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Mitchell v Attorney-General

Mitchell v Attorney-General

Case [2025] NZHC 172 14 February 2025

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-511

[2025] NZHC 172

BETWEEN
KERRYN MITCHELL

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing:
6 and 7 May 2024, further submissions received on 26 August,

5 and 13 September 2024

Appearances:

D A Ewen KC and A Hill for Applicant D Jones and A Bagchi for Respondent

Judgment:

14 February 2025

JUDGMENT OF McHERRON J

Table of Contents

Ms Mitchell alleges she was denied her minimum entitlement to physical exercise[2]
Relief sought by Ms Mitchell[23]
Applicable law[25]
Summary of issues[30]
(a)Who has the burden of proving a prisoner received their ss 69/70 entitlements?[32]
(b)Does Corrections have a record keeping obligation in relation to providing
(or curtailing) s 69 minimum entitlements?[47]
(c)Was Ms Mitchell’s minimum entitlement to daily outdoor exercise denied or
curtailed; if so, to what extent?[55]
(d)Was Ms Mitchell’s minimum entitlement to daily outdoor exercise denied or
curtailed, and if so to what extent?[97]
(e)Did s 69(2) of the Act permit Corrections to deny Ms Mitchell her statutory
minimum entitlement to exercise?[138]
(f)Did denial of Ms Mitchell’s minimum entitlements breach of s 23(5) of the
Bill of Rights Act?[172]

Did heat stress from poor ventilation breach of s 23(5) of the Bill of Rights Act?[184] Did limited access to case managers breach s 23(5) of the Bill of Rights Act?[186] Did the majority rules practice breach s 23(5) of the Bill of Rights Act?[187]
Conclusion on breach of s 23(5) of the Bill of Rights Act[188]

MITCHELL v ATTORNEY-GENERAL [2025] NZHC 172 [14 February 2025]

This decision does not assess the current provision of minimum entitlements at Auckland Women’s or make declarations in respect of other prisoners[189]
Result[192]
Next steps[194]

[1] Kerryn Mitchell seeks declaratory relief and public law damages in respect of conditions of detention at Auckland Region Women’s Correctional Facility (Auckland Women’s) between 28 November 2019 and 13 October 2020, when she was a prisoner there.

Ms Mitchell alleges she was denied her minimum entitlement to physical exercise

[2] Ms Mitchell’s claim relates to the minimum entitlements outlined in s 69 of the Corrections Act 2004 (Act). In particular, her focus is on the entitlement to physical exercise in ss 69(1)(a) and 70 of the Act. Relevantly, those sections concern prisoners’ minimum entitlement to one hour of physical exercise, “in the open air if the weather permits”.

[3] Ms Mitchell was a remand or sentenced prisoner between 26 June 2019 and 13 October 2020. She was detained variously at Arohata Prison and Auckland Women’s throughout that period. However, her claim only concerns conditions at Auckland Women’s.

[4] Ms Mitchell alleges that she was denied physical exercise in accordance with the minimum entitlements on several days during her detention at Auckland Women’s.

[5] The respondent, the Attorney-General, admits that, on some occasions in the relevant period, prisoners’ access to exercise yards at Auckland Women’s was limited for health and safety and security reasons, especially during the…

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 [2025] NZHC 172
Case: [2025] NZHC 172
Decision Date: 14 February 2025

CaseChat Overview and Summary

Kerryn Mitchell claimed that she was denied her minimum entitlement to physical exercise and other minimum entitlements while she was detained at Auckland Women's Correctional Facility between 28 November 2019 and 13 October 2020. She sought declaratory relief and public law damages. The respondent, the Attorney-General, admitted that on some occasions, prisoners' access to exercise yards was limited for health and safety and security reasons, especially during the COVID-19 pandemic. However, the respondent contended that on many occasions, Ms Mitchell was offered physical exercise in accordance with or greater than her statutory minimum entitlements, but that Ms Mitchell declined the opportunity to exercise. The court considered several issues, including who had the burden of proving a prisoner received their minimum entitlements, whether Corrections had a record-keeping obligation in relation to providing minimum entitlements, and whether Ms Mitchell's minimum entitlement to daily outdoor exercise was denied or curtailed. The court concluded that the burden of proof in civil proceedings, including those seeking to establish a breach of the Bill of Rights Act, rested on the plaintiff. The court found that Corrections had no express obligation under the Act to maintain records that it had provided minimum entitlements to prisoners. However, if a prisoner presented evidence of Corrections' failure to provide minimum entitlements, the absence of records may incline the court to prefer a prisoner's evidence that minimum entitlements had not been provided. The court concluded that Ms Mitchell's minimum entitlement to daily outdoor exercise was denied or curtailed, and that the denial of her entitlement to open-air physical exercise on 132 days breached her rights under s 23(5) of the Bill of Rights Act. The court declared that Ms Mitchell's rights under s 23(5) of the Bill of Rights Act had been breached and awarded her costs.

Orders