Greer v Chief Executive of the Department of Corrections
[2019] NZHC 2911
•7 November 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-873
[2019] NZHC 2911
BETWEEN ALAN IVO GREER
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Respondent
THE VISITING JUSTICE AT RIMUTAKA PRISON
Second Respondent
Hearing (via AVL): 4 November 2019 Counsel:
Applicant in person
D L Harris for First Respondent
Judgment:
7 November 2019
JUDGMENT OF CHURCHMAN J
Introduction
[1] By statement of claim filed on 16 October 2017, the plaintiff commenced judicial review proceedings against the decision of a Visiting Justice at the Rimutaka Prison (Visiting Justice Humphrey) dated 21 August 2017.
Background
[2] By way of background, the plaintiff was, at the material times, an inmate at Rimutaka Prison. As such, he was subject to the Corrections Act 2004 (the Act) and the Corrections Regulations 2005.
GREER v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2911
[7 November 2019]
[3] The first respondent is required under s 123 of the Act to have a drug and alcohol strategy. Section 124 authorises a prisoner to be required to submit to any prescribed procedure for the purposes of drug testing, with s 124(2)(b) providing for a random drug testing programme. A variety of offences against discipline are provided for in s 128.
[4] Rimutaka Prison has implemented a procedure for random drug testing of inmates.
[5] From the contents of the statement of claim that the plaintiff filed in this matter, it seems that he is opposed in principle to the practice of random drug testing, claiming that it is part of a “regime of brutalising prisoners with systemic culture of cover-up and corruption to conceal [the prison authority’s] atrocities”.
[6] In 2017, the plaintiff was subject to three separate random drug tests. These occurred on 21 March 2017, 10 April 2017, and 19 June 2017.
[7] On each occasion, as a result of the plaintiff’s refusal to submit to a random drug test, he was charged with an offence against the first respondent’s internal disciplinary system.
[8] At this point, it is necessary to describe some elements of the prison disciplinary system. Section 5(1) of the Act has as its purpose to “improve public safety and contribute to the maintenance of a just society”. That purpose is achieved in various ways, including providing for Corrections facilities to be operated in accordance with rules and regulations made under the Act. Section 6(1)(f) of the Act provides that the Corrections system must ensure the fair treatment of persons under control or supervision.
[9] Allegations of breach of prison discipline are dealt with by a “two-tier” system and can be heard either by a hearing adjudicator or a Visiting Justice. The penalties that may be imposed by a Visiting Justice are greater than those that may be imposed by a hearing adjudicator.
[10] The discipline system under the Act is very similar to the system in place under the prior legislation which it replaced.1
[11] Although all District Court Judges may be Visiting Justices, a Visiting Justice does not have to be a District Court Judge, and some are Justices of the Peace or barristers and solicitors.
[12] The procedures followed in a hearing before Justices of the Peace are not identical to those followed in a Court. This was explained by McGrath J in the case of Drew v Attorney-General where he said:2
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.
[13]McGrath J went on to say:3
By comparison with the criminal justice process the disciplinary system provides for significantly less severe maximum penalties than those dealing with equivalent conduct under criminal statutes.
[14] Although these comments were made in relation to the 1954 Act, the Court of Appeal has confirmed that they are also relevant to the Act.4
[15] As to the process that is to be followed in relation to disciplinary cases, the Courts have indicated that:5
Hearings at this level are not expected to be conducted with the same procedural requirements as a criminal trial. … The focus is on whether the proceedings were fair.
1 The Penal Institutions Act 1954.
2 Drew v Attorney-General [2002] 1 NZLR 58 at [85].
3 At [89].
4 See Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34 at [50].
5 Mitchell v Chief Executive of the Department of Corrections [2017] NZHC 2091 at [31].
The disciplinary charges
[16] The three charges in relation to refusing a random drug test were heard by a Visiting Justice. In the case of the first two charges, it was Visiting Justice Pratley, and in relation to the third charge (No 373243), it was Visiting Justice Humphrey.
[17] Visiting Justice Pratley convened a disciplinary hearing on 24 April 2017 in respect of the first two disciplinary charges. He adjourned that hearing, though, the disciplinary hearing in respect of those charges was reconvened before him on 7 August 2017. The June misconduct charge and two other unrelated disciplinary charges involving Mr Greer were also called before Visiting Justice Pratley that day. The transcript says, in relation to the June charge:
Well, on that basis there is the PRN issue. I wonder if it would be sensible to adjourn that as well and let it lie with the other two. Until that issue is resolved that’s adjourned.
[18] The “PRN issue” referred to is the claim raised by Mr Greer that he had two primary identity numbers (PRNs) and that both numbers were in the pool from which the random drug testing candidates were identified. He claimed this meant that he had double the chance of being the subject of a random test, and that this was unlawful.
[19] The specific decision that the plaintiff has applied to judicially review is one taken by Visiting Justice Humphrey at Rimutaka Prison on 21 August 2017 in respect of the third charge.
The evidence
[20] The evidential record as to exactly what happened in relation to the third disciplinary charge is incomplete but it is clear that after it was adjourned by Visiting Justice Pratley on 7 August 2017, it was called (along with another unrelated misconduct charge involving Mr Greer) before Visiting Justice Humphrey at the disciplinary hearing at Rimutaka Prison on 21 August 2017.
[21] The notes of the 21 August 2017 hearing record a dialogue between Mr Greer and the Visiting Justice where Mr Greer was arguing that this particular charge needed to go back before Visiting Justice Pratley “because he’s familiar with a lot of the
previous documents”. The notes record the Visiting Justice indicating that the charge in respect of the June allegation was before him and he intended dealing with it.
[22] The notes record that evidence was given by a witness, Tony Bailey, who said he was familiar with the Department’s integrated offender management system computer database (IOMS) and the means by which a prisoner was allocated a primary identity number. He confirmed that while a prisoner’s PRN may change from time to time,6 a prisoner could only have one PRN at any one time. He was cross-examined extensively by Mr Greer on this evidence.
[23] Mr Bailey’s giving of evidence was interrupted to allow him to go and check whether there were any other identities in the IOMS system that could be run simultaneously with Mr Greer’s primary identity. Having made such an investigation, Mr Bailey was re-called as a witness and confirmed that Mr Greer had only one primary identity in the system. Mr Bailey was then cross-examined further by Mr Greer on this aspect of his evidence. Mr Greer did not call any evidence in defence of the charge.
[24] Visiting Justice Humphrey found the charge proved and imposed five days of cell confinement and 21 days loss of privilege.
[25] A consequence of the charge being established was the imposition of Identified Drug User (IDU) status. The imposition of IDU status has negative consequences for a prisoner, including liability for more frequent random searches. That liability lasts for 12 months.
[26] The March and April misconduct charges were called before Visiting Justice Pratley on other occasions before coming back before him on 10 November 2017. Also before the Visiting Justice that day, was another unrelated disciplinary charge involving Mr Greer.
6 The reasons could be that there were different warrants with different numbers outstanding at the time of the reception of the prisoner to the prison, or a prisoner may change their name by deed poll necessitating a change in PRN.
[27] Tony Bailey was called to give evidence again and gave similar evidence to that which he had given before Visiting Justice Humphrey on 21 August 2017. He was again subject to extensive cross-examination by Mr Greer. Again, the Visiting Justice accepted Mr Bailey’s evidence and was satisfied that Mr Greer’s name was not in the system twice and there was no unfairness in the random selection of his name.
The proceedings
[28]The judicial review proceedings relate only to the third charge (No 373243).
[29]The statement of claim alleges four reviewable errors:
(a)that charge No 373243 “was involved in being previously part-heard where another Visiting Justice was awaiting further information/evidence”. It was alleged no other Visiting Justice could hear this charge other than Visiting Justice Pratley;
(b)that Visiting Justice Humphrey erred in failing to adjourn the matter to “allow access to referred caselaw”;
(c)that an adjournment should have been granted to allow the defendant to obtain evidence previously submitted to Visiting Justice Pratley; and
(d)that Visiting Justice Humphrey had “deterred and denied the plaintiff the right and opportunity to present evidence or defence by him intentionally indicating bias and hostility to deter the plaintiff from providing any defence”.
[30]The plaintiff sought the remedies of:
(a)quashing the decision of Visiting Justice Humphrey of 21 August 2017 and a dismissal of both charges;
(b)public law compensation for an amount no less than $10,000; and
(c)separate damages for “the mental and emotional harm suffered from being forced to participate in a corrupt hearing, before a bias [sic] and bullying Visiting Justice” of no less than $10,000.
Interim relief
[31] The plaintiff sought interim relief. That application (which principally related to the imposition of 12 months of IDU status) came before Simon France J on 26 April 2018. At that stage, the substantive judicial review fixture had been set down for 15 August 2018.
[32] The application for suspension of the IDU status was granted with Simon France J noting that if the judicial review proceedings were unsuccessful, then the IDU status would be re-imposed for 12 months.7
[33] At [11] in the decision, Simon France J noted that any delay in resolving the substantive proceedings would provide Mr Greer with an incentive not to advance matters. He said that the interim relief was subject to a requirement that Mr Greer comply with the timetable already set in place, and that if this was not complied with, the respondent could seek leave to revisit the interim relief.
[34] The matter took some 15 months longer than envisaged at the time of the order of Simon France J to actually get to hearing and the interim relief has continued in place.
The adjournments
[35] On 6 August 2018, Mallon J issued a minute noting that Mr Greer had applied for an adjournment of the hearing scheduled for 15 August 2018. This was on the basis that he could not properly prepare and present his case without proper computer access arrangements. The minute noted that the issue of access to a computer was the subject of separate proceedings issued by Mr Greer (CIV-2017-485-372). On the basis that those proceedings were still on foot, Mallon J granted the adjournment application.
7 Greer v Chief Executive of the Department of Corrections [2018] NZHC 813 at [8].
[36] The minute of Mallon J also noted that Mr Greer had challenged the use of AVL for the hearing and indicated that if Mr Greer was to appear in person he would be required to deposit a sum sufficient to pay the expenses of bringing him before the Court pursuant to s 65(4) of the Act. She made an order that, as Mr Greer did not wish to have the hearing proceed by way of AVL, he was to attend in person but must first deposit a sum sufficient to pay the expenses of bringing him to Court.
[37] The matter came before the Court by way of teleconference on 11 February 2019. Dobson J issued a minute directing that counsel for the respondent, Ms Harris, file a further memorandum by 18 April 2019 recording the state of progress in proceedings CIV-2017-485-372.
[38] The matter came back before Grice J on 6 May 2019 and she adjourned the proceedings until 30 June 2019 for a further progress report on CIV-2017-485-372.
[39] On 7 May 2019, the proceedings in CIV-2017-485-372 were struck out on the basis that Mr Greer had repeatedly ignored judicial directions and that the proceedings were untenable and had no prospect of success.8
[40] These proceedings were called before Cull J by way of teleconference on 31 July 2019 and she issued a minute dated 1 August 2019. That minute recorded that, if Mr Greer wished to attend the hearing in person rather than by way of AVL link, he was required to pay the sum of $273. Mr Greer was directed to file and serve his submissions in this matter by 31 August 2019, and to confirm whether he wished to proceed by AVL or attend the hearing by 14 October 2019.
[41] Mr Greer failed to comply with either of these directions but sought an adjournment. By a minute dated 1 October 2019, Simon France J refused the adjournment
[42] At the commencement of the hearing on 4 November 2019, Mr Greer sought a further adjournment which was declined.9
8 Greer v Chief Executive of the Department of Corrections [2019] NZHC 980.
9 Greer v Chief Executive of the Department of Corrections [2019] NZHC 2854.
[43] There is nothing unusual about Mr Greer seeking adjournments. Of recent years, Mr Greer has been very active as a self-represented litigant. The Courts have noted that a characteristic of his litigating history is “something of a pattern of delays and failing to file submissions”.10
[44] When Mr Greer’s application for an adjournment in this matter on 4 November 2019 was declined, he refused to participate any further in the hearing. He had not filed any evidence in support of his judicial review application, nor any submissions. The Court was therefore left to address the issue on the basis of the common bundle of documents which had been prepared and filed by counsel for the first respondent and the first respondent’s submissions.
Analysis
[45] The major factual issue that Mr Greer’s judicial review application rests on was that he effectively had two PRN identities in the system, with the result that he was twice as likely to be called upon to provide a random sample, thereby rendering the resulting disciplinary process unfair.
[46] It is clear from the evidence of Mr Bailey, which was accepted by both Visiting Justice Pratley and Visiting Justice Humphrey, that Mr Greer does not have two PRN identities in the system. Accordingly, there was nothing unfair in relation to the number of times that Mr Greer was obliged to provide a random sample.
[47] The claim that charge No 373243 had been “part-heard” by Visiting Justice Pratley and therefore Visiting Justice Humphrey was unable to deal with it is factually incorrect. It was simply adjourned by Visiting Justice Pratley on the only occasion he dealt with it. He did not embark upon a hearing as to its merits and there was no restriction on the Visiting Justice who could hear it.
10 Greer v Chief Executive of the Department of Corrections [2017] NZHC 2980 at [11], referring also to 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.
[48] In any event, Mr Greer suffered no disadvantage in having Visiting Justice Humphrey deal with the matter. Exactly the same evidence about Mr Greer’s PRN identity was given by Mr Bailey at both hearings.
[49] In relation to the claim that Visiting Justice Humphrey erred in failing to adjourn the matter to “allow access to referred case law”, the reason that Visiting Justice Pratley adjourned the first two disciplinary charges was for evidence on the issue of whether or not Mr Greer had two PRN identities in the system. It was not to “access referred case law”.
[50] The issue of whether or not the hearing of charge No 373243 needed to be before Visiting Justice Pratley was clearly raised by Mr Greer at the commencement of the hearing on 21 August 2017. The reason advanced by Mr Greer at that time was that Visiting Justice Pratley was familiar with a lot of the previous documents. Visiting Justice Humphrey did not accept that familiarity with documentation in relation to the other charges necessitated that the two charges before him that day (there was another disciplinary charge unrelated to charge No 373243) be adjourned. That finding was correct. Visiting Justice Humphrey had available to him all the relevant evidence required for him to adjudicate on the two charges, including the evidence of Mr Bailey on the PRN issue. No other documentation or evidence was required or relevant.
[51] In relation to the claim that Visiting Justice Humphrey had “deterred and denied the plaintiff the right and opportunity to present evidence of defence”, Mr Greer did not present evidence of his own at either the hearing before Visiting Justice Pratley, or the hearing before Visiting Justice Humphrey. In both hearings, he extensively cross-examined Mr Bailey about his claim that he had two PRNs in the system. There is no indication that he raised any other defence other than one of unfairness arising from what he said was the enhanced probability of him having his name drawn for a random test.
[52] The claim in the statement of claim that Visiting Justice Humphrey displayed “bias and hostility to deter the plaintiff from providing any defence” is completely unfounded.
[53] The applicant has pleaded that Visiting Justice Humphrey “refused and or failed to recuse himself” from the hearing of 21 August 2017. There is no evidence that, at the hearing, Mr Greer asked him to recuse himself. Neither is there any basis for recusal. This argument for recusal appears to rely on the fact that Mr Greer had previously sought to judicially review a decision of Visiting Justice Humphrey.11 Those judicial proceedings were unsuccessful, but, even if they had succeeded, that would not have been a basis for recusal. If it were otherwise, then any prisoner who did not wish to have a particular Visiting Justice adjudicate on any disciplinary proceeding involving them would merely have to commence judicial review proceedings against one of their decisions.
[54] Before a judicial officer should recuse him or herself, there must be some evidence of actual or apparent bias. The Supreme Court said:12
[11] It is well-established that apparent bias arises only if a fair-minded and informed lay observer might reasonably apprehend there is a real and not remote possibility that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The observer will not adopt the perspective of a party seeking recusal unless objectively it is a justified one. It is necessary for those making decisions on whether there is apparent bias in a particular situation first to identify what is said that might lead a judge to decide the case other than on its merits and, secondly, to evaluate the connection between that matter and the feared deviation.
[55]Judges should not lightly recuse themselves without sufficient cause.13
[56] In the present case, Visiting Justice Humphrey was obliged to discharge his duty as a Visiting Justice, and there is no basis upon which a fair-minded and informed observer might apprehend that there was a real possibility of him not being able to bring an impartial mind to the matter.
Conclusion
[57] No grounds for judicial review have been made out. Accordingly, the application is dismissed.
11 See Greer v Chief Executive of the Department of Corrections & The Visiting Justice at Rimutaka Prison CIV-2017-485-121.
12 Siemer v Heron [Recusal] [2011] NZSC 116, [2012] 1 NZLR 293 (citation omitted).
13 A (SC 106/2015) v R [2016] NZSC 31 at [16].
[58]The order granting interim relief is now discharged.
[59]Costs are reserved.
Churchman J
Solicitors:
Crown Law Office, Wellington for Respondent cc: A I Greer
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