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Mitchell v Attorney-General

Mitchell v Attorney-General

Case [2023] NZCA 605 29 November 2023

Judicial Review

Natural Justice & Procedural Fairness

Legitimate Expectation

Administrative Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA732/2021
[2023] NZCA 605

BETWEEN	KERRYN MITCHELL Appellant
AND	ATTORNEY-GENERAL (ON BEHALF OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS) Respondent

Hearing:	21 November 2022 (further submissions received 2 December 2022)
Court:	Katz, Mander and Downs JJ
Counsel:	Appellant in person D P Neild and V M Rea for Respondent
Judgment:	29 November 2023 at 10.30 am

JUDGMENT OF THE COURT

ALeave to adduce further evidence is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Introduction

Ms Mitchell was sentenced to imprisonment for a term of two years and three months. The Corrections Act 2004 (the Act) requires that all prisoners serving a term of more than three months’ imprisonment be assigned a security classification by the Chief Executive of the Department of Corrections that reflects the level of risk posed by that prisoner while inside or outside prison.[1] Corrections assigned Ms Mitchell a security classification of “low”. Ms Mitchell applied to the High Court for judicial review of that decision on the basis that Corrections had made a number of errors when assigning her security classification. She submitted that she should have been assigned a security classification of “minimum” rather than “low”. Gendall J dismissed the judicial review application.[2] Ms Mitchell now appeals.
[1]Corrections Act 2004, s 47.
[2]Mitchell v Attorney-General [2021] NZHC 2946 [Judgment under appeal].
Following the High Court decision, Ms Mitchell’s security classification was reviewed twice by Corrections, at six-monthly intervals, as required by the Act.[3] Both reviews resulted in Ms Mitchell’s “low” security classification being maintained. Ms Mitchell did not challenge those decisions. She was subsequently released into the community on parole, although she is presumably no longer subject to any standard or special release conditions, given the lapse of time.
[3]Corrections Act, s 47(3).
Corrections’ view is that the issues raised by this appeal are now moot, and it would therefore be appropriate for the Court to exercise its discretion to decline to determine this appeal. Corrections further submitted that the appeal is unmeritorious in any event, and the Judge’s decision to dismiss Ms Mitchell’s application for judicial review was correct.

Application for leave to adduce further evidence

Corrections applied for leave to adduce updating evidence on appeal.[4] The evidence sought to be adduced concerned the two reviews of Ms Mitchell’s security classification which occurred after the High Court decision. The evidence consists of affidavits from Ms Trask and Mr Murphy, who were the approving officers for the reviews of Ms Mitchell’s security classification. As far as we are aware, Ms Mitchell does not oppose the application. In any event, we are satisfied that the evidence is fresh, credible and cogent,[5] and grant leave to adduce it accordingly.

The process for assigning security classifications to prisoners

[4]Court of Appeal (Civil) Rules 2005, r 45.

[5]Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192; and

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 Mitchell v Attorney-General

Details

AGLC: Mitchell v Attorney-General [2023] NZCA 605
Case: [2023] NZCA 605
Decision Date: 29 November 2023 at 10.30 am

CaseChat Overview and Summary

Ms Kerryn Mitchell appeals the decision of the High Court to dismiss her application for judicial review of the decision of the Chief Executive of the Department of Corrections to assign her a security classification of "low". The appeal was heard by Katz, Mander and Downs JJ of the New Zealand Court of Appeal. Corrections applied for leave to adduce further evidence on appeal, which was granted by the Court. The appeal itself is moot, as Ms Mitchell's initial security classification has been superseded by two subsequent classification decisions (resulting in the same "low" security classification) that were not challenged, and Ms Mitchell's release on parole. The grounds of appeal advanced by Ms Mitchell relate to factual circumstances that no longer exist. For the reasons outlined above, it is the Court's view that the merits of the appeal are weak. This is a factor that weighs heavily against exercising the Court's discretion to determine a moot appeal. The Judge's reasoning is compelling. It is consistent with previous case law and does not disclose any apparent error. The statutory and administrative scheme for allocating a security classification to prisoners has been comprehensively considered in several cases. Ms Mitchell's appeal does not raise any new, and seriously arguable, issues of broader public importance relating to the implementation of the security classification process by Corrections. On the contrary, the issues raised by this appeal are largely fact-specific and limited to the circumstances of Ms Mitchell's case. For the reasons outlined, it is the Court's view that the Court should not exercise its discretion to hear the appeal. The appeal is dismissed accordingly.

Orders