Mitchell v Attorney-General
[2025] NZHC 172
•14 February 2025
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 COVID-19 pandemic. However, the respondent contends 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.
[6] Further, the respondent submits prisoners’ access to their minimum entitlements were managed during the COVID-19 pandemic, from late March 2020:
(a)in accordance with health and safety measures appropriate for applicable alert levels; and
(b)to reflect a shortage of staff.
[7] In her statement of claim, Ms Mitchell alleges that in the 175-day period prior to 27 May 2020, she was only permitted to take time out of her cell in the open air on six occasions. However, as the proceeding evolved, and the evidence shifted, Ms Mitchell responsibly revised the scope of her claim.
[8] Ms Mitchell alleges that, in some units at Auckland Women’s, the decision as to whether physical exercise time was taken in the open air or indoors was decided by prisoners’ majority vote. This led, Ms Mitchell says, to her receiving no outdoor exercise time when she wished to exercise indoors, as staff numbers were insufficient to allow both areas to be supervised simultaneously.
[9] Ms Mitchell also alleges that the physical structures surrounding several of the units at Auckland Women’s, including where she was housed, were inadequate to contain prisoners during their outdoor exercise time. That meant when pandemic controls were strictest, open air exercise was unavailable for prisoners in those units.
[10] The Attorney-General accepts that some of the fences surrounding the exercise yards at Auckland Women’s were not built sufficiently securely. In April 2020, then Acting Prison Manager for Auckland Women’s, Stephen Parr, directed that prisoners in the programmes and remand units at Auckland Women’s should not be taken outside to the yards.1 Prisoners had previously attempted to scale the yard fences, and could do so easily. There was an established risk they would escape to another part of the prison. Mr Parr “hoped to eliminate the risk of cross-infection” between units if anyone happened to be COVID-19 positive.
[11] Despite Mr Parr’s direction restricting access to the yards, the respondent says that access to the yards was occasionally allowed, depending on staffing levels and the
1 Mr Parr was the Prison Manager, initially in an acting capacity, for the whole of Ms Mitchell’s claim period.
extent of the COVID-19 risk on a particular day. No records were kept as to when that might have occurred, however.
[12] Of course, to limit transmission of a highly infectious airborne virus, the Department of Corrections (Corrections) needed to limit contact between people in the prison. I did not need specific medical evidence to establish this as a credible rationale underlying the limits. Ms Mitchell’s challenge to the rationale was not rigorous and I do not accept it. For example, when Mr Parr was cross-examined, Ms Mitchell’s counsel did not put to him that his evidence of the public health and safety rationale behind the closure of the yards at Auckland Women’s he espoused was incorrect.
Introduction of “rolling unlocks” further limited Ms Mitchell’s exercise time
[13] Ms Mitchell alleges that the introduction of “rolling unlocks” at Auckland Women’s between approximately 29 March 2020 and 1 May 2020 further limited her exercise time.
[14] Under the system of rolling unlocks, prisoners’ cells were not always unlocked at the same time every day. Prisoners would be unlocked in smaller groups and for shorter periods, to give everyone at least one hour per day outside their cells. As a result, a prisoner could spend more than 24 hours in their cell at a time, if a particular prisoner’s cell was unlocked in the morning one day, but it was not unlocked until the afternoon the next day. If this happened, the time between a prisoner’s unlocks could extend up to 28 hours. That approach was implemented, at least in part, to mix up unlock times to give everyone suitable opportunities to phone their family members or lawyers, some unlock times being more suitable for phone calls than others.
[15] The respondent admits that rolling unlocks occurred, but denies any breach of the Act resulted. The system of rolling unlocks was implemented when all prisoners in a wing could not be unlocked together. This approach had to occur during the COVID-19 pandemic, either to maintain social distancing requirements or due to insufficient staff numbers.
Prisoners required to complete other activities during exercise time
[16] Ms Mitchell also alleges that when prisoners were unlocked from their cells, ostensibly for the purpose of physical exercise, they were also required to use that time for several other activities, including:
(a)removing rubbish from their cells and cell cleaning;
(b)washing clothes and drying them in the cells;
(c)attending scheduled medical appointments;
(d)attending meetings with prison management; and
(e)making telephone contact with lawyers and statutory oversight bodies such as the Ombudsman.
[17] Ms Mitchell alleges that the requirement prisoners use their time for these other activities further limited the time available for exercise.
[18] The respondent admits that removal of rubbish and taking clothes to the laundry had to be done during prisoners’ unlock time, but says these actions would not have taken more than a few seconds. The respondent also admits that medical appointments, meetings and telephone contact with lawyers and oversight bodies coincided with prisoners’ unlock time. However, the respondent says that, when this occurred, prison management endeavoured to give the prisoner additional unlock time later in the day. Further, the respondent says that prisoners were provided more than the minimum one hour unlock time whenever it was feasible to do so.
Extended lockdown and poor ventilation caused heat stress
[19] Ms Mitchell alleges that extended lockdown periods and poor ventilation in the prison caused prisoners to suffer significant heat stress in the summer months. Ms Mitchell alleges the increased lock-up time increased the temperature in the cells, which was not adequately mitigated. As a result, Ms Mitchell alleges her health and wellbeing and that of other prisoners were impacted.
[20] The respondent denies Ms Mitchell’s allegations concerning heat stress. She says that every cell at Auckland Women’s has a ventilation system that is checked and maintained regularly and every unit at the prison has air cooling capacity in summer. Moreover, the respondent says that Auckland Women’s implemented a heat stress management plan to ensure preventative and mitigation controls were in place to support staff and prisoners’ health and wellbeing when it was hot.
Access to case managers was restricted
[21] Ms Mitchell alleges that the lack of unlock time restricted prisoners’ access to their case managers, inhibiting assessment of their parole suitability and rehabilitation.
[22] The respondent admits that due to COVID-19, face-to-face meetings with case managers were limited. However, the respondent says that case managers instead carried out their duties remotely. The respondent says Ms Mitchell’s case manager:
(a)monitored her court hearings;
(b)arranged for a psychologist to enquire about treatment;
(c)contacted the Education Team to initiate engagement with them; and
(d)discussed a possible pre-release meeting with Community Corrections.
Relief sought by Ms Mitchell
[23] Ms Mitchell seeks declarations that between 28 November 2019 and 13 October 2020, and subsequently:2
(a)Auckland Women’s unreasonably failed to provide prisoners with minimum entitlements under the Act;
2 In closing submissions, Ms Mitchell withdrew her claim for a declaration under s 9 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) that the conditions of detention at Auckland Women’s constituted disproportionately severe treatment.
(b)(in the alternative) by reason of the conditions of detention at Auckland Women’s, the Department of Corrections failed to treat prisoners with humanity and with respect for the inherent dignity of the person, in breach of the rights affirmed in s 23(5) of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).
[24]Ms Mitchell also seeks:
(a)An “order nisi” for the respondent to “show cause” why the Court should not assess public law compensation payable to Ms Mitchell, returnable within three months of judgment (or such other period as the court deems expedient).3
(b)A consequential direction that the respondent reports to the Court within two months of judgment on remedial steps taken, or to be taken, to address the (alleged) breaches of rights contained in the above declarations, in respect of any ongoing breaches. She also requests the Court direct an inquiry by a Visiting Justice into the current provision of minimum entitlements at Auckland Women’s.
Applicable law
[25]The starting point is the purposes and principles set out in ss 5 and 6 of the Act:
5Purpose of corrections system
(1)The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
(a) ensuring that the community-based sentences, sentences of home detention, and custodial sentences and related orders that are
3 An order nisi commonly arises in the context of estates and wills. If a person has lodged a caveat against an application for administration, the Court may make an order nisi for grant of administration. The order nisi will name a time and place for showing cause against the same: Administration Act 1969, s 61(a)(ii). I understood Ms Mitchell’s application for an order nisi to be by analogy to this process because she is seeking an order to require the Attorney-General to show cause why the Court should not assess compensation payable to Ms Mitchell. In support of this, see Peter Spiller New Zealand Law Dictionary (10th ed, LexisNexis, Wellington, 2021) at 208: “An order nisi may be one coming into force after a stated interval of time, unless some contingency occurs” and Bryan Garner Black’s Law Dictionary (12th ed, Thomson Reuters, Wellington, 2024) at 516 and 1253: “An order having validity unless the adversely affected party appears and shows cause why it should be withdrawn”.
imposed by the courts and the New Zealand Parole Board are administered in a safe, secure, humane, and effective manner; and
(b) providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners; and
(c) assisting in the rehabilitation of offenders and the reintegration of persons under control or supervision into the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions; and
(d) providing information to the courts and the New Zealand Parole Board to assist them in decision-making.
(2)Subsection (1) does not affect the application or operation of any other Act.
6Principles guiding corrections system
(1)The principles that guide the operation of the corrections system are that—
(a) the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:
(b) victims’ interests must be considered in decisions related to the management of persons under control or supervision:
(c) in order to reduce the risk of reoffending, the cultural background, ethnic identity, and language of offenders must, where appropriate and to the extent practicable within the resources available, be taken into account—
(i)in developing and providing rehabilitative programmes and other interventions intended to effectively assist the rehabilitation and reintegration of offenders into the community; and
(ii)in sentence planning and management of offenders:
(d) offenders must, where appropriate and so far as is reasonable and practicable in the circumstances, be provided with access to any process designed to promote restorative justice between offenders and victims:
(e) an offender’s family must, so far as is reasonable and practicable in the circumstances and within the resources available, be recognised and involved in—
(i)decisions related to sentence planning and management, and the rehabilitation and reintegration of the offender into the community; and
(ii)planning for participation by the offender in programmes, services, and activities in the course of his or her sentence:
(f) the corrections system must ensure the fair treatment of persons under control or supervision by—
(i)providing those persons with information about the rules, obligations, and entitlements that affect them; and
(ii)ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:
(g) sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision:
(h) offenders must, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community:
(ha) accused prisoners may, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities including non-offence-based programmes to assist with their successful reintegration into the community:
(i) contact between prisoners and their families must be encouraged and supported, so far as is reasonable and practicable and within the resources available, and to the extent that this contact is consistent with the maintenance of safety and security requirements.
(2)Persons who exercise powers and duties under this Act or any regulations made under this Act must take into account those principles set out in subsection (1) that are applicable (if any), so far as is practicable in the circumstances.
(3)Subsection (1) does not affect the application or operation of any other Act.
[26] Section 69 of the Act summarises out the minimum entitlements that apply to every prisoner. These entitlements are then separately provided for in ss 70–78. The entitlement central to the present case is to physical exercise, as provided in s 70:
70 Exercise
(1)Every prisoner (other than a prisoner who is engaged in outdoor work) may, on a daily basis, take at least 1 hour of physical exercise.
(2)The physical exercise referred to in subsection (1) may be taken by the prisoner in the open air if the weather permits.
[27] Prisoners’ entitlements may be denied in the circumstances outlined in s 69(2)– (4):
69 Minimum entitlements
(1)Every prisoner has the following minimum entitlements:
(a) physical exercise, as provided for in section 70:
(b) a bed and bedding, as provided for in section 71:
(c) food and drink, as provided for in section 72:
(d) access to private visitors, as provided for in section 73:
(e) access to statutory visitors and specified visitors:
(f) access to legal advisers, as provided for in section 74:
(g) to receive medical treatment, as provided for in section 75:
(h) to send and receive mail, as provided for in section 76:
(i) to make outgoing telephone calls, as provided for in section 77(3):
(j) to exercise any right conferred on prisoners by regulations made under this Act to communicate using any specified device or medium of communication:
(k) access to information and education, as provided for in section 78.
(2)A prisoner may be denied, for a period of time that is reasonable in the circumstances, 1 or more of the minimum entitlements set out in subsection (1) if—
(a) there is an emergency in the prison; or
(b) the security of the prison is threatened; or
(c) the health or safety of any person is threatened.
(3)A prisoner detained in a Police jail may be denied 1 or more of the minimum entitlements set out in subsection (1) (other than the entitlements referred to in subsection (1)(b), (c), (f), and (g), and the
entitlement under subsection (1)(e) of access to statutory visitors) if, in the opinion of the prison manager or other person in charge, it is not practicable to provide those entitlements, having regard to the facilities available at the Police jail and the resources available.
(4)A prisoner—
(aa)may be denied, for not more than 2 consecutive days at a time, the minimum entitlement referred to in subsection (1)(a) if—
(i)the prisoner has been temporarily released from custody or temporarily removed from prison under section 62 or removed for judicial purposes under section 65; and
(ii)in the opinion of the prison manager, it is not practicable to provide the entitlement during the times the prisoner is in the prison:
(a)may be denied the minimum entitlements referred to in subsection (1)(d), (i), (j), and (k) if the prisoner is undergoing a penalty of cell confinement imposed under subpart 5 of Part 2:
(b)may be denied the minimum entitlement referred to in subsection (1)(k) if a direction under section 58 or 59 is in force and the prison manager considers that the prisoner is likely to damage prison property.
…
[28] Certain provisions also apply in an emergency or if an epidemic notice is in force. For convenience, I will set these provisions out in full:
179C Interpretation
In this section and sections 179D and 179E, unless the context otherwise requires,—
act or omission means any act or omission described in section 179E(1)(a)
epidemic emergency affecting a prison or prisoners means an epidemic—
(a) that occurs while an epidemic notice is in force; and
(b) in respect of which the chief executive reasonably believes that the corrections system is no longer able to fulfil its purpose in section 5(1)(a) in relation to the prison or prisoners affected
epidemic notice means a notice under section 5 of the Epidemic Preparedness Act 2006
failure means any failure described in section 179E(1)(b)
prison emergency means an emergency—
(a) affecting the safety or health of the prisoners or any class or group of prisoners, or the security of the prison; and
(b) in respect of which the chief executive reasonably believes that the corrections system is no longer able to fulfil its purpose in section 5(1)(a) in relation to the prison or prisoners affected
regulations means regulations made under section 200
state of emergency affecting a prison or prisoners means a state of emergency—
(a) within the meaning of section 4 of the Civil Defence Emergency Management Act 2002; and
(b) in respect of which the chief executive reasonably believes that the corrections system is no longer able to fulfil its purpose in section 5(1)(a) in relation to the prison or prisoners affected.
179D Notification of emergency
(1)The chief executive must notify the Minister within 7 days of determining the existence of—
(a) an epidemic emergency affecting a prison or prisoners; or
(b) a prison emergency; or
(c) a state of emergency affecting a prison or prisoners.
(2) A notice under subsection (1) must—
(a) be in writing and signed by the chief executive; and
(b) state the date on which it is signed; and
(c) state the nature of the emergency that exists; and
(d) specify the actions taken to date in respect of the emergency; and
(e) specify any action proposed to be taken to enable the corrections system to fulfil its purpose in section 5(1)(a).
(3)The chief executive must notify the Minister within 7 days of determining that the emergency no longer exists.
(4)A notice under subsection (3) must—
(a) be in writing and signed by the chief executive; and
(b) state the date on which it is signed; and
(c) specify the actions taken in respect of the emergency.
179E Exclusion of liability while epidemic notice in force or during emergency
(1)There is no cause of action against the Crown, a Minister of the Crown, an officer or employee of a Minister of the Crown, the chief executive, an employee of the department, a contractor, or an independent contractor, to recover damages for any harm or loss that is due directly or indirectly to—
(a) any act or omission by any person that occurs while carrying out his or her functions or duties or exercising his or her powers under a provision of this Act or the regulations that has been modified by Order in Council under the Epidemic Preparedness Act 2006 while an epidemic notice is in force; or
(b) any failure by any person to comply (or comply fully) with any provision of this Act or the regulations if—
(i)the failure occurs during an epidemic emergency affecting a prison or prisoners, a prison emergency, or a state of emergency affecting a prison or prisoners; and
(ii)it is impossible or unreasonable in the circumstances to comply (or comply fully) with this Act or the regulations.
(2)A person is not exempt from liability under subsection (1) if the act or omission, or failure, constitutes bad faith or gross negligence on the part of that person.
(3)A person may apply to the High Court for leave to bring proceedings against any person referred to in subsection (1) on the ground that the act or omission, or failure, constitutes bad faith or gross negligence on the part of that person.
(4)The court must not grant leave unless it is satisfied that there are grounds for the contention that the act or omission, or failure, constitutes bad faith or gross negligence on the part of the person against whom proceedings are sought to be brought.
(5)An application for leave under subsection (3) must be made—
(a) within 2 years after the act or omission, or failure, to which the application relates; or
(b) in the case of a continuance of injury or damage, within 2 years after the ceasing of the injury or damage.
(6)Nothing in this section—
(a) prevents the Crown from making any ex gratia payment it considers justifiable on the basis of hardship or fairness:
(b) limits the operation of section 104 of the Public Service Act 2020:
(c) affects any cause of action relating to unlawful arrest or detention.
[29] Also relevant to Ms Mitchell’s claim are ss 5 and 23(5) of the Bill of Rights Act, which provide:
5 Justified limitations
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
23 Rights of persons arrested or detained
…
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
Summary of issues
[30] Following an issues conference on 29 November 2023, Ellis J provided counsel with a draft list of issues.4 Counsel further refined these issues at and after the hearing. Having regard to each counsel’s submissions, I consider that the primary issues are:
(a)Who has the burden of proving a prisoner received their ss 69/70 minimum entitlements?
(b)Does Corrections have a record keeping obligation in relation to provision or curtailment of ss 69/70 minimum entitlements?
(c)Was Ms Mitchell’s minimum entitlement to daily outdoor exercise denied or curtailed, and if so to what extent?
(d)Did s 69(2) of the Act permit Corrections to deny Ms Mitchell her statutory minimum entitlement to outdoor exercise?
(e)Did the denial of minimum entitlements or other matters affecting Ms Mitchell’s treatment (heat and limited access to case managers)
4 Mitchell v Attorney-General HC Wellington CIV-2020-485-511, 29 November 2023 (Minute of Ellis J) at [1(a)–(k)].
give rise to inhumane treatment within the meaning of s 23(5) of the Bill of Rights Act?
[31]I will now address each of these issues in turn
(a) Who has the burden of proving a prisoner received their ss 69/70 entitlements?
[32] Where there is an absence of records of Corrections’ compliance with s 69(1)(a), Ms Mitchell submits that the Court should make robust and flexible use of the evidential burden, in assessing whether Corrections met its statutory obligation to provide minimum entitlements to prisoners.5 Ms Mitchell also argues the respondent should be compelled to offer evidence to avoid inferences which would otherwise follow.
[33] Ms Mitchell submits Corrections has an implicit obligation to keep records of the provision of minimum entitlements to prisoners, as part of its domestic reporting obligations to the Inspectorate and the Ombudsman (in several different contexts) and to comply with Corrections’ National Office requirements both during and outside the COVID-19 lockdown periods.
[34] Ms Mitchell also submits Corrections has an implicit obligation to establish compliance with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), and international reporting obligations.6 Ms Mitchell argues prisoners cannot easily prove their entitlements were not met when there is an absence of documentary evidence that she says should have been recorded by Corrections staff. For that reason, she argues that where Corrections’ admissible records do not establish the provision of minimum entitlements to physical exercise, the Court should infer the minimum entitlement was not provided.
5 As suggested in Wallace v Attorney-General [2022] NZCA 375, [2022] 3 NZLR 398 at [104]— [105].
6 Nelson Mandela Rules GA Res 70/175 (2015).
[35] In criminal proceedings, the accused bears the evidential burden to establish their rights under the Bill of Rights Act have been breached.7 Once the accused has discharged the evidential onus, the onus rests on the prosecution to prove no breach occurred.8
[36] The respondent submits that the burden of proof in civil proceedings, including under the Bill of Rights Act, also rests on the plaintiff. The respondent refers to Taunoa v Attorney-General, in which Blanchard J confirmed that the burden of proof to establish a Bill of Rights Act breach in a civil proceeding lies with those who allege that a breach has been committed.9 Accordingly, the respondent submits Ms Mitchell’s attempt to reverse the burden of proof should be rejected.
[37] Counsel for the respondent also refer to Wallace v Attorney-General, in which the Court of Appeal recognised situations in which it would be appropriate for the burden of proof to shift to the respondent, but held that to do so was not appropriate on the facts of that case.10 Therefore, in Wallace, the burden of proof remained with the plaintiff. Counsel for the respondent endorsed the comments of the Court of Appeal in Wallace that applying a reverse onus can lead to difficulties in classifying who must prove certain facts.11
[38] The respondent submits that undue prejudice does not arise if the burden of proof rests with Ms Mitchell. That is because the extent to which Corrections complied with s 69 is within her knowledge. Indeed, Ms Mitchell’s statement of claim expressly pleads several specific instances where she alleges denial of her entitlement to exercise.
[39] Further, the respondent has placed into evidence the records that are relevant to the issue. On this basis, the Attorney-General submits that Ms Mitchell is in no worse position to address the issue than the Crown.
7 R v Goodwin (No 2) [1993] 3 NZLR 257 (CA). See Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [34.3.2].
8 R v Te Kira [1993] 3 NZLR 257 (CA).
9 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [128] per Blanchard J.
10 Wallace v Attorney-General, above n 5.
11 Wallace v Attorney-General, above n 5, at [103]. See also Wallace v Attorney-General [2023] NZSC 66 at [16] for a summary of the Court of Appeal’s view.
[40] Ms Mitchell characterises as an affirmative defence the Attorney-General’s reliance on s 69(2) of the Act, as the matters relied to establish that defence on are within Corrections’ exclusive knowledge. Ms Mitchell submits that affirmative defences must be proved by the party asserting them. She says the respondent must therefore establish that there was a proper and lawful basis for non-compliance with the minimum entitlements.
[41] The respondent does not accept that s 69(2) is an affirmative defence, as failure to comply with minimum entitlements is not a cause of action in its own right. Rather, the respondent says whether a denial of Ms Mitchell’s minimum entitlements was justified under s 69(2) is but one factor to be considered in determining whether Ms Mitchell has been treated inhumanely for the purposes of assessing whether a breach of s 23(5) of the Bill of Rights Act has occurred.
[42] Ms Mitchell also submits that placing the burden of proof on the respondent is consistent with the Attorney-General’s obligations to establish s 5 reasonable limitations under the Bill of Rights Act.
[43] The respondent submits that whether minimum entitlements were unlawfully denied and whether that gave rise to a breach of s 23(5) of the Bill of Rights Act are distinct issues. Further, the respondent accepts it is doubtful a breach of s 23(5) could ever be justified under s 5.
My assessment
[44] The burden of proof in civil proceedings, including those seeking to establish a breach of the Bill of Rights Act, rests on the plaintiff.12 The standard of proof is the balance of probabilities. I reject Ms Mitchell’s submission that if Corrections fails to keep proper records of entitlements, the burden to prove minimum entitlements were provided to her automatically shifts to the respondent. Reversal of a legal burden that would otherwise fall on a plaintiff is an exceptional course.13 It is not a course I consider is warranted here.
12 Taunoa, above n 9, at [182] per Blanchard J.
13 Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340 at [56].
[45] However, where Ms Mitchell offers convincing evidence that her statutory minimum entitlements were denied, then the respondent will be expected to rebut that evidence to avoid adverse inferences that would otherwise follow.14
[46] Overall, therefore, I intend to follow the same approach as Isac J did in Taylor v Attorney-General (No 3). Accordingly, where Corrections’ records are non-existent or deficient, this should not operate against Ms Mitchell’s claim for denial of daily exercise time.15 What this means in practice will depend on the factual context. Where Ms Mitchell presents convincing evidence that she did not receive her exercise entitlement, and Corrections does not present evidence in rebuttal, then the Court may infer she was denied her statutory minimum entitlements. In certain contexts, the Court may be more inclined to make such inferences. For example, when access to the yards was closed, from about mid-April 2020, and when rolling unlocks were introduced from approximately 29 March 2020.
(b) Does Corrections have a record keeping obligation in relation to providing (or curtailing) s 69 minimum entitlements?
[47] Ms Mitchell argues that Corrections has an implicit obligation to keep records of the provision of prisoners’ minimum entitlements, despite the absence of any express obligation in the Act to do so.
[48] The respondent submits that Parliament has not chosen to create a record keeping obligation in relation to the provision of, and decisions to deny, minimum entitlements. In contrast, Parliament has expressly provided that certain other decisions affecting a prisoner must be recorded and provided to the prisoner.16
[49] However, the respondent acknowledges that, to the extent a failure to record matters makes it difficult to respond to credible evidence Ms Mitchell advances, it will be the respondent and not Ms Mitchell who will be disadvantaged by any failure to
14 See Wallace v Attorney-General, above n 5, at [104].
15 Taylor v Attorney-General (No 3) [2022] NZHC 3170 at [304].
16 For example, s 161(2) of the Corrections Act 2004 (Act) (obligation to record observations of a visiting member of Parliament), s 162 (obligation to record observations of visiting Justice of the Peace), s 165 (obligation to maintain health records).
record provision of the entitlement.17 This acknowledgment is appropriate, and is consistent with the approach I outline at [46] above.
[50] Beginning on 25 March 2020, when New Zealand entered COVID-19 Alert Level 4, Corrections’ National Office issued guidance to all prisons on prison management during the pandemic. This guidance specified that it was necessary to make sure that Corrections thoroughly and accurately recorded the provision of minimum entitlements:18
It is important that thorough records are maintained, we should capture the hours that prisoners are provided exercise, additionally any prisoner who declines to go to the yard has this decision accurately recorded.
(Emphasis original).
[51]The Alert Level 3 guidance issued in April 2020 similarly stated:19
It is also important that thorough records are maintained detailing
recreation/unlock regimes. This is important in every case and especiallywhere minimum entitlements may need to be withheld.
(Emphasis original).
[52] Under cross-examination, Mr Parr agreed that record-keeping of provision of prisoners’ entitlements was equally important outside the COVID-19 period.
[53] In Gorgus v Chief Executive of the Department of Corrections, the Court of Appeal emphasised the importance of Corrections maintaining records, in part to ensure minimum entitlements are provided.20 If records are kept, it should be straightforward to resolve a dispute about receipt of entitlements by reference to these records. Lack of records contributed to the disputes giving rise to that litigation. The same problem arises in the present case.
17 As in Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 2313 at [156] where poor record keeping was described by Edwards J as “unacceptable”.
18 COVID-19 High Level Guidance for Sites v 1.5, Exhibit AM – 1 to the Affidavit of Alicia Murray sworn on 30 November 2023.
19 COVID-19 High Level Guidance for Sites Level 3 dated 28 April 2020, annexed as Exhibit AM- 2 to the Affidavit of Alicia Murray sworn on 30 November 2023.
20 Gorgus v Chief Executive of the Department of Corrections [2024] NZCA 610.
My assessment
[54] Corrections has no express obligation under the Act to maintain records that it has provided minimum entitlements to prisoners. However, if a prisoner presents 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 have not been provided. Conversely, in other cases it may be appropriate to infer the entitlements were provided. It depends on the factual picture that emerges from the overall context. It is undesirable to lay down a general rule as to whether such inferences will be made. Rather, the Court will need to assess the available evidence on a case-by-case basis.
(c) Was Ms Mitchell’s minimum entitlement to daily outdoor exercise denied or curtailed; if so, to what extent?
[55] Before I begin considering whether Ms Mitchell’s minimum entitlement to daily outdoor exercise was denied or curtailed, it is important to emphasise that a prisoner’s entitlement to time for physical exercise is separate from consideration of whether they are unlocked from their cell. These two things should not be equated or conflated.21 I expand on this distinction in the paragraphs below.
[56] It is first necessary to consider certain aspects of the legislative scheme, and the application of those provisions at Auckland Women’s, namely:
(a)Under s 70(2) of the Act, who decides whether prisoners may exercise in the open air if the weather permits?
(b)If a prisoner prefers to exercise indoors when the weather permits open air exercise, is Corrections required to offer an indoor exercise option?
(c)Can s 70 minimum entitlements lawfully be removed by a majority vote of prisoners?
21 See Wallace v Chief Executive of the Department of Corrections [2023] NZHC 592 [Wallace Relief Judgment] at [12] for criticism of equating the exercise minimum entitlement with unlock time.
(d)What is meant by “on a daily basis” in s 70(1)? Does it refer to a calendar day, or a 24 hour period?
(e)Did Corrections require Ms Mitchell to carry out other tasks within her s 70 physical exercise time?
Who decides whether prisoners may exercise in the open air if the weather permits?
[57] The parties agree that the use of the word “may” in s 70(2) of the Act indicates that the individual prisoner can elect to exercise in the open air if the weather permits. The respondent accepts that Corrections must provide an opportunity for a prisoner’s daily exercise (outdoors if the weather permits). However, the respondent points out that it is a matter for the prisoner to decide whether to take up that entitlement.
Can a prisoner insist on exercising indoors even if the weather permits outdoor exercise?
[58] If, despite the weather permitting outdoor exercise, the prisoner decides they do not wish to exercise in the open air, does the prisoner then have the right to take their one hour of daily physical exercise indoors?
[59] Ms Mitchell says a prisoner is entitled to elect whether to exercise outside or inside, and that Corrections must provide for both options in meeting its s 70 obligation.
[60] The respondent disputes this interpretation and says that the word “may” in s 70(2), when read with subs (1), means “must”. In other words, the respondent submits that, if the weather permits, the prisoner forfeits their exercise entitlement unless they do so outside. Otherwise, the respondent submits, the prison would be required to offer outdoor and indoor exercise, even in good weather. The respondent submits that Ms Mitchell’s interpretation of s 70(2) does not serve any compelling welfare purpose. Moreover, for staffing reasons it may not always be practicable or possible to provide prisoners with outdoor and indoor exercise options at the same time. Accordingly, the respondent submits that s 70(2) simply requires Corrections to provide an option of exercise outside when the weather permits it.
[61] The respondent denies there is an obligation to offer indoor exercise to those who do not wish to exercise outdoors when the weather permits. In support, counsel referred to r 23(1) of the Nelson Mandela Rules, to which the statutory minimum entitlements in the Act were designed to give effect. Rule 23(1) provides:
Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.
[62] The respondent also denies the Nelson Mandela Rules require the prison to provide the prisoner with a choice of outside or inside venues for exercise. Nor, the respondent submits, is there a basis for suggesting that Parliament intended to provide a more generous entitlement in s 70 of the Act than r 23(1) of the Nelson Mandela Rules.
My assessment
[63]I disagree with both Ms Mitchell’s and the respondent’s interpretation of s 70.
[64] Section 70(1) provides that a prisoner (other than a prisoner who is engaged in outdoor work) is entitled to at least one hour of physical exercise. Section 70(1) says nothing about where that exercise must take place. Section 70(1) on its own does not imply that time for physical exercise equates with time in which the prisoner must be unlocked from their cell. As Isac J noted in Taylor v Attorney-General, apart from the minimum entitlements prescribed in the Act, prisoners do not have a statutory expectation to a set amount of time out of their cells.22 Moreover, as both the High Court and Court of Appeal have recently observed, it is possible, consistently with s 70, for a prisoner to exercise in a relatively confined environment without exercise equipment.23
[65] In s 70(2) Parliament has introduced a stipulation as to where the physical exercise may occur. That subsection gives the prisoner the option of taking their physical exercise in the open air if the weather permits. Reading both subss (1) and
22 Taylor v Attorney-General, above n 15, at [345]. However, Isac J also noted that routinely confining a person in a cell for upwards of 20 hours a day may begin to approach the threshold for establishing breach of the right to be treated with humanity and dignity in s 23(5) of the Bill of Rights Act.
23 Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 450 at [55]; approved in Gorgus v Chief Executive of the Department of Corrections, above n 20, at [46].
(2) together, in light of the purpose of the corrections system set out in s 5 of the Act (which includes a requirement of adherence to the Nelson Mandela Rules), s 70 requires Corrections to offer the prisoner the opportunity to exercise in the open air if the weather permits, and the opportunity to exercise indoors if the weather does not permit or the prisoner chooses not to exercise in the open air. However, s 70 does not provide that physical exercise necessarily entails or requires a prisoner to be unlocked from their cell. Physical exercise will ordinarily occur while a non-segregated prisoner is unlocked, whether indoors or outdoors. But there is no statutory entitlement to be unlocked for indoor exercise if the weather permits exercise in the open air.
[66] In my view, s 70(2) of the Act requires Corrections to provide an opportunity to a prisoner to exercise in the open air, when the weather permits it, and inside when the weather does not. The prisoner therefore has two choices under s 70:
(a)First, the prisoner may choose under s 70(1) whether to take physical exercise at all.
(b)Second, the prisoner has a choice whether to take exercise in the open air if the weather permits.
[67] Section 70 does not expressly permit a prisoner to insist on being unlocked from their cell to take physical exercise indoors. Rather, s 70 provides that a prisoner must have one hour for physical exercise. If Corrections’ resources do not permit an alternative unlocked indoor exercise venue to be provided to those who have declined outdoor exercise, then this will not be a breach of s 70. While it is apparent from the evidence in the present case that prisoners sometimes were provided with an unlocked indoor exercise option (when the weather was suitable for exercise to take place outdoors), I accept that s 70 is concerned with enshrining the minimum entitlement, not all permissible opportunities. However, in operationalising provision of exercise entitlements, Corrections must be guided by the principle in s 6(g) of the Act that sentences must not be administered more restrictively than is reasonably necessary to ensure maintenance of the law and safety.
[68] Deciding if the weather permits exercise to take place in the open air requires Corrections’ staff to exercise judgement as part of their obligation to manage prisoners safely. They must do so reasonably and humanely, consistently with the principles and purpose of the corrections system, and not restrictively.
[69] If outdoor exercise is not suitable for a particular prisoner, for example for health reasons, then offering an opportunity for indoor exercise will be consistent with humanely administering the prison. However, under the minimum entitlements provided under s 70, there is no obligation on Corrections to offer a choice of either indoor or outdoor exercise to each prisoner. Rather, the Act merely requires Corrections to allow open air exercise if the weather permits, and indoor exercise if it does not.
Can the s 70 minimum entitlements lawfully be removed by a majority vote of prisoners?
[70] The respondent accepts that a prisoner cannot be deprived of their entitlement to exercise in the open air simply because other prisoners in the same unit outvote that prisoner’s wish to do so. However, the respondent submits that the evidence does not show Ms Mitchell was ever deprived of her entitlement to exercise in the open air by majority vote. Rather, the practice was for unit staff to offer prisoners “yard” or “lock”, with the majority invariably choosing “yard” and a small minority choosing “lock”. The respondent submits that the practice is unlikely to have led to Ms Mitchell being deprived of the opportunity to exercise in the open air.
My assessment
[71] A decision-making process governed by majority vote of prisoners is problematic if the weather is suitable for outdoor exercise. Under that scenario, a prisoner wishing to exercise in the open air who is outvoted by the indoor group on a fine day could legitimately complain that their entitlement to physical exercise outdoors is being denied. However, that scenario does not arise on the facts of the present case. The evidence does not support a finding that Ms Mitchell was prevented from exercising in the open air by a majority vote of other prisoners.
What does “on a daily basis” mean in s 70(1)?
[72] According to s 70(1) of the Act, prisoners’ exercise entitlements apply “on a daily basis”. One of the questions raised by Ms Mitchell’s claim is whether those words mean one hour of physical exercise within each calendar day. Alternatively, do those words, when interpreted in light of the Act’s purpose mean that no more than 24 hours can elapse between periods of physical exercise. Under the first of these options, if physical exercise was offered from 11am to midday on day one, then the latest it could be offered on day two would be 11am. However, under the second option physical exercise on day two could be offered later in the day, say, at 3pm.
[73] Ms Mitchell submits that any consideration of what is meant by “on a daily basis” must be informed by the fact that “prisoners are locked up in a small concrete block for more than 24 hours continuously”. She says that if the obligation to allow at least one hour of physical exercise on a daily basis means “each calendar day”, rather than each 24 hour period, this would be “to read down the right to its meanest form”.
[74] In support of this argument, counsel for Ms Mitchell also referred to Corrections’ COVID-19 Level 3 guidance from April 2020, which states:
8. Rolling unlocks may be required to ensure all prisoners receive the maximum available out of cell unlock/recreation time, safely. Sites must ensure that the time between unlocks does not exceed 24 hours.
(Emphasis added.)
[75] The respondent submits that a requirement that there be no more than 24 hours between each unlock would create administrative difficulties for Corrections. It would also make it impossible to give different groups of prisoners the opportunity to benefit from the advantages associated with a particular unlock time. The respondent therefore submits that “on a daily basis” in s 70(1) must be understood as meaning “within the period of a single day”.
[76] Under cross-examination, Mr Parr said he acted on guidance from the Regional Emergency Co-ordination Centre. I understood his answer to be that the Centre advised that, so long as prisoners were given an hour outside of their cell per calendar
day, it did not matter that their hour was more than 24 hours after the previous one hour unlock period. However, I acknowledge this clarification is inconsistent with Corrections’ written guidance.
[77] Aynsley Downie, who was the acting Principal Corrections Officer of the remand unit at Auckland Women’s during some of the claim period, said that officers in the remand unit would swap times around to give everyone the opportunity to have the mornings and afternoons unlocked on different days. This was because the people prisoners wanted to contact may have had different time preferences or availabilities. For example, prisoners might find it easier to make calls to lawyers in the mornings and family calls in the afternoons.24
My assessment
[78] I accept that “on a daily basis” in s 70(1) must be understood as taking place within a single calendar day. Section 70(1) does not go further and prescribe that no more than 24 hours may elapse before the next exercise period. By contrast, other provisions of the Act expressly provide that certain events should take place within 24 hours, for example:
(a)s 61C, which provides that the prison manager must, in respect of an at-risk prisoner, obtain the advice of the health centre manager within 24 hours after the prisoner’s at-risk assessment;
(b)s 87(5), which provides that a mechanical restraint must not be used on a prisoner for more than 24 hours at a time unless certain conditions are met.
[79] I accept that these examples are contextually different from exercise entitlements. However, they underscore the fact that it would have been straightforward for Parliament to specify that the one hour daily exercise entitlement corresponds strictly to a 24 hour period, if that was what was intended. However, Parliament did not use such a formulation.
24 Solomon Nui, who was the Residential Manager for two wings of the Auckland Women’s Remand Units during the claim period made similar observations in his affidavit evidence.
[80] The Nelson Mandela Rules do not support reading “on a daily basis” as always being within a single 24 hour period, rather than a calendar day. I accept that it would create practical difficulties for Corrections if it could not adjust the timing of the exercise period by making it later in the following day, without infringing a notional 24 hour maximum gap between exercise periods. The purpose of the corrections system, as set out in s 5 of the Act, includes to ensure sentences are administered in a safe, secure, humane and effective manner and in accordance with rules set out in the Act and regulations.25 Sentences must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision.26 However, beyond minimum entitlements, the Act recognises the need for flexibility, acting “within the resources available” and “so far as is reasonable and practicable in the circumstances”.27
[81] Accordingly, I reject Ms Mitchell’s submission that “on a daily basis” in s 70(1) means no less than once in every consecutive 24-hour period.
[82] I also reject Ms Mitchell’s submission that having more than 24 hours between the period of exercise provided for in s 70 would, on its own, amount to solitary confinement. Solitary confinement is not defined under the Act, but is defined in the Nelson Mandela Rules as “22 hours or more a day without meaningful human contact”.28 Physical exercise time may afford an opportunity for “meaningful human contact” between prisoners. But it is unlikely to be the only or the best such opportunity for meaningful human contact each day, even in pandemic times. Prisoners may have opportunities for meaningful human contact other than in their exercise period. This may include communication with prisoners in other cells (if cell hatches are open), at mealtimes, during programmes and other activities. It also can include communication with staff, pastors, medical professionals, and legal and personal visits and calls.
25 Section 5(1)(a) and (b) of the Act.
26 Section 6(1)(g).
27 Sections 5(1)(c) and 6(1)(h).
28 Nelson Mandela Rules, above n 6, r 44.
[83] I acknowledge the lack of specific evidence that these other instances of meaningful human contact were available to Ms Mitchell. She alleges that, during the COVID-19 pandemic, all meals were eaten in prisoners’ own cells. There were no programmes or other activities outside of the recreation time to provide meaningful activity. The library and gym were closed.
[84] On balance, however, Ms Mitchell has not established that she was subjected to solitary confinement in the sense defined in the Nelson Mandela Rules, at any time in the claim period.
[85] I do not accept the respondent’s submission that “may” in s 70(2) means “must”, in the sense that if the weather permits, then the prisoner must take their exercise in the open air, or else they forfeit the entitlement. There is no purposive justification for interpreting the provision in that way. However, I have already concluded that a prisoner who elects not to go outside to exercise, when the weather permits, is not entitled to insist on having unlocked time indoors to exercise, as part of their minimum entitlements under s 70, if available resources do not permit that to occur. In those circumstances, a prisoner who refuses to exercise in the open air when the weather permits, may be restricted to exercising in their cell if staff resources are inadequate to allow them to be unlocked.
Was there a requirement at Auckland Women’s to carry out other tasks within a prisoner’s s 70 physical exercise minimum entitlement?
[86] Other activities Ms Mitchell alleges reduced her exercise time were, according to the respondent, either optional or occasional. These included:
(a)cell cleaning, which the respondent says could have been done (albeit with less cleaning equipment) during lock time;
(b)phone calls which could, by staff discretion, occur at other times;
(c)calls to lawyers which, by discretion, were facilitated outside regular unlock hours; and
(d)meetings with management which, the respondent says, typically occurred outside unlock time.
[87] Other activities that Ms Mitchell said impacted on exercise time, such as medical appointments and visits to the library, were, according to the respondent, either occasional or optional.
[88] The respondent submits that there were only two tasks regularly required to be done during exercise time. They were putting rubbish in the main bin and taking the laundry out. The respondent submits these tasks took such a short time to perform that their impact on Ms Mitchell’s exercise time was minimal.
[89] The respondent contrasts the evidence in the present case with that in Taylor v Attorney-General.29 In that case, Mr Taylor was required to undertake certain activities (showering, cell-cleaning and phone calls) within the one-hour recreation period, since it was prescribed in his management plan that he must do so.30 The Court was satisfied that Mr Taylor’s hour of exercise was reduced by an average of 20 minutes each day, a total of approximately 50 hours.31 The Court declared Corrections’ failure to provide Mr Taylor with his minimum entitlement to daily exercise while on directed segregation in 2011 and 2012 was a failure to treat him with humanity and with respect for the inherent dignity of the person contrary to s 23(5) of the Bill of Rights Act.32 For this, the Court awarded Mr Taylor $100 for each of the approximately 50 hours of exercise denied.
(d)Secure yards were subsequently established outside Ms Mitchell’s claim period. She has not sought to establish, with evidence, they could have reasonably been established earlier.
My assessment
[167] I accept the threat to health and safety caused by COVID-19 may have justified denial of prisoners’ open air exercise entitlements on a short term, exceptional basis. But I do not accept that the health risks posed by COVID-19 were the immediate, proximate or “but for” cause of the closure of the yards at Auckland Women’s. Rather, it was the inability to ensure that prisoners were contained within the yards. In other words, it was not the open air exercise itself that threatened health and safety, but rather the risk of cross-contamination of those in other prison units through inadequate yard fencing.
[168] Auckland Women’s could not allow outdoor exercise safely, given the available facilities and the resources available. Such constraints could conceivably excuse denial of outdoor exercise in a Police jail, under s 69(3) of the Act, but that exception did not apply to a general prison such as Auckland Women’s. Practicability is also a ground for denial of the daily outdoor exercise entitlement under s 69(4) but only as applies to prisoners temporarily removed or released under ss 62 or 65 and, even then, only for a maximum of two consecutive days at a time, so that does not apply here either.
[169] Although the exact period of closure of the yards is unclear, I reject the respondent’s contention that the period that is reasonable in the circumstances is the entire period in which a significant health threat from COVID-19 persisted and required Corrections to manage the prison in a manner that minimised it. Parliament has indicated that a maximum of two days’ leeway (in line with s 69(4)) may be a reasonable period for Corrections to have made alternative arrangements to allow resumption of the s 70 entitlement to outdoor exercise.
[170] I agree with the observation of the Chief Inspector of Corrections in a report concluding that for up to nine months prisoners in three units at Auckland Prison were denied their minimum entitlement to an hour of open air exercise each day, instead being largely managed on a regime of being unlocked every second day.45 The Chief Inspector there considered that the purpose of s 69(2) “appears to be focused on short- term situations or emergencies that require an immediate response”.46 In that report, the Chief Inspector referred to observations made by the Ombudsman in a 2016 report:47
The opportunity for prisoners to exercise daily for one hour in the open air is not a goal for prison management to work towards, it is an entitlement that should be reflected in a prison’s daily regimes. The Department must be in a position to demonstrate that the minimum entitlement has been met.
[171] In the present case, I do not have to decide what would be a reasonable maximum period for the purposes of s 69(2). However, I am satisfied that 130 days, the total period that I have concluded Ms Mitchell was denied her entitlement to outdoor exercise due to yard closures, greatly exceeds what would be a reasonable time in the circumstances.
(f) Did denial of Ms Mitchell’s minimum entitlements breach of s 23(5) of the Bill of Rights Act?
[172] Section 23(5) of the Bill of Rights Act, which is set out above at [29], provides that everyone deprived of liberty must be treated with humanity and with respect for
45 Office of the Inspectorate “Minimum Entitlements and the Operating Regime in Units 11–13 at Auckland Prison” (November 2023).
46 At [72].
47 Office of the Ombudsman “Investigation into prisoners’ right to exercise at Auckland Prison” (May 2016), at pp 6–7.
the inherent dignity of the person. Section 23(5) imposes “a positive obligation on the state in relation to persons deprived of liberty”.48 As helpfully summarised by Andrew Butler and Petra Butler, the following have amounted to a breach of s 23(5):49
(a)the unlawful segregation from other inmates;50
(b)loss of ordinary inmate “entitlements” while on segregation;51
(c)poor cell hygiene;52
(d)bedding and clothing falling below standards established by prison regulations;53
(e)inadequate monitoring of inmate mental health;54 and
(f)inadequate exercise conditions.55
[173] The meaning of s 23(5) of the Bill of Rights Act was considered in Taunoa v Attorney-General.56 The relationship between the denial of entitlements and rights under the Bill of Rights Act was further considered in Taylor v Attorney-General.57
[174] Section 23(5) is engaged by conduct that is regarded as unacceptable in contemporary New Zealand society (though not rising to a level deserving to be outrageous in respect of which s 9 is concerned).58 It captures conduct “which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so”.59 Section 23(5) responds to the special vulnerability of prisoners by imposing a
48 B v Waitemata District Health Board [2013] 29 FRNZ 186 (HC) at [74].
49 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A commentary (LexisNexis, Wellington, 2015) at [20.12.7].
50 Taunoa v Attorney-General, above n 9.
51 Taunoa v Attorney-General, above n 9.
52 Taunoa v Attorney-General, above n 9.
53 Taunoa v Attorney-General, above n 9.
54 Taunoa v Attorney-General, above n 9.
55 Taunoa v Attorney-General, above n 9; Reekie v Attorney-General [2012] NZHC 1867.
56 Taunoa v Attorney-General, above n 9.
57 Taylor v Attorney-General, above n 15 at [35] and [36].
58 Taunoa v Attorney-General, above n 9, at [11] per Elias CJ and [170] per Blanchard J.
59 At [177] per Blanchard J.
positive, objective duty on the Crown to treat them humanely.60 This Court has found that the relationship between minimum entitlements under the Act and the humane treatment of prisoners is “highly significant” in assessing whether there has been a breach of s 23(5).61 However, a breach of minimum requirements does not automatically lead to a breach of s 23(5). In addition to being unlawful, the conduct must also be unacceptable. Purely technical breaches will not suffice. A breach of s 23(5) will turn primarily on an “assessment of the nature of the treatment itself and its effects” and less on the breaches of regulations per se.62
[175] Determining whether the impugned conduct amounts to a breach of s 23(5) is an evaluative exercise that is highly contextual and fact specific.63 In Taylor, the Court considered the following factors as relevant when determining a failure to comply with statutory standards gave rise to a breach of s 23(5):64
(a)the nature and severity of the treatment;
(b)the duration and frequency of the impugned conduct;
(c)the nature and extent of the impact on the detainee;
(d)any particular vulnerability or condition of the detainee;
(e)the purpose of the treatment; and
(f)the detainee’s own conduct.
[176]I will now consider each of these factors in relation to Ms Mitchell.
60 At [78] per Elias CJ, [177] per Blanchard J and [294] per Tipping J.
61 Taylor v Attorney-General, above n 15.
62 Taunoa v Attorney-General, above n 9, at [353] per McGrath J.
63 Taylor v Attorney-General, above n 15.
64 At [38].
Nature and severity of treatment
[177] I uphold Ms Mitchell’s allegation that the denial of the entitlement to exercise outdoors is likely to have had a significantly deleterious effect on her mental and physical wellbeing.
Duration and frequency
[178] Although it was not possible to determine precisely the number of occasions on which Ms Mitchell was denied her entitlement to physical exercise outdoors, I have found that she was denied her entitlement to outdoor exercise on 132 days.
Nature and extent of the impact on Ms Mitchell
[179] Ms Mitchell deposed that the long periods of being in her cell took a toll on her. She “lost a lot of weight [and] became anxious about contact with others.” She described the environment at Auckland Women’s as “torturous” even for a prisoner with experience of the prison system such as her.
Particular vulnerability of Ms Mitchell
[180] Ms Mitchell’s diagnoses of post-traumatic stress disorder and a personality disorder were confirmed by her treating psychiatrist. I was not provided evidence linking either diagnosis with the denial of open air exercise entitlements. These diagnoses are, however, relevant to any assessment of the impact of the denial of open air exercise entitlements has on her.
Purpose of the treatment
[181] As I have indicated, the denial of exercise entitlements was well-intentioned, to protect the health and safety of prison occupants in the context of the COVID-19 pandemic.
Ms Mitchell’s own conduct
[182] After having the opportunity to review additional records disclosed late in the proceeding by Corrections, Ms Mitchell properly modified her claim to acknowledge
that in some instances she had declined to exercise outside after being presented with the opportunity to do so. However, this does not impact my assessment that she was denied her entitlement to open air physical exercise on 132 days.
[183] I do not think Ms Mitchell’s own conduct has any material influence on her claim.
Did heat stress from poor ventilation breach of s 23(5) of the Bill of Rights Act?
[184] The respondent’s evidence was that every cell at Auckland Women’s has a ventilation system that is checked and maintained regularly, and every unit at the prison has air-cooling capacity in the summer months.65 Auckland Women’s implemented a heat stress management plan to ensure preventive and mitigation controls were in place to support staff and prisoners’ health and wellbeing during periods of higher temperatures.66
My assessment
[185] Ms Mitchell provided no medical evidence that she or other prisoners in her unit suffered from heat stress as a result of the conditions at Auckland Women’s. Her only evidence in relation to heat is that a day room where she spent 11 days “got really hot and stuffy”. She also complained about poor ventilation in the remand unit but does not suggest a problem with heat in the cells. Moreover, neither the Inspectorate nor Ombudsman reports in the relevant period indicate concerns about heat management systems at Auckland Women’s. Nor has Ms Mitchell adduced any expert evidence concerning the adequacy of heat management in the prison. I do not consider that Ms Mitchell has established sufficient basis for the Court to conclude that the areas of the prison in which she was detained lacked adequate ventilation and air conditioning or that the heat management plan implemented in the summer months was inadequate.
65 Affidavit of Paul Holohan, sworn on 14 November 2023 at [7]–[14].
66 Affidavit of Daisy-Fau Tanuvasa sworn on 24 October 2023 at [7]–[9].
Did limited access to case managers breach s 23(5) of the Bill of Rights Act?
[186] I accept the respondent’s evidence that case management services continued to be provided remotely during the period of Ms Mitchell’s claim and that they were adequate. Ms Mitchell has not satisfied me that any lack of engagement she had with her case managers was other than through her own making.
Did the majority rules practice breach s 23(5) of the Bill of Rights Act?
[187] The respondent submits the Court does not need to resolve, or discuss further, the majority rules practice regarding yard access for the purposes of determining Ms Mitchell’s s 23(5) claim. I agree. I consider my observations about the operation of s 70 and the potential risks of such a practice suffice. Ms Mitchell has not established the majority rules breached her s 23(5) right.
Conclusion on breach of s 23(5) of the Bill of Rights Act
[188] I consider that on the evidence Ms Mitchell has established a breach of s 23(5) in respect of the 132 days on which she was denied her entitlement to open air physical exercise. My legal and factual conclusions are summarised as follows:
(a)Ms Mitchell has established a significant denial of the entitlement to physical exercise. That denial was not justified under s 69(2)(b) or (c) of the Act.67 Nor did the Chief Executive invoke the epidemic emergency provisions that could have excluded liability for damages for any harm or loss that is due directly or indirectly to failure to comply with the Act.
(b)Although the denial of Ms Mitchell’s entitlement to physical exercise outside might be considered a reasonable response to the threat to public health posed by COVID-19, it resulted in inhumane treatment to her. To exclude liability for that treatment, Corrections would have needed to invoke the notification of emergency power in s 179D.
67 Nor has the Chief Executive established any other basis for limiting Ms Mitchell’s s 23(5) rights, under s 5 of the Bill of Rights Act.
(c)During the period of the denial of her opportunity to open air physical exercise, Ms Mitchell nevertheless continued to have time out of her cell every day. Indeed, Ms Mitchell often received much more than one hour out of her cell (especially after May 2020, when she enjoyed significant periods outside her cell, often twice a day for more than two hours). But, as I have emphasised in this judgment, unlock time is distinct and must not be conflated with the entitlement to physical exercise under s 70.
(d)Ms Mitchell’s experience in having to remove rubbish and her laundry from her cell may have reduced her exercise time by up to a few minutes. However, this would have led to only a limited denial of Ms Mitchell’s minimum exercise entitlement on those days in which her time out of her cell was reduced to an hour. The extent of Ms Mitchell’s denial of entitlements is adequately reflected in my finding that she was denied her minimum entitlements on 132 days.
(e)Being unable to go outside for several months, combined with reduced exercise time, particularly in the initial COVID-19 period, would have been deeply unpleasant and challenging for Ms Mitchell. Although it occurred at a time when the entire population was being asked to conduct their lives with extraordinary restrictions and the difficulties created by the Alert Level 3 and 4 COVID-19 lockdowns, the general public were not prevented from exercising outdoors and indeed were encouraged to leave their homes for fresh air and exercise even during the most restrictive period of the pandemic.68 I do not accept that Corrections was adequately mindful of the need to ensure that any limitations on prisoners’ minimum entitlements did not go any further than was necessary.
(f)Ms Mitchell has failed to prove that she was exposed to extreme heat stress, that her health was adversely affected by heat stress or that the
68 See, for example, RNZ “All of New Zealand must prepare to go in self-isolation now – Prime Minister”, 23 March 2020.
respondent failed to take reasonable steps to ensure adequate ventilation.
(g)Ms Mitchell has failed to prove that she was denied access to a case manager during the claim period.
(h)Ms Mitchell has failed to provide any majority rules practice detrimentally impacted her entitlement to open air exercise.
This decision does not assess the current provision of minimum entitlements at Auckland Women’s or make declarations in respect of other prisoners
[189]In her statement of claim, Ms Mitchell also sought:
(a)An order of mandamus requiring the Chief Executive of the Department of Corrections acting under s 19(4)(h) of the Act to request a Visiting Justice to report on the current provision of minimum entitlements and on such matters as the Court thinks fit.
(b)(alternatively) for the Court to direct an inquiry under r 16.2 of the High Court Rules 2016 by a Visiting Justice to report on the current provision of minimum entitlements and on such matters as the Court thinks fit.
[190] Given the now historical nature of Ms Mitchell’s claim and the fact that Corrections presented evidence that several improvements were made to the yard enclosures after Ms Mitchell left the prison, I do not see any need to make these additional orders and I decline to do so. What is happening currently in Auckland Women’s has no relevance to the breach of Ms Mitchell’s rights, or any remedy she may be able to seek in the present proceeding.
[191] As described in [23](a) above, Ms Mitchell sought a declaration in respect of failure to provide minimum entitlements to prisoners at Auckland Women’s generally, not just to Ms Mitchell. However, the focus of the evidence and closing submissions was on Ms Mitchell alone and no other prisoners were joined to her claim. For these reasons my decision and any relief that follows is limited to the parties to the proceeding.
Result
[192] I declare that Ms Mitchell’s rights under s 23(5) of the Bill of Rights Act have been breached in respect of the denial of her open air physical exercise entitlements under s 70 of the Act for 132 days of her time at Auckland Women’s.
[193] Ms Mitchell is entitled to costs. My preliminary view is that these should be awarded on a 2B basis, with certification for second counsel.
Next steps
[194] I direct the parties to file and serve submissions concerning public law damages and costs, according to the following timetable:
(a)Ms Mitchell by 28 February 2025;
(b)the respondent by 14 March 2025.
[195] In their submissions, the parties should indicate whether further hearing time is required or whether they wish the Court to determine matters of remedy and costs on the papers.
McHerron J
Solicitors:
Amanda Hill, Barrister & Solicitor for Applicant Luke Cunningham Clere for Respondent
1
10
0