McKean v Attorney-General HC Christchurch CIV 2005-409-002125
[2007] NZHC 1900
•22 June 2007
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2005-409-002125
BETWEEN SHANNON BLAIR MCKEAN Plaintiff
AND THE ATTORNEY-GENERAL FOR AND ON BEHALF OF THE DEPARTMENT FOR CORRECTIONS
First Defendant
AND THE VISITING JUSTICE AT PAPARUA PRISON
Second Defendant
Hearing: 8 June 2007
Appearances: P N Allan for Plaintiff
F Sinclair for First Defendant
R E Schmidt for Second Defendant
Judgment: 22 June 2007
JUDGMENT OF FOGARTY J
Introduction
[1] This is an application for judicial review and for an award of damages under the New Zealand Bill of Rights Act 1990. The issue dividing the parties is not the validity of the judicial decision under review, but whether compensation should be awarded.
[2] On 19 July 2005 the plaintiff was an inmate of Paparua Prison and was required to give a urine sample for drug testing purposes. This he did. Upon analysis the sample was rejected because the level of urinary creatinine was less than
MCKEAN V THE ATTORNEY-GENERAL AND ANOR HC CHCH CIV 2005-409-002125 22 June 2007
50 milligrams per litre of urine and was therefore judged to be inconsistent with urine. On the basis of that test result he was charged with tampering with the sample. He was brought before an adjudicator, and was refused legal representation on the grounds of lack of complexity.
[3] The second defendant, a Visiting Justice, heard the charge on 5 September
2005. The prosecution case was based on the test result and a report. The report was not given to the plaintiff but the extracts were read out during the hearing. The Visiting Justice found the charge proven and sentenced the applicant to five days cell confinement and 28 days loss of privileges. This order was made on 5 September.
[4] On 19 September the plaintiff filed an application for judicial review. The next day this Court made an interim order deferring completion of the penalty pending the outcome of this case. The plaintiff has since been released.
[5] In his statement of claim the plaintiff claims he has suffered loss being cell confinement of five days and loss of privileges up to the deferment of penalty and restrictions as a prisoner as a result of being given an identified drug user status. He also pleads emotional harm.
Invalidity
[6] The first defendant agrees that there should be a declaration of invalidity of the decision. The position of the first defendant follows the decision of John Hansen J in Percival v Attorney-General [2006] NZAR 215. The first defendant accepts that Mr McKean was refused legal representation in a case that required that, that he did not have the opportunity to challenge the ESR classification through cross-examination of an expert witness, and nor did he have prior notice of the ESR statement upon which the prosecution relied. The second defendant has had notice of that position and does not oppose.
[7] This Court accepts the first defendant’s reasons and it is declared that the substantive decision on 5 September was made unfairly in breach of the principles of natural justice. It is quashed.
Compensation issue
[8] The claim for damages is pleaded as part of a separate cause of action for compensation for breach of rights under the New Zealand Bill of Rights Act 1990. Mr Allan relies principally on the decision of the Court of Appeal in Simpson v Attorney-General [Baigent’s case] [1994] 3 NZLR 667 and upon Upton v Green (No.2) (1996) 3 HRNZ 179 (HC) and Attorney-General v Upton (1998) 5 HRNZ 54 (CA).
[9] In Baigent’s case a detective had obtained a warrant from the Registrar of the District Court for search of premises at 16 London Road. This was on the basis that a Mr O’Brien was selling cannabis at that address. In fact 16 London Road was Mrs Baigent’s address and she had no connection with Mr O’Brien. When the police arrived she was not at home. Her son was. It is pleaded that he told them they had the wrong address, as did a neighbour. It was pleaded that having been told he had the wrong address Detective Drummond replied:
We often get it wrong, but while we are here we will have a look around anyway.
On those facts, if proved, it was distinctly arguable that the detective was no longer purporting to execute the warrant.1
[10] If so, that was a case of unreasonable search in violation of s 21 of the Bill of
Rights Act. Section 21 provides:
21 Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
[11] The majority in Baigent’s case recognised a public law action directly against
Crown for a breach by a police officer of the New Zealand Bill of Rights Act.
[12] In Upton v Green (No. 2) the plaintiff had appeared in the District Court at
Christchurch before a District Court Judge on charges of failing to report to a
1 See Cooke P at 674 line 38; Casey J 690, line 3; Hardie Boys J 696, line 47; McKay J 716, line 39
periodic detention centre and failing to notify the warden at the centre he was unable to report. He was sentenced to two months imprisonment on the first, and one month’s cumulative imprisonment on the second charge. The High Court found he had been sentenced by the Judge without being first given an opportunity to be heard, and that was in breach of s 25(a) which provides:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
and s 27(1) which provides:
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
[13] The High Court awarded the plaintiff $15,000 in damages payable by the
Attorney-General, for the Crown, for the error of the District Court Judge.
[14] The Attorney-General appealed Upton on three grounds, none of which challenged the proposition that the Crown could be liable for damages by reason of a breach of the New Zealand Bill of Rights Act by a judicial officer. Whether or not the Crown could be so liable was not considered by the Court of Appeal in its judgment: see Attorney-General v Upton (1998) 5 HRNZ 54.
[15] In Brown v Attorney-General [2005] 2 NZLR 405 Mr Brown was charged with attempted murder. A shirt was found at his flat with blood of the victim on it. The shirt had sweat stains. Mr Brown wanted DNA testing to prove it was not his sweat. The Auckland District Legal Services sub-committee declined an application to fund DNA testing of the shirt by an Australian laboratory. Mr Brown subsequently obtained a discharge from conviction for murder when further DNA testing established that the shirt had been worn by another resident in the flat. He
brought a claim for compensation seeking $3 million under the New Zealand Bill of
Rights Act. He was unsuccessful in the High Court and in the Court of Appeal.
[16] The Court considered that the DLSS decision to refuse legal aid for testing in Australia was not unlawful or unreasonable, so that Mr Brown had not established any breach of his rights under the New Zealand Bill of Rights Act. The question of compensation did not fall to be decided. However, under that head, Chambers J, for himself, Anderson P, Hammond, and O’Regan JJ said:
[100] We express no view as to when (if ever) compensation or financial relief would be an appropriate remedy for breach of “fair trial” rights. We also express no view as to how compensation should be measured in this area, assuming the compensation remedy to be appropriate. How remedies for breaches of the Bill of Rights should be synthesised with existing causes of actions, such as malicious prosecution and false imprisonment at common law, and their remedies, will require careful development case by case. We prefer to leave those difficult questions to cases where the resolution of them would have a practical consequence for the parties.
[101] Having said that, we acknowledge the strength of the views expressed by
William Young J in his separate judgment at [126] – [142].
[17] William Young J saw the case as raising two issues:
(a) Has the State breached the rights of the appellant under the New
Zealand Bill of Rights Act 1990?
(b) If the State has breached the rights of the appellant under the New Zealand Bill of Rights Act 1990, would monetary relief be an appropriate remedy?
[18] Essentially he answered no to question (b). His judgment followed recent decisions of the Privy Council, developing the principle that constitutional rights and due process do not guarantee that the judicial process will be free from error. Correction of error is provided for by the appellate process and judicial review.
[19] This led to the Judge’s conclusion:
[141] I would be very sorry to see the Courts assert a jurisdiction to award compensation in “exceptional” or “egregious” cases involving breach of fair trial rights. The not entirely happy experience of the Courts in this country with claims for exemplary damages suggests that the costs to litigants and the community of such a discretionary head of jurisdiction would be grossly
disproportionate to the value of the few, if any, awards likely to be made and to any other public benefits likely to be derived from such litigation.
[142] In my view, the New Zealand Courts ought not to award compensation as a remedy for unfair trial process but rather should require such complaints to be raised with either the trial Judge or on appeal. I say this for the general reasons which I have already given and for the following somewhat more particular reasons:
(a) The rules as to trial fairness have been developed for the purpose of determining whether appeals should be allowed and not for determining entitlements to compensation. They are therefore not likely to be well suited for application in a compensation context.
(b) The purposes for which rules are used necessarily have an impact on their content. If the rules as to trial fairness are required to serve the dual function of determining whether criminal appeals ought to be allowed and entitlements to compensation, there are likely to be consequential changes in practice to the disadvantage of criminal appellants. It is likely to become harder for appellants to persuade appellate Courts that there was unfairness.
(c) In 1990, the legislature did not intend the enactment of the New Zealand Bill of Rights Act to provide for anything like an entitlement to compensation for those subjected to unfair trial process. For the Courts to recognise claims to compensation in relation to unfair trial process would create a fiscal burden on the taxpayer which Parliament can hardly be seen to have authorised.
(d) This is not to deny efficacy to the New Zealand Bill of Rights Act. At the risk of being thought to have adopted too simplistic an approach, I think that the “natural” remedy for breach of fair trial rights is to be found in the jurisdiction of trial and appellate Courts rather than by way of damages. This approach is, in effect, the correlative of the Courts’ willingness to exclude evidence obtained in breach of the New Zealand Bill of Rights Act rather than to compensate defendants with money payments.
(e) As pointed out by Lord Hailsham in Maharaj, it is difficult to see why a person who has been convicted following an unfair trial is any more deserving a claimant for compensation than another person convicted following a trial which miscarried for reasons other than State unfairness.
(f) This approach is consistent with the most recent Privy Council jurisprudence.
[20] Later in 2005, a slightly differently constituted Court of Appeal in Attorney- General v Udompun [2005] 3 NZLR 204 reasoned in paragraphs [168] – [170]:
[168] This means that it is not strictly necessary for us to deal with Mr France’s submission that BORA compensation should not be available for breaches of natural justice obligations. As the matter was raised,
however, we make some preliminary comments. In our view, there is force in the proposition that compensation should not be available for breaches of natural justice as a matter of course. It should not lightly be assumed that BORA has overtaken the existing law on administrative law damages to this extent.
[169] In normal circumstances it would be a sufficient remedy for a breach of natural justice to have the impugned decision set aside, a declaration that it was not properly made and, if possible, an order to make the decision anew. Where there already is an effective remedy, BORA compensation is not needed – see the comments in Baigent’s Case at p 676 (per Cooke P), at p 692 (per Casey J), at p 703 (per Hardie Boys J) and at p
718 (per McKay J) and the comments of this Court in Wilding v Attorney-
General at para [14]. This is a principle applied by the European Court of Human Rights (see the English Law Commission and Scottish Law Commission Damages Under the Human Rights Act 1998 (Law Com No
266/Scot Law Com No 180, Cm 4853, 2000) at para 4.36). It is also the
approach required by s 8(3) of the United Kingdom Human Rights Act.
[21] It is readily apparent that these passages from Brown and Udompun are obiter dicta. However, they are from cases where the Court of Appeal has sat with five permanent members. They are clear guidance to the High Court that the Court of Appeal considers the law to be unsettled as to whether compensation will ever be an appropriate remedy for breach of fair trial rights. Thereby, effectively they do not read Upton as settling the law. Given this recent dicta in Brown and Udompun, and because the Court in Upton does not address the issue, I do not consider Upton
prevents this Court from following the direction in Brown.2
[22] The majority in Brown require the High Court to examine case by case whether compensation as a public law remedy under the New Zealand Bill of Rights Act can appropriately be synthesised with existing causes of action relevant to the issues.
[23] Prior to these dicta in Brown and Udompun there were two competing ratios of Baigent’s case. The usual one is simply that the Crown is directly liable for breach of the New Zealand Bill of Rights Act as a matter of public law.3 Thus stated, any breach of right potentially sounds in damages against the Crown. As the
2 William Young J says [133]: “It does not sit easily with the later Privy Council cases.”
3 The New Zealand Bill of Rights, Paul Rishworth and others, Oxford University Press, at 812
See obiter dicta in Rawlinson v Rice [1997] 2 NZLR 651. 663 per McKay J and 664 per Barker J. It is the ratio used in a number of High Court judgments such as Percival
Law Commission put it in their report No. 37 “Crown Liability and Judicial
Immunity” May 1997 paragraph 94:
Statements in Baigent’s case can be, and have been, read as indicating that the Crown is, in a sense, a total guarantor of the Bill of Rights Act. In particular, McKay J stated that where “a right is infringed by a branch of government or a public functionary, the remedy under the Act must be against the Crown”. (Baigent at 718)
[24] However, the Law Commission favoured a narrower ratio confined to the material facts. In the next paragraph the Law Commission stated its ratio which is that:
Baigent, … imposed direct liability on the Crown on the grounds of breach by an element of the executive in terms of s 3(a).
[25] Section 3 of the New Zealand Bill of Rights Act provides:
3 Application
This Bill of Rights applies only to acts done—
(a) By the legislative, executive, or judicial branches of the government of
New Zealand; or
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
[26] The narrow ratio follows the classic proposition that a case stands for that for which it was necessary to decide. In Baigent’s case direct liability was recognised as being capable of being imposed on the Crown for breach of the New Zealand Bill of Rights Act by the police, part of the executive branch of government.
[27] Support for the broader general guarantor proposition is underpinned by the fact that the majority in Baigent’s case relied on the majority judgment in Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385. In that case a majority of their Lordships, Lord Hailsham dissented, held that Article 6 of the Constitution of the People of Trinidad and Tobago 1962 gave the High Court a jurisdiction to order damages against the State for contravention by a High Court Judge of an individual’s right to liberty, protected by Article 1.
[28] The relevant provisions of the Constitution are:
Article 1:
‘1. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law …
Article 6.1 (first sentence):
‘6.–(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of the foregoing sections or section of this Constitution has been, is being, or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.
[29] A barrister, Mr Maharaj, was committed to seven days imprisonment for contempt of Court on the order of Maharaj J. That order was not by due process of law because the Judge had:
… failed to observe a fundamental rule of natural justice: that a person accused of an offence should be told what he is said to have done plainly enough to give him an opportunity to put forward any explanation or excuse that he may wish to advance. (at 391)
[30] The majority of their Lordships, in a speech delivered by Lord Diplock, held:
The order of Maharaj J. committing the appellant to prison was made by him in the exercise of the judicial powers of the state; the arrest and detention of the appellant pursuant to the judge’s order was effected by the executive arms of the state. So if his detention amounted to a contravention of his rights under section 1 (a), it was a contravention by the state against which he was entitled to protection. Whether it did amount to a contravention depends upon whether the judge’s order was lawful under the law in force before the Constitution came into effect. At that time the only law governing contempt of court in Trinidad and Tobago was the common law; and at common law it had long been settled that
“… no person should be punished for contempt of court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him …” In re Pollard (1868) L.R. 2 P.C. 106, 120
That the order of Maharaj J. was unlawful on this ground has already been determined in the previous appeal; and in their Lordships’ view it clearly
amounted to a contravention by the state of the appellant’s rights under section 1 (a) not to be deprived of his liberty except by due process of law.
It is true that under the law in force at the coming into effect of the Constitution the only remedy available to the appellant against an order for committal that was unlawful on this or any other ground, would have been an appeal to the Judicial Committee of the Privy Council, by special leave, to have the order set aside. No action in tort would have lain against the police or prison officers who had arrested or detained him since they would have acted in execution of judicial process that was valid on its face; nor would any action have lain against the judge himself for anything he had done unlawfully while purporting to discharge judicial functions: see Sirros v. Moore [1975] 1 Q.B. 118, in which many of the older authorities are cited. But sections 1 and 2 are concerned with rights, not with remedies for their contravention. (at 397-398)
[31] Lord Diplock went on to address the proposition:
…It has been urged upon their Lordships on behalf of the Attorney-General that so to decide would be to subvert the long established rule of public policy that a judge cannot be made personally liable in court proceedings for anything done by him in the exercise or purported exercise of his judicial functions. (at 399)
Which he answered:
… In the second place, no change is involved in the rule that a judge cannot be made personally liable for what he has done when acting or purporting to act in a judicial capacity. The claim for redress under s 6(1) for what has been done by a judge is a claim against the state for what has been done in the exercise of the judicial power of the state. This is not vicarious liability; it is a liability of the state itself. It is not a liability in tort at all; it is a liability in the public law of the state, not of the judge himself, which has been newly created by section 6(1) and (2) of the Constitution. (at 399)
[32] William Young J has noted in his judgment in Brown [132] that recent decisions of the Privy Council have taken the approach that constitutional guarantees as to fair trial are best given effect within the statutory appellate process provided for (and of course by trial Courts). He discussed the speech of Lord Brown in Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago [2004] UKPC 26 at paragraphs [87]-[93] where the ratio of Maharaj has been redefined. The case is now authority for the proposition that the State can be liable for not providing a legal system with a right of appeal against a finding of contempt, nor the right to apply for bail.
[33] Of more significance to this Court is the dicta of the majority in Brown: that remedies for breach should be synthesised with existing causes of actions. This dicta runs across the distinction Lord Diplock relied on in Maharaj between liability in tort and liability by the public law of the state. See the last passage quoted above.
[34] With respect to the memory of this great Judge, the weakness in that reasoning is that the common law immunity from suit is in place as a means to protect another, and a greater, good: the independence of the judiciary.4 Imposing Crown liability for actions of judicial officers is likely to bring pressure for corresponding demands of accountability by Judges to the Crown: see the Law Commission’s report, chapter 3, para 47. This to my mind is the most important reason why it is unsatisfactory for this Court to adopt the broader ratio of Baigent’s case.
[35] Accordingly I adopt the narrow ratio of Baigent’s case. Then, following Brown, I examine whether or not public liability for compensation against the Crown in respect of conduct of a Visiting Justice can be synthesised with existing causes of action, and, I add, the statutory scheme for Visiting Justices.
[36] The Corrections Act 2004 provides for Visiting Justices (being a Justice of the Peace or barrister and solicitor of the High Court). It does so in order to ensure independence from the Crown employees administering the prisons. Parliament intends that Visiting Justices are not to be held to account to the Crown. Section
19(6) and (7) provide:
(6) A Visiting Justice appointed under subsection (2)— (a) holds office for a term of 3 years; and
(b) may, from time to time, be reappointed; and
(c) unless he or she sooner vacates, or ceases to hold, or is removed from office under subsection (7), continues to hold office until his or her successor comes into office, even though the term for which he or she was appointed has expired.
(7) A Visiting Justice appointed under subsection (2)—
4 Halsbury’s Laws of England 4th ed reissue Vol 8(2) The Independence of the Judiciary and the
Separation of Powers, paras 303 and 304
(a) may resign from the office by delivering to the Minister of Justice a notice in writing to that effect and stating when the resignation takes effect:
(b) ceases to hold office if he or she dies:
(c) ceases to hold office if he or she is, under the Insolvency Act
1967, adjudged bankrupt:
(d) may, at any time, be removed from the office by the Governor- General for inability to perform the functions of office, neglect of duty, or misconduct, proved to the satisfaction of the Governor- General:
(e) has and enjoys, in the performance of his or her duties under this Act, the same protection as a Justice of the Peace acting in his or her criminal jurisdiction has and enjoys under Part 7 of the Summary Proceedings Act 1957.
[37] Section 19(7)(d) does not suggest in any way that the Crown is liable for any misconduct by a Visiting Justice. No-one would suggest, nor has it been suggested, that the Visiting Justice in this case was vulnerable to be removed by the conduct which now forms the basis for a claim for compensation.
[38] It is also plain from these provisions of the Act that it was Parliament’s intention to ensure the rights of prisoners by providing for independent visiting judiciary. This policy and method is consistent with our constitutional history, which in this area goes back at least 400 years.5 It has been the policy of the common law and of successive Parliaments, at least since the Act of Settlement
1770, that the best protection of an individual’s liberties and rights is that they be judged by independent Judges, who are not accountable to Ministers of the Crown (executive government). If any error of natural justice by a Visiting Justice may impose liability on the Crown, there could be public pressure on the executive government to call such errant Visiting Justices to account. Yet this is precisely the outcome which Parliament set about to prevent when it enacted s 19(7).
[39] Of course, if a Visiting Justice exercises power in bad faith that Justice is exposed to personal liability: see in Re McC [1985] A.C. 528, 540, where Lord Bridge said:
5 See Halsbury op.cit
It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say, “that is a perverse verdict”, and thereupon proceed to pass sentence of imprisonment, he could be sued for trespass.
[40] For these reasons, the legislature did not intend that, notwithstanding independent judiciary provisions of the Corrections Act 2004, the New Zealand Bill of Rights Act would provide an entitlement for compensation by prisoners against the Crown, in consequence of natural justice errors in the hearing process by Visiting Justices. Such errors are to be corrected by judicial review, secured by s 27(2) of the New Zealand Bill of Rights Act which provides:
27 Right to justice
…
(2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
[41] In the event that I am wrong, I go on to consider whether it is appropriate that compensation be ordered. On this basis I assume that the wider ratio of the Crown as total guarantor is adopted.
[42] It should have been already noted that the Visiting Justice’s decision was subject to judicial review and the decision has been quashed. Second, interim relief was granted one day after the proceedings were issued in the High Court. It was an order in general terms:
1.Pending the determination of the application by the applicant for judicial review, any part of the penalties which were imposed upon the applicant at a disciplinary hearing conducted by the second defendants at Paparua Prison on 5 September 2005 (being 5 days cell confinement and 28 days loss of privileges) and which are still remaining be deferred.
2.The first defendant has leave to apply to the Court for this deferral of penalty to be set aside, on the giving of ten days notice in writing to the plaintiff’s solicitor.
[43] There was an elapse of 14 days between the judgment of the Visiting Justice and the commencement of proceedings in the High Court. From the bar, Mr Allan explained that it is not easy to get reliable instructions to commence judicial review from a prison. One can understand that.
[44] I note that were it the case that prison officials, being employees of the executive branch of government, blocked access to the Court for judicial review, by denying a prisoner access to legal advice, there might well be a cause of action under the New Zealand Bill of Rights Act applying Baigent’s case. It is not suggested that there was any such obstruction in this case.
[45] Mr Allan for the plaintiff submitted that the appropriate figures as regards compensation might be $1,000 per day of cell confinement (CC), $100 per day of lost privileges (OP), together with a global figure of $5,000 for the stain of identified drug user (IDU) status. That is a total of $11,600 plus costs. He submitted that that would be in line with the outcome in Upton and Udompun.
[46] In support of these figures, Mr Allan relied on an affidavit of Mr McKean in support of his compensation claim:
6.As a result of the decision of the Visiting Justice I spent 5 days in cell-confinement (‘CCs’) and 16 days without privileges (‘Ops’).
7.I served my CCs in Kotuku unit ‘pound’. I was placed in the cell and effectively left for 5 days without my possessions and with my only contact being guards bringing me my prison meals.
8.After I served my cell-confinement time I was moved back into the Kotuku unit proper and moved onto the Ops phase of my punishment.
9.During my Ops I was not allowed to have a TV and radio in my room, was locked in my cell early at night and was not allowed
‘buy-ups’.
10.‘Buy-ups’ or the ability to purchase items via P119 form was especially important for me because I did not eat much prison food during my time in prison if I could help it. I would usually maintain my energy requirements with food purchased in buy-ups such as noodles etc.
11.Because I am not the best at reading and writing the cumulative effect of my punishment was my being bored and hungry until my punishment was suspended by the High Court.
Effect of IDU management:
12.Although the interim order made by the High Court suspended my punishment, I continued to be managed as a prisoner with Identified Drug User (‘IDU’) status.
13.One consequence of this was that I was not allowed contact visits for the duration of my time on IDU management.
14.I spent approximately 4 months having visits with my girlfriend and daughter separated by glass. I missed receiving a hug from my daughter for my birthday and for Christmas 2005. I feel that the lack of physical contact contributed to my break-up with my girlfriend.
15.The only physical contact I was allowed with members of my family was when I was allowed to say goodbye to my nephew, but not my sister, when they both moved to Australia to live.
Employment Suspended:
16.At the time that I was wrongly convicted by the Visiting Justice I was employed in the engineering Workshop opposite the Kotuku unit. I believe I was regarded as a good worker there.
17. As a result of the IDU, my employment was suspended.
18.It is hard enough to do jail with work but without it, it is that much harder. This is both because work fills in the time and also that the small amount of wages allows buy-ups of food and other luxuries that makes prison that little bit more bearable.
19.The drug testers appeared to be in no hurry to allow me to give my voluntary samples to get off IDU and it wasn’t until my boss started jumping up and down about getting me back to work that I got to do my voluntaries.
20.The total amount of time before I returned to work was around 6 months.
Parole Issues:
21.I became eligible for parole subsequent to my conviction for giving the inconsistent urine sample.
22.Although I had had the punishment suspended, the Parole Board still took my conviction into account in their decision not to release me at that time.
[47] I do not find the contention as to parole persuasive. On 19 June 2005 the plaintiff provided a sample of urine for analysis which positively showed the use of cannabis. He pleaded guilty before the hearing adjudicator and was sentenced to three days CC and 14 days OP. On 17 July Corrections officers recorded an odour
of cannabis had been detected in his cell. On 19 July he was required to provide a urine sample. When analysed this was classified as being inconsistent with human urine. It was arising out of this event that he was charged with tampering with the sample.
[48] The Crown submitted that the plaintiff, like the five prisoners dealt with in Percival, had ingested large volumes of fluid, a practice called “water loading” before providing the sample. The plaintiff agrees that he did drink a lot of water. But he suggested that it was because he was drinking water every time he felt like having a smoke. He points out there is no law or regulation against prisoners or anybody else drinking water.
[49] It may well be the Parole Board had his earlier cannabis offending and the water loading in mind, and did not have a great deal of sympathy for the plaintiff. His water loading could be seen as gaming the system. The plaintiff has not put the record of the Parole Board before the Court for examination. Without this record it is not possible to conclude that the decision of the Parole Board was a direct consequence of a breach of the New Zealand Bill of Rights Act by the Visiting Justice.
[50] The other consequences, said not to be covered by the interim order, were the effect of IDU management and suspension of employment in the workshop. These matters, if anticipated, could have been specifically covered by the interim order application or addressed by further application at a later date, when they occurred. There was also room to have argued they were penalties and so were covered by the interim order.
[51] This case demonstrates the efficacy of judicial review. It demonstrates the speed with which the Court can grant interim relief, in this case with the consent of the first defendant. Judicial review was adequate redress for the error on the part of the Visiting Justice. Based upon the guidance of the Court of Appeal in Updompun the plaintiff has not made out a claim for damages.
[52] The cause of action for compensation is dismissed.
[53] The plaintiff has succeeded on judicial review but failed on the second cause of action. He is legally aided. There is no order for costs.
Solicitors:
P N Allan, Christchurch, for PlaintiffCrown Law Office, Wellington, for First & Second Defendants
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