Kumar v Visiting Justice at Auckland Prison
[2018] NZHC 209
•21 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-2817
[2018] NZHC 209
UNDER THE Judicature amendment Act 1972 Part 30 of the High Court Rules and the New Zealand Bill of Rights Act 1990 IN THE MATTER OF
An application for judicial review
BETWEEN
PRAVIN FIA HARI PRASAD KUMAR
Applicant
AND
THE VISITING JUSTICE AT AUCKLAND PRISON
First Respondent
THE ATTORNEY-GENERAL OF NEW ZEALAND
Second Respondent
Hearing: 14 February 2018 Counsel:
Applicant in person
K Laurenson for Respondents
Judgment:
21 February 2018
JUDGMENT OF WHATA J
This judgment was delivered by me on 21 February 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Hickey Law, Auckland
Crown Law, Wellington
KUMAR v THE VISITING JUSTICE AT AUCKLAND PRISON [2018] NZHC 209 [21 February 2018]
[1] Mr Kumar is a prisoner. He was charged with alleged breaches of prison rules about the use of the phone, once in May 2015, twice in August 2015 and again in March 2016. One charge was not pursued. One charge was dismissed. Two charges were found to be proven. The process followed is not a model of its kind. Multiple steps over the span of more than 12 months, involving several Visiting Justices, were required to resolve them. Mr Kumar was allowed legal representation on the dismissed charge. He was not allowed legal representation on the proven charges. In addition, a full transcript of a recording relied on by the prosecution was not provided. Mr Kumar now seeks to judicially review the decisions as unlawful, unreasonable and unfair.
Background
[2] Mr Kumar was separately charged with three disciplinary offences under s 128(1)(a) of the Corrections Act 2004 (the Act). It was alleged that on 28 May 2015 11 August 2015 and on 18 August 2015, he made unauthorised calls using another prisoner’s pin number. I will refer to these charges as Charge A (287033), Charge B (292628) and Charge C (293324) respectively.
[3]These three charges alleged:
“…that prisoner KUMAR, Pravin had been identified making unauthorised calls on the prisoner’s payphone. This had been achieved by using the PIN number belonging to [another prisoner].”
[4] On 15 June 2015 hearing adjudicator P Phelan granted Mr Kumar’s application for a legal representative in relation to Charge A. Charge B was brought before Hearings Adjudicator Tohill on 25 August 2015, who referred it to a Visiting Justice to “run concurrent with other charges". Then, at a hearing on 2 September 2015, Visiting Justice Lady H Phillips-Williams set down all three charges to be heard together. It transpires that Charge C was not pursued by the prosecution. Charges A and B were however called on 2 December 2015 before Visiting Justice J Robinson.
[5] Mr Kumar was legally represented on Charge A. It was heard and dismissed. There is no transcript or record of what transpired at this part of the hearing, but
Mr Hickey, counsel for Mr Kumar, recalls the Visiting Justice was not satisfied “there was enough detail “Intel”.”
[6] After Charge A was dismissed, Visiting Justice J Robinson refused to allow Mr Kumar to be legally represented on Charge B. The Visiting Justice concluded:
I am in no doubt that you are very capable of representing yourself and presenting a good strong case on your own behalf. I don’t think you have any issue at all in cross- examining a witness and I have observed you ask some very pertinent questions, so on that basis I’m going to decline an application for legal representation.
[7] The hearing on Charge B was then adjourned on the application of the prosecution to obtain the “intel officer’s evidence”.
[8] On 8 March 2016, Mr Kumar was charged for a further offence under s 128(1)(d) of the Act. It was alleged that he communicated without authority with another person by telephone by way of call forwarding. I will refer to this charge as Charge D (309970). The misconduct report for Charge D states “that prisoner Kumar, Pravin, called an approved telephone number, and then asked and received call forwarding to an unknown, unapproved number, which was answered by an unknown female.”
[9] A request for legal representation was declined by a hearing adjudicator on 23 March 2016, but the Charge was referred to a Visiting Justice because Mr Kumar had an external witness and the offence was complex. On 27 April 2016, Visiting Justice Holmes was then invited to consider whether Mr Kumar had legal representation in relation to Charges B and D. The Visiting Justice is recorded as acknowledging that legal representation has been declined in relation to Charge B but goes onto state:
If Mr Hickey believes that he has been granted legal aid to represent Mr Kumar, then it seems he needs to be here and do his job.
[10] Visiting Justice Holmes then resolved to set the matter down for 1 June 2016, by which stage Mr Hickey would be able to advise whether legal aid has been granted.
[11] It transpires that in the interim a prosecutor, Mr Daley, sought another hearing on the issue of legal representation and on 11 May 2016, Visiting Justice P Fuiava confirmed that Mr Kumar had been declined legal representation in relation to Charge B and was not entitled to legal representation on Charge D. He observed:
[11] In applications of this nature a Visiting Justice must take into account s 135, Corrections Act 2004. In that section is a list of various matters which must be considered, matters which were formalised in the Court of Appeal decision of Drew v Attorney-General and Department of Corrections.1 …
[12] I have taken into account s 135, which I will now do so orally. In terms of the seriousness of the offending and the consequences for Mr Kumar if he is found guilty, I am told by Mr Daley that this matter is not as serious as Mr Kumar has made out, that if found guilty Mr Kumar is looking at a loss of privileges and perhaps cell confinement and restrictions that he is already currently experiencing at the moment. As I understand it, he has restrictions on his telephone usage here at Paremoremo.
[13] So in my view the seriousness of this charge is moderate. I do not see it as towards the high end of the spectrum of seriousness, though I do acknowledge that it is an important matter for Mr Kumar.
[14] In terms of the complexity of the issues surrounding the hearing, I understand that a transcript will be relied upon by Mr Daley to prove that the charges, that the elements of the offence had been made out. I do not anticipate this to be a complex matter, it is just a question of whether or not words were said and there will be a transcript of those conversations.
[15] In terms of Mr Kumar’s ability to represent himself, I have seen Mr Kumar this afternoon. He strikes me as an intelligent fellow and just listening to him and seeing how he conducts himself I am not satisfied that he is the type of prisoner that has any leaning or any kind of psychological or intellectual difficulties which would handicap him and his ability to represent himself. He is more than capable to do that on his own and again strikes me as an articulate gentleman.
[16] Perhaps the factor which I take into account also is the need for reasonable speed, that appeals of this nature be deal with in an expeditious manner. Visiting justices hear approximately 6,000 to 8,000 type appeals per year and if lawyers are involved, one could imagine that the process would be bogged down and, as I see from the paperwork for Mr Kumar’s matters, there have been a number of adjournments, and this is inconsistent with a need for these types of appeals to be dealt with in a reasonable and expeditious manner.
[12] Charges B and D were then heard and determined on 19 October 2016 by Visiting Justice S Haworth. Prior to the hearing, Mr Kumar lodged two complaints about disclosure in relation to Charge D. The first complaint records:
1 Drew v Attorney-General [2002] 1 NZLR 58.
Regarding my misconduct charge 309970, I request full PTMS disclosure before the hearing. The disclosure must include all the following :- 1. Production Date, 2. Authorised monitors reference number and the copy of the Authorisation to monitor prisoners phone calls under Section 115 of the Corrections Act 2004, 3. Call Details – time alleged phone call started and the time call ended. Full synopsis of call content – transcript of the entire phone call from the beginning of the call to the end. Nor just a tiny part of the phone call. Failure to provide disclosure will have an impact on my right to observance of principles of natural justice and my right to a fair hearing and that the hearing will lack fairness.
[13]The second complaint records:
Regarding my alleged misconduct 309970 that on 2/3/2016 at 15:04:09 hours that I had called number 092666372. The call duration for this call is 15 minutes and 45 seconds. I request to be provided from Operations Intelligence the transcript of the full and total time of 15 minutes and 45 seconds of the call and not just preferred selective sentences that are chosen and transcribed from in-between the call that only the caller states. In front of the sentences use letter ‘C’ for caller and ‘CR’ for call receiver.
[14] Charge D, concerning call forwarding, was heard first and a recording of the telephone call was played. There was, however, no recording in relation to Charge B. The Visiting Justice found both charges proven.
Jurisdiction
[15] This is an application for judicial review. I may intervene for error of law, irrationality and procedural irregularity. Errors of law include failure to have regard to relevant considerations, and giving regard to irrelevant matters. A failure to discharge a statutory discretion in accordance with specified legal conditions is also an error of law.2 As rights to natural justice (including access to justice) are in focus, care must be taken to ensure that these legal conditions have been satisfied. 3 This reflects the Court’s commitment to the minimum standards of procedural and substantive fairness.4
2 McGrath v Accident Compensation Corporation [2011] NZSC 77 at [31]; [2011] 3 NZLR 733.
3 Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597, at [53]-[54]; On access to justice considerations see: R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26, [2001] 3 All ER 433 at 5-12, 19 per Lord Bingham, and at 31 per Lord Cooke.
4 R v Secretary of State for the Home Department ex parte Pierson [1998] AC 539 at 591.
The statutory scheme
[16] The adjudicative processes under the Corrections Act 2004 are purpose built to breaches of prison rules. They commence with purposes and principles that seek to secure, among other things, just and fair treatment of prisoners. Section 5 relevantly states:
5(1)The purpose of the correction system is to improve public safety and contribute to the maintenance of a just society by –
…
(b)Providing for correction facilities to be operated in accordance with the rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the treatment of prisoners.
[17]Section 6 also relevantly states:
6 Principles guiding corrections system
(1)The principles that guide the operation of the corrections system are that—
…
(f)the corrections system must ensure the fair treatment of persons under control or supervision by—
(i)providing those persons with information about the rules, obligations, and entitlements that affect them; and
(ii)ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:
...
[18] As to be expected, the Act provides an elaborate and detailed framework for management of the prison population, covering all aspects of prison life.5 Prison
5See Subpart 3, dealing with such matters as detention and custody, prisoner’s property, security classifications, transfer of prisoners, denial or restriction of ability to associate, work and earnings, minimum entitlements, medical care and treatment, telephone calls and living conditions.
discipline is a critical feature. A prison manager may make rules for prisons6 he or she considers appropriate for the management of the prison and for the conduct and safe custody of the prisoner.7 Any rules made pursuant to these powers must not be inconsistent with the Act overall, the Sentencing Act 2002, the Parole Act 2002 or any regulations made under any of those Acts.8 These rules do not extend to rules about authorised property. Such rules are produced by the Chief Executive.9
[19] This case is about telephone calls. The Chief Executive (in the case of a Corrections prison) or the Commissioner of Police (in the case of a Police cell) may impose conditions on and maintain records of the use of telephone facilities by a prisoner.10 There is special provision for the control and monitoring of prisoner calls. Section 112 specifies the principal purpose of monitoring prisoner calls is to increase the safety of the community by discouraging the commission of offences and detecting and investigating offences committed by the prison population. Monitoring prisoner calls also has the purpose of making it easier to maintain security, good order and discipline in prisons, and protect the safety of prisoners.11 There are controls on powers of monitoring, including requirements to give a warning and restrictions on the disclosure of information obtained.12
[20]In relation to disclosure, s 117(2)(b) states:
117 Authorised disclosure of information
(2)An authorised person may disclose a prisoner call if the authorised person believes on reasonable grounds that the disclosure –
(b) is necessary for the conduct of proceedings (already commenced or reasonably in contemplation) before a court or tribunal.
[21] Section 118 places restrictions on disclosure. It stipulates that an authorised person must not disclose a prisoner call otherwise than under s 117 or in accordance
6 Corrections Act 2004, s 33.
7 Corrections Act 2004, s 33(1).
8 Corrections Act 2004, s 33(5).
9 Corrections Act 2004, s 45A.
10 Corrections Act 2004, s 77(5).
11 Corrections Act 2004, s 112(1) and (2).
12 Corrections Act 2004, ss 116, 118.
with the Privacy Act 1993. Section 119 then states that the Privacy Act 1993 applies to the monitoring of calls. Principle 6 of the Privacy Act requires, in short, prisoner access to recordings unless subject to the limitations specified in that Act.
[22]Most relevantly, for present purposes, s 121 states:
121 Notice to be given of intention to produce evidence of recording
Particulars of a recording of a prisoner call must not be received in evidence by any court against any person, or in any proceedings against a prisoner for a disciplinary offence, unless the party intending to adduce it has given the person reasonable notice of the party’s intention to do so, together with—
(a)either—
(i)a transcript of the recording if the party intends to adduce it in the form of a recording; or
(ii)a written statement setting out the full particulars of the recording if the party intends to adduce oral evidence of it; and
(b)a statement of the time, place, and date of the call, and of the names and addresses of the parties to the call, if they are known.
[23] Subpart 5 deals with offences against discipline. Section 128 specifies a range of offences, including:
128 Offences by prisoner
(1)Every prisoner (whether inside or outside a prison) commits an offence against discipline who—
(a)disobeys any lawful order of an officer or a staff member, or disobeys or fails to comply with any regulation made under this Act or any rule of the prison made under section 33
…
(d)without authority, communicates with any person inside or outside the prison by using a telephone or other electronic communication device:
[24] Section 133 then stipulates the powers of a hearing adjudicator in relation to offences against discipline. Section 133 states:
133 Powers of hearing adjudicator in relation to offences against discipline
(1)A hearing adjudicator has power to hear any complaint relating to any offence against discipline alleged to have been committed by a prisoner, and may examine any person concerning the alleged offence, on oath or otherwise at his or her discretion.
(2)Every hearing and examination must be in the presence and hearing of the prisoner charged with the offence, who is entitled to be heard and to cross- examine any witness.
(3)If, at any hearing under this section, a hearing adjudicator finds the offence proved, he or she may impose 1 or more of the following penalties:
(a)forfeiture or postponement of all or any privileges for any period not exceeding 28 days:
(b)forfeiture of earnings for any period not exceeding 7 days:
(c)confinement in a cell for any period not exceeding 7 days.
[25] A hearing adjudicator may also refer the matter to a Visiting Justice, pursuant to s 134 and in accordance with s 137. The grounds for doing so are:
(a)That the conduct that is alleged to constitute the offence may warrant a higher penalty than can be imposed by the adjudicator; or
(b)That because of the complexity of the issues likely to arise (including, without limitation, points of law) it would be appropriate for the case to be referred to a Visiting Justice.
[26]Section 135 then provides for applications for legal representation as follows:
135 Applications for legal representation
(1)If a prisoner requests permission to be legally represented at the hearing of a charge alleging an offence against discipline, the request must be considered and determined by—
(a)a hearing adjudicator; or
(b)if the case has been referred to a Visiting Justice under section 134, a Visiting Justice.
(2)In determining whether to grant permission to a prisoner to be legally represented, the hearing adjudicator or Visiting Justice must have regard to—
(a)the seriousness of the conduct that is alleged to constitute the offence and the magnitude of the penalty that is likely to be imposed:
(b)the complexity of the issues that are likely to arise at the hearing (including, without limitation, points of law):
(c)any procedural difficulties likely to be encountered (for example, the need to cross-examine witnesses):
(d)the capacity of the prisoner concerned to present his or her case effectively:
(e)the need for reasonable speed generally in decision-making required for the determination of charges relating to offences against discipline:
(f)the need to ensure that hearings of those charges are conducted fairly as between—
(i)different prisoners:
(ii)the complainant and the defendant:
(g)any other matter that the adjudicator considers relevant.
(3)If a request under subsection (1) is considered by a hearing adjudicator and the adjudicator permits the prisoner to be legally represented at the hearing, the adjudicator must refer the case to a Visiting Justice for hearing and determination in accordance with section 137.
(4)If the hearing adjudicator does not permit the prisoner to be legally represented, that hearing adjudicator or another hearing adjudicator must hear and determine the case in accordance with section 133, unless it is referred to a Visiting Justice under section 134.
(5)A hearing adjudicator or Visiting Justice must provide the prisoner and the prison manager with a summary in writing of his or her reasons for the decision to permit or, as the case may require, not to permit the prisoner to be legally represented.
[27] There are also rights of appeal to a Visiting Justice against a decision of the hearing adjudicator. That right is not relevant for present purposes.
[28] Section 137 of the Act sets out the powers of a Visiting Justice in relation to offences by prisoners. This section provides that every hearing or examination must be in the presence of the prisoner charged with the offence, who is entitled to be heard and to cross-examine any witness. If the Visiting Justice finds the offence proved, he or she may impose the following penalties:
(a)Forfeiture or postponement of all or any privileges for a period not exceeding three months;
(b)Forfeiture of earnings for any period not exceeding three months; and
(c)Confinement in a cell for any period not exceeding 15 days.13
Regulations
[29] The Corrections Regulations 2005 set out a process for disciplinary proceedings. All proceedings must follow the procedure laid out in Schedule 7 to the Regulations. Prisoners must be charged promptly, unless the prisoner is subject to an investigation under section 128(2)(b) or clause 50(b), which are not relevant to the present case.
[30]Clause 7 states:
7A prisoner who is charged with a disciplinary offence must be given, in a separate document from the notice referred to in clause 6, a written notice that includes the information specified in clause 8 either:
(a)At the same time as the charge is laid; or
(b)Reasonably promptly after the charge is laid.
[31]Clause 8 contains the following:
The information referred to in clause 7 is a statement that,—
(a)if the charge was not laid within 7 days after the date on which a staff member became aware of the act or omission alleged to constitute a
13 Corrections Act 2004, s 137(3).
disciplinary offence, the prisoner may apply under clause 10 for the charge to be dismissed; and
(b)if the charge is to be heard by a hearing adjudicator, the prisoner may apply under clause 11 for the charge to be dismissed if—
(i)the disciplinary hearing has not been adjourned, and the charge has not been heard within 14 days of being laid; or
(ii)the disciplinary hearing has been adjourned, and the charge has not been heard within 21 days of being laid; and
(c)the prisoner has no right to apply for the charge to be dismissed if it has been referred to a Visiting Justice; and
(d)if the alleged offence is an offence against section 129 of the Act and the disciplinary hearing has been adjourned to allow the prisoner to obtain an independent analysis of a urine sample or hair samples, certain time limits apply before the prisoner may apply to have the charge dismissed; and
[…]
[32] While a prisoner cannot request a charge to be dismissed if it is assigned to a Visiting Judge, clause 9 states:
Every charge in respect of a disciplinary offence must be heard reasonably promptly, but the prisoner must be given sufficient time to enable the prisoner to prepare his or her defence.
[33] This directive is reflected in the limited power of adjournment contemplated at clause 40 which states:
40A person who is prosecuting a disciplinary offence, and a prisoner who is charged with an offence, may apply before or during the disciplinary hearing, to have the disciplinary hearing adjourned.
41A person who is holding a disciplinary hearing must adjourn the disciplinary hearing if –
(a)He or she is satisfied that the prisoner who is charged with the disciplinary offence has not had a proper opportunity to prepare his or her defence; or
(b)He or she is satisfied that a material witness is not available to give evidence at the disciplinary hearing; or
(c)The prisoner is charged with a disciplinary offence at s 129 or s 130(1) of the Act and the prisoner wishes to obtain an independent analysis of a urine sample or hair sample.
[34]Clause 52 and 53 also state:
52When an application for legal representation has been accepted –
(a)The charge must be referred to a Visiting Justice; and
(b)The prisoner must be advised of the referral within 14 days of the charge being laid, or within 21 days if an adjournment was agreed.
53A hearing adjudicator who makes a decision declining a prisoner’s application for legal representation must promptly give the prisoner written notice of the prisoner’s right to appeal that decision to a Visiting Justice.
[35]The rules provide for assistance for a hearing. Clause 19 provides:
19If a prisoner is detained in a prison is preparing his or her defence in respect of a disciplinary offence, the manager of the prison –
(a)Must ensure the prisoner is provided with paper and writing material if the prisoner asks for those things; and
(b)As far as practicable in the circumstances, must facilitate contact between the prisoner and any advisor or assistant helping the prisoner prepare the defence (other than another prisoner).
…
21A prisoner may contact his or her legal advisor for the purpose of assisting with the preparation of his or her defence.
The prison rule
[36] The applicable prison rule for the Charges is a rule which forbids any prisoner to participate in three way calling, call diversion, pin swapping/misuse, or any other unauthorised use of the prison telephones.
Some general observations
[37]From this brief survey of the Act, some general observations can be made:
(a)The Act provides an elaborate mechanism for management of prisoners to maintain security, good order and prisoner safety. This includes a purpose built, streamlined disciplinary system.
(b)Prisoner telephone calls are subject to specific controls, the effective enforcement of which is an evident policy of the Act and regulations.
(c)The scheme of the Act envisages speedy resolution of disciplinary charges.14
(d)The disciplinary process employs several due process safeguards, including effective notice of the charge, access to legal advice and in the context of telephone calls disclosure of recordings and rights of audience. There is however no right to legal representation; it is a discretionary matter subject to specified criteria. I return to this aspect below.
Issues
[38]Mr Kumar agreed there are four key questions to answer:
(a)Was Mr Kumar unlawfully denied legal representation on Charge B at the 2 December 2015 hearing?
(b)Was the decision to adjourn the Charge B proceedings unlawful, unreasonable and/or unfair?
(c)Were the decisions on 11 May 2016 to deny legal representation unlawful, unreasonable, and/or unfair?
(d)Were the decisions on Charges B and D unlawful, unfair and unreasonable for lack of disclosure?
14 See also Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34 at [51].
[39] If the answers to any of these questions are yes, I must look at whether the decisions on the charges B and D should be set aside.
Was Mr Kumar unlawfully denied legal representation on Charge B at the 2 December 2015 hearing?
[40] As noted, there is no right to legal representation at a hearing for a disciplinary offence under the Act. Rather, it is a discretionary matter for a hearing adjudicator or Visiting Justice, having regard to the criteria listed at section 135. The object of these criteria is to secure a disciplinary decision in accordance with principles of natural justice. The proper application of the criteria will ensure compliance with New Zealand’s domestic and international fair trial obligations.15 The requirement to consider the “need for reasonable speed generally in decision making” at s 135(e) however serves to highlight that efficiency of process must be weighed as part of the matrix of natural justice considerations. Thus, (by way of tentative illustration only) it is to be expected that legal representation is not likely to be required in cases involving prisoners without intellectual or mental health disability, facing relatively simple charges with low level penalties. Conversely, the proper application of the criteria may require legal representation in complex and or more serious cases involving prisoners with mental health impairment.
[41] In the present case, Mr Kumar was granted legal representation in relation to Charge A. This Charge was set down by Visiting Justice Phillips-Williams to be heard with Charges B and C, but Visiting Justice Robinson denied Mr Kumar’s applications for legal representation in relation to Charge B. Visiting Justice Fuiava confirmed that legal representation had been denied on Charge B and denied the application for legal representation in relation to Charge D. I return to this below at [47].
[42] Mr Kumar submits, in short, that Visiting Justice Phillips-Williams effectively approved legal representation on Charges A, B and C and set all three down for hearing
15 The statutory criteria replicate the criteria listed by the Court of Appeal in Drew. That case dealt with a challenge to a decision to disallow legal representation in the context of the Penal Institutions Regulations 1994 which expressly provided prisoners could not have legal representation in hearings before a superintendent. Drawing on guidance afforded by English authority, the Court of Appeal listed the criteria as relevant to any exercise of discretion to allow legal representation in accordance with natural justice principles (at [70]-[77])
on 2 December 2015 to enable his lawyer to be present. The decision therefore on 2 December 2015 to remove Mr Kumar’s lawyer in respect of Charge B was unlawful, unreasonable and unfair. It is also flawed, he says, because the Visiting Judge only addressed one of the criteria in his reasons. The unfairness is highlighted by the fact Charge A was dismissed because of lack of intel evidence, while Charge B was adjourned to enable the prosecution to obtain intel evidence.
[43] Having reviewed the transcript of the hearing before Visiting Justice Phillips- Williams, it may be inferred the Visiting Justice assumed Mr Kumar would be legally represented at the hearing of both Charges, given the Charges were to be heard at “the same time”. But that is not sufficient. The scheme of the Act is that legal representation must be approved. This involves an application and then a determination in accordance with the criteria laid down at s 135. This was not done prior to the hearing on 2 December 2015. In fact, Mr Kumar made the application at that hearing.
[44] As to the decision in fact made, Visiting Justice Robinson’s reasoning is not fulsome, but it refers to the key statutory criteria and reaches a rational conclusion – see [25] above. Visiting Justice Robinson had, as he said, observed Mr Kumar was very capable of engaging in the disciplinary process. This conclusion was available to him. I am also fortified in this view because Charge B was a simple charge involving alleged misuse of a pin number. Proof of the charge was always going to be equally simple “intel” evidence. While, as Mr Kumar aptly pointed out, the decision to exclude counsel (and adjourn) did not facilitate a speedy resolution, that criterion was acknowledged by the Visiting Justice. His decision to decline legal representation, therefore, is not amenable to review.
Was the decision to adjourn the Charge B proceedings unlawful, unreasonable and/or unfair?
[45] Mr Kumar submits the decision to adjourn Charge B on 2 December 2015 to enable the prosecution to obtain officer “intel” evidence was unlawful, unreasonable and unfair, especially as the prosecution had just failed to prove Charge A because of the absence of “intel” evidence.
[46] Parties may apply for adjournments and a Visiting Justice (or hearing adjudicator) must allow an adjournment for specified reasons, including to enable a witness to appear. Adjournments may also be granted by consent.16 There is no express general power to adjourn. But one may and should be implied to make the disciplinary hearing process work.17 Furthermore, in a context involving a disciplinary process, a power to secure natural justice, whether for the defendant or the prosecution, should be implied, as the seminal case in this area, Drew, exemplifies. The matters listed at s 135 as it relates to legal representation apply with equal force in this context. There is, however, a clear statutory policy that disciplinary proceedings should be dealt with reasonably promptly – see clause 9 of Schedule 7. This policy must guide decisions to adjourn.
[47] Problematically, for the prosecution, the inference to be drawn from the available facts is that the prosecution needed an adjournment to makes its case, given what transpired in relation to Charge A. This was not about the unavailability of a witness, but the unavailability of intel evidence per se. In a context where the prosecution had been given ample opportunity to prepare for the hearing (more than 3 months) and the defendant was ready to proceed, the decision to adjourn was plainly inconsistent with the clear scheme and policy of prompt action. It also appears unfair in light of the outcome on Charge A. While there was no substantive prejudice to Mr Kumar, it was procedurally irregular and cut across Mr Kumar’s reasonable expectation that his matter would be heard and determined on 2 December 2015.18 Had the matter been promptly dealt with thereafter, I may not have been minded to allow this aspect of the appeal/review. But what then unfolded – a lengthy process taking some further ten months to finally resolve the charge – is outside the scheme of the Act. On that basis, I am satisfied the decision to adjourn was procedurally irregular and unlawful. I address relief below.
16 Corrections Regulations 2005, sch 7, cl 42.
17 Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at 18.3.3.
18 This point was not pleaded. For completeness, my conclusion would have been the same regardless.
Were the decisions on 11 May 2016 to deny legal representation unlawful, unreasonable, and/or unfair?
[48] I turn then to the validity of the 11 May 2016 decision insofar as it remains relevant to Charge D. First, I see nothing in the fact that a decision had previously been made to adjourn consideration of representation matters by Visiting Justice Holmes to 1 June 2016. Had Mr Kumar been materially prejudiced by the change, I may well have been persuaded to require the decision to be reconsidered. However, given the full background, including the fact that this was Mr Kumar’s third attempt at obtaining legal representation on Charge B, any prejudice arising from this procedural irregularity was small.
[49] In terms of the merits, the 11 May 2016 decision includes a thorough exploration of the criteria followed by clearly reasoned conclusions as to, among other things, Mr Kumar’s ability to conduct his defence, the seriousness of the charges and the need for efficient process – see [39] above. The conclusions reached were plainly available to the Visiting Justice.
[50] While ex post facto evidence cannot vindicate the decision in fact made, it goes to any residual issue of unfairness. I have had the benefit of reading the transcript of the October hearing. Mr Kumar is plainly an intelligent man with a good grasp of his rights and trial procedure. I am satisfied that no issue of substantive unfairness for want of legal representation arises in this case.
Were the decisions on Charges B and D unlawful, unfair and unreasonable for lack of disclosure?
[51]For ease of reference, section 121 is repeated:
121 Notice to be given of intention to produce evidence of recording
Particulars of a recording of a prisoner call must not be received in evidence by any court against any person, or in any proceedings against a prisoner for a disciplinary offence, unless the party intending to adduce it has given the person reasonable notice of the party’s intention to do so, together with—
(a)either—
(i)a transcript of the recording if the party intends to adduce it in the form of a recording; or
(ii)a written statement setting out the full particulars of the recording if the party intends to adduce oral evidence of it; and
(b)a statement of the time, place, and date of the call, and of the names and addresses of the parties to the call, if they are known.
[52] Corrections admit that a “full” transcript of the audio recording of the call subject to Charge D and “full” particulars in writing of the call subject to Charge B were not provided. Only those parts of the recordings relied upon by the prosecution at the hearing were transcribed or reduced to writing for s 121 purposes. Ms Laurenson, however, submits section 121 does not require a transcript or written statement of particulars of entire telephone calls. Rather, she says, s 121 is directed to providing sufficient notice of the evidence that will be relied upon by the prosecution, and those parts were provided to Mr Kumar at the time he was charged. He also had the benefit of listening to the full audio recordings and a copy of the recordings was made available to his lawyer. Corrections say there is therefore no broader issue of inadequate disclosure. Practical issues were also noted, including the requirement to produce a transcript for lengthy calls where the relevant parts are of momentary length only.
[53] Mr Kumar responds that this section requires a full transcript and complains the approach taken by Corrections was unfair to him and breaches the express requirement at section 121 to provide a transcript of the recording if the audio recording is adduced at the hearing (as it was on charge D), or full particulars in writing if the oral evidence of the recording is given (as it was on Charge B).
[54] I was initially attracted to Mr Kumar’s submission. On its face, s 121(a) requires “a transcript” or “a written statement setting out the full particulars” of the recording to be given to a prisoner. But the requirement at s 121(a) must be understood in context. First, it is not a stand-alone disclosure obligation. Rather, it forms part of a notice provision directed to the admissibility of “particulars of a recording” to be used in evidence. It is these particulars, not the recording as a whole, that are the object of the notice provision. Second, an obligation to disclose relevant information (implicit in any criminal or quasi criminal proceedings) is not affected by the notice
requirements of s 121.19 There may be cases where the prosecution relies on the contents of a telephone call to such an extent that a full transcript of a telephone call should be provided to a prisoner in order to allow them to conduct a defence. This was not such a case. Furthermore, full disclosure of the audio recording was made available to Mr Kumar. Accordingly, I am satisfied the notice requirements of s 121 were discharged.
[55] In case I am wrong about this, I also reject Mr Kumar’s submission that he was unfairly disadvantaged because without the full transcript he could not cross examine the prosecution witnesses to show, for example, that the call subject of Charge D was to an approved address and not “call forwarded” as charged. With respect to Mr Kumar’s earnest submission, he could not say that the recording might have assisted him, except to suggest that (a) the call was a call to an approved address and
(b) there was an absence of instruction to call forward. But it was available to Mr Kumar to make both those arguments in the absence of any audio, transcript or oral evidence suggesting otherwise. He had previously listened to the audio recording, so would have been on sure ground to make those points (if true). Problematically for him those points were plainly not true. The audio in fact records Mr Kumar saying “I had to ring home and luckily my mother put me through to you.” I therefore see nothing in this complaint. There was no material error of law or unfairness or, to use language familiar to criminal law, there was no miscarriage of justice.
[56] As to Charge B, the sole issue is whether he used another prisoner’s pin number for the call. The precise contents of the recording were never going to be determinative of that issue.
Relief
[57] The decision to adjourn the hearing on Charge B was procedurally irregular and unlawful. It is possible that had the matter proceeded to hearing on 2 December 2015, the charge may have been dismissed. But I am not satisfied that this procedural
19 As noted at [20], there is a separate section of the Corrections Act 2004 which governs such a disclosure. Section 119 states the Privacy Act applies to monitoring of calls. Principle 6 provides for access to private information.
irregularity was substantively unfair to Mr Kumar. Nothing in the adjournment decision deprived Mr Kumar of a fair hearing. Moreover, natural justice has two sides, and in this case, depriving the prosecution the further opportunity to adduce evidence of a disciplinary offense would have been substantively unfair. I am prepared, however, to declare that the decision to adjourn on 2 December 2015 was procedurally irregular and unlawful. This will serve to remind Corrections of the need to promptly resolve disciplinary matters. I otherwise dismiss Mr Kumar’s claims.
Result
[58] There shall be a declaration that the decision on 2 December 2015 to adjourn Charge B (292628) was procedurally irregular and unlawful. Mr Kumar’s claims are otherwise dismissed.
[59] Costs were not sought in submissions. Mr Kumar is self-represented so cannot expect legal costs. He is, however, entitled to disbursements to be fixed by the registrar.
Addendum
[60] Shortly after the release of my judgment, I issued a minute to the parties signalling that I should have afforded them an opportunity to comment on the precise form of the declaration. I therefore recalled my judgment for the purposes of affording them the opportunity to submit on the precise form of the declaration. I now have the submissions from counsel
[61]The Crown responded that the declaration should be amended as follows:
There shall be a declaration that the decision on 2 December 2015 to adjourn Charge B (292628) was procedurally irregular and therefore unlawful (emphasis added).
[62] Mr Hickey, former solicitor for Mr Kumar responded on his behalf. He agreed with the Crown suggestion that the declaration be amended. He further submitted, however, that the following additional words should be included:
So the substantive hearing and conviction are a nullity. The conviction should be quashed and the conviction and penalty should be expunged from his record.
[63] For the reasons set out in my judgment at [47] and [57], I am not satisfied that the procedural irregularity led to any substantive unfairness. In short, the decision to adjourn, in combination with the lengthy delay that followed, was outside the scheme of the Act. This gave rise to the illegality. But neither the adjournment nor the delay occasioned a miscarriage of justice. The subsequent conviction is not therefore a nullity.20
Revised Result
[64] Accordingly, there shall be a declaration that the decision on 2 December 2017 to adjourn Charge B (292628) was procedurally irregular and therefore unlawful. Mr Kumar’s claims are otherwise dismissed.
Costs
[65] Mr Hickey also sought costs for Mr Kumar. He advises that Mr Kumar has been assisted by Mr Charl Hirschfeld in the preparation of his pleadings. While Mr Hirschfeld’s assistance is to be commended, on the material before me, Mr Kumar was not formally represented by legal counsel in this matter and the cost rules are clear; costs are paid in relation to solicitors acting in respect of the proceeding.21 On that basis, as per the above decision, I make no order as to costs at this stage but Mr Kumar is entitled to his disbursements (which do not include legal fees), to be fixed by the registrar.
20 Applying the standard threshold test for setting aside convictions: Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1, at [35].
21 McGuire v Secretary for Justice [2018] NZCA 37 at [72].
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