Kumar v Visiting Justice at Waikeria Prison
[2024] NZHC 965
•30 April 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2021-419-000191
[2024] NZHC 965
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
PRAVIN KUMAR
Applicant
AND
THE VISITING JUSTICE AT WAIKERIA PRISON
First Respondent
THE ATTORNEY-GENERAL OF NEW ZEALAND ON BEHALF OF THE DEPARTMENT OF CORRECTIONS
Second Respondent
Hearing: 15 April 2024 Appearances:
J Hickey for the Applicant
First Respondent abides decision of the Court M Dillon for the Second Respondent
Judgment:
30 April 2024
Reissued:
15 July 2024
REISSUED JUDGMENT OF GORDON J
This judgment was delivered by me on 30 April 2024 at 12 pm, pursuant to
r 11.5 of the High Court Rules
Solicitors/counsel: Hickey Law, Auckland Crown Law, Wellington
Registrar/Deputy Registrar Date:
M Dillon, Barrister, Hamilton
KUMAR v THE VISITING JUSTICE AT WAIKERIA PRISON [2024] NZHC 965 [30 April 2024]
Introduction
[1]This is an application for judicial review by Pravin Kumar.
[2] Mr Kumar is serving a sentence of preventive detention at Waikeria Prison. Prisoners are subject to the prison discipline system established by the Corrections Act 2004 (the Act). That system prescribes: offences against prison discipline; who adjudicates in hearings concerning alleged offences; and the penalties which may be imposed for proved offending. Complaints of offending against prison discipline are not criminal charges and, if proved, do not create a criminal record.
[3] In May 2021, Mr Kumar was charged with contravening a rule made under s 33 of the Act forbidding any prisoner to use the telephone to participate in call diversion.1 The charge was referred by a hearing adjudicator2 to a Visiting Justice.3 The Visiting Justice ultimately found the charge proven and imposed penalties.
[4] Mr Kumar takes issue with a number of decisions made in relation to the charge, and seeks relief in the form of declarations, an order setting aside or quashing the conviction, an order removing all adverse records relating to the charge, and compensation in the sum of $1,500 for alleged breaches of his rights.
[5] The application is opposed by the second respondent, the Attorney-General on behalf of the Department of Corrections (Corrections). The first respondent, the Visiting Justice at Waikeria Prison, abides the decision of the Court (as usual in cases of this kind).
1 Corrections Act 2004, s 128(1)(a).
2 Hearing adjudicators are employees of the Department of Corrections appointed pursuant to s 15 of the Act to exercise the powers and functions prescribed by s 16 of the Act. These include hearing complaints relating to offences against discipline alleged to have been committed by a prisoner (s 133 of the Act).
3 A Visiting Justice is defined in s 3 of the Act as a District Court Judge or a person appointed under s 19(2). A Visiting Justice has, in the area of prison discipline, broader powers than a hearing adjudicator.
Background
[6]There is common ground between the parties as follows:
(a)Mr Kumar was a prisoner at Waikeria Prison during the relevant months of April to July 2021. The Prison is operated by Corrections.
(b)A Prison Director's Rule made pursuant to s 33 of the Act and issued on 15 February 2018 forbids any prisoner to use the telephone to, among other things, participate in call diversion.
(c)Prisoners wishing to make ‘personal’ phone calls were required to apply to Corrections for approval.
(d)On 25 April 2021 Mr Kumar called PC on a mobile number. Mr Kumar was permitted to call PC on that number. Mr Kumar asked PC to divert an 0800 phone number to a mobile number.4 Mr Kumar was permitted to call the 0800 phone number at that time.
(e)On 26 April 2021 Mr Kumar called AB on a mobile number. Mr Kumar was permitted to call AB on that number. Mr Kumar asked AB to divert an 0800 phone number to an Australian number.5 Mr Kumar was permitted to call the 0800 phone number at that time.
[7] A Misconduct Report dated 3 May 2021 records the charge against Mr Kumar, relating to the conduct in [6(d)] and [6(e)] above, as follows:
Offence
CORRECTIONS ACT 2004 SECTION (128) SUB SECTION (1) PARAGRAPH (a)
Being a Prisoner at Waikeria Prison between the 24 and the 25 April 2021, fails to comply with any rule of the Prison made under Section 33.
Report
4 Mr Kumar says the number to which the 0800 number was diverted was an approved number. That issue is discussed later in this judgment.
5 Mr Kumar says the number to which the 0800 number was diverted was an approved number. That issue is discussed later in this judgment.
On the 29 April 2021, Prosecutions Officer T Hughes received information from Corrections Intelligence that between the [25] and the [26] April 2021, Prisoner KUMAR Pravin Fia Hari Prasad had misused the Prisoner telephone system.6
[8] The charge came before a hearing adjudicator on 6 May 2021 (first hearing). The hearing adjudicator referred the case to a Visiting Justice for hearing on 18 May 2021.
[9] Mr Kumar appeared before a Visiting Justice on 18 May 2021 (second hearing), where he entered a plea of not guilty. The prosecutor signalled that a Corrections witness would be called to give oral evidence. The second hearing was then adjourned to 1 June 2021 due to the unavailability of the Corrections witness and the unavailability of a transcript of the two phone calls.
[10] Mr Kumar next appeared before a Visiting Justice on 1 June 2021 (third hearing). Mr Kumar repeated his request for a transcript of the two phone calls and additionally asked for a lawyer to represent him. The Visiting Justice refused both requests7 and adjourned the hearing as the Corrections witness was again unavailable.
[11] Mr Kumar then appeared before a Visiting Justice on 20 July 2021 (fourth hearing). The notes of evidence for the fourth hearing record the following:
(a)The prosecutor called the witness, an Intelligence Officer at Waikeria Prison, to give oral evidence of the phone calls at issue.
(b)Synopses of the two phone calls which had been provided to Mr Kumar on 3 May 2021 were produced as exhibits.
6 The Misconduct Report originally recorded the dates of offending incorrectly as 24 and 25 April 2021. The dates were corrected in the course of the hearing on 20 July 2021. No issue is taken with this correction.
7 The request for the transcript was refused on the basis that the prosecution had complied with one of the two alternative options in s 121(a) of the Act: Mr Kumar had been provided with a written statement setting out the full particulars of the recording (in circumstances where the party intends to introduce oral evidence of it). This provision is discussed later in the judgment.
(c)Recordings of the phone calls were played up to where Mr Kumar instructed PC and AB respectively to set up the diversions from the 0800 numbers. No transcripts were produced at this hearing.
(d)Mr Kumar cross-examined the Corrections witness, gave evidence, and made submissions in his own defence.
(e)The Visiting Justice found the charge proved and imposed penalties of eight days confinement to his cell and 32 days of loss of all privileges, except for exercise and visits.
The law on judicial review
[12] The right to bring judicial review proceedings is recognised by s 27(2) of the New Zealand Bill of Rights Act 1990 (NZBORA):
Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
[13] I refer to and adopt Whata J’s concise summary of the principles of judicial review in another case involving Mr Kumar:8
[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. 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. This reflects the Court’s commitment to the minimum standards of procedural and substantive fairness.
(footnotes omitted)
8 Kumar v Visiting Justice at Auckland Prison [2018] NZHC 209.
Decisions to be reviewed
[14]Mr Kumar applies for judicial review of the following decisions:
(a)the decision by the hearing adjudicator to refer the charge to a Visiting Justice (first cause of action);
(b)the decision by the Visiting Justice to refuse Mr Kumar’s request to be legally represented (second cause of action);
(c)the decision by the Visiting Justice to proceed to hear the charge without a transcript of the phone calls (third cause of action);
(d)the decision by the Visiting Justice to conduct the hearings in a manner that was allegedly in breach of Mr Kumar’s right to natural justice under NZBORA by proceeding with the hearing without a transcript of the phone calls and without Mr Kumar having the opportunity to consider the complete recordings of the telephone calls (fourth cause of action);
(e)the decision by the Visiting Justice to find the charge against Mr Kumar proved (fifth and sixth causes of action).
[15] I will consider each cause of action in turn. Before I do so, there is a preliminary issue.
Affidavit of Neville Shardlow and reply affidavit of Mr Kumar
[16] The Attorney-General filed an affidavit of a Corrections officer, Neville Shardlow, who was the prosecutor at the fourth hearing, sworn on 7 March 2024. In a reply affidavit sworn on 3 April 2024 Mr Kumar says he was not aware that Mr Shardlow was going to swear an affidavit. He, therefore, filed an affidavit in reply. His position was that if Mr Shardlow’s affidavit was to be read then his own affidavit in reply should also be read. Otherwise he opposed the admission of Mr Shardlow’s affidavit.
[17] At the hearing there was no issue between counsel with both affidavits being read by the Court. Accordingly, I gave leave to admit both affidavits.
Referral of case to Visiting Justice (first cause of action)
[18] Mr Kumar pleads that the hearing adjudicator failed to properly exercise his power under s 134 of the Act. The failure is said to be that the hearing adjudicator did not provide proper reasons for the decision to refer the case to a Visiting Justice, and this is an improper exercise of power.
[19]Section 134 provides:
134Decision as to who is to hear charge
(1)If a complaint alleging an offence against discipline is brought before a hearing adjudicator, the adjudicator may, at any time before making a decision as to whether the charge is proved, refer the case to a Visiting Justice for hearing and determination in accordance with section 137.
(2)A hearing adjudicator may exercise the powers conferred by subsection (1) only if the adjudicator considers—
(a)that the conduct that is alleged to constitute the offence may warrant a higher penalty than can be imposed by the adjudicator under section 133; 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; or
(c)that both paragraphs (a) and (b) apply.
(3)If a hearing adjudicator exercises the powers conferred by subsection (1), the adjudicator must forward a summary of his or her reasons for the decision to the Visiting Justice.
[20] Mr Dillon, counsel for the Attorney-General, submits that reasons for referral were provided, and so there is no impropriety. Accordingly, he says the first cause of action must fail.
[21] In the Record of Hearing for the first hearing which is signed by the hearing adjudicator, under the heading “Referral to Visiting Justice”, the following reason for referral is stamped onto the form:
The Conduct that is alleged to constitute the offence should warrant a higher penalty than can be imposed by the adjudicator under Section 33.
[22] In his written submissions, Mr Hickey concedes that the hearing adjudicator did provide reasons, but says the reasons incorrectly referred to s 33 when the correct reference is s 133 of the Act.
[23] In his affidavit Mr Shardlow explains how the stamp came to have the wrong section number namely s 33 instead of s 133. He says the stamps used by hearing adjudicators had been stored in his office at Waikeria Prison. His office was entirely destroyed in the fires during the riots over the New Year period between 2020–2021. New supplies had to be ordered and unfortunately there was an error in this stamp. The stamp was replaced as soon as the error was noticed.
[24] The hearing adjudicator gave reasons for his decision to refer the matter to a Visiting Justice. The reasons given for doing so substantively accord with s 134(2)(a) above. The reference to an incorrect section number does not invalidate the reasons.
[25]Accordingly, Mr Kumar’s first cause of action fails.
Refusal of Mr Kumar’s request for legal counsel (second cause of action)
[26] Mr Kumar pleads that it was unfair and unreasonable of the Visiting Justice at the third hearing to refuse his request for legal counsel.
[27] In his submissions Mr Hickey says the refusal to permit Mr Kumar to have a lawyer was a breach of the right to natural justice in s 27 of NZBORA.
[28] Applications for legal representation in disciplinary hearings is governed by s 135 of the Act, which relevantly provides:
135Applications for legal representation
…
(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.
…
[29] Mr Dillon submits that the Visiting Justice exercised her discretion not to grant the request for legal counsel having appropriate regard to the criteria in s 135(2). As regards those criteria Mr Dillon submits that the seriousness of the conduct and the magnitude of penalty were moderate; procedural difficulties were unlikely; Mr Kumar had adequate capacity to represent his case effectively and the hearing was conducted fairly. He submits these factors do not tend to count in favour of legal representation or against the Visiting Justice’s findings. He says that the Visiting Justice’s decision is rational and therefore not amenable to judicial review.
[30] The “right” to a lawyer in prison discipline proceedings was considered in depth by Brewer J in Obiaga v The Visiting Justice at Auckland Prison.9 In that case Mr Obiaga had been involved in a fracas with other prisoners. He was charged under the prison discipline regime with assaulting another prisoner and disobeying a lawful order of a prison officer. The charges were found proved by a hearing adjudicator and again found proven on Mr Obiaga’s appeal to a Visiting Justice. Mr Obiaga applied for judicial review of the processes adopted by the Visiting Justice claiming those processes breached his right to natural justice.
[31] Mr Obiaga had been denied a lawyer. On review, he said he had wanted to justify his actions by claiming he acted in defence of himself and in particular in defence of another prisoner. He said he needed a lawyer to assist him to understand and articulate his justification. He said this was particularly necessary because English was not his first language.
[32] I quote in some detail from Obiaga because of the full and helpful discussion of the relevant principles:
[13] … The contest between the parties, really, comes down to what the entitlement to natural justice means in the context of determining allegations of breaches of prison discipline.
[14] The concept of natural justice is not a fixed one. Identifying the relevant principles may be simple, but giving content to those principles is more difficult. Often cited is the Privy Council’s definition that natural justice “is but fairness writ large and juridically… fair play in action”. …
[15] There is a necessary element of flexibility. The English Court of Appeal said the requirements of natural justice must depend on the circumstances of the case, including “the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth”. The significance of the decision will be a relevant factor, as will the purpose of the statute under which the decision-making power is being exercised. Our Court of Appeal recently distilled the matter into one question: what is required to ensure fairness in the particular case?
[16] In this case the context is prison discipline. The issue is what was required of the prison disciplinary system to ensure Mr Obiaga was treated fairly.
(footnotes omitted)
9 Obiaga v The Visiting Justice at Auckland Prison [2018] NZHC 3095.
[33] Justice Brewer then referred to the nature and purpose of the prison disciplinary scheme and its surrounding statutory framework by reference to Drew v Attorney- General in which the Court of Appeal considered the predecessor to the Act.10 Justice Brewer captured what the Court of Appeal said in this way:11
[18] Justice McGrath went on to draw distinctions between the disciplinary scheme and the criminal justice system, noting:
(a)The disciplinary system provides for significantly less severe maximum penalties than the criminal justice system for equivalent conduct.
(b)The implications of a finding that a disciplinary charge is proved are less far-reaching; the finding will not form the part of any criminal record.
(c)The second stage of the disciplinary process has the power to impose harsher penalties than the first.
(d)The disciplinary system operates in a more inquisitorial manner than the adversarial criminal justice system.
[34]The judgment in Obiaga then continues:
[19]Similarly, in Goldberg v Attorney-General, Baragwanath J said:
[55] … While it is now settled that the basic human rights such as natural justice including fair process and access to legal advice remain the entitlement of a prisoner, it does not follow that the statutory sanctions engage the entire panoply of the criminal law…
[20] There is also a need for efficiency. As Dunningham J put it recently, “the disciplinary scheme in the Corrections Act is intended to operate swiftly and comparatively informally”. Similar comments were made by the Court of Appeal in Department of Corrections v Taylor:
[51] … But, as Ms Casey submits, there is a need for an efficient and speedy resolution, particularly, of these preliminary matters. The figures cited in Drew at [41] were in the order of about 8,800 offences involving Superintendent hearings per year plus about 800 Visiting Justice hearings. That figure is likely to have increased with the increase in the prison muster.
[21] Efficiency of process must be weighed as part of the matrix of natural justice considerations. It is true that a prisoner going through a disciplinary hearing may not be entitled to all the protections of a defendant in a criminal proceeding. But it is important to recognise that many prisoners are in a position of particular vulnerability when taking part in quasi-judicial processes. This may be due to a combination of factors, such as poor
10 Drew v Attorney-General [2002] 1 NZLR 58 (CA).
11 Obiaga v The Visiting Justice at Auckland Prison, above n 9.
education, lack of financial resources and various substance abuse and mental health problems. The basic standards of natural justice must be met.
…
[23] Also of importance is the right to legal representation. As s 135 of the Act provides, this right is not unlimited and not guaranteed in the context of prison discipline. It is a discretionary matter for a hearing adjudicator or Visiting Justice, having regard to the statutory criteria. The discretion cannot, of course, be exercised in an arbitrary way. As Whata J recently said, the object of the criteria is to secure a disciplinary decision in accordance with the principles of natural justice and in compliance with New Zealand’s domestic and international fair trial obligations. …
(footnotes omitted)
[35] Justice Brewer went on to note that the justification of defence of self or another is not simple (particularly for someone who speaks English as a second language). The Judge then held:
[30] Mr Obiaga needed to know also that once he had established a credible or plausible narrative for defence of himself and/or Mr Hay, the onus was on the prosecution to prove beyond reasonable doubt that self-defence did not justify Mr Obiaga putting Mr Lawson in the headlock.
[31] In my view, denying Mr Obiaga permission to be legally represented without inquiry as to the nature of Mr Obiaga’s defence and taking that into account, was an error of process.
[36] I return to the present case. The notes of evidence for the third hearing show that after Mr Kumar made the request for legal representation, the Visiting Justice first read out the factors in s 135(2) of the Act. After Mr Kumar and the prosecutor were given a chance to make submissions on the issue, the Visiting Justice declined the request as follows:
VISITING JUSTICE:
Thank you. All right, so I’m going to give my decision now. My decision is that the request is refused because when I consider the criteria under section 135 I don’t see that there’s any reason that it’s needed. This is not an overly complex matter. It’s fairly simple and these misconducts, the ones about misusing the phone, are dealt with very frequently at Waikeria VJ hearings without legal representation and it’s unlikely that the penalty would be extremely high. I don’t see that the issues are very complex. It’s really just a simple factual issue about whether the phone was misused or not and all that has to be looked at is the prisoner telephone rule and the evidence about the phone call.
I consider that you can present your case very clearly. You’re a very good communicator and you clearly are able to read legislation and look at legal precedence [sic]. So it appears that you have some really excellent skills in that department.
There is a need for reasonable speed and decision making and in my experience in the past when legal representation is being granted it can really drag out because lawyers aren't available when we have our hearings. So, I think it’s important that we press on at the next VJ hearing date.
Finally, there’s nothing about your ability to participate that I have any concerns about. So really this section of the Act is there when people have a real difficulty speaking well, communicating well, perhaps have some mental unwellness. It’s really here for people that just cannot participate in the process without help and I don’t see that you’re falling into that category. So my decision is that your request is declined. …
[37] I consider the decision to decline legal representation was available to the Visiting Justice for the reasons she gave. This case can be distinguished from Obiaga on the facts. This was not a case where Mr Kumar was in a position of particular vulnerability for any reason and the matter was not overly complex.
[38] A review of the notes of evidence of the fourth hearing reveals that Mr Kumar understood the charge and that he was clearly able to articulate a defence, including by cross-examination of the Corrections witness. In fact, key arguments made by counsel for Mr Kumar before this Court, firstly that Mr Kumar should have been provided with a transcript of the phone calls and that the full recordings of those calls should have been played, were arguments Mr Kumar himself made at the hearing. A further key plank of Mr Kumar’s case in this Court was that Mr Kumar did not “participate in call diversion”. Mr Kumar was also able to make that argument himself before the Visiting Justice. His reasons advanced for that submission were the same reasons now advanced in this hearing.
[39] For all the above reasons the decision to refuse Mr Kumar’s request for legal representation did not involve a breach of natural justice. The second cause of action fails.
Hearing the charge without a transcript or full particulars of the phone calls (third cause of action)
[40] Mr Kumar pleads that Corrections failed to provide him with either a transcript of the two phone calls or a written statement setting out the full particulars of the phone calls.
[41] He says the Visiting Justice either unfairly or unreasonably ruled at the third hearing and fourth hearing that a transcript of the phone calls was not required and/or the Visiting Justice unfairly or unreasonably failed to listen to the full recordings at the fourth hearing.
[42]Section 121 of the Act provides as follows:
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.
[43] Mr Dillon agrees that Mr Kumar is correct in saying that a transcript was not provided and that evidence of the two phone calls was adduced in the form of recordings. But Mr Dillon goes on to submit that the recordings were not primarily or solely relied upon. Mr Dillon says that the recordings were secondary to oral evidence from the Corrections witness, and further, Mr Kumar was afforded an opportunity to listen to the recordings of the phone calls on 27 May 2021. (I will return to that latter point in the context of the fourth cause of action).
[44] Mr Dillon further says that Corrections explained at the second and third hearings that it intended to adduce oral evidence of the phone calls. As recorded in the notes of evidence from those hearings, the witness was not available on those occasions. The witness was called at the fourth hearing.
[45] Mr Dillon goes on to say that Mr Kumar was provided with written synopses of the two phone calls on 3 May 2021. Those synopses set out the times, place, and dates of the calls, the names of the recipients and sufficient particulars to fully and fairly inform Mr Kumar of why he was charged. Mr Dillon accordingly submits that s 121(a)(ii) and (b) were complied with. I set out the synopses below:
Date: 25-04-2021
Prisoner: Pravin Fia Hari Prasad Kumar
Prison: Waikeria Prison Call Recipient: [PC] Time: 09:22:13
Number: [approved mobile number for PC]
Call Duration: 00:14:38
Synopsis of call content: KUMAR asks if [PC] can go online to KUMAR asks him to log onto an account using the telephone number [approved 0800 phone number]. [PC] discusses the account's credit balance and KUMAR asks him to 'top up' the account with one hundred dollars. KUMAR gives him the details of a Visa debit account and [PC] attempts a [sic] to make a payment but is unsuccessful. [PC] says it has the wrong CVE number. KUMAR says he is surprised it did not work as his brother from USA had successfully used the same CVE number. KUMAR then asks [PC] to log onto He asks him to enter the telephone number [approved 0800 phone number] with the password [redacted]. KUMAR tells him to go to 'forward number at all times' and change the telephone number to [unapproved phone number]. He then tells him to 'save options'.
Comment: the next day KUMAR makes a telephone call to [approved 0800 phone number]
Comment Ends.
KUMAR ends the telephone call saying 'I have ten cents left its going to cut out'.
Assessments/Comments: KUMAR has the telephone number [0800 phone number] approved using the name [redacted]. KUMAR does not have the telephone number [unapproved phone number] approved.
...
Date: 26-04-2021
Prisoner: Pravin Fia Hari Prasad Kumar
Prison: Waikeria Prison Call Recipient: [AB] Time: 14:43:00
Number: [approved mobile number for AB]
Call Duration: 00:10:47
Synopsis of call content: KUMAR asks if [AB] can go online to KUMAR asks her to log into an account with the telephone number [approved 0800 phone number] and with the password [redacted]. KUMAR tells her to go to 'forward number at all times' and change the telephone number to [unapproved Australian number]. He then tells her to 'save options'.
Comment: the next telephone call KUMAR makes is to [approved 0800 phone number]
Comment Ends.
KUMAR says he wants to talk to his brother in Australia. He will ask him to come to New Zealand. KUMAR asks if she had heard from 'Jahvarn'. [AB] says she has not heard from him because he only gets one five-minute telephone call a week because he is on loss of privileges.
...
Assessments/Comments: KUMAR has the telephone number [approved 0800 phone number] approved using the name Mahon PRASAD. KUMAR does not have the telephone number [unapproved Australian number] approved.
...
[46] Mr Dillon submits that given s 121(a)(ii) and (b) were complied with the point Mr Kumar makes about the absence of a transcript cannot take him anywhere meaningful on judicial review. Mr Dillon refers to Kumar v Visiting Justice at Auckland Prison where Whata J responded to Mr Kumar’s submissions as follows:12
[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
12 Kumar v Visiting Justice at Auckland Prison, above n 8.
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. 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.
(footnote omitted)
[47]Mr Hickey makes three main submissions under this cause of action:
(a)The synopsis of each of the phone calls did not set out the “full particulars” of the recordings as required by s 121(a)(ii).
(b)Having played a part of the recordings at the hearing, Corrections was required to provide a transcript. In other words, there was no compliance with s 121(a)(i).
(c)The prosecution wrongly played only part of each of the recordings of the two phone calls.
[48] In order to understand the case for Mr Kumar on this cause of action as summarised in the paragraph immediately above, it is necessary to first address his position on the fifth and sixth causes of action, because that is the foundation for his submissions on this cause of action.
[49] I set out below the offence provision, the relevant rule made by the Prison Director and the charge laid under the offence provision.
[50]Section 128(1)(a) of the Act provides:
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:
…
[51]Section 33(1) of the Act provides:
33 Manager may make rules for prison
(1) The chief executive may, subject to subsection (6), authorise the manager of a corrections prison to make rules that the manager considers appropriate for the management of the prison and for the conduct and safe custody of the prisoners.
…
[52] There is no issue in this case over the Prison Director’s authorisation to make rules.
[53] On 15 February 2018 the Prison Director made the rule that Mr Kumar is charged with contravening as follows:
Pursuant to Section 33 of the Corrections Act 2004, I am making a rule that forbids any prisoner to use the telephone to: …
·Participate in: …
o call diversion …
Any prisoner in breach of the above is to be placed on a misconduct report, in breach of Section 128(1)(a).
…
[54] I have already set out the charge at the beginning of this judgment but I repeat it here for ease of reference:
Offence
CORRECTIONS ACT 2004 SECTION (128) SUB SECTION (1) PARAGRAPH (a)
Being a Prisoner at Waikeria Prison between the 24 and the 25 April 2021, fails to comply with any rule of the Prison made under Section 33.
Report
On the 29 April 2021, Prosecutions Officer T Hughes received information from Corrections Intelligence that between the [25] and the [26] April 2021, Prisoner KUMAR Pravin Fia Hari Prasad had misused the Prisoner telephone system.
[55] Mr Hickey’s arguments centre on what he submits is meant by “participating in call diversion”. He says there was no evidence that Mr Kumar made phone calls to unauthorised numbers. He, therefore, did not participate in call diversion. Mr Hickey refers the Court to R v Ngaheu where the Court considered the meaning of “participate” in a different context. In that case the defendants were on trial for a number of charges including a charge of participating in an organised criminal group.
On the meaning of participate Keane J said:13
[25] To prove the actus reas of the offence the Crown must prove that the accused 'participated in' ... (the) organised criminal group' contended for. 'Participate' is not a term of art. Principal and party liability under s 66 has no part to play. Section 98A is a code. 'Participate' has its natural meaning. That is, as the Oxford English Dictionary defines it, 'to take part; to have a part or share with ... '. …
[26] To 'participate' does not mean 'to associate', which the Oxford English Dictionary defines to be 'to join (persons, or one person with another), in common purpose ... '. The Select Committee on the Bill assumed that the two are not synonymous. So, to 'participate' in an unlawful criminal group does not mean to join it. ...
[27]To 'participate' does call for something overt. ...
(footnotes omitted)
13 R v Ngaheu HC Rotorua CRI-2009-063-00102, 1 April 2010 at [25]–[27].
[56] Relying on the meaning of the word “participate” as discussed by Keane J, Mr Hickey’s submission is to the effect that participation in call diversion requires proof that Mr Kumar participated in a phone call that was actually diverted.
[57] I do not accept that submission. Such conduct would constitute calling an unapproved number.
[58] The case for the prosecution at the fourth hearing and before this Court is that Mr Kumar’s conduct of phoning an approved number (the number for PC on the first call and AB on the second call) and instructing them in the course of the phone call to go onto a website and set up the respective 0800 numbers (which were approved) to operate so as to forward to two unapproved numbers14 respectively, constituted the offence of participating in call diversion.
[59] I accept the prosecution properly characterises the charge of “participating in call diversion”. PC’s and AB’s acts of setting up the 0800 numbers to divert to other numbers was call diversion. Mr Kumar participated in that conduct by instructing PC and AB, in the course of his phone calls to them, to divert calls from approved numbers to two other numbers that were not approved. Accordingly, he participated in call diversion.
[60] With that finding I return to the three main submissions advanced by Mr Hickey.
[61] First, he submits that the written synopses do not meet the requirement in s 121(a)(ii) because they only set out relevant particulars of the phone calls (as chosen by the prosecution), as opposed to “full particulars” as required by the Act.
[62] I do not accept that submission. Transcripts of the two phone calls were available for the hearing in this Court. It is apparent from those transcripts and the notes of evidence taken at the fourth hearing that Mr Kumar’s instructions on call diversion to PC and AB occurred at the beginning of the respective phone calls. The
14 As already noted in footnotes 4 and 5 above, Mr Kumar says the numbers to which the 0800 numbers were diverted were approved numbers. The evidence is to the contrary, as discussed later in this judgment.
relevant part of each call was summarised in the synopsis for each phone call and was made available to Mr Kumar on 3 May 2021. The rest of the two phone conversations was in respect of unrelated or irrelevant matters.
[63] The statutory requirement in s 121(a)(ii) that the written statement must set out the “full particulars” must mean particulars relevant to the charge, including particulars relevant to possible defences to the charge. Content that is entirely irrelevant to the charge or a potential defence is not required to be summarised.
[64] Mr Hickey’s submission that the content of the rest of the phone calls needed to be incorporated in the written statement setting out particulars rests on his misconceived argument (which I have not accepted) that participating in a phone call requires the prosecution to prove that Mr Kumar actually participated in a call that was diverted to an unapproved number. Based on that submission Mr Hickey says that the rest of the phone call, which was not included as part of the particulars, would have shown that Mr Kumar did not make a phone call to an unapproved number.
[65] It was not necessary for the parts of the phone call that are not relevant to the charge or a potential defence to be included as particulars. Mr Kumar’s defence as argued both before the Visiting Justice and in this Court rests, as I have explained, on a misconception of what it means to have participated in call diversion.
[66] Mr Kumar’s second main submission on this cause of action was that having played a portion of the recording at the hearing, a transcript needed to be provided. In other words there was no compliance with s 121(a)(i) of the Act.
[67] I do not accept that submission. Section 121(a) creates alternatives. I have found there was compliance with s 121(a)(ii).
[68] Section 121(a) is a notice provision. Mr Kumar had notice of the case against him by the prosecution providing him with the written statement in accordance with s 121(a)(ii) and s 121(b) (although there seems to be no issue in regard to s 121(b)). Accordingly, Mr Kumar had notice of the case against him in a form as required by statute. The playing of a short portion of the recording does not, in my view, create
an additional obligation to comply with the alternative in s 121(a)(i) by producing a transcript.
[69] As to the importance of the transcript, Mr Hickey contends this is one of those cases where Mr Kumar relies on the contents of the phone calls to the extent that refusal to provide the transcript adversely affected the outcome of his case. Again that contention is founded on the misconceived submission as to what is meant by “participating in call diversion”. Mr Hickey relies on a passage of Whata J’s judgment which I have already referred to:15
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.
[70]This similarly is not such a case.
[71] Mr Hickey’s third main submission is that the prosecution wrongly played only part of the recordings of the two phone calls. That argument also fails for the very same reasons I have already given above. The prosecution relied on the written statement setting out the full particulars and in any event the parts of the two calls played was the only relevant part of each of those two phone calls.
[72]The third cause of action fails.
Breach of natural justice (fourth cause of action)
[73] In addition to alleged breach of s 121, Mr Hickey further submits that the Visiting Justice’s decision to hear the charge without the transcripts breached Mr Kumar’s NZBORA rights to:16
(a)have adequate facilities to prepare a defence;
(b)be provided with a transcript of the recordings or full particulars of the phone calls;
15 Kumar v Visiting Justice at Auckland Prison, above n 8, at [54].
16 New Zealand Bill of Rights Act, ss 24(d), s 27.
(c)be given proper notice of the case against him;
(d)be given a fair opportunity to present his case; and
(e)legal representation.
[74] I have already found that Mr Kumar had proper notice of the case against him as the prosecution complied with the (alternative) requirement under s 121(a)(ii) and the requirement under s 121(b) of the Act. I have also found that the Visiting Justice did not act unreasonably in denying Mr Kumar’s requests for legal representation and to be provided with a transcript of the recordings.
[75] The submissions Mr Hickey makes in respect of this cause of action seem to rest on the circumstances around Mr Shardlow arranging for Mr Kumar to hear recordings of the two phone calls on an occasion prior to the fourth hearing.
[76] In his affidavit of 7 March 2024 Mr Shardlow said he played the recording of the phone calls to Mr Kumar on the morning of 27 May 2021. He said he did so because Mr Kumar had asked to hear it. He says Mr Kumar only listened for around five to 10 seconds before saying he had heard enough. Mr Shardlow says he asked Mr Kumar several more times, confirming he had the full phone calls ready to play for him, but Mr Kumar declined to hear any more. Mr Shardlow says he remembers the occasion quite well because he went out of his way to get the recording for Mr Kumar, at his request, but then he did not listen to it properly.
[77] Mr Shardlow refers to the notes of evidence from the third hearing where Mr Kumar referred to the audio recording:
VISITING JUSTICE TO PRISONER:
QRight, okay so Mr Kumar the hearing can’t go ahead today because the witness is not available. I understand you wish to discuss legal representation, is that correct?
AYes your Honour. Before we go there I just want to make it perfectly clear that my request is for my transcript and not audio recording and that is a requirement under section 121 of the Corrections Act – I’ll put it here – and it is not a question of whether I listen or not listen to the recording. It is the full transcript which is the question here …
[78] Mr Shardlow further deposes that at the time he endeavoured to play the recordings to Mr Kumar, Mr Kumar did not ask for pens or paper to make notes of the recordings despite there being pens and paper in the room that could have been made available to him. Neither did Mr Kumar ask for anything from his cell to assist him. Mr Shardlow said he had set aside time that morning so there was no rush for Mr Kumar to listen to the recordings. Further, Mr Kumar did not ask at any later stage to listen to the recordings.
[79] In his affidavit in reply Mr Kumar says he disagrees with Mr Shardlow’s account of events on 27 May 2021 as set out above. Mr Kumar says he did not ask to hear the audio recordings and he was taken by surprise when he was shown into Mr Shardlow’s office to listen to the recordings. He had not received a transcript of the recordings and immediately asked “where is the transcript?” When no transcript was produced, Mr Kumar says he walked out. He says he did not listen to the recordings offered by Mr Shardlow.
[80] I consider on the basis of the evidence summarised in both affidavits there was an adequate opportunity given to Mr Kumar to listen to the recordings. On his own evidence, he walked out because there was no transcript.
[81] But in the end, the particulars of the account of events summarised above are irrelevant as I have found that Mr Kumar was given notice of the case against him in accordance with the statutory requirement under s 121(a)(ii).
[82]Accordingly, the fourth cause of action fails.
Finding the charge proved (fifth and sixth causes of action)
[83] Mr Hickey submits that the Visiting Justice erred in finding that the charge against Mr Kumar proved because “primary facts were found that were not supported by the evidence”. There are two planks to this submission: Mr Kumar only made calls to approved numbers, and Mr Kumar followed the correct prison process.
[84] I have already considered the first argument in the context of my decision on the third cause of action. I have rejected Mr Hickey’s submission that there was no
participation in call diversion. I also reject the submission that Mr Kumar only instructed PC and AB to divert phone numbers to phone numbers which were approved. Mr Shardlow’s evidence was that those two phone numbers had previously been approved numbers for Mr Kumar in 2018 but they were not approved numbers at the time of offending. One of those numbers was deleted from Mr Kumar’s list of approved phone numbers on 1 November 2018 and the other on 19 February 2020. They were deleted at Mr Kumar’s request.
[85] Mr Shardlow further deposes that Mr Kumar did not follow the correct prison process for new approvals. Mr Shardlow says that if a prisoner wishes to have a deleted number approved again, they must go through the usual approval process. Mr Kumar did not take any steps in accordance with that process.
[86] Having disposed of Mr Hickey’s arguments, it seems to me that his submissions have the character of submissions that would be made on an appeal rather than in an application for judicial review. Having said that, I accept that there are occasions when an error of fact may involve a question of law. In Bryson v Three Foot Six Ltd, Blanchard J, giving the judgment of the Supreme Court, said:17
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable — so clearly untenable — as to amount to an error of law: proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”. Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test. …
(footnote omitted)
[87] In this case there was no such error. The evidence supported the Visiting Justice’s finding.
[88]Accordingly, the fifth and sixth causes of action fail.
17 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
Result
[89]Mr Kumar’s application for judicial review is refused.
Costs
[90] I did not hear from the parties on costs. The Court understands Mr Kumar is legally aided. If the Attorney-General does, however, wish to make an application for costs, a memorandum is to be filed within five working days of the date of this judgment. Mr Kumar may reply within five working days of service of the Attorney-General’s memorandum on him. Memoranda should not exceed four pages. I will determine costs on the papers.
Gordon J
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