Gorgus v Chief Executive of the Department of Corrections
[2023] NZHC 450
•9 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1477
[2023] NZHC 450
UNDER the Judicature Amendment Act 1972, Part 30 of the High Court Rules 2016, the
Declaratory Judgments Act 1908 and the common lawIN THE MATTER
of an application for judicial review and declarations
BETWEEN
ASHOR GORGUS
Plaintiff
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Defendant
THE ATTORNEY-GENERAL
Second Defendant
Hearing: 31 October – 2 November 2022 Appearances:
Plaintiff in person
S K Shaw and C E Sinclair for Respondents
Judgment:
9 March 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Thursday, 9 March 2023 at 11:00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Copy to: Plaintiff
GORGUS v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 450
[9 March 2023]
[1] The plaintiff, Ashor Gorgus, is a former prison inmate at Auckland Prison who was placed on directed segregation under s 58(1)(a) of the Corrections Act 2004 (the Act) on 9 July 2019 for a two week period. He now challenges both the decision to place him on directed segregation and the conditions of directed segregation.
[2]In an amended statement of claim dated 13 September 2021, he seeks:
(a)A declaration that the processes followed by and the decision of the Department of Corrections (Corrections) to place him in directed segregation were unlawful.
(b)A declaration that the decision was in breach of s 25(c) of the New Zealand Bill of Rights Act 1990 (NZBORA), s 128 of the Act and Regulation 150 of the Corrections Regulations 2005 (the Regulations).
(c)A declaration that his detention conditions were unlawfully restrictive in breach of s 23(5) of NZBORA and ss 69 and 70 of the Act.
(d)A declaration that he is entitled to compensation for breaches of NZBORA.
(e)Explementary damages in gross negligence of $50,000.
(f)Costs.
The directed segregation regime
[3]The starting point is ss 57 – 61 of the Act. Sections 57 and 58 provide:
57Denial or restriction of prisoner’s opportunity to associate with other prisoners
The opportunity of a prisoner to associate with other prisoners must not be denied or restricted, except in accordance with this Act.
58Segregation for purpose of security, good order, or safety
(1)The prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if, in the opinion of the manager,—
(a)the security or good order of the prison would otherwise be endangered or prejudiced; or
(b)the safety of another prisoner or another person would otherwise be endangered.
(2)If a direction is given under subsection (1),—
(a)the prisoner concerned must promptly be given the reasons in writing for the direction and any subsequent direction under subsection (3)(c):
(b)the Chief Executive must promptly be informed of the direction and the reasons for it.
(3)A direction under subsection (1)—
(a)must be revoked by the prison manager if there ceases to be any justification, under subsection (1), for continuing to restrict or deny the opportunity of the prisoner to associate with other prisoners:
(b)may be revoked at any time by the Chief Executive or a Visiting Justice:
(c)expires after 14 days unless, before it expires, the Chief Executive directs that it continue in force:
(d)if it continues in force because of a direction under paragraph (c), must—
(i)be reviewed by the Chief Executive at intervals of not more than 1 month:
(ii)expire after 3 months unless a Visiting Justice directs that it continue in force:
(e)if it continues in force because of a direction under paragraph (d)(ii), must be reviewed by a Visiting Justice at intervals of not more than 3 months.
[4] Sections 59 and 60 are not relevant to this proceeding, being segregation for the purpose of protective custody and segregation for the purpose of medical oversight. Section 61 then provides:
61 Accommodation to be provided if segregation direction in force
(1)A prisoner who is subject to a direction under section 58, section 59, or section 60 must be provided with accommodation with prescribed items and features that meets prescribed standards.
(2)Those items, features, and standards may—
(a)differ from the items and features provided in, or the standards required to be met for, accommodation for prisoners who are not subject to a direction under section 58, section 59, or section 60:
(b)differ depending on whether the direction was issued under section 58, section 59, or section 60:
(c)differ depending on the particular reason for the issue of a direction under any of those sections.
[5] If a Corrections Officer considers that directed segregation is necessary to manage a particular prisoner’s behaviour, the officer must make an application to the Prison Director to consider directing segregation of a prisoner. While any officer can make an application for directed segregation, only the Prison Director or his delegate can approve an application for directed segregation.
[6] An application is a formal written document and is accompanied by the evidence required in order to approve the application for segregation, namely, incident reports, intelligence reports, misconducts, file notes and other relevant information. In order to make an application for directed segregation, a Corrections Officer must complete the following forms:
(a)Application for initial direction to segregate prisoner (M.O7.Form.01). This includes information regarding what other strategies, besides segregation, were considered to mitigate and manage the identified risks and the reasons that they were not sufficient;
(b)Notice to prisoner subject to a direction to segregate (M.07.Form.02); and
(c)Management plan for prisoner on segregation (M.07.Form.04).
[7] These forms then need to be given to the Prison Director for his approval. The Prison Director can give oral approval to an application and then follow it up later with a signed direction.
[8] A decision to direct that a prisoner is placed under segregation must be evidence based.1 The Prison Director will consider the incident reports, intelligence reports, misconducts, file notes and other relevant information filed alongside the application when making his decision. Additionally, the Prison Director will determine the level of association a prisoner is permitted to have with other prisoners
1 Prison Operations Manual M.07.01.
on directed segregation: a prisoner can be either restricted association or denied association.2
[9] Where a prisoner is denied association with all other prisoners, the Health Centre Manager must be notified promptly to confirm that there are no pre-existing psychological conditions that may be aggravated by the segregation.3
[10] Once a prisoner is placed under directed segregation, a management plan must be developed. This plan must focus on the prisoner’s behaviour which resulted in the direction and what changes need to be demonstrated for the prisoner to return to the general population.4 The plan must also show how the prisoner’s minimum entitlements will be maintained while they are under the direction.5
[11] The Prison Operations Manual provides that if directed segregation is approved by the Prison Director or his delegate, a copy of all documents must be given to the prisoner within one working day of the direction.6
[12] A prisoner may request at any time that a Senior Advisor to a Regional Commissioner (as a Chief Executive delegate) reviews the segregation direction.7 A prisoner may also make a request to a Visiting Justice to review the segregation direction.8 The procedure for requesting a review by a Visiting Justice is as follows:9
(a)the prisoner completes a Prisoner Complaints form (PC.01.Form.01);
(b)staff must then immediately advise a Principal Corrections Officer (PCO) or Residential Manager and register the request as soon as practicable, but within the same day of the request, on the Integrated Offender Management System (IOMS) Complaints/Interview database;
2 Prison Operations Manual M.07.01.
3 Prison Operations Manual M.07.03.
4 Prison Operations Manual M.07.02.
5 As above, n 4.
6 Prison Operations Manual, above n 3.
7 Prison Operations Manual M.07.04.03.
8 Prison Operations Manual M.07.04.04.
9 As above, n 7.
(c)the PCO/Residential Manager is then required to forward the request to the Senior Advisor to Regional Commissioner the same day, no later than the first working day of receiving the request; and
(d)the Senior Advisor must review the direction and, if it is not revoked, forward the request and all relevant documentation to the local Court supplying the Visiting Justice to the prison on the first working day from the day of receiving the request.
The Visiting Justice may request to speak to the prisoner on the phone or may visit the prisoner on site. The result of the Visiting Justice’s review is entered and signed off following advice to the Prison Director of the outcome. The Prison Director is then to ensure that the prisoner is promptly informed, orally and in writing, of the outcome of the Visiting Justice’s review. If a direction has been revoked, the prisoner must be immediately removed from segregation.
[13] As to the conditions of directed segregation, a prisoner must be detained as far as practicable and, if it is not inconsistent with the purposes of the direction, under the same conditions as if they were not under segregation.10
[14] According to Corrections, this means that if the prisoner was attending education programmes or was working, they are still entitled to undertake these activities under directed segregation. However, these activities may be modified slightly to reflect the fact that they are under directed segregation. For example, a prisoner would still be entitled to their education sessions, but the sessions would be one on one with the tutor behind protective bars.
[15] A prisoner’s minimum entitlements are maintained at all times, including whilst under segregation. Section 69 of the Act provides for a prisoner’s minimum entitlements. It states:
69 Minimum entitlements
(1)Every prisoner has the following minimum entitlements:
(a)physical exercise, as provided for in section 70:
10 Prison Operations Manual M.07.02.01.
(b)a bed and bedding, as provided for in section 71:
(c)food and drink, as provided for in section 72:
(d)access to private visitors, as provided for in section 73:
(e)access to statutory visitors and specified visitors:
(f)access to legal advisers, as provided for in section 74:
(g)to receive medical treatment, as provided for in section 75:
(h)to send and receive mail, as provided for in section 76:
(i)to make outgoing telephone calls, as provided for in section 77(3):
(j)to exercise any right conferred on prisoners by regulations made under this Act to communicate using any specified device or medium of communication:
(k)access to information and education, as provided for in section 78.
…
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
[16] Mr Gorgus refers to what he says are breaches by Corrections of the Nelson Mandela Rules. He submits that the rules are legally enforceable in New Zealand because they have been incorporated in the Act. He points to s 5(1)(b) of the Act, which provides:
5 Purpose of corrections system
(1) The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
…
(b)providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners; and
…
[17] However, as the Court of Appeal noted in Attorney-General v Taunoa, the Nelson Mandela Rules are “neither a treaty nor a binding international instrument”.11 The Rules themselves state their own limitations in setting out “what is generally
11 Attorney-General v Taunoa [2006] 2 NZLR 457 (CA) at [259].
accepted as being good principles and practice in the treatment of prisoners and prison management.”12
[18] The Court of Appeal went on to say that the reference to the Nelson Mandela Rules in s 5(1)(b) did not mean they had been adopted into New Zealand domestic law. While the Act and Regulations imposed many requirements that are similar to, or the same as the requirements of the Nelson Mandela Rules, “[t]hat is different from the adoption of the [Nelson Mandela Rules] themselves into domestic law.”13
[19] The breaches of minimum standards alleged by Mr Gorgus are therefore to be assessed by reference to the applicable domestic legislation and regulations rather than the Nelson Mandela Rules.
Factual background
[20] Mr Gorgus is now 37 years of age. He has an extensive criminal history dating back to 2000 when he appeared in the Youth Court aged 15 years. His conviction history is predominantly for dishonesty offending, but Corrections has assessed him as having a propensity for violence both in the community and in custody. Mr Gorgus notes, however, that he has no violence convictions and maintains he is not a violent person.
[21] In the first half of 2019, Mr Gorgus was a remand prisoner at Mt Eden Correctional Facility. He received 15 misconduct reports between 10 January 2019 and 21 May 2019 for incidents of:
(a)having an article in his possession without approval of an officer (x 2);
(b)assaulting or fighting with another person;
(c)behaving in an abusive manner (x 3);
12 The United Nations Standard Minimum Rules for the Treatment of Prisoners, preliminary observation 1.
13 Taunoa, above n 12, at [260].
(d)disobeying a lawful order of an officer (x 2);
(e)obstructing an officer in execution of her duty;
(f)behaving in a threatening manner (x 4);
(g)damaging prison property; and
(h)making an allegation against an officer knowing it to be false.
[22] On 20 May 2019 it is recorded that Mr Gorgus made multiple threats to staff, which included threatening to rape an officer’s wife, burning their houses down, making allegations of staff corruption and a threat that he would be waiting outside an officer’s house upon his release.
[23] On 21 May 2019 it is recorded that Mr Gorgus threatened to track down the Prison Director upon release and kill him. Following this threat, Mr Gorgus was, on 21 May 2019, transferred from Mt Eden Correctional Facility to Auckland Prison at Paremoremo. Auckland Prison is a maximum-security prison and does not normally house remand prisoners.
[24] In the end, none of the 15 misconduct reports proceeded. Eleven did not proceed because they were out of the timeframe to be heard, two because Mr Gorgus was released, one because an officer did not supply clarification as requested, and one was not adjudicated due to operational reasons.
[25] After about six weeks at Auckland Prison, on 8 July 2019, a Rehabilitation and Residential Manager, Mr Solomon Nui, recorded in a file note that during an incident, which involved the use of force on another prisoner, Mr Gorgus yelled out at staff, and was being abusive and threatening, kicking his cell door, yelling out things like “fuck the screws”. Staff turned on their body cameras to record his behaviour.
[26] On the following day, 9 July 2019, a Corrections Officer, Mr Terry Marsh, completed an incident information report in which he recorded an attack on a Corrections Officer by another prisoner who was restrained by the use of force at about
2:00 pm. During the incident, Mr Gorgus was again heard threatening staff, being verbally abusive and kicking his cell door. It was believed that Mr Gorgus was trying to invite other prisoners into being assaultive and showing non-compliance.
[27] A Principal Corrections Officer, Mr Sosoli Salevao, then made an application to the Prison Director for directed segregation of Mr Gorgus under s 58(1)(a) for the purpose of security and/or good order of the prison. It was orally approved by the Prison Director, Mr David Pattinson, at 2:30 pm on 9 July 2022. The application was said to be made to enable staff time to review and mitigate Mr Gorgus’ current risks as evidenced by his history of staff assault and his attempts to incite other prisoners. The direction was to apply for 14 days and was due to expire on 23 July 2019. A written application was subsequently approved in writing by the Deputy Prison Director signing it as Mr Pattinson’s delegate on 15 July 2022 with a change to the expiry date from 23 July 2019 to 22 July 2019.
[28] Following the direction, Mr Gorgus was moved to a cell in Unit 10, Te Aranga Hou. He was housed in one cell or another in Unit 10 until the direction expired. The management plan prepared by Corrections for Mr Gorgus during his directed segregation largely mirrored the minimum entitlements set out in s 69 of the Act.
[29] Mr Gorgus contends, and Corrections concedes, that the process for the implementation and review of the order for directed segregation did not meet the standards set down in the Prison Operations Manual. Mr Nui states:
8.3In this case, it appears that the process did not operate as it usually would. On 10 July 2019, the day after the incident involving the use of force on the other prisoner, and Mr Gorgus’ incitement of prisoners, I emailed Kirstin Harrison, the Health Centre Manager, seeking to confirm whether the health team had been advised of that prisoner’s segregation to check whether anyone from the Health Centre had checked on that prisoner’s specific circumstances and advised whether there were any pre-existing psychological conditions that may be aggravated by the segregation. I inadvertently forgot to add Mr Gorgus to that email.
8.4Mr Gorgus requested there to be a review of his directed segregation and asked for the matter to be referred to the visiting justice.
8.5On 11 July 2019, around 48 hours after the decision to segregate Mr Gorgus had been made, Iain Craig, who was the Intervention and Support Manager of Units 10 and 11, contacted me via email to check
whether Mr Gorgus’ directed segregation paperwork had been completed. In response, I sent Mr Gorgus’ directed segregation paperwork to Peter Phelan, the Safer Custody Manager, copying in Iain Craig, for Peter Phelan to arrange completion of the document by the relevant PCO and passing it on to the Senior Advisor to Regional Commissioner.
8.6Receiving Iain Craig’s email about Mr Gorgus jogged my memory about my email to Kirstin Harrison, and I sent her a copy of Mr Gorgus’ profile to check whether anyone from the Health Centre had checked on Mr Gorgus’ specific circumstances and advised whether there were any pre-existing psychological conditions that may be aggravated by the segregation. I explained that, as Mr Gorgus was a remand prisoner, he was able to associate with very few or no other prisoners. I explained that Mr Gorgus had been offered the opportunity to make a case to the Chief Executive for association with other prisoners but he had declined.
8.7On 16 July 2019, Robert Beaten, the Principal Corrections Officer, contacted Peter Phelan, the Safer Custody Manager, to check on Mr Gorgus’ direct segregation paperwork. Mr Phelan scanned the paperwork to himself later that day, but at that stage it remained unsigned.
8.8On the morning of 18 July [2019], Mr Beaton once again followed up Mr Phelan regarding Mr Gorgus’ directed segregation paperwork. Mr Phelan responded later that day and explained that the PCO, Sosoli Salevao, had been off on leave that week and so it had unfortunately not been completed earlier. At that time, he pp’ed the application for PCO Salevao, and sent the paperwork through to Mr Beaton and to the regional advisor, Callum Thorpe. Peter Phelan advised that a copy of the paperwork could be given to Mr Gorgus before the regional advisor had approved it.
8.9The regional advisor, Callum Thorpe, supported the directed segregation paperwork later that day.
8.10On 18 July 2019, Mr Gorgus was provided a copy of his directed segregation paperwork.
8.11On 14 August 2019, Mr Gorgus saw the Visiting Justice. He had requested a review of the directed segregation as well as to be seen by the Visiting Justice relating to other concerns. These issues would both have been addressed at this time.
8.12It is accepted that this was not given to Mr Gorgus in the timeframe that is set out by the Prison Operations Manual. Some delays in the process occurred. However, the review of Mr Gorgus’ directed segregation was conducted promptly, and was endorsed by all parties involved in the decision making.
[Footnotes deleted]
[30]Corrections would, accordingly, consent to the Court making a declaration that:
The omission to provide Mr Gorgus with his segregation paperwork in a timely manner, and the omission to forward Mr Gorgus’ revocation request to a Visiting Justice in a timely manner, was a breach of natural justice and contrary to s 27 of the New Zealand Bill of Rights Act 1990.
[31] Mr Gorgus also contends that the conditions of his detention on directed segregation did not meet minimum requirements. That is not accepted by Corrections. The management plan prepared for Mr Gorgus on segregation contained a large number of minimum entitlements derived from s 69 through to s 78 of the Act.
[32] First, the management plan allowed Mr Gorgus to take one hour of physical exercise in the yards daily. Mr Gorgus contends he was denied this right. Although Mr Gorgus was only permitted to exercise (with handcuffs fitted) three times per week for 30 minutes in a general yard with other prisoners, each cell in Unit 10 has a small exercise yard attached to it to allow segregated prisoners to take exercise without exiting their cells and entering the general yard, and without being handcuffed. Mr Nui described the small exercise yards as being “maybe 12 by eight metres”. The prisoner movement log discloses that Mr Gorgus was regularly offered unlock time in the small exercise yard attached to his cell but declined it. Mr Gorgus contends that the cell yard was too small and, in any event, did not contain exercise equipment.
[33] Secondly, the management plan provided that all legal calls were to be approved by the Unit PCO or Residential Manager. For all legal phone calls, Mr Gorgus was to be handcuffed in front of him, prior to and returning to the landing. Again, Mr Gorgus contends he was denied the ability to make any calls for legal assistance. However, prison records do not disclose that Mr Gorgus was denied such calls. The records note that Mr Gorgus made 19 telephone calls during his time in segregation to the Complaints Response Desk (x 2), the Office of the Ombudsman (x 3), the Inspector of Corrections (x 7), Legal Aid (x 2), and fines or reparation enquiries (x 5). He also spoke with lawyer Sue Gray on 9 July 2019, immediately before the segregation direction and with lawyer, Richard Francois, on 24 July 2019, soon after segregation ended. In cross-examination, Mr Gorgus acknowledged that two lawyers were on his list of approved persons and he could have called them, but there were other lawyers he wanted to contact. He also acknowledged he could have sought approval to add other lawyers to his list of approved persons but queried
whether he would have received approval within the two weeks of segregation to which he was subject.
[34] Third, the management plan provided that Mr Gorgus was entitled to a one hour non-contact visit on Saturdays for approved visitors, who must initiate the request to visit. Mr Gorgus did not apparently avail himself of this right but contends he should have been entitled to contact visits in accordance with the practice for prisoners in the general prison population.
[35] Fourth, the management plan provided for Mr Gorgus to have a television in his cell and to have access to the library. Mr Gorgus acknowledged having a television but contends that he would have been ignored if he had requested a book. He said “this is what they say on paper but the reality is that you just don’t get access to a library. It doesn’t happen”. It does not, however, appear that Mr Gorgus in fact requested access to any books.
[36] Fifth, the management plan provided that any programme and education currently being undertaken by Mr Gorgus would continue. Mr Gorgus was, however, not on any programme or education at the time of his directed segregation. Nonetheless, he contends that, in general, prisoners on directed segregation are not able to continue with any programme or education being undertaken by them.
[37] Finally, the management plan stipulated that Mr Gorgus was to be placed in handcuffs for all movements outside of his cell. Mr Gorgus contends that this was excessive and discriminatory of prisoners in directed segregation as prisoners in the general prison population did not have to wear handcuffs outside of their cells.
Discussion
[38] The Crown has identified the issues to be determined in the proceeding as follows:
(a)Was the decision to place Mr Gorgus on directed segregation at Auckland Prison on 9 July 2019 unlawful? In particular:
(i)Did the decision breach s 25(c) of the New Zealand Bill of Rights Act?
(ii)Did the decision breach s 128 of the Corrections Act 2004 and reg 150 of the Corrections Regulations 2005?
(b)Were Mr Gorgus’ detention conditions from 9 July 2019 to 23 July 2019 unlawfully restrictive? In particular:
(i)Did Mr Gorgus’ detention breach s 23(5) of the New Zealand Bill of Rights Act?
(ii)Did Mr Gorgus’ detention breach ss 69 and 70 of the Corrections Act?
(c)Are the elements of the tort of negligence made out against an individual tortfeasor for whom the Crown is vicariously liable in relation to Mr Gorgus’ detention from 9 July 2019 to 23 July 2019? In particular:
(i)Do the defendants owe a general duty of care to the plaintiff in the terms pleaded?
(ii)Was that duty of care breached?
(iii)Did that breach of duty cause Mr Gorgus to suffer actionable harm?
(iv)Was that harm a sufficiently proximate consequence of the breach of duty?
(d)Is Mr Gorgus entitled to exemplary damages in negligence?
(e)Is Mr Gorgus entitled to declaratory relief and/or damages for breaches of the New Zealand Bill of Rights Act?
(f)Is Mr Gorgus otherwise entitled to declaratory relief?
[39]Mr Gorgus does not significantly differ in his assessment of the issues.
Lawfulness of decision to place Mr Gorgus on directed segregation
[40] Mr Gorgus submits that the incident reports dated 8 and 9 July 2019 “are all made up lies”. He asks “Where’s the evidence? Where’s the convictions? Where’s the on-body camera [footage]?” He asks why he was not charged and convicted of threatening and abusing Corrections Officers if that is what truly happened on 8 and 9 July 2019. He also maintains that, in assessing his level of risk, staff at Auckland Prison were unable to rely on the 15 misconduct reports relating to his behaviour at Mt Eden Prison between 10 January and 21 May 2019 because none of the misconduct reports proceeded and he was not convicted of any offence.
[41] Mr Gorgus claims that the decision to place him under directed segregation was punitive and only undertaken to sidestep the usual disciplinary process that Corrections must follow. He claims he was not afforded the opportunity to defend the claim that he had incited other prisoners to be assaultive and therefore Corrections breached s 25(c) of NZBORA.
[42] This illustrates a level of misunderstanding on the part of Mr Gorgus. It is unnecessary for a charge to be laid or a complaint to proceed for Corrections to take Mr Gorgus’ behaviour into account in assessing his level of risk to the good order of the prison. All that is required is that there be credible and reasonable evidence of such risk. To expect more would have a chilling effect on the ability of Corrections’ staff to make day to day security decisions. Some latitude in making such assessment must be accorded to Corrections.
[43] Here, I agree with Crown counsel that s 25(c) of the NZBORA is not engaged in this case. It provides:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
…
(c)the right to be presumed innocent until proved guilty according to law:
…
[44] Mr Gorgus was not charged with any offence in relation to his behaviour on 8 and 9 July 2019. None of the misconduct reports in relation to his earlier behaviour in Mt Eden Prison proceeded to a hearing. Placing a prisoner on directed segregation is not a punishment and the institution of internal disciplinary proceedings is not a pre- requisite. Directed segregation “is a prisoner management tool designed to enable the orderly management of prisons and to defuse potential flashpoints”.14 In contrast, poor behaviour necessitating a formal response is dealt with through the disciplinary system. In that context, cell confinements may be imposed as a penalty by a hearing adjudicator or Visiting Justice.15
14 Mitchell v Attorney-General [2015] NZHC 3295, [2016] NZAR 168 at [4].
15 Corrections Act 2004, ss 133 and 137.
[45] Similarly, Mr Gorgus’ directed segregation did not breach reg 150 of the Regulations. Regulation 150(3) provides:
150 Maintenance of discipline
…
(3) No officer may take disciplinary action against a prisoner if that action is retaliatory in nature or inconsistent with acceptable standards of treatment of a prisoner in similar circumstances.
…
[46] No disciplinary proceedings were instituted against Mr Gorgus in relation to his behaviour on 8 and 9 July 2019. The stated rationale for Mr Gorgus’ directed supervision was to maintain the security and/or good order of the prison. Mr Gorgus may well perceive the imposition of directed supervision as a punishment as some of his entitlements were temporarily restricted, but his subjective view is not determinative. The major restriction was on Mr Gorgus’ ability to associate with other prisoners, which was instituted in order to deny him the opportunity to invite other prisoners to be assaultive. Although Mr Gorgus’ view should not be dismissed out of hand, the true nature of directed supervision is to be ascertained from the statutory scheme and the individualised management plan.
[47] Nor did Mr Gorgus’ segregation breach s 218 of the Act, which sets out offences against discipline. As noted earlier, Mr Gorgus was not and did not need to be charged with any disciplinary offence before he could be placed on directed segregation.
[48] Mr Gorgus has failed to prove that the decision to place him on directed segregation was unlawful. However, the process for the implementation and review of the directed segregation order did not meet the standards set down in the Prison Operations Manual and a remedy for that is appropriate. I shall discuss this later.
Were Mr Gorgus’ detention conditions unlawfully restrictive?
[49] As noted earlier, Mr Gorgus contends that either the minimum requirements specified in the management plan were unlawfully restrictive in themselves, or, were breached through Corrections failure to provide them to him.
[50] Mr Gorgus contends that in both cases, s 23(5) of the NZBORA was breached. It provides:
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.
[51] One of Mr Gorgus’ major complaints seems to be the restrictions on his right to exercise. Section 69(1)(a) provides that every prisoner has a minimum entitlement to physical exercise as provided for in s 70. Section 70 then provides:
70 Exercise
(1)Every prisoner (other than a prisoner who is engaged in outdoor work) may, on a daily basis, take at least 1 hour of physical exercise.
(2)The physical exercise referred to in subsection (1) may be taken by the prisoner in the open air if the weather permits.
[52]In turn, Mr Gorgus’ management plan provided:
Prisoner Gorgus may, on a daily basis, take at least one hour of physical exercise in the yards. Prisoner’s shoes and socks to be removed and all personal items to be scanner searched prior to going to the yard.
[53] Mr Gorgus’ management plan also provided that he was to be placed in handcuffs for all movements outside of his cell.
[54] Mr Gorgus was taken to the general yard three times a week for 30 minutes each time. Other prisoners not subject to directed segregation were present and Mr Gorgus remained handcuffed throughout. Mr Gorgus complains that he was therefore unable to exercise. Corrections response is that Mr Gorgus was offered exercise in a private yard attached to his cell on a daily basis. Mr Gorgus complains that his cell yard was not large enough for him to run around it nor did it contain any exercise equipment, which Mr Gorgus maintains is essential for proper exercise.
[55] This illustrates a general difficulty with Mr Gorgus’ various claims. There was no evidence of the size or nature of these cells, apart from Mr Nui’s guess as to its size during cross-examination by Mr Gorgus. There was also no evidence, expert or otherwise, about the need for or utility of unspecified exercise equipment. There are exercise programmes such as 5BX developed for the Canadian Air Force which do not
require any exercise equipment and involve running on the spot. The Act does not require prisoners to have access to the general yard. Although Mr Gorgus was not satisfied with his cell yard, it was sufficient for the purposes of the minimum requirements prescribed by the Act.
[56] As to legal calls, it appears that Mr Gorgus had access to a prison pay phone when he was in the general yard and made numerous calls to others on 10 July, 14 July and 17 July 2019. In his brief of evidence, Mr Gorgus said that he was denied the reasonable opportunity to make legal calls, without specifying when and under what circumstances he was denied such a right. It was only in cross-examination that Mr Gorgus explained, as follows:
Well I just wanted to contact my lawyer to discuss some legal matters and I was denied the right to contact that particular lawyer and I was you know basically advised that the only lawyers you can contact is the ones that you’ve already got approved.
[57] He also acknowledged that he could have applied to have different lawyers approved. He said:
Potentially yes but the reality is that how fast would they [Corrections]respond to it?
I accept the rationale advanced by Corrections that prior approval of a lawyer’s telephone number is required as calls to a lawyer are not monitored and as such, represent a potential security threat.
[58] Other complaints by Mr Gorgus also have little substance. It appears he was not refused visits while in directed segregation. In evidence he stated:
Q.… So when you’re saying you were denied contact with your family and friends you were more saying you were denied a contact visit?
A. Correct, yes.
Q. Okay all right thanks for clarifying that. But you’d accept that someone could have come and seen you on the Saturday if they had the necessary approval? It’s just that it would have been a non-contact visit?
A. Correct yes. It would have been a non-contact visit.
The entitlement to private visitors is subject to regulations made under the Act.16 One such regulation is that a visitor may be approved subject to any conditions or restrictions that are necessary to ensure that the security, good order or discipline of the prison is not adversely affected.17 There are a number of instances in which prisoners in the general prison population are also refused a contact visit, for instance, if they have recently returned a positive drug test. Such conditions are not a breach of minimum entitlements.
[59] Similarly, Mr Gorgus’ complaints about lack of access to books and the continuance of programmes and education have little substance in the absence of any real cogent evidence to substantiate them.
[60] Finally, Mr Gorgus states that constant handcuffing outside of his cell was extremely punitive when compared with the general prison population who were not subjected to handcuffing daily once outside of their cell. In particular, Mr Gorgus says his handcuffing while in the general yard made meaningful exercise impossible.
[61] The Crown provided no evidence about the necessity for handcuffing in general except for the comment by Mr Nui that it was necessary for the safety of staff. In that regard, Mr Nui was able to have regard to the various threats recorded while Mr Gorgus was in Mt Eden Prison and which necessitated his transfer to Auckland Prison as well as the specific incidents on 8 and 9 July 2019. Some deference must be given to the operational decisions of Prison Officers.
[62] Again, Mr Gorgus has not proven that his detention conditions were unlawfully restrictive. He has failed to show that he was not treated with humanity or with respect to his inherent dignity.
Negligence
[63] Mr Gorgus submits Corrections had a duty to provide him with reasonable prison services. This extended to; affording him the presumption of innocence and charging him with any offence he was alleged to have committed; providing for his
16 Corrections Act 2004, s 73(2).
17 Corrections Regulations 2005, r 101(1)(c)(i).
safety and well-being; investigating his complaints in a timely manner; and referring his segregation to a Visiting Justice.
[64] Mr Gorgus submits Corrections breached this duty by unlawfully segregating him without charging him with an offence and by failing to provide him with a means to challenge his segregation or responding to his complaints. This alleged breach caused him damage in the form of “personal injury, emotional and psychological harm, humiliation, stress and anxiety” as well as “out of pocket expenses”.
[65] The Crown submits its statutory duties (discussed above) do not give rise to a duty in tort, particularly not to general liability arising whenever a prisoner disagrees with a decision that has been made about his or her custody arrangements. The Court should only find a novel duty of care exists where the situation is not covered by an existing form of redress. In this case, Mr Gorgus’ tort claims overlap entirely with his claims under the Act and NZBORA.
[66] The Crown also submits Mr Gorgus has not identified an individual tortfeasor for whom the Crown is vicariously liable for any breach. There is no direct liability for the Crown for “systemic” negligence. Finally, if there is a duty and it was breached, the Crown submits Mr Gorgus has failed to show any loss, or causation.
[67] Although there have been cases which have found a limited and specific duty of care toward prisoners,18 I am of the view that Mr Gorgus cannot establish in this case that the defendants owed him a private law duty of care in the terms pleaded. Corrections referred to this passage from the judgment of Chisholm J in Forrest v Attorney-General:19
I agree with Ms Foster that these causes of action [breach of duty and negligence] cannot get off the ground. The Corrections Act provides a comprehensive code as to the Corrections system. It binds the Crown. Although Mr Forrest relied on Taunoa, I am unable to find anything in either the decision of the High Court or the decision of the Supreme Court that might suggest that the private law duties alleged by Mr Forrest existed in the circumstances under consideration. I do not accept that any such duties have arisen.
18 Morgan v Attorney-General [1965] NZLR 134 (HC); R v Deputy Governor of Parkhurst Prison Ex parte Hague [1992] 1 AC 58 (HL) at 166.
19 Forrest v Attorney-General HC Christchurch CIV-2009-409-2373, 1 November 2010 at [45].
[68]Forrest was overturned on appeal, but this finding was not challenged.20
[69] Forrest was affirmed in Reekie v Attorney-General.21 In that case a prisoner alleged Corrections staff had a duty of care to transfer him between prisons only in accordance with the Act, to investigate his complaints and to ensure he was dealt with impartially and not subject to any reprisals for having made those complaints.22
[70] Lang J approved Chisholm J’s words in Forrest.23 The Judge also referred to Wool Board Disestablishment Co Ltd v Saxmere Co Ltd in which the Court of Appeal held it would be wrong “to have run an entirely parallel common law obligation with the statutory obligation”.24 The Court also noted that “careless performance of a statutory obligation has always been held not of itself to give rise for liability for common law negligence”.25
[71] Here I agree with the Crown. There cannot be a duty “at large” giving rise to indeterminate liability whenever a prisoner does not agree with a decision that has been made about his or her custodial arrangements. The relevant provisions of the Act and Regulations which form the basis of Mr Gorgus’ allegations do not establish common law duties enforceable in Court.
[72] As I agree that the pleaded claim in tort covers the same ground as the cause of action brought in judicial review and under NZBORA, I will not impose a private law duty of care.
[73] I also accept that Mr Gorgus has not identified an individual tortfeasor for whom the Crown is viciously liable in relation to his detention from 9 to 22 July 2019 as required by the proviso to s 6(1) of the Crown Proceedings Act. There were a number of different Corrections Officers who were responsible for part of the process, but none are identified in the pleadings nor are their roles specified.
20 Forrest v Attorney-General [2012] NZCA 125, [2012] NZAR 798.
21 Reekie v Attorney-General [2019] NZHC 1679.
22 At [81] – [83].
23 At [87].
24 At [88], citing Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513; [2011] 2 NZLR 442 at [197].
25 At [88], citing X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL) at 732-735.
[74] The first amended statement of claim, dated 13 September 2021, also fails to plead, and show any actionable loss.
[75] Mr Gorgus’ claims for compensation and exemplary damages in negligence accordingly cannot succeed.
Declaratory relief and/or damages
[76] The Crown accepts that Mr Gorgus’ rights to natural justice under s 27(1) of NZBORA were breached by the omission to provide him with his segregation paperwork in a timely manner and the omission to forward his revocation request to a Visiting Justice.
[77] Declaratory relief is the usual remedy for breach of natural justice.26 The question is whether something more than a declaration is required as an appropriate, effective and proportionate remedy.
[78] In Taunoa v Attorney-General,27 the Supreme Court stated that the remedy should have the purpose of vindicating the right breached, deterring the relevant authorities from future rights breaches and denouncing the conduct so as to mark society’s disapproval of the breach.
[79] Damages will only rarely be awarded for breaches of s 27(1). An award is confined to circumstances where:28
(a)there is no other effective remedy.
(b)where human dignity or personal integrity or (possibly) the integrity of the property are also engaged; and
(c)where the breach is of such constitutional significance and seriousness that it would shock the public conscience and justify damages being paid out of the public purse.
26 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56.
27 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
28 Combined Beneficiaries, above n 26, at [70].
[80] The Crown submits that there is nothing in the evidence that comes close to that high threshold for damages. The Crown notes that the segregation decision itself was endorsed by all parties involved in the decision-making. While Mr Gorgus suffered a loss of a chance to challenge the directed segregation decision before a Visiting Justice in time, that chance was not one that carried any clear prospect of a favourable outcome in circumstances where the underlying decision was sound.29
[81] In the end, the order for directed segregation lasted eight or nine days, which gave the staff time to review and mitigate risks. It did not involve any long-term change in status, and unlike the security classification decisions, there is no suggestion it affected Mr Gorgus’ chances of being released on parole (or in this case, on bail).30 As a short-term urgent measure for the purposes of prison security, some degree of deference is required.
[82] In those circumstances, a declaration in the terms suggested by Crown counsel is appropriate, effective, proportionate and all that is required.
[83] I have also determined that Mr Gorgus’ rights to be treated with humanity and with respect for his inherent dignity (s 23(5)) and to be presumed innocent until proven guilty (s 25(c)) have not been breached. If I am wrong in that, however, and Mr Gorgus’ rights under s 23(5) have been breached, damages are clearly not appropriate for restrictions on his minimum entitlement to exercise or his access to legal advisors over such a short period. In Attorney-General v Van Essen,31 the Court of Appeal noted that most of the cases where damages had been awarded involved “physical restraint, direct infliction of physical harm, or a prolonged or significant deprivation of liberty”. This is not such a case.
Result
[84] There will be a declaration that the omission to provide Mr Gorgus with his segregation paperwork in a timely manner, and the omission to forward Mr Gorgus’
29 Mitchell v Attorney-General, above n 15, at [20].
30 McEwen v Spring Hill Corrections Facility Department of Corrections [2020] NZHC 724 at [89].
31 Attorney-General v Van Essen [2005] NZCA 22, (2015) 12 HRNZ 155 at [106].
revocation request to a Visiting Justice in a timely manner was a breach of natural justice and contrary to s 27(1) of NZBORA.
[85]Mr Gorgus’ claim is otherwise dismissed.
Woolford J
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