Kearns v Attorney-General HC Christchurch CIV 2006-409-001893

[2007] NZHC 1801

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2006-409-001893

BETWEEN  DAL WILLIAM KEARNS Applicant

AND  THE ATTORNEY-GENERAL First Respondent

AND  THE VISITING JUSTICE AT PAPARUA PRISON

Second Respondent

Hearing:         7 June 2007 (On Papers) Judgment:    7 June 2007

JUDGMENT OF FOGARTY J

[1]      The applicant seeks judicial review of a confiscation decision.   The facts pleaded by the applicant is that  he is a prisoner  housed at Paparua Prison.   By agreement with the Department of Corrections the plaintiff was allowed to have a computer in his cell.  As a result of a search an unapproved USB device was found hidden inside the computer.  He was subsequently charged with having the item in his cell without the approval of an officer.

[2]      A hearing adjudicator sentenced him to five days cell confinement, 28 days loss of privileges and forfeiture of the computer to the Crown.   He appealed this decision to the second defendant  who  confirmed the adjudicator’s decision.   He pleads that the computer has been taken from him.

[3]      Counsel for the plaintiff and for the first defendant filed a memorandum on

30 January agreeing and requesting that the following orders be made by consent:

KEARNS  V THE ATTORNEY-GENERAL  AND ANOR HC CHCH CIV 2006-409-001893  7 June 2007

1.That the confiscation decision made by the hearing adjudicator and confirmed  by the second respondent  be quashed  in relation to the computer only.

2.       That the computer be returned to his property.

3.       There be no order for costs.

4.       The proceedings be otherwise dismissed.

[4]      On 9 March I received submissions on behalf of the second  respondent, having directed that the second respondent make it a submission to this Court as to whether or not the second respondent  accepts the proposed settlement.   Section

133(4)(a) of the Corrections Act 2004 provides:

133      Powers of hearing adjudicator in relation to offences against discipline

….

(4)     If the offence proved is—

(a)     an offence under section 128(1)(f), the hearing adjudicator may, after giving the prisoner an opportunity to provide reasons why the order should not  be  made,  and  whether  or  not  he  or  she  imposes  a  penalty  under subsection (3),  order  that  the article or thing  in respect of which the offence was committed be forfeited to the Crown:

…

(Emphasis added)

[5]      In this case that article or thing is plainly set out in the charge as being the USB device, not the computer.  The charge sheet states that the prosecutor sought an order forfeiting the computer download device, but not the computer itself.

[6]      The second respondent notes that there is an alternative argument that where an article or thing is unable to function independent of another article or thing then the part order forfeiture must extend to cover both articles.   It is not necessary to consider this argument in this case.  On the particular facts and the way in which the charge was pursued the contravention was in respect of the USB device.  There has

been no challenge to the pleadings that he had consent to have the computer in his cell.

[7]      Read as a whole, the submission of the second respondent does not offer significant opposition to the proposal by counsel for the plaintiff and the first respondent.

[8]      I  am  satisfied,  on  the  particular  facts  of  this  case,  that  the  order  for confiscation of the computer was, at the very least, in breach of natural justice, given the nature of the charge.

[9]      The orders are made accordingly.

Solicitors:

FS Legal, Christchurch, for Applicant

Crown Law Office, Wellington, for Defendant