Hudson v Attorney-General - [2017] NZHC 2456

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-127 [2017] NZHC 2456

UNDER the Judicature Amendment Act 1972

IN THE MATTER

of an application for Judicial Review on the grouns of unreasonableness and the Corrections Act 2004

BETWEEN

STEPHEN THOMAS HUDSON Applicant

AND

THE ATTORNEY-GENERAL First Respondent

THE PRISON DIRECTOR OF TONGARIRO PRISON

Second Respondent

Hearing: 20 September 2017

Counsel:

Applicant in Person
M J McKillop for Respondent

Judgment:

6 October 2017

JUDGMENT OF CHURCHMAN J

[1] By amended statement of claim dated 10 April 2017 the applicant sought judicial review of a decision refusing his request to transfer from Whanganui Prison to Tongariro Prison (formerly known as Rangipo Prison).

[2] The applicant sought declarations that the decision of the Prison Director of
Tongariro Prison (Lynette Ruth O’Connor – commonly known as Lyn) to refuse his request to transfer was unfair and unreasonable.

HUDSON v THE ATTORNEY GENERAL [2017] NZHC 2456 [6 October 2017]

[3] The respondent opposed the application and filed an affidavit by Lyn O’Connor which exhibited a quantity of relevant documentation. The respondent also filed what was described as a “bundle of documents”. The respondent applied to introduce this evidence under s 130(3) of the Evidence Act 2006 that is, without the evidence being introduced by a witness.

[4] At the hearing, the applicant consented to the admission of this evidence and it was admitted accordingly. Both parties made extensive reference to it in speaking to their submissions.

Factual background

[5] Mr Hudson is currently an inmate at Rimutaka Prison. His criminal history includes 81 charges, including convictions for violence, drug, and property crimes. He also has three convictions for actual or attempted escape from custody. In 2002, he was sentenced to life imprisonment for murder. He will be eligible for parole in
2026. At the time of the decision refusing his request for transfer, November 2016, he was serving his sentence at Whanganui Prison.

[6] His security risk is assessed, like all prisoners, every six months. There are five categories: maximum, high-medium, low-medium, low, and minimum. He has been assessed as low-medium five times since 2013. At the time of the decision, he was assessed as low-medium risk. However, he was kept in the Te Waimarie unit, a high security wing. He was voluntarily segregated from mainstream prisoners for the purpose of protective custody under s 59(1)(a) of the Corrections Act 2004 (the Act). He apparently refused transfer to available cells in the low-medium wings following a downgrade in his security classification. He was kept in Te Waimarie until his transfer to Rimutaka Prison on 27 January 2017.

[7] During that time, he repeatedly requested transfer to Tongariro Prison. Mr Hudson says these requests were either ignored, or declined due to prison muster issues. The present application relates to a transfer request Mr Hudson submitted on
8 November 2016. On 15 November, he was informed that the request had been declined. He proceeded that same day…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hudson v Attorney-General

Details

AGLC: Hudson v Attorney-General [2017] NZHC 2456
Case: [2017] NZHC 2456
Decision Date: 6 October 2017

CaseChat Overview and Summary

The applicant, Mr Stephen Thomas Hudson, sought judicial review of a decision to refuse his request to transfer from Whanganui Prison to Tongariro Prison. The decision was made by the Prison Director of Tongariro Prison, Lynette Ruth O’Connor. The applicant argued that the decision was unfair and unreasonable. The respondent opposed the application and filed an affidavit by Ms O’Connor, which exhibited relevant documentation. At the hearing, the applicant consented to the admission of this evidence and it was admitted accordingly.

The applicant argued that there were irrelevant considerations that had been taken into account, as well as relevant considerations that were not taken into account. The applicant also argued that the decision was ultra vires and unreasonable, a breach of natural justice and unfair. The respondent emphasised the multi-factorial analyses anticipated by sections 53 and 54 of the Corrections Act 2004. The respondent submitted that while Mr Hudson states his claims are on the grounds of unreasonableness, they instead point to the grounds of procedural impropriety.

The Court found that the three matters Mr Hudson raised as irrelevant – consideration of his most recent episode of violence, his lack of engagement with rehabilitation, and his non-genuine need for protective custody – were integrally relevant to various aspects of section 54 of the Act. The Court found that access to family was a mandatory consideration and it was not at all clear that this was considered in the original decision. The Court found that while there were errors that give rise to some legitimate concerns, they cannot be said to be material to the decision at issue in the context of multi-factorial decisions afforded a large measure of discretion. The Court declined to exercise its discretion to grant the requested remedy.

The application for judicial review on the grounds of unreasonableness, procedural impropriety, breach of natural justice and unfairness is declined.

Orders