Hudson v Attorney-General
[2024] NZHC 4000
•20 December 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-124
[2024] NZHC 4000
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of decisions made under the Corrections Act
2004 and the Corrections Regulations 2005
BETWEEN
STEPHEN THOMAS HUDSON
Applicant
AND
THE ATTORNEY-GENERAL
Respondent (sued in respect of the Department of Corrections)
Hearing: 27 November 2024 Appearances:
Applicant in person
S B McCusker and G P Fitzgerald for Respondent
Judgment:
20 December 2024
JUDGMENT OF McHERRON J
[1] Stephen Hudson is a low security prisoner serving a life sentence for murder at Whanganui Prison. In March 2023, he was transferred from a mainstream low security unit, Te Whakataa 1, to Southwood Unit. Southwood is an 80 bed “harmony unit” for low security and low-risk prisoners. Mr Hudson says that, in his 22 years in jail, he has never been in such a “privileged” unit.
[2] Unfortunately for him, Mr Hudson’s stay in Southwood was short-lived. On 12 June 2023 he was transferred to the Te Waimarie Unit (a high security and remand un`it also known as the East Wing), then to the Intervention and Support Unit, then to
HUDSON v THE ATTORNEY-GENERAL [2024] NZHC 4000 [20 December 2024]
the Assessment Unit (a high security unit) and then, on 25 July 2024, to Te Whakataa 2, another low security unit.1
[3] The Department of Corrections (Corrections) transferred Mr Hudson out of Southwood due to tensions between him and other prisoners. In this proceeding, Mr Hudson seeks judicial review of the decisions relating to the evidential basis for his removal from Southwood Unit and Corrections’ refusal to move him back there.
[4] When Mr Hudson commenced this proceeding, on 22 January 2024, he was still housed in a high security unit. For that reason, much of his claim concerns the detriments he was facing as a low security prisoner being housed in a high security unit. That aspect of Mr Hudson’s claim no longer applies going forward given that he is now housed in a low security unit again. However, Mr Hudson remains discontented with Corrections’ refusal to let him return to Southwood, as well as with the discipline and review processes surrounding these decisions.
[5] Mr Hudson seeks 12 declarations in his statement of claim. In its response to Mr Hudson’s claim, Corrections treated these declarations as Mr Hudson’s grounds of review. In general, Mr Hudson considers that the following decisions were not made in a fair and reasonable way and that he did not have access to an effective complaints procedure in respect of them, contrary to the principle guiding the operation of the Corrections system set out in s 6(1)(f)(ii) of the Corrections Act 2004 (Act). In outline, Mr Hudson challenged his removal from Southwood and Corrections’ refusal to return him there, and inadequacies in the complaints and hearing processes for determining his guilt or innocence concerning allegations made against him by other prisoners.
[6] In summary, Mr Hudson’s more specific concerns relate to Corrections allegedly:
(a)“allowing and encouraging a regime to exist where the say-so of a prisoner or prisoners is considered enough evidence without any
1 The evidence is that the Department of Corrections (Corrections) made several offers to house Mr Hudson in a low security unit sooner. However, for various reasons, those offers were not acceptable to Mr Hudson. Further, Corrections declined Mr Hudson’s requests to transfer to other prisons because of lack of capacity, and Mr Hudson not giving reasons for the desired transfer.
corroboration to take punitive action against another prisoner”, which Mr Hudson says is a breach of his legitimate expectation that the Department protect him from the “machinations of other prisoners”;
(b)failing to formally charge him in respect of the allegations made by those prisoners and its failure to proceed with charges that Corrections laid on his insistence;
(c)failing to provide Mr Hudson with adequate information to allow him to adequately prepare a defence to those charges;
(d)failing to provide him with information requested in Mr Hudson’s letter of 25 June 2023 or with other information he requested;
(e)failing to proceed with charges against Mr Moody for making false allegations against Mr Hudson including failing to investigate by viewing camera footage relating to Mr Moody’s allegations;
(f)failing to allow Mr Hudson to make a complaint to the Visiting Justice in breach of s 19(4)(b) of the Act and Mr Hudson’s legitimate expectation he would be allowed to make that complaint;
(g)failing to adequately respond to Mr Hudson’s complaints or provide an effective complaints procedure.
[7] As well as declaratory relief, Mr Hudson seeks compensation for being housed in high security while being a low security prisoner, for loss of earnings and “costs and incidentals”.
[8] Broadly, the main issue is whether the Department of Corrections acted unlawfully either in breach of applicable statute law or regulations, or in breach of the duty to act consistently with the principles of natural justice, in relation to the decision to remove Mr Hudson from Southwood Unit.
Factual background
[9] Before I turn to address that issue, however, I will set out the factual background to Mr Hudson’s claim in more detail.
[10] The prisoner tensions leading to Mr Hudson’s removal from Southwood first arose in or around May 2023, when Mr Hudson became concerned that the fillings in the vegetarian sandwiches he received in prison were inconsistent with Corrections’ national prison menu.
[11] Charles Boylin, the principal kitchen instructor at Whanganui Prison, began using alternatives for certain salad ingredients. This was due to the impact of storms in Northland and on the East Coast on the cost and availability of ingredients such as lettuce. Of particular concern to Mr Hudson was Mr Boylin’s decision to replace the lettuce-based salad commonly featuring in sandwiches with a coleslaw-based salad.
[12] Coleslaw had already featured in the national menu as a sandwich ingredient. Moreover, the prison’s industries manager, Julie Gowan, was comfortable that coleslaw still qualified as a “salad” for the purposes of consistency with the national menu.2 Ms Gowan also pointed out that replacements in situations such as this were at the discretion of prison staff such as Mr Boylin.
[13] Mr Boylin deposed that after the COVID-19 pandemic, the lettuce that had been previously used became more expensive and so the prison changed the standard filling from the lettuce-based salad to a coleslaw-based salad.
[14] Mr Hudson complained informally to Mr Boylin about coleslaw being included in his sandwiches, instead of a lettuce-based salad. He met with Mr Boylin, who told him this was an operational choice due to unrealistic price increases and inconsistent supply of lettuce. Mr Hudson also followed this up with a formal internal “PC.01” complaint, about his sandwiches having lettuce substituted with coleslaw.
2 I also note that the definition of coleslaw in the Oxford English Dictionary is consistent with Ms Gowan’s observation. The definition states that the word coleslaw is derived from the dutch koolsla, a reduced form of “kool-salade” or cabbage salad: Oxford English Dictionary, s.v. “cole- slaw (n.), Etymology,” July 2023, On 15 May 2023, Mr Hudson phoned the Office of the Inspectorate.3 The Office of the Inspectorate investigated Mr Hudson’s complaint by consulting with relevant personnel at Whanganui Prison and considering relevant sections of the Prison Operations Manual. Principal Inspector Rochelle Halligan wrote to Mr Hudson on 24 May 2023 with a detailed explanation of the reasons for the changes in sandwich salad fillings, including the recent weather events in Northland and the East Coast having a considerable impact on cost and availability of fresh produce. This had driven the principal instructor to consider alternatives for salad ingredients, with the obvious replacement being coleslaw. The principal inspector’s letter recorded that coleslaw was already featured in the national menu as a sandwich ingredient, so it was not considered to be a significant change. The main difference recorded between coleslaw and other forms of salad is the presence of shredded cabbage in coleslaw, whereas salads do not necessarily contain cabbage.
[16] Based on the information provided to her, Ms Halligan concluded “that Whanganui Prison’s response was appropriate given the fiscal constraints and availability of seasonal produce at this time.”
[17] However, having failed to have his complaint about sandwich fillings upheld through official channels, Mr Hudson then changed tack and began harassing another prisoner, Bruce Moody, who worked in the prison kitchen as a “specials cook”. Mr Moody’s job was to make the sandwiches for prisoners with dietary requirements. Mr Hudson demanded Mr Moody make sandwiches to his preference, without coleslaw.
[18] Mr Moody was required to make sandwiches in accordance with the national menu, which has a recipe for the salad included in the sandwiches and is established by Corrections for all prisons across the country. Mr Moody was anxious that he could not meet Mr Hudson’s demands. Mr Moody told Mr Boylin that Mr Hudson was harassing him about the sandwiches he made. Mr Boylin noticed a deterioration in Mr Moody’s demeanour. Mr Moody said he no longer wanted to work in the kitchen.
3 The Office of the Inspectorate is established under the Corrections Act 2004 as a dedicated complaints resolution investigation and assurance function. The Office is independent of prison management and its staff are independent of the activities they review.
[19] On or around 8 June 2023, a sandwich was found lying on the floor in front of Mr Moody’s cell door. This sandwich had belonged to Mr Hudson who, Mr Moody said, had thrown it in his cell.
[20] Mr Hudson’s account of what happened is that he dropped the sandwiches in Mr Moody’s jacket pocket as he walked past saying “you may as well eat these because I won’t”. Mr Hudson says it was Mr Moody who threw the sandwiches on the ground.
[21] Either way, Mr Hudson’s interactions with Mr Moody about sandwich fillings led to Mr Moody advising Corrections officers that he was being targeted by another prisoner who was blaming him for what he was required to put in the sandwiches. This reached the point where Mr Moody was beginning to fear for his wellbeing and considered resigning from his job in the kitchen.
[22] When principal corrections officer David Storr started working in Southwood Unit in May 2023, other staff, including Mr Boylin, advised him that there were increasing tensions between Mr Hudson and Mr Moody. Mr Storr similarly received concerns about Mr Hudson's behaviour towards Mr Moody from garden staff, as well as the impact of his behaviour on them.
[23] In early June 2023, Mr Storr met with Mr Moody and Mr Hudson, and informed Mr Hudson of the allegations against him. Although Mr Hudson denied these, Mr Storr says he saw first-hand the impact Mr Hudson's conduct was having on Mr Moody. He warned Mr Hudson that if he continued this behaviour he would be moved out of Southwood.
[24] On 12 June 2023, Mr Moody told other kitchen instructors about an incident occurring over the weekend on 11 June 2023 where Mr Hudson approached his cell and threatened to assault him if he continued to put coleslaw in his sandwiches. That morning, Mr Storr had spoken to Mr Hudson about his conflict with Mr Moody and told him that it needed to stop. Later that day, Mr Storr received a call from Mr Boylin about new allegations Mr Moody had made to kitchen staff.
[25] Mr Storr spoke with Mr Moody in his office along with Senior Corrections Officer Evan Gussy. Mr Moody told Messrs Storr and Gussy that the previous day Mr Hudson had threatened to assault him if he put coleslaw in his sandwiches, and that, on several occasions, Mr Hudson had thrown sandwiches he had made into his cell. Mr Storr then spoke to other prisoners in Southwood, who confirmed Mr Moody's version of events.
[26] After consultation with Mr Gussy and Alan Henderson, the Residential Manager of the Prison's Low Security Units, Mr Storr considered it was in the best interests of those in Southwood to move Mr Hudson. This would be to ensure the safety of Mr Moody and the other prisoners in the unit. Mr Storr based this decision on the 11 June incident as well as his awareness of the previous history of Mr Hudson's conduct towards Mr Moody.
[27] Mr Henderson agreed with Mr Storr this step was necessary. He noted the importance of maintaining a zero-tolerance policy towards such conduct in Southwood. Mr Henderson later relayed this information to Whanganui Prison’s Director, Reti Pearse, who considered Mr Hudson's removal from Southwood to be appropriate and necessary.
Applicable legal framework
[28] The overall purpose of the Corrections system is to improve public safety and contribute to a just society.4 Relevantly, the Act provides for the achievement of this purpose by ensuring sentences are administered in a “safe, secure, humane, and effective manner”.5 Corrections facilities must also be operated in accordance with rules set out in the Act and regulations that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners.6
4 Corrections Act 2004, s 5.
5 Section 5(1)(a).
6 Section 5(1)(b).
[29] Various provisions in the Act set out functions of the Chief Executive of Corrections, prison managers, and prison officers, that expressly concern the safe custody and welfare of prisoners.7
[30] Further, at common law, Corrections owes a duty to its prisoners to take reasonable care to keep them safe and protect them from harm at the hands of other prisoners.8 The duty applies where there is a conspicuous and specific risk to another prisoner.9 Fulfilment of the duty to take reasonable care for prisoners’ safety includes taking reasonable steps to mitigate known risks.10
Was Corrections wrong to rely on evidence from other prisoners?
[31] Mr Hudson submits it is unreasonable for Corrections “to allow and encourage a regime to exist whereby the say-so of other prisoner or prisoners is considered enough evidence without any corroboration to take punitive action against another prisoner”. Mr Hudson also submits that he had “a legitimate expectation that the Department would view any camera footage that would confirm or deny the allegations” made against him by other prisoners, including Mr Moody.
[32] As Mr McCusker and Mr Fitzgerald identified on behalf of Corrections, Mr Hudson’s primary challenge is to the evidential basis for his removal from Southwood. Mr Hudson is concerned that the decision to transfer him was based on the word of “three convicted criminals” without appropriate consideration of the potential unreliability of their evidence. Mr Hudson quotes inconsistencies in those prisoners’ statements, and he says that Mr Storr should have reviewed the CCTV footage of the alleged incidents between himself and Mr Moody. Mr Hudson considers that decision-making of this kind “encourages prisoners to lie and manipulate and undermines the purposes of the [Corrections Act] and the principles guiding the Corrections system”. He further submits that this “undermines the good order and discipline of the [Southwood Unit] and the wider prison system”.
7 Sections 8(1)(b), 12(b), 14(1)(a).
8 Morgan v Attorney-General [1965] NZLR 134 (SC) at 137; A v Attorney-General [2020] NZHC 3401 at [92].
9 A v Attorney-General, above n 8, at [93].
10 A v Attorney-General, above n 8, at [93].
[33] Mr McCusker acknowledged that there is little case law on the transfer of prisoners from one part of a prison to another. Most of the cases relate to segregation decisions. However, Mr McCusker submitted that prisons are dynamic environments where decisions need to be made on the spot and that the movement of a prisoner from one unit to another is part of day-to-day management of the prison which involves “judgment as to the risks posed and the measures available to deal with that”.11
[34] Mr McCusker sought to distinguish decision-making in which a charge was determined against a prisoner or a punishment imposed either in form or substance from decision-making involving judgment as to the risk posed to the good order and discipline of the prison including whether a particular situation could be addressed by transfer of a prisoner to another part of the prison. Such a distinction was maintained by the United Kingdom Supreme Court in R (On the application of Bourgass) v Secretary of State for Justice.12 In that case it was accepted that the latter type of decision was not a disciplinary proceeding.
[35] I agree with Corrections’ submission that Mr Hudson was not entitled to require proof to his satisfaction of the allegations made against him by other prisoners before Corrections decided to transfer him from Southwood. To require Corrections to delay any operational decision regarding removal of a prisoner to protect the safety of another prisoner until a formal process could take place to test any allegations would be hopelessly impractical and would create unacceptable risk of Corrections breaching its statutory and common law obligations to protect the safety of prisoners. Rather, all that is required for prison officers to take this step is credible and reasonable evidence of a conspicuous and specific risk, to allow it to take the risk mitigation steps that are necessary.13
11 Bai-Reedy v Attorney-General [2024] NZHC 2433 at [51], citing Stevens v Chief Executive of the Department of Corrections [2023] NZHC 1051 at [29]. I also note in Shaw v Chief Executive of the Department of Corrections [2024] NZHC 2980, Radich J declined to make an urgent interim order or grant a writ of habeas corpus for a prisoner who had been transferred from one unit to another.
12 R (On the application of Bourgass) v Secretary of State for Justice [2015] UKSC 54, [2015] 3 WLR 457 at [92].
13 Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 450 at [42]; A v Attorney-General, above n 8, at [92]–[93].
[36] If an applicant could establish complete lack of evidence to support an impugned transfer decision, then that could amount to grounds for reviewing the decision.14
[37] However, Mr Hudson has not established an absence of probative evidence in respect of the decision to transfer him from Southwood.
[38] I find that Mr Storr appropriately relied on the accounts of other prisoners, including Mr Moody, in reaching his decision. The fact that those individuals may be “convicted criminals” does not mean that their evidence or allegations can be ignored, just as it does not mean that Mr Hudson’s complaints can be ignored.
[39] Moreover, Mr Storr’s assessment of the accounts of those prisoners was also informed by other contextual evidence, it was not solely based on the account of Mr Moody, but relied on:
(a)Evidence from prison kitchen staff in June 2023 relating to Mr Hudson’s conduct towards Mr Moody, as well as observations of Mr Moody’s demeanour. There were allegations of threats by Mr Hudson before 11 June 2023. And Mr Boylin had several conversations with Mr Storr during this period regarding Mr Moody’s welfare.
(b)Mr Storr also received similar statements of concern from prison garden staff (elderly prisoners assigned to work in the gardens) about Mr Hudson’s behaviour towards Mr Moody, as well as the impact of Mr Hudson’s behaviour directly on them.
(c)Mr Storr expressed his own personal observations of the impact of Mr Hudson’s conduct towards Mr Moody. Mr Storr described raising his concerns directly with Mr Hudson and warned him that he would be removed from Southwood Unit if his conduct continued.
14 Stevens v Chief Executive of the Department of Corrections, above n 11.
(d)After receiving reports that Mr Hudson had made further threats to Mr Moody on 11 June 2023, Mr Storr made enquiries of Mr Moody, who advised that Mr Hudson had made threats to him the day before. Mr Storr also received corroborating accounts from two other prisoners.
[40] It was based on this fuller context that Mr Storr decided to move Mr Hudson, to ensure the safety of Mr Moody and other prisoners. Mr Storr consulted with Mr Henderson about the complaints before making his decision and discussed the risks to the unit in not moving him. Mr Henderson agreed removal was necessary based on the information available.
[41] I accept there was a reasonable and credible basis for Mr Storr to make the decision to transfer Mr Hudson out of Southwood. I do not consider it was necessary for prison officers to micro-analyse the CCTV footage or conduct a formal hearing process at which allegations could be tested before they acted in respect of Mr Hudson.
[42] Rather, I accept that in a dynamic prison environment staff are not always required to undertake a fact-finding enquiry as if they were in a disciplinary process, before making decisions to mitigate material risks to the safety of prisoners or staff. Rather, staff must make an informed assessment of potential risks to safety in the prison and decide what is the most effective means to mitigate known risks to other prisoners or staff. In circumstances where risk is assessed as imminent, staff will need to act swiftly to preserve the safety of the prison environment for those detained or working there.
Was Corrections required to undertake a formal disciplinary process before removing Mr Hudson from Southwood?
[43] Two of the declarations sought by Mr Hudson relate to his contention that Corrections was required to undertake a formal disciplinary process before deciding to remove him from Southwood.
[44] Mr Hudson alleges he had a legitimate expectation that Corrections would hold a formal hearing to determine his guilt, or innocence concerning the allegations made
against him by other prisoners. Relatedly, Mr Hudson alleges that Corrections’ failure to charge him under s 128(1)(c) of the Act (behaving in an offensive, threatening, abusive, or intimidating manner) on the basis of the allegations made by other prisoners, forcing him to insist on being charged so he would have an opportunity to clear his name, was a breach of natural justice and was ultra vires of s 6(1)(f)(ii) of the Act, which provides that the Corrections system must ensure the fair treatment of prisoners by ensuring that decisions about those persons are made in a fair and reasonable way and that those persons have access to an effective complaints procedure.
[45] As Mr McCusker observes, claims that decisions concerning day-to-day management of the prison following an informed assessment of potential risks to unit security require a formal disciplinary process have been consistently rejected:
(a)In McEwen v Springhill Corrections Facility, the Court found there was no basis in the Act requiring that degree of formality when making management decisions, particularly decisions based on prison safety.15
(b)In Bell v Chief Executive of the Department of Corrections, the Court held that a prisoner has no right to a formal hearing in respect of a management decision concerning security and safety (in that context a security classification decision).16
(c)In Gorgus v Chief Executive of the Department of Corrections, the Court rejected a claim that a formal hearing was required before making a segregation decision. The Court held that to expect more would have “a chilling effect on the ability of Corrections’ staff to make day-to-day security decisions”.17
[46] Accordingly, I find that Corrections did not need to charge Mr Hudson with a disciplinary offence before deciding to remove him from Southwood. Rather, his removal did not result from or require any disciplinary sanction but resulted from an
15 McEwen v Springhill Corrections Facility [2020] NZHC 724 at [76].
16 Bell v Chief Executive of the Department of Corrections [2021] NZHC 413 at [45].
17 Gorgus v Chief Executive of the Department of Corrections, above n 13, at [42].
informed assessment of the potential risk to the safety of other prisoners and to the security and good order of Southwood Unit.
[47] I find that no breach of s 6(1)(f)(ii) of the Act arose from the lack of formal disciplinary process before Corrections transferred Mr Hudson from Southwood. Not only do I consider that no expectation of such a process arises under the law, but there is no evidence that Mr Hudson was promised such a process to give rise to a legitimate expectation.
Did Corrections breach the principles of natural justice?
[48] Section 6(1)(f)(ii) of the Act requires decisions about persons “under control or supervision” to be “taken in a fair and reasonable way”. This provision, and s 27(1) of the New Zealand Bill of Rights Act 1990, require operational decisions to comply with the principles of natural justice. In the context of the present case, these principles require prison staff to explain why a decision was made and to give affected parties an opportunity to respond.18 In a segregation context, the Court has held that this does not require a prisoner to be given the primary evidence relied upon, but that they must be given sufficient reasons to engage with any decision affecting them.19
[49] Corrections submits that, for the following reasons, it met its natural justice obligations in respect of Mr Hudson:
(a)Mr Storr met with Mr Hudson to discuss Mr Moody’s allegations of bullying on several occasions before the 11 June 2023 incident. Mr Storr records in his affidavit that Mr Hudson denied those claims. However, Mr Storr warned Mr Hudson before 11 June 2023 that if he continued to antagonise Mr Moody he would be removed from Southwood.
(b)On the morning of Mr Hudson’s removal, Mr Storr spoke to him about his conflict with Mr Moody and said it was “unhealthy and needed to stop”.
18 McEwen v Springhill Corrections Facility, above n 15, at [76].
19 Stevens v Chief Executive of the Department of Corrections, above n 11, at [98].
(c)Later, on 12 June 2023, after Mr Storr was advised of further threats he had made to Mr Moody, Mr Hudson was removed from the Southwood Unit. There is no clear evidence that Mr Hudson was advised of these specific incidents before being removed.
(d)Mr Storr met with Mr Hudson on 14 June 2023 to explain the reasons for his removal. Mr Hudson again denied making any threats.
[50] Corrections only gave Mr Hudson the specific reasons for transferring Mr Hudson out of Southwood two days after the transfer had occurred. On its face, that might appear to be a concerning breach of the principles of natural justice. However, in context, where the reasons for his transfer would have been well understood (if not accepted, by Mr Hudson) then I find no breach of natural justice occurred. Any (minor) breach of natural justice would in my view be remedied by Mr Storr’s explanation to Mr Hudson of the reasons for his transfer to Mr Hudson two days afterwards on 14 June 2023.
[51] Accordingly, I find Corrections did not breach the principles of natural justice in respect of its decision to transfer Mr Hudson out of Southwood.
Was Mr Hudson’s removal from Southwood and the decision to refuse his request to return there unreasonable?
[52] Mr Hudson advances no specific basis for his allegation that the decision to transfer him out of Southwood (and not to allow him to return there) was unreasonable.
[53] I consider Corrections’ decision making in this regard was entirely reasonable. Corrections had a valid and well-substantiated concern for the safety of Mr Moody based on clear evidence from several sources of tensions between him and Mr Hudson. Corrections also had a valid and well-substantiated basis for concluding that Mr Hudson was responsible for initiating those tensions. Mr Hudson has not sought to argue that Mr Moody was responsible for initiating or escalating the tensions between them and there is no evidence Mr Moody did so. It was therefore reasonable for Corrections to separate Mr Hudson and Mr Moody.
[54] Because Mr Hudson had been the initiator of the tensions, and because his behaviour was affecting other prisoners, not just Mr Moody, it was reasonable for Corrections to remove Mr Hudson from Southwood.
[55] Mr Hudson’s unrepentant attitude gave Corrections no basis for assuming that harmony could be maintained were Mr Hudson to return to Southwood. I consider that Corrections’ decision not to allow him to return is therefore also reasonable.
Was the decision not to allow Mr Hudson to return to Southwood unfair compared to its treatment of another prisoner?
[56] In his evidence, Mr Hudson refers to another prisoner who was allowed to return to Southwood even after carrying out an assault on Mr Hudson. Mr Storr and Mr Gussy gave evidence that the prisoner was assessed as being suitable to return, after Mr Hudson’s views were sought. Mr Hudson did not object and did not seek a non-association alert. Prison management assessed the prisoner as being suitable to return.
[57] By contrast, Mr Storr and Mr Pearse’s evidence is that Mr Hudson remains unsuitable to return to Southwood due to concerns he might jeopardise the safety and harmonious underpinning of Southwood based on his previous behaviour.
[58] It appears to me that these two scenarios are distinguishable and there is no breach of equality or fairness, or any unreasonableness in Corrections’ approach.
[59] Rather, I accept that decisions to remove or to return a prisoner from or to a unit are context and individual specific. It is not possible to generalise from the circumstances applicable to one prisoner that another prisoner, to whom different circumstances may apply, must substantively be treated the same.
[60]Accordingly, I reject this aspect of Mr Hudson’s challenge.
Declarations sought in respect of Mr Hudson’s misconduct charge
[61] On 14 June 2023 while he was in the intervention and support unit, Mr Hudson submitted a prisoner complaint form in which he expressed a wish to be charged with
a misconduct offence so he could contest the allegations against him. Corrections’ initial view was that it was unnecessary to charge Mr Hudson with misconduct as the risk had been sufficiently mitigated through his removal from Southwood. This had dealt with the issue in the least punitive manner.
[62] On 23 June 2023, at Mr Hudson’s further insistence, he was charged under s 128(1)(c) of the Act for behaving in an offensive, threatening, abusive, or intimidating manner. This was despite the 7-day timeframe for laying a misconduct charge being exceeded. A hearing took place on 4 July 2023, but was adjourned because the charging officer was unavailable. The adjudicator requested the misconduct charge be re-heard. However, the charge was later dismissed at Mr Hudson’s request on 8 August 2023 because the hearing had not progressed and it was outside the timeframe for being heard.
[63] Mr Hudson seeks various declarations arising from the misconduct charge including that Corrections’ failure:
(a)to proceed with a misconduct charge against him was a breach of natural justice and his legitimate expectation that the charge would proceed;
(b)to provide him with enough information on his misconduct report to enable him to adequately prepare a defence was a breach of natural justice and of his legitimate expectation that enough information would be provided;
(c)to provide information Mr Hudson requested on 25 June 2023 was a breach of natural justice and his legitimate expectation that the information would be provided;
(d)to proceed with the misconduct charge was a decision made in bad faith.
[64] Corrections accepts that Mr Hudson’s misconduct charge was not heard as promptly as it could have been following the initial adjournment on 4 July 2023.
Following that, Mr Hudson requested the charge be dismissed. Considering that action, Mr Hudson cannot reasonably contend that Corrections breached his right to natural justice (or the obligation in s 6(1)(f)(ii) of the Act to make decisions fairly and reasonably and provide access to an effective complaints procedure) by failing to proceed with a misconduct charge which he had asked to be dismissed.
[65] In that regard, a prisoner can apply for the dismissal of a misconduct charge that has not been brought to hearing expeditiously, as occurred in respect of Mr Hudson’s misconduct charge.20 I accept that this cannot simultaneously constitute a breach of natural justice.
[66] I do not consider there is anything of merit in Mr Hudson’s concerns about the level of particularisation contained in his misconduct report, or the lack of response to his correspondence of 25 June 2023. Perhaps, if he had continued with proceedings concerning his misconduct charge, then he would have been entitled to take those alleged deficiencies further. However, since he successfully sought to have the charge dismissed I find no breach of natural justice has been established in those circumstances.
[67] Neither do I consider that Mr Hudson has established any breach of a legitimate expectation concerning the hearing of the misconduct charge or further particularisation of that charge. The ordinary consequence of non-compliance with the prescribed procedure in relation to disciplinary charges is that the charges can be dismissed. And that is the right that Mr Hudson exercised. No level of particularisation is prescribed in the Regulations. All that is required is a “description of the incident giving rise to the alleged offence”.21 That requirement was met.
[68] There is no evidence of any promise made by prison staff concerning the timing of the misconduct hearing or the level of detail provided in the misconduct report.
20 Corrections Regulations 2005, sch 7, cl 8(b).
21 Clause 6(a).
Mr Hudson’s concerns regarding Mr Moody’s misconduct charge
[69] Mr Moody was charged with an offence of making a false statement after a corrections officer viewed footage from 11 June 2023 that did not appear to corroborate Mr Moody’s allegation regarding Mr Hudson approaching his cell to threaten him. However, at Mr Moody’s request, the corrections officer later viewed the footage from a wider timespan which was consistent with Mr Moody’s allegation. The corrections officer then advised the prosecutor about this. On the basis that there was no longer any evidential basis for the charge, the prosecutor offered no evidence and the charge was dismissed.
[70] Mr Hudson’s application for declarations that Corrections’ failure to proceed with the charge against Mr Moody is misconceived. The only possible decision available to the prosecutor was to offer no evidence, given the fact that having viewed the CCTV footage across a wider timespan, there no longer appeared to be any evidential basis for the charge. That is because the extended footage was, according to Mr Storr, consistent with Mr Moody’s allegation. To have insisted that the prosecutor continue with the prosecution against Mr Moody even though he knew it lacked an evidential foundation would lack logic.
[71] Moreover, it is unclear to me how Mr Hudson’s right to natural justice could be breached by the dismissal of a charge against someone else. I accept that Mr Hudson was attempting to clear his name but, considering the additional footage, there is no suggestion that proceeding with the charge against Mr Moody would have achieved the objective Mr Hudson identifies. Nor could there have been any possible “legitimate expectation” on the part of Mr Hudson that the charge against Mr Moody would proceed.
[72] Finally, Mr Hudson has provided no evidence of any representation made by Corrections that the charge against Mr Moody would continue to a hearing, let alone any reliance by Mr Hudson on such a commitment.
Mr Hudson’s claim that the Department failed to “adequately respond” to complaints
[73] Mr Hudson has sought declarations that Corrections failed to adequately respond to a range of complaints made by him and that the Department failed to provide an effective complaints procedure. He also alleges that he had a legitimate expectation his complaints would be adequately responded to.
[74] In responding to Mr Hudson’s claim Corrections has gone to considerable effort to summarise each of the complaints about which Mr Hudson has concerns. I have seen no evidence that his complaints were not “adequately responded to” by Corrections.
[75] To the contrary, Corrections’ process has been careful, sufficiently thorough in the urgent circumstances and responsive to addressing the conspicuous and specific risk that was presented. All of Mr Hudson’s complaints, regarding sandwich fillings initially and then regarding the process that led to his transfer from Southwood and refusal to let him return there, have been sufficiently investigated based on a range of sources, and fairly resolved.
[76] The fact that he may disagree with the outcome of his complaints does not mean that they were not adequately addressed as part of the “effective complaints procedure” that the Act requires Corrections to give prisoners access to.22 There is no indication in the evidence that the prison staff did not process Mr Hudson’s complaints in accordance with requirements under the Act and the Prison Operations Manual. Rather, it is clear from the evidence that Mr Hudson’s complaints were properly responded to, with Mr Hudson taking those complaints to the Prison Inspectorate as he saw appropriate.
[77] Again, no evidence has been put forward to establish any basis for Mr Hudson to have had a legitimate expectation based on any representations by Corrections let alone any reliance on Corrections’ representations. Rather, if Mr Hudson had a legitimate expectation, the content of that expectation was that his complaints would
22 Corrections Act, s 6(1)(f)(ii).
be dealt with in accordance with the prescribed process stipulated in the Act and the Prison Operations Manual. The avenue for escalating a complaint if a prisoner is not satisfied with the resolution is to engage the Inspectorate, other external agencies such as the Ombudsman or the High Court (as Mr Hudson has done in the present case, exercising his right to apply for judicial review of the decision of a public authority affecting his rights, obligations or interests, as affirmed under the New Zealand Bill of Rights Act).23 Other than that protection, Mr Hudson is not entitled to any guarantee that he will have his complaints resolved substantively in the way he would wish.
Is Mr Hudson correct that he was precluded from making a complaint to the Visiting Justice?
[78] Mr Hudson seeks further declarations that Corrections failed to allow him to complain to the Visiting Justice, in breach of s 19(4)(b) of the Act, and in breach of his “legitimate expectation that he would be allowed to make that complaint”.
[79] The Act gives no general right of access to a Visiting Justice to make a complaint. Nor is any such right provided for in the Prison Operations Manual. Mr Hudson has provided no basis on which any legitimate expectation of referral to the Visiting Justice might have arisen.
Is Mr Hudson experiencing ongoing disadvantage in Te Whakataa 2?
[80] At the hearing, there was some discussion as to whether Mr Hudson was experiencing any ongoing disadvantage by being in his current unit, Te Whakataa 2, whether in terms of loss of privileges, work opportunities and consequences for his application for parole. On 10 December 2024, nearly two weeks after the hearing, Corrections applied to adduce further evidence in this respect.
[81] I decline Corrections’ application for further material to be provided. This element was not pleaded by Mr Hudson and I do not permit him at this late stage to amend his claim to include it.
23 New Zealand Bill of Rights Act 1990, s 27(2).
[82] To the extent there are differences between opportunities available to prisoners at Southwood compared to those available at Te Whakataa 2, Mr Hudson has not established Corrections has breached any legal entitlements under the Act or Regulations or any other prison rules. Mr Hudson may regret loss of the “privileges” he experienced in Southwood. But it is a consequence of his own actions that he has lost the opportunity to remain there. He has no legal right to insist that every aspect of life he briefly enjoyed in Southwood is replicated in his new unit.
Conclusion
[83] For the above reasons, Mr Hudson’s application for judicial review is dismissed in its entirety.
Damages
[84] As I have dismissed Mr Hudson’s claim he has no entitlement to damages. In any event, as Corrections points out, damages are not an available remedy in judicial review.24 Mr Hudson has not identified any other public or private law cause of action which might support his claim of damages.25
[85] Accordingly, I accept that even if the Department was found to have erred in the process it followed in respect of Mr Hudson’s removal from Southwood, damages would be unavailable as a remedy in this proceeding.
McHerron J
Solicitors:
Luke Cunningham Clere, Wellington for Respondent
24 Takaro Properties Ltd (in rec) v Rowling [1978] 2 NZLR 314 (CA) at 326.
25 In McEwen v Springhill Corrections Facility, above n 15, at [94], the Court declined to order any compensation despite finding a breach of natural justice. Moreover, in Genge v Chief Executive of the Department of Corrections [2018] NZHC 1827, [2018] NZAR 1434 at [84] the Court also declined to award compensation for the time spent in a high security unit as a low security prisoner given Mr Genge had been offered the opportunity to take a low security option but had refused.
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