Greer v Chief Executive Department of Corrections

[2017] NZHC 2980

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2017-485-121 [2017] NZHC 2980

BETWEEN

ALAN IVO GREER

Applicant

AND

THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS First Respondent

AND

THE VISITING JUSTICE AT RIMUTAKA PRISON

Second Respondent

Hearing:	30 August 2017
Counsel:	Applicant in Person H Carrad and G Taylor for First Respondent P Gunn and A Dixon for Second Respondent
Judgment:	1 December 2017

JUDGMENT OF ELLIS J

[1]      Mr Greer is a serving prisoner.  He seeks judicial review of a decision of a Visiting Justice on 9 January 2017 (on appeal from a hearing adjudicator) finding him guilty of a disciplinary offence under s 128(1)(f) of the Corrections Act 2004, namely having an improvised screwdriver (an unauthorised item) in his cell.

[2]      When the item was found in Mr Greer’s cell, he was sharing that cell with another prisoner, Mr Berry.  Both were charged. Mr Greer claims it was unlawful for the Visiting Justice to apply a strict liability standard to him in those circumstances. Although not clearly pleaded as such, it became apparent during the hearing before me that Mr Greer’s more fundamental concern is with the double bunking policy itself;

the impact it can have on disciplinary matters is but one aspect of that concern.

GREER v DEPARTMENT OF CORRECTIONS [2017] NZHC 2980 [1 December 2017]

[3]      Mr Greer also claims that he did not have a fair hearing before the Visiting Justice, who denied his application for an adjournment in order that he could obtain legal advice.

[4]      Mr Greer has two further pending charges for having an unapproved item in his cell.  The hearing of these charges has been deferred until these proceedings are determined as those charges were also laid while Mr Greer was sharing a cell with another prisoner.

Preliminary matters

[5]      When the hearing before me commenced, Mr Greer advised that he was not aware that it was the substantive application for review that was to be dealt with.  He said there were outstanding matters of discovery and disclosure and that he had not received notice of the hearing.   Consistent with that position he had not filed any written submissions in advance of the hearing, although he had received copies of the material filed by the Crown.  He sought an adjournment in order that he could pursue those matters.

[6]      At the hearing, I declined the application for an adjournment.  I nonetheless said to Mr Greer that if it became apparent in the course of writing this judgment that the hearing had in some way been unfair or that he had in any way been disadvantaged I would reconsider the matter.  But I have not changed my mind.  I state my reasons briefly.

[7]      As far as disclosure is concerned there is one major obstacle to Mr Greer’s position. That is that there has already been a ruling against Mr Greer on that issue.

[8]      On 2 May 2017 Williams J recorded that Mr Greer had raised the disclosure issue but that the Crown contended that all relevant material had been provided.  He nonetheless directed Crown counsel to file a further memorandum addressing the ambit of discovery and gave Mr Greer the opportunity to reply. Those directions were complied with and the memoranda were referred to Mallon J.

[9]      On 22 May 2017 Mallon J issued a minute in which she referred to the memoranda and said:

I am not satisfied that the discovery that is sought beyond that provided by way of initial disclosure, and as attached to the first respondent’s memorandum, is relevant or necessary.

[10]     Although Her Honour was not prepared to confine the issues raised by the statement of claim in the way contended for by the Crown she declined to make any discovery orders and timetabled the matter to hearing.

[11]     As far as Mr Greer’s allegation of “ambush” is concerned, the Court file records that he was sent the notice of hearing date on 30 May 2017, some three months before the hearing.  Mr Greer’s litigation history evidences something of a pattern of delays and failing to file submissions.1  That history does not assist his contention that he did not receive the notice of hearing.  But I do not intend to make any firm finding in that regard. Much of the material already filed by him (in the form of both pleadings and affidavits) wa

[12]     s submission-like in form.  Moreover, he proved himself more than capable of amplifying his written points orally before me.  He showed a good understanding of the issues and had ample opportunity to make full submissions.

[13]     I can see no reason to revisit my earlier denial of Mr Greer’s request for an adjournment.  I turn to consider the substantive claim for review accordingly.

Background

[14]     On 28 November 2016, during a routine search of the cell that Mr Greer shared with Mr Berry, an improvised screw driver was found under the mattress of Mr Greer’s bunk bed. The screw driver had been created by modifying one end of a screw to form a flat tip.  Both Mr Greer and Mr Berry were charged with an offence under section

128(1)(f) of the Corrections Act 2004 (the Act), which provides that every prisoner

commits an offence against discipline who:

1      By way of example only see Greer v Custodial Services Manager, Auckland Prison [2007] NZCA

204; Greer v Prison Manager, Rimutaka Prison HC Wellington CIV 2008-485-1603, 18 December
2008 and R v Greer [2014] NZHC 2366.

without the approval of an officer, has any article in his or her cell or in his or her possession, or gives to or receives from any person any article, or attempts to obtain any article[.]

[15]     On 1 December 2016, Mr Greer was provided with a copy of the Misconduct report, a notice to prisoners charged with a disciplinary offence, and a copy of r 158 of the Corrections Regulations 2005, which sets out the privileges which may be forfeited by way of sentence if found guilty.

[16]     The  charge  was  heard  by  a  hearing  adjudicator  on  13  December  2016. Mr Greer did not request legal representation at this hearing.  He pleaded not guilty, but refused to participate and offered no evidence or defence to the charge. In his reasons for finding the case proven, the hearing adjudicator recorded that the charge was one of strict liability, and “relates to Jackson’s case”, which was a reference to the leading authority on s 128(1)(f).2   Mr Greer was convicted and sentenced to two days’ cell confinement and five days’ loss of privileges.   The hearing adjudicator recorded “item warrants penalty imposed”.

[17]     Mr  Greer  appealed.     The  appeal  came  before  the  Visiting  Justice  on

9 January 2017. On 6 January 2017, three days prior to the hearing, the prosecuting officer Mr Geekie provided Mr Greer with a copy of Jackson v Attorney-General.

[18]     The record of the Visiting Justice hearing and a transcript of the hearing were before me on review.  The following points can be made:

(a)      it appears Mr Greer had not sought legal advice prior to the hearing;

(b)the Corrections Officer who conducted the search of Mr Greer’s cell gave evidence for the prosecution, and Mr Greer cross-examined him on the reasons for his decision to charge both prisoners occupying that cell;

(c)      Mr Greer asked to call a Corrections Officer to give evidence about induction  sheets  being  provided  to  prisoners.  This  was  denied  as

2      Jackson v Attorney-General [2006] 2 NZLR 534 (HC).

Mr Greer had not made an application in advance of the hearing, and the Corrections Officer was not in attendance;

(d)Mr Greer neither disputed that the item was found under the mattress nor gave evidence offering a defence to the charge.   Instead, he requested an adjournment to enable him to seek legal advice on the application of Jackson in the circumstances of double bunking. He said he did not want to say anything in his defence, because (he said) he needed legal advice before doing so;

(e)      the Visiting Justice refused the adjournment, as he considered Mr Greer had had ample time to prepare a defence; and

(f)      following Mr Greer declining to give evidence to support his appeal, the Visiting Justice dismissed the appeal.

The claim

[19]     The following grounds of review can be discerned from the statement of claim dated 7 February 2017:

(a)      unlawfulness, on the basis that the Visiting Justice incorrectly applied the principles from Jackson (which held that s 128(1)(f) creates an offence of strict liability), because:

(i)       Jackson  related  to  charges  under  the  old  Penal  Institutions

Act 1987, not the current Act;

(ii)      the standard its sets out relates to single cell occupancy;

(iii)     that case does not in any event establish strict liability; and

(b)natural  justice,  on  the  basis  that  the  Visiting  Justice  denied  him “a number of entitlements”, specifically “an adjournment and a fair hearing”.

[20]     The Statement of Claim also seeks a “Review of the practices, policies and department’s instructions that are being applied to lay the two referred charges”.

[21]     Each ground of review will be considered in turn.

Unlawfulness

[22]     The disciplinary offences regime is contained in Subpart 5 of Part 2 of the Act, Part 11 of the Corrections Regulations 2005 and Schedule 7 to those Regulations. The prison disciplinary regime is separate from the criminal justice system.  Due to the volume of disciplinary charges laid, and the need for their efficient resolution, the standards expected of those conducting disciplinary hearings must be set at a reasonable level.3

[23] As I have said, Mr Greer was charged with an offence against s 128(1)(f) of the Act which I have set out at [13] above. As also noted above the leading authority on the application of s 128(1)(f) is Jackson v Attorney General.

[24]    As Mr Greer correctly points out, Jackson’s case involved the statutory predecessor to s 128(1)(f), namely s 32(1)(g) of the Penal Institutions Act 1954. Section 128(1)(f) is, however in materially identical terms to s 32(1)(g) and, for that reason, Mr Greer’s first ground of challenge (namely that Jackson does not apply to the newer provision) cannot succeed.

[25]     The facts of Jackson were that Mr Jackson collected magazines and arranged their distribution to other prisoners.   Officers searched his cell (which was single occupancy) and found a small amount of cannabis inside one of the magazines that had been dropped off by another inmate the previous day.  He was charged with an

offence under s 32(1)(g).

3      Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85]; Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34 at [49]-[51]; and Morgan v Chief Executive of Department of Corrections HC Auckland CIV-2004-404-70, 15 July 2005 at [119].

[26]     The principal issue before Randerson J was whether s 32(1)(g) created an offence of absolute liability, as the Crown contended.  After a careful and thorough analysis, the Judge rejected that contention, holding that the offence:

[38]     … is properly categorised as an offence of strict liability.   The prosecution need not prove mens rea, but the inmate has a defence if he or she is able to demonstrate (on the balance of probabilities) an absence of fault.4

[27]     More importantly, for the purposes of the present case, Randerson J expressly considered whether the ordinary presumption that mens rea was required to be proved in relation to any criminal offence was displaced.  Because of its centrality here, I set out his reasoning in full:

[29]      Assuming in the plaintiff’s favour that the words of the statute give no clear indication of legislative intent and in the absence of any previous judicial history, the issue is whether there are any factors sufficiently weighty to displace the ordinary rule that a guilty mind is an essential ingredient of liability under this provision.  Here, there are a number of factors tending to displace the ordinary requirement for proof of mens rea.

[30]      First,  the  Penal  Institutions Act  provides  for  a  regime  of  prison discipline that is separate from the criminal justice system. This point was made very clearly by McGrath J in Drew v Attorney General at [85] and [86]:

[85]     The Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system. It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living. Closely linked to the imperative of continuing order is the maintenance of the integrity of prison security, which includes security against the introduction and use of illegal drugs within the prison. It is a complaint in relation to the events of unauthorised use of drugs within the prison that gave rise to the disciplinary proceedings against Mr Drew which have become the subject of this appeal.

[86]      At the heart of the statutory scheme for prison discipline is the policy that is shared with many countries that responsibility for dealing with misconduct by prisoners should, in general, form part of the governmental function of prison management. In this context the Act contemplates that the principal burden of disciplinary adjudication should fall on those responsible for the operation of the prison.  That  is  achieved  by  providing  under  the Act  a  two  tier

4      In Mr Jackson’s case, even though he was housed in a single cell, it was accepted that there were opportunities for others to place items in it. The strict liability nature of the charge meant that the onus was on him to establish that reasonable steps were taken to ensure that unauthorised items were not placed or left in his cell.  Mr Jackson did not call evidence about taking any such steps. The Judge noted that there was no evidence that he had, for example, checked the magazines for contraband when they were returned. Mr Jackson’s application for review of the visiting Justice’s decision that the charge against him was proved was dismissed.

disciplinary process. At the first level the prison disciplinary system is administered by the senior officers in the prison, with the aim that the great majority of incidents will be dealt with at this level in a fair, timely and effective manner consistent with the need to maintain order. An important safeguard for prisoners who become subject to the process at this level is a right of appeal against any finding by the superintendent that a complaint concerning an offence against discipline has been proved and against the penalties that may consequently be imposed (s 35).

[31]      Secondly, a finding of guilt of a disciplinary offence does not result in a criminal conviction nor does it expose the prisoner to penalties beyond those already  indicated.  In  this  respect,  the  power  formerly  available  under s 33(3)(a) for Visiting Justices to postpone an inmate’s release date was repealed with effect from 29 June 2002.

[32]      Thirdly, I accept the submission made on behalf of the third defendant that the importance of controlling access to drugs in prisons is self-evident. The use of drugs in prison has obvious implications for discipline within the prison system as well as for the rehabilitation of offenders. Measures to control the use of drugs in prison including random drug testing programmes were provided for in s 36B to 36BF Penal Institutions Act and in Regulations 158 to 177 Penal Institutions Regulations. Regulation 174 provided that the IDU random testing programme was established for the purpose of permitting the assessment and appropriate management of inmates in relation to drug use and alcohol consumption. The regulation further  applied  that the programme provided to all inmates found guilty of disciplinary offences relating to drugs and alcohol.

[33]      Fourthly, the Penal Institutions Regulations make detailed provisions for dealing with an inmate’s property. An inmate may be issued with any authorised property under Regulation 113 but, as previously indicated, must acknowledge in writing that the inmate accepts full responsibility for the property and will comply with any special conditions: Regulation 114. The Superintendent  was  required  to  maintain  a  register  of  inmates’ property (Regulation 115) and property considered to be dangerous, a health hazard, or otherwise objectionable could be destroyed or otherwise disposed of. This detailed regime provides a clear indication of a statutory intention to impose strict control over inmates’ property and to grant quite extensive powers to the prison authorities to seize and destroy property of an objectionable nature. Most importantly, the regulations required inmates to take responsibility for property issued to them. Inmates are aware of the responsibilities imposed upon them in this respect.

[34]      Fifthly, the disciplinary offence at issue has parallels with the kind of public welfare regulatory offence discussed by the Court of Appeal in MacKenzie. As noted in Millar at 669, offences directed at conduct having a tendency to endanger the public or sections of the public may fall into this category.

[35]      In summary, these considerations point towards the categorisation of the offence at issue as one which does not require proof by the prosecution that the inmate knew the cannabis was in his cell. This suggests that the offence should be treated as one of strict liability enabling an inmate to escape

responsibility upon proof on the balance of probabilities that he or she had taken all reasonable steps to prevent or avoid the substance entering the cell.

[28]      The observations made at  [32] about the importance of controlling  and preventing drug use in prison can, of course, equally made in relation to offensive weapons.

Does Jackson apply where prisoners are double bunked?

[29]     Mr Greer contends that because Jackson related to single cell occupancy, it can be distinguished.  He submits that strict liability should not apply to two prisoners sharing a cell. The Visiting Justice was accordingly wrong, he says, to treat the offence as one of strict liability.

[30]     There are, however, a number of difficulties with this submission.

[31]     First, there is High Court authority in which Jackson has been applied in circumstances of double bunking.  In Taylor v The Visiting Justice at Arohata Prison a cell phone charger and battery were found in a shared cell.5   The Visiting Justice accepted that another prisoner had put the items there.  However, Mrs Taylor had the burden of establishing she had taken all reasonable steps to prevent the items being put or left in her cell, and that despite taking such steps, she still did not know the items were there.  No such evidence was given.  Wild J found no error in the Visiting Justice’s finding that the charge was proved.

[32]     Secondly, I am unable to see how the fact of double bunking could have any bearing on Randerson J’s conclusion that the offence does not require proof of mens rea.  His comprehensive analysis of that issue (with which I respectfully agree) applies equally in the circumstances of a shared cell.

[33]     In saying that, however, I acknowledge Mr Greer’s concern that the imposition on double bunked prisoners of a requirement to take all reasonable steps to prevent unauthorised items being placed in their cells, could mean that they are effectively

encouraged to recruit others to spy, and “nark” on their cellmates. Mr Greer says that

5      Taylor v The Visiting Justice at Arohata Prison HC Wellington CIV-2007-485-613, 24 July 2007.

this is in breach of international standards regarding prisoner treatment. And even if that were not the case the potential safety concerns seem obvious enough.

[34]     It may be that there are issues which could be explored in future about what steps can properly be regarded as “reasonable” in double bunking circumstances. But this is not that case. The screwdriver was found under Mr Greer’s mattress.  He gave no evidence before the hearing adjudicator or the visiting Justice.   He admitted knowing the screwdriver was there to the officer who searched the cell.  He did not deny it was his and he did not offer any explanation for it being there.  Although

Mr Greer cross-examined Corrections officer David Lumby, his focus was on the decision to charge both prisoners.6

[35]     Put simply, therefore, the undisputed facts of the present case fall clearly within the wording of s 128(1)(f).  Mr Greer undoubtedly had the improvised screwdriver in his cell, without the approval of an officer.  So, did his cell-mate.  Mr Greer has not raised any factual matter capable of going to absence of fault (either on his part or on Mr Berry’s) which gives cause for concern. There was no error in the visiting Justice’s application of Jackson or his finding that the charge against Mr Greer was proved.

Natural justice

[36]     At the hearing before the Visiting Justice, Mr Greer observed that Jackson applied to single cell occupancy and disputed its applicability to double bunked prisoners. He requested an adjournment so he could obtain legal advice on this point. Mr Greer also complained that he had only received a copy of Jackson two days prior, and had been “ambushed”.  The Visiting Justice refused the request on the bases that it would not make any difference and that Mr Greer had, in any event, had ample

opportunity to seek legal advice.

6      At the hearing, both the prosecutor and the Visiting Justice explained the nature of strict liability.

Further, the Visiting Justice asked Mr Greer if he had questions about the evidence itself, and if he wanted to give any evidence in support of his appeal. Mr Greer replied “no” to both.

[37]     The starting point is that a prisoner is entitled to seek legal advice and meet with an advisor prior to a disciplinary hearing. As far as practicable, a prison manager must facilitate such contact.7   The right to obtain legal advice is set out in the notice that prisoners are given.

[38]     In terms of the hearing itself, there is no general right to legal representation at a disciplinary hearing, although a prisoner may be represented in accordance with s

135 of the Corrections Act, in some circumstances – for example in complex cases where cross examination is required to put forward a defence.8   In Taylor, a request for representation, to enable Mrs Taylor to obtain advice on (among other things) “whether the offences were of strict or absolute liability” was denied by the Visiting Justice, although a half hour adjournment to obtain legal advice was granted.  Wild J found no error in this approach, because “the need to put forward her defence to each charge was obvious to the plaintiff.”9

[39]     In Mr Greer’s case, he received the notice setting out his right to seek legal advice  on  1  December  2016,  almost  two  weeks  before  the  first  hearing  on

13 December and over a month before the 9 January appeal.  He was made aware of the strict liability issue and Jackson at the 13 December hearing. There is no evidence that he wished or attempted to seek legal advice at that point.

[40]     Rather, the first time that Mr Greer requested legal advice was at the hearing of the appeal before the Visiting Justice.  The Visiting Justice treated this as a request for an adjournment rather than a request for representation, and Mr Greer does not appear to challenge the decision on this basis.

[41]     In any event, this is not a case where a defence was available on the facts. Neither legal advice nor representation would have assisted Mr Greer.  There was nothing relevant to explore through cross-examination.  An explanation of Jackson would not have changed that position. As in Taylor, the need to put forward a defence

(if one existed) was obvious; it was clear that Mr Greer understood that if he was not

7      Corrections Regulations 2005, sch 7, cl 19(b).

8      See Drew, above n 2.  Section 135 implemented this decision.

9      Taylor, above n 4, at [51].

able to demonstrate and absence of fault, the charge would be proved.  At the hearing, Mr Greer voiced his understanding of the concept of strict liability as it related to single cell occupancy as “somebody who didn’t take reasonable care”.

[42]     There has been no breach of natural justice here.

Policy and charging decision

[43]     Although Mr Greer’s application for judicial review was focused primarily on the visiting Justice’s decision, Mr Greer also seeks to mount a collateral challenge the Department of Corrections’ misconduct policy and charging decisions made pursuant to that policy.10   Although phrased in general terms in the Statement of Claim, the challenge appears to be to:

(a)      the  guidelines  in  the  Prisons  Operation  Manual  that  provide  that double-bunked inmates can each be charged with having the same unauthorised item in their cell or with possession of the same unauthorised item in specified circumstances; and

(b)the three specific decisions to charge him for possession of articles while double-bunked (the present proceedings and two other charges which have been deferred pending determination of these proceedings).

[44]     The Prison Operations Manual provides:

2.Where  an  unauthorised  item  is  located  in  a  cell  shared  by  two prisoners, both prisoners may be held responsible, and can be charged with committing an offence against discipline if:

a.    prison staff are unable to determine if only one prisoner was responsible for the item being located in the cell, and

b.    it is an area that both prisoners had control, and

c.    the prisoners did not report to prison staff that the unauthorised item was in the cell.

10     Paragraph  [25]  of  the  Statement  of  Claim  seeks  a  “review of  the  practices,  policies  and departments [sic] instructions that are being applied to lay the two referred charges”.

[45]     The  Crown’s  written  submissions  contended  that  the  guidelines  are  not amenable to review, on the grounds that they are simply guidelines which Corrections Officers may follow at their discretion. At the hearing before me, however, Ms Carrad rightly retreated somewhat from that position.  Guidelines are, of course, potentially amenable to review on a number of grounds.  They should be consistent with any relevant statute and they must not improperly fetter the discretion of the relevant decision-maker.   In other circumstances, they may also give rise to a legitimate expectation.

[46]     Here, however, there is nothing to suggest that the guidelines, or actions taken pursuant to them, can be impugned on that basis.  The guidelines are consistent with my own reading of s 128(1)(f), discussed above. Nor can there be any suggestion that officers’ discretion has been unlawfully fettered; the guidelines only state that both prisoners sharing a cell “can” be charged if the specified pre-requisites are met.

[47]     As far as the charging decisions themselves are concerned, Ms Carrad referred me to the Court of Appeal’s observation in Osborne v Worksafe New Zealand that:11

… a stronger case for restraint exists where the prosecutorial decision is to prosecute. The risk of collateral interference with the criminal justice system is greater. The rights or wrongs of the prosecution, so far as the culpability of its subject are concerned, will be established by the conclusion of the criminal case. Mechanisms internal to the criminal jurisdiction are available, such as a stay of prosecution or discharge under s 147 of the Criminal Procedure Act. Collateral challenge serves little useful purpose.12

[48]     As Ms Carrad pointed out, the Court of Appeal stressed the distinction between justiciability – whether a decision is amenable to review at all – and restraint – which is about the intensity of review and availability of relief.13     Plainly, although prosecutorial decisions can be reviewed, the threshold for Court intervention is very high, particularly when the decision is a positive one in favour of prosecution, because

of the safeguards inherent in the process.

11     Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 at [36] (emphasis in original).

12     Although that decision has since (last week) been overturned, the Supreme Court did not deal with this justiciability point. Rather the judgment is concerned with the substantive question of whether there was an unlawful agreement not to prosecute in return for payment: Osborne v Worksafe New Zealand [2017] NZSC 175.

13 At [35].

[49]     In any event, the basis on which Mr Greer seeks to challenge the charging decisions is essentially the same as the grounds for his substantive challenge, namely that  double-bunking effectively precludes  a charge under s  128(1(f),  or at  least warrants a fresh interpretation of that provision.

[50]     I have already found that that substantive challenge cannot be sustained.  The issue certainly does not approach the “exceptional” circumstances in which a charging decision may warrant the scrutiny of the Courts.14

Result

[51]     The application for judicial review is dismissed.

Rebecca Ellis J

14     Osborne, above n 10 at [35] and [45].