John Alfred Vogel v Attorney-General - [2014] NZSC 5

IN THE SUPREME COURT OF NEW ZEALAND

SC 135/2013
[2014] NZSC 5

BETWEEN

JOHN ALFRED VOGEL
Applicant

AND

ATTORNEY-GENERAL
First Respondent

DOCTOR MARK GROEN AND DOCTOR MATTHEW GENTRY
Second Respondents

Court:	Elias CJ, Glazebrook and Arnold JJ
Counsel:	T Ellis for Applicant A M Powell and S M Kinsler for Respondents
Judgment:	19 February 2014

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

In April 2000 a Visiting Judge sentenced the applicant, then a prison inmate, to 21 days cell confinement for drug offending. The applicant had pleaded guilty and asked the Visiting Judge to impose that sentence so that he had the opportunity to address his drug problems, apparently in preparation for an upcoming parole hearing. Unfortunately, the 21 day sentence exceeded the 15 day maximum permitted under s 33(3)(g) of the Penal Institutions Act 1954.
Some years later, the applicant brought a claim for damages against the Crown alleging breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) in relation to his period in cell confinement, specifically ss 9 (prohibition on torture) and 23(5) (obligation to treat those detained with humanity and respect for inherent dignity). The applicant argued that the unlawful sentence, and the fact that he did not receive the managerial and medical oversight required by the relevant prison regulations,[1] breached his NZBORA rights.
[1]Penal Institutions Regulations 1999, regs 49(2)(b)(i), 52(2), 56(b) and 105(4)–(5).
In relation to managerial and medical oversight, both the High Court[2] and the Court of Appeal[3] accepted that the regulations had been breached but found that the failures did not have any adverse effect on the applicant sufficient to justify findings of breach of ss 9 or 23(5).[4]
[2]Vogel v Attorney-General [2012] NZHC 269 [Vogel (HC)].
[3]Vogel v Attorney-General [2013] NZCA 545 [Vogel (CA)].
[4]Vogel (HC), above n 2, at [49] and [55]; Vogel (CA), above n 3, at [62].
In relation to the excessive sentence, both Courts considered that neither the sentence nor the circumstances in which it was served could amount to torture, so there was no breach of s 9.[5] But they did not agree in relation to s 23(5). Lang J considered that s 23(5) had not been breached because, although the sentence exceeded the Visiting Judge’s statutory authority, it had been imposed at the request of the applicant.[6] The Court of Appeal differed on this point, holding that s 23(5) had been breached. The applicant’s known mental health and addiction issues reduced the weight that could be given to the fact that he had requested a 21 day sentence.[7]
[5]Vogel (HC), above n 2, at [81]–[83] and [97]; Vogel (CA), above n 3, at [67].
[6]Vogel (HC), above n 2, at [103]-[105].
[7]Vogel (CA), above n 3, at [72]-[75].
In relation to remedy for the s 23(5) breach, the Court of Appeal considered this Court’s judgment in Taunoa v Attorney-General[8] and concluded that, but for the provisions of the Prisoners’…

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.

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Details

Case: [2014] NZSC 5
Decision Date: 19 February 2014

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to determine whether an application for leave to appeal should be granted in the case of John Alfred Vogel v Attorney-General. Vogel, a former prison inmate, sought damages against the Crown for alleged breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) related to his confinement in a cell for 21 days in 2000. Vogel had pleaded guilty to drug charges and requested the sentence to address his drug problems. However, the sentence exceeded the statutory limit, and Vogel argued that this, coupled with a lack of managerial and medical oversight, breached his NZBORA rights. The Court of Appeal had previously found a breach of section 23(5) of NZBORA but did not award damages under the Prisoners’ and Victims’ Claims Act 2005 (PVC Act). Vogel sought to appeal to the Supreme Court, arguing that the Court of Appeal erred in its interpretation of the PVC Act and in not awarding damages.

The legal issues in this case centred around whether the breach of Vogel's NZBORA rights warranted an award of damages and whether the PVC Act correctly precluded such an award. Vogel argued that the difficulty in calculating damages due to the passage of time and lack of records should not prevent an award. He also claimed that the failure to keep records and investigate breaches encouraged non-compliance with the Convention Against Torture (CAT). The Court had to determine if Vogel's arguments presented sufficient grounds for the Supreme Court to grant leave to appeal and potentially award damages.

The Court found that Vogel's application for leave to appeal did not adequately address the issues raised in the Court of Appeal's decision. The Court of Appeal had already considered the difficulty in calculating damages and the lack of records but did not base its decision on these factors alone. Instead, the Court of Appeal's decision not to award damages was grounded in the provisions of the PVC Act. Vogel's arguments about the PVC Act and CAT were also deemed irrelevant because the Court of Appeal did not misinterpret or misapply the PVC Act. Consequently, the Court concluded that it was not necessary in the interests of justice for the Supreme Court to hear and determine the proposed appeal.

The Supreme Court dismissed the application for leave to appeal, with no order for costs. This decision upheld the Court of Appeal's ruling that Vogel's rights had been breached but that the PVC Act precluded an award of damages.

Orders