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 Act 2004 is that Visiting Justices cannot be held to account by the Crown and thus compensation should not be available to prisoners for breaches of the Bill of Rights by Visiting Justices. 

[8]        Fogarty J considered that there are two possible ratios of the decision of this Court in Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667. The first is that the Crown is directly liable for all breaches of the Bill of Rights as a matter of public law. The second (and narrower) possible ratio is that the Crown is directly responsible only for a breach of the Bill of Rights by the executive.

[9]        Fogarty J considered that the second possible ratio should be adopted because that would serve to protect the independence of the judiciary.  Mr McKean’s claim failed accordingly.  If he was wrong and the wider ratio of Baigent’s Case applied, Fogarty J went on to consider whether it would be appropriate to award compensation to Mr McKean.  He decided that it was not.

[10]       Fogarty J noted that there was no suggestion that prison officials had in any way contributed to the lapse of 14 days from the judgment of the Visiting Justice and the commencement of the judicial review proceedings in the High Court.  Interim relief (suspending the punishment) was granted one day after the proceedings were filed.  Fogarty J rejected Mr McKean’s contention that there had been continuing adverse effects once the interim relief had been granted.  Fogarty J also stressed that the decision had been quashed.

[11]       In Fogarty J’s view, Mr McKean’s case demonstrated the efficacy of judicial review, which he considered was adequate redress for the errors of the Visiting Justice in this case.  The claim for compensation was therefore not made out.

The parties’ submissions

[12]       Mr Allan, on behalf of Mr McKean, adopts the arguments of Dr Harrison QC in Attorney-General of New Zealand v Chapman [2009] NZCA 552 (heard at the same time as this appeal). Additionally, Mr Allan relies upon the recent comments of the Supreme Court in R v Williams [2009] 2 NZLR 750 at [18], in which the Court noted that monetary compensation could be justified in the extreme case where a conviction is set aside after undue delay in an accused coming to trial. Mr Allan accordingly submits that Fogarty J should have adopted the wider ratio of Baigent’s Case. 

[13]       Mr Allan acknowledges that not every case where natural justice has been breached would lead to an award of Bill of Rights compensation.  In his submission, however, the Bill of Rights protections (in particular the protection of the natural justice right) are particularly important in a prison disciplinary context, where there is no appeal from the decision of a Visiting Justice.  While he acknowledges that judicial review is available, he submits that the process of applying for judicial review is much more complicated than an appeal.

[14]       Further, Mr Allan submits that the breaches of natural justice in this case were particularly bad and the remedy was hollow as much of the sentence had been served before the interim orders and Mr McKean had been released on parole before Fogarty J’s decision.

[15]       Dr Collins QC, for the Department of Corrections, first submits that Fogarty J was correct to adopt the narrow view of the ratio of Baigent’s Case.  In his submission, compensation is never available for breaches of the Bill of Rights by judicial officers (and Visiting Justices are judicial officers).

[16]       Dr Collins next submits that, in the context of prison discipline, the great bulk of disciplinary complaints are dealt with by a hearing adjudicator, with appeals to a Visiting Justice.  The system of appeal provides an effective remedy for any Bill of Rights breaches by prison adjudicators. 

[17]       Where, as in this case, the charge is heard by a Visiting Justice at first instance, Dr Collins submits that judicial review is an effective, appropriate and proportionate remedy and thus, as a matter of law, compensation is not available.  Even if available as a matter of law, Dr Collins submits that compensation was not an appropriate remedy in this case.

[18]       The second respondent abides the decision of the Court (as was its position before Fogarty J).

Issues

[19]       The issues arising are:

(a)Is compensation available for breaches of the Bill of Rights by judicial officers?

(b)Should compensation have been ordered in this case?

Is compensation available for breaches of the Bill of Rights by judicial officers?

[20]       This question is answered in the judgment in Chapman, which is being released at the same time as this decision.  It is clear from that decision that we accept Mr Allan’s submission that Fogarty J should have adopted the wider ratio of Baigent’s Case.  Therefore, compensation is available for breaches of the Bill of Rights by judicial officers.

Should compensation have been ordered in this case?

[21]       As outlined in this Court in Chapman at [107], Bill of Rights damages for a breach of the natural justice right in s 27(1) are likely to be rare. They should be confined to circumstances where there is no other effective remedy, where human dignity or personal integrity or (possibly) the integrity of property are also engaged and where the breach is of such constitutional significance and seriousness that it would shock the public conscience and justify damages being paid out of the public purse. See also Taunoa v Attorney-General [2008] 1 NZLR 429 at [261] per Blanchard J and at [298] per Tipping J (SC), Brown v Attorney-General [2005] 2 NZLR 405 at [100] ‑ [101] and the separate comments of William Young J at [141] ‑ [142] (CA), Attorney-General v Udompun [2005] 3 NZLR 204 at [168] ‑ [170] (CA) and Combined Beneficiaries Union v Auckland City COGS Committee and Others [2009] 2 NZLR 56 at [56] – [58] and [70] – [71] (CA).

[22]       We accept Dr Collins’ submission that judicial review provided an effective, appropriate, proportionate and sufficient remedy for the breaches of natural justice that occurred in this case.  There was, as Fogarty J pointed out, no suggestion that the delay from the date of the decision of the Visiting Justice to the filing of the review proceedings was the fault of the Department of Corrections.  The punishment was suspended within one day of the application for judicial review being filed and the impugned decision was quashed by the High Court.  Mr McKean’s release from prison has even spared him a rehearing (where he may have been found guilty as charged).

[23]       We do not consider that the factors pointed to by Mr Allan point towards the granting of a remedy in this case.  We see no significant differences between the processes for an appeal and those for judicial review.  Indeed, the ability to apply for interim orders in judicial review applications may even provide an advantage over appeals.  The breaches of natural justice in this case were serious but no more so than in a number of other cases that have come before the courts.  It has not been suggested that there was any bad faith involved on the part of the Visiting Justice.  Further, while natural justice is important in the prison disciplinary system, it is no less important in other contexts, including in particular in the context of criminal trials.

[24]       For all of the above reasons, Fogarty J was clearly correct not to award compensation to Mr McKean.

Result

[25]       The appeal is dismissed.

[26]       If there is any issue of costs, the parties should endeavour to settle the issue between them but, if they are unable to do so, memoranda should be filed on or before 5.00 pm on Monday 14 December 2009.

Solicitors:

G C Knight, Solicitor, Christchurch for Appellant

Crown Law Office, Wellington