Mitchell v Chief Executive of the Department of Corrections
[2017] NZHC 2091
•30 August 2017
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2016-485-56
[2017] NZHC 2091
UNDER the Judicature Amendment Act 1972, Section 4 - Application for Review IN THE MATTER
of an Application for Judicial Review and Relief
BETWEEN
KERRYN MITCHELL
Plaintiff
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Defendant
THE VISITING JUSTICE, AROHATA PRISON
Second Defendant
Hearing: 7 August 2017 Counsel:
Plaintiff in Person
D Harris and A Dixon-Blake for First Defendant No appearance by Second Defendant
Judgment:
30 August 2017
JUDGMENT OF THOMAS J
Introduction
[1] In 2015 Ms Mitchell was a prisoner held on remand in Arohata Prison, Wellington (the Prison). She faced five charges of breaching a protection order, 55 charges of attempting to do so and one charge of attempting to threaten to kill. Ms
MITCHELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZHC 2091
[30 August 2017]
Mitchell was found guilty of the charges and in December 2015 became a sentenced prisoner on a sentence of two years and three months’ imprisonment.1
[2] An internal disciplinary charge was laid and served on 10 June 2015 alleging Ms Mitchell had, on 5 June 2015, behaved in a threatening manner (the Charge). The Charge was referred to a Visiting Justice appointed under s 19(2) of the Corrections Act 2004 (the Act). Ms Mitchell was found guilty of the Charge on 21 January 2016 and sentenced to 10 days’ cell confinement and 35 days’ loss of privileges.
[3] Ms Mitchell applies for judicial review of the procedure and outcome on the grounds of illegality, unfairness and unreasonableness. She seeks declarations and damages.
[4] The first defendant, the Chief Executive of the Department of Corrections, denies the allegations. The second defendant, the Visiting Justice, abides the decision of the Court.
Background
[5] The Charge alleged Ms Mitchell had behaved in a threatening manner. A senior Corrections officer alleged Ms Mitchell threatened to stab her.
[6] A hearing adjudicator referred the Charge to a Visiting Justice on 11 June 2015. This decision was made without a hearing and on the recommendation of the prosecutor in light of the serious nature of the Charge.
[7] The first time the Charge was listed before a Visiting Justice, Ms Mitchell left the hearing before the Charge could be called. When it was then called before a Visiting Justice on 23 July 2015, Ms Mitchell pleaded not guilty. The Visiting Justice considered and declined Ms Mitchell’s request for legal representation because of the relatively straightforward nature of the Charge. The hearing could not proceed that day because the complainant was unavailable.
1 This was subsequently reduced by the Court of Appeal to one year and seven months’ imprisonment: Mitchell v R [2016] NZCA 299, [2016] NZFLR 487.
[8]There were then further adjournments as follows:
(a)20 August for more information to be provided to Ms Mitchell;
(b)17 September at Ms Mitchell’s request to enable her to find relevant information in Cell 8 where her legal papers were being kept;
(c)22 October because the complainant was unwell;
(d)19 November because Ms Mitchell was unavailable due to a trial; and
(e)17 December at Ms Mitchell’s request after the Charge was part-heard.
[9]The hearing was completed on 21 January 2016.
[10] Following the part-heard hearing on 17 December 2015 during which the complainant had given evidence in chief, Ms Mitchell requested and the Visiting Justice ordered a transcript of the proceedings be prepared. This did not occur. On 21 January 2016, the CCTV footage which Ms Mitchell had requested was played and Ms Mitchell cross-examined the complainant after she gave her evidence again. On both occasions Ms Mitchell objected to the witness referring to her written report of the incident and on both occasions the Visiting Justice required the witness to give evidence without reference to the incident report.
Issues
[11]Ms Mitchell’s allegations can be detailed as follows:
(a)The hearing adjudicator unlawfully referred the Charge to a Visiting Justice without a hearing. This denied her the opportunity to request a legal representative at that stage and the right to appeal the refusal to appoint legal representation.
(b)The proceedings were inappropriately delayed by multiple adjournments.
(c)Ms Mitchell was not given access to documents and CCTV footage, in particular the transcript of the 17 December hearing.
(d)The Visiting Justice wrongly found Ms Mitchell guilty of the Charge when there was insufficient probative evidence to enable him to do so.
[12] Judicial review is the supervisory function of the Court which ensures public power is exercised according to the law.2 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.3
The Act
[13] The Act sets out offences against discipline and specifies powers for the conduct of disciplinary hearings.4 There is a two-tier structure. More straightforward charges are heard at the first instance by a hearing adjudicator, with a right of appeal to an independent Visiting Justice. A hearing adjudicator may refer a case to a Visiting Justice for the first instance hearing if the matter is considered complex or a high penalty might be required.5
[14] The Corrections Regulations 2005 provide further principles for maintenance of discipline, regulate the penalty regime,6 and set out the procedure for disciplinary hearings.7
[15] Hearing adjudicators are appointed by the Chief Executive of the Department of Corrections.8 Visiting Justices are appointed by the Governor General on the recommendation of the Minister of Justice.9 Both have the power to hear complaints relating to offences against discipline.10
2 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).
3 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
4 Corrections Act 2004, ss 128–140.
5 Section 134(2).
6 Corrections Regulations 2005, pt 11.
7 Schedule 7.
8 Corrections Act 2004, s 15.
9 Section 19(2).
10 Sections 133 and 137.
[16] The prison discipline regime is separate from the criminal justice system and a prison disciplinary offence does not form part of a criminal conviction history. The need, in the prison context, to maintain order by punishing conduct which undermines proper authority or orderly community living is recognised. The system is more inquisitorial than the generally adversarial criminal justice system.11
Was the hearing adjudicator obliged to hold a hearing?
[17] The hearing adjudicator referred the Charge to a Visiting Justice. He recorded the reason for referral as “very serious nature of offence would warrant a higher penalty should she be found guilty”. The Corrections officer who was the prosecutor said in his affidavit that it was standard practice for charges of this nature to be referred straight to a Visiting Justice.
[18] That no hearing is required before such a referral is established by Department of Corrections v Taylor.12 There is no right of appeal from that determination.13
[19] French J, when sitting in the High Court, concluded a request for legal representation is only required to be considered by a hearing adjudicator if the adjudicator will be the one who determines the charge.14 There is no obligation on an adjudicator to consider a request for legal representation if the case is referred to a Visiting Justice.
[20] Ms Mitchell submitted the Forrest case was wrongly decided. Ms Mitchell said, because she did not appear before the hearing adjudicator, the case can be distinguished in any event. That may be so but it does not overcome the hurdle of the clear wording of s 135(1), which provides:
135 Applications for legal representation
(1)If a prisoner requests permission to be legally represented at the hearing of a charge alleging an offence against discipline, the request must be considered and determined by—
11 Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85], and [88]–[91]; cited with approval in
Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34 at [49]–[50].
12 Department of Corrections v Taylor, above n 11, at [43].
13 Genge v Visiting Justice at Christchurch Men’s Prison [2017] NZHC 35 at [70].
14 Forrest v Visiting Justice HC Christchurch CIV-2010-409-000975, 22 June 2010 at [17(iv)].
(a)a hearing adjudicator; or
(b)if the case has been referred to a Visiting Justice under section 134, a Visiting Justice.
…
[21] I also note the observations of the Court of Appeal in Drew,15 that an inmate of mature years and average intellectual ability can ordinarily be expected to cope with the task of defending himself or herself against a charge where the facts are relatively straightforward, for example where the decision would turn on a choice between two versions of an incident. I agree with Ms Dixon-Blake’s submission for the first defendant that the Charge fell exactly into that category. By contrast, Percival v Attorney-General, relied on by Ms Mitchell, involved the cross-examination without legal counsel of an expert witness regarding scientific evidence.16 This is not such a case.
Were the proceedings adjourned for valid reasons?
[22] The Regulations provide every disciplinary offence must be heard reasonably promptly but the prisoner must be given sufficient time for preparation.17 They also require a Visiting Justice to adjourn a proceeding if he or she is satisfied a prisoner has not had a proper opportunity to prepare his or her defence or a material witness is not available.18
[23] While the overall delay might appear unsatisfactory, on closer inspection it is clear the Visiting Justice adjourned the proceedings at multiple stages for proper reasons, including requests by Ms Mitchell.
Was Ms Mitchell provided with all necessary disclosure?
[24] Ms Mitchell had requested voluminous information, making requests under the Official Information Act 1982. Ms Mitchell claims the failure to provide her with this material severely hindered her fair and reasonable participation at the hearing. She
15 Drew, above n 11, at [50].
16 Percival v Attorney-General [2006] NZAR 215 (HC) at [44].
17 Corrections Regulations 2005, sch 7, cl 9.
18 Schedule 7, cls 41(a) and (b).
complained she was not given the full CCTV footage, some two hours in length. She also complained she was denied the opportunity of presenting relevant case law to the Visiting Justice, including Morse v Police, Daemar v Hall and Drew v Attorney-
General.19
[25] The disclosure requirements are set out in the Regulations. Schedule 7, cl 6 requires written notice of the charge to be given to the prisoner, including a description of the incident or circumstances giving rise to the alleged offence and a statement of the provision under which the prisoner is charged. As noted by Gendall J in Bennett v Superintendent of Rimutaka Prison:20
The sort of procedures that are required for there to be “fair play in action”, including the degree of disclosure in disciplinary matters such as this, may vary from time to time, according to the particular charge, defence and all other surrounding circumstances.
[26] The affidavit evidence confirms Ms Mitchell was served with the relevant documentation on 10 June 2015. She subsequently received further documentation and was able to view the CCTV footage. That in itself had involved quite a process, this having been the first request for footage the Prison had ever received from a prisoner. Separate proceedings consider the period during which Ms Mitchell did not have access to the separate cell containing her legal papers, which occurred when she became a sentenced prisoner and refused to wear prison issued clothing.21 Any inability to access her legal papers was the result of Ms Mitchell’s choice in not complying with a lawful prison rule.
[27] In any event, it is fair to say, in a charge of this nature which essentially involves a purely factual finding dependent upon the credibility of the witnesses, references to case law would not generally be required. Visiting Justices are District Court judges, justices of the peace, or barristers and solicitors and will be well qualified to make such assessments. Furthermore, I note adjournments occurred on a number of occasions at Ms Mitchell’s request to enable her to obtain further information or prepare her defence.
19 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1; Daemar v Hall [1978] 2 NZLR 594 (SC); and
Drew v Attorney-General, above n 11.
20 Bennett v Superintendent of Rimutaka Prison HC Wellington CP 86/02, 11 March 2003 at [23].
21 Mitchell v Chief Executive of the Department of Corrections [2017] NZHC 2090.
[28] Although the Visiting Justice had ordered a transcript of the December hearing, this was not available when the hearing resumed in January 2016. In Greer, Harrison J noted that such a failure had theoretical traction in the context of a breach of natural justice.22
[29] Ms Mitchell submitted she was precluded from cross-examining the complainant on inconsistent statements because a record of the evidence given on 17 December 2015 was unavailable. However, the hearing on 17 December 2015 had been adjourned, following the complainant’s evidence in chief, at Ms Mitchell’s request. Although the hearing resumed part-heard on 21 January 2016, the complainant gave her evidence in chief again. Ms Mitchell, therefore, had the opportunity to cross-examine the complainant with the evidence in chief fresh in her mind. Had that not occurred, the unavailability of a transcript would have assumed more importance.
[30] An assessment of what is “fair play in action” is context specific. This was a very straightforward case. It hinged on straightforward evidence from few parties. The hearings were not complex. Ms Mitchell could, and did, cross-examine the complainant. Her natural justice rights were not breached.
Was there sufficient evidence to convict Ms Mitchell?
[31] The Visiting Justice heard the evidence and reached a conclusion. Ms Mitchell criticised the complainant for referring to an earlier report. The Visiting Justice required the witness to give evidence without reference to the report. Hearings at this level are not expected to be conducted with the same procedural requirements as a criminal trial. In any event, it is not necessarily wrong for a witness to refer to earlier reports, particularly if made at the time. It depends upon the circumstances and reasons. The focus is on whether the proceedings were fair.
[32] The Visiting Justice recorded in his decision that five to seven minutes of silent CCTV footage was played. He recorded the evidence of the complainant and the
22 Greer v Custodial Services Manager, Auckland Prison HC Auckland CIV-2005-404-5596, 1 March 2033 at [17].
alleged abusive language and found the witness’ evidence was given in a coherent and clear manner. He accepted it as truthful and noted it was not challenged so far as the essential ingredients of the Charge were concerned.
[33]The finding of guilt was open to the Visiting Justice.
Result
[34]For the reasons given, the claim is dismissed.
Thomas J
Solicitors:
Crown Law, Wellington for First Defendant
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