Marong v Attorney-General

[2021] NZHC 3347

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000410

[2021] NZHC 3347

BETWEEN

SAINEY MARONG

Plaintiff

AND

THE ATTORNEY-GENERAL (on behalf of the DEPARTMENT OF CORRECTIONS)

First Defendant

AND

THE CHRISTCHURCH MEN’S PRISON MANAGER

Second Defendant

Hearing:	29 November 2021
Appearances:	Mr Marong appears in person M N Zarifeh for Defendants
Judgment:	8 December 2021

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 8 December 2021 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MARONG v ATTORNEY-GENERAL [2021] NZHC 3347 [8 December 2021]

Introduction

[1]    The plaintiff, Mr Marong, is serving a life sentence for murder. The first defendant is the Attorney-General, sued on behalf of the Chief Executive of the Department of Corrections (Corrections). The second defendant is the Christchurch Men’s Prison Manager.

[2]    Mr Marong has brought his claim against the defendants by way of application for summary judgment. Counsel for the defendants, Mr Zarifeh, submitted that due to the grounds advanced it is, in fact, by nature an application for judicial review. I agree and shall deal with it on that basis

[3]    Pursuant to s 45A of the Corrections Act 2004 the Chief Executive of Corrections has issued rules declaring what property prisoners may have and keep in their possession, subject to conditions. One of those is that a prisoner may have no more than 12 CDs in their possession at any one time.

[4]    On 13 April 2021, Mr Marong applied to retain in his possession a complete audio book of the Qur’an, which was comprised of 17 CDs.

[5]    On 14 April 2021, the acting Principal Corrections Officer (PCO) and Reception Movements Manager (RMM)  at  Christchurch  Men’s  Prison  granted  Mr Marong’s application, the effect being to authorise an exception to the rules.

[6]    On 24 May 2021, Mr Marong was transferred to Rolleston Prison. The exception to the rules regarding possession of the full set of CDs was not communicated to staff at Rolleston Prison, who applied the rules without exception. They retained five of the CDs at the Staff Base of Mr Marong’s unit so he could swap them in and out with others as needed.

[7]    On 14 July 2021, Mr Marong filed a complaint about this. There was a delay of two months before  the  matter  was  resolved.  The  exception  was  reapplied,  Mr Marong was then supplied with the full complement of 17 CDs and hence was reinstated with a complete copy of the Qur’an.

[8]    Relying on the initial decision made by or on behalf of the Prison Manager at Rolleston Prison, Mr Marong claims Corrections have breached his rights under:

(a)s 13 of the New Zealand Bill of Rights Act 1990 (NZBORA) to freedom of thought, conscience, religion and belief, including the right to hold opinions without interference. He seeks a declaration to this effect; and

(b)s 15 of NZBORA to manifest his religion or belief in worship, observance and practice.

[9]Mr Marong seeks further declarations to this effect.

[10]Third, he also seeks damages in the sum of $7,500.

[11]   Corrections say they did not unreasonably withhold the full text of the Qur’an from Mr Marong and did not therefore breach Mr Marong’s rights under NZBORA.

The Corrections Act 2004

[12]The Corrections Act 2004 provides:

5Purpose of corrections system

(1)The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—

(a)ensuring that the community-based [sentences, sentences of home detention,] and custodial sentences and related orders that are imposed by the courts and the New Zealand Parole Board are administered in a safe, secure, humane, and effective manner; and

(b)providing for corrections facilities to be operated in accordance with 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; and

(c)assisting in the rehabilitation of offenders and their reintegration into the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions; and

(d)providing information to the courts and the New Zealand Parole Board to assist them in decision-making.

(2)Subsection (1) does not affect the application or operation of any other Act.

6Principles 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:

(g)sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision:

(h)offenders must, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community:

(i)contact between prisoners and their families must be encouraged and supported, so far as is reasonable and practicable and within the resources available, and to the extent that this contact is consistent with the maintenance of safety and security requirements.

(2)Persons who exercise powers and duties under this Act or any regulations made under this Act must take into account those principles set out in subsection (1) that are applicable (if any), so far as is practicable in the circumstances.

(3)Subsection (1) does not affect the application or operation of any other Act.

[13]   Under s 45A of the Act the Chief Executive of Corrections has the mandate to create an authorised property register.

[14]Section 45A provides:

45A     Rules about authorised property

(1)       The chief executive—

(a)must, in respect of all corrections prisons, make rules declaring the items of property that prisoners may be issued with or allowed to keep; and

(b)may make rules imposing conditions that attach to an item of property so declared;

…

(3)       [Rules under this section are secondary legislation …]

[15]   The latest revision of this (01/12/2020) breaks down a number of categories and subcategories of property and their approved quantities.

[16]Of relevance are religious items:

(a)one each of Muslim cloth head cover, prayer beads and prayer mat;

(b)a religious picture for private devotion;

(c)other religious item used for prayer or devotion;

(d)books, magazines and newspapers including bible, prayer books and other religious texts (all subject to quantity limits); and

(e)commercial issue cassettes and CDs (with a limit of 12 of each).

Background

[17]   Mr Marong was sentenced to life imprisonment in 2018, having been found guilty of murder. He was a prisoner at Christchurch Men’s Prison from 27 May 2018 until 24 May 2021, when he was transferred to Rolleston Prison. Mr Marong is classified as a low-medium security prisoner.

[18]   On 13 April 2021, Mr Marong completed a property form for an audiobook version of the Qur’an which comprised 17 CDs.

[19]   Corrections staff at Christchurch Men’s Prison made an exception to enable Mr Marong to receive the full text of the Qur’an for the purpose of his religious worship, observance and practice, notwithstanding that comprised 17 CDs.

[20]   Mr Marong was transferred to Rolleston Prison on 24 May 2021. The CDs were received by Christchurch Men’s Prison on 9 June 2021. The information that at Christchurch Men’s Prison they had approved his possession of all 17 CDs was not known to the Prison Manager at Rolleston Prison. He was initially only provided with 12 of the 17 CDs.

[21]   On 14 July 2021, Mr Marong completed a PC01 complaint with respect to only receiving 12 of the 17 CDs.  Staff at Rolleston Prison responded to this request on  11 August 2021. It was resolved that the remaining five CDs would be kept in the Staff Base of his unit so he could swap them in and out whenever he needed to.

[22]On 15 September 2021, Mr Marong filed his statement of claim.

[23]   On 22 September 2021, the RMM of Christchurch Men’s  Prison met with  Mr Marong at Rolleston Prison. After that meeting the RMM recommended to the Prison Directors of both prisons that all 17 CDs be issued to Mr Marong, so that he might retain them in his possession to facilitate or manifest his religious worship, observance and practice. Both Prison Directors accepted this recommendation.

[24]   Mr Marong received the full complement of CDs and thereby the full text of the Qur’an on 23 September 2021.

[25]   The Prison Directors had understood this resolved the legal proceedings, so no statement of defence was filed.

[26]   On 14 October 2021, the Prison Director of Christchurch Men’s Prison wrote to Mr Marong confirming the issue of the additional CDs and apologising for the delay in providing them to him.

[27]   On 21 October 2021, Mr Marong applied for summary judgment against the defendants.

Legal principles

[28]   The lawfulness of a decision can be challenged where it is unreasonable in an administrative law sense. Examples of unreasonable decisions are where a decisionmaker had more than one option but the decision reached was unsupported by a reasoned justification,1 or where the decision was so disproportionate in its weighing of competing factors that the outcome was unreasonable.2

[29]   Ordinarily in judicial review proceedings the Court must come to its determination on the basis of the material before the decisionmaker at the time of the decision.3 If context or explanatory reasons are provided by way of affidavit after the fact, it must normally be shown that the context or explanatory reasons were contemporaneous with the decision itself.

[30]   As a preliminary matter, I turn to the issue of the degree of scrutiny the Court must employ when reviewing the decision. This is known as the intensity of review as set out in Watson v Chief Executive of the Department of Corrections.4 In that case, Mr Watson successfully obtained judicial review of a decision by Corrections declining his application to be interviewed by a journalist. Mr Watson had been convicted of the murder of two teenagers and sentenced to life imprisonment with a minimum period of imprisonment of 17 years. He had exhausted all his appeal rights and his application for the Royal Prerogative of Mercy had been rejected. The interview was sought because the journalist wished to write an article on Mr Watson’s case and to investigate his claim that he was a victim of a miscarriage of justice

1      C v Medical Council of New Zealand [2013] NZHC 825, [2013] NZAR 712.

2      Shaw v Attorney General (No 2) [2003] NZAR 216 (HC).

3      Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [33]; citing Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 658; Discount Brands Ltd v Northcote Mainstreet Inc [2004] 3 NZLR 619 (CA) at [46]; and Palmerston North City Council v Drury [2007] NZCA 521; [2008] NZRMA 90 at [62]–[63].

4      Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227 [Watson (No 1)], (2015) 10 HRNZ 505.

[31]   Dunningham J found that the intensity of review depends on the subject matter, and the range of rational decisions available to the decisionmaker depends upon the circumstances of the case.5 In the prison context, Dunningham J said:

[48]      To summarise, in the prison context, I accept it is appropriate to accord weight to the Chief Executive’s assessment of what is required to ensure the security and good order of the prison. I also accept that a prisoner’s right to freedom of expression is necessarily limited, both because that is inherent in the punishment imposed, and for reasons related to the effective administration of the prison.

[49]      However, the courts have regularly recognised that the right to express concerns about an alleged miscarriage of justice is a legitimate exception to those restrictions and there is both an individual, and a public, interest in facilitating a prisoner’s ability to ventilate these issues where that can be done in a responsible and considered way. In this area, the Chief Executive is not in any better position than the courts to judge how concerns about the interests of the victims should be weighed against the protection of the right affirmed

…

Breach of s 13

[32]   I deal with the alleged breach of s 13 of NZBORA first. The right that is upheld here is the right to be free from coercion to affirm a specific religious belief. In other words, freedom of religion means freedom of religion to believe or manifest a certain religious practice. There is no evidence in this case that Corrections have sought to coerce Mr Marong to obeisance to any religious orthodoxy. They have generally tried to support him in his religion and belief. In those circumstances, his application for a declaration on that ground is declined.

Breach of s 15

[33]   Second, I deal with Mr Marong’s claim that Corrections have breached s 15 of NZBORA by denying him the right to manifest his religion and belief in worship, observance and practice.

[34]   Mr Marong is a Muslim. The Qur’an is what he describes as “the Hallmark of the Muslim faith”.  It contains 114 chapters, all of which he says he has an obligation

5      At [32]–[33], citing R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; (2001) 2 AC 532 at [28] per Lord Steyn; and Pham v Secretary of State for the Home Department (Open Society Justice Initiative Intervening) [2015] UKSC 19; [2015] 1 WLR 1591 at [108].

to recite as part of his worship. Further, he explains that the five CDs that were retained for the period of 26 June 2021 to 23 September 2021 contained 78 of the chapters he needed to recite.

[35]   The authors of The New Zealand Bill of Rights explain what “worship” in this context means:6

Worship according to the Human Rights Committee in General Comment 22 extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts … “Observance” suggests following a code of conduct.

[36]   The relevant decision at issue in this case is the decision taken at Rolleston Prison upon his transfer there (to allow him possession of 12 rather than 17 CDs).

[37]   The decision was made in ignorance of the decision (an exemption to the rules) at Christchurch Men’s Prison. The Rolleston decision resulted in Mr Marong having only 12 of the 17 CDs in his possession at any one time for the period 28 June 2021 to 23 September 2021.

[38]   Corrections have never denied Mr Marong the right to worship. They have actively facilitated his having the Qur’an to fulfil his rituals. While there may have been some delay between 28 June 2021 and 23 September 2021 in his receiving the full Qur’an text, he was still actively supported in his right to have the Qur’an for the purposes of giving direct expression to his belief. While it may have had the effect of not allowing him to give full and direct expression to his belief instantaneously at all times, the decision was his as to which parts of the Qur’an he wished to access. He could therefore effectively control what he needed to give expression to his beliefs.

[39]   The decision has all the hallmarks of administrative error in a large organisation rather than a calculated decision to deprive Mr Marong of a legitimate right.

[40]As the authors of The New Zealand Bill of Rights state:7

6      Rishworth et al, The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 293-294.

7      Rishworth, above n 6, at 30.

Needless to say, reasonable people may well differ over where the benchmark of consistency with rights is to be set in particular cases – a fact amply attested by comparative jurisprudence on constitutional rights, which often involves dissenting judgments on the merits in closely divided courts. But the necessity for evaluation and the capacity for disagreement should not obscure the fact that there is a benchmark. When a case is presented to a court that standard is for the court to assess.

[41]   The delay occasioned by the failure to properly communicate the decision (to the effect that Mr Marong was to have the full text of the Qur’an in his possession) between the two prisons falls far short of the requisite benchmark to establish a deliberate and disproportionate limitation on Mr Marong’s right to manifest his religion and belief in worship, observance and practice.

Damages

[42]   Mr Marong seeks damages in the sum of $7,500. He relies on Mitchell v Attorney-General in which $1,500 was awarded to compensate Ms Mitchell for a breach of s 14 of the Act.8 On two occasions Ms Mitchell’s letters to a prisoner at another prison had been withheld unreasonably. Both the declaration and the damages were made by consent.

[43]   In Attorney-General v Van Essen9 between [79] to [86] the Court of Appeal reaffirmed the approach to public law damages in a broad context as mandated by the Supreme Court in Taunoa v Attorney-General.10 In Van Essen at [82] the Court stated that the first step is to consider “the non-monetary relief that can or has been given”. It is only if something more is required to vindicate the breach and any relevant injury that an award of damages will be considered necessary.

[44]   Damages are a discretionary remedy rather than a right, and a right-centred approach does not necessarily require compensation to be part of the remedy.11

[45]As to the scope of relief, McGrath J noted at [368] of Taunoa:12

8      Mitchell v Attorney-General [2017] NZHC 1320.

9      Attorney-General v Van Essen [2015] NZCA 22, (2015) 10 HRNZ 155.

10     Taunoa v Attorney-General [2007] NZSC 170, [2008] 1 NZLR 429.

11     Attorney-General v Van Essen, above n 9, at [85].

12     Taunoa v Attorney-General, above n 10.

[368] The court’s finding of a breach of rights and a declaration to that effect will often not only be appropriate relief but may also in itself be a sufficient remedy in the circumstances to vindicate a plaintiff’s right. That will often be the case where no damage has been suffered that would give rise to a claim under private causes of action and, in the circumstances, if there is no need to deter persons in the position of the public officials from behaving in a similar way in the future. If in all the circumstances the court’s pronouncement that there has been a breach of rights is a sufficiently appropriate remedy to vindicate the right and afford redress then, subject to any questions of costs, that will be sufficient to meet the primary remedial objective

[46]Damages are not appropriate in the present case for the following reasons:

(a)there was no bad faith on the part of the defendants. The RMM at Christchurch Men’s Prison had approved Mr Marong’s possession of all 17 CDs prior to him being transferred to Rolleston Prison;

(b)any breach of Mr Marong’s rights was minimal, particularly given he was able to access all 17 CDs albeit he could only possess 12 at a time;

(c)the five CDs were held in accordance with policy that applied across both Christchurch Men’s Prison and Rolleston Prison. An exception to this policy was made to support Mr Marong’s religious beliefs;

(d)the defendants have apologised to Mr Marong; and

(e)there is no appreciable risk of this issue recurring in the future given how quickly his initial request was approved.

Conclusion

[47]This application was in the nature of an application for judicial review.

[48]   Mr Marong is now, and has been for some time, in full possession of the complete text of the Qur’an.

[49]The decision complained of does not need to be revisited by Corrections.

[50]The decision did not breach either ss 13 or 15 of NZBORA.

[51]The application for damages and costs is declined.

Result

[52]The application for judicial review is declined.

[53]Costs are reserved.

Doogue J

Solicitors:

Raymond Donnelly, Christchurch CC:

Mr Marong