Mitchell v Chief Executive Officer of the Department of Corrections
[2014] NZHC 1860
•8 August 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2014-485-3914 [2014] NZHC 1860
BETWEEN KERRYN MITCHELL
Plaintiff
AND
THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIONS
First Defendant
AND
THE PRISON MANAGER OF AROHATA PRISON
Second Defendant
AND
THE VISISTING JUSTICE/S OF RIMUTAKA AND AROHATA PRISONS Third Defendants
AND
THE CORRECTIONS OFFICER (PROSECUTIONS), RIMUTAKA AND AROHATA PRISONS, DEPARTMENT OF CORRECTIONS
Fourth Defendant
Hearing:
Further affidavit evidence and submissions:
23 July 2014
30 July 2014, 5 August 2014
Counsel:
Plaintiff in Person
D L Harris for DefendantsJudgment:
8 August 2014
JUDGMENT OF RONALD YOUNG J
MITCHELL v DEPARTMENT OF CORRECTIONS [2014] NZHC 1860 [8 August 2014]
Introduction
[1] The plaintiff, Ms Mitchell, is a serving prisoner at Auckland Regional Women’s Corrections Facility. In these judicial review proceedings, Ms Mitchell challenges, in a number of ways, the prison disciplinary process as it has affected her between February 2013 and March 2014.
[2] In her oral submissions Ms Mitchell raised numerous issues which were not covered in her pleadings. Where this required further evidence in response, I allowed time for Corrections to file affidavits and for the parties to exchange further submissions.
[3] The events that are challenged in these proceedings occurred when Ms Mitchell was a serving prisoner and they relate to or arise from the many disciplinary charges faced by Ms Mitchell. During this time eight misconduct charges were heard by a hearing adjudicator and thirty-two charges by a Visiting Justice.
[4] Some of those whose decisions are challenged in these proceedings are; Ms Anne-Marie Abraham, Prison Manager of Rimutaka Prison and hearing adjudicator (second defendant); Dame Dawn Lamb, Visiting Justice (one of the third defendants); Mr Graeme Geekie, Corrections Prosecution Officer (fourth defendant) and Mr Harry Hawthorn, General Manager of Prison Services.
Statutory context
[5] The disciplinary process in prisons is primarily governed by sub 5 of pt 2 of the Corrections Act 2004 (the Act) and sch 7 to the Corrections Regulations 2005 (the Regulations).
[6] Sections 128 to 130 of the Act identify various prison offences. They are described as offences against discipline. They range from disobeying lawful orders of a prison officer, to escaping from custody.
[7] Minor or unintentional breaches can be dealt with by a prison officer in an informal way without a charge.1
[8] More formally, a charge of an offence against discipline can be dealt with by a hearing adjudicator2 or transferred by a hearing adjudicator to a Visiting Justice to hear and determine3 or the adjudicator may refer the matter to police to bring criminal charges against the inmate.4
[9] A transfer from a hearing adjudicator to a Visiting Justice may be because the adjudicator considers the offending may warrant a higher penalty than the adjudicator can impose and/or because of the complexity of the issues likely to arise.5
[10] An application may be made by an inmate to be legally represented at the hearing either before an adjudicator or a Visiting Justice.6 An inmate has a right of appeal from the decision of an adjudicator to a Visiting Justice.7 There is no direct appeal from a Visiting Justice’s decision but judicial review is available.
[11] Section 137 outlines the Visiting Justice’s authority and powers. The Act anticipates a full hearing before the Visiting Justice where the inmate may give evidence and cross-examine witnesses. The proceedings can be determined “with all or any of the interested persons participating by video link rather than by being present in person”.8
[12] Schedule 7 of the Regulations contains 53 clauses detailing the appointment of hearing adjudicators, the information prisoners should be given before the hearing, the assistance prisoners are entitled to prior to the hearing, the conduct of the hearing itself including adjournment of proceedings, appeal rights, maximum
penalties and rules governing legal representation.
1 Corrections Act 2004, s 132.
2 Section 133.
3 Section 134(1).
4 Section 133(5).
5 Section 134(2)(a), (b).
6 Section 135.
7 Section 136.
8 Section 139.
Grounds of review
[13] I turn now to Ms Mitchell’s four grounds of review.
Ground one: delegation of power to appoint adjudicators
[14] The first ground of review relates to the circumstances under which hearing adjudicators are appointed and the process by which those who appoint hearing adjudicators are themselves appointed.9 Mr Harry Hawthorn, the General Manager of Prison Services appointed Anne-Marie Abraham, the Prison Manager at Arohata Prison as a hearing adjudicator. Ms Abraham presided over a number of disciplinary hearings relating to Ms Mitchell while she was in Rimutaka Prison and in addition
made recommendations, as hearing adjudicator, that particular prison disciplinary charges against Ms Mitchell should be heard by a Visiting Justice.10
[15] Ms Mitchell’s first cause of action is based on the proposition that Ms Abraham was not a validly appointed hearing adjudicator and therefore her decisions were made without lawful authority. This invalid appointment was because Mr Hawthorn (who had appointed Ms Abraham) was not himself entitled to appoint hearing adjudicators.
[16] Ms Mitchell’s causes of action here are “jurisdictional error of law, unlawful delegation of statutory power, abuse of statutory process, and breach of statutory duty of care”, all of which resulted, Ms Mitchell says, in unfairness to her as a result of these breaches.
[17] Section 15 of the Act requires the Chief Executive of Corrections (in respect of each prison) to designate as many suitable employees of the Department as
hearing adjudicators as are required for the purposes of the Act.
9 Corrections Act 2004, s 10 and 15.
10 Section 134(1).
[18] Section 10 of the Act prohibits the Chief Executive from delegating the power to designate hearing adjudicators:
Despite anything in ss 41 and 42 of the State Sector Act 1998, or of any other provisions of this Act or of any other enactment, the Chief Executive must not delegate to any staff member of a prison:
(a) …
(b) the power to designate employees as hearing adjudicators under s 15.
[19] A “staff member of a prison” or a “staff member” as used in s 10 is defined in s 3 of the Act:
staff member of a prison or staff member—
(a) means—
(i) any officer of a prison; and
(ii) any employee … appointed or engaged to provide non- custodial services in respect of a prison or any prisoner detained in a prison; and
(b) in relation to any particular prison, means—
(i) any officer of that prison; and
(ii) any employee … appointed or engaged to provide non- custodial services in respect of that prison or any prisoner detained in that prison
[20] “Prison” is defined in s 3 narrowly as a particular prison established under the
Act.
[21] And so any prison officer of a prison and any person who works at a particular prison and who provides non-custodial services is prohibited from appointing hearing adjudicators. For example, the office or indeed managerial staff of a particular prison could not have delegated to them the right to designate employees as hearing adjudicators.
[22] Ms Mitchell’s challenge can be simply stated. Mr Hawthorn is the General Manager of Prison Services for New Zealand. He has been delegated by the Chief Executive of Corrections to appoint adjudicators. But Ms Mitchell submits that
Mr Hawthorn is an employee appointed or engaged to provide non-custodial services in respect of a prison. And so, in terms of s 10 of the Act, the Chief Executive is prohibited from delegating the power to designate employees as hearing adjudicators to Mr Hawthorn as a staff member of a prison.
[23] If Mr Hawthorn was not validly appointed as Ms Mitchell claims, then the appointments of hearing adjudicators made by him, including Ms Abraham, were not validly made. As a result, her decisions both as to the disciplinary charges Ms Mitchell faced and to refer some disciplinary charges relating to Ms Mitchell to Visiting Justices, were made without lawful authority.
[24] I consider that Ms Mitchell’s interpretation of the relevant statutory provisions is mistaken and that the Chief Executive of Corrections did validly delegate to Mr Hawthorn the power to appoint hearing adjudicators. It follows that Ms Abraham had the authority to hear the disciplinary charges and refer charges to a Visiting Justice for hearing.
[25] The evidence from Corrections clearly establishes that Mr Hawthorn is not associated with any particular prison. He is the General Manager of Prison Services throughout New Zealand. The use of the phrase “a prison” in the relevant statutory provisions illustrates the phrase is referring to a particular prison rather than prisons generally.
[26] The intention behind ss 10 and 15 and the definition of “staff member of a prison” is to ensure that there are no delegations of the power to appoint adjudicators given to staff members of a particular prison. This is to ensure as far as possible the independent appointment of hearing adjudicators by distancing the appointer from individual prisons.
[27] Mr Hawthorn is neither an officer of a particular prison nor an employee engaged to provide non-custodial services in respect of a particular prison. The Chief Executive is therefore entitled to delegate the power of appointing hearing adjudicators to him. He was entitled to appoint Ms Abraham as a hearing adjudicator. I reject this ground of review.
Ground two: prohibited managerial conflict
[28] This ground of review has parallels with the first ground of review. Clause 4 of sch 7 of the Regulations places certain limits on hearing adjudicators conducting disciplinary hearings. Clause 4 relevantly provides:
(4) A hearing adjudicator may conduct a disciplinary hearing if, and only if, he or she–
(a) does not have direct responsibility for the day-to-day management of the prisoner charged with the disciplinary offence concerned; and (b)
is not reported to directly by the person prosecuting the offence.
[29]
Ms Mitchell
alleges first that Ms Abraham, who conducted particular
disciplinary hearings as the hearing adjudicator with respect to her disciplinary charges, was covered by cl 4(a) and (b) and so was prohibited from hearing Ms Mitchell’s disciplinary proceedings. This, Ms Mitchell said, established bias as far as Ms Abraham was concerned.11 Secondly, Ms Mitchell claimed the person prosecuting her, Mr Geekie, reported directly to Ms Abraham.
[30] Ms Mitchell’s claim was that because Ms Abraham had herself signed orders relating to Ms Mitchell’s care in prison (for example, segregation orders), then Ms Abraham had put herself in the position of having direct responsibility and day-to-day care of Ms Mitchell. In her pleadings Ms Mitchell says that Ms Abraham conducting a disciplinary hearing relating to her constituted a jurisdictional error of law in that there was an unlawful delegation of statutory power, an abuse of statutory process and power, misfeasance in public office, actual bias and a breach of a statutory duty of care by Ms Abraham to Ms Mitchell.
[31] I reject those claims. The Act requires that senior management such as
Ms Abraham make the decision and sign off some orders affecting prisoner welfare, including segregation orders.12 Those decisions and orders do not make
11 Even if a breach of cl (4)(a) and (b) was established, it is difficult to understand the complaint of bias against Ms Abraham.
12 Corrections Act 2004, ss 58 and 59.
Ms Abraham responsible for Ms Mitchell’s day-to-day care. That responsibility remains with the relevant Principal Corrections Officer.
[32] Ms Abraham’s evidence established first that she did not have direct responsibility for the day-to-day management of Ms Mitchell and secondly, that Mr Geekie did not report directly to Ms Abraham.
[33] As I have noted, Ms Abraham was the Prison Manager for Arohata Prison where Ms Mitchell was held at the relevant time. Ms Abraham’s evidence was that each prisoner had a Principal Corrections Officer with direct day-to-day responsibility for the prisoner. Each Principal Corrections Officer in turn reported to a Residential Manager within the prison. The residential manager then reported to Ms Abraham as the Manager. Ms Abraham’s evidence, therefore, was that she did not have direct responsibility for the day-to-day management of Ms Mitchell. She was the head of the prison and it was her function to ensure that her Residential Managers properly undertook their task to manage the day-to-day work of the prison officers. I am satisfied Ms Abraham has accurately described the management arrangements with the prison.
[34] As to the prosecution of Ms Mitchell for disciplinary offences, this was undertaken by Corrections Prosecution Officer, Mr Graeme Geekie. He was at the relevant time, the site prosecutor for Arohata Prison where Ms Mitchell was held, as well as Rimutaka Prison where he was based. Ms Mitchell’s case is that whenever Mr Geekie was in Arohata Prison he was answerable to the Manager, Ms Abraham. There is no basis for that claim either factually or by virtue of the Act and Regulations. Mr Geekie does not report to Ms Abraham as part of his reporting obligations.
[35] I am satisfied, therefore, that there has been no breach of cl 4 of sch 7 of the Regulations. Ms Abraham was entitled to conduct the disciplinary hearings with Mr Geekie as the prosecutions officer. This ground of review therefore fails.
Ground three: bias and failure of prosecution to give oral evidence
[36] The third ground of review relates to one of the third defendants. Dame Dawn Lamb was a Visiting Justice at Arohata Prison and heard a number of disciplinary charges relating to Ms Mitchell. In particular, she heard disciplinary proceedings relating to Ms Mitchell on 11 February 2013, 25 March 2013,
8 July 2013 and 20 March 2014.
[37] Ms Mitchell says that she raised with Dame Dawn Lamb a claim of bias at the hearing of 8 July 2013 and sought Dame Dawn Lamb’s recusal. That was refused. A further application for recusal based on the ground of bias was made at the beginning of the hearing on 20 March 2014. That was again refused. Ms Mitchell says that no reasons were given by Dame Dawn Lamb for her refusal to recuse herself and that this was an “abuse of statutory process and unreasonable”.
[38] Further, Ms Mitchell says that in a previous High Court decision, Kós J quashed disciplinary convictions for another inmate because the Corrections prosecutor with the assistance of Dame Dawn Lamb had conspired to ensure Dame Dawn Lamb was the hearing Justice. This illustrated that Dame Dawn Lamb was prejudiced against inmates and meant she should have recused herself.
[39] Ms Mitchell claimed that Dame Dawn Lamb did not consider applications made by her at various disciplinary hearings nor give proper reasons for her determinations. She says:
this failure to conduct disciplinary proceedings in a fair and reasonable manner means that Dame Dawn Lamb is guilty of malfeasance (malla vides) in public office in bringing the Department of Corrections into disrepute.
I note that Collins J refused to give Ms Mitchell leave to pursue her case against Dame Dawn Lamb specifically as the fifth defendant however she was a Visiting Justice and therefore came within the generic description of the third defendant.
[40] In summary, Ms Mitchell claimed Dame Dawn Lamb had acted with actual bias because:
(a) of the previous incident of collusion with Corrections to obtain a conviction of another inmate on disciplinary charges;
(b)she had found Ms Mitchell guilty of all disciplinary charges heard by her;
(c) she had refused to recuse herself from hearing disciplinary charges against Ms Mitchell;
(d) she had refused to hear other preliminary applications by Ms Mitchell;
(e) she refused to listen to mitigation submissions at a hearing on
24 March 2014.
[41] Ms Mitchell’s core complaint was that Dame Dawn Lamb as the Visiting Justice at her disciplinary hearings had a closed mind, had predetermined her disciplinary hearings and had a personal prejudice against Ms Mitchell and/or all inmates.
[42] To support ground (a) of her complaints of bias listed above at [40], Ms Mitchell provided me with a copy of an email apparently from Dame Dawn Lamb to a woman in Corrections who is prosecuting a particular prisoner. Corrections did not dispute its origin. The email could be seen as an attempt to “Judge-shop” by the prosecuting officer, that is, an attempt by Corrections to obtain Dame Dawn Lamb as the Visiting Justice hearing this inmate’s misconduct charge. As I understand it, the inmate brought proceedings challenging the disciplinary process based on an allegation of Judge-shopping. Corrections ultimately consented to the disciplinary charges being quashed in the High Court.
[43] Ms Mitchell says Dame Dawn Lamb co-operated in the attempt by Corrections to have her allocated as Visiting Justice on a particular disciplinary hearing. This together with the tone of the email, illustrated Dame Dawn Lamb did
not have an open mind generally when considering disciplinary proceedings against inmates.
[44] These events show no apparent or actual bias on Dame Dawn Lamb’s behalf as it relates to Ms Mitchell. The events arising from the email do not relate to Ms Mitchell. There is no evidence that Dame Dawn Lamb had a closed mind, had predetermined issues or had any prejudice toward Ms Mitchell. I am satisfied that the email is not evidence of bias of Dame Dawn Lamb relating to Ms Mitchell.
[45] As to ground (b), the fact Dame Dawn Lamb may have convicted Ms Mitchell on each charge she faced is not evidence of bias. Ms Mitchell provided no evidence that Dame Dawn Lamb convicted her without evidence simply because she was Ms Mitchell. As I pointed out to Ms Mitchell, there is nothing to suggest Ms Mitchell had not committed the disciplinary offence on each occasion. Indeed on most occasions Ms Mitchell did not challenge the prison officer’s description of her conduct.
[46] As to grounds (c) and (d), Ms Mitchell asked Dame Dawn Lamb to recuse herself from hearing any disciplinary charges against her. That request was refused and Dame Dawn Lamb carried on hearing the disciplinary charges. Ms Mitchell in her submissions seemed to think that Dame Dawn Lamb either had to recuse herself or give good reasons for not doing so in the face of Ms Mitchell’s objection. Dame Dawn Lamb did not and should not recuse herself simply because Ms Mitchell says she should. Nor are reasons required in the face of an application to recuse based on the claim that she is biased and nothing further.
[47] The disciplinary process in prison is not the equivalent of a court hearing a criminal charge. There are properly significant protections for prisoners in such hearings. But there is no expectation that hearing adjudicators or Visiting Justice will give extensive reasons for refusing recusal. Such refusals are (as in this case) subject to the appeal process (from adjudicator to Visiting Justice) or judicial review in the High Court.
[48] Other pre-hearing applications were made by Ms Mitchell at the disciplinary proceedings. For example, at the hearing of 24 March 2014 she sought dismissal of the charges for delay. Dame Dawn Lamb went through the reasons for each adjournment of the disciplinary charges and was satisfied that the delays were justifiable. She then refused to dismiss the charges based on delay. She proceeded to a full hearing. It is not true, therefore, that Ms Mitchell’s pre-hearing applications was not considered. Ms Mitchell’s real complaint is that her applications did not succeed. Once again, extensive reasons are not required.
[49] Finally to ground (e), the refusal to listen to mitigation submissions. There is nothing material in this complaint. The transcript of the disciplinary hearing of
24 March 2014 illustrates that Ms Mitchell was given the chance to participate but she refused to do so. However, it is instructive to consider the transcript of the
24 March 2014 hearing as it illustrated a number of Ms Mitchell’s grounds of complaint.
[50] Ms Mitchell was present at the hearing through AVL. At the beginning of the hearing, Ms Mitchell raised her objection to Dame Dawn Lamb hearing the prosecution on the basis that Dame Dawn Lamb was biased in the hearing of Ms Mitchell’s cases. No further explanation of the objection was given. Dame Dawn Lamb advised that she had noted the objection but intended to proceed.
[51] Ms Mitchell then raised a second application to dismiss the charges because of delay based on the number of previous adjournments. Dame Dawn Lamb considered each of the adjournments and identified the circumstances under which they occurred. Ms Mitchell then applied for a further adjournment of the current case, which was refused.
[52] Dame Dawn Lamb noted that most of the adjournments were because of Ms Mitchell’s unavailability. At times she was at Court, at other times she was in a segregation unit. On one occasion there were difficulties with the physical availability of a suitable room and AVL and on one other occasion the case was not reached because of the long list of cases scheduled on the hearing day. After review
of the reasons for the adjournments, Dame Dawn Lamb said she was proceeding with the hearing. Ms Mitchell then became abusive. She said:
You’re biased as fuck and I am complaining about them.
[53] Ms Mitchell then turned the sound off on the AVL unit and angrily left the AVL room. This prevented the hearing from continuing given the obligation under the Regulations for a prisoner to be present during the course of the disciplinary hearing.13
[54] Eventually Ms Mitchell returned to the AVL room. The hearing recommenced. She began to swear. A prison officer told her to calm down and she responded:
Don’t tell me what to fucken’ do with a fucken’ jacked up fucken’ Judge.
[55] Throughout this time Dame Dawn Lamb dealt with Ms Mitchell in a patient and considerate way. She repeatedly told Ms Mitchell that she had the chance to question witnesses, to give evidence herself, and it would be in her interests to listen to the disciplinary procedure. Unfortunately Ms Mitchell took no notice and continued her abuse.
[56] The evidence relating to the disciplinary charges itself was simple and straight-forward. It is clear that on two occasions Ms Mitchell had broken the sprinkler in her cell and that she was being charged with a disciplinary offence which reflected those actions. Throughout, Dame Dawn Lamb’s conduct was patient, fair and sensible in the face of aggressive, abusive conduct by Ms Mitchell.
Un-pleaded ground: prosecution evidence in disciplinary hearings
[57] A further ground of review was raised at the hearing by Ms Mitchell which was not pleaded. This challenge related to the fairness of the hearings before Ms Abraham as hearing adjudicator. To ensure all significant complaints by
Ms Mitchell were dealt with I heard her submission on this point. I allowed
13 Corrections Regulations 2005, sch 7, cl 23.
Corrections further time to file a response to Ms Mitchell’s allegations and invited
further submissions from both parties.
[58] Ms Mitchell’s complaint is that her hearings before hearing adjudicators were unfairly conducted because the “evidence” in support of the prosecution case was presented only in written form by way of a prison officer misconduct report. This meant there was no chance for her to challenge the prosecution evidence. The prison officer who had provided the misconduct report was not present. In contrast, if Ms Mitchell wished to dispute the misconduct reports she had to give oral evidence and be subject to cross-examination by the Corrections prosecutor. This made the disciplinary hearing unfair.
[59] Mr Geekie, the prosecuting officer, has filed a further affidavit dealing with this point. He accepted that in a number of disciplinary hearings with a hearing adjudicator the prosecution had relied solely on written reports. The notes of a number of disciplinary hearings with Ms Mitchell illustrate that the prosecution case consisted of written reports from a number of prison officers called “misconduct reports”. The case for the prosecution recorded on the Corrections record of the hearing is noted as being “as per misconduct reports”.
[60] Mr Geekie said that ordinarily the prosecution evidence is presented by way of a sworn statement or oral evidence. He accepts that in the eight charges (all eight were heard on the same day) identified by Ms Mitchell the prosecution “evidence” was by an “incident report”. Corrections accepts these were not sworn statements and there is nothing to show that the authors of these reports were present at the hearing.
[61] There is no direct guidance in either the Act or Regulations as to what form of evidence is required by the prosecution to prove its case in disciplinary hearings before a hearing adjudicator. Clause 6 of the Regulations provides that the disciplinary process begins when a prison officer gives the prisoner a description of the event which gives rise to the alleged offending. This seems to be the “misconduct report” which formed the basis of the “evidence” to support the charge at the hearing.
[62] There are clear indications that oral evidence is expected to prove charges. For example, cl 32 of sch 7 of the Regulations provides that where a prisoner pleads not guilty to a disciplinary charge the prosecution “must be given the opportunity to call witnesses”. The prisoner has a similar right (cl 32(b)) and any witnesses may be cross-examined (cl 32(c)).
[63] Clause 25 of the Regulations prohibits staff members who are to be
“witnesses” at the disciplinary hearing from prosecuting.
[64] Section 133 gives the adjudicator the power to examine “any person concerning the alleged offence”.14 The hearing is to be in the presence of the prisoner, “who is entitled to be heard and to cross-examine any witness”.15
[65] Clause 33 provides that the disciplinary hearing officer after “hearing all the evidence” may convict. Proof beyond reasonable doubt is required.16 Significant penalties are attached to breaches.17
[66] In a different context (whether natural justice required prisoners to be represented by counsel at disciplinary hearings) in Drew v Attorney-General the majority of the Court of Appeal said that a prison disciplinary process is an adversarial contest where the normal principles of justice apply:18
[53] It is apparent from a study of the scheme that the role of the Superintendent and, particularly, the Visiting Justice is predominantly that of an adjudicator required to make a decision on the evidence presented by the prison authorities and the inmate. The process has the usual hallmarks of an adversarial contest to which the principles of natural justice apply — the laying of a charge to be proved beyond reasonable doubt, the calling of evidence by the parties at a hearing and the right to cross-examine. The adjudicator is not required or empowered to conduct his or her own investigations outside the hearing. The Visiting Justice’s role under ss 33 and 35 is distinct from that performed under s 10(3) (see para 10 above).
14 Corrections Act 2004, s 133(1).
15 Section 133(2).
16 Corrections Regulations 2005, sch 7, cl 33.
17 Corrections Act 2004, s 133.
18 Drew v Attorney General [2002] 1 NZLR 58 (CA).
[67] Although this judgment discussed the disciplinary regime in the Penal Institutions Act 1954 there is sufficient similarity to the current legislation for any differences not to matter.
[68] In a more recent case Department of Corrections v Taylor,19 the Court had to decide if an adjudicator had breached natural justice by referring a disciplinary charge to a Visiting Justice without a hearing. The Court considered that an analogy with the protections given to accused persons in criminal trials was not necessarily helpful. They emphasised the need for an efficient and speedy resolution of disciplinary matters especially preliminary matters such as the one before the Court.
[69] I am satisfied that the Act and Regulations anticipate that evidence will be called at disciplinary hearings (including those before adjudicators). This is sufficiently established by the references in the Act and Regulations. An ability to challenge the evidential basis for an alleged breach of prison discipline is fundamental to natural justice.
[70] The Court in Drew anticipated the calling of evidence in disciplinary hearings. While a simple, direct, speedy system to resolve disciplinary charges in prison is clearly important those principles do not, I consider, require the sacrifice of basic rights. In Taylor all that was being compromised was the right to make submissions on a decision as to which disciplinary tribunal would hear the case. This hardly went to fundamental protections of fair trial rights. The right to challenge the evidence which goes to prove the charge is in an altogether different category.
[71] I consider that Corrections reliance solely on misconduct reports without witness availability is a failure of natural justice where the essential facts which give rise to the charge are put in dispute by the inmate. In those circumstances I consider the inmate must have the chance to challenge the facts the prosecution rely upon and will only be able to do so fully by cross examining the witnesses who give disputed
evidence.
19 Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34 (CA).
[72] It is not entirely clear in these eight disciplinary hearings that Ms Mitchell did challenge the basic facts of the prosecution. Where Ms Mitchell has supplied copies of the Corrections record of the hearings, she is not recorded as making any statement which disputes the misconduct reports. Her complaint to the hearing adjudicator is typically about the lawfulness of the appointment of the adjudicator, or bias or other issues unrelated to the facts of the alleged misconduct. And so in a practical sense, Ms Mitchell’s complaint is more theoretical than real, given she did not appear to dispute the basic facts of each charge.
[73] At this hearing Ms Mitchell advised that she had appealed the eight disciplinary charge findings by the hearing adjudicator to the Visiting Justice.20 The further affidavit filed by Mr Geekie shows that with respect to the eight charges all were initially appealed. Four of these appeals were abandoned by Ms Mitchell. She proceeded with four of the appeals. In those four appeals full oral evidence from all prosecution witnesses was given at the hearing. Ms Mitchell had full cross-examination rights.21 The appeal before the Visiting Justice was therefore a
full rehearing of the original disciplinary charges.22
[74] As I have noted it is not entirely clear whether Ms Mitchell did dispute any of the basic facts which gave rise to any of the eight disciplinary charges. However, if she did so then I consider it was a breach of natural justice for the prosecutor to rely upon and the adjudicator to rule on the prosecution case based solely on written misconduct reports where the witnesses to Ms Mitchell’s alleged misconduct were not available for cross-examination by her. Nothing further is required other than this observation in this case.
[75] In summary, it is not clear that Ms Mitchell actually disputed the alleged misconduct. If she did then she has had a full hearing with respect to four of the charges and abandoned any challenge with respect to the other four charges. And so any natural justice inadequacies at the adjudicator hearing have been attended to by the full hearing or abandonment of challenge. There is no question of any formal
order or award of damages to vindicate rights for the reasons given.
20 Section 136(1).
21 Section 137(2).
22 Section 136(4).
[76] Consideration of this complaint by Ms Mitchell in these proceedings is a considerable indulgence to her. I have done so in an attempt to hear and determine all (or as many as I can identify) of her complaints about her imprisonment.
[77] Ms Mitchell has not established any grounds of review relating to the third cause of action.
Ground four: prosecution officer
[78] Ms Mitchell says that at numerous hearings the Corrections prosecution officer, Mr Gordon Geekie, acted outside his statutory duties. He also breached his duty of care to Ms Mitchell given he must have known the adjudicators and the Visiting Justices had no jurisdiction to hear the disciplinary charges but did nothing to resolve the issue.
[79] Further, Mr Geekie and Ms Abraham had acted contrary to regs 150(2),
150(3) and 152. Ms Mitchell complained that Mr Geekie had not acted impartially in disciplinary proceedings and that he did not conduct his prosecutions with fairness, responsibility or with trust. He had conspired with the Prison Manager and the Visiting Justice to obtain “guilty outcomes” from the disciplinary process. Further, he arranged for a number of adjournments without Ms Mitchell’s consent.
[80] I have already concluded that:
(a) Mr Hawthorn and Ms Abraham complied within their statutory powers in appointing adjudicators;
(b)Mr Geekie as prosecutor did not report to Ms Abraham and therefore did not infringe cl 4(b) of sch 7 of the Regulations.
[81] I agree that Mr Geekie would likely have known Ms Mitchell had raised challenges to the authority of Mr Hawthorn and Ms Abraham to appoint the hearing adjudicators that would hear Ms Mitchell’s disciplinary proceedings. Mr Geekie had no obligation to be an advocate for what I have found to be Ms Mitchell’s misconceptions about the statutory authority of Mr Hawthorn and Ms Abraham.
[82] As to the conduct of the Visiting Justices, there is nothing to suggest
Mr Geekie considered there was anything objectionable about their conduct.
[83] Regulations 150 and 152 provide as follows:
150 Maintenance of discipline
(1) In every prison, discipline and order must be maintained with firmness and fairness.
(2) In the control of prisoners, staff members must seek to influence those prisoners through example and leadership and to enlist their willing co-operation.
(3) No officer may take disciplinary action against a prisoner if that action is retaliatory in nature or inconsistent with acceptable standards of treatment of a prisoner in similar circumstances.
(4) A prisoner who considers himself or herself to be aggrieved by a lawful order must obey that order but may, on the first convenient occasion, make a complaint under Part 12.
…
152 Disciplinary proceedings
Disciplinary proceedings must be conducted in accordance with Schedule 7.
[84] There is no evidence from Ms Mitchell which establishes either Mr Geekie or
Ms Abraham breached regs 150 and 152.
[85] There is no adequate evidence to support Ms Mitchell’s complaints about the actions of Mr Geekie. Mr Geekie’s evidence is that he has always acted in good faith in bringing misconduct charges against Ms Mitchell and has done so on the basis of evidence provided by staff and his assessment of the circumstances. He notes that on one occasion in December 2012, he decided not to proceed with a disciplinary charge relating to Ms Mitchell because of lack of evidence.
[86] He swore that he has never spoken to Dame Dawn Lamb about misconduct charges against Ms Mitchell except during the hearings. Mr Geekie says that he did communicate with Ms Abraham regarding referring Ms Mitchell’s misconduct charges to a Visiting Justice and made the recommendation that she do so. Ms Abraham’s evidence is that having spoken to Mr Geekie, she considered each of
the charges as they arose and made her own decision about whether or not they should be referred to a Visiting Justice.
[87] This is what the statutory regime requires.23 The prosecution is entitled to make submissions to the hearing adjudicator that, with respect to particular charges, the adjudicator should refer the case to a Visiting Justice because of the factors listed in s 134(2)(a) and (b). In the event this occurs, it would be appropriate for the prosecutor’s submissions to be made in the prisoner’s presence or in writing to the adjudicator, copied to the prisoner, to allow the prisoner the opportunity to respond.
[88] In summary:
(a) if Mr Geekie had a “duty of care” to Ms Mitchell he did not breach it; (b) he had no duty to report jurisdictional inadequacies relating to
Ms Abraham and Mr Hawthorn because there were none;
(c) Mr Geekie and Ms Abraham did not act contrary to regs 150 and 152; (d) there was no evidence Mr Geekie had acted improperly in any
prosecution involving Ms Mitchell.
[89] A further complaint was raised by Ms Mitchell about Mr Geekie’s conduct which was not part of the original pleadings, however, I now consider that complaint.
[90] Ms Mitchell says that ordinarily disciplinary proceedings involving an inmate are heard on a Wednesday at Arohata Prison. However, many of her disciplinary hearings were on a Monday. Ms Mitchell says this was done to ensure that Dame Dawn Lamb heard all her disciplinary cases. This, she said, was objectionable
Judge-shopping.
23 Section 134(1) and (2).
[91] There is no evidence that all of Ms Mitchell’s disciplinary cases were transferred to a Monday. Some were heard on a Monday and some were not. Ms Mitchell faced a large number of disciplinary charges. It seems it may not have always been possible to hear all the charges on a Wednesday and so additional hearing days were added.
[92] Further, Visiting Justices other than Dame Dawn Lamb decided some of
Ms Mitchell’s disciplinary charges.
[93] Finally, and most importantly, there was no evidence that Mr Geekie or anyone else from Corrections manipulated the disciplinary process for the purpose of Judge-shopping. I reject this ground of challenge.
[94] Ms Mitchell made a large number of complaints about prison life and in particular the actions of prison management and the disciplinary process in her written and oral submissions. Many were relatively trivial. Many were an attempt by Ms Mitchell to have the Court reconsider the day-to-day decision making by Corrections officers. This would require the courts to take the wholly inappropriate step of micro- managing prisons. I have not included those complaints in this judgment which deals with judicial review matters only.
[95] This further ground of review is dismissed.
Summary
[96] All grounds of review are dismissed. As to costs there is little point in any award of costs against Ms Mitchell.
Ronald Young J
Solicitors:
Crown Law, Wellington
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