McKean v Attorney-General - [2009] NZCA 553

IN THE COURT OF APPEAL OF NEW ZEALAND
CA357/2007
[2009] NZCA 553
BETWEENSHANNON BLAIR MCKEAN

Appellant

ANDTHE ATTORNEY-GENERAL FOR AND ON BEHALF OF THE DEPARTMENT FOR CORRECTIONS

First Respondent
ANDTHE VISITING JUSTICE AT PAPARUA PRISON

Second Respondent

Hearing:19 May 2009 and 26 August 2009

Court:Glazebrook, Chambers and O'Regan JJ
Counsel:P N Allan and K H Cook for Appellant

D B Collins QC, F R J Sinclair and C A Griffin for First Respondent
No appearance for Second Respondent

Judgment:25 November 2009 at 4.00 pm

JUDGMENT OF THE COURT

A            The appeal is dismissed.
B            Costs are reserved.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]        Mr McKean appeals against a decision of Fogarty J of 22 June 2007 refusing to grant Mr McKean compensation under the New Zealand Bill of Rights Act 1990 (Bill of Rights) for breaches of natural justice that occurred in the course of a prison disciplinary hearing: McKean v Attorney-General [2007] 3 NZLR 819 (HC).
Background
[2]        On 19 July 2005, Mr McKean was required to give a urine sample for drug testing purposes. At the time, he was an inmate at Paparua Prison. The level of urinary creatinine in Mr McKean’s sample was considered to be inconsistent with urine and he was charged with tampering with the sample.
[3]        The charge was heard before the Visiting Justice on 5 September 2005, who found the charge proved. Mr McKean was sentenced on the same day to five days cell confinement and a 28 day loss of privileges.
[4]        On 19 September 2005, Mr McKean filed an application for judicial review. The next day the High Court made an interim order deferring completion of the penalty pending the hearing of the judicial review application.
[5]        It was conceded by the Department of Corrections before Fogarty J (and indeed at the time the interim orders were applied for) that the hearing before the Visiting Justice should be declared invalid because it was made unfairly in breach of the principles of natural justice in three respects:
(a)          Mr McKean was refused legal representation in a case that required it;
(b)Mr McKean did not have prior notice of the ESR report upon which the prosecution relied. Indeed the report was not even given in full to him at the disciplinary hearing. Extracts only were read out at the hearing;
(c)Mr McKean did not have the opportunity to challenge the ESR report through cross-examination at the disciplinary hearing.

The High Court judgment
[6] Because of the concession by the Department of Corrections referred to above at [5], Fogarty J made a declaration that the decision of the Visiting Justice of 5 September 2005 was made unfairly and quashed the decision. In the event, Mr McKean was released from prison before Fogarty J’s judgment was issued and there was thus no question of the charge being heard again.
[7] Mr McKean’s claim for compensation was, however, rejected by Fogarty J. Fogarty J held that the scheme of the Corrections…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKean v Attorney-General

Details

AGLC: McKean v Attorney-General [2009] NZCA 553
Case: [2009] NZCA 553
Decision Date: 25 November 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to determine whether compensation should be awarded to Mr McKean under the New Zealand Bill of Rights Act 1990 for breaches of natural justice that occurred during a prison disciplinary hearing. The case arose from a charge against Mr McKean for tampering with a drug test while he was an inmate at Paparua Prison. The hearing before the Visiting Justice was found to have breached natural justice in three respects: Mr McKean was denied legal representation, he did not have prior notice of the evidence, and he was not given the opportunity to challenge the evidence. The High Court declared the disciplinary hearing invalid and quashed the decision but refused Mr McKean's claim for compensation, holding that compensation was not available for breaches of the Bill of Rights by judicial officers.

The Court of Appeal held that compensation is indeed available for breaches of the Bill of Rights by judicial officers, aligning with the broader interpretation of the case of Baigent’s Case. However, the Court found that judicial review provided an effective and proportionate remedy in this case. The delay in filing the judicial review proceedings was not attributable to the Department of Corrections, and the punishment was suspended promptly upon filing. Additionally, Mr McKean had been released from prison before the High Court's judgment, which meant he was spared from a rehearing. The Court concluded that the factors argued by Mr McKean's counsel did not justify the granting of compensation, as the breaches, while serious, were not exceptional and did not engage human dignity or personal integrity beyond what judicial review could remedy.

The appeal was dismissed, and the Court reserved the issue of costs for potential settlement between the parties. If the parties could not agree, they were to file memoranda by a specified date.

Orders