Mitchell v Attorney-General - [2014] NZHC 1339

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-9434 [2014] NZHC 1339

UNDER The Judicature Amendment Act 1972

BETWEEN

KERRYN MITCHELL Plaintiff

AND

ATTORNEY-GENERAL First Defendant

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Second Defendant

Hearing: 26 May 2014

Counsel:

Plaintiff in person (by AVL)
C A Griffin with M J Cameron for Defendants

Judgment:

16 June 2014

JUDGMENT OF THE HON JUSTICE KÓS

[1] The plaintiff is a prisoner. She has been allowed to keep a private television set in her cell. But new rules mean possession of private sets will be prohibited. Instead, prison-owned sets will be rented to any prisoner who wants one. The rental will be between $0 (if the prisoner qualifies for a full financial hardship discount) and $2.00 per week. The plaintiff brings these proceedings to challenge the removal of her private set, and the introduction of the new rental scheme.

[2] Did the plaintiff have the right to retain her private television set throughout her term of imprisonment? Are the rules creating the new rental scheme lawful? Is the application of those rules to the plaintiff lawful?

[3] The answers I reach to these questions are: no, yes and, so far, yes. A more detailed summary of my conclusions appears at [68].

MITCHELL v ATTORNEY-GENERAL & ANOR [2014] NZHC 1339 [16 June 2014]

Background

[4] Ms Mitchell was sentenced to 25 months’ imprisonment for intentional damage and breach of a protection order. She entered Arohata Prison, Wellington, in December 2012.1 Later she transferred to Auckland Region Women’s Corrections Facility.2 That was in September 2013. Parole was declined in March 2014. She is due for release in January 2015. Other pending charges may postpone that, however.

[5] After arriving at Arohata Ms Mitchell requested use of her television set. Regulations at the time permitted prisoners to have their own television sets in their cells.3 Her request was approved, and a friend dropped the set off. It is a “well worn” cathode ray tube set. Old style, not flat screen. Ms Mitchell paid $18 for a security and electrical safety check. The former because these sorts of sets are often used to conceal contraband.

[6] Ms Mitchell signed a form acknowledging receipt. But she refused to sign a second form. That said, inter alia, “I agree to comply with any specified condition relating to the use of an item of property”. Such acknowledgment is specifically required – by s 44(1)(d) of the Corrections Act 20044 – before property is issued to the prisoner. Refusing to sign meant Ms Mitchell had no entitlement to receive her set. Notwithstanding, the set was still delivered to her.

[7] Prison-owned televisions in cells are common in a number of countries.5 In some countries they are provided free of charge. In others a small rental charge is levied. In 2011 Serco New Zealand was contracted to manage Mt Eden Prison. It introduced a television rental scheme there.

[8] In April 2012 the Corrections Department developed a proposal to introduce a similar…

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 [2014] NZHC 1339
Case: [2014] NZHC 1339
Decision Date: 16 June 2014

CaseChat Overview and Summary

The plaintiff, Ms. Mitchell, a prisoner in New Zealand, brought proceedings to challenge the removal of her private television set and the introduction of a new rental scheme for prison-owned sets. The court had to decide whether the plaintiff had the right to retain her private television set throughout her term of imprisonment, if the rules creating the new rental scheme were lawful, and if the application of those rules to the plaintiff was lawful. The court found that the plaintiff had no right to retain her private television set throughout her term of imprisonment, as there is no general entitlement of a prisoner to keep any particular item of property in their cell, and the scope of "authorised property" is not variable at whim. The court also found that the rules creating the new rental scheme were lawful, as the Act contemplates rules being made to discriminate between items that may be retained and those that may not, and the new rules were not repugnant to the purposes and principles of the Act. Finally, the court found that it was premature to determine whether the application of the scheme to the plaintiff was unlawful in practice, as she was not yet subject to it and would not be required to pay anything at all until October. The court dismissed Ms. Mitchell's application for judicial review.

Orders