Greer v Chief Executive, Department of Corrections

[2018] NZHC 1240

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-000372

[2018] NZHC 1240

UNDER THE

Judicial Review Procedure Act 2016

IN THE MATTER OF

Application for Judicial Review

BETWEEN

ALAN IVO GREER

Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

First Respondent

AND

PRISON MANAGER AT RIMUTAKA

Second Respondent

AND

NATIONAL COMMISSIONER, DEPARTMENT OF CORRECTIONS

Third Respondent

Hearing:	16 May 2018
Counsel:	Applicant in person (via AVL) R S May for Respondents
Judgment:	30 May 2018

JUDGMENT OF COOKE J

(Interim relief)

[1]                 Mr Greer is a serving prisoner at Rimutaka Prison. He challenges by way of judicial review decisions made by the respondents that have had the effect of depriving him of access to a computer to prepare for litigation he is involved in. The present application is for interim orders to allow him access to a computer pending the determination of his challenge.

GREER v DEPARTMENT OF CORRECTIONS [2018] NZHC 1240 [30 May 2018]

[2]                 Mr Greer has been a prisoner for many years. He is presently serving a sentence of preventive detention with a minimum period of imprisonment of 10 years for a series of offences including rape and threatening to kill. The sentence was imposed in September 2014.1

[3]                 During the course of Mr Greer’s criminal proceedings, and following completion of them, Mr Greer has sought access to computer facilities. This has involved requests that he be given access to his own computer (which was taken from him on his imprisonment) or alternatively that computer facilities be made available by the Department for Corrections (the Department).

[4]                 In 2003 the Court of Appeal dismissed an appeal by Mr Greer against his earlier convictions, including his ground of appeal that his lack of access to computer facilities meant that he had been denied his rights under s 24(d) of the New Zealand Bill of Rights Act 1990 (NZBORA). The Court held that lack of access to a computer had not resulted in a miscarriage of justice. The Court observed, however:2

[39] We comment that it may be open to doubt in the twenty first century  that the provision of writing materials only to an inmate, could in all cases be regarded as adequate facilities with which to prepare that defence, particularly if the inmate plans to conduct his or her own defence. It may therefore be time for the regulations relating to computers in cells to be revisited or at least for prisons to ensure that access to computers is provided in another manner to those who may need them to prepare their defence.

[5]                 Later in a Minute from the Court of Appeal dated 25 May 2006 the Court directed in accordance with his then appeals:3

[9]        This court directs that the  prison  authorities  are  to  ensure  that  Mr Greer, who is acting for himself on this appeal by choice, has adequate facilities for the preparation for the application for bail and for the appeal generally. The facilities required include:

(a)access to writing paper and materials;

(b)access to a computer;

(c)access to a printer;

1      R v Greer [2014] NZHC 2364.

2      R v Greer CA197/01, 4 June 2003.

3      R v Greer CA179/06, 25 May 2006 per Chambers, Rodney Hansen and Priestly JJ.

(d)access to such legal materials as may be available in Paremoremo Prison.

[6]                 Further in a 2013 decision concerning bail the High Court indicated that     Mr Greer should have the option to elect to receive a computer.4 In subsequent proceedings in 2014, the Court further noted that the prison authorities were effectively precluding access to computers notwithstanding the earlier decision, leading the Court to conclude:5

[40] In short, the evidence and other material before me leaves me with no confidence that if Mr Greer is required to prepare for trial in prison, he will have adequate facilities to do so.

[7]                 Mr Greer later obtained access to computers. Mr Greer informed me that the last occasion where he had access to a computer was in 2015 when in a prison in Otago, where he had access to computer facilities that were offered to a range of inmates. He explained that his access came to an end with the decision under s 45A of the Corrections Act 2004 made in May 2015, which he challenges in the proceeding.

[8]                 Mr Greer has regularly sought access to a computer since that time. Most recently, on 24 February 2017 Ms Whelan, the Acting Prison Director at Rimutaka Prison, declined Mr Greer’s application for computer access, but granted him access to other resources.

[9]                 These proceedings challenging the denial of access to a computer were then filed on 19 April 2017. By memoranda dated 24 May 2017, Mr Greer sought an interlocutory order allowing him access to a computer to prepare for this proceeding. On 15 June 2017 Faire J noted that the Prison Director at Rimutaka Prison was going to voluntarily undertake a fresh consideration of the request for access. Ms Whelan then further declined Mr Greer’s request for computer access, but allowed him access to other resources on 23 June 2017.

4      Greer v Police [2013] NZHC 2682 at [9] per Dobson J.

5      R v Greer [2014] NZHC 358 per MacKenzie J.

[10]              On 27 June 2017, Cull J recorded the reconsideration and also determined that in light of the new decision, and given that access to the computer was at the heart of the judicial review, it was inappropriate to grant the interlocutory order sought by  Mr Greer.

[11]              Following a further teleconference on 10 July 2017, Ellis J directed that the respondents file an affidavit clearly setting out the present position, namely by providing:

(a)a description of the position generally in relation to prisoners’ access to computers and word processors (whether personal or prison owned);

(b)any relevant rules in that regard, including any recent amendment to the rules, the reasons for them, and any proposal for further amendments; and

(c)whether the position as described applies to Mr Greer, or whether there are any operational concerns that have led to him being treated different from others and, if so, what those concerns are.

[12]              An affidavit from Ms Whelan sworn 7 August 2017 was subsequently filed. On 26 February Ellis J also directed that Mr Greer could then file an application for interim relief at a time convenient to him, together with a supporting affidavit.      Mr Greer subsequently made that application which is what is before the Court today.

The relevant regime

[13]              The applicable regime concerning  access  to  computers  is  described  by  Ms Whelan, and arises under the Act, Regulations and Policy instruments.

[14]              There are a number of provisions in the Corrections Act 2004 that provide for a regime that regulates what property prisoners may have. Section 43 indicates that prisoners may be issued with, or be allowed to keep authorised property subject to certain prescribed limitations. Under s 45A the Chief Executive can prescribe rules about the property that prisoners “may be issued with or allowed to keep”. In the

present case, on or about 18 May 2015, these rules were changed so that prisoners’ own personal computers were no longer identified as authorised property. In the proceeding Mr Greer challenges the insertion of s 45A into the Corrections Act 2004 in 2013, as well as the decision to remove prisoners’ computers as authorised property in 2015. He also challenges the interpretation of the legislation applied by the Department of this legislation.

[15]              Prisoners may, nevertheless, obtain access to property such as computers other than personal computers. Under reg 193 of the Corrections Regulations 2005, the manager of a prisoner must, as far as is reasonably practicable in the circumstances, ensure that a prisoner is provided with adequate facilities, and facilitate contact between the prisoner and advisors for the purposes of dealing with criminal proceedings in the manner defined in subs (1), or in dealing with procedures for a prisoner detained under the Immigration Act 2009.

[16]              Regulation 193 enables steps to be taken that would be consistent with the rights under the NZBORA, including the right under s 24(d) to “adequate time and facilities to prepare a defence”.

[17]              There are other relevant rights beyond those engaged when a prisoner is involved in criminal proceedings that are not contemplated by reg 193. The right of access to the court is regarded as a fundamental right.6 Under s 27 NZBORA, every person has a right to apply, in accordance with the law, for judicial review, and the right “to bring civil proceedings against … the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals”. For a person serving a sentence of preventive detention, the right of access to the courts may be of particular significance. I note that the Human Rights Committee of the United Nations has recently concluded that certain New Zealand preventive detainees’ rights have been breached, including because of their lack of ability to challenge their preventive detention before a Court.7

6      Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601; [2013] 2 NZLR 57 at [136].

7      Human Rights Committee Views: Communication No 2502/2014 CXXI

CCPR/C/121/D/2502/2014 (21 November 2017) (Miller v New Zealand) at [8:15].

[18]              Policies have been formulated that recognise such rights. Ms Whelan explains in her affidavit that under the Prison Operations Manual, policies have been prescribed to reflect such rights. In particular she refers to Policy F.07 “Access to Facilities to Assist in Litigation Policy”. This policy provides that in addition to proceedings of the kind contemplated by reg 193, certain facilities may be provided for inmates for other litigation, including computer facilities. It is ultimately this Policy that provides room to recognise the civil litigation rights of prisoners, and which was most recently applied to Mr Greer.

Test for interim relief

[19]Section 15 of the Judicial Review Procedure Act 2016 provides:

(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.

(2)The interim orders referred to in subsection (1) are interim orders—

(a)      prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:

(b)      prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:

(c)      declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.

…

(4)An order under subsection (2) or (3) may—

(a)      be made subject to such terms and conditions as the court thinks fit; and

(b)      be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.

[20]              The general approach to interim relief under the predecessor of this section, s 8 of the Judicature Amendment Act 1972, was set out by the Supreme Court in Minister of Fisheries v Antons Trawling Company Ltd,8 by reference to the judgment of Cooke J in Carlton & United Breweries Ltd v Minister of Customs.9 The Supreme Court held:

[3] Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review and all the repercussions, public and private of granting interim relief.

Preserving the position of the applicant

[21]              Section 15 contemplates a threshold requirement that the interim orders are necessary to “preserve the position of the applicant”. It is well established that orders do not reach that threshold if the applicant is seeking to improve their position rather than preserving it, and the respondents opposed the orders on the basis that Mr Greer was seeking to improve his position. Understandably, the respondents rely on the judgment of Allan J in Taylor v Chief Executive of the Department of Corrections (No 2), where the Court declined a similar application for interim orders.10 The applicant in that case sought access to a computer and a special workroom for litigation purposes. The Court held that this would improve, rather than preserve, the applicant’s position, whilst also concluding that there was no reasonable prospect that such relief would finally be obtained in a judicial review challenge.11

[22]              I do not understand the authorities to be quite as narrow on the threshold question as was argued. The Court should avoid an overly formalistic approach to the threshold question, and allow the relevant factors to be addressed at the discretionary phase. Interim relief can encompass orders placing the applicant in the position it would have been but for the illegality alleged. It is not limited to preserving the status quo. In Whiskey Jacks Rotorua Ltd v Minister of Internal Affairs Wild J granted

8      Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101; (2007) 18 PRNZ 754.

9      Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).

10     Taylor v Chief Executive of the Department of Corrections (No 2) HC Auckland CIV-2011-404- 3227, 5 August 2011.

11     At [64]-[68].

interim orders under s 8 of the Judicature Amendment Act 1972.12 The interim orders allowed the applicant to operate gaming machines at a venue pending determination of the judicial review challenge to the decision that prevented the applicant doing so. Wild J held:

[40] In that sense, the interim order sought "preserves" the plaintiffs’ position, against the event that their substantive arguments prevail, and that [the challenged Condition] is declared unlawful. I regard “preserving” the plaintiffs’ position as keeping the plaintiffs in, or restoring them to, the position they would have been in but for the alleged unlawfulness. In my view that is achieved by the interim order sought, and that order cannot sensibly be regarded as improving the plaintiffs’ position.

[23]              Wild J relied on the decision of Doogue J in Kiwi Foundation Ltd v Attorney-General.13 Here, Doogue J referred to interim orders putting the applicant in “the position that it would be in if its licence had been renewed, which is what it claims in this proceeding that it is entitled to …”. Similarly, in Taylor v Chief Executive of the Department of Corrections the Court of Appeal emphasised that s 8(1) was broadly expressed.14 The Court held by reference to s 8(1)(c) that “by definition this empowers a court to declare that a state of affairs that previously existed and which has been revoked should resume pending the substantive hearing”.15

[24]              Other considerations also support a broader approach. Like all legislation, s 15 should be interpreted in light of its purpose. There are two evident purposes of the interim relief power – to relieve the applicant from the adverse effects of a challenged decision until the challenge is heard and determined, and to preserve the ability of the Court to grant effective relief if the challenge is successful. The threshold question should be interpreted and applied in light of these purposes.

[25]              Further, the Judicial Review Procedure Act and its predecessor were not intended to be legislative restrictions on the Court’s inherent judicial review powers. Rather, they were designed to provide a complementary procedural regime. Part 30 of the High Court Rules 2016 provides a parallel procedural route recognising the

12     Whiskey Jacks Rotorua Ltd v Minister of Internal Affairs HC Wellington CIV-2003-485-1901, 10 September 2003.

13     Kiwi Foundation Ltd v Attorney-General HC Wellington CP346/97, 18 December 1997.

14     Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112.

15 At [23].

inherent powers. As the Court of Appeal noted in Taylor v Chief Executive of the Department of Corrections,16 the parallel interim relief power in r 30.4 does not have an express threshold requirement of a position to preserve. It would be odd if the fate of an application turned on the precise procedural path that had been followed.

[26]              In the present case I accept that the statutory threshold which allows consideration of the grant of interim relief under s 15 is satisfied. Mr Greer has previously been given access to computers while in prison, and he challenges the relevant decisions which removed that access. He accordingly is asking to be put in the position that he was previously in, and the position he says that he would have been in but for the illegality he alleges. Such orders can legitimately be regarded as preserving his position. I also conclude that there is no objection to that order being made because he is obtaining what he seeks to obtain in his substantive challenge. The order is only interim in character, and accordingly it is different from the substantive order sought in the proceeding.

Should an order be made?

[27]              This leads to what I consider to be the more important question, namely whether the order should be made in the present case.

[28]              In my discussions with Mr Greer and Mr May, I suggested that there were four main factors of relevance to the inquiry under s 15 as discussed below.

(i)Degree of disadvantage

[29]              First is the degree of disadvantage suffered by Mr Greer as a consequence of the challenged decisions. I accept his submissions that the lack of access to a computer is a material disadvantage. He explained to me that the key reasons for wanting access to a computer was to engage in word processing, the scanning of documents he obtains so that they can be stored in sensible order on the computer (ie document management), and the ability to conduct searches of the documents so stored. He told me that he did not want access to the internet. I accept that his inability to engage in

16 At [25].

these tasks is a material handicap to his pursuit of his long-running litigation against the Crown.

[30]              Having said that, Mr Greer has been able to handwrite his submissions in an effective way, and also produce documents in support of his submissions. So, the handicap is not fatal, in the sense that he is still able to exercise his right of access to the court.

[31]              I also observe that one of the other parties that is disadvantaged by the current state of affairs is the court itself, as the court needs to receive documents from      Mr Greer in handwritten form, and in accordance with Mr Greer’s own handwritten document management system.

(ii)The public interest

[32]              The second consideration can broadly be described as a public interest consideration. In Ms Whelan’s reasons for her decision, she identified that there was a realistic prospect that providing access to computers might enable Mr Greer to connect to the internet, and that he might access his victims or potential victims in the community in a way that could not be managed. I accept that this would be a very powerful factor if the computer Mr Greer gained access to had the capability of connecting with the internet. But as described above, Mr Greer advised that he did not want a computer for that purpose, so it need not have that capability.

[33]              Mr Greer has previously been disciplined for improper possession of a cell phone, and he frankly accepted before me that he had done so. But whilst computers can connect to cell phones to gain access to the internet, I see no reason why any computer he gains access to needs to have that functionality. In any event any improperly obtained cell phone itself would allow such access. Adding a connection to a computer does not strike me as adding much in terms of concerning activity. So, provided that the computer he has access to has no internet capabilities, I do not regard this as a significant factor.

(iii)Prison management issues

[34]              The third consideration can broadly be described as the desirability of the Department having appropriate prison management overall. That was expressed in the following way in the decision of Allan J in Taylor v Chief Executive of the Department of Corrections:17

An interim order would override the Prison Manager’s ongoing assessment of what is properly required for the safe and secure management of the prison. It might also involve the Court in monitoring and directing the day to day operational management decisions of prison management, including those which relate to the allocation of resources. Such considerations were regarded as important in the non-contact visits case, where the Court expressed concern that a mandatory interim order might compromise public safety, regarded as the paramount consideration.

(Footnotes omitted)

[35]              His Honour referred to Taylor v Chief Executive of the Department of Corrections.18 I accept that this is an important consideration and it is one that was referred to in Ms Whelan’s decision. In the present case Ms Whelan identified that Mr Greer had been engaged in many disciplinary matters while in prison. Mr May emphasised that a computer itself was a large hard object that could be used to cause harm. I do not see particular force in that last point, but I do accept that there are issues concerning the equitable provision of resources, and the policies applied by the Department for the management of prisoners and what they have access to. This counts against the Court ordering that he be permitted access to a computer in the meantime.

(iv)The strength of the challenge

[36]              The final relevant consideration is the strength of the challenge. As presently formulated, it includes allegations surrounding the respondents’ conduct leading to the amendment of the legislation by the insertion of s 45A. I accept Mr May’s submission that that claim has no prospects of success, as it is not the function of the Court to directly or indirectly inquire into the reasons for Parliamentary enactments.

17     Taylor v Chief Executive of the Department of Corrections (No 2), above n 9, at [70].

18     Taylor v Chief Executive of the Department of Corrections, above n 14.

[37]              The other grounds have more chance of success. They include a challenge to the addition of computers as items which prisoners cannot have possession of under s 45A, and it raises an issue of interpretation concerning s 45A. But perhaps the claim that has most prospect of success is the claim challenging the exercise of discretion under paragraph F.07 of the “Access to Facilities to Assist in Litigation Policy”. That policy provides (emphasis in orginal):

Prisoners who engage in other types of litigation may also be provided with access to facilities, at the discretion of the Prison Director. Generally, some form of access to facilities should be provided unless there is good reason relating to the resources available or the maintenance of safety and security requirements.

[38]              The decisions made under this policy are not currently challenged in the pleading, but I accept Mr Greer’s point that the Department’s advice about the rules for access to computers have not always been clear. Challenge to the exercise of this policy, which has now been explained in Ms Whelan’s affidavit, has a reasonable prospect of success. Mr Greer’s ability to engage in civil litigation against the Crown is being adversely affected in a material way, and a computer without internet capabilities raises less concern about safety and security.  The decisions made by   Ms Whelan do not appear to have considered the option of allowing access to that more restricted type of technology as a discrete matter. Moreover, Policy F.07 rightly proceeds on the basis that access to facilities such as computers should be allowed unless there is good reason not to. The fact that Mr Greer has a past record of misconduct may not in itself be good reason if that conduct is not related to his access to facilities such as computers.

Conclusion

[39]              Balancing those considerations I have decided against granting interim relief. Two considerations are of significance in my view. The first is that while Mr Greer is being materially disadvantaged, he is still able to properly advance his litigation against the Crown. Access to word processing and document management will make things easier, but I am not persuaded that it is so much of a disadvantage that it requires the Court to intervene by way of interim orders. Secondly, whilst I have expressed uncertainty about some of the prison management considerations, I am not prepared to override the Prison Manager’s decision-making, which affects others as well,

particularly on a resource allocation issue. The respondents should have a full opportunity to outline the prison management issues, and the existence of the good reason why Mr Greer is not allowed access before the Court makes such orders. For that reason, the application is declined.

Discovery

[40]              In Mr Greer’s written submissions, he invited the Court to revisit the directions that had been given by Ellis J at the last conference. In particular, he asked that tailored discovery be provided of documents he had previously requested, following which he would then amend his statement of claim.

[41]              I discussed the position with Mr Greer and Mr May at the hearing. I indicated that I thought there was some force in the argument that Mr Greer should be given discovery first before he amends his pleading. It became apparent during the course of the hearing that there have been uncertainties about how the regime concerning access to computers applies. Mr Greer did not understand there was a discretion to be applied once computers had been removed from the list of material that prisoners could have access to under s 45A. This illustrates the desirability of disclosure being made so that the issues actually in dispute are clarified. In part, that was the reason why Ellis J ordered that an affidavit be filed by the respondents clearly setting out the position. It seems to me to be appropriate for disclosure to be made prior to the pleadings being amended. I am hopeful that Mr Greer will drop the claim centred on the insertion of s 45A in the Act, and expect that the exercise of the discretion under

F.07 will be added as the focus of the challenge.

[42]              I then discussed with counsel and Mr Greer the appropriate scope of the discovery, and after that discussion identified the following categories of documents that should be provided:

(a)interactions between Mr Greer and the respondents concerning his request for access to computers from May 2014 to date;

(b)any further documentation identifying the regime that applies to the access to computers for inmates, over and above that set out in the affidavit of Ms Whelan; and

(c)the documentary record recording the decision made under s 45A to remove prisoners’ own personal computers as authorised property with effect from 18 May 2015.

[43]              I discussed with counsel and Mr Greer the timetable for providing the discovery and the amended pleading. The discovery by the respondents is to be provided within 21 days of release of this judgment. Mr Greer then asked for six weeks following the provision of the discovery to file his amended statement of claim. That is a long period of time, but in the end it is Mr Greer’s case and I am satisfied that a longer period is justified given the complex background to this matter. I also think this time will help Mr Greer focus on the central points of his challenge.

Cooke J

Solicitors:

Luke Cunningham & Clere, Wellington for Respondents