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 Respondent

THE 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mitchell v Attorney-General

Details

AGLC: Mitchell v Attorney-General [2017] NZHC 2118
Case: [2017] NZHC 2118
Decision Date: 1 September 2017

CaseChat Overview and Summary

Kerryn Mitchell was held in Arohata Prison from 1 January 2015 to April 2016. She brought three claims against the Attorney-General, the Chief Executive of the Department of Corrections, the Prison Director of Arohata, and the Prison Director of Auckland Women’s Prison. The first claim concerned Ms Mitchell’s placement and treatment in the At Risk Unit (ARU) at Arohata. She claimed her treatment in the ARU was a breach of her right to be secure against unreasonable search or seizure and a breach of the right to the observance of the principles of natural justice. The respondents argued 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. The second claim concerned the consequences of injuries Ms Mitchell suffered on 6 January 2016. Ms Mitchell’s electric jug was removed from her cell and not returned to her. She claimed 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. The respondent argued the decision was lawful and reasonable and was part of the day to day operational decisions concerning prison management which are not susceptible to judicial review. The third claim concerned the circumstances of Ms Mitchell’s transfer to Auckland Women’s Prison on 12 April 2016. Ms Mitchell claimed the decision to transfer her (the Transfer Decision) was unlawful and unreasonable. It breached her right to natural justice and subjected her to cruel, degrading and disproportionately severe treatment. The defendant argued the Transfer Decision was reasonable and made after consideration of all relevant matters. The court dismissed all three claims. The court found Ms Mitchell’s placement in the ARU was not unreasonable or in breach of her rights. The decision to seize Ms Mitchell’s electric jug was lawful and reasonable and not subject to judicial review. The Transfer Decision was lawful and reasonable. The transfer was not cruel, degrading or disproportionately severe treatment.

Orders