Hudson v Attorney-General - [2017] NZHC 1441

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV 2016-483-30 [2017] NZHC 1441

BETWEEN
STEPHEN THOMAS HUDSON

Applicant

AND

THE ATTORNEY-GENERAL Respondent

Hearing: 1 March 2017

Counsel:

Applicant in Person
S K Barr for Respondent

Judgment:

27 June 2017

JUDGMENT OF ELLIS J

[1] In 2009 Mr Hudson was convicted of murdering Nicholas Pike. He was subsequently sentenced to life imprisonment with a 16 year minimum term. Mr Hudson maintains his innocence, but has now exhausted all avenues of appeal. So he wishes instead to enlist the help of an investigative journalist, Mr Mike Kalaugher, to look into his case. His thinking is that if sufficient relevant new evidence or information is uncovered he might be able to petition the Governor-General and obtain a referral back to the Court of Appeal.

[2] Mr Hudson says that in order to brief Mr Kalaugher fully, he needs to review the legal papers relating to his trial. But when he requested access to those papers the Department of Corrections (Corrections) advised that the Rule 5.4.a of the Authorised Property Rules (the Rules) do not allow prisoners to have access to such papers unless they have “current legal proceedings”. Mr Hudson says that Rule 5.4.a contravenes his right to freedom of expression under s 14 of the New Zealand Bill of
Rights Act 1990 (NZBORA).

HUDSON v THE ATTORNEY-GENERAL [2017] NZHC 1441 [27 June 2017]

[3] Mr Barr for the Attorney-General says that the issue raised is now moot because, after these proceedings were filed, Corrections gave Mr Hudson his legal papers. The justification for doing so is that it is now considered that Mr Hudson falls within Rule 5.4.a because has asserted an intention to appeal, albeit in a highly contingent way. The Crown says that if this position were to change in future then Mr Hudson should explore existing internal complaint mechanisms to request that Corrections amend its rules or that the Chief Executive instruct that he be issued with his legal papers. More broadly, Mr Barr submits that the Rule places lawful limits on the property that prisoners may have in their cells for sound policy reasons.

[4] I record at the outset that I am not inclined to proceed on the basis that the issue raised is moot. That is, in part, because it would appear to have ongoing ramifications, both for Mr Hudson and for other prisoners.

[5] I also record at the outset that the interpretation of the Rule more recently adopted by Corrections in order to accommodate Mr Hudson is, in my view, untenable. The proposition that the r 5.4.a reference to “current legal proceedings” includes proceedings not yet in train, and which may never be in train, strains the meaning of those clear words. On any analysis, Mr Hudson’s intention to discuss the possibility of an investigation and a book with a journalist, with a view to possibly seeking exercise of the royal prerogative in favour of a retrial at some point in the future…

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 1441
Case: [2017] NZHC 1441
Decision Date: 27 June 2017

CaseChat Overview and Summary

Stephen Hudson, a prisoner serving a life sentence for murder, sought access to his legal papers in order to brief an investigative journalist, Mike Kalaugher, to look into his case. When his request was refused, he brought proceedings against the Attorney-General, claiming that the rule which denied him access contravened his right to freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA). The Attorney-General submitted that the issue was moot because, after the proceedings were filed, Corrections gave Mr Hudson his legal papers. Alternatively, he submitted that the rule was consistent with NZBORA. The Court held that the right to freedom of expression was engaged because prisoners have a high value interest in accessing their legal papers in order to ventilate concerns about an alleged miscarriage of justice. The blanket prohibition on prisoners such as Mr Hudson accessing their legal papers was contrary to s 14 of the Bill of Rights. The rule was also ultra vires the Corrections Act and therefore unlawful. Rather than quashing the rule outright, however, the Court directed the Chief Executive to amend the rule in accordance with this judgment.

Orders