Mitchell v Prison Director Arohata Prison

[2016] NZHC 810

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-55 [2016] NZHC 810

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

Hearing:	8 April 2016
Counsel:	Applicant in person H Carrad and T Westaway for Respondent
Judgment:	27 April 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

3 pm on the 27th day of April 2016

MITCHELL v THE PRISON DIRECTOR AROHATA PRISON [2016] NZHC 810 [27 April 2016]

[1]      Kerryn Mitchell is a serving prisoner.  At the time of the events presently at issue (and at the time of the hearing before me) she was incarcerated in Arohata Women’s Prison.   She was at one time, permitted to keep an electric kettle in her cell.   She used this to boil water to make coffee, prepare instant noodles and for personal hygiene.  The confiscation of her kettle earlier this year has resulted in the present proceedings.

[2]      The circumstances of the kettle’s confiscation are, briefly, these.

[3]      Ms Mitchell was scheduled to be transferred to Auckland Region Women’s Correctional Facility (ARWCF) on 6 January 2016.  She was required to be placed either in handcuffs or a waist restraint prior to transfer.

[4]      When Corrections staff attempted to place these restraints on Ms Mitchell on the morning of 6 January they noticed that her arms were red and appeared to have been recently burned.  Staff subsequently ascertained that at about 1 am that morning Ms Mitchell had boiled water in her cell and deliberately poured the water over her arms.

[5]      As a result of her injuries it was determined that Ms Mitchell was not fit to transfer to ARWCF.  She was placed in the At Risk Unit.  Her jug was taken away and has not been returned.

[6]      Evidence has been filed which shows that Ms Mitchell still has access to hot water.  While unlocked, she can obtain it from a zip in the communal area of the prison.  At other times she has a one litre thermos flask which she is able to have refilled during lockup.  She disputes the efficacy and adequacy of these measures.

These proceedings

[7]      Ms Mitchell seeks judicial review of the decision to take away her kettle. She also challenges the removal of kettles from other prisoners although these prisoners are not parties to this proceeding.

[8]      Ms  Mitchell  also  seeks  interim  orders  requiring  that  her  own  kettle  be returned pending the determination of her substantive application.   This decision concerns that application.

Should interim orders be made?

[9]      Section 8(1) of the Judicature Amendment Act 1972 provides:

Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

(a)       Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:

(b)       Prohibiting  or   staying  any  proceedings,  civil  or  criminal,  in connection with any matter to which the application for review relates:

(c)       Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.

[10]     Subsection (2) applies only where the Crown is a respondent, as it is here. It provides:

Where the Crown is the respondent (or one of the respondents) to the application for review the Court shall not have power to make any order against the Crown under paragraph (a) or paragraph (b) of this section; but, instead, in any such case the Court may, by interim order, –

(a)       Declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:

(b)       Declare that the Crown ought not to institute or continue with any proceedings,  civil  or  criminal,  in  connection  with  any  matter  to which the application for review relates.

[11]     Here, the present reality is that Ms Mitchell has no kettle.  She therefore has no position to preserve in the sense required by s 8.  And to the extent that, in an

“extraordinary” case, the possibility of positive, or mandatory interim orders remains open,1 this is not that case.

[12]     The possession of property by prisoners is governed primarily by s 43 of the

Corrections Act 2004, which provides:

Authorised property

(1)       A  prisoner  may  be  issued  with,  or  allowed  to  keep,  authorised property subject to—

(a)      any condition set out in rules made under section 45A; and

(b)       any  special  conditions  imposed  by  the  prison  manager relating to the use of the property; and

(c)      the condition described in section 44(1).

(2)       Despite subsection (1), the prison manager may refuse to issue or allow a prisoner to keep an item of property if he or she has reasonable grounds to believe that—

(a)       the item may be used to injure the prisoner or any other person, or to damage property; or

(b)       the item is a camera, tape recorder, or electronic device that may be used to record security features or actions in the prison; or

(c)       the item may be used to circumvent practices or procedures in the prison; or

(d)       the item has been obtained through coercion of a prisoner or as a result of other improper behaviour; or

(e)      the item is objectionable; or

(f)       the item may assist a prisoner to—

(i)       discover new methods of committing offences; or

(ii)      continue offending; or

(g)       the item may interfere with the effective management of the prison.

(3)       Despite subsection (1), the prison manager may refuse to issue or allow a prisoner to keep any item of authorised property—

(a)      if the prisoner is—

1      See  the  discussion  in  Taylor  v  Chief  Executive  of  the  Department  of  Corrections  [2010] NZCA 371, [2011] 1 NZLR 112.

(i)        subject  to  a  penalty  of  forfeiture  of  privileges imposed under subpart 5 of Part 2; or

(ii)      the subject of a direction under section 60 for the reason described in section 60(l)(b) (which relates to assessing or ensuring the prisoner's mental health); or

(iii)      subject  to  cell  confinement  imposed  as  a  penalty under subpart 5 of Part 2; or

(b)       if the prisoner is detained in a police jail and, in the opinion of the manager, having regard to the facilities available at the  police  jail   and  the  resources  available,  it  is  not practicable to allow the prisoner to keep the item; or

(c)       in  any other  circumstances  specified  in  regulations  made under this Act or rules made under section 45A.

[13]     The Authorised Property Rules promulgated under s 45A of the Act provide that prisoners may be issued with and allowed to keep an electric jug which is, accordingly, regarded as “authorised property”.  But the Rules make it clear that such authorisation is subject to:

(a)       a specific exception where a flask has been issued;

(b)a general condition that the prison director will not allow a prisoner to keep an item of property where he or she considers it is “likely to interfere with the security and good order” of the prison;

(c)       section 43 of the Act.

[14]     Accordingly, and even putting to one side the very real issues about the justiciability of day to day operational decisions made by those charged with running the  nation’s  prisons,  it  is  fanciful  to  suggest  that  the  decision  to  take  away Ms Mitchell’s kettle was not soundly based.  She had used the kettle to boil water that she then poured over herself.  Although Ms Mitchell disputed the seriousness of her injuries she did not dispute that the ACC claim form that was filled out on her behalf (and which she had signed) correctly recorded that she had “deliberately poured boiling water onto arms”.

[15]     There is potentially an inference to be drawn that she did what she did to frustrate her planned transfer to ARWCF.

[16]     I  accept  that  the  confiscation  has  had  an  impact  on  the  quality  of

Ms Mitchell’s day to day life in prison.  But against that:

(a)       she has been issued with a flask (which is a specific exception to any

“right” conferred on her by the Rules);

(b)on any analysis, her actions in the small hours of 6 January and her apparent motive for them engage the general “good order” condition; and

(c)      most importantly, and whatever her motivation may have been, it is indisputable that letting her keep the kettle would put herself and others at risk and that the confiscation (and the refusal to return) can be justified under s 43(2)(a).

[17]   In summary, Ms Mitchell has no position to preserve.   Her underlying application for judicial review appears, on the basis of my (interim) analysis, to be flawed. The application for interim orders is dismissed accordingly.

Post script

[18]     Shortly after the hearing the defendant advised the Court that Ms Mitchell has now been transferred to ARWCF where she is presently being held in a high security area where electric jugs are not permitted in prisoners’ cells.   Her jug is, however, to be transferred to ARWCF where it will be stored in accordance with the relevant regulations.   This turn of events merely confirms the conclusion I have reached above about Ms Mitchell’s fatal want of a relevant position to preserve.

“Rebecca Ellis J”

Solicitors:           Crown Law, Wellington for Respondent

Copy to:            Kerryn Mitchell, Applicant