Matete v Visiting Justice at Auckland Region Women's Correction Facility
[2025] NZHC 2555
•19 December 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-120 [2024] NZHC 2555
UNDER The Judicial Review Procedure Act 2016
BETWEEN KINO HOKI MATETE
Applicant
ANDTHE VISITING JUSTICE AT AUCKLAND REGION WOMEN’S CORRECTIONS FACILITY
First Respondent
ANDTHE ATTORNEY-GENERAL IN RESPECT OF THE DEPARTMENT OF
CORRECTIONS
Second Respondent
Hearing: 22 July 2024
Appearances: M J McKillop and A G Emanuel for Applicant
A Lawson and A Ghandour for Respondents
Judgment: 19 December 2024
JUDGMENT OF CULL J
Table of Contents
Background facts [4]
Events prior to the disciplinary hearing[4]
Pre-hearing meeting[8]
The disciplinary hearing [9]
Preliminary matters [14]
Grounds of review [18]
Issues on review [19]
The prison disciplinary scheme [20]
Was the referral of the charge to the Visiting Justice unlawful? [26]
Could the referral be lawfully made before the charge was laid? [36]
MATETE v THE VISITING JUSTICE AT AUCKLAND REGION WOMEN’S CORRECTIONS FACILITY [2024] NZHC 2555 [19 December 2024]
Was the referral application meeting a “hearing?” [39]
No written reason for referral [43]
Conclusion [46]
Did Mr Matete receive a fair hearing? [48]
Refusal of legal representation [49]
No reasons for refusal of representation [66]
Conclusion on legal representation [70]
Untimely disclosure [72]
Conduct of the hearing [81]
Summary of conclusions [100]
Was the penalty imposed unlawfully? [102]
Procedural non-compliance [103]
Substantively unlawful? [108]
Relief [115]
Costs [118]
[1] Mr Matete claims his prison disciplinary proceeding was unfair and unlawful. He is a prisoner at the Auckland Womens’ Regional Corrections Facility (the prison). He applies for judicial review of the disciplinary process and the Visiting Justice’s conduct of the hearing. He seeks declarations that the proceeding was unfair together with orders setting aside the Visiting Justice’s findings and penalty.
[2] Mr Matete is a prisoner at the Corrections facility. Although he was described as female at birth, he identifies as male and uses male pronouns. Mr Matete was sentenced to preventive detention on 24 February 2006 and at the time, he identified as female and was the only woman to have ever been sentenced to preventive detention. He remains detained under his indefinite sentence but has already served the penalty imposed by the Visiting Justice. His purpose in seeking the declarations and orders is to remove the effects of the findings and penalty against him from future parole considerations.
[3] The first respondent is the Visiting Justice at the Corrections facility. The second respondent is the Attorney-General, named in respect of the acts and omissions of the Department of Corrections and its officers.
Background facts
Events prior to the disciplinary hearing
[4] Mr Matete had been working towards his release to work for a long time. He had a security classification of “minimum,” had been approved for release to work and was working at a butchery company off-site, and was living in a self-care unit where he was responsible for his own cooking and cleaning. This amounted to substantial progress towards parole.
[5] Mr Matete lived in a self-care unit with his flatmate, Ms Tuimavave. Mr Matete’s partner, Ms Churchwood, and Ms Tuimavave’s partner, Ms Edwards, lived in other self-care units. On 28 September 2023, Ms Edwards accused Ms Churchwood of assaulting her. Ms Tuimavave and Ms Edwards alleged that Mr Matete had made a threat to harm Ms Tuimavave during the ensuing argument. They made a complaint the following morning.
[6] Mr Matete denies making any such threat. He says Ms Tuimaveve and Ms Edwards were motivated to lie. They wanted to have him removed from the unit because of a pre-existing conflict with him, their own breaches of the rules, and to avoid the risk of discovery that they had been using methamphetamine.
[7] As a result of the complaint, Mr Matete was immediately removed from his self-care unit, his security classification was increased from minimum to low, his approval for release to work was revoked, and he was charged with a disciplinary offence for threatening behaviour against s 128(1)(c) of the Corrections Act 2004 (the Act).
Pre-hearing meeting
[8] On 2 October 2023, before Mr Matete was served with the misconduct charge, Mr Smith, the prosecutor at the Corrections facility made a without notice application to the hearing adjudicator that the charge be referred to a Visiting Justice under s 134 of the Act, because the alleged offending was likely to warrant a higher penalty than
the hearing adjudicator could impose.1 The hearing adjudicator referred Mr Matete’s charge to a Visiting Justice but without a summary of his reasons for the referral, as the Act requires.2 Mr Smith then served notice of the disciplinary charge on Mr Matete later the same day, at which point the Corrections Regulations 2005 (the Regulations) deem the charge as laid.3
The disciplinary hearing
[9] Mr Matete instructed a lawyer, Ms Burton, to represent him. Ms Burton proceeded to make a number of requests for disclosure of all statements and documentation relating to the charge including CCTV footage at the prison. These requests were first made on 31 October and 2 November 2023, to the Prison Manager and the Custodial Systems Manager (the Manager), who received the request on 3 November 2023. No disclosure was provided.
[10] Ms Burton again requested disclosure on 20 and 22 November but received no response. Another request was made on the morning of 23 November, the day of the hearing. Ms Burton attended the prison in person that afternoon and was told of the prison policy by the Manager that “disclosure is provided during the hearing to both the Visiting Justice and the prisoner at the same time.” Ms Burton was later told by the prosecutor that disclosure would not be provided. Heavily redacted disclosure was eventually provided on 30 November 2023, a week after the hearing.
[11] On the morning of the hearing, Ms Burton was informed that legal representation would be determined by the Visiting Justice. The prosecutor told Ms Burton that she would not be permitted to enter the hearing room, even in respect of Mr Matete’s application for representation.
[12] Mr Matete was required to appear alone before the Visiting Justice. At the commencement of the hearing, Mr Matete sought approval for legal representation, but this application was denied.
1 Corrections Act 2004, s 134(2)(a).
2 Section 134(3).
3 Corrections Regulations 2005, sch 7 cl 6.
[13] The charge was heard and proved. The Visiting Justice imposed a penalty of 10 days’ cell confinement and 40 days’ loss of privileges. Because of Mr Matete’s recent hip replacement surgery, the Health Centre Manager successfully advocated for Mr Matete to be allowed out of his cell to walk for several hours each day.
Preliminary matters
[14] There were two preliminary applications in relation to the pleadings and evidence. Mr Matete seeks leave to file an amended statement of claim, following receipt of the affidavit of the prosecutor, Mr Smith. The Attorney-General filed an amended statement of defence together with submissions for this hearing and no objection was taken to the grant of leave. Leave is granted accordingly.
[15] The second matter concerns Mr Matete’s objection to paragraph [25] of the affidavit of the Manager, Ms Mohammed, in which she deposes that the two victims of the alleged misconduct “when speaking with staff” expressed concern about their safety. Ms Mohammed then asserts that they had been harassed by Mr Matete, his partner and others on their behalf.
[16] I uphold the applicant’s objection to the inadmissible hearsay. The Manager’s statement contains alleged assertions by other staff members, who were said to have made them during the investigation. They are not recorded in the business records and therefore do not qualify as documentary hearsay. While business records arguably could be summarised by her, her assertions amount to impermissible hearsay under s 17 of the Evidence Act 2006. There is no suggestion that the staff members are unavailable as witnesses, the assertions have not been able to be tested by cross- examination, and it is unsafe to place reliance on them.
[17] The applicant’s objection is upheld and the last sentence of [25] of Ms Mohammed’s affidavit dated 10 June 2024 is ruled inadmissible.
Grounds of review
[18] The grounds of review have been pleaded variously as breaches of the principles of natural justice and under grounds of illegality. Essentially, Mr Matete submits that the disciplinary process was flawed in the following ways:
(a)Prior to Mr Matete being served with the notice of charge, a “hearing” took place between the prosecutor, Mr Smith and the hearing adjudicator in the absence of Mr Matete, contrary to s 133(2) of the Act.
(b)Mr Matete was denied legal representation for the hearing.
(c)The disclosure of relevant documents was inadequate and untimely.
(d)The conduct of the hearing breached natural justice by the frequent interjections by the Visiting Justice preventing Mr Matete from properly putting his case.
(e)The penalty imposed was inconsistent with s 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA) and Mr Matete was denied the opportunity to make mitigation submissions, contrary to the Regulations.
Issues on review
[19] I consider the grounds of review can be summarised by way of three principle issues:
(a)Was the referral of the charge to the Visiting Justice unlawful?
(b)Did Mr Matete receive a fair hearing?
(c)Was the penalty imposed unlawfully?
The prison disciplinary scheme
[20] The context for this review is the prison discipline statutory scheme. The nature and the purpose of the scheme has been canvassed in numerous decisions.4 In summary, the regime of prison discipline, both under the Act and its predecessor5 provides a regime of prison discipline that is separate from the criminal justice system. As the Court of Appeal said in Drew v Attorney-General:6
It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living.
[21] The following distinctions have been drawn between the disciplinary scheme and the criminal justice system:
(a)The prison disciplinary system provides for significantly less severe maximum penalties than the criminal justice system for equivalent conduct.
(b)The findings from a disciplinary offence do not form part of any criminal record.
(c)The second stage of the disciplinary process permits the imposition of harsher penalties.
(d)The disciplinary system operates in a more inquisitorial manner than the adversarial criminal justice system.7
[22] As the authorities have noted, while the disciplinary system is intended to operate swiftly and comparatively informally,8 the vulnerability of many prisoners in “quasi-judicial processes” requires that the basic standards of natural justice must still be met.9 A prisoner charged with an offence within the prison disciplinary system is entitled to be treated fairly10 and “natural justice including fair process and access to
4 See, for example, Drew v Attorney-General [2002] 1 NZLR 58 (CA).
5 The Penal Institutions Act 1954.
6 Drew v Attorney-General, above n 4, at [85].
7 Drew v Attorney-General, above n 4, at [89]–[91]; and Obiaga v Visiting Justice at Auckland Prison [2018] NZHC 3095, [2019] NZAR 148 at [18].
8 Genge v Visiting Justice at Christchurch Mens’ Prison [2017] NZHC 35 at [61].
9 Obiaga v Visiting Justice, above n 7, at [21].
10 Obiaga v Visiting Justice, above n 7, at [16].
legal advice remain the entitlement of a prisoner”.11 This is confirmed in the Regulations, which provide that discipline and order in every prison must be maintained with firmness and fairness.12
[23] Disciplinary offences are defined under ss 128 to 131 of the Act and include threatening behaviour, fighting or assault, disobeying lawful orders and having unauthorised property. All disciplinary proceedings must be conducted in accordance with sch 7 of the Regulations.
[24] Of relevance to this case is the prisoner’s right to be heard. This has been described by this Court as a “fundamental requirement of the principles of natural justice”,13 which gives “a real opportunity” for a prisoner to state their case as best they can but not necessarily with any particular formality.14 It is also worth noting that s 135 of the Act provides that a prisoner may apply to be legally represented at the hearing, but this right is not unlimited and not guaranteed in the context of prison discipline.15
[25] I deal further with the specific provisions under the Act and the Regulations in addressing counsels’ submissions under each of the specific issues. The first of these relate to the pre-charge application to refer the case to a Visiting Justice for hearing.
Was the referral of the charge to the Visiting Justice unlawful?
[26] To address this issue requires consideration of the critical provisions of the Act. I start with the procedure for the commencement of bringing a disciplinary charge and for determining who is to hear the charge. The procedure for the commencement of disciplinary charges is prescribed under sch 7 cl 6 of the Regulations:
6. A charge in respect of a disciplinary offence is laid when a staff member gives the prisoner who is the subject of the charge a written notice that includes the following:
(a)a description of the incident or circumstances giving rise to the alleged offence:
11 Goldberg v Attorney-General [2004] NZAR 159 (HC) at [55].
12 Corrections Regulations, reg 150.
13 Lory v Attorney-General (No 2) [2008] NZAR 373 (HC) at [27].
14 At [35]–[36].
15 See Obiaga v Visiting Justice, above n 7, at [23] and [26].
(b)a statement of the provision under which the prisoner is charged.
[27] Unlike the criminal procedure for laying charges for criminal offences, charges are laid by a staff member serving the prisoner with a written notice that identifies the provision under which they are charged and describes the incident or circumstances giving rise to the alleged offence. The notice must also inform the prisoner about the steps in the prison disciplinary process, including the circumstances in which an application can be made for the charge to be dismissed and the ability of the prisoner to seek a support person to attend the disciplinary hearing.16 At the time Mr Smith made his application for referral to the Visiting Justice, Mr Matete had not been served with the written notice of the alleged offence and the charge therefore had not been laid.
[28] In the first instance, disciplinary offences are to be heard by a hearing adjudicator, who is a Corrections employee designated by the Chief Executive.17 The powers of the hearing adjudicator have been prescribed under s 133. The statutory wording is instructive. Section 133(1) provides:18
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.
[29] Every hearing and examination must be in the presence and hearing of the prisoner charged, who is entitled to be heard and to cross-examine any witness.19 If the adjudicator finds the offence proved, he or she may impose the prescribed penalties under s 133(3).
Section 134(1) governs the decision as to who is to hear the charge:
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.
16 Corrections Regulations, sch 7 cls 6–8.
17 Corrections Act, ss 15 and 133.
18 Emphasis added.
19 Corrections Act, s 133(2).
[31] Again, the statutory wording is pertinent. The emphasis is on “a complaint alleging an offence against discipline” before any “decision is made as to whether the charge is proved.” Until that time, the hearing adjudicator may refer the case to a Visiting Justice.
[32] The power of the hearing adjudicator to refer the case to a Visiting Justice may be exercised where the adjudicator considers that:
(a)the conduct that is alleged to constitute the offence may warrant a higher penalty than can be imposed by the adjudicator under s 133(3); or
(b)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)both (a) and (b) apply.20
[33] Section 134(3) provides that if a hearing adjudicator exercises the above powers of referral, the adjudicator must forward a summary of his or her reasons for the decision to the Visiting Justice.
[34] The challenge raised by Mr Matete is that there was no jurisdiction for a hearing adjudicator to make a referral or a direction of any kind prior to the charge being laid, as Mr Matete had not been served. This issue has two parts.
[35] The first is whether the hearing adjudicator acted in breach of the Act by referring the case to a Visiting Justice before the charge was laid. The second is whether the hearing adjudicator was conducting “a hearing” in the absence of the prisoner for the purpose of s 133(2) when Mr Smith met with him and made his referral application.
20 Section 134(2).
Could the referral be lawfully made before the charge was laid?
[36] At the time the prosecutor made his referral application alleging Mr Matete’s disciplinary offence to the hearing adjudicator, it is accepted that Mr Matete was not served. Thus, the prosecutor’s application was made before the charge was laid.
[37] Consistent with the wording in s 134(1), I consider that the prosecutor brought a complaint alleging an offence against discipline to the hearing adjudicator, as the Act envisages. Section 134(1) provides the hearing adjudicator may refer the case to a Visiting Justice for hearing at any time before making a decision as to whether the charge is proved “[i]f a complaint alleging an offence against discipline is brought before [them]”. As the Attorney-General submits, this does not refer to an offence or charge having been laid.
[38] The hearing adjudicator therefore had jurisdiction to refer the matter to the Visiting Justice and there was no breach of the Act.
Was the referral application meeting a “hearing?”
[39] The second question of whether a hearing has to be held before a referral decision is made by a hearing adjudicator was considered in the Court of Appeal’s decision in Department of Corrections v Taylor.21 The Court unanimously held that there was no requirement in the Act or the Regulations that a hearing must be held before the decision to refer under s 134(2)(a) is made. Nor do the principles of natural justice or NZBORA require such a hearing.22
[40] The Court of Appeal’s reasoning is relevant to the determination of the issues here. The Court held that the focus of the statutory hearing requirements, including entitlement of the prisoner charged to be heard, is on the hearing of the charge. This “reflects the fact that the real point of concern in natural justice terms arises at the time the charge is determined rather than at this preliminary stage in the process.”23 This
21 Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34.
22 At [43].
23 At [44].
confirms that the term “hearing” in s 133(2) refers to the disciplinary hearing before a hearing adjudicator or Visiting Justice, not the preliminary stage of the process.
[41] This approach is supported by the statutory framework. Section 134(1) empowers the hearing adjudicator to refer “the case” to a Visiting Justice “for hearing and determination at any time before a decision as to whether the charge is proved. Section 133(2) prescribes what is to occur at the “hearing”:24
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.
The emphasised sections of the statutory wording above indicate that s 133(2) applies only to disciplinary hearings. The entitlement is provided to a prisoner charged with the offence. It does not apply in the case of an attendance on the hearing adjudicator for a referral application. Further, the subsection refers to examinations and the entitlement to cross-examine any witness, which also applies only to disciplinary hearings.
[42] I conclude that the referral application meeting between Mr Smith and the hearing adjudicator was not a “hearing” for the purpose of s 133(2). The “hearing” refers to the disciplinary hearing, not the referral application. No error arises.
No written reason for referral
[43] There is one further challenge and that is the omission by the hearing adjudicator to provide written reasons for the referral to the Visiting Justice.
[44] Mr McKillop contends that it was a breach of natural justice and a breach of s 134(3) of the Act, that the hearing adjudicator did not provide reasons for the referral. Mr Smith in his affidavit confirms that the hearing adjudicator did not forward a summary of his reasons for the referral. Mr Smith recorded the reason on a “hearing details” cover sheet to his file, appended as an exhibit to his affidavit, noting that the complaint was referred to the Visiting Justice “for higher penalty.” Mr Smith deposes
24 Emphasis added.
that it is his practice “to get this referral and then serve prisoners with the charge and inform them that the matter has been referred to a Visiting Justice.”
[45] It is unclear whether the reason for referral was given to Mr Matete. The omission to provide written reasons is in breach of the Act but I accept the Attorney- General’s submission that the failure of the hearing adjudicator to provide a summary of reasons is a technical irregularity, which on its own would not justify the granting of relief in judicial review.
Conclusion
[46] No hearing was required in respect of the referral decision, which can legitimately be made before the charge is laid. There was a breach of the Act by the hearing adjudicator not providing a summary of reasons for the referral, but on its own does not justify relief.
[47]I decline to uphold this ground of review.
Did Mr Matete receive a fair hearing?
[48] Although pleaded separately, I consider the following three matters should be considered together to determine whether Mr Matete’s disciplinary hearing was fair or unlawful. Those matters are:
(a)the refusal to allow Mr Matete legal representation for the hearing;
(b)untimely disclosure; and
(c)the conduct of the hearing itself.
Refusal of legal representation
[49] The first issue is whether it was a breach of natural justice or a failure to consider a relevant consideration, when Mr Matete’s lawyer was barred from the hearing room and Mr Matete was denied legal representation at the hearing.
[50] Section 135 of the Act prescribes how a prisoner’s application for legal representation should be considered and determined. Section 135(1) and (2) are pertinent:
(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.
[51] Under s 135(5), the decision-maker, in this case the Visiting Justice, must provide a summary in writing of their reasons for a decision to permit or not to permit the prisoner to be legally represented.
[52] In Drew v Attorney-General, the majority of the Court of Appeal helpfully explained the circumstances in which a prisoner should be permitted legal
representation, particularly where a higher level of penalty can be imposed and where a prisoner may fail to present their case adequately.25
[53] The same issue was considered in Obiaga v Visiting Justice at Auckland Prison, where Brewer J concluded that the denial of permission for the prisoner to be legally represented without inquiry as to the nature of the defence advanced, and then failing to take that into account was an error of process.26 The applicant had been wrongly denied the right to call material witnesses and denied a fair hearing to defend himself.
[54] Mr McKillop refers to Ms Burton’s evidence that she was told by the Manager that it was a “waste of time” for her to come to the prison, because the hearing would either proceed without legal representation or be adjourned if representation was approved. On the day of the hearing, Ms Burton was denied entry to the hearing room. Mr McKillop contends that the Visiting Justice failed to properly consider the factors listed in s 135(2), and did not provide reasons for the decision to decline legal representation contrary to s 135(5) of the Act.
[55] The Attorney-General accepts that Counsel was barred from the hearing room, but contends that neither the Act nor natural justice required Mr Matete to be legally represented for the application.
[56] Section 135(2) contains mandatory considerations, which must be taken into account by the Visiting Justice where a prisoner requests permission to be legally represented at the hearing of a disciplinary charge. They are the seriousness of the conduct that is alleged to constitute the offence and the magnitude of the likely penalty,27 the complexity of the issues likely to arise at the hearing,28 Mr Matete’s capacity to present his case effectively,29 procedural difficulties likely to be encountered,30 and the need for reasonable speed generally in determining the case,31
25 Drew v Attorney-General, above n 6, at [50] and [52]. This case was decided under the predecessor to the Act, under the Penal Institutions Act 1954.
26 Obiaga v Visiting Justice at Auckland Prison, above n 7.
27 Corrections Act, s 135(2)(a).
28 Paragraph (b).
29 Paragraph (d).
30 Paragraph (c).
31 Paragraph (e).
the need to ensure that hearings are conducted fairly as between different prisoners and the complainant and the defendant.32
[57] It was accepted by the Attorney-General that the Visiting Justice did not expressly consider the seriousness of the charge and penalty but submits that the Visiting Justice could have inferred that Mr Matete’s alleged conduct was likely to be moderately serious. Further, she submits the charge alone was enough for the Visiting Justice to determine that the issues were unlikely to be complex. This, the Attorney- General says, means the capacity of Mr Matete to present his case effectively was properly considered.
[58] As the transcript shows, it was evident that Mr Matete took issue with Ms Tuimavave’s evidence. Mr Matete was the subject of an objection from Mr Smith after three questions with the Visiting Justice telling him that his questions were not relevant. After a further three questions he was again told by the Visiting Justice that his questions were not relevant, which was echoed by Mr Smith. Mr Matete asked only four further questions. The procedural difficulties were more than evident. Mr Matete needed to challenge the complainant’s credibility and needed legal advice and assistance. As the transcript demonstrates, he was struggling to do so.
[59] The principal reason that Mr Matete needed to cross-examine the complainant’s evidence and the Corrections’ witness was that the credibility of Ms Tuimavave was in issue. If Mr Matete was to advance his defence, Ms Tuimavave’s evidence needed to be carefully challenged, as Mr Matete believed she was being untruthful. There was a background to the dispute, which involved allegations against her and her partner of their illegal drug use. Mr Matete’s defence was that their fear of his reporting their methamphetamine use was a motivation for their lying about him. Not only did Mr Matete require legal advice about the viability of his defence, but he plainly needed assistance in conducting it.
[60] I consider there was a failure by the Visiting Justice to comply with the Act’s mandatory considerations. Section 135(2)(c) specifically requires a consideration of “any procedural difficulties likely to be encountered (for example, the need to cross-
32 Paragraph (f).
examine witnesses)”. Mr Matete had explained to the Visiting Justice that he had a lawyer to represent him but that they had not made progress because of the difficulty in contacting her from the prison and their difficulty in obtaining information to prepare his case. He explained that he wished to cross-examine Ms Tuimavave because he believed she was lying.
[61] There was a further obligation on the Visiting Justice to ensure that hearings of charges which involve different prisoners, or the complainant and the defendant, must be conducted fairly under s 135(2)(f). Here, there was not only a dispute between Mr Matete and the complainant, both of whom were prisoners, but there had been an altercation between the complainant and Mr Matete’s partner, for which separate disciplinary action was taken. Mr Matete made it clear to the Visiting Justice that he was disputing the truth of the evidence given by the complainant.
[62] The interchange between Mr Matete and the Visiting Justice is recorded as follows:
PRISONER:
Excuse me, Miss, can I ask you a question? Have you denied me the right to have my lawyer present?
VISITING JUSTICE TO PRISONER:
Q. Well, you haven’t asked for that. […]
A. Well, my lawyer’s outside. Is that all right if she’s –
Q. No, so why do you want a lawyer?
A. 'Cos I've got a lot to lose and I feel that there’s a lot of inconsistencies in this whole (inaudible) against me and there’s a lot of unfairness in this 15 whole thing. That’s why I've gone as far as getting a lawyer. Like, I've never gone that far. Always if I do something, I take it on the chin but…
Q. Because the charge is, as I understand it, is threatening or abusive behaviour.
A. Yeah.
Q. It is normally a very simple, not a complex charge. It’s straightforward. […]
Q. I don’t act for Corrections. Independent of both of you. I’m here – the charge, I don’t know how serious the charge is until I hear the evidence.
A. Yeah.
Q. But the evidence, it’s just like normal in a court environment to hear evidence every day. I don’t think there will be any procedural difficulties.
[…]
Q. You’re nodding in agreement. But there was also, because this is a disciplinary charge, it’s not a criminal charge as in court, there is a need to have the matter completed with a certain degree of speed.
A. Mmm.
Q. And not complexity, as I said earlier. Are there any other reasons why I should consider that?
[…]
Q. Okay, so you’ve made that request and that request is under section 135 of the Corrections Act 2004. It’s my role to determine whether or not legal represent (inaudible) disciplinary charge (inaudible), today I’ve listened to your request and to consider what your request, consider that carefully. As I said before, the matter is not complex. I'm here independent of both you and Corrections and I will deal (inaudible) with the matter, listening to the evidence and (inaudible) I know from previous (inaudible) I've been doing for many, many years, the matter is not expected to be complex. For those reasons, I will decline your request and we are now proceeding. And just as a comment, sorry, Ms Matete, these proceedings are being recorded, so everything that’s being said in here today is being recorded. It can be played (inaudible).
[63] In the above exchange, the Visiting Justice considered that the charge was simple and straightforward, not complex, but that he would not know the seriousness of the charge until he heard the evidence. Because the evidence was likely to be the normal evidence heard in the Court every day, he did not believe there would be any procedural difficulties.
[64] Although the considerations of procedural difficulties, seriousness of the charge and the complexity of the issues were mentioned at the outset of the hearing by the Visiting Justice, I consider they were given “merely token or superficial regard”33 without regard to the reason Mr Matete had obtained the assistance of a lawyer, for which a previous adjournment had been granted.
[65] The combination of all of the factors, namely the seriousness of the alleged conduct, the magnitude of the likely penalty, the procedural difficulties likely to be
33 Kumar v Minister of Immigration, HC Auckland M184/99, 25 March 1999.
encountered by Mr Matete in attempting to cross-examine another prisoner witness on her credibility, and the need to ensure fairness where there were issues between a complainant and a defendant, particularly when they were both prisoners, required specific consideration. They were mandatory relevant considerations which were not properly taken into account.
No reasons for refusal of representation
[66] The Visiting Justice did not provide either Mr Matete or the Prison Manager with a summary in writing of his reasons for his decision to decline legal representation for Mr Matete. He did however, give brief oral reasons, as recorded in the transcript, that it was a simple, not a complex charge and that there was a need to have the matter completed “with a certain degree of speed”.
[67] The Attorney-General contends that the absence of reasons for declining legal representation did not cause Mr Matete any prejudice because the reasons were given orally.
[68] Section 135(5) specifies that a hearing officer “must provide the prisoner and the prison manager with a summary in writing of his or her reasons for the decision not to permit the prisoner to be legally represented.”34
[69] The predominant reasons, in the absence of any written summary, appear in the excerpt of the transcript above, namely the need for reasonable speed in decision- making and the Visiting Justice’s belief that the matter was not complex. In my view, the oral reasons were inadequate in the circumstances given the following factors: the charge was referred to the Visiting Justice because it could justify a potentially higher penalty, there was a previous adjournment by another Visiting Justice to enable Mr Matete to find a lawyer, there was no need for speed, as the charge had been brought in a timely way and had been adjourned for good reason.
34 Emphasis added.
Conclusion on legal representation
[70] In summary, I find that the Visiting Justice failed to give reasons and failed to consider the relevant mandatory factors in declining Mr Matete’s legal representation. Those factors were the seriousness of the misconduct charge and the likely significant penalty; Mr Matete’s procedural difficulties in cross-examining witnesses on credibility; his inability to present his case effectively; and the need to ensure that the hearing, which involved two prisoners both the complainant and defendant, was conducted fairly. I return to this latter factor below in more detail in considering the conduct of the hearing. It is relevant however, to the overall consideration of whether Mr Matete required legal representation for this hearing.
[71] As a result, Mr Matete was wrongly denied legal representation to enable his defence to the charge to be adequately and fairly addressed.
Untimely disclosure
[72] As there was no disclosure prior to the hearing, Mr Matete says he had been unable to adequately prepare for the hearing. Following service of the notice and the “misconduct report” (it is unclear which of the two versions were served), Mr Matete and his lawyer requested further information about the charge from Corrections.
[73] On 31 October 2023, Ms Burton confirmed she was the lawyer representing Mr Matete and had asked for “all statements and documents relating to [the misconduct charge].” She also asked to view the CCTV footage. She followed up this request with four further emails and one oral request of the Manager. In early November 2023, Mr Matete requested “file notes, incident reports and all evidence” relating to the charge from staff in his unit.
[74] Corrections treated those disclosure requests as requests under the Official Information Act 1982 (the OIA) and the Privacy Act 2020 and did not respond until after Mr Matete’s disciplinary charge was determined.
[75] The Attorney-General accepts that it was an error for Corrections to have treated Mr Matete and his lawyer’s disclosure as a request under the Privacy Act or
the OIA. It appears this error arose from the Manager’s inquiry of the prosecutor. She understood he would undertake the usual disciplinary processes and she would respond to Mr Matete’s request separately under the Privacy Act and the OIA. Ms Lawson submits that while it is accepted this was an error and perhaps reflects that there is insufficient policy to guide responses to disclosure requests for disciplinary hearings, no bad faith can be inferred from it, as the applicant’s submissions suggest.
[76] In Bennett v Superintendent of Rimutaka Prison, this Court emphasised that the procedures, including the degree of disclosure in disciplinary matters, are required to reflect “fair play in action”, which may vary from time to time according to the particular charge and the surrounding circumstances. The Court noted that even if prison authorities breached natural justice by failing to disclose material, a remedy would not be granted unless this resulted in an injustice at the hearing.35
[77] Unlike Bennett, where the applicant had not requested disclosure, Mr Matete received no disclosure in response to his requests or those of his lawyer, in time for the hearing. This failure was unacceptable. The Regulations recognise that prisoners must be given sufficient time and facilities to prepare their defence36 and as this Court has recently observed, preparation in the prison disciplinary context entails assembling all of the materials which might be the basis for submission or cross-examination.37
[78] The effect of the failure to make disclosure in this case is illustrated during the evidence in chief of the prosecution witness, Ms Gemmell. Mr Smith offered to give Ms Gemmell a copy of her incident report which she made at the time, to assist her in giving her evidence. Although the Visiting Justice stopped that production by asking the witness to provide her evidence from memory, Mr Matete should have had the opportunity to examine the incident report before the hearing, in order to assist him in his cross-examination of Ms Gemmell.
35 Bennett v Superintendent of Rimutaka Prison HC Wellington CP86/02, 11 March 2003 at [23]; and see also Mitchell v Chief Executive Department of Corrections [2017] NZHC 2091 at [24]– [30].
36 Corrections Regulations, sch 7 cl 9.
37 Fahey v Visiting Justice at Serco Auckland South Corrections Facility [2023] NZHC 3807 at [24].
[79] When asked if he wished to cross-examine the witness, Mr Matete replied that he didn’t have anything to ask her “[…] ‘cos all I can do is just tell you my version.” The problem with this response is that he did not know what was in the incident report and whether it could have helped him. This was the reason Mr Matete and his lawyer requested copies of any incident reports prior to the hearing.
[80] I consider the lack of disclosure was not “fair play in action.” The lack of disclosure exacerbated Mr Matete’s difficulty in fairly defending himself. Although pleaded as a separate ground, I consider that the untimely disclosure of documents is an added factor to my finding that Mr Matete was wrongly deprived of legal representation, that contributed to his procedural difficulties in the hearing and an inability to effectively present his case.
Conduct of the hearing
[81] Mr Matete alleges that the Visiting Justice breached natural justice in two ways. First, by frequently interjecting and making comments which prevented him from properly putting his case. Second, the Visiting Justice failed to explain why he preferred Ms Tuimavave’s evidence to Mr Matete’s evidence to the criminal standard of beyond reasonable doubt.
Interjections
[82] A Visiting Justice in hearing a complaint relating to any offence against discipline may conduct his/her examination of any person concerning the alleged offence.38 It is an inquisitorial power. The Act further specifies that 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.39
[83] Mr Matete’s hearing proceeded as a criminal court hearing, with the prosecutor leading evidence-in-chief and re-examining his own witnesses and cross-examining, albeit briefly, Mr Matete and his witness.
38 Corrections Act, s 137(1).
39 Corrections Act, s 137(2).
[84] As noted, Mr Matete’s cross-examination of Ms Tuimavave was interrupted after his first three questions. The objection by the prosecutor was unorthodox. After a further three questions, Mr Matete was told by the Visiting Justice that his questions were not relevant. This was echoed by Mr Smith. After a further interjection by the Visiting Justice, Mr Matete finished his cross-examination with four further questions. The transcript is as follows:
CROSS-EXAMINATION: MS MATETE
Q. So you claim that I threatened you, eh, is that right?
A. Yeah.
Q. So I was standing over at villa 4. You were standing at villa 5. If you claim you felt threatened like you do, why didn’t you close the door and push the button and tell the staff then?
A. Because (inaudible) I didn’t trust that the staff would even take me out of the
house. I just wanted to stay with Paula who I felt safe with.
Q. Of course you did, you want to spend the night with your girlfriend first.
MR SMITH:
Hang on, hang on, have you got any questions – put it in the way of a question please.
VISITING JUSTICE:
It’s not relevant, it’s not relevant, that’s not relevant.
PRISONER:
Oh, yeah, yeah, yeah.
CROSS-EXAMINATION CONTINUES: PRISONER
Q. So you claim that Courtney assaulted you. Why didn’t you report that?
A. She was behind me saying: “You better not fucking nark.” I was talking, I was contemplating, I was thinking about doing (inaudible), but clearly I didn’t want to be labelled a nark. I didn’t want to fucking…
Q. Well, it doesn’t seem to bother you now.
A. (Inaudible) I couldn’t fucking keep dealing with this shit, with the abuse, the
intimidation.
Q. Hey, why are you even doing this? Was I not good to you?
VISITING JUSTICE:
That’s not relevant.
MR SMITH:
That’s not relevant.
PRISONER:
It is because –
VISITING JUSTICE TO PRISONER:
Q. The charge is that you allegedly threatened her.
A. Yeah, allegedly, allegedly.
[85] The problem for Mr Matete was twofold. In embarking on his cross- examination, he was attempting to put propositions to the witness to advance his theory of his case and his defence. The first interruption, “Hold on, hold on”, was from Mr Smith who told Mr Matete directly to put his questions in the way of a
question. The blurring of the roles of adjudicator and prosecutor was inappropriate. If the prosecutor wished to make an objection, that should have been to the Visiting Justice who controlled the hearing, not to Mr Matete directly.
[86] The second problem was the Visiting Justice’s interjections that the question was not relevant, which he repeated three times. When Mr Matete attempted to recommence his cross-examination, he was again interrupted by the Visiting Justice telling him that his questions were not relevant. Mr Smith then repeated it. When Mr Matete attempted to explain why his questions were relevant, he was again interrupted by the Visiting Justice, reminding him of the charge. Mr Matete never got an opportunity to attempt to explain why he was asking these questions.
[87] Mr Matete faced further interruption, when he called another prisoner, Ms Boyd, as a witness. Her evidence was that Ms Tuimavave had told her that she was never actually attacked by Ms Churchwood. The Visiting Justice suggested the evidence was irrelevant and again refused to hear Mr Matete explain its relevance. The following is an example:
QUESTIONS FROM THE VISITING JUSTICE:
Q. Re-examination. In your statement, (inaudible) Courtney Churchwood (inaudible) assault, Alofa –
A. That’s what I (inaudible) –
Q. (Inaudible) talking about?
A. No, we’re not.
Q. Courtney Churchwood. So I don’t quite understand the relevance either.
PRISONER:
I'm trying to show that –
QUESTIONS FROM THE COURT CONTINUES:
Q. No, no, so I'm just trying to understand what you’ve – you’re quite clear about what you –
A. About what I was told?
Q. Yes, that's fine, thank you for your evidence.
[88] A similar pattern occurred when Mr Matete attempted to explain his theory of the case when the Visiting Justice was summarising the evidence. Mr Matete asked:
MR MATETE:
A. Can I give you reasons why I think they’ve done this?
VISITING JUSTICE:
Q. No, no, no. No. At this point now we are coming to the conclusion […]
[89] I accept Mr McKillop’s submission that the Visiting Justice’s rejection of the evidence about the complainant’s methamphetamine use as irrelevant resulted from his denying Mr Matete an opportunity to explain his case. This occurred again in closing submissions when the Visiting Justice rejected Mr Matete’s explanation that the complaint against him was made as an excuse to break the rules, so that Ms Tuimavave could spend the night with her girlfriend. The Visiting Justice responded:
Who’s each other’s girlfriends, I’m not part of that. I’m only looking at […]
Leading Questions
[90] Although this issue was not raised in submission or in oral argument, it is apparent from the transcript that the critical evidence in chief from the complainant was adduced by way of leading questions. Ms Tuimavave’s evidence-in-chief consisted of responses to questions put in a leading way, that is, with the answer provided in the question. An example is the italicised wording as follows:40
Q. And so throughout all of this, Ms Matete’s here in front of us at the moment, been charged with behaves in an offensive, threatening, abusive and intimidating manner. At any point during this did you feel offended, threatened, abused or intimidated?
A. Yes.
[91] The Visiting Justice did not intervene or stop the prosecutor from leading in that way. Instead, the Visiting Justice asked the witness to repeat what she had said, when she was asked how she felt:41
VISITING JUSTICE TO WITNESS:
Q. So what I would like you to do is repeat what you just said before, because what the prosecutor said, how did that make you feel?
A. How did it make me feel?
Q. Yeah.
A. It made me feel scared and…
Q. And so what was the actual threatening words in your mind?
[92] The witness did not use the word “threatening.” After the Visiting Justice’s leading question however, the witness immediately used the term in her response:
A. Threatening in my mind was […] if I go home to my villa […]
40 Emphasis added.
41 Emphasis added.
[93] The need to ensure that evidence is given in the words of a witness and not being led by words used in the charge is paramount, particularly when the evidence is the principal evidence to prove a punishable offence. The general prohibition on leading questions in examination in chief has been codified in s 89 of the Evidence Act 2006. The importance of compliance with this evidence rule is aptly summarised by the authors of Mahoney on Evidence:42
The goal of evidence in chief and re-examination is to draw out the witness’s own recollections and to permit the trier of fact to judge the accuracy and veracity of the witness’s testimony. Thus it is very important that such evidence be given in the words of the witness and not those of the examiner.
[94] The Visiting Justice failed not only to stop the prosecutor asking leading questions, but did so himself.
No reasons
[95] I accept Mr McKillop’s further submission that the Visiting Justice compounded the unfairness of the hearing by failing to give reasons for preferring Ms Tuimavave’s account over Mr Matete to the ‘beyond reasonable doubt standard’ required by the Regulations.43
[96] Having not permitted Mr Matete to explain the reasons for his questions and the nature of his defence, the Visiting Justice’s lack of reasons for preferring Ms Tuimavave’s evidence gives rise to a reasonable inference that the Visiting Justice did not properly understand Mr Matete’s case. I reject the Attorney-General’s submission that because the prison disciplinary system is not criminal in nature, there is a lesser expectation for giving reasons.
[97] While there is no statutory or regulatory requirement under the Corrections legislation to provide reasons, in a case where credibility is the main issue, the Visiting Justice needed to set out what he understood to be both versions of events before deciding that Ms Tuimavave’s version was to be preferred. In the criminal justice system, s 106(2) of the Criminal Procedure Act 2011 (CPA) requires a Court to give
42 Scott Optican and Elisabeth McDonald (eds) Mahoney on Evidence: Act and Analysis (2nd ed, Thomson Reuters, Wellington, 2018) at 600.
43 Corrections Regulations, sch 7 cl 33.
reasons for a finding of guilt. The long-standing Court of Appeal authority emphasises the importance of a plain statement of the essential reasons for guilty verdicts.44 Importantly, the Court has emphasised that “when the credibility of witnesses is involved and important evidence is either accepted or rejected, that too should be stated explicitly.”45
[98] The Visiting Justice is not bound by the CPA. However, the long-standing common law rule, that reasons must be given for accepting evidence on which a finding of guilt is made, is fundamental. Mr Matete faced a charge of misconduct which was viewed as serious by the hearing adjudicator, the burden of proof was to the criminal standard, and the penalty was significant.
[99] The Visiting Justice reached his conclusion on the basis of his belief that Mr Matete’s actions of threatening and swearing and the harm that Ms Tuimavave felt “were real”. On that basis the charge was proven. Mr Matete’s evidence was referred to but his defence was not summarised or articulated and nor were reasons given for rejecting his evidence.
Summary of conclusions
[100] I find that the denial of legal representation for Mr Matete at the disciplinary hearing was unlawful. The failure to make adequate disclosure before the hearing and the conduct of the hearing by the Visiting Justice was in breach of natural justice principles and was unfair. The combination of those factors has led to a finding of guilt for the offence of behaving in an offensive, threatening, abusive and intimidating manner, for which Mr Matete received a significant penalty.
[101]I deal with the imposition of penalty next.
44 R v Connell [1985] 2 NZLR 233; R v Taiaroa [2015] NZHC 2401; and R v Peck [2015] NZHC 2154.
45 R v Taiaroa, above n 44, at [25]; and see Ian Murray A Practical Guide to Criminal Procedure in New Zealand (2nd ed, LexisNexis, Wellington, 2016) at [9.6.4].
Was the penalty imposed unlawfully?
[102] Mr McKillop submits that the penalty imposed on Mr Matete was unlawful on two grounds. The first was the procedural non-compliance by the Visiting Justice with the Regulations, which requires a Visiting Justice to give a prisoner the opportunity to make an explanation or plea in mitigation before imposing a penalty. The second ground is that the penalty was inconsistent with the New Zealand Bill of Rights Act and was therefore substantively unlawful.
Procedural non-compliance
[103] I deal first with the procedural ground. After finding the charge proved, the Visiting Justice said:
Now I’ve got to turn my mind to the last part of this. That is the penalty. I’m going to ask questions here now […]
[104] Mr Matete was then asked about his disciplinary history and his whānau support. Mr McKillop acknowledges that the questions about Mr Matete’s whānau were likely designed to meet the test in s 137(3A) of the Act, which requires the Visiting Justice to take account of the prisoner’s circumstances before imposing a penalty of loss of privileges, such as restricting visitors and telephone calls. Mr Matete was asked about the frequency of his contact with his whānau and whether he has telephone or video conference calls with his family. Without asking Mr Matete to address him on penalty, he imposed the penalty of 10 days’ cell confinement and 40 days’ loss of privileges.
[105] Clause 35 of sch 7 of the Regulations specifies that before a penalty is imposed, the prisoner must be given an opportunity to make an explanation or plea in mitigation. It provides:
35 Before imposing any penalty or postponing imposing a penalty, the person holding the hearing—
(a)must give the prisoner the opportunity to make an explanation or plea in mitigation; and
(b)may invite any support person to speak.
[106] In response to Mr McKillop’s contention that Mr Matete’s penalty was procedurally unlawful as he was not given sufficient opportunity to make a plea in mitigation, the Attorney-General acknowledges that the requirement in the Regulations was not met but says that the authorities demonstrate that this error will not necessarily result in the penalty being set aside.
[107] This Court in Shaw v Attorney-General (No.2) held that the failure to offer a prisoner the opportunity to make an explanation or plea in mitigation constitutes a reviewable error.46 The Court noted that this requirement is provided by cl 35 of sch 7 of the Regulations, and natural justice requires no less. There is no contest, therefore that this was a reviewable error. The question is whether the error will necessarily result in the penalty being set aside. Before I address that question, I deal with the second ground of challenge and that is that the penalty was substantively unlawful.
Substantively unlawful?
[108] Mr Matete had hip replacement surgery in the week prior to the hearing, which was known to the Visiting Justice, as the transcript discussion confirms. The day following the hearing, the Health Centre Manager, Ms White, became aware of the penalty. The Health Manager emailed the General Manager advising that Mr Matete’s cell confinement penalty should be modified to give him opportunities to move throughout the day. Restriction of his mobility was likely to increase the risk of Mr Matete’s developing a post-operative blood clot, infection, increased pain, decreased range of motion and decreased functional outcomes. The penalty of cell confinement was modified accordingly, to enable Mr Matete to have a minimum of five hours out of his cell daily.
[109] Mr McKillop submits the initial penalty of cell confinement was substantively unlawful as it was inconsistent with Mr Matete’s health needs during his recovery from hip replacement surgery, specifically his need to move throughout the day. Mr McKillop submits that the penalty of cell confinement was inconsistent with s 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA), being the requirement that detainees be treated with humanity and respect for their inherent dignity.
46 Shaw v Attorney-General (No.2) [2003] NZAR 216 (HC) at [72].
[110] The Attorney-General submits that no breach has occurred. The authorities do not suggest that a failure to consider whether a penalty is medically safe amounts to an NZBORA breach, particularly where the penalty actually served was medically safe.
[111] I have given careful consideration to the submissions advanced by Mr McKillop under s 19 NZBORA (discriminatory treatment), s 23(5) NZBORA (inhumane treatment), and s 22 NZBORA (arbitrary detention). While I accept that a person in Mr Matete’s position is to be treated with humanity, I am unable to accept the submission that the risk of serious medical complications arising from a lack of movement post-surgery ought to have been obvious to the Visiting Justice because those risks were not presented to him. I am unable therefore to uphold the submission that a substantively inhumane penalty was imposed.
[112] What was imposed was an inappropriate penalty for Mr Matete’s circumstances. The reasons that Mr Matete’s potential post-surgery complications were not the subject of a consideration by the Visiting Justice arises from the fact that he did not invite or allow Mr Matete or any other person on his behalf, to make submissions on penalty. Given the specific range of penalties available to be imposed by a Visiting Justice, it would have been appropriate for the Visiting Justice to invite Mr Matete to make submissions on cell confinement and loss of privileges in the first instance.
[113] It was the intervention of the Health Centre Manager, which enabled the penalty to be adjusted. I consider the imposition of the penalty therefore resulted from ignorance of Mr Matete’s medical requirements rather than a specific inhumane act. That is not to say that ignorance in these circumstances was acceptable. The problem arose because neither Mr Matete nor a representative had an opportunity to address penalty.
[114] I have found that the denial of legal representation for Mr Matete at the disciplinary hearing was unlawful and that the conduct of the disciplinary hearing was unfair. In my view, it was the result of the unfair process which has led to the
imposition of an inappropriate penalty, as evidenced by the fact that the Health Manager intervened to modify it.
Relief
[115] A combination of a wrongful denial of legal representation and procedural breaches of the Act and the Regulations has rendered the Visiting Justice’s findings of guilt and the penalty imposed unlawful and unfair. I consider that the combination of errors justifies the exercise of my discretion in granting the application for review and relief. Although the penalty has been served, the effects of such findings should not delay or influence the granting of Mr Matete’s parole in the future.
[116]The application for review is granted.
[117]The following declarations and orders are made by way of relief:
(a)The refusal to grant legal representation to the applicant was unlawful, the failure to disclose timely information relevant to the applicant’s disciplinary hearing was in breach of natural justice and the conduct of the disciplinary hearing was in breach of natural justice and unfair.
(b)As a result, the finding that the misconduct charge was proved is unsafe and the penalty imposed was unfair.
(c)The finding that the misconduct charge is proved is set aside.
(d)The penalty of 10 days’ cell confinement and 40 days’ loss of privileges is set aside.
Costs
[118] There will be an order for costs on category 2 band B or the repayment of the legal aid grant for the applicant.
Cull J
Solicitors:
Masons Lane Chambers, Wellington, for Applicant Crown Law Office, Wellington, for Respondents
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