the Judicature Amendment Act 1972 and the New Zealand Bill of Rights Act 1990
BETWEEN
KERRYN MITCHELL
Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
Hearing:
5 July 2017
Counsel:
G H Allan for Plaintiff R S May for Defendant
Judgment:
30 August 2017
JUDGMENT OF THOMAS J
Table of Contents
Introduction............................................................................................................. [1] The Decision............................................................................................................. [9] Were the searches unreasonable?........................................................................ [18]
MITCHELL v ATTORNEY-GENERAL [2017] NZHC 2089 [30 August 2017]
Introduction
[1] On 15 July 2010 the plaintiff, Kerryn Mitchell, was a sentenced prisoner at Arohata Prison, Wellington (the Prison). A prison guard received information there were illegal drugs in the Fergusson Wing of the Prison. A decision was taken to strip search the 16 inmates of the Fergusson Wing, including Ms Mitchell. The prisoners were directed to accompany Department of Corrections (Corrections) officers from the Fergusson Wing to the Prison’s Visiting Centre. They were then informed they were to be strip searched. Ms Mitchell started passive resistance at the time of being directed to the Visiting Centre. She was taken to a booth cell within the search area of the Visiting Centre. She continued her passive resistance and told Corrections officers she would actively resist any strip search. A decision was taken that she should instead be subject to a rub-down search, with which she complied. All the other prisoners were strip searched.
[2]No illegal drugs were found either on the prisoners or in their cells.
[3] By her statement of claim, Ms Mitchell seeks judicial review of the alleged unlawful exercise of strip search powers on the prisoners and seeks a declaration the Corrections officers acted unlawfully. By her second cause of action, Ms Mitchell claims the Corrections officers had no lawful authority to strip search her or the other prisoners and no lawful authority to detain them, and claims the Corrections officers effected unreasonable searches and arbitrary detentions in breach of ss 21 and 22 of the New Zealand Bill of Rights Act 1990 (NZBORA). She seeks declarations to that effect.
[4] In submissions on Ms Mitchell’s behalf at the hearing, her claim was framed in different terms as follows:
(a)The decision to subject her and the other prisoners in the Fergusson Wing to a strip search (the Decision) was contrary to the requirements of s 98(3) of the Corrections Act 2004 (the Act) and therefore unlawful.
(b)The strip searches of the other prisoners and the attempted strip search of her were unreasonable under s 21 of NZBORA and gave rise to arbitrary detention under s 22.
[5] I will return to the differences between the claim and the way the case was presented later in this decision.
[6] The defendant, noting the proceedings commenced over five years after the events in question and Corrections staff concerned have no real memory of the events,…
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.
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AGLC
Mitchell v Attorney-General [2017] NZHC 2089
Case
[2017] NZHC 2089
Decision Date
CaseChat Overview and Summary
In Mitchell v Attorney-General, the plaintiff, Kerryn Mitchell, sought judicial review of the decision by Corrections officers to conduct strip searches on 16 female inmates at Arohata Prison, Wellington. The searches were conducted on 15 July 2010 after a prison guard received information that there were illegal drugs in the Fergusson Wing of the prison. The plaintiff, Ms Mitchell, was one of the inmates selected for the strip search but resisted and was instead subject to a rub-down search. The defendant, the Attorney-General, accepted the decision to conduct the strip search was unlawful as there were no reasonable grounds to believe that any of the prisoners were in possession of illegal drugs. The Court found the decision to conduct the strip search was unlawful and unreasonable under the Corrections Act 2004 and the New Zealand Bill of Rights Act 1990. The Court rejected the defendant's argument that a declaration of illegality should be declined because the question was moot as regards Ms Mitchell who was subject to a lawful rub-down search which she did not challenge. The Court held that Ms Mitchell had standing to bring the proceedings and that a declaration was warranted to hold Corrections to account and to guide future decisions. The Court made a declaration that the strip search of the women in the Fergusson Wing, Arohata Prison, Wellington on 15 July 2010 was unlawful and in breach of s 21 of the New Zealand Bill of Rights Act 1990.