Hudson v Attorney-General HC Wellington CIV-2010-485-773

[2010] NZHC 2438

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-773

UNDER  THE JUDICATURE AMENDMENT ACT

1972

IN THE MATTER OF     THE NEW ZEALAND BILL OF RIGHTS ACT AND THE CORRECTION ACT 2004

BETWEEN  STEPHEN THOMAS HUDSON Applicant

ANDATTORNEY-GENERAL Respondent

Hearing:         13 December 2010 (Heard at Wellington)

Counsel:         M Bott for Applicant

A Powell for Crown

Judgment:      17 December 2010

JUDGMENT OF JOSEPH WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 10:30am on the 17th December 2010.

Solicitors:

M Bott, PO Box 23 347, Wellington

Crown Solicitors, Wellington

STEPHEN THOMAS HUDSON V ATTORNEY-GENERAL HC WN CIV-2010-485-773 17 December 2010

[1]      The applicant is an inmate at Rimutaka Prison.  He seeks various declarations against the Department of Corrections in relation to the seizure and destruction of property from his cell.

[2]      The material facts can be briefly set out.   On 24 June 2008, Corrections officers searched the applicant’s cell.   They removed a number of items (most of which are not the subject of these proceedings).   Included however was a copy of Cosmopolitan magazine and two illustrations drawn by the applicant; one apparently a Celtic cross; the other a woman in underwear. All three items were seized and then destroyed.  The applicant argues that the seizure and destruction of these items was unlawful and the declarations sought reflect that position.

[3]      Section 45 of the Corrections Act 2004 provides as follows:

45     Disposal and destruction of prisoner property

(1)     An item of prisoner property may be destroyed or disposed of in a manner approved by the prison manager if the prison manager considers the item to be-

(a)     a dangerous item or substance; or

(b)     a health hazard; or

(c)     inflammable; or

(d)     intoxicating liquor; or

(e)     a controlled drug (within the meaning of the Misuse of Drugs

Act 1975); or

(f)     objectionable; or

(g)     perishable.

(2)     An item of prisoner property may be destroyed or disposed of in a manner  approved  by  the  prison  manager  if  the  prison  manager requires the item to be removed from the prison in accordance with any regulations made under this Act, and the prisoner concerned fails to comply with that requirement reasonably promptly.

(3)     Any destruction of a prisoner’s property must be carried out in the prisoner’s presence-

(a)     destruction in his or her presence is dangerous or impracticable;

or

(b)     the prisoner cannot be identified or located.

[4]      The  applicant  challenges  the  decision  to  seize  and  destroy  the  relevant property on both procedural and substantive grounds.

[5]      Procedurally, the applicant says that:

(a)     the prison manager failed to consider whether the items were objectionable under s 45(1);

(b)the prison manager failed to require the applicant to remove the items from the prison under s 45(2) (thus giving the applicant the chance to avoid destruction); and

(c)      without justification under s 45(3) the officers destroyed the items without the applicant being present.

[6]      The Attorney-General correctly concedes that the procedural requirements of s 45 were not met.  The officers destroyed the items without the prison manager’s knowledge.  The prison manager did not delegate his responsibilities under s 45 to any other prison officer.   The applicant was not even aware that the items were destroyed until sometime in September 2008.   Accordingly, the Attorney-General accepts that the applicant is entitled to a declaration that his property was destroyed in breach of the requirements of s 45 of the Corrections Act.

[7]      The applicant also argues that his property was destroyed in breach of s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA), as he was not given an opportunity to be heard.

[8]      This argument, as it developed in oral submissions, does not add anything to the other procedural complaints.   The applicant could have challenged the classification of the items as objectionable, if the procedural requirements in s 45 had been met.

[9]      Section 153(1) of the Corrections Act provides that:

In every prison, community work centre, and probation office, there must be an internal complaints system that satisfies the prescribed requirements and that enables complaints to be dealt with internally on a formal basis.

[10]     The applicant’s affidavit confirmed that there is a formal internal complaints system at Rimutaka Prison, and that he filed a number of complaints relating to the seizure of his property, but to no avail.

[11]     If,  as  s 45(2)  requires,  the  prison  manager  had  given  the  applicant  the opportunity to remove the items before they were destroyed, the applicant could have filed a complaint challenging the classification of the items as objectionable and been heard prior to destruction.

[12]     Additionally, the applicant could have requested the items via the process set out in P.05 of the Prison Service Operations Manual (PSOM).  The prison manager would have considered that request (deemed to be an application to include the items in the relevant property schedule) and determined whether the items were objectionable.

[13]     These processes provided no safeguard in this case because the items had been immediately and  unlawfully destroyed leaving no time for a complaint or request to be lodged, let alone considered by the prison manager.  Accordingly, it is not necessary on these facts to determine whether the requirements of s 45 need to be supplemented  to  allow  further  opportunity to  be heard, by reference to  s 27  of NZBORA.  The core problem in this case was peremptory, pre-emptive and unlawful destruction.

[14]     The applicant also sought declarations on substantive grounds: that the items were unlawfully characterised as objectionable, by reference to the Department’s own definitions of pornography and objectionable (contained in the PSOM), and by reference to ss 14 and 15 of NZBORA.

[15]     I am not satisfied that those declarations are appropriate in this case.   The

Court does not have the items in evidence, nor the Department’s full justifications

for restricting access to those items in the prison context.  I note however that the Court cannot consider the items because they were unlawfully destroyed.   This reinforces the importance of compliance with the requirements of s 45 in all cases.

[16]     Accordingly, the applicant is entitled to a declaration that his property was destroyed in breach of the requirements of s 45 of the Corrections Act.

[17]     Costs will be dealt with by memoranda.

Joseph Williams J