Nuku v Chief Executive, Department of Corrections
[2018] NZHC 2549
•28 September 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-001984 [2018] NZHC 2549
BETWEEN KARL NUKU
Plaintiff
AND
THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Defendant
Hearing: 17 August 2018 Appearances:
The Plaintiff in Person, via AVL
E McCaughan and L Nunweek for the DefendantJudgment:
28 September 2018
JUDGMENT OF HINTON J
This judgment was delivered by me on 28 September 2018 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker Ltd, Auckland
Party:
K Nuku
KARL NUKU v DEPARTMENT OF CORRECTIONS [2018] NZHC 2549 [28 September 2018]
Introduction
[1] Mr Karl Nuku is an inmate at Rimutaka Prison. Mr Nuku seeks an order that the defendant permit him to retain his trial audio files, recorded on 93 individual CDs, “in his possession, in his cell at all times”.1 The key issues raised are whether the trial audio CDs are “legal papers”, and the extent of a prisoner’s rights to possession of that property.
Change of name of defendant
[2] Mr Nuku’s statement of claim was filed against the “Prison Director at
Paremoremo Prison”. Mr Nuku was subsequently transferred to Rimutaka Prison.
Mr McCaughan, counsel for the defendant, submits that in order to ensure that this decision is generally applicable, the appropriate defendant should be “Chief Executive, Department of Corrections”. There was no contrary submission by
Mr Nuku, nor would that be expected.
[3] I therefore make an order replacing the Prison Director at Paremoremo Prison as defendant, with the Chief Executive, Department of Corrections (Corrections).
Background
[4] The following is taken from the agreed statement of facts.
[5] In late December 2014, Mr Nuku made a request to the Ministry of Justice (the Ministry) to be provided with a copy of his trial audio files. In late November 2015, this request was met by the Ministry, who provided those audio files on a USB stick.
[6] There were problems with playing and accessing the audio files, despite the assistance of Corrections staff. These problems still persisted when Mr Nuku filed his statement of claim in the present proceeding, in late August 2017.
1 Mr Nuku’s requested order is for “… possession, in his cell, at all times”. However, his submissions are clear that he seeks to restrict Corrections from interfering with his possession of the trial audio CDs, under any circumstances.
[7] Sometime later, and with the assistance of the Ministry, the audio files were converted and burned onto 93 CDs. There appear to be no issues with Mr Nuku’s
access to the audio files contained on these CDs by use of a simple CD player.
[8] Corrections proposes to make the trial audio CDs available to Mr Nuku on the following basis:
(a)All 93 CDs will be individually logged in Corrections’ property register system.
(b)All 93 CDs will be stored under lock and key in the office of the Principal Corrections Officer at Rimutaka Prison, with the exception of those CDs which, at the relevant time, are in Mr Nuku’s possession inside his cell.
(c) Mr Nuku will be issued with up to 12 CDs at any one time. Should
Mr Nuku wish to exchange a CD he may do so on a “one-for-one” basis.
(d)Mr Nuku will only be able to change the CDs when the Principal Corrections Officer is on shift. This is typically Monday to Friday, between the hours of 8.00 am and 5.00 pm.
(e)Mr Nuku’s possession of the CDs in his cell will be conditional, as set out in the Department of Corrections Authorised Property Rules.
[9] Corrections accepts that, depending on how the CDs are classified under the Authorised Property Rules dated 27 October 2017 (the AP Rules), Mr Nuku may be entitled to have all 93 CDs in his cell at a time, but requires a Court ruling on this point. The important points for Corrections are (a) and (e) above.
[10] Mr Nuku is not satisfied with any aspect of this proposal. He contends that he
should be entitled to have all 93 CDs in his possession at all times, without Corrections having any entitlement to restrict his access to them, under any circumstances.
Issues for determination
[11] The issues are:
(a) whether the trial audio CDs are “legal papers” under the AP Rules;
(b)whether Mr Nuku has an absolute right to possess his trial audio CDs in his cell at all times, without Corrections having any entitlement to restrict his access to them; and
(c) whether and how the trial audio CDs should be logged on the
Corrections property register, while Mr Nuku is in prison.
Analysis
Are the trial audio CDs “legal papers”?
[12] If the CDs are classified as “compact discs” under Schedule 1.3(e) of the AP Rules, then Mr Nuku is limited to possessing no more than 12 at any time. If the CDs are classified as “legal papers” under Schedule 5.4(a) of the AP Rules, then as that provision places no limit on quantity, Mr Nuku can have them all in his possession at once. The Crown accepts this second interpretation is open, but argues against it.
[13] My view is that the trial audio CDs should be classified as “legal papers” under Schedule 5.4(a) of the AP Rules, as opposed to being classified as “compact discs” under Schedule 1.3(e).
[14] Schedule 1.3 of the AP Rules is titled “Literature/Music Items”, and provides for prisoners to have limited access to (a) books, (b) magazines, (c) newspapers, (d) cassettes, and (e) compact discs. It seems the purpose of Schedule 1.3 is to provide for restricted access of prisoners to written and recorded items which have entertainment value, or in the case of religious texts, spiritual value. These are all items which possess currency beyond the individual prisoner, unlike personal legal documents, which, but for the most exceptional of cases, will not have any interest to any other prisoner. There is an understandable concern within any prison to hamper the development of a black market where prisoners may trade contraband amongst
themselves. For such a reason, there is a clear justification for limiting prisoner access to items which possess currency among the general population of prisoners. Conversely, where items have little or no value beyond an individual prisoner, such a justification does not arise. As such, I consider it a poor fit to include CD recordings of legal audio files under the definition of compact discs in Schedule 1.3(e) of the AP Rules.
[15] “Legal papers”, in Schedule 5.4(a) of the AP Rules, are listed without any further description, limit, or conditions, unlike many other authorised property items listed in various schedules in the AP Rules. There is little assistance to be derived from the immediately surrounding context of the provision, but nor is the meaning constrained. The lack of limit on access to legal papers recognises that a prisoner should have access to their entire legal file, not just parts of it at any one time.
[16] Corrections submits that the AP Rules were updated in October 2017 to take account of technological developments, including prohibiting electrical items and USB ports, or docking stations. But the wording “legal papers” remained. Corrections says this must be taken to be deliberate, and “legal papers” should therefore be interpreted narrowly. To be persuaded of that point, I would need more than just a lack of amendment. The technological update does not appear to have been comprehensive. It might equally have been expected that “compact discs” in Schedule 1.3(e) would be updated to include CDs onto which are recorded any kind of material, extending beyond literature or music, if that were intended. As matters stand, it remains the case that audio recording of legal files on CDs does not fit comfortably into “Literature/Music Items”, and yet is not specifically provided for elsewhere in the AP Rules.
[17] I accept that the ordinary meaning of “papers” would be limited to hard copies of legal files, recorded on paper. However, I consider that the term “legal papers” is broad enough in this context to encompass forms of legal correspondence, or documents, which are recorded on various media.
[18] Compact discs, in admittedly different contexts, have been included within the definition of “documents”.2 In the Court of Appeal in R v Misic, the term “document”, in the context of the offence of dishonestly taking or using a document,3 was held to include compact discs. The Court made statements of general application regarding the interpretation of legislation in the context of advancing technology, and in particular stated:4
Essentially, a document is a thing which provides evidence or information or serves as a record. The fact that developments in technology may improve the way in which evidence or information is provided or a record is kept does not change the fundamental purpose of that technology, nor a conceptual appreciation of that function. Legislation must be interpreted with that in mind.
[19] Legal “documents” arguably comprise a broader category than “legal papers”, for obvious reasons. But bearing in mind the purpose of the separate schedule item for “legal papers” and the fact that Corrections accepts a prisoner may have access to the entire paper file, I consider that “legal papers” includes trial audio recordings stored on CDs.
[20] The outcome of classifying the trial audio compact discs as “legal papers”
under Schedule 5.4(a) is that the limitation of 12 CDs does not apply. As a result,
Mr Nuku would prima facie be permitted to have possession of all 93 trial audio CDs in his cell.
Is Corrections entitled to restrict access to the trial audio CDs?
[21] Mr Nuku seeks more than to avoid the limitation on the number of CDs he may have in his cell at any one time. He also seeks an order that the CDs remain in his possession, in his cell, at all times, by which he means that Corrections has no entitlement to restrict his access to them, under any circumstances.
[22] Corrections submits that, regardless of whether the trial audio CDs are treated as compact discs or legal papers, the order sought by Mr Nuku is contrary to the
2 See for example: Crimes Act 1961, s 217(c); High Court Rules 2016, r 1.3(1) definition of
“document”.
3 R v Misic [2001] 3 NZLR 1 (CA).
4 At [31].
provisions of the Corrections Act 2004 (the Act) and the Corrections Regulations 2005 (the Regulations), and should therefore be declined.
[23] I agree with Corrections that the order sought by Mr Nuku, insofar as he seeks possession “at all times”, is contrary to the provisions of the Act and the Regulations, whether the CDs are categorised as “legal papers”, or not.
[24] The purpose and principles of the corrections system are set out at ss 5 and 6 of the Act. In particular, s 6(1)(a) provides:
(a)the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:
…
[25] The scheme of the Act and the Regulations makes it clear that no prisoner has any absolute right of access to any item of property. Ellis J made a similar observation in Hudson v Attorney-General.5
[26] Section 43(1) of the Act, provides that prisoners may be issued with, or allowed to keep, authorised property, subject to the limits and conditions in the AP Rules and any special conditions imposed by the prison manager.
[27] Section 43(2) of the Act then places significant qualifications on the possession of any authorised property. The subsection provides that:
(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
5 Hudson v Attorney-General [2017] NZHC 1441 at [42].
(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.
...
[28] Regulation 33 of the Regulations provides that a manager of a prison may refuse under s 43(3) of the Act to allow a prisoner to keep any item of authorised property in certain circumstances. Those circumstances include an emergency in the prison; where prison security is threatened; or where the presence of an item in a shared cell threatens the safety or welfare of any prisoner in that cell.
[29] To emphasise the fact that no right to property on the part of a prisoner is absolute, s 69(2) of the Act makes it clear that even those minimum entitlements which a prisoner has to a bed and bedding can be removed in certain circumstances, including an emergency or threats to security or safety.
[30] The explanatory note to the AP Rules also makes it clear that the issue and use of all property is conditional and, even where an item qualifies as authorised property, a prison director is still entitled under circumstances outlined in the Act to refuse to allow a prisoner to keep it.
[31] If Corrections were prohibited from carrying out its functions in accordance with the Act and the Regulations, it would be acting inconsistently with the principle in s 6(1)(a) of the Act, which as noted provides that public safety is the paramount consideration.
[32] In Greer v Prison Manager at Rimutaka Prison, a case referred to in Hudson, Corrections restricted access to legal papers under s 43(2)(g), allowing the applicant
to keep only three boxes of his legal papers in his cell, rather than all eight or nine.6
The High Court held that the decision was rational and justifiable as it enabled Corrections to undertake effective cell searches and lowered the risk of fire, which was heightened by the presence of such a large volume of combustible material.7 By way of further example, a CD could be converted to a weapon and used to injure the prisoner, another prisoner, or anyone else. While there is no evidence at this stage that Mr Nuku’s possession of the CDs gives rise to any risk of such a use, that may change. For instance, Mr Nuku may in the future be required to share a cell with another prisoner. In such circumstances, Corrections would have clear obligations to ensure the safety of both prisoners.
[33] As noted, it would seem that there are presently no circumstances giving rise to concerns for the safety or security of the prison (although that is a matter for Corrections). On that basis, Mr Nuku would currently be entitled to have all of the CDs in his possession, but subject to any relevant change in circumstances.
[34] In support of the absolute order he seeks, Mr Nuku submits that the only information a decision-maker can take into account is that which is current, and he points to there being no current security issues. However, this is irrelevant. It is not suggested by Corrections that the security conditions are currently triggered. There is no “decision” currently being made.
[35] Mr Nuku then argues that the provisions of the Act and the Regulations on which Corrections relies to oppose an order for retention “at all times” are in breach of his right to freedom of expression under s 14 of the New Zealand Bill of Rights Act
1990 (NZBORA). Any limit whatsoever to his access to the trial audio CDs is said to be an unjustifiable limitation on his right to freedom of expression.
[36] In support of his argument, Mr Nuku relies on Hudson v Attorney-General, where Ellis J found that a prisoner was entitled to access to documents concerning legal proceedings, and also should have freedom against having those documents
6 Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December
2008.
7 At [17].
searched or seized.8 Mr Nuku points to a footnote in the judgment where Ellis J opined that, on the basis that the rules made under the Corrections Act 2004 were to be based on the United Nations Standard Minimum Rules for the Treatment of Prisoners, it is arguable whether there should be any limit on a prisoner’s right of access to their legal papers.9 Mr Nuku submits that this points away from any limit, in any circumstances, on a prisoner’s right to legal papers. However, Ellis J was discussing s 45A of the Act, which creates a mandatory requirement for the Chief Executive to issue rules regarding the items of property that prisoners may be allowed to keep, and the conditions attaching to possession of those items. Ellis J was suggesting that the Chief Executive may be restricted from making and enforcing rules under s 45A that limit a prisoner’s access to legal papers. It does not follow that a prisoner’s right of access cannot be circumscribed under the circumstances already mandated by Parliament in s 43. Indeed, Ellis J particularly noted the power that existed under s 43 and was clearly of the view that any right a prisoner has to access property is not absolute.10
[37] Mr Nuku also relies on Taunoa v Attorney-General, suggesting that Ronald Young J effectively held in that case that interference with a prisoner’s legal matters would wrongly amount to preventing their access to the Courts to challenge decision-making.11 However, that was a case involving delay by Corrections in providing reasons to prisoners who had been subject to segregation, where segregation lasted 14 days and Corrections was taking up to 20 days to provide reasons. A right to a remedy was lost because it was impossible for a prisoner to challenge the reasons for the decision to place them in segregation, before the segregation period ended.
[38] Clearly not all cases of interference with legal matters or legal materials will amount to preventing access to justice, as it did in Taunoa. Corrections being entitled to rely on its powers to ensure prison safety by removing legal papers (in this case CDs) from Mr Nuku’s cell, where circumstances oblige them to do so, is most unlikely to have the effect of denying Mr Nuku the right to a remedy. Any restriction on
Mr Nuku’s access to his trial audio CDs can only be such as is necessary to ensure
8 Hudson v Attorney-General [2017] NZHC 1441.
9 At [47], footnote 17.
10 At [42].
11 Taunoa v Attorney-General [2004] 7 HRNZ 379 (HC) at [88].
prison safety or meet the other circumstances set out in the legislation. If it goes beyond that, and/or does have the effect of denying a remedy, that can be the subject of challenge at the time. It is also relevant to note, as Corrections submitted, it is unlikely circumstances will arise which will require removal of both the hard copy paper files and the trial audio CDs.
[39] Mr Nuku also refers to the subsequent decision of the Court of Appeal in Taunoa (where Ronald Young J was upheld).12 He suggests that in the Court of Appeal it was conceded by Corrections that it was unlawful to inhibit access to, or seize privileged material from prisoners’ cells.13 In the context of the preceding paragraphs of that judgment, I think it clear that what Corrections was conceding was that the removal of privileged material from prisoners’ cells in that case was improper. That does not mean they were accepting that any removal or restriction of privileged material would be illegal or improper.
[40] Finally, Mr Nuku relies on the decision of Wylie J in Smith v Attorney-General.14 He says that Wylie J held that the Department’s decision-making must be carried out in accordance with ss 5 and 6 NZBORA. However, as Corrections points out, the Court of Appeal in Smith declined to determine whether Corrections is required to take account of NZBORA implications when making managerial decisions for prisoners.15
[41] Further, as noted, this is not a case of Corrections making a managerial decision to remove the CDs from Mr Nuku’s cell and possession. This is an application by
Mr Nuku, prior to any decision to remove the CDs from his possession actually having been made, for an order to forestall such a decision. Whether Corrections is required to consider s 14 of the NZBORA, in the event they do decide to remove Mr Nuku’s CDs from his cell at some point in the future, is not a matter which needs to be considered in the present case. If and when Corrections so act, it will be open to
Mr Nuku to challenge that decision on the foregoing basis.
12 Attorney-General v Taunoa [2006] 2 NZLR 457 (CA).
13 At [253].
14 Smith v Attorney-General [2017] NZHC 463, [2017] 2 NZLR 704.
15 Attorney-General v Smith [2018] NZCA 24 at [28].
[42] Corrections accepts that a right of freedom of expression, as expressed in s 14 of the NZBORA, is engaged in this case on the basis that Mr Nuku may wish to make an application for the exercise of the Royal Prerogative of Mercy. However,
Mr McCaughan submits that the limitations on Mr Nuku’s possession of the trial audio
CDs, created by the Act and the Regulations, are a justified limitation on that right.
[43] Applying the analysis described by Tipping J in Hansen v R,16 I agree with
Corrections’ argument as follows:
(a)The limits placed on prisoners’ rights to possession of private property have been prescribed by statute in order to assist in achieving safety for all prisoners, prison staff, and the general public. This is clearly an important purpose, sufficient to justify circumscribing prisoner rights.
(b)Preserving the right of Corrections to remove certain items from prisoners’ cells is rationally connected to the purpose of maintaining a safe prisoner environment.
(c)The limits in the Act and the Regulations impair the rights of prisoners to possess their property no more than is necessary and are in proportion to the objective of securing safety within the prison. Under the Act and the Regulations, Corrections is not entitled to limit Mr Nuku’s access to his CDs without good reason. Instead, in accordance with the legislation, Corrections is only entitled to remove Mr Nuku’s CDs where certain circumstances exist, for example relating to prisoner safety.
(d)As already noted, if Corrections, at some future point in time, takes the step of removing any or all of the CDs from Mr Nuku’s cell on such a basis, then Mr Nuku will be able to challenge that decision in the usual ways.
[44] I accept that the restrictions in the Act and the Regulations on Mr Nuku’s ability to retain the trial audio CDs while he is in prison are a justified limitation on his right to freedom of expression.
[45] Mr Nuku also appeared to claim that any removal of the CDs from his cell could amount to a breach of his rights under s 21 NZBORA. I would not consider that the proper exercise of Corrections’ powers under s 43 of the Act and the associated provisions would amount to an unreasonable search or seizure pursuant to s 21 for the reasons discussed by Kos J in Mitchell v Attorney-General.17 In any event, on the same analysis set out above, the restrictions in the Act and Regulations are a justified limitation on Mr Nuku’s rights under s 21 NZBORA.
[46] Not only do I consider the relevant provisions of the Act and Regulations to be justified, I consider that Corrections would be in breach of its duty to maintain prison safety and security if it did not act in accordance with those provisions.
[47] Therefore, I consider that the request by Mr Nuku for an order entitling him to possession of his CDs at all times would be in contravention of the Act and the Regulations and must be denied.
Logging on property register
[48] I now turn to the final point at issue – whether and how the trial audio CDs should be logged on Corrections’ property register while Mr Nuku is in prison.
[49] The position of Corrections is that, under reg 30 of the Regulations, it is a mandatory requirement that Mr Nuku’s trial audio CDs be logged in the property register, and they should be logged individually. Mr Nuku says they should be logged under one entry.
[50] Regulation 30 provides:
30 Property register
(1)The manager of a prison must ensure that a register of prisoners’ property is maintained, on paper or in electronic or other similar form, and that there is entered in it, in relation to each prisoner received into the prison, a full description of—
(a)all items of property (whether it is authorised property or an unauthorised item)—
(i) brought when received into the prison; or
(ii) acquired while in the prison; or
(iii)received by a staff member of a prison on behalf of the prisoner; and
…
[51] There can be no debate but that the CDs are “items of property” acquired while in prison. The manager of the prison has a clear obligation to both maintain a register and to enter all items of property onto it.
[52] Mr Nuku says that none of his other legal materials, being the paper files relating to his legal proceedings, have been individually logged on the register, and he argues that therefore only a single-entry stipulating “93 discs of legal material (trial audio files)” should be entered onto the register.
[53] It would clearly be unrealistic to individually enter every single hard copy page of Mr Nuku’s legal files onto the prison register, whereas such a hurdle does not arise with the CDs.
[54] The Regulation makes it clear that “all items of property” are to be entered onto the register. I consider the most sensible interpretation is that each CD comprises an individual item of property. Though the information they record is all derived from the same trial, and was originally recorded on a single USB stick, they are distinctly separate physical items. As they may be easily split up and distributed or lost, it is appropriate that Corrections is able to keep an accurate register of each individual CD.
[55] I agree with Corrections it is desirable that as accurate a record as possible be kept of a prisoner’s property. I am of the opinion that, within the terms of reg 30, Corrections can enter the CDs onto the register as individual items of property.
Result
[56] Mr Nuku’s trial audio files stored on 93 individual CDs should be viewed as “legal papers” pursuant to Schedule 5.4(a) of the AP Rules. The effect is that there would be no limit on the number of those CDs that Mr Nuku may keep in his cell at any one time.
[57] I decline to make the order sought by Mr Nuku that he be permitted to retain those CDs in his cell, at all times. Such an order would be contrary to the provisions of the Act and the Regulations, which enable Corrections in specific circumstances to remove property from a prisoner’s possession.
[58] The limitations on Mr Nuku’s possession of the trial audio CDs created by the Act and Regulations are a justified limitation on Mr Nuku’s right to freedom of expression under s 14 of the NZBORA and (if engaged) also on his right to be secure against unreasonable search and seizure under s 21 NZBORA.
[59] Pursuant to reg 30 of the Regulations, it is a mandatory requirement that
Mr Nuku’s trial audio CDs be logged in Corrections’ property register. Corrections is entitled to enter the 93 CDs on an individual basis.
Costs
[60] Corrections sought costs in the event it was successful. Considering that
Mr Nuku has convinced me that Corrections’ proposed interpretation of the AP Rules is incorrect, albeit that Corrections did not argue strongly otherwise, I do not consider a costs order is appropriate.
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