages segregation for different purposes: segregation for the purposes of medical oversight, and segregation for the purpose of protective custody. The latter is addressed first.

(a)Directed protective custody

[32]              Segregation for the purpose of protective custody is governed by s 59 of the Act. The segregation in this case was made in reliance on s 59(1)(b) (referred to as directed protective custody, or DPC). Relevant subsections provide:

59Segregation for purpose of protective custody

(1)The prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if—

…

(b)the prison manager is satisfied that—

(i)the safety of the prisoner has been put at risk by another person; and

(ii)there is no reasonable way to ensure the safety of the prisoner otherwise than by giving that direction.

…

(3)If a direction is given under subsection (1)(b),—

(a)the prisoner concerned must promptly be given the reasons in writing for the direction, and any subsequent direction under subsection (4)(c):

(b)the chief executive must promptly be informed of the direction and the reasons for it.

(4)If a direction is given under subsection (1)(b), the direction—

(a)must be revoked by the prison manager if there ceases to be any justification, under subsection (1)(b), 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:

(c)expires after 14 days unless, before it expires, the chief executive directs that it continue in force:

(d)must, if it continues in force because of a direction under paragraph (c), be reviewed by the chief executive at intervals of not more than 3 months.

[33]              Part 6 of the Corrections Regulations 2005 applies to the segregation of prisoners. Some of these regulations apply when a segregation direction is made denying the opportunity to associate with  other  prisoners,  as  was  the  case  for  Mr Gorgus. Those that are applicable include:

(a)The health centre manager of a prison must be notified reasonably promptly of the decision.18

(b)The manager or an officer authorised by the manager must “at least once a day” visit the prisoner.19

(c)A prisoner must be detained, “so far as is practicable in the circumstances and if it is not inconsistent with the purposes of the segregation direction” under the same conditions as if he or she were not subject to a segregation direction.20

[34]              The Prison Operations Manual sets out a process to be followed when placing a prisoner on DPC:

(a)A Corrections Officer makes an application (using a standard form) to the Prison Director to consider whether such an order is necessary. Supporting evidence is typically attached.

(b)That application is sent to the Prison Director as soon as possible. The Corrections Officer will then complete and send to the Prison Director a notice to the prisoner subject to a decision to segregate and a management plan for the prisoner on segregation.

(c)Upon receipt of the application, the Prison Director considers whether an order for the prisoner to be placed on DPC is necessary. If the Prison Director agrees that segregation is necessary, then the application will be approved. The level of association a prisoner is

18     Corrections Regulations 2005, pt 6, reg 55.

19     Regulation 56.

20     Regulation 62. This obligation is also found in the Prison Operations Manual.

permitted to have with other prisoners on DPC will also be determined by the Prison Director. A prisoner can either have association restricted or denied altogether.

(d)The health centre manager must also be notified promptly when a decision to deny association with other prisoners is made. The purpose in doing so is to confirm that there are no pre-existing psychological conditions that may be aggravated by segregation.

(e)A prisoner placed under directed segregation must have a management plan developed. That plan shows how the prisoner’s minimum entitlements will be maintained while the prisoner is segregated.

(f)Within three days of the Prison Director giving a DPC direction, the Senior Advisor to the Regional Commissioner must be provided with a copy of all documents and be advised of the direction to segregate. There must be a review of the direction and supporting documentation to support or revoke the initial segregation direction made by the Prison Director.

(g)Prisoners should also be provided with a copy of the directed segregation documents and a copy of the outcome of the review undertaken by the Senior Advisor to the Regional Commissioner if segregation is supported. If it is revoked, then a copy of the revocation must also be provided to the prisoner.

(b)       Segregation for the purpose of medical oversight

[35]              Mr Gorgus’ claim in relation to events at MECF engages s 60 of the Act, which governs segregation for the purpose of medical oversight. That section provides:

60Segregation for purpose of medical oversight

(1)A prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if the health centre manager of the prison recommends that a direction of this kind is desirable for either or both of the following reasons:

(a)in order to assess or ensure the prisoner’s physical health, except against the risk of self-harm:

(b)        in order to assess or ensure the prisoner’s mental health. (1A)       Before  a  health  centre  manager  makes  a  recommendation  under

subsection (1) that relates to a matter outside his or her scope of

practice, he or she must consult a medical practitioner whose scope of practice includes that matter.

(2)If a direction is given under this section,—

(a)the prisoner concerned must promptly be given the reasons for the direction in writing:

(b)the chief executive must promptly be informed of the direction and the reasons for it.

(3)A direction under this section continues in force while the prisoner continues to be detained in the prison unless the prison manager or the chief executive revokes it.

(4)The prison manager may not revoke a direction under this section unless the health centre manager advises that there has ceased to be any justification, under subsection (1), for continuing to restrict or deny the opportunity of the prisoner to associate with other prisoners.

(5)While a direction under this section is in force, the health centre manager must, unless he or she is satisfied that it is not necessary in the circumstances, ensure that a registered health professional visits the prisoner concerned at least once a day.

[36]              Regulation 64 of the Corrections Regulations 2005 applies to prisoners suspected of concealing unauthorised items. A prisoner may be placed in a cell that does not have a toilet, running potable water, or a modesty screen. There are requirements for the health centre manger to be advised as soon as that person believes that there has ceased to be any justification for continuing to deny or restrict the opportunity of the prisoner to associate with other prisoners.

Minimum entitlements

[37]              Under s 69 of the Act, every prisoner has the minimum entitlements listed in that section and provided for in other sections of the Act. Those relevant to this case include: physical exercise of at least one hour a day;21 medical treatment that is

21     Corrections Act 2004, ss 69(1)(a) and 70.

reasonably necessary;22 and access to information and education (including access to library services and further education).23

[38]              The Prison Operations Manual repeats this obligation also. It also provides that prisoners must be given access to the library or provided books and magazines and are allowed to work within the unit to the extent that it is not inconsistent with the purposes of the direction to segregate.

NZBORA

[39]              Mr Gorgus’ claim is for breaches of ss 9, 21, and 23(5) NZBORA. Those sections provide:

9        Right not to be subjected to torture or cruel treatment

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

21       Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

23       Rights of persons arrested or detained

…

(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[40]              The principles relevant to  ss 9  and  23(5)  were  considered  by  the  Supreme Court in Taunoa v Attorney-General.24 That decision has been canvassed in more detail in other cases concerning prisoner rights and freedoms.25 Only a brief summary of the key principles is set out here.

[41]              Dealing first with s 9, the Court said that this section is concerned with conduct on the part of State which is “to be utterly condemned as outrageous and unacceptable

22     Sections 69(1)(g) and 75.

23     Sections 69(1)(k) and 78.

24     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.

25     For example, Taylor v Attorney-General [2022] NZHC 3170.

in any circumstances”.26 Section 9 prohibits treatment that is “less than human”.27 Factors potentially relevant to an assessment of an alleged breach of s 9 include: the nature of the conduct being examined; the state of mind of the party responsible for the conduct; and the effect of the conduct on its victims.28

[42]              In comparison, s 23(5) responds to the special vulnerability of prisoners and others deprived of their liberty.29   It is concerned with conduct unacceptable in    New Zealand but of a lesser order than that prohibited by s 9.30 The threshold for establishing breach of this section was correspondingly less than s 9.   A breach of    s 23(5) captures conduct which:31

… lacks humanity, but falls short of cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so.

[43]              Importantly for this case, s 23(5) imposes positive obligations on the State. The State is not simply to refrain from inhumane conduct, but also to act to maintain minimum conditions of detention as defined in the statute authorising the detention, subordinate legislation, and any other relevant standards.32

[44]              Whether there has been a breach of these sections is highly fact specific. Factors relevant to the assessment include: the nature and severity of the treatment; duration and frequency of impugned conduct; nature and extent of the impact on a detainee; the particular vulnerability or condition of the detainee; and the purpose of the impugned conduct.33

[45]              As for the intersection between the Corrections Act and NZBORA, it is important to note that not every transgression of the Act or Regulations amounts to a

26     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [170] per Blanchard J.

27     At [297] per Tipping J.

28     At [293] per Tipping J.

29     At [78] per Elias CJ and [177] per Blanchard J.

30     At [170] per Blanchard J.

31     At [177] per Blanchard J.

32 At [177] per Blanchard J; Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67 (CA) at [50].

33 Taylor v Attorney-General [2022] NZHC 3170 at [38] citing Falwasser v Attorney-General [2010] NZAR 445 (HC); Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [358] and [133]; Attorney-General v Udompun [2005] 3 NZLR 204 (CA); and S v Attorney-General [2017] NZHC 2629 at [246] and [247].

breach of s 23(5), let alone s 9.34 In assessing whether there is a breach, however, the cumulative effect of the conduct must be assessed.35

[46]              Finally, those who allege that a breach has been committed bear the burden of proving their claim to the balance of probabilities standard. In a case of this kind:36

… the Court is not concerned with the culpability of individual officials but with the protection of the rights of those who may have suffered from a breach, and with any necessary redress.

Admissibility of reports

[47]Two reports were issued both before and after the trial:

(a)The Office of the Inspectorate issued a report in March 2023 entitled “Separation and Isolation” (OI Report).37

(b)The Ombudsman issued a report in June 2023 entitled Kia Whaitake Making a Difference (Ombudsman Report).38

[48]              The OI Report was the outcome of a thematic inspection into the management of prisoners separated from the prison population who were unable to mix with others. Eighteen prisons were visited, and prisoners and staff were interviewed. Segregation directions and associated documentation were reviewed for the period 1 October 2020 to 30 September 2021.

[49]              The Office of the Inspectorate concluded that when prisoners were unable to associate with other prisoners, for any reason, their opportunities for social interaction were generally limited. The physical environment in which the prisoners were housed was also likely to be restrictive and they had little to do. Significantly, the Office of the Inspectorate found that many of the prisoners would likely have experienced

34     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [181].

35     At [6] per Elias CJ and [157] per Blanchard J.

36     At [182] per Blanchard J.

37     David Neild Separation and Isolation: Thematic Report (Office of the Inspectorate, March 2023).

38     Peter Boshier Kia Whaitake | Making a Difference: Investigation into Department of Corrections

(Office of the Ombudsman, June 2023).

solitary confinement as that term is defined in the Mandela Rules, and some prisoners would have experienced this for a number of months or years.39

[50]              As noted  earlier  in  this  judgment,  the  Mandela Rules  refer  to  the  United Nations Standard Minimum Rules for the Treatment of  Prisoners  (the Nelson Mandela Rules) A/RES/70/175. These are referred to in s 5(1)(b) of the Corrections Act. Solitary confinement is defined in the Mandela Rules to mean confinement for 22 hours or more without meaningful human contact. Prolonged solitary confinement is when this occurs for more than 15 days. Mr Gorgus alleges that his segregation at Auckland Prison in 2019 constituted solitary confinement as defined in these Rules.

[51]              The Ombudsman’s report was an investigation into the Department of Corrections. The report followed the Waikeria Prison riots in late 2020. The purpose of the report was to understand whether there were systemic issues affecting the ability of the Department to effectively respond to the concerns and findings, and to implement the recommendations of oversight entities.40 One of the findings in the report was summarised as follows:41

In New Zealand, it is expected that the Department will give prominence to prisoner rights and welfare in all its actions and decisions. However, a common theme in my findings is that the legal rights and interests of prisoners have been too easily and unreasonably overlooked. While I acknowledge its obligations to its staff and the wider public, the Department has not sufficiently had the fair, safe and humane treatment of prisoners at the centre of its decision making. This appears to me a core reason why change has not occurred in response to oversight entity reports.

[52]              Ms Shaw, for the defendants, submits both reports are irrelevant and ought not to be admitted. She points out that the reports postdate the relevant period in this claim and the Office of the Inspectorate report overlaps with the COVID-19 pandemic. Furthermore, due to the timing of the release of the reports, witnesses were not afforded an opportunity to address them in evidence, nor provide necessary context.

39     David Neild Separation and Isolation: Thematic Report (Office of the Inspectorate, March 2023) at 4.

40     Peter Boshier Kia Whaitake | Making a Difference: Investigation into Department of Corrections

(Office of the Ombudsman, June 2023) at [7].

41 At [14].

[53]              In addition, Ms Shaw submits that the Ombudsman’s report is broad and thematic in scope and is not relevant to the specific issues addressed in the pleadings and evidence in this case. She says that the investigation the subject of that report followed a different process and that “generic conclusions in a thematic report prepared for a different purpose could not be extrapolated from, or be a substitute for, findings based on factual evidence tested at trial”.

[54]              These points are soundly made. It is correct that the reports are no substitute for findings of fact which must be made in accordance with the evidence adduced at trial. But I do not consider the reports are relied on for that purpose. Rather, the reports are reference materials, akin to articles on subjects such as segregation and solitary confinement. They provide background content on some of the issues in dispute. The time periods covered in the reports, and the fact that witnesses were unable to comment on them, are factors relevant to weight. But overall I consider the reports may be referred to in order to explain or elucidate a point. They have been referred to (and are “admissible”) for that purpose.

The use of force incident

What happened?

[55]              The events leading up to the use of force and the incident itself were captured on CCTV from three separate cameras. There is no audio from any of these cameras.

[56]              The first camera shows Mr Gorgus arriving by a Corrections truck at MECF at approximately 12.30 pm. His handcuffs are removed by an officer after exiting the truck. He has an item of clothing over his shoulder. He walks past the reception desk to a door which is just out of shot. He appears to be talking to someone at this time, but it is not possible to see who he is talking to or where the other person is located.

[57]              The second camera is from “corridor west”. It shows Mr Gorgus walking down the corridor, with an officer walking behind him. There are two other officers at  the  door.  When  Mr Gorgus  reaches  the  door,  one  of  the  officers  removes Mr Gorgus’ item of clothing which is over his shoulder. There then appears to be a discussion between Mr Gorgus and the officer. Mr Gorgus walks through the door

with two of the officers. The third officer retains the item of clothing and follows them through.

[58]              The third camera is from “corridor south”. Holding cells are located along this corridor. One officer is unlocking the holding cell. Mr Gorgus is talking to the other officer.   That officer moves closer to him pointing at him with his index finger.     Mr Gorgus has both hands in his pockets at this time. He appears to say something in response and nods his head towards the officer.

[59]              At the nod of Mr Gorgus’ head, the three officers escorting Mr Gorgus grab him. Two officers have an arm each. The third officer grabs Mr Gorgus around the neck. He is forced to the floor, face down, and held there for approximately one minute and 20 seconds. He is then marched, bent over, and still held by the three officers along the corridor.

[60]              During the incident one of the prison offers calls a “code blue”, and the corridor is filled with officers who watch what is going on.

[61]              Mr Gorgus makes several allegations in relation to this incident. He says that the entire incident was planned and that the prison officers abused him using religious slurs. Further, Mr Gorgus says he was slammed into the concrete floor causing significant swelling and abrasions to his head. He says that one of the officers spat on him and was making provocative and vile comments to him about his religious beliefs and calling him names. He also claims that one of the officers was deliberately inflicting as much pain as possible.

[62]              The CCTV footage is not consistent with these claims. The events leading up to the incident suggest a spontaneous use of force rather than a pre-planned incident. Similarly, I consider  it  unlikely  that  the  officers  racially  abused  or  provoked  Mr Gorgus as he  alleges.  One  might  have  expected  a  different  reaction  from  Mr Gorgus if that was so.

[63]              Moreover, while it is impossible to see from the CCTV footage what exactly went on when Mr Gorgus was held on the ground, I consider it unlikely that his head

was slammed into the concrete floor. There was no evidence of marks, swelling, or abrasions to Mr Gorgus’ head in the subsequent CCTV footage.

[64]              Similarly, there is no indication that the officers were acting inappropriately in the way they restrained Mr Gorgus at the time. Accordingly, I am not able to accept Mr Gorgus’ evidence that he was spat on, or that the officers were deliberately inflicting as much pain as possible.

Did the use of force incident breach NZBORA?

[65]              The defendants accept that there was a breach of s 83(1) of the Act in that the use of force was  unreasonable.  That  concession  followed  a  finding  by  a  Visiting Justice to the same effect. The defendants have apologised to Mr Gorgus for that incident. Nevertheless, the defendants maintain that the use of force did not amount to a breach of ss 9 and 23(5) of NZBORA.

[66]              Although it did not receive a great deal of emphasis at trial, I consider there was a breach of s 83(3) in this case also. That is because Mr Gorgus was not “examined” by a registered health professional as soon as reasonably practicable after the application of force. The use of force paperwork records Ms Herridge as conducting the examination shortly after 1.00 pm. She is a registered nurse who was the acting Health Manager on 20 May 2019. She attended to Mr Gorgus after the second strip search. She said in evidence that she conducted a visual, head to toe, examination of Mr Gorgus and concluded he was fine.

[67]              The exchange between Mr Gorgus and Ms Herridge is set out at [108] of this judgment. The focus of that exchange is on the possibility of a concealment. There were no questions asked about the use of force incident or its impact on Mr Gorgus. Indeed, it is clear from her exchange with Mr Gorgus that Ms Herridge was not interested in the prior use of force incident at all. She said as much directly. Given that evidence, I do not consider Ms Herridge’s assessment constituted an examination for the purposes of s 83(3).

[68]              That breach adds to the finding of unreasonable force, but it does not add much. Ms Herridge did at least see Mr Gorgus, and there was no evidence of any physical or mental harm (beyond being upset) caused to Mr Gorgus by the incident.

[69]              Despite the breach of s 83, I am not satisfied that the conduct complained of amounted to a breach of either ss 9 or 23(5) of NZBORA. The officers used standard control and restraint procedures. There was no deliberate infliction of harm, and the conduct did not gravely humiliate or debase Mr Gorgus.42 The use of force was not disproportionately severe in the circumstances, nor could it be classified as outrageous.43 The conduct was not demeaning, and it did not lack humanity within the meaning of s 23(5). Taken in isolation, I consider the use of force, while unreasonable, did not breach s 23(5) of the Act.

First strip search

What happened?

[70]              After the use of force incident Mr Gorgus was marched by the three officers to the end of the corridor. Some of the reports on file record that he was taken to a holding cell at this time.

[71]              Mr Gorgus is next seen on CCTV re-entering the receiving office at approximately 12.41 pm. He is wearing different clothing (shorts and a t-shirt). He is uncuffed, walking freely, and is relaxed. I infer that there must have been a short period (approximately eight minutes) between the use of force incident and the first strip search.

[72]              The receiving office is a thoroughfare to other parts of the prison. There is a screen (appears to be mesh) in one corner of the room. Next to the screen are some clothing bins stacked on top of each other. The strip search is captured on CCTV, although it is from some distance, and it is not possible to see Mr Gorgus’ body in any detail.

42     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [171] per Blanchard J and [282]–[283] per Tipping J.

43     At [170] per Blanchard J.

[73]              Two of the officers are sorting clothing into the clothing bins nearby. One officer is in front of Mr Gorgus conducting the strip search. A second officer is standing behind him. Mr Gorgus undresses behind the screen, but then steps a small distance away from it. The presence of the officers partially shields him from those walking through.

[74]              Mr Gorgus is seen removing his underwear and shorts. He can be seen squatting three times.44 The officer conducting the search reported that he saw something white in Mr Gorgus’ buttocks. At one point in time there are eight officers in the room. At the end of the first strip search, Mr Gorgus puts on his clothes and his handcuffs are again secured. He is taken to a holding cell.

[75]              There is no evidence that the first strip search was captured by an On Body Camera as Mr Gorgus alleges. None of the three officers involved in the use of force incident were involved in the strip search either, and I reject Mr Gorgus’ evidence to that effect.

Did the first strip search breach NZBORA?

[76]              I accept counsel for the defendants’ submission that the first strip search was carried out in a careful way. Clothes were removed in stages and Mr Gorgus’ top remained on throughout. Nevertheless, there are two elements of the first strip search which are concerning.

[77]              First, the strip search was carried out in a room which has little to no privacy. The receiving office is a thoroughfare with officers moving through at various times. There were up to eight officers in the room at the time Mr Gorgus was first strip searched. The defendants explain that the greater number of officers “toing and froing in the background” was due to the code blue alert having been called.

[78]              The fact of the earlier code blue may explain the number of officers present, but it does not mitigate the invasion  of  privacy.  Any immediate  threat posed  by Mr Gorgus had subsided by the time of the strip search. That is evident from the fact

44     This is contrary to what is recorded in the Visiting Justice report but is consistent with Mr Gorgus’ statements made to the officers immediately after the strip search is conducted.

that he walked into the receiving office uncuffed and walking freely. An increased presence of Corrections Officers was not required for security reasons, and they should not have been present during the strip search.

[79]              There was a screen erected in  the  corner,  and  officers  stood  in  front of Mr Gorgus to protect his privacy. But neither of those measures provide a great deal of privacy. The screen is one-sided and appears to be made out of mesh.45 Most of  Mr Gorgus’ search occurred beside, and not behind, that screen in this case. Similarly, while some protection was afforded to Mr Gorgus by the officers standing in front of him, it did not completely shield Mr Gorgus from the view of other officers passing through.

[80]              Second, the entire search was captured on CCTV footage which was operating in the room at the time. Mr Goodin explained that it is standard for a CCTV camera to be recording at all times in the receiving office. He said that this was “done for the safety of staff and prisoners as a recording protects staff against untrue allegations made by prisoners and ensures the  safety  of  prisoners  through  accountability”.  Mr Goodin said that footage was stored securely, and other staff cannot access it unless granted special access by the Prison Director.

[81]              While CCTV footage in the receiving office is acceptable, the filming of strip searches is not. Filming provides another degree of invasion into the privacy of the prisoner being searched. In the OI report, the Office of Inspectorate said “[r]equiring prisoners to be strip searched in front of a camera is inappropriate, dehumanising, and degrading”.46 It is not obvious to me why the strip search in this case could not have been conducted in the holding cell where Mr Gorgus was previously held or conducted in another area with more privacy.

[82]              Strip searches were a feature of the regime at issue in Taunoa.47 Like this case, the strip search involved squatting. While such a search is less intrusive than a rectal

45     Mr Goodin referred to it as a cubicle in evidence but that suggests more screening than there was in fact.

46     David Neild Separation and Isolation: Thematic Report (Office of the Inspectorate, March 2023) at [108].

47     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.

inspection, Blanchard J nevertheless considered that such a search is “properly considered a substantial affront to the dignity of any prisoner”.48

[83]              Most of the strip searches in Taunoa were conducted in a cross-passage between landings on the floors where prisoners were housed. The trial  Judge, Ronald Young J, found this was an area of limited privacy as staff and other officers escorting prisoners had access. However, unlike the present case, when a strip search was being conducted in that case, those officers were asked to wait until the process had been completed. The Judge concluded that the conduct of strip searches in the passageway did not afford prisoners “the greatest degree of privacy and dignity consistent with the purpose of the search”.49

[84]              These aspects of the searches, combined with the routine and at times unnecessary nature of them, informed Ronald Young J’s finding that there had been a breach of s 23(5). The Supreme Court considered they came very close to degrading treatment in terms of s 9 of NZBORA.50

[85]              In Forrest v Attorney-General, the Court of Appeal found that a strip search which was not carried out for a specified statutory purpose (the detection of any unauthorised item) constituted a breach of s 21(5) of NZBORA.51 However, the period of the strip search was brief, it was witnessed only by the officer conducting it, and there had been no ongoing consequences for Mr Forrest from it.

[86]              I consider the lack of privacy in the receiving office, the number of Corrections Officers present, and the filming of the strip search means that the strip search was not conducted with the greatest degree of privacy and dignity consistent with the purpose of the search.  The first search breached s 94 of the Corrections Act.

[87]              These factors also combined to make the search unreasonable within the meaning of s 21 of NZBORA.  The search represented a greater invasion of privacy

48     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [198] citing R v (Al-Hasan) v Secretary of State for the Home Department [2002] 1 WLR 545 at [68] and [70].

49     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [199] per Blanchard J.

50     At [54] per Elias CJ and [349] per McGrath J.

51     Forrest v Attorney-General [2012] NZCA 125.

than the search in Forrest. While the one-off nature of the search makes the invasion of privacy less serious than in Taunoa, the lack of privacy and the filming of the search represents a greater intrusion on the dignity of Mr Gorgus than in that case. I consider these aspects constitute demeaning and degrading conduct within the meaning of     s 23(5). However, the modicum of privacy provided, and the respect with which the search was carried out, save it from reaching the high threshold necessary to constitute a breach of s 9.

[88]              In summary, I find the first strip search breached ss 21 and 23(5) of NZBORA but fell short of the high threshold for breach of s 9.

Second strip search

What happened?

[89]              After the first strip search, Mr Gorgus was taken to a holding cell. He remained handcuffed and was sitting on a bench in the cell.

[90]              There were three officers in the cell with him and one more at the doorway. One of them turned on his On Body Camera to record what was going on. He told Mr Gorgus that he was going to do this. Mr Gorgus can be heard protesting about the earlier use of force incident stating that he was not being aggressive or violent. He appears calm, but annoyed (for example he makes a remark about being “drunk on power”).

[91]              In response to a query by Mr Gorgus about what was going to happen next, one of the officers tells him that he will probably go to the dry room, because they (the officers) are “not satisfied with the process”.

[92]              At approximately 12.54 pm,  the  Prison Director  at  MECF  at  the  time,  Mr Goodin, enters the room. He is accompanied by Ms Herridge and three other officers. Ms Herridge remains at the back of the room. Mr Gorgus complains about the “assault by three of your staff members”. He requests a copy of the CCTV footage.

[93]              Mr Goodin tells Mr Gorgus that one of the officers saw something between his buttocks. Mr Gorgus denies he has anything. Mr Goodin directs that Mr Gorgus’ handcuffs be removed and that he be taken to another room. Mr Gorgus is belligerent and there is a further interaction between him and Mr Goodin. Ms Herridge does not say anything at this time.

[94]              At approximately 12.56 pm, Mr Gorgus is taken from the holding cell through the prison (including a metal detector) to a cell known as the “round room” which is a dry cell. Mr Gorgus passes through the metal detector twice, and it does not go off.

[95]              At about 12.59 pm, Mr Gorgus enters the round room. He is accompanied by four other Corrections Officers. There is CCTV footage in the round room and the officer’s On Body Camera remains on the entire time.

[96]              One of the officers gives Mr Gorgus an order that he is to be strip searched. Mr Gorgus initially refuses to comply, but eventually does so when told he is being given a lawful order. On this occasion, Mr Gorgus is asked to take off his t-shirt, lift his arms, open his mouth and turn around. Mr Gorgus complains about the number of officers present at that time (four in total) calling it inhumane and degrading treatment.

[97]              Mr Gorgus is then given a top to put on and asked to remove his shorts and underwear. At the officer’s request he turns around and squats one more time. The officer conducting the search says he definitely sees something in Mr Gorgus’ buttocks, and he will therefore have to remain in the round room. He is given a gown to put on.

[98]              Mr Goodin gives Mr Gorgus another opportunity to hand over the item. When Mr Gorgus refuses, Mr Goodin tells him that he might not care about his own safety, but they do. Mr Gorgus swears at Mr Goodin in response.

Did the second strip search breach NZBORA?

[99]              Mr Gorgus raises the same complaints in relation to the second strip search as he did in relation to the first strip search but says in addition that the second strip search was carried out without reasonable justification.

[100]          In Forrest, the Court of Appeal said that whether “a strip search was necessary in the circumstances will be a very fact-specific inquiry”.52 For example, a strip search is less likely to be necessary in the circumstances if a scanner or rub-down search would be able to detect the unauthorised item the prisoner was suspected of concealing. The Court said that officers must turn their minds to the circumstances and options available to them. This contributed to the Court’s finding that the strip search in that case breached NZBORA.53

[101]          In the case of  Mr Gorgus,  there  is  no  evidence  to  suggest  that  the  Prison Director turned his mind to other options available at the time. There is merit in counsel’s submission that if there was a genuine concern about internal concealment then Mr Gorgus could have been scanned.

[102]          Nevertheless, I am satisfied that there was reasonable justification to carry out the second strip search within the meaning of s 98(3). The first strip search afforded reasonable grounds for believing that Mr Gorgus had an unauthorised item in his possession, and the Prison Director’s approval to the conduct of the strip search was obtained.

[103]          However, like the first strip search, there were multiple officers (four) present at the time of the second strip search. Although there was no CCTV footage of the search, the officer’s On Body Camera remained on.

[104]          The defendants explain that the number of officers present was due to the earlier code blue. They also point to the earlier incident as justification for leaving the On Body Camera turned on, despite it being typically turned off while undertaking strip searches.54

[105]          I do not consider the earlier incident provides justification for either the number of officers present during the strip search, or the filming of it in the cell. There was

52 Forrest v Attorney-General [2012] NZCA 125 at [14].

53 At [18].

54 The Department of Corrections On Body Camera operating procedures explains that an On Body Camera must be on pre-record at all times and only be activated during the strip searching of prisoner when an incident occurs.

no incident unfolding at the time of the strip search. As already noted, there was a gap between the use of force incident and the first strip search. It was evident from the CCTV footage that Mr Gorgus’ behaviour no longer presented a risk as he was allowed to walk into the receiving office without handcuffs or any other physical restraint. While the handcuffs were put on him after the strip search, they were later removed again at the Prison Director’s direction.

[106]          It is true that Mr Gorgus swore at Mr Goodin following the second strip search. Mr Goodin considered that to be verbally aggressive and disrespectful. Nevertheless, and as he acknowledged in evidence, at the time of the second strip search Mr Goodin was quite comfortable that Mr Gorgus was not going to be a physical threat.

[107]          The findings I have made in relation to the first strip search apply with equal weight here. The second search was unreasonable and breached s 21 of NZBORA. It was also demeaning and degrading conduct in breach of s 23(5). However, it was not so outrageous, cruel, or inhumane as to constitute a breach of s 9 of NZBORA.

Directed segregation for purpose of medical oversight

What happened?

[108]          After the second strip search was conducted in the round room, Mr Gorgus was handed a medical gown which he put on. Ms Herridge was at the doorway of the round room. She introduced herself to Mr Gorgus and explained her role. The interaction between the two was captured by the On Body Camera. The audio is not easy to hear but Ms Herridge provided the following transcript of her exchange with Mr Gorgus in her evidence:

[Ms Herridge]: The reason that we are keeping you here is just to keep you safe because the officers have got reasonable suspicions that there is something [inaudible].

Mr Gorgus: Well I've just been assaulted by the officers.

[Ms Herridge]: I am not interested in the assault at this stage. I am more worried about what you might have on you...

Mr Gorgus: I don't have anything on me.

[Ms Herridge]: ... that is going to cause you harm.

Mr Gorgus: I've got nothing on me.

[Ms Herridge]: Okay. Nothing you want to say? Nothing else you want to say? Mr Gorgus: Yeah. I want, I want to say my rights have been violated.

[Ms Herridge]: Yep.

Mr Gorgus: And I've just been assaulted by, ah, staff members.

[Ms Herridge]: Nothing else you want to say to, to prevent you from being in here?

Mr Gorgus: What do you mean? [Ms Herridge] So I'm saying ...

Mr Gorgus: I shouldn't be in here. I don't know why I'm in here. [Another person]: We just told you why.

[Ms Herridge]: Alright. Okay. That’s cool.

[109]          Mr Gorgus is left in the round room from about 1.00 pm onwards. The round room has no toilet or basin. There is a single mattress on the floor with some bedding on top.

[110]          Mr Gorgus says that during his time in the round room he was abused, lights were turned on and off, and doors were kicked repetitively. I reject Mr Gorgus’ evidence about abuse and the door being kicked repetitively. There is nothing to substantiate those claims and nothing to suggest that the officers concerned were acting in such an unprofessional manner.

[111]          The evidence about the lights, however, appears plausible. That is because the paperwork completed for Mr Gorgus’ segregation records observations at five-minute intervals from 19.00 pm onwards.   The lights were likely turned on to check on     Mr Gorgus at the time. There is nothing to suggest that this was deliberate, intentional, or designed to cause Mr Gorgus harm.

[112]          On the following morning, 21 May 2023, Mr Gorgus was seen by a member of the health team. She is a registered nurse with a mental health speciality. Her notes recorded that Mr Gorgus declined to deal with health, but that he appeared well

physically  and  mentally.     Later that morning Mr Gorgus was transferred to Auckland Prison.

[113]          The Visiting Justice reported that there was authority to segregate Mr Gorgus under s 60 of the Act but the completion of paperwork could improve.

Did the segregation for medical oversight breach NZBORA?

[114]          Mr Fraser submits that the decision to segregate Mr Gorgus for medical oversight was predetermined. It certainly has that air about it. As soon as the officer saw what he thought to be a partially concealed item, it was evident that Mr Gorgus would be taken to the round room. The officer said as much to Mr Gorgus in response to one of his queries prior to the Prison Director arriving.

[115]          Nevertheless, I am satisfied that the Prison Director’s decision was made following Ms Herridge’s assessment of Mr Gorgus. While that assessment was very brief, there is no evidence to suggest that Ms Herridge’s assessment for the purposes of recommending segregation for medial oversight was inadequate. I consider the decision to segregate Mr Gorgus under s 60 was lawful.

[116]          I agree with the Visiting Justice that the paperwork was incomplete. It is not clear that Mr Gorgus was provided with the reasons for his segregation in writing as required by s 60(2). The “notice” adduced in evidence is unsigned, and there is no evidence that it was given to Mr Gorgus. There was also a failure to keep full records of the observations made of Mr Gorgus during his time in segregation.

[117]          Mr Gorgus alleges that there was also non-compliance with s 60(5) in that he was not visited by a registered health professional at least once a day. I do not accept that evidence. The records show that Mr Gorgus was seen by a member of the health team (who is a registered nurse with a mental health speciality) at 9.10 am on 21 May 2019. She recorded that Mr Gorgus declined to engage, but that he nevertheless appeared well both physically and mentally. Mr Gorgus’ suggestion that Corrections were referring to another Corrections Officer with the same name, or that they were using her name on a false pretext, is rejected. Ms Herridge confirmed that the

registered nurse who saw Mr Gorgus was a member of the health team. Accordingly, there was compliance with s 60(5) in this respect.

[118]          Mr Gorgus says that he was denied his minimum entitlements during his segregation. It does appear that he was not afforded the one hour of physical exercise per day under ss 69(1) and 70 of the Act. However, a prisoner may be denied the minimum entitlement of physical exercise if, in the opinion of the prison manager “it is not practicable to provide this entitlement”.55 Given the period of time Mr Gorgus was held in the round cell, I accept that it was not practicable to provide him with an opportunity for physical exercise.

[119]          The same response may be made to the allegation that Mr Gorgus was denied a daily shower and an opportunity to clean his cell (although neither are minimum entitlements under s 69 of the Act). The records from the observations of Mr Gorgus whilst in the cell show that he was actively dirtying it by urinating on the floor and smearing food on the walls. This seems at odds with a request to clean his cell.

[120]          Mr Gorgus also alleges that he was denied the opportunity to defecate for 48 hours. The round room does not have a toilet or modesty screen. That is because the purpose of being placed in a dry cell is to ensure that prisoners who have internally concealed something can pass that item in a safe environment and staff can check for the item.

[121]          Mr Goodin’s evidence was that a cardboard bedpan could be provided to those housed in a dry cell and that if Mr Gorgus did not have one, he could have asked for one. The evidence on this issue is  equivocal at  best, and I  am  not  satisfied that  Mr Gorgus was prevented from using toileting facilities as he says.

[122]          Mr Gorgus alleges that he was not permitted to make legal calls. There is no record of Mr Gorgus making such a request, and I reject his evidence that he was denied this minimum entitlement.

55     Corrections Act 2004, s 49(4)(aa)(ii).

[123]          It follows that I am not satisfied Mr Gorgus was wrongly denied his minimum entitlements during his period of segregation.

[124]          Looking at these factors in totality, the only non-compliance established during this period concerned the paperwork. That is not sufficient to constitute a breach of either ss 9 or 23(5) of NZBORA.

MECF events considered cumulatively

[125]          Up until this point, the assessment of breach of NZBORA has been undertaken on an event-by-event basis. I have found that there was a breach of s 23(5) in relation to the two strip searches, but not in relation to the other alleged breaches. However, it is necessary to consider the cumulative impact of all the events at MECF to assess whether, together, they amount to degrading and humiliating conduct in breach of     s 23(5).

[126]          I have paid particular attention to the strip searching of Mr Gorgus immediately after the use of force incident. But for the eight-minute break, I would have found strip searching a prisoner immediately after an unreasonable use of force amounted to degrading and humiliating treatment. But the break between these events allowed  Mr Gorgus to settle and regain his composure. It also counters any suggestion that the strip search was used as a means of punishing Mr Gorgus for the earlier incident. As I have found, strip searches were mandatory at the time, and there is nothing to suggest that Mr Gorgus was strip searched for an unlawful purpose.

[127]          Similarly, the events after the unlawful strip searches cannot be seen as a course of conduct which continued the degrading and humiliating treatment. The segregation for medical oversight was justified and Mr Gorgus was treated appropriately at the time.

[128]          The cumulative impact of these events does not constitute a separate breach of NZBORA, and the only breach relates to the conduct of the two strip searches for the reasons earlier explained.

Events at Auckland Prison

What happened?

[129]          Auckland Prison is New Zealand’s only specialist maximum security prison. Mr Pattinson, the Prison Director at the relevant time, confirmed in evidence that having remand prisoners at Auckland Prison was uncommon back in 2019.

[130]          Mr Gorgus was transferred to Auckland Prison on 21 May 2019. The reasons for that transfer, and what happened subsequently,  are  referred  to  in  Gorgus  v The Chief Executive of the Department of Corrections.56 It is unnecessary to canvass that judgment in any detail except to note that Mr Gorgus spent a period of time on directed segregation under s 58(1)(a) of the Act for the purposes of security and/or good order of the prison following his transfer. Claims for breach of NZBORA arising out of this period were dismissed by Woolford J, apart from a finding of breach of natural justice contrary to s 27 of NZBORA. A declaration addressing that breach was made by consent.

[131]          Mr Gorgus’ claim in this proceeding concerns the decision to place him on directed placement custody on 23 August 2019.57 An application was made that day by the Principal Corrections Officer. The basis for the application was that staff had [redacted].

[132]          The application was approved the same day and Mr Gorgus was placed on directed segregation under s 59(1)(b) of the Act, for his own protection. The initial direction was to expire on 5 September 2019.

[133]          The application was sent to the health centre manager on 27 August 2019 and to  the   Senior Advisor   to   the   Regional Commissioner   (Senior Advisor)   on   29 August 2019. The Senior Advisor independently reviews a decision to segregate a prisoner within three days of the Prison Director giving a DPC direction. The

56 Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 450.

57 There is a reference to Mr Gorgus being on voluntary segregation at this time in email correspondence between the Office of the Inspectorate and a deputy Prison Director. However, this was not referred to in the oral evidence at trial and I place no weight on this fact in the circumstances.

Senior Advisor must be provided with all supporting documentation and can decide whether to support or revoke the initial segregation direction. A request to continue segregation beyond 14 days for up to three months must be approved and directed by the Senior Advisor.

[134]          On 31 August 2019, the Senior Advisor indicated that he supported the direction on the basis that he believed that there was a credible threat to Mr Gorgus’ safety.

[135]          On 2 September 2019, there was a multi-disciplinary team meeting at which Mr Pattinson recommended that Mr Gorgus’ initial placement on DPC be extended beyond the 14 days by up to three months.

[136]          A formal  recommendation  to  that  effect  was  made  by  Mr Pattinson  on  6 September 2019. This was approved by the Senior Advisor on 9 September 2019. The direction, as extended, was due to expire on 22 November 2019.

[137]          The  decision  was  reviewed  again   by   the   deputy   Prison Director   on 19 November 2019. It was recommended that segregation be continued. That was approved by the Senior Advisor later that same day. The extended direction was due to expire on 22 February 2020.

[138]          Mr Gorgus requested that the Office of the Inspectorate investigate the segregation order. The Inspectorate’s interim report was delivered on 14 November 2019. The provisional findings recorded in the report suggested Mr Gorgus’ complaint would be upheld in relation to the reasons for the decision to segregate; procedural errors; and insufficiency of evidence regarding daily visits.

[139]          The final report of the Office of the Inspectorate was delivered on 4 December 2019. Mr Gorgus’ complaint regarding his placement on DPC was upheld in relation to administration, and the insufficiency of the evidence to provide assurance that   Mr Gorgus was seen daily by the Prison Director’s delegates. However, the complaint about the adequacy of the grounds for the decision to place Mr Gorgus on DPC was dismissed. Mr Gorgus’ continued placement on DPC was also deemed necessary,

although it was agreed that this was not an ideal placement long term and discussions about alternatives were ongoing.

[140]          Efforts were made during his segregation to transfer Mr Gorgus to another prison but without success. Mr Gorgus remained on DPC until he was transferred to Rimutaka Prison on 19 December 2019. His DPC order was revoked at that time.

Was the segregation order imposed unlawfully and without reasonable justification?

[141]          Mr Gorgus says the order imposed under s 59 of the Act was unlawful and without reasonable justification.

[142]          In Stevens v Chief Executive of the Department of Corrections, Andrew J considered a judicial review application of an order made under s 59.58 Drawing on statements made by Isac J in Taylor in relation to s 58, the Judge said that s 59 imports a broad subjective standard.59 That subjective standard confirmed a policy choice between the need to ensure adequate protection against an abuse of power, while acknowledging that prison managers and their staff were best placed to make decisions about the day-to-day management of a prison using limited resources. I agree with and adopt that approach here.

[143]          It is true that the documentation used to support the application was extremely weak. There was only a passing reference to the incident that had led to a concern for Mr Gorgus’ safety. Nevertheless, both Mr Pattinson and the officer who made the application gave further evidence at trial. Both explained that staff had overheard [redacted]. I accept that evidence which was consistent with the reasons described in the application. [Redacted] posed significant risks to Mr Gorgus. That risk is substantiated by the fact that Mr Gorgus sought suppression of the reason for the DPC in this judgment on the grounds that publication could pose a risk to his safety.

[144]          The options to associate Mr Gorgus with other prisoners were limited because Mr Gorgus was a remand, rather than a sentenced, prisoner. There were few other

58     Stevens v Chief Executive of the Department of Corrections [2023] NZHC 1051.

59     Stevens v Chief Executive of the Department of Corrections [2023] NZHC 1051 at [28].

remand prisoners at Auckland Prison at the time, and there remained a concern that remand prisoners may also pose a threat to Mr Gorgus. The records show that efforts were made to transfer Mr Gorgus to another prison as an alternative to segregation. However, Mr Gorgus was a difficult prisoner and other prisons did not have the facilities to manage him appropriately.

[145]          Based on this evidence, I am satisfied that segregation in the form of denied association with other prisoners was necessary for Mr Gorgus’ own protection. The initial order was justified.

Was there non-compliance with administrative formalities?

[146]          Next, Mr Gorgus says that the defendants failed or refused to comply with the formalities required for making the segregation order. The Office of the Inspectorate found several areas of administrative non-compliance. They included:

(a)Approval of the application was only given verbally on 23 August 2019 and was not signed on the day. The order was only signed six days later, on 29 August 2019, when the Prison Operation Manual requires it to have been signed within one working day.

(b)The review by the Senior Advisor was signed on 31 August 2019, which was two days after the original order was signed and eight days after commencement of the order. This was in non-compliance with the Prison Operation Manual which required it to be returned within one working day.

(c)The continuation order was recommended by the Prison Director on   6 September 2019, being one day after the order had expired. It was approved by the Senior Advisor on 9 September 2019, which was four days after the order had expired.

(d)The application form did not detail other strategies besides segregation that were considered to mitigate and manage identified risk.

(e)There were no entries  of  interactions  and  feedback  provided  to  Mr Gorgus as required by the Prison Operation Manual.

(f)Mr Gorgus was not provided with copies of the initial order and the continuation orders within the required one-day timeframe.

(g)The notice to prisoner for continuation of the order had the incorrect expiry date for the order.

(h)There was reference to the Prison Director approving the order at

1.58 pm on 23 August 2019. That was incorrect and contrary to the information documented on another form.

[147]          Those findings were not contested and are accepted by the defendants. I adopt those findings and find that the defendants were non-compliant in the above respects.

[148]          Some of these errors may be characterised as minor or technical and having little impact on Mr Gorgus. The non-compliance in [146(h)] above falls into that category. But other errors are more concerning. The failure to extend the segregation order before its expiry is one example. The expiry of a segregation order if not approved within that period ensures that a segregation order is only in place for as long as it is necessary. It is a procedural safeguard that has substantive effect.

[149]          Similarly, the delay in the review by the Senior Advisor is also troubling. That is another procedural safeguard to ensure that the relatively extreme step of placing a prisoner on directed segregation is, in fact, necessary.

[150]          However, on their own, I do not consider these failures are sufficient to constitute a breach of s 23(5), let alone s 9 of NZBORA. In Vogel v Attorney-General, a prisoner was confined to his cell for six days longer than the statutory maximum.60 The Court of Appeal found that there was breach of s 23(5) NZBORA in that case but

60     Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67 (CA).

confirmed that it was the effect of the excessive confinement, and not just the period of days by which the statutory maximum was exceeded that led to that conclusion.61

[151]          In this case, the direction to extend the order was signed one day after the expiry of the initial order. The orders were ultimately extended and, as I have found, the grounds for extension were valid. Similarly, the review of the orders upheld the reasons for segregation in the first place. The other procedural errors, while unacceptable, did not have a substantive effect on Mr Gorgus’ rights and freedoms.

[152]          While these breaches are not, on their own, sufficient to constitute a breach of NZBORA, they are nevertheless relevant to the overall assessment of Mr Gorgus’ time on DPC.

Were the conditions of segregation unduly restrictive and were minimum entitlements denied?

[153]          The third ground of challenge concerns the restrictive conditions Mr Gorgus was under at the time of his segregation and his complaint that he was denied his minimum entitlements.

[154]          The breaches were not particularised in Mr Gorgus’ claim but were canvassed in his evidence. I have addressed his complaints under the following heads:

(a)Meaningful contact.

(b)Medical and mental health services.

(c)Access to educational or rehabilitative programmes and the library.

(d)Intentional harm, provocation and antagonising behaviour.

61     Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67 (CA) at [72].

Meaningful contact

[155]          Mr Gorgus says he was locked down for 23 hours in his cell, and contact visits were not permitted. He says the only human contact he had during this time was the occasional interaction with staff while being moved from his cell to the yard for his unlock period. Mr Gorgus alleges that his segregation amounts to solitary confinement.

[156]          Offender notes and movement logbooks were produced and summarised in the evidence. Based on these documents, I am satisfied that Mr Gorgus was generally allowed out of his cell for longer than 60 minutes per day. He was offered the opportunity for physical exercise either in the yard, or in the day room. It is true that the records are incomplete and there are some days where no records were kept. While poor record keeping is an unacceptable feature of this case, I do not consider it can be inferred from the absence of records that Mr Gorgus was denied time out of his cell on these days.

[157]          Mr Gorgus asserts that contact visits were not permitted, but he does not refer to any specific examples to corroborate that assertion. The application to place him on DPC records that he was able to have non-contact visits with private visitors. It is also clear from the records that Mr Gorgus was able to make phone calls to official bodies (such as the Ombudsman and the Inspectorate) and to make legal calls. Considering that documentary evidence, I am unable to accept Mr Gorgus’ bare assertion that contact visits were not permitted.

[158]          Based on the evidence adduced at trial, I am not persuaded that Mr Gorgus was denied his minimum entitled to physical exercise (s 69(1)(a)) or access to visitors    (s 69(1)(d) and (f)).

[159]          However, the allegation regarding lack of meaningful contact has more merit. One of the findings in the Office of Inspectorate report, accepted by the defendants, was that there was insufficient evidence to be sure that Mr Gorgus received daily visits from the Prison Director or his delegate between 24 August 2019 and 14 November 2019 as is required for a prisoner on DPC. There was also a finding that there were no entries of interactions and feedback provided to Mr Gorgus in his offender notes.

[160]          A review undertaken by Mr Pattinson and his team established that there were 21 days out of 100 where  there  were  no  entries  in  Mr Gorgus’ offender  notes. Mr Pattinson opines that his was likely due to an issue with training and staff not realising they were meant to fill in the notes on a daily basis for prisoners on DPC.

[161]          As I have said elsewhere in this judgment, it cannot necessarily be inferred from gaps in the paperwork that no contact occurred on these days. However, the extent of the gaps is concerning in this case. Meaningful contact for those on directed segregation is essential to a prisoner’s welfare. Records of daily interactions provide an objective measure by which a prisoner’s welfare may be monitored. The failure to record those interactions for 20 per cent of the time Mr Gorgus was on DPC is unacceptable.

[162]          The nature of the contact which was recorded is also relevant here. Mr Gorgus was denied association with any other prisoners. However, Mr Rangi, Principal Corrections Officer at the relevant time, said that Mr Gorgus was able to communicate with the other prisoners by yelling out from their cells. I do not regard that form of contact to be meaningful in any way.

[163]          In terms of interactions with officers, Mr Rangi gave evidence about staff shortages at this time due to staff sickness. That evidence was directed at a different issue, namely Mr Gorgus’ ability to clean his cell, but it nevertheless gives context to the likely extent of contact at this time.

[164]          Mr Rangi was also cross-examined about the obligation in reg 56 for the Prison Director or delegate to undertake daily visits to segregated prisoners. Mr Rangi said that Principal Corrections Officers would generally undertake these visits on the Prison Director’s behalf. He said that sometimes a Principal Corrections Officer would go inside the cell, and sometimes they would talk through the food or medical hatch. These conversations could be quite brief but might be longer if there were concerns to discuss. Mr Rangi said that if there was an issue, he might get Mr Gorgus out of his cell and go into an interview room, although he could not recall that happening in Mr Gorgus’ case.

[165]          Considered in its entirety, this evidence suggests that meaningful contact with others during Mr Gorgus’ period of segregation was severely limited and, at times, non-existent. Mr Gorgus was not able to associate with other prisoners due to his remand status, his placement in a maximum-security wing, and the risks to his safety posed by these prisoners. His time in the yard or day room was on his own. Interactions with Corrections Officers appear to have been essentially transactional (provision of food, transport to the yard) and they may have been limited by staff shortages at the time. There is insufficient evidence to show that the Principal Corrections Officer, as the Prison Director delegate, visited Mr Gorgus daily. When these visits did occur, they appear to have been brief and sometimes conducted through the food or medical flap in the door.

[166]          Mr Fraser, for Mr Gorgus, submits that the lack of meaningful conduct amounted to a breach of rr 43 and 44 of the Mandela Rules which prohibits prolonged solitary confinement (as defined at [50] of this judgment).

[167]          The parties were at odds about the relevance of the Mandela Rules in assessing whether there had been a breach of NZBORA. Mr Gorgus relied on the s 5(1)(b) of the Corrections Act which expressly provides that a core purpose of the corrections system is to provide for prisons to be operated in accordance with the Mandela Rules. In Taylor, Isac J referred to this provision and said that r 44 of the Mandela Rules sets a minimum standard of detention in New Zealand and breach of that rule would be strongly indicative (although not determinative) of a breach of s 23(5).62

[168]          On the other hand, the defendants relied on statements made by the Court of Appeal in Taunoa to the effect that the Mandela Rules were neither a treaty nor a binding international instrument and contained their own limitations in setting out what is generally accepted as being good principles and practice in the treatment of prisoners and prison management.63 These observations were followed in two recent decisions of this Court.64

62     Taylor v Attorney-General [2022] NZHC 3170 at [113].

63     Attorney-General v Taunoa [2006] 2 NZLR 457 (CA) at [259].

64     Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 450 at [17]; Stevens v Chief Executive of the Department of Corrections [2023] NZHC 1051 at [56].

[169]          The Supreme Court in Taunoa made mention of the impact of the Mandela Rules despite the conduct in that case pre-dating the Corrections Act. Blanchard J noted that the Mandela Rules had been “endorsed” in s 5(1)(b) of that Act and observed that New Zealand decisions  will  be  “influenced”  by  the Mandela Rules.65

[170]          On that approach, it may go too far to say that the Mandela Rules establish minimum standards of detention in New Zealand. But I accept that the Rules will strongly influence decisions on the breach of s 23(5) and are therefore relevant to the assessment. As Isac J said in Taylor, whether the lack of meaningful contact amounts to solitary confinement, and a breach of ss 23(5), requires a contextual and fact specific inquiry into the degree, nature, duration and quality of human contact.66

[171]          In this case, I consider Mr Gorgus was left confined without meaningful contact for more than 22 hours a day during significant periods of his segregation. This constituted solitary confinement within the meaning of the Mandela Rules. What is important in this case is not whether there has been a breach of the Mandela Rules, but whether there was a breach of NZBORA. Lack of meaningful contact for long periods of time contributes to the cumulative assessment of Mr Gorgus’ complaints and whether they constitute a breach of NZBORA.

Medical and mental health services

[172]          Mr Gorgus complains that he was denied access to medical health services and that a mental health assessment was not made during his time on segregation.

[173]          Contrary to his complaint, the offender notes show that Mr Gorgus accessed health services on three occasions during his time on segregation.

[174]          As for mental health, there was a note on Mr Gorgus’ file that he was suffering from post-traumatic stress disorder. This did not trigger a mental health assessment, however, and Mr Rangi said in evidence that he did not have any reason to think that

65     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [180] per Blanchard J.

66     Taylor v Attorney-General [2022] NZHC 3170 at [123].

Mr Gorgus required one. Mr Gorgus acknowledged that he could have notified the nurse if there were any mental health concerns.

[175]          In Vogel, the prisoner was known to have a problem with drug addiction and additional mental health issues. The Court of Appeal said there was a need for special care in his case in imposing any sentence of solitary confinement. The effect of the positive duties imposed on the State in s 23(5) of the Act meant that reliance could not be placed on Mr Vogel’s own request to remain in confinement for the purposes of breaking his addiction. Rather, the Court held that what was known about Mr Vogel’s addiction and mental health condition should have underlined the potentially harmful effects of an excessive period of cell confinement on his mental well-being.67

[176]          Those observations have application here. The psychological impacts of segregation leave prisoners with pre-existing mental health conditions particularly vulnerable. The requirement to notify the Health Manager when a prisoner is placed on segregation underscores this. It is not sufficient to wait until the prisoner raises an issue himself. Active steps to assess (on a continuing basis) Mr Gorgus’ mental health should have been made. This omission is relevant to the assessment of breach of ss 9 and 23 of NZBORA considered at [39]–[46] of this judgment.

Access to educational or rehabilitative programmes and the library

[177]          There is little in the way of documentary evidence regarding Mr Gorgus’ access to educational resources. The only records before the Court  are  from  October 2019. A case manager talked to Mr Gorgus about his education needs at this time but noted in Mr Gorgus’ plan that he was not interested and did not want to attend rehabilitation programmes. Mr Rangi accepted that this was the only time Mr Gorgus was offered educational services.

[178]          As for access to the library,  Mr Rangi  explained  that  the  unit  in  which  Mr Gorgus was housed had access to the library every Monday at lunch time. The mobile library would visit the wings within the unit on a six-week rotation. Effectively

67     Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67 (CA) at [71]–[72].

prisoners on a particular wing would have access every six weeks. Prisoners were able to submit a chit for the librarians to fulfil.

[179]          Mr Gorgus complained on three separate occasions that he could not access the library. The response to that complaint was in line with Mr Rangi’s evidence. It confirms that Mr Gorgus could request a book if he wished to do so, and the librarian would try to facilitate his request.

[180]          On balance, I find that Mr Gorgus was not denied access to information and education, or to the library. His minimum entitlement was not breached in that respect. However, the availability of these services was limited which adds to the impact of the lack of meaningful contact when assessing a breach of s 23(5) of NZBORA.

Intentional harm, provocation and antagonising behaviour

[181]          Mr Gorgus makes sweeping claims of officers acting intentionally to harm, provoke and antagonise him.

[182]          I do not consider there to be any evidence of officers intending to harm      Mr Gorgus by segregating him from others. Nor is there evidence to suggest that he was subjected to humiliating and degrading treatment or provoked and antagonised during his segregation.

[183]          Both Mr Pattinson and Mr Rangi, who gave evidence regarding the events at Auckland Prison, struck me as sincere and dedicated officers who were genuinely interested in Mr Gorgus’ welfare. It is unlikely they would tolerate provocative and antagonising treatment from their staff. Mr Gorgus’ allegations are not supported by the evidence and are rejected.

Events at Auckland Prison considered cumulatively

[184]          Mr Gorgus’ case was, by necessity, separated into discrete complaints and claims about his time spent on DPC. I have found some of those proved and others not. Whether there has been a breach of s 23(5) or s 9 requires a cumulative assessment of all proved complaints.

[185]          I have found that the reasons for Mr Gorgus’ segregation order, and its continuation, were justified in the circumstances. Mr Gorgus was at risk from other prisoners and his remand status made it difficult for him to associate with other prisoners. There was reason to deny his association altogether, and there is nothing to suggest that Corrections were acting punitively or arbitrarily in deciding to segregate him.

[186]          However, the conditions of his segregation fell short of applicable standards, most notably in relation to meaningful contact. There was a premium on contact with staff and the Prison Director (or delegate) as a result of Mr Gorgus being denied all association while on segregation. Due to large gaps in the paperwork, I have some doubt that Mr Gorgus was seen by the Principal Corrections Officer on a daily basis as required. Further, when contact did occur, it appears to have been relatively fleeting and transactional in nature. As I have found, the lack of meaningful contact likely constituted periods of solitary confinement.

[187]          That is significant because, as reported in the OI Report on Separation and Isolation, the potential effects of solitary confinement can include a deterioration in mental health. It may lead to feelings of isolation and anxiety and can undermine a prisoner’s sense of self.68 Those risks mean that mental health assessments are even more important for prisoners who are denied association with others. In Mr Gorgus’ case, his records indicated an underlying mental health condition (post-traumatic stress disorder) but there was no assessment of how to manage this in his case.

[188]          Further, while Mr Gorgus was not denied access to the library, the reality was that limited accessibility to these resources and others meant that Mr Gorgus spent a great deal of time locked in his cell, with no meaningful human interaction, and with little to do.

[189]          The administrative errors aggravate these circumstances. The failure to pay attention to expiry dates and timeframes suggests a casual approach to the formalities

68     David Neild Separation and Isolation: Thematic Report (Office of the Inspectorate, March 2023) at [74] and [75].

around segregation orders.  The lack of documentation regarding the contact with  Mr Gorgus substantiates that approach.

[190]          Against this, however, is the  lack  of  medical  evidence  establishing  that Mr Gorgus suffered psychological or physical harm as a result of this experience. Nor is there any evidence of any outrageous of unacceptable conduct by Corrections against Mr Gorgus. I have rejected Mr Gorgus’ complaints in that respect. The evidence falls short of reaching the very high threshold to establish a breach of s 9 of NZBORA.

[191]          However, the cumulative impact of the features of Mr Gorgus’ period of segregation deprived him of dignity. The failure to ensure that Mr Gorgus consistently received meaningful contact during his segregation lacked humanity. Standing back, I consider the time spent on directed protective custody constituted a breach of s 23(5) NZBORA.

Should compensation be awarded?

[192]Mr Gorgus seeks the following by way of relief:

(a)a declaration that the defendants breached Mr Gorgus’ rights;

(b)general damages in the sum of $95,000;

(c)NZBORA damages in the sum of $95,000;

(d)exemplary damages in the sum of $95,000; and

(e)costs.

[193]          In Taunoa, the Supreme Court confirmed that breaches of NZBORA should be redressed by the provision of remedies that are effective, appropriate, and proportionate.69 The remedies should have the purpose of vindicating the right

69 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [106]–[107] and [113] per Elias CJ, [253], [256] and [263] per Blanchard J, [300] per Tipping J, [364]–[367] and [369]–[370] per McGrath J, and [385] per Henry J.

breached, deterring the relevant authorities from future rights breaches, and denouncing the conduct to mark society’s disapproval of the breach. Tipping J identified five factors relevant to the question of whether more than a declaration is required to vindicate breaches of the NZBORA:70

(a)the nature of the right which has been breached;

(b)the circumstances and seriousness of the breach;

(c)the seriousness of the consequences of the breach;

(d)the response of the defendant to the breach; and

(e)any relief awarded on a related cause of action.

[194]          In Attorney-General v Van Essen, the Court of Appeal undertook a survey of cases where NZBORA damages have been awarded.71 It noted that most of these cases involved physical restraint, direct infliction of physical harm, or prolonged or significant deprivation of liberty. The cases spanned in seriousness from physical detention, handcuffing, to inappropriate solitary confinement and from physical violence in prison in similar situations.

[195]          Sections 13 and 14 of the Prisoners’ and Victims’ Claims Act 2005 are also relevant here. Section 13 prohibits the award of compensation unless the plaintiff has made reasonable use of all specified complaint mechanisms, and another remedy cannot provide effective redress. Section 14 lists matters that a court must take into account in considering whether compensation is required to provide effective redress and if so the quantum of any award.

[196]          There is no dispute that Mr Gorgus has made reasonable use of all complaint mechanisms available to him in respect of the matters outlined in his claim. A

70     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [305] per Tipping J.

71     Attorney-General v Van Essen [2015] NZCA 22, (2015) 10 HRNZ 155 at [106]-[108].

declaration is the minimum redress available for the breaches. The only issue is whether that is effective, or whether compensation should be awarded in addition.

[197]          By reference to the matters set out in s 14(2), and the factors identified by Tipping J in Taunoa, I take the following into account:

(a)The interests protected by s 23(5) are extremely important. They represent minimum standards for prisoners who are in a vulnerable situation. Vindication of these interests is central to a democratic society.72

(b)The need for deterrence is also important in this case. Strip searches and solitary confinement were at issue in Taunoa. The Supreme Court delivered its judgment in 2004. An important message needs to be sent to the defendants to ensure change is swift and permanent to protect fundamental rights.73

(c)None of the breaches were deliberate or in bad faith.74 There is no evidence of any physical or ongoing consequences of the conduct for Mr Gorgus. I have rejected his evidence of psychological and other health harm resulting from this behaviour.

(d)Mr Gorgus was held on remand at the relevant time. He was difficult to manage and his own behaviour left much to be desired. This posed constraints in finding alternative ways of dealing with him.

(e)The defendants have already apologised for the use of force and sent a letter to Mr Gorgus.75 However, this apology does not relate to the breaches of s 23(5) NZBORA that I have found.

72     Section 14(2)(e).

73     Section 14(2)(f).

74     Section 14(2)(b).

75     Prisoners’ and Victims’ Claims Act 2005, s 14(2)(a).

(f)Other than compensation in addition to the declarations sought, there are no other means by which effective redress be given in relation to the infringement of these rights.76

[198]          When these factors are weighed in the mix, I consider a declaration is not sufficient to provide effective redress in this case and compensation is required.

What sum should be awarded?

[199]          As for quantum, Isac J set out a review of relevant authorities in Taylor.77 I have had regard to those cases. That review included the Court of Appeal’s case in Vogel. The Court held in that case that it would have awarded a small sum of damages to Mr Vogel for breach of his s 23(5) rights but for its finding that s 13 of the Prisoners’ and Victims’ Claims Act 2005 prevented the Court from making such an award.78

[200]          Subsequent to the Court of Appeal case, Mr Vogel was successful in arguing that there had been a breach of the convention against torture and other cruel, inhuman or degrading treatment or punishment before the Committee of the United Nations.79 Following recommendations, the Attorney-General made an ex-gratia payment to Mr Vogel of $10,000.

[201]          In Taylor itself, an award of $6,000 was made to provide effective redress for the denial of approximately 50 hours of exercise, and the loss of privacy due to CCTV surveillance in the area. For nine strip searches carried out contrary to ss 21 and 23(5) of NZBORA, the sum of $12,000 was awarded. This was calculated based on $1,000 for each of the nine unlawful strip searches, plus an uplift of $3,000 to reflect the cumulative impact of illegality and additional breach of s 23(5). That award

76 Section 14(2)(g).

77 At [444], citing Putua v Attorney-General [2022] NZHC 2277; Smyth v Chief Executive of the Department of Corrections [2019] NZHC 3435, [2020] 2 NZLR 423; X v Attorney-General [2022] NZHC 1531; Pere v Attorney-General [2022] NZHC 1069, [2022] 2 NZLR 725 at [40]; Attorney- General v Udompun [2005] 3 NZLR 204 (CA); and Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67 (CA) at [79].

78 Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67 (CA) at [78].

79 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

GA Res 39/46 (1984).

acknowledged steps taken by Corrections following the breach including the apology to Mr Taylor and steps to change its policy and training.80

[202]          In Forrest, an award of $600 was made for the breach of Mr Forrest’s s 21 NZBORA rights.81 In fixing quantum, the Court emphasised the fact that the period of the strip search was brief, the strip search was only witnessed by the officers conducting it, that there were no ongoing consequences to Mr Forrest, and that the facts were far less serious than the prisoners’ complaints in Taunoa.

[203]          Guided by these cases, I consider awards of $3,000 for the two strip searches, and $7,000 for the time spent on directed protective custody, are necessary to vindicate the breaches of ss 21 and 23(5) NZBORA and to provide effective redress. No other award of damages (including exemplary damages) is required.

Result

[204]          Mr Gorgus’ claim is allowed in relation to the two strip searches at MECF and the period he spent on directed protective custody when at Auckland Prison.

[205]I declare that:

(a)the two strip searches of Mr Gorgus on 20 May 2019 at MECF were in breach of ss 21 and 23 of the New Zealand Bill of Rights Act.

(b)the period Mr Gorgus spent on directed protective custody at Auckland Prison between 23 August and 22 November 2019 constituted a breach of s 23(5) of the New Zealand Bill of Rights Act.

[206]          The Attorney-General is ordered to pay the sum of $3,000 to Mr Gorgus for the two strip searches, and the sum of $7,000 for the period he spent on directed protective custody. No order is made as to interest.

[207]All other claims are dismissed.

80     Taylor v Attorney-General [2022] NZHC 3170 at [824].

81     Forrest v Attorney-General [2012] NZCA 125 at [41].

[208]          Mr Gorgus is the successful party and is entitled to an award of costs. If quantum of costs cannot be agreed, then counsel for Mr Gorgus may submit a memorandum in support of costs within 15 working days of receipt of this judgment, with a memorandum in opposition filed 10 working days thereafter.

[209]          I make an order suppressing the reasons why Mr Gorgus was placed on directed protective custody. An unredacted copy of this judgment shall be delivered to the parties. Those passages which are to be redacted shall be marked in the judgment. If further redactions are sought, counsel may file a memorandum within five working days of delivery of this judgment.

Edwards J