Mitchell v Attorney-General
[2017] NZHC 2118
•1 September 2017
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2016-485-57
[2017] NZHC 2118
UNDER the New Zealand Bill of Rights Act 1990 IN THE MATTER
of an application for New Zealand Bill of Rights Act Relief for breaches of the New Zealand Bill of Rights Act and Common Law
BETWEEN
KERRYN MITCHELL
Applicant
AND
THE ATTORNEY-GENERAL
First Respondent
THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
Second RespondentTHE PRISON DIRECTOR, AROHATA PRISON
Third Respondent
CIV-2016-485-55 UNDER
the Judicature Amendment Act 1972, section 4
IN THE MATTER
of an application for Judicial Review and relief
BETWEEN
KERRYN MITCHELL
Applicant
AND
THE PRISON DIRECTOR, AROHATA PRISON
Respondent
… continued
MITCHELL v ATTORNEY-GENERAL [2017] NZHC 2118 [1 September 2017]
CIV-2016-485-269 UNDER
the Judicature Amendment Act 1972
IN THE MATTER
of an application for Judicial Review
BETWEEN
KERRYN MITCHELL
Plaintiff
AND
THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
Defendant
Hearing: 7, 8 and 9 August 2017 Counsel:
Applicant/Plaintiff in Person
D L Harris and A L Dixon-Blake for Respondents (CIV-2016-485-57)
H M Carrad for Respondent (CIV-2016-485-55) H M Carrad and G Ganeshan for Defendant (CIV-2016-485-269)
Judgment:
1 September 2017
JUDGMENT OF THOMAS J
Table of Contents
Introduction............................................................................................................. [1]
Corrections Act 2004............................................................................................... [9]
PROCEEDING ONE: PLACEMENT AND TREATMENT IN THE ARU
(CIV-2016-485-57)................................................................................................. [13]Pleadings................................................................................................................. [13]
Evidence................................................................................................................. [15]
Ms Mitchell.......................................................................................................... [18]
Medical evidence................................................................................................. [19]
The ARU.............................................................................................................. [30]
Entry into and management in the ARU............................................................. [35]
Ability to complain.............................................................................................. [46]Analysis................................................................................................................... [50]
Did Ms Mitchell’s treatment in the ARU comply with the Act?........................... [52]
The claims............................................................................................................ [75]
PROCEEDING TWO: DECISION TO SEIZE MS MITCHELL’S
ELECTRIC JUG AND OTHER PROPERTY (CIV-2016-485-55).................. [80]
Pleadings................................................................................................................. [80]
Evidence................................................................................................................. [86]
Analysis................................................................................................................... [95]
PROCEEDING THREE: TRANSFER OF MS MITCHELL TO
AUCKLAND WOMEN’S PRISON (CIV-2016-485-269)................................ [117]
Pleadings............................................................................................................... [117]
(i) Transfer Decision......................................................................................... [122]
Evidence............................................................................................................... [122]
Analysis................................................................................................................. [145]Were mandatory relevant considerations taken into account?.......................... [145]
Was the Transfer Decision unreasonable?........................................................ [156]
Was the Transfer Decision illegal?.................................................................... [159]Was the Transfer Decision in breach of Ms Mitchell’s right to natural
justice under s 27(1) of NZBORA?.................................................................. [162]
(ii) Transfer to Auckland Women’s Prison.................................................. [168]
Evidence............................................................................................................... [168]
Analysis................................................................................................................. [185]Was the use of force or the use of the waist restraint cruel, degrading or disproportionately severe treatment or punishment, or a failure to respect
Ms Mitchell’s inherent dignity?......................................................................... [199]Result.................................................................................................................... [210]
Introduction
[1] Kerryn Mitchell was held in Arohata Prison, Wellington (Arohata) from 1 January 2015 to April 2016, first on remand and, from 2 December 2015, as a sentenced prisoner. She was convicted and sentenced on five charges of breaching a protection order, 55 charges of attempting to do so and one charge of attempting to threaten to kill. On 12 April 2016, Ms Mitchell was transferred to the Auckland Regional Women’s Corrections Facility (Auckland Women’s Prison).
[2] Ms Mitchell has a number of complaints about her treatment in Arohata which she has articulated in a number of applications seeking judicial review of various decisions and claiming her rights pursuant to the New Zealand Bill of Rights Act 1990 (NZBORA) have been breached. This decision deals with three of those proceedings.
[3] The first proceeding concerns events relating to Ms Mitchell’s scheduled transfer from Arohata to Auckland Women’s Prison on 6 January 2016. The transfer was unable to take place because of Ms Mitchell’s scalded arms. Prison staff believe she boiled water in an electric jug she kept in her cell and then deliberately poured
boiling water over her lower arms. Ms Mitchell disputes this, saying it was an accident. As a result of her injuries, it was decided Ms Mitchell was not fit for transfer to Auckland Women’s Prison at that time and she was admitted to the At Risk Unit (ARU).
[4] Ms Mitchell remained in the ARU from 6 to 15 January 2016. She alleges her placement and treatment there was in breach of her right to be secure against unreasonable search or seizure,1 and the right to the observance of the principles of natural justice by a public authority.2 The respondents in those proceedings, the Attorney-General, the Chief Executive, Department of Corrections (the Chief Executive) and the Prison Director, Arohata,3 say the management of Ms Mitchell was appropriate for the purposes of ensuring her safety and a proportionate response to issues raised by her challenging behaviours while she was in the ARU.
[5] The second proceeding concerns the consequences of the injuries Ms Mitchell suffered on 6 January 2016. Ms Mitchell’s electric jug was removed from her cell and not returned to her. She claims the decision to seize her electric jug was unlawful, resulting in a breach of the duty of care owed to her by Arohata and caused her foreseeable harm. She seeks an order rescinding the decision in respect of both her and seven other prison inmates from whom electric jugs were removed. She claims other property was removed from her by Auckland Women’s Prison and that decision was also unlawful. She also seeks damages.
[6] The respondent in those proceedings, the Prison Director of Arohata, says the decision was lawful and reasonable. Moreover, it was part of the day to day operational decisions concerning prison management which are not susceptible to judicial review.
[7]
The third proceeding concerns the circumstances of Ms Mitchell’s transfer to Auckland Women’s Prison on 12 April 2016. Ms Mitchell claims the decision to transfer her (the Transfer Decision) was unlawful and unreasonable. It breached her1 New Zealand Bill of Rights Act 1990, s 21.
2 Section 27.
3 The title “Prison Director” corresponds to the position of prison manager as used in the Corrections Act 2004. See Affidavit of Christopher Burns, Prison Director, dated 4 July 2016 in CIV-2016-485-269.
right to natural justice under NZBORA and subjected her to cruel, degrading and disproportionately severe treatment in breach of NZBORA.4
[8] The defendant in that case, the Chief Executive, asserts the Transfer Decision was reasonable and made after consideration of all relevant matters. In any event, there is no right to be heard on a decision to transfer and the Prison Director was well aware of Ms Mitchell’s views on the matter. Furthermore, the way in which Ms Mitchell was transferred, which included being handcuffed to a waist restraint, was an operational decision made in the interests of the safety of Ms Mitchell and staff and therefore not susceptible to judicial review.
Corrections Act 2004
[9] The Corrections Act 2004 (the Act) is the legislation which underpins all three cases. The purpose of and principles guiding the corrections system are fundamental to a consideration of the claims. The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by, amongst other things:5
(a)ensuring custodial sentences are administered in a safe, secure, humane and effective manner;
(b)providing for corrections facilities to be operated in accordance with the rules of the Act and regulations made under the Act, which are based on matters including the United Nations Standard Minimum Rules for the Treatment of Prisoners;6 and
(c)assisting in the rehabilitation of offenders and their reintegration into the community.
[10]Section 6 of the Act sets out the principles:
4 NZBORA, ss 27 and 9 respectively.
5 Corrections Act 2004, s 5.
6 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) GA Res 70/175, A/RES/70/175 (2015).
6 Principles 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:
(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.
…
[11] Those who exercise powers and duties under the Act and regulations made under it must take into account these principles so far as they are applicable in the circumstances.
[12] The powers and functions of the Chief Executive include ensuring the system operates in accordance with the purposes and principles, and ensuring the safe custody and welfare of prisoners.7 Those two obligations are repeated as far as the powers and functions of prison managers and delegates are concerned.8 The Chief Executive can issue guidelines on the exercise of powers under the Act or regulations made under it and instructions or guidelines relating to procedures or standards in the management of prisons and escort services.9
PROCEEDING ONE: PLACEMENT AND TREATMENT IN THE ARU (CIV-2016-485-57)
Pleadings
[13] This proceeding concerns the determination Ms Mitchell was “at risk status” with the consequence she was to be held in the ARU. She claims this amounted to a breach of her right to natural justice under s 27 of NZBORA because she did not have the opportunity to “state her case”. There was also, she claims, an unreasonable seizure of her person in breach of s 21 of NZBORA. These breaches continued throughout her time in the ARU, Ms Mitchell claims. Furthermore, she
7 Corrections Act 2004, ss 8(1)(a) and 8(1)(b).
8 Sections 12(a) and 12(b).
9 Section 196.
claims her rights when in the ARU were breached because she was unable to have access to means to complain about being held and her treatment, including access to complaint forms (PC.01s), the Prison Inspector, her lawyer and support people. She seeks a declaration her rights have been breached and an order directing the Attorney-General to report to Parliament under s 7 of NZBORA for inclusion of a “revocation (safeguard) procedure” on the risk assessment process to provide an independent analysis of a de facto segregation status. She also seeks damages and exemplary damages.
[14] The respondents say the management of Ms Mitchell was appropriate for the purposes of ensuring her safety following an incident of self-harm. Furthermore, Arohata’s management of Ms Mitchell was proportionate to her challenging behaviours whilst in the ARU. Specifically, it is said appropriate consultation was carried out with relevant professionals, Ms Mitchell was able to request revocation of her status, she had contact with Arohata’s Prison Inspector and her support people, she made several internal complaints and she was not subject to medical segregation.
Evidence
[15] Arohata staff and those who administered medical attention to Ms Mitchell were of the opinion she had deliberately self-harmed on the morning of 6 January 2016 by pouring boiling water over her arms. Ms Mitchell contends there is no evidence of that. The belief she had self-harmed led to Ms Mitchell being held in the ARU, her electric jug being taken from her, and the decision to use a waist restraint on her when she was later transferred to Auckland Women’s Prison. The events that morning are therefore an important backdrop to all three proceedings.
[16] The evidence in this case was by affidavit. It necessarily involved access to some of Ms Mitchell’s medical records. Somewhat reluctantly, Ms Mitchell accepted the medical evidence had to be considered because it was necessary for the conduct of these proceedings. The information is, however, confidential and for that reason I have ordered the file be sealed to restrict access to the affidavits.
[17] Ms Mitchell had attended a Parole Board hearing on 5 January 2016. The Arohata staff member who accompanied her considered she was unhappy with the
result. On 6 January 2016, Ms Mitchell was awaiting transfer to Auckland Women’s Prison. She was unlocked from her cell at approximately 6.00 am and taken to the receiving office to await transfer. When officers attempted to place handcuffs on Ms Mitchell, burns to her arms were noticed and she was taken to see the health centre staff shortly after 7.00 am.
Ms Mitchell
[18] Ms Mitchell’s evidence was that she suffered an accident that morning which resulted in a risk assessment being carried out on her when there was no reason to do so. She said the Corrections officer who carried out the risk assessment did not have the requisite training, she was not interviewed by the senior management team and she viewed her time in the ARU as a punishment. She complained of inconsistent treatment in that she was kept in the ARU for a longer period than another prisoner and she was not allowed her personal items. Furthermore, she was not allowed to ring her lawyer. Her cell was dirty and she refused to clean it because of the fact she considered she was being punished. She referred to an incident where she said a Corrections officer laughed at her and refused to allow her to have a PC.01. She complained staff refused to help her make a request for revocation of her at risk status and were in breach of their professional obligations in this regard.
Medical evidence
[19] Much of the medical evidence was produced by the team leader at Arohata’s health centre who is a registered nurse leading a team of five other nurses. She was involved in treating Ms Mitchell’s burns while she was in the ARU. The medical record shows a nurse saw Ms Mitchell on 6 January and noted “Self harm: Burns R)
L) forearm” and “[patient] reports that at 0100 hrs she poured boiling water over lower arms as an act of self harm”. There is also reference to Ms Mitchell having previously burnt herself with hot coffee by accident many days prior.
[20] Ms Mitchell refused any burn aid gel. The burns were cleaned and covered by non-adherent dressing. The nurse notified a Corrections officer that Ms Mitchell was not fit for transfer to Auckland Women’s Prison and an at risk assessment was required. She left a message for a doctor, who rang back and advised Ms Mitchell
required further assessment at hospital. Ms Mitchell refused to go to hospital for treatment and signed a refusal of medical treatment form. Ms Mitchell was placed in the ARU to be observed every 15 minutes. The doctor agreed to attend on Ms Mitchell at the clinic the following day.
[21] The forensic nurse was also told what had happened and it was proposed Ms Mitchell would be seen by forensics on 7 January. However, later that day, a forensic nurse from Regional Forensic Mental Health Services emailed the nurse at Arohata, advising that, after discussion, it was decided Ms Mitchell would not be seen by forensics “as it has been found to be counterproductive to her wellbeing” and any concerns could be referred to a psychologist within Corrections.
[22] On 7 January, Ms Mitchell was seen by the visiting doctor, Dr Robinson, who recommended she attend the Hutt Hospital to see a burns specialist. Dr Robinson completed the ACC injury claim form, explaining how the injury was caused as “Deliberately poured boiling water onto arms”.
[23]Ms Mitchell signed the form and dated it 7 January 2016.
[24] Dr Robinson also wrote a referral letter dated 7 January 2016 to the Hutt Hospital Plastics Registrar reporting Ms Mitchell had deliberately burned her forearms and, when she was asked to explain, had said, “It seemed like a good idea at the time”. The letter said:
Kerryn denies suicidality and was due for transfer to Auckland Women’s Prison and it may be that she was not keen for transfer and reacted by self harm.
[25] Ms Mitchell was seen by a registrar in the Plastic Surgery Department of Hutt Hospital in the afternoon of 7 January, who noted the scald burn was “self inflicted with milk”. A clinic review was planned for one week’s time, to be in Auckland if Ms Mitchell was transferred.
[26]A document entitled “Advice of Prisoner Health Status Form” was completed
on 8 January 2016.
[27] The team leader of Arohata’s health centre advised the Health Centre Manager of events by an email which included a copy of the medical assessment from Hutt Hospital.
[28] Ms Mitchell’s medical history was thereafter updated on a daily basis until she was discharged from the ARU. On 8 January her cell was described as “full of urine, smashed food and smeared faeces all over floor, walls, ceiling and door”. The nurse said she was “unable to reason with” Ms Mitchell. Ms Mitchell was described on 9 January as abusive and, on 10 January, as making “no eye contact, only verbal communication”. By later that day Ms Mitchell was described as polite and cooperative and, on 11 January, while not engaging in conversation, Ms Mitchell was described as polite. The health staff and the Principal Corrections Officer (PCO) responsible for the ARU decided observations of Ms Mitchell would be required at 30 minute intervals rather than the previous 15 minute intervals.
[29] By 12 January, Ms Mitchell was described as “in a good mood”. She had removed her dressings and refused follow up appointments with the Plastic Surgery Department at Hutt Hospital, signing a refusal of medical treatment form. On 13 and 14 January, Ms Mitchell was described as denying any current thoughts of self-harm. Her cell was described as littered with food and smelling extremely offensive. The cell had not been cleaned since Ms Mitchell transferred into the ARU on 6 January. She was also refusing to shower.
The ARU
[30]Ms Mitchell’s PCO described the ARU as follows:
The purpose of the ARU is to help to de-escalate a problem or an issue for a prisoner in a safe environment. Being in the ARU gives a prisoner time to rest, space to calm down and assistance to deal with the issues involved.
[31] The ARU has four cells, one being designated a de-escalation cell, which does not have a bed base, toilet, or basin. The other three cells (including where Ms Mitchell was placed) have a bed with a non-tear mattress, a basin, a toilet, and a desk with a secured stool. Prisoners take their meals either in the cell or in the day room if they are deemed able to mix with others of the same classification. The day room
is also used when a prisoner is unlocked and allowed to be supervised outside their cell or if they do not want to utilise the ARU yard.
[32] Prisoners first entering the ARU are required to be placed on 15 minute observations, which may later progress to observations at 30 minute intervals. The cells have CCTV cameras in them.
[33] There is one shower in the ARU. Two staff are required to be present when a prisoner showers and there is a screen for privacy showing head and feet. The intention is an officer should be able to monitor any self-harm attempts. Prisoners in the ARU are issued with a strip nightie and anti-suicide bedding. They are provided with finger food as they are not allowed food which requires cutlery. The ARU has its own exercise yard and, unless able to mix without incident, prisoners use the yard one at a time. The risk of self-harm is managed by limiting items to which prisoners have access in the ARU cells. For example, no pens are allowed.
[34] A multi-disciplinary team of case managers, custodial officers and health centre staff meet each morning to discuss prisoner needs. I note numbers at Arohata are relatively low in comparison with other prisons and the staff get to know prisoners well.
Entry into and management in the ARU
[35] A Corrections officer conducted a “review risk assessment” for Ms Mitchell using the prison services operations manual policy “M.05 Prisoners at Risk of Self Harm” at 7.41 am on 6 January 2016. All custodial officers complete formal training for at risk assessments and review, as well as suicide awareness training. The relevant information from that form noted Ms Mitchell had self-harmed the previous night by burning both arms with a cup of coffee. The reason for review of Ms Mitchell’s at risk status was stated to be staff knowledge of Ms Mitchell which caused concern. Ms Mitchell was recorded as denying thoughts of self-harm. It is unclear whether the comment “self-harmed last night by way of burning arms with hot coffee” came from Ms Mitchell or was the Corrections officer’s interpretation of events. Ms Mitchell did not sign the form, neither was the box indicating she refused to sign completed. Ms Mitchell was described as “presents in low mood”.
The summary assessed Ms Mitchell as “at risk”, saying her “safety is compromised at this time”. Observation at 15 minute intervals for Ms Mitchell’s protection was decided upon, to be further discussed with the health team.
[36] The health staff evaluation at 8.05 am by the nurse who initially saw Ms Mitchell recorded the assessment she was at risk. The outcome was confirmation both custodial and health staff agreed Ms Mitchell was at risk at the time.
[37] When Ms Mitchell was admitted into the ARU she was given the ARU Prisoner Information sheet, cell allocation notification and an induction and movement check list.
[38] One PCO was responsible for Ms Mitchell’s daily management in the ARU, including responsibility for confirming and regularly reviewing Ms Mitchell’s at risk status. It was her decision as to when Ms Mitchell should be removed from the ARU. The Residential Manager had general oversight and visited Ms Mitchell on a number of occasions but relied on the PCO for daily management.
[39] As well as the updates on her medical history, Corrections officers completed Offender Notes and Observations during Ms Mitchell’s time in the ARU. These notes reflect the de-escalation of Ms Mitchell’s behaviour from the time she was admitted to the ARU to her departure, including on 6 and 7 January a threat to kill a staff member, flooding of her cell, soaking her blankets and mattresses, throwing food and a general lack of response.
[40] Because Ms Mitchell was considered a high needs prisoner, a number of people within Arohata were aware generally of Ms Mitchell being in the ARU, including the Prison Director, the Acting or Assistant Prison Director, the Residential Manager, the Custodial Systems Manager, the Health Centre Manager, the High Risk Response Manager, the Regional Commissioner, and the Prison Inspector.
[41] The Residential Manager also gave evidence in his role as having general oversight of Ms Mitchell while she was in the ARU. He visited her there on a number of occasions. He noted that in general the policy is that prisoners should not
have to stay in the ARU for any longer than necessary but before release staff must be sure they are not at risk to themselves or harm from others. He said:
Ms Mitchell’s behaviour was very challenging at this time. Because of her behaviour we could not be certain that she would not harm herself or be harmed by others.
[42] On 8 January, Ms Mitchell had a two-hour meeting with her counsellor and a telephone call to her lawyer. However, on 9 January she is recorded as having sworn at the nurse twice and having another abusive altercation with staff. Refusals to shower and clean her cell continued.
[43] By 11 January, after consultation with staff both medical and management, it was decided Ms Mitchell had improved and required monitoring every 30 minutes only.
[44] There was no referral to a Corrections psychologist during this period. Corrections policy is that access to departmental psychological services is not available for prisoners who are appealing their sentences, which Ms Mitchell was. The services of the departmental psychologists are focused on reintegration rather than general mental health issues which are dealt with by forensics services. As noted above, health centre staff did contact a forensics services staff member who advised the service would not be of benefit to Ms Mitchell.
[45] By 15 January, after consultation with health staff, Ms Mitchell was assessed as no longer at risk of self-harm and discharged from the ARU.
Ability to complain
[46] The Prison Inspector notes that during the period 6 to 15 January, the Prison Inspectorate received a number of emails from Ms Mitchell’s lawyer and support person, who made a number of complaints in respect of Ms Mitchell’s treatment from 8 January onwards in respect of the ARU period. The Chief Inspector of Corrections responded, saying he had not found evidence of staff lying or using force on Ms Mitchell, staff had acted appropriately in managing Ms Mitchell in the ARU and she received appropriate medical care. He also replied direct to Ms Mitchell
concerning a complaint she made about a telephone call to the duty inspector on 11 January 2016 to the effect staff were refusing to supply her with PC.01 complaint forms. He noted Ms Mitchell had made at least two such complaints on that day and:
When you were spoken to by the duty inspector on the same day you advised him that in fact you wanted fifty 50 PC.01 complaint forms and at that point you were advised that your request was unreasonable.
[47] On 7 January 2016, the Ombudsman emailed the Prison Director in respect of a complaint made by Ms Mitchell’s lawyer and expressing “concerns about her self-harming and taking her own life as a result of these issues”. The Prison Director responded, saying Ms Mitchell had been assessed and was currently being managed as an at risk prisoner. No further action was taken so it can be inferred the Ombudsman was satisfied with this response.
[48] Ms Mitchell used Arohata’s internal complaints procedure by lodging PC.01s while she was in the ARU. Between 11 and 15 January 2016, she submitted 11 PC.01s, including: on 11 January, a request for revocation of her at risk status; on 12 January, a complaint she was on punishment conditions and a request for all paperwork; and a complaint on 14 January that a staff member was laughing at her.
[49]On 12 January, the Prison Inspector visited Ms Mitchell’s PCO to discuss
Ms Mitchell’s situation.
Analysis
[50] In Ms Mitchell’s submission, there was no evidence she had self-harmed on 6 January and her position was her arms were scalded as a result of an accident. Even if that were the case, I am satisfied there were good grounds for the conclusion by medical and Corrections staff that Ms Mitchell had self-harmed. Indeed, as referred to above, her lawyer also appeared to be of that opinion.
[51] These grounds include the context, the evidence being Ms Mitchell was unhappy as a result of a Parole Board hearing on 5 January and did not want to be transferred to Auckland Women’s Prison as was scheduled to occur on 6 January.
The inference which can be drawn from the medical reports was Ms Mitchell advised Dr Robinson, at least, that she had deliberately poured boiling water over herself and it seemed like a good idea at the time. Ms Mitchell signed the ACC form which said the burn was deliberately caused. Whilst I acknowledge her comment that an ACC form means nothing to her given any medical costs are covered by Arohata, I find it unlikely, given Ms Mitchell’s usual approach, that she would sign a form recording such a comment if it were not true. Ms Mitchell is generally vehement in protecting her own position. Whether the burns were caused by hot water, coffee or milk is immaterial. Notably, Ms Mitchell scalded both arms, which would be an unusual result if the burns were caused by accident. In any event, whether or not Ms Mitchell had in fact self-harmed, there was every reason to believe she had. Her behaviour immediately following and during the period she was in the ARU supported that assessment.
Did Ms Mitchell’s treatment in the ARU comply with the Act?
[52]Section 60 of the Act provides:
60 Segregation for purpose of medical oversight
(1)A prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if the health centre manager of the prison recommends that a direction of this kind is desirable for either or both of the following reasons:
(a)in order to assess or ensure the prisoner’s physical health:
(b)in order to assess or ensure the prisoner’s mental health (including, without limitation, the risk of self-harm).
(1A) Before a health centre manager makes a recommendation under subsection (1) that relates to a matter outside his or her scope of practice, he or she must consult a medical practitioner whose scope of practice includes that matter.
(2)If a direction is given under this section,—
(a)the prisoner concerned must promptly be given the reasons for the direction in writing:
(b)the chief executive must promptly be informed of the direction and the reasons for it.
(3)A direction under this section continues in force while the prisoner continues to be detained in the prison unless the prison manager or the chief executive revokes it.
(4)The prison manager may not revoke a direction under this section unless the health centre manager advises that there has ceased to be any justification, under subsection (1), for continuing to restrict or deny the opportunity of the prisoner to associate with other prisoners.
(5)While a direction under this section is in force, the health centre manager must, unless he or she is satisfied that it is not necessary in the circumstances, ensure that a registered health professional visits the prisoner concerned—
(a)at least once per day; or
(b)if the prisoner is assessed to be at risk of self-harm, at least twice per day.
(6)In this section, scope of practice has the same meaning as in section 5(1) of the Health Practitioners Competence Assurance Act 2003.
[53] The respondents maintain Ms Mitchell was not on medical segregation but evaluated as being at risk. She was put in the ARU for the purpose of assessing and ensuring her mental health, in particular the risk of self-harm. The respondents submit, even if Ms Mitchell were on medical segregation, which the facts do not support as there was no segregation direction, any breach of s 60 is not apparent given the meticulous way in which Arohata dealt with her.
[54] The respondents say the prison manager is entitled to rely on the general powers in s 12(b) of the Act, of ensuring the safe custody and welfare of prisoners, to remove a prisoner to the ARU when appropriate and in accordance with the policy made under s 196, which allows the Chief Executive to issue guidelines and instructions on the exercise of powers under the Act or regulations and procedures to be followed or standards to be met.
[55] The prison services operations manual policy is used to manage prisoners in the ARU. The overall policy for addressing prisoner risk is stated as follows:
1.The Department of Corrections acknowledges that:
a.all prisoners by virtue of being in prison pose an increased risk of self harming behaviour
b.all staff are responsible for the early identification of a prisoner’s at-risk status, and for taking immediate action when such risk is identified
c.assessing risk of self harm is not an exact science, especially within the prison setting, as prisoners can present with a number of predisposing factors such as drug misuse and mental health problems
d.the assessment is a dynamic process where levels of risk often change
e.all prisoners are vulnerable to some degree and often give “clues” when they are worried. Sometimes there are “cues” in their personal histories (the predisposing factors), which can lead to the view that they are especially vulnerable. Risk assessors need to be aware of these “clues and cues”.
[56] The policy sets out two risk assessments tailored to address specific times of potentially increased risk: on reception into custody; and review in specified circumstances which may include knowledge of the prisoner causing concern or a prisoner displaying negative signs or a change in mood or behaviour. The latter is relevant in this case. The policy sets out review risk assessment criteria and provides for the observation and management of at risk prisoners to ensure they are managed safely through the accurate recording of information and frequent observation. An at risk management plan is then developed for prisoners assessed as being at risk, which must address the removal of a prisoner from at risk status and any ongoing treatment and monitoring which may be necessary.
[57] I agree with the submission the at risk policy is underpinned by the general purposes and principles of the Act as outlined above and the general obligation to safeguard the safe custody and welfare of prisoners. It is aimed at identifying the level of self-harm risk each prisoner presents and seeking to minimise this risk as quickly and safely as possible. That is not, however, the end of the matter.
[58] Ms Mitchell referred to the case of Toia v Prison Manager, Auckland Prison.10 In that case, Mr Toia had been placed in the ARU and denied association with other prisoners by being isolated in a separate cell in the ARU. The High Court had found Mr Toia’s placement in the ARU was as a result of the prison manager’s
10 Toia v Prison Manager, Auckland Prison [2014] NZHC 86. Appeal dismissed: Toia v Prison Manager [2015] NZCA 624.
opinion that the security or good order of the prison would otherwise be endangered or prejudiced. I accept that Toia is distinguishable from the circumstances of Ms Mitchell, where it is clear her placement and maintenance in the ARU was because of her risk of self-harm. However, Brewer J’s assessment of de facto segregation in Toia remains relevant.
[59] I am not convinced Ms Mitchell’s placement in the ARU was not, in effect, medical segregation. The evidence provided in various affidavits of Corrections and health unit staff indicates Ms Mitchell was placed in the ARU to assess her level of risk of self-harm and to de-escalate her behaviours. The effect of the placement was to segregate her from other prisoners. This was seen by those managing her as desirable to effect de-escalation and enable the risk assessment to take place.
[60] Section 60 is directed at precisely these circumstances. Decisions regarding the segregation of prisoners to assess their mental health, including risk of self-harm, are to be dealt with in a way which complies with this provision. It cannot be correct that the lack of a relevant direction from the prison manager prevents detention in the ARU from being considered medical segregation. If the evidence supports a finding that detention in the ARU is in fact medical segregation, a lack of the direction is a matter which indicates a breach of s 60 rather than a matter which prevents its application.
[61] Furthermore, the responsibility to discharge obligations under s 60 cannot be avoided by pointing to the regulations and/or policy made under other provisions of the Act. Regulations and policy are, of course, necessary for the effective management of the Prison. They must, however, comply with the Act where the Act provides relevant baseline requirements.
[62] Similar to the finding of Brewer J in Toia, I consider Ms Mitchell was on de facto medical segregation while she was held in the ARU. In these circumstances, Arohata was required to comply with s 60.
[63]I accept, however, the respondents’ submission that any breach of s 60 was
technical or de minimis. The decision to place Ms Mitchell in the ARU was taken on
the recommendation of and in conjunction with a nurse within the health unit rather than the Health Centre Manager. The nurse nevertheless informed her team leader and the Health Centre Manager on the same day, both of whom indicated no opposition to the recommendation and decision. The decision to remove Ms Mitchell from the ARU was taken in a similar manner. Section 60(5)(b) requires twice-daily assessments by a registered medical professional unless a decision is made that the circumstances require otherwise. There was no decision by the Health Centre Manager to reduce that requirement and Ms Mitchell was seen once and often twice a day by medical staff. While not ideal, this was a minimal breach of the provision, particularly given Ms Mitchell’s circumstances were not at the extreme level so as to require frequent assessments. I note, for completeness, all health staff members were operating within their relevant scope of practice.
[64] To contrast Ms Mitchell’s position with those in the cases she cited, in Toia, Brewer J said if incarceration in the ARU had been longer than a few days, a better reason than concerns about health of other prisoners would have been needed to forestall a finding of extra-judicial punishment and/or breach of s 23(5) of NZBORA. The concerns about the health of other prisoners related to Mr Toia having tipped excrement outside the door of his cell. These were entirely different circumstances from those pertaining to Ms Mitchell. The concerns she would self- harm were of sufficient gravity to justify her being held in the ARU while those concerns remained.
[65] In addition, Ms Mitchell’s treatment and ability to access third party assistance was nowhere near the circumstances criticised by the Court in Taunoa v Attorney-General.11
[66] I have already concluded the opinion Ms Mitchell self-harmed was clearly one available in the circumstances and it was therefore entirely appropriate she was placed in the ARU for her own health and safety. It enabled Ms Mitchell to be kept under observation in an environment where the risk of further self-harm was reduced and where risk assessments could more readily take place.
11 Taunoa v Attorney-General (2004) 7 HRNZ 397 (HC); and Taunoa v Attorney-General [2007] NZSC 70, [2007] 1 NZLR 429.
[67] As demonstrated by the relatively comprehensive references to the evidence, Ms Mitchell was appropriately dealt with by medical staff, both in regard to her initial assessment and ongoing treatment and care.
[68] Ms Mitchell was placed in the ARU following the recommendation of a health centre nurse and after an assessment by a Corrections officer, whose assessment was confirmed by that nurse. The health team leader and Health Centre Manager were advised and there were discussions with the Residential Manager and the Prison Director.
[69] Ms Mitchell was given a copy of the written at risk assessment form, the requisite levels of staff were aware of her placement, she was seen by a nurse on at least a daily basis and removed from the ARU by her PCO in consultation with a nurse and with oversight from health centre management.
[70] The detail about Ms Mitchell’s behaviour while in the ARU provides ample justification for the time she spent there. Comparisons with other prisoners in the ARU at the same time whose circumstances are not before the Court are less than helpful.
[71] The evidence and records demonstrate staff behaved in a responsible and appropriate way. The incident complained of by Ms Mitchell of a staff member laughing at her was dealt with by Arohata management and the staff member disciplined. In any event, this level of operational detail is not appropriate for the Court’s oversight.
[72] Ms Mitchell was able to request revocation of her at risk status and indeed did so. Simply because it was requested, however, does not mean the status had to be revoked. The evidence demonstrates why this did not occur.
[73] The evidence shows Ms Mitchell had access to her support people, including her counsellor and lawyer. The inspectorate received emails during the period from Ms Mitchell’s lawyer and support person and responded to those.
[74]Ms Mitchell made a number of complaints and, again, those were dealt with.
The claims
[75] There was no unreasonable search and seizure of Ms Mitchell. Despite Ms Mitchell being on de facto medical segregation and the technical or de minimis breaches of s 60, the decisions regarding Ms Mitchell’s detention in the ARU and her treatment while she was held there were not unreasonable and were consistent with the purposes and principles of the Act.
[76] There was no breach of natural justice. Ms Mitchell was informed why she was in the ARU. She had access to her lawyer and support people. She complained. She sought a change of her status. All her requests were considered and replied to.
[77] The decisions about and management of Ms Mitchell during this period were entirely proportionate to her behaviour.
[78] Ms Mitchell’s pleadings were confined to ss 21 and 27 of NZBORA. To the extent her submissions canvassed other breaches, there is nothing in any event to support those allegations to the standard required.
[79]For the reasons given, the claim is dismissed.
PROCEEDING TWO: DECISION TO SEIZE MS MITCHELL’S ELECTRIC
JUG AND OTHER PROPERTY (CIV-2016-485-55)
Pleadings
[80] By her amended statement of claim dated 15 August 2016, Ms Mitchell claims a decision by the Prison Director of Arohata to seize her personal property, being her electric jug (the Property Decision), revoked a licence previously granted to her. The Property Decision was made between 6 and 15 January 2016 and confirmed in writing on 22 January 2016. The result of revocation of the licence meant she was unable to enjoy access to “an instrument of hygiene and dietary necessity”. She claims the Property Decision was a manifest error of law which overrode a national policy, failed to consider relevant factors, and was unreasonable.
[81] Ms Mitchell makes similar claims about a decision by the Prison Director of Auckland Women’s Prison on 22 April 2016 that Ms Mitchell’s hair dryer, thermos flask, and four-way multibox should be stored in the prison receiving office. The items were taken from Ms Mitchell and stored until she was released on bail on 8 July 2016.
[82] Ms Mitchell claims the decisions were unlawful, unreasonable (irrational) and “conducted with procedural impropriety”. She claims the imposition of a “blanket policy” meant Corrections staff failed to consider exceptional circumstances, compelling reasons and legitimate expectation, amongst other matters. She also claims she was not provided with any indication as to how her property could be restored to her.
[83] Ms Mitchell seeks a declaration the decisions were unlawful, an order the respondent reconsider and rescind the decisions, special and general damages, and costs.
[84] The respondent, while maintaining the correct respondent is the Chief Executive, relies on the Authorised Property Rules dated 10 March 2016 issued by the Chief Executive (the Authorised Property Rules). He admits the electric jug complied with the Authorised Property Rules but notes the Authorised Property Rules provide that an electric jug is not allowed if the prisoner has been issued with a thermos flask, which Ms Mitchell was on 1 March 2016. Furthermore, that the electric jug was removed from Ms Mitchell following its use by her in an incident of self-harm. The respondent refers to Ms Mitchell’s claim for general and special damages and by way of an affirmative defence states damages are not available in judicial review proceedings.
[85] Ms Mitchell’s complaint covers Arohata, Auckland Women’s Prison and Christchurch Women’s Prison. Between December 2012 and 9 December 2016, Ms Mitchell was held at various times at both Arohata and Auckland Women’s Prison. She was not, at any stage, held in the Christchurch Women’s Prison. I therefore put the part of the claim relating to actions taken by the Christchurch Prison Director to one side.
Evidence
[86] The electric jug had been issued to Ms Mitchell on 18 December 2012. It was an item brought to Ms Mitchell by her associates and had undergone the necessary checks for electrical compliance and labelling. The jug was removed from the locker containing Ms Mitchell’s personal items at some stage between 6 and 15 January 2016. It was stored with Ms Mitchell’s other personal effects.
[87] Ms Mitchell had sought an order by way of interim relief for the return of the electric jug. In support of that, she filed an affidavit dated 2 March 2016 which primarily focused on legal submissions. She did, however, say she relied on hot water from the jug for both “laundering and cleaning-hygiene” in her cell and for cooking noodles and making coffee. She said she could not access the zip in the dayroom apart from two hours a day out of a total of six hours daily. Supper arrived at 4.30 pm and she was not unlocked until 9.30 am the next day, and during that period she could not access the zip.
[88] Ms Mitchell’s affidavit provided no evidence about the items she claims were seized from her in Auckland Women’s Prison. For that reason, there was no evidence from the respondent about the alleged seizure of those items.
[89] Affidavit evidence on behalf of the respondent was from the residential operations support manager at Arohata, Taunu Taepa. He is familiar with the events surrounding the removal of Ms Mitchell’s electric jug, having dealt with her on many occasions in his role as Residential Manager. He recorded the events of 6 January 2016 from his knowledge and enquiries, including the information from Dr Robinson referred to above in connection with the ARU claim. Mr Taepa observed that the only way Ms Mitchell could have scalded her arms at 1.00 am would have been through her boiling water in the electric jug kept in her cell and then pouring the water over herself, likely intentionally.
[90] In Mr Taepa’s evidence, the Property Decision was taken because there were reasonable grounds to believe Ms Mitchell might do something similar again. He noted Ms Mitchell still had the ability to access hot water at any time during the
hours of unlock and lockup for the purpose of making tea, coffee or, for example, cooking noodles.
[91] Mr Taepa explained Ms Mitchell’s cell in the Tizard Wing was unlocked from around 8.30 to 9.30 am and locked again at around 5.00 pm. He said it was possible for Ms Mitchell to have her thermos flask refilled during the hours of lockup by asking an officer to do so. He also noted Ms Mitchell could fill up her thermos flask from the zip and take it into her cell for use during the period of lockup. His evidence was Ms Mitchell chose to stay in her cell a lot of the time but during the hours of unlock she could access the zip. The zip was set at a temperature of 80 degrees centigrade, therefore below the boiling point for water, and was located in the day room which was a communal area.
[92] Ms Mitchell’s situation was complicated by the fact she had access to a cell in the secure area of Arohata where she was able to work and store her legal materials and paperwork. The secure area was in a high security area which meant Ms Mitchell had to be locked in the cell when there. In that area prisoners had more limited access to hot water and there was no zip in the secure area. Officers took pots of tea to the cells and poured tea into cups for prisoners. Mr Taepa explained that, while this happened at set periods throughout the day, prisoners could also request hot drinks during the day and officers would generally comply. He noted, in any event, Ms Mitchell could have used her thermos flask and filled it up before taking it from her cell in the Tizard Wing to the secure area. Furthermore, when in the secure area, Ms Mitchell could be unlocked to fill up her thermos flask during the day if staff were available to assist. This afforded Ms Mitchell more access to hot water when in the secure area than when she was in possession of an electric jug. She could not possess a thermos flask if she had a jug and she could not take a jug into the secure area.
[93] Mr Taepa discussed the advantages as far as Arohata was concerned of thermos flasks over electric jugs. He explained thermos flasks pose less risk of harm than electric jugs because electric jugs can maintain water at boiling point whereas it is almost impossible to maintain a temperature of boiling point when water is in a thermos flask. He said, however, the thermos flask can maintain water at a
temperature sufficiently hot to make a hot drink but posed a lesser threat to staff and prisoner safety. Furthermore, thermos flasks hold less water than electric jugs, which is another reason they are considered safer.
[94] In December 2015, the Prison Director decided prisoners were not permitted to have electric jugs but instead a one litre thermos flask. By 6 January 2016, Ms Mitchell’s electric jug had not yet been removed from her. Only eight prisoners, including Ms Mitchell, were affected by the change in policy and none of those prisoners remain at Arohata. Prisoners whose electric jugs were removed were provided with a thermos flask free of charge. None of the other prisoners expressed any concerns.
Analysis
[95] Judicial review is the supervisory function of the Court which ensures public power is exercised according to the law.12 It is primarily concerned with examining procedural compliance, not the substance of the decision itself, when assessing whether a decision should be allowed to stand.13
[96] In Ms Mitchell’s submission, because she was not subject to an order for medical segregation under s 60 of the Act, the Property Decision to seize her electric jug was unlawful and ultra vires. She said because there was no medical segregation, there was no power to seize the item for reasons she might use it to self-harm. She claimed the respondent failed in his statutory obligation of fair treatment by failing to inform her of the seizure and advise her of the process whereby she could regain possession of the item.
[97] The Property Decision related to Ms Mitchell specifically. She also claimed the Prison Director was acting ultra vires his statutory powers in making what she termed the “blanket decision” to remove electric jugs without exceptions, affecting the whole of Arohata. She relied on the case of Practical Shooting Institute (NZ) Inc v Commissioner of Police.14 That case involved a decision of the Commissioner of
12 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).
13 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
14 Practical Shooting Institute (NZ) Inc v Commissioner of Police [1992] 1 NZLR 709 (HC).
Police banning the importation of military style semi-automatic weapons, permitting no exceptions, and purportedly made under a provision of the Arms Act 1983 whereby the police could issue an import permit under certain conditions.
[98] The Court held the Arms Act had vested in the Commissioner a discretionary power to grant or refuse import permits for firearms. This contemplated certain weapons or classes of them should be declared restricted but the Commissioner was not entitled to impose an absolute rule about certain classes of weapon without individual adjudication. What he had done was legislate and that was outside of his power.
[99] Ms Mitchell sought to draw an analogy with this case with reference to the power of a prison manager to make rules for a prison pursuant to s 33 of the Act. However, the difference in this case is the Act allows the Chief Executive to authorise a prison manager to:
… make rules that the manager considers appropriate for the management of
the prison and for the conduct and safe custody of the prisoners.
[100]This is different from the power at issue in the Practical Shooting Institute
case, which involved the exercise of a discretion.
[101] Because there is no written record of the policy decision, Ms Mitchell contended it must have been made under s 33 of the Act. However, the power to make rules under s 33 does not allow rules to be made which relate to matters potentially covered by rules made under s 45A.15
[102] The Authorised Property Rules were issued by the Chief Executive pursuant to s 45A of the Act. Section 45A relevantly provides (emphasis added):
(1)The chief executive—
(a)must, in respect of all corrections prisons, make rules declaring the items of property that prisoners may be issued with or allowed to keep; and
15 Section 33(6).
(b)may make rules imposing conditions that attach to an item
of property so declared; …
[103] An electric jug is listed in sch 3 to the Authorised Property Rules, which sets out the property a prisoner may be authorised to possess. A thermos flask is an authorised item under sch 5. There is a specified condition attached to the electric jug, however: “Not allowed if prisoner has been issued a flask”.
[104] The General Conditions and Explanatory Notes to the Authorised Property Rules provide:
3.The fact that an item of property is authorised property does not mean a prisoner has a right to be issued with or allowed to keep, use or wear that property at any time. The issue of all property is conditional.
4.A prison director will not issue or allow a prisoner to keep an item of property even if it qualifies as authorised property if:
a)the prison director considers the item is likely to interfere with the security and good order of the prison.
5.Note that even where an item of property qualifies as authorised property a prison director is still entitled, under circumstances outlined in the Act and the Regulations, to refuse to issue it or allow prisoner to keep it.
[105]The relevant “circumstances” provided by the Act and applicable to
Ms Mitchell’s case are addressed in s 43 which relevantly provides:
(1)A prisoner may be issued with, or allowed to keep, authorised property subject to—
(a)any condition set out in rules made under section 45A; and
(b)any special conditions imposed by the prison manager relating to the use of the property; and
(c)the condition described in section 44(1).
(2)Despite subsection (1), the prison manager may refuse to issue or allow a prisoner to keep an item of property if he or she has reasonable grounds to believe that—
(a)the item may be used to injure the prisoner or any other person, or to damage property;
…
[106] Section 43(3) of the Act lists other circumstances in which a prison manager can refuse to issue or allow a prisoner to keep any item of authorised property, including if the prisoner is segregated for the purpose of medical oversight under s 60 of the Act or in other circumstances specified in the Corrections Regulations 2005 or under rules issued pursuant to s 45A. Ms Mitchell was therefore incorrect in her submission that authorised property could only be removed from a prisoner on medical segregation.
[107] In Mitchell v Chief Executive of the Department of Corrections, Williams J observed s 43(2)–(3) of the Act reserved to prison managers the power to override general authorisations in regulations where (broadly speaking) such override may be necessary for the good order of the prison.16 Furthermore, prisoners are not entitled to possess whatever property they desire in their cells.17 This Court in Mitchell v Attorney-General found, in relation to personal televisions, that Ms Mitchell had “no general entitlement to keep any particular item of property in her cell”.18
[108] Because the Prison Director was operating on the assumption that Ms Mitchell was not on medical segregation, I leave to one side my finding that she was in fact medically segregated at the time. That status would have availed s 43(3)(ii) to the Prison Director, thus authorising the decision to remove her personal property. Nevertheless, other grounds are relevant in the circumstances.
[109] I have already found the conclusion Ms Mitchell self-harmed on 6 January 2016 was one readily available and supported by the facts. It was, therefore, entirely logical for the Prison Director to refuse to allow Ms Mitchell to keep an electric jug in her cell on the grounds it might be used to injure herself. Indeed, had the Prison Director not taken that decision, he could have been subject to legitimate criticism. I have already referred to the purposes and principles of the corrections system, which underpin the powers and functions of those acting in prison management. This
16 Mitchell v Chief Executive of the Department of Corrections [2015] NZHC 347 at [13].
17 Corrections Act 2004, s 69 provides for the minimum entitlements of prisoners. Section 69 does not refer to any entitlement to possess the specified property items; the only material items a prisoner is entitled to possess are a bed and bedding, but even those minimum entitlements can be withheld under s 69(2).
18 Mitchell v Attorney-General [2014] NZHC 1339 at [43].
includes ensuring the safe custody and welfare of prisoners. In my assessment, the Property Decision was consistent with those purposes and principles.
[110] In that context Ms Mitchell can have had no legitimate expectation that she would continue to be allowed to have an electric jug in her cell. The Corrections Regulations 2005 specifically addresses the issue, saying:
196 No legitimate expectation as to conditions, etc
(1)To avoid doubt, a prisoner does not have any legitimate expectation of—
(a)being accommodated in, or of being provided with, the same or similar conditions during the whole term of his or her sentence, period of remand, or other period of detention; or
(b)being provided with the same or similar programmes or opportunities during the whole term of his or her sentence, period of remand, or other period of detention.
(2)Subclause (1) does not affect any entitlement conferred on a prisoner by the Act or these regulations.
[111] In Taylor v Chief Executive of the Department of Corrections,19 the Court of Appeal considered Mr Taylor’s claim of legitimate expectation. This involved whether he was entitled to contact visits from his daughter beyond statutory entitlements where such visits had previously been permitted. The Court of Appeal concluded reg 196 negated any legitimate expectation and arrangements could be changed as long as statutory entitlements were not affected. Relevantly, the Court of Appeal also noted that a mandatory order to allow such contact to continue would constrain the obligation of prison authorities to manage the prison to ensure good order and discipline. The Court observed there are strong policy reasons against such interference by the Court, given it would involve inappropriate intervention in matters best left to the discretion of the responsible authorities.20
[112] It is clear Ms Mitchell had no licence in respect of the electric jug which could not be revoked. Again, this issue was considered by the Court of Appeal in the
19 Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112.
20 At [26]–[29].
Taylor case, the Court of Appeal concluding there was no licence in the sense advanced in that case of a long-term arrangement for monthly contact visits.21
[113] Similarly, there is no basis for any allegation of unreasonable seizure under s 21 of NZBORA because there was no protected right of Ms Mitchell to have an electric jug in her cell.
[114] Again following the Court of Appeal in Taylor, the policy decision affecting Ms Mitchell and the other prisoners, and the Property Decision which impacted specifically on Ms Mitchell, were operational decisions about day to day prison management which are not ordinarily susceptible to judicial review. It is not for the Court to become involved in micro-managing prisons.22
[115] The Property Decision was reasonable, it specifically took into account Ms Mitchell’s particular circumstances and there was no legitimate expectation she could continue to have an electric jug in her cell. Furthermore, the claim involves an operational decision in which the Court should be slow to intervene. The only point I would make is that Ms Mitchell should have been provided with a thermos flask earlier than 1 March 2016.
[116] For these reasons, Ms Mitchell’s claim is dismissed in respect of the Property Decision. There is no evidence before the Court in relation to the items Ms Mitchell claimed were seized at Auckland Women’s Prison and it would be inappropriate, therefore, for me to reach any conclusions in respect of them.
PROCEEDING THREE: TRANSFER OF MS MITCHELL TO AUCKLAND
WOMEN’S PRISON (CIV-2016-485-269)
Pleadings
[117] Ms Mitchell seeks judicial review of the Transfer Decision (to move her from Arohata to Auckland Women’s Prison) on the grounds mandatory relevant
21 At [38].
22 Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 at [9].
considerations were not taken into account, alternatively that the Transfer Decision was unreasonable. She seeks a declaration to that effect.
[118] Ms Mitchell also claims the Chief Executive breached ss 5(1)(a), (c) and 6(h) of the Act because the treatment of Ms Mitchell was not humane and Ms Mitchell was engaged in a rehabilitation programme in Wellington which was vital to her chances of obtaining parole. Further, she claims the Chief Executive acted contrary to s 55(1) and (3) of the Act by failing to inform Ms Mitchell of her impending transfer and not allowing her a free telephone call to advise her family on arrival in Auckland. A declaration is sought.
[119] By the fourth cause of action, Ms Mitchell claims the Transfer Decision resulted in moving her peremptorily and failing to act in accordance with s 27(1) of NZBORA in that she was deprived of natural justice. She claims the mode of transport, which included her being handcuffed to a waist restraint padlocked at her back, contravened s 9 of NZBORA. In particular, this engendered passive resistance by Ms Mitchell which was then overborne by excessive force. There being no real security issues, conveying Ms Mitchell in that way for approximately eight hours with one break was cruel, degrading and disproportionately severe punishment. A declaration to that effect is sought.
[120] The defendant denies mandatory relevant considerations were not taken into account or the decision was unreasonable or illegal. The defendant says the travel arrangements for Ms Mitchell were in accordance with the prison services operations manual and did not breach her rights pursuant to NZBORA.
[121] The claim involves two separate matters: first, the Transfer Decision; and secondly the way in which Ms Mitchell was transferred to Auckland. As such, the affidavit evidence and assessment of the two matters will be considered separately.
(i) Transfer Decision Evidence
[122] Ms Mitchell had originally sought urgent relief in respect of the Transfer Decision on the basis her transfer to Auckland Women’s Prison adversely affected her chances of being paroled at her next hearing before the New Zealand Parole Board (the Parole Board) in August 2016. An urgent hearing was ultimately not required because on 1 July 2016 the Court of Appeal issued its decision on Ms Mitchell’s appeal against her conviction and sentence.23 The appeal against conviction was dismissed. The appeal against sentence was allowed and Ms Mitchell’s sentence of two years and three months’ imprisonment was set aside and substituted by a sentence of one year and seven months’ imprisonment. The effect of that was Ms Mitchell was no longer serving a long-term sentence and her release date was therefore no longer subject to consideration by the Parole Board.24 Instead, on serving half the short-term sentence, Ms Mitchell would be subject to immediate release. As a consequence, Ms Mitchell was released from Auckland Women’s Prison on 1 July 2016 but arrested and remanded in custody on further charges.
[123] Ms Mitchell said she was involved in a number of legal proceedings in Wellington in the civil and criminal jurisdictions which required her to be in Wellington for attendance and preparation. She had a substantive hearing in the High Court in which she was representing herself, scheduled for 12 April 2016, and a Court of Appeal hearing scheduled for 31 May 2016 and her Wellington-based lawyer wanted to spend time with her in preparation.
[124] Ms Mitchell also referred to her efforts at rehabilitation which she said were occurring in a good rehabilitative setting at Arohata where she was able to access very helpful counselling and had good support. She said:
Engagement in rehabilitation could well be pivotal in my forthcoming parole hearing in August.
23 Mitchell v R [2016] NZCA 299, [2016] NZFLR 487.
24 Parole Act 2002, s 4(1).
[125]Ms Mitchell considered Auckland Women’s Prison to be overcrowded and
she did not expect any rehabilitation to be available to her in the short term.
[126] Ms Mitchell was supported by her counsellor, Lynda Chisholm. She said she visited Ms Mitchell on a weekly basis. She had done so since November 2015 in her role as Ms Mitchell’s counsellor, something which was arranged through Ms Mitchell’s support people and not through Corrections. She had various exchanges with Mr Kerr, Residential Manager of Arohata, about a case management plan for Ms Mitchell. Ms Chisholm expressed the view:
… I fail to understand how transferring her to Auckland is going to help in both her rehabilitation and reintegration when all her support is here in Wellington.
Ms Mitchell engages well with counselling and I believe transferring her to Auckland is not in her best interests. For the first time, she has significant support here in Wellington and to deprive her of that, in my opinion, is not helpful to her rehabilitation in readiness for her eventual release back into society. Ms Mitchell and I have developed a good therapeutic relationship and I do not believe she will have that same opportunity in Auckland as this is counselling I do on a voluntary basis and not something authorised by the Corrections Department.
[127] Ms Chisholm filed a further affidavit after Ms Mitchell had been transferred to Auckland Women’s Prison on 12 April in which she outlined difficulties in counselling Ms Mitchell via telephone calls.
[128] Brian Hunter, a supporter of Ms Mitchell, also provided affidavits. He considered Ms Mitchell had no real support and the Department of Corrections was doing nothing to assist her in that regard. He spoke of initiatives he had put in place with the support group which consisted of himself, Ms Chisholm and an alcohol and drug clinician. He referred to what happened on 6 January 2016 in connection with Ms Mitchell’s then impending transfer to Auckland Women’s Prison, considering her self-harm was as a result of her distress at the prospect of being isolated from support. In his view Auckland Women’s Prison engaged in a proactive “and indeed aggressive” response to prevent Ms Mitchell from having contact with either Ms Chisholm or himself. In his opinion, Ms Mitchell’s mental health significantly deteriorated during the time she was at Auckland Women’s Prison and he was concerned for her wellbeing.
[129] Ms Mitchell objected to her preliminary security classification having been overridden from minimum to low-medium.25 Ms Mitchell said the override ensured she was not eligible for rehabilitation, reintegration programmes or accommodation units. In her opinion, her management plan was based around high security which could be better managed in Arohata than in Auckland Women’s Prison. She continued to dispute the claim of self-harm. She said there was no management plan for her at Auckland Women’s Prison.
[130] Ms Mitchell requested from the Chief Executive reasons for her transfer. She was advised:
The Chief Executive of the Department of Corrections or the Inspector of Corrections have not issued any directions in regards to your transfers of 6 January and 12 April 2016. Any directions issued in regards to a transfer is exercised under delegation by the Prison Director.
…
The reason you were transferred to AWRCF was mainly around your reintegration because it is unlikely you would be approved to reside in Wellington upon release due to concerns for your victim. These concerns are substantiated by instances where you have breached or attempted to breach the protection order in place, this indicates that your risk to the community may not be able to be mitigated should you be permitted to reside in Wellington post release.
[131] Ms Mitchell was also informed she was not given notice of the impending transfer until the morning it occurred, relying on s 52(2)(a) of the Act which provides prior notice is not required if a prisoner is expected to create a management difficulty before the transfer is made or as a result of the transfer.
[132] In his affidavit, the Prison Director referred to the original decision to transfer which was to have been implemented on 6 January 2016 and was forestalled by what was considered to be Ms Mitchell self-harming. He made the Transfer Decision under delegated authority from the Chief Executive.
[133]
His concern was to reduce the likelihood Ms Mitchell would reoffend on release by breaching the protection order. Given her victims were located in the Wellington region and she had a history of repeatedly breaching or attempting to25 This decision resulted in a complaint to the Ombudsman on 29 February 2016.
breach the protection order, in his opinion it was reasonable to decide not to plan for Ms Mitchell’s residence in the Wellington area or close to the Wellington region on release. He said:
… although Ms Mitchell was transferred to Arohata for the purpose of attending court appearances it was not intended that she remain at Arohata for the duration of her sentence.
[134] Ms Mitchell’s case manager in Arohata began meeting Ms Mitchell in early October 2015 to discuss rehabilitative options with her. However, the next meeting on 6 November 2015 was not so positive as Ms Mitchell did not want to discuss release proposals. She also said she was only interested in returning to Lower Hutt on release. Ms Mitchell thereafter continued to decline to engage with her case manager who wrote a parole report for the hearing on 5 January 2016 recording Ms Mitchell’s views and the concerns which were therefore held for the victim. She also noted a difficulty in Ms Mitchell’s participation in rehabilitative programmes was the result of her refusal to wear prison clothing, which limited the number of courses she could attend. For example the Living Without Violence course was in a low security area and prison clothing was required to be worn.
[135] The evidence was that those who contributed to the decision-making assessment decided moving Ms Mitchell to Auckland ahead of her release made it easier for her to establish the kind of connections with people outside the prison which would assist her reintegration into the community. While release and terms of release would be a matter for the Parole Board, they considered a key part of Ms Mitchell’s reintegration involved coming up with a realistic and credible release plan which would not be possible other than by release outside the lower North Island.
[136] While Ms Mitchell had her lawyer and counsellor(s) in the Wellington region, access to these people did not outweigh the other considerations, particularly given the use of audio visual link (AVL) and telephone to continue contact. Ms Mitchell had no identified contact person in the Corrections Management System,26 there
26 Although she did have a lawyer named as next of kin in her medical records.
were no family members listed as support in her offender management plan, and Mr Hunter and Ms Chisholm were approved specified visitors.
[137]Ms Mitchell’s legal proceedings were not seen as a barrier to the move given
the availability of AVL.
[138] Because Ms Mitchell was considered as having high and complex needs, the High and Complex Needs Panel provided advice on her management. The Panel included senior personnel, being the National Commissioner, the Chief Custodial Officer, the Chief Psychologist, the Manager of the High Risk Response Team and the National Health Services Manager. The Manager of the High Risk Response Team had particular expertise on possible parole conditions. The Panel discussed Ms Mitchell on 1 December 2015 and unanimously agreed she should be returned to Auckland Women’s Prison.
[139] Because of concerns about how Ms Mitchell would react, she was told of the move on the evening of 5 January 2016 and then the incident of 6 January prevented that decision being implemented. The Prison Director did not consider the incident of 6 January should mean Ms Mitchell should remain at Arohata and, once she was no longer considered as being at risk, planning for her transfer continued.
[140] Some of the staff involved in her care met on 22 February 2016 to discuss the transfer, including any implications for Ms Mitchell’s various legal proceedings. The High and Complex Needs Panel met on 15 March 2016 to consider the matter again. The Prison Director wanted to take time to be satisfied the arrangements for transfer were sufficiently detailed and for that reason he did not finally approve the transfer until April. He noted consultation and agreement on the plan took quite some time.
[141] The move took place on 12 April 2016 to allow Ms Mitchell’s attendance at a High Court hearing by AVL on 8 April 2016 and arrangements were made for an AVL from Auckland Women’s Prison to take place on 14 April 2016 for another Wellington High Court proceeding. Ms Mitchell’s boxes of legal papers travelled with her to Auckland to ensure availability.
[142] Ms Mitchell’s case manager also provided evidence about Ms Mitchell’s case management processes after her transfer to Auckland Women’s Prison, which showed his attempts to engage both Ms Chisholm and Mr Hunter. However Ms Mitchell did not want to engage with him. He said he was supportive of her engaging with a rehabilitative programme notwithstanding her sentence was under appeal and she would be provided an opportunity to work with the departmental psychologist even though the same limitation generally applied. In his opinion, therefore, all efforts were made to enable Ms Mitchell to avail herself of rehabilitation at Auckland Women’s Prison.
[143] In Auckland Ms Mitchell had access to her legal documents stored in a separate cell and indeed she was offered a typewriter. Contact with her lawyer was enabled through an interview room phone and Court appearances via the AVL suite.
[144] Ms Mitchell refused to engage with Ms Chisholm for counselling over the phone or via AVL.
Analysis
Were mandatory relevant considerations taken into account?
[145]Section 54 of the Act covers prisoner transfers as follows:
54 Reasons for transfer
(1)A prisoner may be transferred by the chief executive from one prison to another for 1 or more of the following reasons:
(a)to assist in reducing the likelihood of reoffending by the prisoner:
(b)to assist in facilitating the—
(i)rehabilitation of the prisoner; or
(ii)reintegration of the prisoner into the community on his or her release:
(c)to place that prisoner in a prison closer to his or her family:
(d)to respond to the needs of that prisoner, as identified in the management plan:
(e)to ensure the safety of that prisoner or any other person:
(f)to implement a change in the security classification of that prisoner:
(g)to provide medical or psychiatric care for that prisoner:
(h)to reduce the risk of self-harm by that prisoner if he or she is identified as being at risk:
(i)to reduce the risk to that prisoner if he or she is identified as being vulnerable to mistreatment by other prisoners:
(j)to grant a request by a prisoner for a transfer.
(2)A prisoner may be transferred by the chief executive from one prison to another in order to ensure compliance with the requirements of this Act or any regulations made under this Act concerning—
(a)the separation of convicted prisoners from accused prisoners; or
(b)the separation of prisoners who are under a specified age from prisoners who are of or over that age.
(3)A prisoner may be transferred by the chief executive from one prison (the first prison) to another prison—
(a)to restore or maintain the security and order of the first prison:
(b)to enable effective management of the national prisoner muster:
(c)to allow repairs or alterations at the first prison:
(d)in response to the closure or change of use of the first prison or part of that prison.
(4)When considering whether to transfer a prisoner for 1 or more of the reasons set out in subsection (1) or when considering how a transfer for 1 or more of the reasons set out in subsection (2) or subsection
(3) is to be effected, the chief executive must, as far as is reasonably practicable, have regard to—
(a)the desirability of providing the least restrictive environment for the prisoner that is consistent with the maintenance of public safety and the safety of staff members and other prisoners; and
(b)the need to facilitate the rehabilitation and reintegration of the prisoner into the community, taking into account the availability and location of appropriate services and programmes that will contribute to the achievement of those objectives; and
(c)the desirability of ensuring that the prisoner is detained at a location as close as is practicable to his or her family.
(5)A decision by the chief executive to transfer a prisoner must be made in the prescribed manner.
[146] These provisions are repeated in the prisons services operations manual. The factors set out in s 54(4) are of particular relevance in this case, being the desirability of providing the least restrictive environment consistent with the maintenance of public safety, the need to facilitate rehabilitation and reintegration and the desirability of ensuring prisoners are detained as close as practicable to family.
[147]Ms Mitchell’s views as to where she would live on her release were widely
known. She came from Lower Hutt and intended to return there.
[148] The decision of the Parole Board dated 5 January 2016 is instructive. It recorded Ms Mitchell’s offending reflected a continuing pattern of breaching a protection order issued in respect of a former partner and his current partner and that Ms Mitchell’s risk score represented a lengthy history of offending which began in 1989. The Parole Board had informed Ms Mitchell of a meeting with one of her victims who expressed the hope Ms Mitchell would engage in rehabilitation, end the harassment and get on with her life. The Board was made aware of a release proposal based on an Eketahuna address. The Board decided as follows:
9.Having regard to the offending that brought her to prison and her history of offending, the Board is not satisfied on the information before us that Ms Mitchell would not pose an undue risk to the safety of the community if she were to be released. Without significant intervention, we are far from satisfied that the release conditions that counsel and Ms Mitchell indicated were accepted, together with the limited support that is available to her, would sufficiently mitigate her risk of further offending. Parole is declined.
[149] Ms Mitchell had appeared before the Parole Board on 4 December 2014 for the fixing of special conditions when a previous sentence expired on 1 January 2015. The Board was, however, aware she had other cases pending and it was unlikely she would be released because she was in custody on those other charges. The Board noted Ms Mitchell was fully aware she was not to approach the victims and not to travel south of Levin in the North Island without permission in advance from her probation officer.
[150] Ms Mitchell relied on that earlier decision to suggest the Parole Board had previously supported her release in Eketahuna. That submission needs to be taken with a grain of salt, however, because since that time Ms Mitchell was convicted and sentenced on the large number of charges, the sentence for which she was serving at the time of the Transfer Decision. It is impossible to speculate whether the Parole Board would have approved her release to an address in Eketahuna in those circumstances. Indeed, further weight against that possibility comes from the decision of the sentencing Judge, whose comments remain valid notwithstanding the Court of Appeal reduced the sentence.
[151] When sentencing Ms Mitchell on five counts of breaching a protection order, 55 counts of attempting to breach a protection order and one count of attempting to threaten to kill, Judge Kelly said the following:27
[3] By way of background, you were in a relationship with the complainant which commenced in about 2002. After your relationship came to an end the complainant obtained a protection order against you which was made final in April 2008. A condition of that protection order was that you were not to contact the complainant.
[4] Between November 2013 and May 2015 while you were in prison, you wrote 60 letters to the complainant. Five of those letters were delivered to the complainant’s address. 55 of the letters were intercepted in the prison mail system.
[5] Some of the letters were signed by you. Others have you as the sender. The letters are abusive and threatening. The letters make reference to your relationship with the complainant, the complainant’s previous and current partners and your experience with the criminal justice system. The language and content used on the envelopes and in the letters that gave rise to the charges is extreme. They include calling the complainant a “Fuckwit” and a “cunt”.
[6] The attempted threat to kill was contained in a letter together with a stick figure diagram attached to the letter. Included in the letter were the following statements: “Dear Fucker, Arsehole, are you dead yet?” “Why don’t you fuck off?” “You’d better fuck off before I get out.” “If I ever hated someone in my whole life it’s you, cunt.” “You fucked my family over so I’ll fuck you over so you’re dead.”
[7] The stick figure diagram contains the words, “Shoot you in the fucking head” with a cross drawn in the forehead of the stick figure. It also contains the words, “Cut your throat” and rippling lines are drawn over the throat of the stick figure. The words “Stab you cunt,” and “Dead man walking,” are also written beside the stick figure diagram.
27 R v Mitchell [2015] NZDC 23977.
[8]The effect of your offending on the complainant is severe.
[9] In his victim impact statement, the complainant says that he obtained a temporary protection order against you in November 2007, and included his fiancé as a protected person in May 2010 due to your ongoing stalking behaviour. He says it has now been eight years since the order was made, but you continue to stalk him and his fiancé. He says you stalk him not only in the criminal Court but through the Family Court as well, filing multiple applications.
[10] The complainant says that on 23 November 2015, the day you were found guilty of the current charges, you filed more Family Court proceedings in an effort to have the protection order removed. The complainant says your actions are unrelenting and he and his fiancé feel persecuted.
[11] In relation to emotional harm, the complainant says that he moved house to try and keep him and fiancé safe. He did everything possible to keep their home address confidential. He says that he cannot express to the Court how incredibly stressful it has been to have ongoing victimisation.
[12] The complainant says it has been suggested that they move to Australia, but as both he and his fiancé are Wellington born and bred, their families are here and their social and business networks are here they do not feel that they should be further victimised, by having to leave everything by moving from Wellington.
[13] The complainant says that in the past he only felt safe when you were in prison, but the reality is that you have managed to get to him from prison by writing abusive correspondence to him from prison. The complainant says that each time he reports a breach of the protection order it is with the knowledge that at some point in time he can expect to have to face you in Court and give evidence. He says he cannot stress enough how difficult he finds this process.
[14] The complainant says he has had to live with this stress for ten years. He says there are times when he is apprehensive and uneasy and fearful of what the future may bring. He says this is a nightmare that just continues.
[152] Judge Kelly referred to two Court of Appeal decisions involving prior sentences imposed on Ms Mitchell. She noted it was while serving those sentences that the offending to be sentenced in breach of the same protection order in relation to the same victim occurred.
[153] Those sentencing remarks are important context to the Transfer Decision. The evidence discussed above confirms the Prison Director did consider the mandatory relevant considerations under s 54. As outlined above, the Transfer Decision was a reasonable one made consistently with the Act and in particular s 6.
[154] Opportunities for counselling and participation in programmes were available to Ms Mitchell in Auckland Women’s Prison. It was her choice whether or not to avail herself of those opportunities. The fact she chose not to does not mean the Transfer Decision was wrong. As noted above, a prisoner has no legitimate expectation of maintaining the same or similar conditions during the whole of a sentence or being provided with the same or similar programmes or opportunities.28 Ms Mitchell’s concern that the transfer was contrary to her transferability rating index score – an internal index to ensure consistency between transfer decisions – is misplaced. It was but one aspect to be taken into account and is, in my assessment, overwhelmed by other relevant factors.
[155] Furthermore, a decision to transfer a prisoner to another prison is an operational decision and the courts should be slow to interfere with such decisions about day to day prison management, as has been discussed above.
Was the Transfer Decision unreasonable?
[156] While it is possible to question the Transfer Decision, in particular given Ms Mitchell’s known vehement opposition to it, it is clear the Prison Director was aware of his statutory obligations and took into account relevant matters. It was a decision open to him. Ms Mitchell’s claim focuses solely on her own interests. The decision is not, however, confined to Ms Mitchell’s interests. It was entirely reasonable for the Prison Director (and indeed mandatory given s 6(1)(b) of the Act) to consider the interests of the victims of Ms Mitchell’s offending. In addition, on an objective basis, he can be seen to have considered the best interests of Ms Mitchell in that she would be most likely to receive parole were she to reside well away from the victims. It cannot be said, therefore, in Wednesbury terms,29 as Ms Mitchell submitted, that the decision was unreasonable.
[157]
Ms Mitchell said a transfer to Auckland Women’s Prison could not be considered to prevent further offending. She said this for two reasons, first that if she were on release in Auckland with no support people, she might be forced into criminal activity in order to obtain money. Secondly, she said she would inevitably28 Corrections Regulations 2005, r 196.
29 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).
breach her release conditions to live in a certain area because she would travel to Wellington. I agree with Ms Carrad for the defendant that the threat of breaking the law cannot be used as an argument in support of an allegation a decision itself is unreasonable. It is quite proper for the authorities to assume a prisoner is capable of reform and should be given the opportunity to do so.
[158] While from Ms Mitchell’s perspective, the Transfer Decision was unreasonable, it cannot be said to be so in the context of all the matters the Prison Director was required to weigh up. Indeed, it could be said this was the one opportunity to try and persuade Ms Mitchell to live outside of the lower North Island and thereby enable both her and her victims to move on with their lives.
Was the Transfer Decision illegal?
[159] I have already referred to the need to protect Ms Mitchell’s victims pursuant to s 6(1)(b) of the Act. The question of whether the Transfer Decision was “humane” involves a consideration of the context and the need to balance other considerations.30 Assisting Ms Mitchell’s rehabilitation and reintegration pursuant to s 5(1)(c) has already been discussed with reference to the availability of programmes at Auckland Women’s Prison.
[160] The fact Ms Mitchell was not given seven days’ prior notice of the transfer was permitted pursuant to s 55(2) of the Act. Ms Mitchell’s past behaviour confirms the Prison Director was entirely justified in not giving Ms Mitchell prior warning of the transfer.
[161] It does appear s 55(3) was not complied with in that on arrival in Auckland Ms Mitchell was not allowed one free phone call that night. She did, however, speak to her support person the day following. The extent of any alleged breach of s 55(3) was clearly at the most minor level.
30 Referring to Corrections Act 2004, s 5(1)(a).
Was the Transfer Decision in breach of Ms Mitchell’s right to natural justice under
s 27(1) of NZBORA?
[162] The requirements of natural justice depend on context and vary with the power which is exercised and the circumstances.31
[163] The difficulty with Ms Mitchell’s wish to have input into the Transfer Decision is again the context. Her earlier reaction to relocation led her to self-harm (or Arohata had good reason to believe she did) and there is no doubt her attitude to the move to Auckland was well known. These factors contributed to the decision not to give her seven days’ advance notice as already discussed.
[164] Again, as already discussed, the first opportunity Ms Mitchell had to contact a support person was the day following her arrival at Auckland Women’s Prison; contact was delayed but it was allowed. There is no allegation that thereafter she was precluded from contacting her lawyer.
[165] Ms Mitchell requested the reasons for her transfer and said the response was not received within a month of request, being a contravention of s 56(3) of the Act. This was a breach of the statutory timeframe but does not amount to a breach of her rights to natural justice. There was no right to appeal the Transfer Decision.
[166] I do not accept Ms Mitchell’s ability to participate in legal proceedings was adversely affected by the transfer to Auckland Women’s Prison. She was able to use the AVL suite, the same facility she had available to her at Arohata. A complaint about participation by AVL was addressed by a High Court Judge who was satisfied AVL did not put her at a disadvantage.32 Ms Mitchell had access to her legal papers which travelled to Auckland with her and were made available to her in an adjoining cell.
31 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
32 Mitchell v Brown HC Wellington CRI-2016-485-20, 31 May 2016 (Minute of Davidson J) at [5].
[167] Finally, and although in fact as events transpired it was moot, Ms Mitchell did have a right to be heard at her Parole hearing and there is nothing to indicate this would not have occurred.33
(ii) Transfer to Auckland Women’s Prison Evidence
[168]Ms Mitchell described the events of 12 April as follows:
10.On the morning of 12 April 2016 prison guards came to my cell and informed me I was going to be transferred. I responded that I would need time to gather my belongings. Within approximately five minutes, at 8:30 am the Tactical Response Team (Control and Restraint) all being male prison officers came to my cell. I was asked if I was going to be compliant. I replied in the affirmative but because of the officer’s Darth Vader headgear I don’t think he heard me and he asked me again if I was going to be compliant, this time in a louder voice. I again responded in the affirmative. I was then attacked by the Tactical Response team and received multiple abrasions and bruising. I resisted a grab to my throat and then adopted passive resistance. Annexed hereto and marked “Exhibit “B” are photos and medical report of my injuries taken by medical staff at [Auckland Women’s Prison].
…
12.I was placed in the “secure vehicle” (a single compartment inside the vehicle), which was parked inside the sally port, immediately outside the Receiving Office holding cells. I was then driven to [Auckland Women’s Prison]. My hands were handcuffed to the waist restraint for the entire journey – Tawa to Tongariro Prison to [Auckland Women’s Prison] (8 hours) travel in a single cell compartment. The waist restraint was removed for one half hour in Tongariro whilst I was in the secure Receiving Office holding cell for toilet and lunch break. Having one’s hands bound in this manner for such a time is extremely uncomfortable, one is locked into a single position and one cannot relieve itches. The padlock at the back of the waist restraint makes it painful to sit properly and after a period is similarly very uncomfortable.
13.On arrival at [Auckland Women’s Prison]I was not allowed to make
a telephone call as provided by s 55(3).
[169]Ms Mitchell’s initial security classification was minimum but this was
overridden by Arohata to low-medium. Ms Mitchell complained about that and
33 Parole Act 2002, s 49(3).
applied for a reclassification in February 2016. Her classification remained low-medium, referring to an outstanding charge she faced at the time.
[170] Ms Mitchell said, given her security classification, only handcuffs should have been used and the use of force by the control and restraint team (C&R Team) caused undue pain and suffering. She said there was one break only at the Tongariro Prison for lunch. The use of the waist restraint, in particular, when travelling in the small cell of the prisoner escort vehicle (PEV), caused unnecessary discomfort throughout the journey from Arohata to Auckland.
[171] When making submissions, Ms Mitchell pointed out that Auckland Women’s Prison apparently does not use waist restraints and ordinarily there would be a handover between prisons at Tongariro. This would have meant the second half of her trip, when accompanied by officers from Auckland Women’s Prison, would not have involved the use of a waist restraint. In this case, the PEV took Ms Mitchell all the way to Auckland and she was therefore wearing a waist restraint for the entire journey. However, there was no evidence before the Court as to Auckland Women’s Prison’s policy.
[172] The Residential Manager at Arohata had oversight of the events of the morning of 12 April 2016. He said the planning for Ms Mitchell’s transfer to Auckland took into account that she had previously taken action to avoid transfer by self-harming. There was a concern she would do something similar if given advance notice and that she would resist once she was to be taken from her cell to the PEV. The Operational Order dated 12 April 2016 addressed the transfer, describing the mission as:
To successfully complete the transfer of identified Prisoner from Arohata
Women’s Prison to [Auckland Women’s Prison] without incident.
[173] The execution part of the Operation Order detailed the steps to be taken and provided for the C&R Team to be on standby if required. There was an associated Transfer Plan, which did not exempt Ms Mitchell from the requirement to be handcuffed to a waist restraint because of her past behaviour of self-harming.
[174] The Prison Director approved the Transfer Plan. His and other evidence showed quite some thought went into the Transfer Plan, including whether a nurse should accompany Ms Mitchell. As three Corrections officers were required to accompany her, there was insufficient room. However, it was decided at least one of the escorting staff had to be first aid trained and the PEV should have a full first aid kit. Consideration was also given to whether Ms Mitchell could fly but, given a previous incident involving her behaviour, she was prevented from using Wellington Airport.
[175] The leader of the C&R Team gave affidavit evidence and viewed the CCTV footage of the events of the morning of 12 April 2016 to refresh his memory. He outlined the preparation the day before, when he and his team discussed what might happen and how they would need to respond. Four team members were involved. There were two phases, the first being moving Ms Mitchell from her cell in the secure unit to a cell in the receiving office. This went relatively smoothly. All four team members wore full face helmets, vests, gloves, knee pads and shin pads, which is standard attire for the C&R Team. Ms Mitchell agreed to move peacefully and followed instructions to walk to the receiving office. She was then left there for a period.
[176] The second phase involved moving Ms Mitchell from the receiving office to the PEV. This involved fitting her with a waist restraint and handcuffs before leaving the receiving office, which was the last secure part of the building.
[177] Ms Mitchell had been given breakfast in the receiving office but instead of eating it, threw it against the walls and floor of the holding cell and urinated in the corner of the cell. When an officer approached to put a waist restraint on Ms Mitchell, she refused to wear it, saying she was “low-medium” and did not have to. She continued to refuse.
[178] Ms Mitchell actively resisted attempts to fit the waist restraint by curling up and folding her arms. The Residential Manager said:
It was a very difficult task. I was concerned that because of Ms Mitchell’s size and the resistance she was giving if the C&R Team continued there was a risk she could become injured.
[179] Because of his concerns, the Residential Manager contacted the Prison Director and the decision was taken to continue. The waist restraint was fitted and Ms Mitchell was handcuffed to the waist restraint. The C&R Team then walked Ms Mitchell to the PEV.
[180] There was then another prolonged period of resistance. In order to avoid further problems, the decision was taken to remove the emergency hatch at the back of the cell of the PEV. Ultimately this succeeded. The team leader described it as follows:
In total it took about 10 minutes and 30 seconds to load Ms Mitchell securely into the PEV. It took this long because we were trying to use the minimum force required to load Ms Mitchell into the PEV while keeping her and us safe.
[181] One of the registered nurses who was the team leader in the health centre of Arohata observed the C&R Team. She was there as a precaution in case Ms Mitchell sustained any injuries which required medical attention. She recorded in Ms Mitchell’s medical history that no visible injuries were apparent but Ms Mitchell might have sustained bruising during the period the C&R Team was involved. She emailed the health centre at Auckland Women’s Prison to advise them of that, saying Ms Mitchell would need a full assessment on arrival.
[182] All staff involved took part in a debrief afterwards. The C&R Team also completed incident reports and were consistent in their explanation of events. An entry was made in the “Use of Force Register approval for/report on” the use of a mechanical restraint in respect of the waist restraint and handcuffs. In fact, approval had been given earlier through the Prison Director’s approval of the Transfer Plan and the Operational Order for transfer.
[183] The senior tactical advisor for the C&R Team reviewed the CCTV footage and considered the team took a cautious approach, giving clear and concise verbal instructions and providing Ms Mitchell with opportunities to move peacefully and
comply. In his opinion the team controlled her in a manner which was not aggressive and which minimised pain. He addressed the issue complained of by Ms Mitchell where she alleged a team member put a hand across her throat. The senior tactical advisor suspected the team member had one hand splayed across the side of Ms Mitchell’s face to control her. He said this was normal procedure where a prisoner’s head cannot be cradled. In conclusion he considered the C&R Team acted with consideration and used options which took a longer time but involved a lesser degree of force.
[184] Ms Mitchell made a complaint of excessive force to the New Zealand Police. The complaint was investigated by the Kapiti Mana Police and a Detective Senior Sergeant viewed the CCTV footage. He was of the opinion there was insufficient evidence the force applied was excessive, saying:
In respect to your first allegation of excessive force against the C and R team, I do not agree with you. You were provided with clear and concise instructions and the force used to escort you to a holding cell was minimal. In my view the force used was proportionate and reasonable in the circumstances.
In respect to your allegation of excessive force used against you in firstly attempting to apply a waist restraint to you and secondly attempting to get you in the escort van, I accept there was a reasonable amount of force used against you that would have resulted in the bruising and injuries I have observed, from photographs taken of you.
However, I consider this force was in direct response to passive and active resistance by you in not complying with instructions given. The first I observed on the footage was both proportionate and reasonable to the resistance offered by you, and was in direct response to this resistance.
Analysis
[185]The Operational Order and Transfer Plan were detailed and well thought out.
[186] Having viewed the CCTV footage, I concur with the evidence on behalf of the defendant that Ms Mitchell was not attacked by the C&R Team and that she did not have to resist a grab to her throat.
[187] Ms Mitchell’s resistance was evident from the CCTV footage, as were her continued struggles and screams. In my assessment the C&R Team took things as
calmly and gently as possible and indeed on a number of occasions the team leader assured his staff there was no need to rush and they had all day.
[188] The footage of the incident was confronting. However, I agree with the team leader that the team acted with consideration and the minimum force necessary in the circumstances.
[189] The use of force and restraints is dealt with in the Act and the Corrections Regulations 2005. An officer may only use physical force in dealing with a prisoner if he or she has reasonable grounds for believing the use of physical force is necessary, as relevant in this case, in the case of active or passive resistance to a lawful order.34 Any officer who uses physical force in those circumstances may not use any more physical force than is reasonably necessary.
[190] Corrections has a policy for the use of force on prisoners: the “IR.02 Incident Response”. The policy complies with the requirements of the Act and requires approval for the planned use of the C&R Team, deployment of it and for an incident response to be provided after its use.
[191] Restraint of prisoners is dealt with in s 87 of the Act and the use of a mechanical restraint is subject to any conditions or restrictions specified in the Corrections Regulations. A waist restraint is a mechanical restraint and, pursuant to s 87(4), must be used in a manner which minimises harm and discomfort to the prisoner.
[192] The Corrections Regulations govern the use of force, mechanical restraints and reporting of the use of each.35
[193] The use of waist restraints was added to the Corrections Regulations by the Corrections Amendment Regulations (No 2) 2007. Schedule 5, cl 15B provides a waist restraint must not be fitted so as to cause undue discomfort to the prisoner. A waist restraint is defined in cl 16 as:
34 Corrections Act 2004, s 83(1). An officer is defined in s 3(1).
35 Corrections Regulations 2005, rr 119, 128 and 129. Section 88 of the Corrections Act 2005 requires such reports pursuant to the Corrections Regulations.
Waist restraint means a belt—
(a)designed to be worn around the prisoner’s waist; and
(b)to which the prisoner’s wrists are secured by handcuffs that are
attached or fastened to the belt.
[194] Regulation 25 allows a waist restraint to be used in conjunction with handcuffs for the purpose of escorting a prisoner outside of a prison.
[195] The Chief Executive has issued the prison services operations manual under s 196 of the Act which sets out guidelines on the use of restraints for escorts or transfers. Policy M.04.02.01 provides prisoners travelling in a single cell vehicle and with a security classification of low-medium must be handcuffed throughout the journey. Under policy M.04.02.03, the Prison Director or other delegated officer may direct waist restraints will not be applied to prisoners who are being escorted in a single cell vehicle but clearly that did not apply in this case. Indeed, none of the other exceptions applied to Ms Mitchell either.
[196] The policy requires approval for planned use of force and policies on the deployment of planned use of force. I am satisfied from having viewed those policies that they were complied with.
[197] The essence of Ms Mitchell’s claim is that a padlock is a mechanical restraint which has not been approved pursuant to s 87 and the use of which is not humane in the circumstances of an eight hour road trip from Wellington to Auckland in a single cell unit.
[198] Ms Mitchell herself referred to the reason why a padlock was required. She explained slim women can escape from the handcuffs and turn and undo the belt. She said by a padlock being put onto the belt at the back, even if a prisoner escapes the cuffs, she cannot undo the belt. The padlock is simply the means by which the belt is fastened.
Was the use of force or the use of the waist restraint cruel, degrading or disproportionately severe treatment or punishment, or a failure to respect Ms Mitchell’s inherent dignity?
[199]Ms Mitchell’s claim is under s 9 of NZBORA but in her submissions she
advanced an argument under s 23(5).
[200] The relationship between ss 9 and 23(5) of NZBORA was addressed by the Supreme Court in Taunoa v Attorney-General.36 The majority, each expressing it slightly differently, considered s 9 is concerned with conduct which is to be “utterly condemned as outrageous and unacceptable in any circumstances” whereas s 23(5) “proscribes conduct which is unacceptable in our society but of a lesser order, not rising to a level deserving to be called outrageous”.37
[201] I am satisfied the use of force by the C&R Team while moving Ms Mitchell from her cell in the secure unit to the PEV did not amount to conduct which should be utterly condemned as outrageous and unacceptable in any circumstances. The same comment applies to use of the waist restraint. The conduct can also be contrasted with much more serious conduct in Falwasser v Attorney-General where the s 9 threshold was not met.38 Likewise in Reekie v Attorney-General where the High Court found no breach of s 9 where Mr Reekie had been restrained by his ankles on a tie-down bed, held in an isolation cell without windows, denied recreation time and strip searched on a routine basis.39
[202] In the case of Attorney-General v Udompun,40 the Court of Appeal considered a claim under s 23(5) of NZBORA as to whether a Thai woman arriving in New Zealand had been treated with humanity and respect for the inherent dignity of the person. Mrs Udompun had been held at a police station and the focus of the alleged breach was the failure to provide her with sanitary products, exacerbated by the failure to provide her with a shower, a change of clothes and food. The Court of Appeal began its discussion about fundamental human dignity with reference to the
36 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
37 At [170].
38 Falwasser v Attorney-General [2010] NZAR 445 (HC).
39 Reekie v Attorney-General [2012] NZHC 1867.
40 Attorney-General v Udompun [2005] 3 NZLR 204 (CA).
Kantian philosophy requiring people to treat every human being as an end, not a
means, and a quotation from Ronald Dworkin’s Taking Rights Seriously:41
Anyone who professes to take rights seriously, and who praises our Government for respecting them, must have some sense of what that point is. He [or she] must accept, at the minimum … the vague but powerful idea of human dignity. This idea, associated with Kant, but defended by philosophers of different schools, supposes there are ways of treating a [person] that are inconsistent with recognising [that person] as a full member of the human community, and holds that such treatment is profoundly unjust.
[203] They then discussed the notion of fundamental human dignity in the context of Canadian jurisprudence and notions of self-respect and self-worth. The guidance is helpful.
[204] I have already discussed the behaviour of the C&R Team who in my assessment strived to maintain Ms Mitchell’s dignity in extremely difficult circumstances.
[205] I have no doubt the trip from Wellington to Auckland was uncomfortable for Ms Mitchell. To be restrained for that period in a small cell is not on the face of it how a person should be treated. However, the situation must be considered in context. Although Ms Mitchell was unhappy with her security classification, it was one open to Arohata in the circumstances and the travel arrangements were reasonably made in that context. I questioned whether air travel might have been a preferable option but this was not available because of a previous incident involving Ms Mitchell.
[206] Again as already discussed, the use of force and waist restraints was authorised by and consistent with the legislation. The decision to use a waist restraint was taken given Ms Mitchell’s past behaviour and what was reasonably interpreted as her previous attempts to stop her transfer to Auckland.
[207]In the circumstances, the treatment was not unacceptable in our society.
41 Ronald Dworkin Taking Rights Seriously (Harvard University Press, Cambridge (MA), 1977) at 198 as cited in Attorney-General v Udompun, above n 40, at [200].
[208] I do not propose to address Ms Mitchell’s submissions to the effect her treatment when moved from her cell and into the PEV was a breach of her right to be free from unreasonable search or seizure in breach of s 21 of NZBORA or that her rights under s 22 were breached when being moved from one place to the other. The claims were not supported by pleadings or fact. A change in her conditions of imprisonment does not create a new detention.42
[209]For the reasons given, this claim is dismissed.
Result
[210] Ms Mitchell is capable, intelligent and able to engage well with others, as demonstrated by the way in which she conducted her claims. There is, however, another side to her which those working in Arohata had to manage. The decisions and actions about which she complains had to be considered in that context.
[211]For the reasons given, the three claims are dismissed.
[212] In Ms Mitchell’s circumstances, there would seem little point in the respondents/defendant pursuing costs. However, any such application should be filed and served within 28 days, with any response 14 days thereafter. A decision will be made on the papers.
Thomas J
Solicitors:
Crown Law, Wellington
42 Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA).
0
6
0