Obiaga v Visiting Justice at Auckland Prison
[2018] NZHC 3095
•27 November 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-462
[2018] NZHC 3095
UNDER the Judicial Review Procedure Act 2016 BETWEEN
DAVID IKENNA OBIAGA
Applicant
AND
THE VISITING JUSTICE AT AUCKLAND PRISON
First Respondent
THE ATTORNEY-GENERAL ON BEHALF OF THE DEPARTMENT OF
CORRECTIONS
Second Respondent
Hearing: 7 November 2018 Counsel:
G H Allan for Applicant
Z R Johnston and J A Herring for Respondents
Judgment:
27 November 2018
JUDGMENT OF BREWER J
This judgment was delivered by me on 27 November 2018 at 4:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Macalister Mazengarb (Wellington) for Applicant Crown Law (Wellington) for Respondents
OBIAGA v THE VISITING JUSTICE AT AUCKLAND PRISON & ANOR [2018] NZHC 3095 [27 November 2018]
Introduction
[1] Mr Obiaga is a serving prisoner at Auckland Prison. He is subject to the prison discipline system established by the Corrections Act 2004 (“the Act”). This prescribes offences against prison discipline, by whom alleged offences are to be adjudicated, and the penalties which may be imposed for proven offending. The Corrections Regulations 2005 (“the Regulations”) contain the procedures to be followed in disciplinary proceedings.
[2] Complaints of offending against prison discipline are not criminal charges and, if proven, do not create a criminal record.
[3]On 18 July 2017, Mr Obiaga was charged with:
(a)assaulting another prisoner;1
(b)disobeying a lawful order of a prisoner officer.2
[4] The charges were heard by a hearing adjudicator on 2 August 2017.3 The hearing adjudicator found the charges proved and imposed penalties.
[5] Mr Obiaga appealed to a Visiting Justice4 against the findings of the hearing adjudicator. On 5 September 2017, the Visiting Justice reheard the whole case.5 He found the charges proved and re-imposed the penalties ordered by the hearing adjudicator.6
1 Corrections Act 2004, s 128(1)(g).
2 Section 128(1)(a).
3 Hearing adjudicators are employees of the Department of Corrections appointed pursuant to s 15 of the Act to exercise the powers and functions prescribed by s 16 of the Act. These include hearing complaints relating to offences against discipline alleged to have been committed by a prisoner (s 133 of the Act).
4 A Visiting Justice is defined in s 3 of the Act as a District Court Judge or a person appointed under s 19(2). A Visiting Justice has, in the area of prison discipline, broader powers than a hearing adjudicator and these extend to an appellate role.
5 As required by s 136.
6 The penalties were 14 days loss of privileges on the assault charge plus five days loss of privileges on the charge of disobeying a lawful order.
[6] Mr Obiaga now applies for judicial review of the process adopted by the Visiting Justice. He claims the process breached his right to natural justice and breached procedures mandated by Schedule 7 of the Regulations. He seeks declarations to this effect and orders quashing the Visiting Justice’s findings that the charges were proven and the resulting penalties.
Background
[7] Mr Obiaga was involved in a fracas with other prisoners on 18 July 2017. The evidence against him, including CCTV and body camera footage, showed Mr Obiaga being confronted by a Mr Lawson. A Mr Hay was in the immediate vicinity. Shortly afterwards, Mr Lawson was seen to walk in the direction of his cell. He was attacked by Mr Hay as he walked past Mr Hay. Mr Obiaga was seen to run over to the struggling pair and to put Mr Lawson in a headlock. Prison guards came to the scene to find Mr Lawson being held in the headlock and Mr Hay still present. From the other side of a locked grill-door, Officer Jones ordered Mr Obiaga to release Mr Lawson. Mr Obiaga failed to obey. The order was repeated several times but Mr Obiaga maintained the headlock. The prison officers then went through the grill- door and Mr Obiaga released Mr Lawson, who promptly attacked Mr Hay.
[8] The defence Mr Obiaga wanted to put forward is described in his affidavit filed in this proceeding.
[9] Mr Obiaga wanted to give evidence that Mr Lawson, in the confrontation, had threatened to beat and stab Mr Obiaga and Mr Hay. Mr Lawson had threatened Mr Obiaga on previous occasions but this was a more serious threat. Mr Obiaga thought Mr Lawson might be going to his cell to get a weapon (“a shank”) that he could use to stab Mr Hay or Mr Obiaga. When Mr Hay assaulted Mr Lawson, Mr Obiaga thought that this was to try to stop Mr Lawson from getting the shank.
[10] Mr Obiaga wanted to give evidence that he went to assist Mr Hay because he was fearful for Mr Hay’s safety. Mr Lawson is a large and strong man with a history of threatening conduct and of violence in prison.
[11] Further, Mr Obiaga wanted to give evidence that the reason he did not obey Officer Jones when first instructed to release Mr Lawson from the headlock is that the Corrections Officers were still behind the locked grill-door and he was scared of what Mr Lawson would do if he released him. He complied with the orders of the Corrections Officers once they had come through the grill-door. As Mr Obiaga had feared, Mr Lawson then attacked Mr Hay causing him injuries.
Breach of natural justice/breach of the Regulations
[12] Mr Obiaga submits the following went wrong with the process adopted by the Visiting Justice:
(a)He was denied a lawyer. He wanted to justify his actions by claiming he acted in defence of himself and, in particular, in defence of Mr Hay. He needed a lawyer to assist him to understand and articulate his justification. This was particularly necessary because English is not Mr Obiaga’s first language.
(b)He wanted to call Mr Hay as a witness. This was refused.
(c)He wanted to call Officer Jones as a witness. This was refused.
(d)The Visiting Justice never understood the nature of Mr Obiaga’s defence and did not address it.
[13] There is no dispute that Mr Obiaga asked for and was denied legal assistance. Nor is there any argument that he was not permitted to call Mr Hay or Officer Jones as witnesses. There is a dispute as to whether the Visiting Justice understood that Mr Obiaga was trying to justify his actions by saying he acted in defence of Mr Hay. The contest between the parties, really, comes down to what the entitlement to natural justice means in the context of determining allegations of breaches of prison discipline.
[14] The concept of natural justice is not a fixed one. Identifying the relevant principles may be simple, but giving content to those principles is more difficult.
Often cited is the Privy Council’s definition that natural justice “is but fairness writ large and juridically… fair play in action”.7 But how does a tribunal determine what is fair and what is not? The answer will be coloured by context. This was expressed by Cooke J in Daganayasi v Minister of Immigration:8
The requirements of natural justice vary with the power which is exercised and the circumstances. In their broadest sense they are not limited to occasions which might be labelled judicial or quasi-judicial. Their applicability and extent depend either on what is to be inferred or presumed in interpreting the particular Act... or on judicial supplementation of the Act when this is necessary to achieve justice without frustrating the apparent purpose of the legislation… In order to stress that there are some legally enforceable elementary standards not confined to the exercise of powers like those of Courts but that they do not necessarily call for a procedure at all close to Court procedure, the English Courts have tended for more than a decade to use the term “fairness” instead of or as an alternative to natural justice.
[15] There is a necessary element of flexibility. The English Court of Appeal said the requirements of natural justice must depend on the circumstances of the case, including “the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth”.9 The significance of the decision will be a relevant factor,10 as will the purpose of the statute under which the decision- making power is being exercised.11 Our Court of Appeal recently distilled the matter into one question: what is required to ensure fairness in the particular case?12
[16] In this case the context is prison discipline. The issue is what was required of the prison disciplinary system to ensure Mr Obiaga was treated fairly.
[17] I will first outline the nature and the purpose of the prison disciplinary scheme and its surrounding statutory framework. Speaking of the Act’s forerunner, the Penal Institutions Act 1954, McGrath J said in Drew v Attorney-General:13
[85] The Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system. It reflects the particular need
7 Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718.
8 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
9 Russell v Duke of Norfolk [1949] 1 All ER 109 (CA) at 118; cited by Blanchard J in Jae Carpets & Pest Control Services Ltd v Disputes Tribunal at Takapuna (1996) 9 PRNZ 358 (HC) at 359.
10 Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220.
11 R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (HL) at 560.
12 Graeme Martin Contracting Ltd v Disputes Tribunal [2018] NZCA 328 at [37].
13 Drew v Attorney-General [2002] 1 NZLR 58 (CA).
in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living…
[86] At the heart of the statutory scheme for prison discipline is the policy that is shared with many countries that responsibility for dealing with misconduct by prisoners should, in general, form part of the governmental function of prison management. In this context the Act contemplates that the principal burden of disciplinary adjudication should fall on those responsible for the operation of the prison. That is achieved by providing under the Act a two tier disciplinary process. At the first level the prison disciplinary system is administered by senior officers in the prison, with the aim that the great majority of incidents will be dealt with at this level in a fair, timely and effective manner consistent with the need to maintain order. An important safeguard for prisoners who become subject to the process at this level is a right of appeal against any finding by the superintendent that a complaint concerning an offence against discipline has been proved and against the penalties that may consequently be imposed…
[18] Justice McGrath went on to draw distinctions between the disciplinary scheme and the criminal justice system, noting:14
(a)The disciplinary system provides for significantly less severe maximum penalties than the criminal justice system for equivalent conduct.
(b)The implications of a finding that a disciplinary charge is proved are less far-reaching; the finding will not form the part of any criminal record.
(c)The second stage of the disciplinary process has the power to impose harsher penalties than the first.
(d)The disciplinary system operates in a more inquisitorial manner than the adversarial criminal justice system.
[19]Similarly, in Goldberg v Attorney-General, Baragwanath J said:15
[55] … While it is now settled that the basic human rights such as natural justice including fair process and access to legal advice remain the entitlement of a prisoner, it does not follow that the statutory sanctions engage the entire panoply of the criminal law…
14 At [89]-[91].
15 Goldberg v Attorney-General [2004] NZAR 159 (HC).
[20] There is also a need for efficiency. As Dunningham J put it recently, “the disciplinary scheme in the Corrections Act is intended to operate swiftly and comparatively informally”.16 Similar comments were made by the Court of Appeal in Department of Corrections v Taylor:17
[51] … But, as Ms Casey submits, there is a need for an efficient and speedy resolution, particularly, of these preliminary matters. The figures cited in Drew at [41] were in the order of about 8,800 offences involving Superintendent hearings per year plus about 800 Visiting Justice hearings. That figure is likely to have increased with the increase in the prison muster.
[21] Efficiency of process must be weighed as part of the matrix of natural justice considerations.18 It is true that a prisoner going through a disciplinary hearing may not be entitled to all the protections of a defendant in a criminal proceeding. But it is important to recognise that many prisoners are in a position of particular vulnerability when taking part in quasi-judicial processes. This may be due to a combination of factors, such as poor education, lack of financial resources and various substance abuse and mental health problems. The basic standards of natural justice must be met.
[22] Chief among these is the right to be heard. This was described as a “fundamental requirement of the principles of natural justice” by Clifford J in the context of the prison disciplinary system.19 His Honour went on to describe the right as “a real opportunity” for a prisoner to state their case as best they can, not necessarily surrounded by any particular formality.20
[23] Also of importance is the right to legal representation. As s 135 of the Act provides, this right is not unlimited and not guaranteed in the context of prison discipline.21 It is a discretionary matter for a hearing adjudicator or Visiting Justice, having regard to the statutory criteria. The discretion cannot, of course, be exercised in an arbitrary way. As Whata J recently said, the object of the criteria is to secure a disciplinary decision in accordance with the principles of natural justice and in
16 Genge v Visiting Justice at Christchurch Men’s Prison [2017] NZHC 35 at [61].
17 Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34.
18 Kumar v Visiting Justice at Auckland Prison [2018] NZHC 209 at [40].
19 Lory v Attorney-General [2008] NZAR 373 (HC) at [27].
20 At [35]-[36].
21 See [26] of this judgment.
compliance with New Zealand’s domestic and international fair trial obligations.22 The right to legal representation must therefore be given recognition in appropriate circumstances. The ambit of such circumstances was traced by the majority of the Court of Appeal in Drew:
[50] The ability of an inmate to put forward an adequate defence to a disciplinary charge, especially one attracting the higher level of penalties able to be imposed by a Visiting Justice, is also of relevance. An inmate of mature years and of average intellectual ability (ie average for the general population) can ordinarily be expected to cope with the task of defending himself against a charge when the facts are relatively straightforward (for example, where the decision will turn on a choice between two versions of an incident) and no question of legal interpretation or point of evidence arises. Most cases are likely to be of this kind.
[51] On the other hand, an immature or intellectually dysfunctional inmate may have difficulty in putting forward even a simple defence to a straightforward charge, at least without some assistance from the superintendent or Visiting Justice conducting the hearing…
[52] Where the facts relating to the charge or the legal issues are complicated, even inmates of above average intellect may fail to present their cases adequately unless the disciplinary regime provides proper assistance for them…
[24] In cases involving complicated issues or vulnerable prisoners, the Court went on to suggest that legal advice given to the prisoner in advance of the hearing may be insufficient to meet the standards of natural justice:
[63] It would also, in our view, be asking too much of an inmate in Mr Drew’s position, to expect him to be able, on receiving notification of the case against him, to prepare an adequate defence on the basis of advice from a lawyer about what might transpire at the hearing, including advice about how cross-examination might be conducted to good effect. As is well known, lawyers themselves are frequently caught by surprise at the way evidence emerges in the witness box. And many prisoners, even if advised in advance by a lawyer, simply do not have the ability to absorb and follow that advice when actually engaged in an adversarial or semi-adversarial hearing, particularly when under the pressure which comes from a realisation of the consequences if the defence fails. We are speaking here, we should emphasise, not of inmates with disabilities for whom advocate support (not apparently involving legal representation) appears to be available… but of inmates of average intelligence without forensic experience.
[25] A common situation where prisoners may find themselves out of their depth without legal representation is a hearing involving expert evidence. Justice John
22 Kumar v Visiting Justice at Auckland Prison at [40].
Hansen considered that where contested scientific evidence is the basis of the charge, legal representation may well be necessary to allow probative cross-examination to test the evidence.23 However, cases complex enough to trigger the requirement of legal representation need not involve scientific evidence. To borrow the language of Drew, what matters is whether the prisoner will be at a “significant disadvantage”24 in trying to defend himself without legal representation, regardless of the nature of the complexity.
Denial of access to a lawyer
[26] Mr Obiaga’s right to a lawyer was not the general right conferred on persons charged with criminal offences by s 24(c) of the New Zealand Bill of Rights Act 1990 (“NZBORA”). Section 135 of the Act required the Visiting Justice to consider and determine Mr Obiaga’s request to be legally represented:25
135 Applications for legal representation
…
(2)In determining whether to grant permission to a prisoner to be legally represented, the hearing adjudicator or Visiting Justice must have regard to—
(a)the seriousness of the conduct that is alleged to constitute the offence and the magnitude of the penalty that is likely to be imposed:
(b)the complexity of the issues that are likely to arise at the hearing (including, without limitation, points of law):
(c)any procedural difficulties likely to be encountered (for example, the need to cross-examine witnesses):
(d)the capacity of the prisoner concerned to present his or her case effectively:
(e)the need for reasonable speed generally in decision-making required for the determination of charges relating to offences against discipline:
(f)the need to ensure that hearings of those charges are conducted fairly as between—
23 Percival v Attorney-General [2006] NZAR 215 (HC) at [44].
24 Drew v Attorney-General at [60].
25 These criteria were adopted from the Queen’s Bench decision R v Secretary of State for the Home Department, ex parte Tarrant [1985] QB 251; used as guidance by the Court of Appeal in Drew v Attorney-General at [71].
(i)different prisoners:
(ii)the complainant and the defendant:
(g)any other matter that the adjudicator considers relevant.
…
[27]The Visiting Justice declined Mr Obiaga’s application as follows:
THE HEARING: VJ ROBINSON
So I will just deal with the legal representation.
MR DALEY:
Yes.
THE HEARING: VJ ROBINSON
Whereabouts in the Act?
MR DALEY:
That’s in the Corrections Act, it’s under 135, the Corrections Act.
THE HEARING: VJ ROBINSON
So I am just going to deal with now the question about legal representation because you have asked for a lawyer.
MR OBIAGA:
Yes Sir.
THE HEARING: VJ ROBINSON
So when, so I can determine whether you have a lawyer or not. So the things I have to consider are the serious nature of the conduct of the offence. So, I have looked at these three charges and I have looked at the penalty that has been imposed and those penalties are quite light, so they are not that serious. Then there is the question around the complexity of the law in relation to those charges. I do not think it is that complex and I think you and I can understand the process and the law.
Are there any procedural difficulties likely to arise? I don’t think it is. I think, you know, there’s assault charges and disobeying officers’ instructions. Those seem to me to be quite straightforward so I don’t see those as complicated.
Do you have the capacity to present your case? You and I are having a good discussion, I am listening to what you are saying. I think you have that ability.
A part of the process, and just remember this is a disciplinary process, or disciplinary hearing, it is not a Court hearing, and so part of the disciplinary hearing is to get the hearing heard fairly and quickly and providing legal representation I think would prevent that from happening and, remember, these are minor charges. We need to make sure that the case is heard fairly, so that is what my job is.
So those are the points in the Act that I need to address in determining whether or not legal representation is granted and, in this instance, for those reasons, I am declining it.
[28] The difficulty in terms of natural justice is that at this point the Visiting Justice did not know what Mr Obiaga’s defence was. He knew only what the charges were. The charges are not complex, as the Visiting Justice said. However, the justification of defence of self or another is not simple (particularly for someone with English as a second language). Section 48 of the Crimes Act 1961 (Mr Obiaga possessed a copy) seems simple:
Every one is justified in using, in defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
[29]However, Mr Obiaga needed to know, and be able to tell the Visiting Justice:
(a)The circumstances as he believed them to be (a subjective matter).
(b)That in those circumstances, applying the headlock to Mr Lawson was for the purpose of defending himself and/or Mr Hay.
(c)Applying the headlock in those circumstances was reasonable (an objective matter).
[30] Mr Obiaga needed to know also that once he had established a credible or plausible narrative for defence of himself and/or Mr Hay, the onus was on the prosecution to prove beyond reasonable doubt that self-defence did not justify Mr Obiaga putting Mr Lawson in the headlock.
[31] In my view, denying Mr Obiaga permission to be legally represented without inquiry as to the nature of Mr Obiaga’s defence and taking that into account, was an error of process.
[32] The effect on Mr Obiaga’s right to fairness of this error could have been neutralised if the Visiting Justice had realised later the nature of Mr Obiaga’s defence and taken steps to ensure Mr Obiaga addressed its components. The summary
procedure of prison discipline hearings is more inquisitorial than in criminal proceedings. A Visiting Justice can ensure fairness by assisting a prisoner to address the important issues through explanation and through focused questions. But, as I will come to, the Visiting Justice never understood Mr Obiaga’s attempts to invoke defence of Mr Hay as a separate justification for his actions and so did not give such assistance.
[33] In my view, without legal representation and without assistance from the Visiting Justice, Mr Obiaga was not afforded a real opportunity to state his case to the best of his ability. It is relevant that English is not Mr Obiaga’s first language.
Refusal to permit Mr Hay to be a witness
[34]Clause 32 of Schedule 7 to the Regulations provides:
If the prisoner pleads not guilty,—
(a)the person prosecuting the offence must present the case against the prisoner, and must be given the opportunity to call witnesses; and
(b)the prisoner must be given the opportunity to present his or her case and to call witnesses on his or her behalf; and
(c)any witness (whether called by the person prosecuting the offence or the prisoner) may be cross-examined.
[35] Mr Obiaga asked for Mr Hay to be called as a witness in his defence. The transcript records:
THE HEARING: VJ ROBINSON:
Mr Hay?
MR DALEY:
Mr Hay was the one who assaulted Mr Lawson by throwing that punch and attacking him on the way back from the microwave.
THE HEARING: VJ ROBINSON:
So he is not going to appear.
MR DALEY:
No Sir.
THE HEARING: VJ ROBINSON:
And the reason for that?
MR DALEY:
Sir, he was the perpetrator in this whole incident.
THE HEARING: VJ ROBINSON:
Do you understand why Mr Hay is not going to be here?
MR OBIAGA:
No Sir.
THE HEARING: VJ ROBINSON:
Because he is the one that started the fight.
MR OBIAGA:
Sir, may I say, I disagree with you (inaudible) side, he was not, that’s what, that’s what they were saying but he was not the, he was not the person that started this issue. The issue is, before this issue and it is very bad to me for my defence as I got no lawyer. But Mr Hay he agrees I can, we can hear from himself and he can be cross-examined by the prosecutor.
MR DALEY:
Can we ask what it is that Mr Hay would offer that Mr Reid would not be able to do so?
MR OBIAGA:
These are two different people and they will give two different sides of the situation and I will respectfully ask you to bring him here because it will share more and light, two different people, two different event, and those who is going to support my affidavits.
[36]Mr Obiaga later renewed his request for Mr Hay to give evidence:
MR OBIAGA:
No, no, I want him here please. Your Honour what about Mr Hay, it’s very important for him to be here, because when you see the person I’m talking about, it is very important for Mr Hay and I’ve met the (inaudible) I’ve given them since on the 21st of my letter, let them know I had, I want Mr Hay to be here.
MR DALEY:
Sir, can I just, if Mr Hay is coming down here to say that Mr Lawson is threatening on the landing, that he was abusing you guys and threatening your families, that is from what I’ve heard is true. So we are not going to, we are not going to, the prosecution is not going to argue that that is the case. The other thing is, yes I will admit Mr Hay is probably my height and Mr Lawson would be, what your height?
MR OBIAGA:
Yeah, about that, yeah, ah, yes that’s, I know that’s what you are saying but if it comes from the prisoner in his own, because he is going to say what happened to you.
THE HEARING: VJ ROBINSON:
Yes, so I guess the question is, if we accept that that was what Mr Lawson – who was the one that’s doing the threatening?
MR OBIAGA:
Mr Lawson.
THE HEARING: VJ ROBINSON:
Mr Lawson. So if we agree that Mr Lawson was the one that was threatening and Mr Hay is simply going to say he is threatening everyone on the landing, we can accept that, we don’t need to hear that evidence.
MR OBIAGA:
Yeah, okay Sir.
THE HEARING: VJ ROBINSON:
So is that what he is going to say?
MR OBIAGA:
Not that, because he is going to tell us, how he is going to tell us why did he lash out to him, what leads him to lash, to fight Lawson, that’s the crucial impact, that’s the crucial thing. What makes him, at the time when he was on the phone, what makes him lash out to Lawson.
MR DALEY:
I can answer that quick, because I did hear Mr Hay’s charge. Mr Hay gave evidence that he lashed out because he feared for his safety, that he thought Mr Lawson was going to go into his cell and come out with a weapon. That was Mr Hay’s defence. So is that what you were hoping he would say?
MR OBIAGA:
Yeah.
MR DALEY:
Because he did say that in the hearing.
MR OBIAGA:
Okay that’s what you said, yeah, which I can’t tell you what he is going to say because we are in two different place.
THE HEARING: VJ ROBINSON:
No, but if that is what you believe he will say I am not going to dispute that, I will accept that. But I think Mr Hay was also charged with assault.
MR DALEY:
He was charged with assault too Sir.
THE HEARING: VJ ROBINSON:
And he pleaded guilty?
MR DALEY:
And he pled guilty and, yes.
THE HEARING: VJ ROBINSON:
Yes.
MR OBIAGA:
Sorry, did he plead guilty?
MR DALEY:
Did he plead guilty? He was found guilty.
THE HEARING: VJ ROBINSON:
Found guilty.
MR DALEY:
I don’t know of (sic) he pled guilty and that was at the Visiting Justice before the VJ, yes.
THE HEARING: VJ ROBINSON:
Yes. Now Mr Reid please.
[37] Mr Obiaga was entitled to have Mr Hay called as a witness. His evidence was clearly material to Mr Obiaga’s defence. The concessions made by Mr Daley (the prosecutor) and the acceptance of them by the Visiting Justice do not change that. For the Visiting Justice to understand the justification claimed by Mr Obiaga, he had to decide whether Mr Lawson had made proximate threats of stabbing Mr Obiaga and/or Mr Hay and, if he found that to be a reasonable possibility, how that factored into the justification of self-defence. This is something that would go to both Mr Obiaga’s perception of the circumstances and whether the force he used was reasonable.
[38]I find that Mr Obiaga was deprived of his right to call a material witness.
Refusal to permit Officer Jones to be a witness
[39] Mr Obiaga also asked for Officer Jones to be called as a witness. The transcript records:
THE HEARING: VJ ROBINSON
So then we have Senior Corrections Officer Jones.
MR OBIAGA:
Just in relation, yeah, just in relation to, in both situation, because he was one that gave me the lawful order and I want him here to be cross-examined. Can we give him this please?
MR DALEY:
Can we just, just finish up these first.
THE HEARING: VJ ROBINSON
Have you anything to say about this event?
MR DALEY:
Yes, Mr Jones, so the reason he is not here today is because Mr Obiaga has informed me that he is laying a complaint with the police against Mr Jones,
therefore, we can’t realistically bring him down here to give evidence in regards to an incident that he is going to be complaining to police about.
MR OBIAGA:
Your Honour, I said I “may”, I’m not saying that, I did not say that. I said I “may”-
MR DALEY:
Which tells me there is a conflict (inaudible)
MR OBIAGA:
Mr – oh, that’s a different thing because he has been challenged, he charged me, and this is a Bill of Rights and I have got the right to cross-examine the charging officer and Your Honour for the prosecutor not to provide him –
MR DALEY:
He is not the charging officer –
THE HEARING: VJ ROBINSON
So in this one, in this case, Officer – I am going to pronounce his name incorrect –
MR OBIAGA:
Avi.
THE HEARING: VJ ROBINSON
Avi, he is the charging officer.
MR OBIAGA:
Yeah.
THE HEARING: VJ ROBINSON
So he is the, so we are dealing with, we will deal with one at time.
MR OBIAGA:
Okay Sir, sorry, yes Sir.
[40] Again, I find that Mr Obiaga was entitled to have Officer Jones called as a witness. His evidence was material to Mr Obiaga’s defence, being the one who gave the orders which Mr Obiaga disobeyed. Mr Obiaga wanted to cross-examine Officer Jones about these orders, specifically:
(a)How he attempted to explain why he refused to release Mr Lawson at the time, while the Officers were still behind the grill;
(b)How long it took Officer Jones to come out onto the landing; and
(c)How quickly he released Mr Lawson once the Officer was present.
[41] All of this was relevant to the charge of disobeying a lawful order. Officer Jones’s evidence also would have been relevant to the matter of self-defence in relation to the assault charge, particularly as to whether the force used by Mr Obiaga was reasonable.
[42] The Crown submits all of this would have been apparent from the CCTV and body camera footage, which was available as evidence. Officer Jones could not, therefore, have provided any material information that was not before the Visiting Justice. However, this does not change Mr Obiaga’s entitlement to call material witnesses. Video footage was not an adequate substitute for having Officer Jones called as a witness with the opportunity to cross-examine him on issues relevant to the defence.
[43] As for the apparent conflict caused by Mr Obiaga’s complaint against Officer Jones, the Crown responsibly acknowledges that this would not have provided an adequate reason not to make Officer Jones available. It was not clear that Mr Obiaga would be making such a complaint or, if he did, why this would preclude Officer Jones being called as a witness.
[44] I therefore find that Mr Obiaga was deprived of his right to call Officer Jones as a material witness.
Failure to consider defences
[45]Mr Obiaga’s defence to the charges he faced was twofold:
(a)In relation to the assault charge, he was trying to protect himself and Mr Hay from harm.
(b)In relation to the disobeying a lawful order charge, he refused to comply with Officer Jones’ commands because he feared for his and Mr Hay’s safety.
[46] Mr Obiaga says that the Visiting Justice did not properly understand either defence and that he therefore did not receive a reasonable opportunity to state his case. This error was compounded by the Visiting Justice’s denial of legal representation.
[47] I start with the justification of defence of another. It is contemplated by s 48 of the Crimes Act. However, it is apparent from reading the transcript of the hearing that the Visiting Justice did not materially consider it. Rather, the Visiting Justice appears to have been concerned that on the evidence Mr Obiaga could not have been acting in defence of himself:
THE HEARING: VJ ROBINSON
So, it seems to me from what I have seen, is that there is some friction going on on the landing between you and others and that two prisoners started fighting and then you went halfway from up the landing from your position to join in. That is what I’ve seen in the evidence.
Now we are only here to deal with the charge of assault, so that’s you making the choice to go and join in to that fight, that scuffle that was going on. That is what we are dealing with today.
MR OBIAGA:
Yes Sir, but I understand that but what I am saying is every action has where it started from…. Your Honour, can I just say to you that my defence is, I went in there because I was scared, I was, I was afraid of Mr Hay’s safety and my safety. And I got some case law here to give you, which I give a copy of you, I highlight them, is, I don’t know whether is the right time to defend, to pull my defence out or shall I just wait my cross-examination, because I went in there because of Mr Hay’s safety and my safety. This prisoner has threaten in many occasions… And when I saw Hay latch on to Mr Lawson I fear for the safety. I went in there with intention of pulling apart, as a peacemaker. Then in, during that period I was, I put him in headlock because I saw him trying to head butt Mr Hay. Now that lead to disobeying a lawful order…
THE HEARING: VJ ROBINSON
So why, if you are fearful for your safety, would you go and join in?
MR OBIAGA:
Because Lawson has threaten us that he is going to stab us and Lawson was walking back to his cell, that’s where Hays attack him because Hays fear for his safety, we don’t know what he is going to bring up from his cell.
THE HEARING: VJ ROBINSON
So why did you want to get involved?
MR OBIAGA:
Well, I went in there as the section, the Crimes Act says, for the others, I was fearful of Hay’s safety, this guy, if you look at the camera, he was in the middle with his hand back to Hay and I can’t just sit down there. I went in there, my intention was to make peace, to support them. But I saw this guy trying to
head butt him and I blocked him, I did not punch him. I did not do nothing, I just blocked him…
[48] At the conclusion of the hearing, the Visiting Justice dismissed Mr Obiaga’s defence as follows:
THE HEARING: VJ ROBINSON
So Mr Obiaga, what we have heard is that on the 18th of July, that there was some tension being built on the landing. We have seen Officer Achari’s body camera and we have seen the wider evidence from the CCTV and his evidence was that as charging officer he was alerted to a fight on the landing. He went to the landing and saw you with Mr Lawson and Mr Hay. You had Lawson in a headlock and there was clearly a scuffle fight going on.
Your argument is that that was self-defence. You produced Mr Reid as your witness who said he has known you for a number of years while you have been on that landing and while he has been in prison. But the officer said in his evidence that it was clear that the reason he laid the charge is that he was clear there was an assault going on.
What I saw on the CCTV footage was you and Lawson, and clearly there were some words going on, and I am not saying that you provoked those words but you could see something was happening. Then he walks away. Hay then attacks and you quickly get up there to get involved. Now if you are concerned about your safety you stay away from those situations. And I don’t think the argument around, “I was doing this in self-defence,” works, because you don’t go half the length of the landing to get involved in a scuffle if you are worried about your safety.
MR OBIAGA:
Sir, I was worried about my safety and others, that’s what the criminal, the Acts are –
THE HEARING: VJ ROBINSON
But what I saw in that CCTV footage, I saw the others staying away.
MR OBIAGA:
Sir, you can hear from Mr Hay, we was there to pull out, Mr Reid was there to pull his leg, Mr John Tully was there, I don’t know what video you have seen, that’s why I was a bit concerned there was video showing you, I don’t know what video was showed you, when he came towards me with a fist, when he came towards me with a fist, I don’t know whether they showed you that, I don’t know whether they showed you when Liam Reid was, you can hear from the witness, he was pulling his leg, Mr John was pulling, pulling him. We are three of us we are trying to restrain him, not only me.
THE HEARING: VJ ROBINSON
The reality is, and I know prisons are tough, it is not your job to restrain people. Your job is to behave well and to avoid these sorts of situations. Now I know that is tough. But what I saw, and the evidence that I have seen tells me that you got involved in that fight and if you were really worried about your safety you would have been down the other end.
So I find that the case has been proven… (Emphasis added)
[49] Mr Obiaga had a copy of the Crimes Act. As can be seen from the transcript, throughout the hearing he made a number of attempts to clarify his defence: that he was acting to protect Mr Hay. Unfortunately, his attempts were not recognised by the Visiting Justice. They did not factor into the final decision. In the “reasons for penalty” section of the Record of Hearing Form the Visiting Justice wrote:
Obiaga – states that self defense
Clear Body Camera footage + CCTV footage shows Lawson + Hays fight +
Obiaga moving several meters to get involved in fight
[50] No mention is made of Mr Obiaga’s argument that he was trying to defend Mr Hay. The Visiting Justice’s view that Mr Obiaga going half the length of the landing to get involved in the scuffle is inconsistent with Mr Obiaga using force in defence of himself is understandable. But, doing so is entirely consistent with Mr Obiaga’s position that he went to defend Mr Hay. The Visiting Justice did not appreciate the nature of Mr Obiaga’s intended defence.
[51] I do not criticise the sparse reasons given by the Visiting Justice on the Record of Hearing Form. As Gendall J said:26
[30] Intricate and refined niceties, which relate to challenges to the Visiting Justice’s expressions of what she “considers”, and which were omitted in that precise form, do not commend themselves for acceptance in judicial review proceedings such as this. What the Visiting Justice considered was perfectly obvious from the entire transcript.
[52] However, taken together with the conduct of the hearing as recorded in the transcript, I am satisfied the Visiting Justice did not turn his mind to the proposition that if Mr Obiaga could establish the reasonable possibility he was acting in defence of Mr Hay, that would require the prosecution to prove he was not justified in what he did.
26 Johansen v Department of Corrections HC Dunedin CIV-2009-412-238, 27 October 2009.
[53] The Crown submits that whether or not the Visiting Justice understood Mr Obiaga was claiming to have acted in defence of Mr Hay, he rightly dismissed Mr Obiaga’s defence on the basis that the level of force he used was not reasonable in the circumstances as he believed them to be.
[54] My reading of the Visiting Justice’s reasoning does not support this argument. Nor do I think there is much use in speculating as to what the Visiting Justice may have decided about the remaining limbs of the justification if he had been satisfied that Mr Obiaga was acting in defence of another. The Visiting Justice dismissed the justification out of hand because he considered Mr Obiaga was not acting in defence of himself. This was an error. It reflected a failure to consider or even comprehend a fundamental aspect of Mr Obiaga’s defence. Moreover, this was a justification that, if properly made out, could have provided Mr Obiaga with a complete defence to the charges he faced. The error by the Visiting Justice was not inconsequential.
[55] I am conscious this was not a criminal proceeding and that, as Baragwanath J put it, not every precept of the criminal law should be given its full and orthodox construction in the context of prison discipline.27 However, the justification of self- defence is an historic and basic tenet of the law. It underpins common understandings of human interaction and is obviously relevant in the particular social environment of prisons. In the circumstances, Mr Obiaga was entitled to put forward this defence in its natural form and have it adequately considered by the Visiting Justice. Unfortunately, he was unable to do so.
[56] It was not pleaded that natural justice was breached because Mr Obiaga was not given the chance to give evidence on his own behalf. Mr Allan, appearing for Mr Obiaga, recognised in his oral argument that it could have been. I factor this into Mr Obiaga’s right to be heard. The Visiting Justice no doubt felt that through his exchanges with Mr Obiaga during the hearing he understood Mr Obiaga’s defence. However, if he had given Mr Obiaga the chance (as he should have done) to give evidence, as Mr Obiaga apparently expected would occur, then in the narrative of
27 Goldberg v Attorney-General at [55].
Mr Obiaga’s position the justification of defence of another might well have been made clear.
[57] As for the disobeying a lawful order charge, Mr Obiaga’s defence was that he refused to comply with Officer Jones’s commands because he was worried that Mr Lawson would attack if released. As it turned out, these fears were well founded.
[58] For an order to be lawful, the person giving it must have lawful authority to do so. Officer Jones clearly had that authority. However, what is being ordered must also be lawful.28 Therefore, if Mr Obiaga could have raised the reasonable possibility that complying with Officer Jones’s order to at once release Mr Lawson would have resulted in an unlawful consequence (namely, injury to him or Mr Hay), then the order he disobeyed would not have been a lawful one.
[59] It does not seem this line of defence was properly considered by the Visiting Justice. Rather, he was concerned with the fact that Mr Obiaga had chosen to intervene with Mr Lawson in the first place. The Visiting Justice was of the view that, having placed himself in that situation, Mr Obiaga was then obliged to remove himself from it regardless of the consequences:
THE HEARING: VJ ROBINSON
Mr Obiaga, you have seen that CCTV footage. Have you got anything to say?
MR OBIAGA:
At the time I was being told to let Mr Lawson go the officer was still behind the bar and again I was scared of my safety and other person, which is Lawson. But when the officer came into the landing I let go of Mr Lawson’s head and that’s when he head butt Kaose. And I was pushed by David Jones and I wish I obeyed that order by going to my cell. The only reason why the order I did not at the moment release Lawson, because the officers were behind the grill, they have not come into the landing and I was scared if I do, if I do, if I do, I wish I didn’t, that’s when Kaose was full with blood.
…
THE HEARING: VJ ROBINSON
We can see and we can hear the instructions to you to leave Lawson, “Get out of the way,” okay? We have heard previously that you were there trying to prevent something from happening. But the reality is that you became involved in that scuffle. You were using physical strength against another inmate. Now, that is against the disciplines of good order and good behaviour
28 A similar provision is found in s 38 of the Armed Forces Discipline Act 1971.
that prison officers expect of inmates. I know that might seem harsh when your position is, “I’m trying to look after everyone.” But it is easier if you stay out of the way, don’t get involved, and let the officers do their job.
So I do find that the case has been proved and that the original penalty was five days loss of privileges. I am tempted just to re-impose those as, that is the penalty.
[60]In the Record of Hearing Form the Visiting Justice wrote:
Obiaga – self defense. if let prisoner Lawson go then attack would continue Obiaga did not follow officer instruct to move away. go to cell
[61] There is no indication the Visiting Justice took into account that, if Officer Jones’s commands were unlawful because of what Mr Lawson was likely to do when released, this could provide a defence to the charge. This is not surprising given the Visiting Justice had rejected self-defence without considering defence of another. Rather, he found that Mr Obiaga refused to do what he was told, and considered this was a sufficient basis for the charge. I do not mean to be critical of the Visiting Justice in making these comments. But again, I do not think that Mr Obiaga’s defence was properly understood. This was obviously not helped by him having no legal representation. Mr Obiaga made a determined attempt to advance his case and explain his defence to the charges he faced in a language not his own. However, the fundamental premises of his defence to both charges simply were not appreciated by the Visiting Justice.
[62] None of this is to say that either of Mr Obiaga’s defences would have been made out on the evidence. It is simply that he had defences available to him that were not understood or considered by the Visiting Justice because of the process which was adopted.
Decision
[63] The combined effect of the errors of process that I have found means that Mr Obiaga’s right to natural justice was breached. Overall, I am satisfied he did not get a fair hearing. He did not have an adequate opportunity to state his case and defend the charges he faced. Even in the context of the prison disciplinary system, in which
efficiency of process is prioritised, the appropriate standard of natural justice was not met.
[64] Against this finding there is no need to make separate declarations since the appropriate remedy is to quash the Visiting Justice’s decisions finding the charges proved against Mr Obiaga and the penalties he imposed. I quash the decisions and the penalties accordingly. The charges are referred back to the prison authorities for consideration of a further hearing.
Brewer J
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