Mitchell v Prison Director Arohata Prison
[2016] NZHC 3103
•16 December 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-55 [2016] NZHC 3103
UNDER the Judicature Amendment Act 1972, s 4 IN THE MATTER
of applications for judicial review and relief
BETWEEN
KERRYN MITCHELL Applicant
AND
THE PRISON DIRECTOR AROHATA PRISON
Respondent
CIV-2016-485-56
BETWEEN KERRYN MITCHELL Plaintiff
ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS First Defendant
THE VISITING JUSTICE AROHATA PRISON
Second Defendant
CIV- 2016-485-007
BETWEEN KERRYN MITCHELL Applicant
ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS First Respondent
THE PRISON DIRECTOR AROHATA PRISON
Second Respondent
KERRYN MITCHELL v THE PRISON DIRECTOR AROHATA PRISON [2016] NZHC 3103 [16 December
2016]
CIV-2016-485-269
BETWEEN KERRYN MITCHELL Applicant
ANDTHE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS Respondent
Hearing: 9 November 2016 Counsel:
G Minchin for Applicant in CIV-2016-485-269
Applicant in Person
V McCall for Respondent/DefendantsJudgment:
16 December 2016
JUDGMENT OF CLIFFORD J
Introduction
[1] The applicant/plaintiff, Kerryn Mitchell, was arrested and remanded in custody on breach of protection order charges on 2 December 2012. Ms Mitchell was eventually sentenced to imprisonment on those charges. Whilst a serving prisoner, Ms Mitchell further breached those protection orders, and was sentenced to a further term of imprisonment. In circumstances set out in more detail in my judgment on Ms Mitchell’s habeas corpus application,1 Ms Mitchell was released
following a successful sentence appeal on Friday 1 July 2016.2 She was
immediately re-arrested on a fresh charge of attempted breach of the protection order. When I heard these interlocutory applications, Ms Mitchell was remanded in custody on two charges: that attempted breach and one of assault on a police officer. I do not know her current status.
[2] Ms Mitchell has commenced a large number of proceedings since she was first imprisoned. This judgment concerns four of them:
1 Mitchell v R [2016] NZHC 2718.
2 Mitchell v R [2016] NZCA 299.
(a) CIV-2016-485-55 (the “electric jug and other property claim”);
(b) CIV-2016-485-56 (the “Visiting Justice claim”);
(c) CIV-2016-485-007 (the “prison-issued clothing claim”); and
(d) CIV-2016-485-269 (the “transfer decision claim”).
[3] This is an application by the various respondents in those proceedings (collectively, the Crown) for a ruling that those proceedings are, by reason of Ms Mitchell’s release from prison on 1 July, moot.
Context
[4] A case management Minute of Mallon J dated 22 August 2016, a copy of which is annexed to this judgment, summarises the position as it existed at that date. Since then, Ms Mitchell has filed a number of further proceedings. I will deal with the case management issues that arise following this judgment in a separate memorandum issued contemporaneously.
[5] The four proceedings at issue here can be summarised, very briefly, as follows:
· The prison-issued clothing claim
This proceeding alleges that, following Ms Mitchell’s sentencing on
2 December 2015, the requirement at Arohata Prison that sentenced prisoners wear prison-issued clothing was ultra vires the Corrections Act 2004. By refusing to allow her to have access to her legal papers, while she refused to wear prison-issued clothing, the Prison authorities acted unreasonably and in contempt of Court.
· The Visiting Justice claim
On 21 January 2016 a Visiting Justice sentenced Ms Mitchell to ten days’ cell confinement and 35 days’ loss of privileges for behaving in a threatening manner. In this proceeding, Ms Mitchell seeks a declaration that the misconduct hearing was conducted in an unlawful, unreasonable and procedurally unsound manner. By way of relief she seeks an order that the misconduct charge be reconsidered, or her record expunged, and damages.
· The transfer decision claim
In this proceeding, Ms Mitchell challenges a decision to transfer her from Arohata Prison in Wellington to Auckland Regional Women’s Corrections Facility on 12 April 2016. Ms Mitchell says the decision was made failing to take into account relevant considerations, was unreasonable and was reviewable for illegality. An urgent hearing was sought in June. Among Ms Mitchell’s concerns was that, by reason of that transfer, she would not have undertaken courses which would have assisted her at a Parole Board hearing scheduled for August 2016. By way of relief, Ms Mitchell seeks a declaration of illegality, and sought an order transferring her back to Arohata Prison. She was not returned to Arohata before her release on 1 July, but I understand she was at Arohata when I heard this application, so that part of her application is moot.
· The electric jug claim
Ms Mitchell used an electric jug to boil water which she poured over herself in a self-harm incident. Following that, the electric jug was removed while she was at Arohata Prison. Whilst in Auckland Regional Women’s Correctional Facility Ms Mitchell was also not allowed to retain a hair dryer and a multi-point plug.
Submissions
[6] The Crown argues that all these proceedings are moot for the following reasons:
(a) The sentences of imprisonment Ms Mitchell was serving at the time the incidents which gave rise to all four proceedings occurred have now expired. There is, therefore, no utility in any of the relief originally sought, other than perhaps declarations of unreasonableness or illegality.
(b)As for such declarations, the Crown refers to various situation where the courts have held declaratory relief would serve no useful purpose, including:3
19.1where the applicant has already received the result sought in substance, or any legal error has been substantially cured;
19.2where the public body has shown that it is doing all it can genuinely to meet the statutory duty;
19.3where the proceeding is limited to the particular factual context and a declaration would have no effect in those circumstances;
19.4where events have overtaken the application, rendering any order of academic interest only or rendering the outcome of the case irrelevant;
19.5where the decision in question would have no ongoing impact on the applicant, including because the previous decision-makers have left an organisation or because the applicant is no longer a member of an institution; and
19.6in particular, when a prisoner has completed a sentence of imprisonment, disciplinary charges laid while the prisoner was incarcerated will become moot if relating to issues of the prisoner’s former incarceration.
20.The Courts have also stated explicitly that, where the only thing to be gained for a proceeding is the satisfaction of the plaintiff in being proved right, it will not be in the public interest for it to continue. Asher J in Simpson stated:
The only gain that [the plaintiff] will have is the ability to be able to say “I told you so”. The Courts do not entertain litigation simply to enable a litigant to prove that he was right on an issue that is not otiose.
3 Footnotes omitted.
21.It will also be a misuse of the Court’s process for a litigant to seek relief in relation to a matter that has already, in substance, been determined, or where the proceeding is a method to get around the effect of other Court determinations.
[7] For her part, Ms Mitchell says that, in reality, her sentence has not come to an end. On 1 July she was only “notionally” released as she was immediately arrested on a charge of attempting to breach the protection order. That charge would appear to have “lain on the table” for quite some time. I refer to the observations of Judge Jelas in a bail decision earlier this year.4
[8] Ms Mitchell is, she says, at risk of the same type of actions that gave rise to not only these four proceedings, but the various other claims she has brought. Moreover, the fact that a sentenced prisoner may have been released does not mean a challenge to the lawfulness of various aspects of that prisoner’s treatment as such will be rendered moot. There is both an individual and a broader public interest in unlawful actions of the Department of Corrections as regards the treatment of sentenced prisoners being held to account.
Analysis
[9] I have determined to decline the Crown’s application that the challenged proceedings be struck out for mootness. I am doing so for both principled and pragmatic reasons.
[10] As a matter of principle I am not persuaded the fact that a prisoner’s sentence of imprisonment has come to an end means that challenges to aspects of her treatment during that imprisonment are rendered moot.
[11] The Crown cited the decisions of McEwan v North Shore District Prison Board and Jamieson v District Court as authorities for the proposition that, when a prisoner has completed a sentence of imprisonment, challenges to disciplinary
charges laid while the prisoner was incarcerated are thereby moot.5 I am not
4 Police v Mitchell [2016] NZDC 13832.
5 McEwan v North Shore District Prison Board HC Auckland M1483-PL01, 26 April 2002;
Jamieson v District Court HC Christchurch CIV-2004-409-96, 17 September 2004.
persuaded that these cases amount to a principle of broad application in every case where a sentence has come to an end. They are case-specific.
[12] In Jamieson, the High Court was dealing with the substantive issue as to whether or not a prisoner should have been allowed representation for a hearing before the Visiting Justices. That point was decided against the prisoner. The Court also reached the view that, were any rehearing to be ordered the same outcome as the Visiting Justices had arrived at “would be inevitable”.6 Issues of mootness and delay were also raised, but were not central to the decision.
[13] McEwan involved a challenge to a decision of the Prison Board based on evidence (an inmate’s positive drug test) said to be admissible for disciplinary purposes under the Penal Institutions Regulations 2000. Priestly J decided the substance of the challenge, finding there was nothing about the Board’s procedure which was unfair or a breach of the rules of natural justice. Priestly J went on, in obiter observations, to note that even if he had been wrong in that decision, he would, in the exercise of the discretion conferred on him by s 4(1) and (3) of the
Judicature Amendment Act 1972, decline to grant relief.7 A decision to decline to
grant relief, once the substance of a claim has been heard is distinct, from a decision that the claim is itself moot.
[14] The Crown relied more generally on the decision of Asher J, in Simpson v Whakatane District Court (No 2),8 for the proposition that the courts do not entertain litigation simply to enable a litigant to prove that he was right on an issue that is now otiose.
[15] Simpson was a dog case. Mr Simpson was convicted by Community Magistrates under the Dog Control Act 1996 when his dog “Romp” attacked and rushed three separate complainants. Mr Simpson appealed to the District Court. The appeal was dismissed. Mr Simpson appealed by way of case stated on points of law. That appeal was dismissed. Applications for leave to appeal to the Court of Appeal
and the Supreme Court failed. Mr Simpson then filed judicial review proceedings in
6 At [41].
7 At [69].
8 Simpson v Whakatane District Court (No 2) [2006] NZAR 247.
the High Court. The Crown did not file a statement of defence. Rather, it filed a memorandum advising the Court that the Community Magistrates had not had jurisdiction, and sought an order quashing the decision. Mr Simpson was not satisfied, and endeavoured to proceed with his judicial review proceedings. It was in that context that Asher J found those proceedings to have no utility, as there was no live issue remaining. The Court commented:
[22] It is a well recognised common law principle that it is contrary to public policy for the Courts to entertain proceedings where there is no actual outstanding issue in existence between the parties. The Courts are not, in general terms, available to provide a free or subsidised opinion service to the public. Court time is a precious commodity, and cannot sensibly be spent on deciding matters that only have academic interest, or which prove a point of opinion rather than resolve a dispute…
[16] By my assessment, the situation here is different. Ms Mitchell may still remain in custody, albeit now on remand. More importantly, none of the substantive issues she has raised in the challenged proceedings have been decided, whether against her or in her favour, on any basis. The situation is, therefore, different to the situations in the cases I was referred to by the Crown. Even if Ms Mitchell had been released from prison, that would not, of itself, mean the issues she had raised relating to her treatment whilst in prison were no longer live.
[17] There is well established authority as to the value of a declaration as relief. As Mackenzie J stated in Jones v Waitakere City Council:9
[27] As to the submission that no meaningful relief will be available to the plaintiffs if the proceedings were to succeed, I do not consider that it is so clear that there could be no meaningful relief that the proceedings should be struck out. The relief sought in the proceedings includes a declaration that the sale of Lots 3 and 4 was ultra vires. A declaration is, without more, a substantive remedy, as is recognised by s 2 of the Declaratory Judgments Act 1908…
[18] More generally, declaratory relief may be rendered moot where the circumstances have changed since the decisions being reviewed, so that any order the Court might make would have no practical effect. An example is challenged
legislation having been amended.10 But just because an act has been completed and
9 Jones v Waitakere City Council HC Auckland CIV-2010-404-2338, 29 October 2010.
10 See generally Matthew Smith New Zealand Judicial Review Handbook (Brookers, Wellington,
2011) at [19.6].
is of no on-going effect, does not mean that proceedings challenging the lawfulness of that act and seeking declaratory relief are rendered moot. As Thomas J said in New Zealand Māori Council v Attorney-General [Radio Assets Case]:11
I know of no principle of law that holds that the lawfulness or validity of a completed act cannot be tested in the Courts. Indeed, the law libraries of the world are generously endowed with law reports containing cases challenging the lawfulness of past actions of government and governmental agencies. It is true that in most cases a successful challenge may be seen to have some immediate and direct benefit to the successful applicant. But it is not for the Courts to assess the worth of a declaration demonstrating that the Crown has acted unlawfully, nor to convey the impression that the unlawfulness of an unlawful action is expended once that action has been implemented.
[19] Turning to the more pragmatic reasons for declining the Crown’s application, these proceedings only comprise four of a larger number of proceedings, all of which raise issues arising out of various aspects of Ms Mitchell’s imprisonment. There will be little practical benefit, in those circumstances, in making the declarations the Crown seeks. Pragmatically, the interests both of Ms Mitchell and of the justice system more generally is in having the substance of those various complaints considered, and disposed of.
[20] I therefore decline to make the declarations of mootness the respondents seek.
[21] I refer to the case management Minute issued contemporaneously with this judgment.
“Clifford J”
Solicitors:
Crown Law, Wellington for Respondent
11 New Zealand Māori Council v Attorney-General [Radio Assets Case] [1996] 3 NZLR 140 at 186.
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