Obiaga v Visiting Justice at Waikeria Prison

[2022] NZHC 1197

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-404-1279

[2022] NZHC 1197

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

DAVID IKENNA OBIAGA

Applicant

AND

VISITING JUSTICE AT WAIKERIA PRISON

First Respondent

ATTORNEY-GENERAL (ON BEHALF OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS)

Second Respondent

Hearing:

19 May 2022

Counsel:

N M Pender for Applicant

S M Kinsler and V E Squires for Second Respondent

Judgment:

26 May 2022

JUDGMENT OF SIMON FRANCE J

[1]                  Mr Obiaga seeks judicial review of a decision of a Visiting Justice (VJ) finding him guilty of a prison discipline offence.1 The grounds of review are:

(a)unfairness due to delay;

(b)unfairness due to the refusal to adjourn when legal counsel became unavailable;

1      The first respondent abides the decision of the Court.

OBIAGA v VISITING JUSTICE AT WAIKERIA PRISON [2022] NZHC 1197 [26 May 2022]

(c)an error in approach by the VJ to the rehearing function; and

(d)failure to take account of relevant considerations, namely the evidence led at the previous hearing of the charge.

Facts

[2]                  The context was an occasion when prisoners took their bedding to the laundry for a swap. Mr Obiaga disagreed with some aspect of the process. It resulted in a verbal dispute with one of the two corrections officers working in the laundry, and also with one of the two prisoners working in the laundry.   The prison officer alleged   Mr Obiaga spoke to him in a threatening way, namely by inviting him to come to his cell. In the prison context this is seen as an invitation for an off-camera physical altercation. Mr Obiaga denied saying this.

[3]The charge laid was that Mr Obiaga committed an offence by:

behaving in a threatening manner in that he allegedly verbally abused and threatened a corrections officer.

[4]                  The initial hearing of such a charge takes place before a hearing adjudicator. Mr Obiaga, for whom English is a second language, asked for the opportunity to have legal representation but this was declined. Five witnesses were called, being the complaining officer, the second corrections officer who was also on duty in the laundry, Mr Obiaga, and two other prisoners who were present. The latter two were called by Mr Obiaga.

[5]                  The record of the hearing is only by way of brief handwritten notes made by the hearing adjudicator. They encapsulate some of the evidence, being presumably the main points as assessed by the adjudicator. Mr Obiaga was convicted, the handwritten notes recording:

Words were spoken but in my opinion of evidence, were directed at prisoner in kit locker.

[6]                  There was an evidential basis for this in that Mr Obiaga was seemingly also arguing with one of the prisoners working in the kit locker, and the exchange about

the cell was alleged by Mr Obiaga to have occurred between them. He was supported in this by one of the prisoner witnesses. The hearing adjudicator notes record this witness as saying:

Another prisoner told “f… off” “come to my cell” in anger.

This appears to be a statement that Mr Obiaga told the other prisoner these things, which is the conclusion the hearing adjudicator reaches.

[7]                  Mr Obiaga appealed the finding. The next level is an appeal hearing before a VJ. The hearing before the hearing adjudicator had occurred on 10 January 2020. The appeal hearing before the VJ did not occur until 8 September 2020. In terms of the prison discipline context, that is a lengthy interval.

[8]                  The charged incident occurred at Waikeria Prison as did the hearing before the hearing adjudicator. On 12 January, Mr Obiaga appealed. The chronology is then:

(a)the appeal was placed in the next Waikeria VJ list, being scheduled for 4 February 2020. Mr Obiaga’s matter was not reached on that day;

(b)for unconnected reasons, four days later Mr Obiaga was transferred to a different prison;

(c)on 5 May the appeal came on for hearing  at Waikeria  Prison, with  Mr Obiaga appearing by way of AVL. He requested the opportunity to have legal representation. This was opposed, but granted by the VJ. The matter was accordingly adjourned until 5 June 2020. The prosecution also advised the two prisoners whom Mr Obiaga had called at the original hearing no longer wished to give evidence. They are not compellable;

(d)on 5 June Mr Obiaga and counsel were present for the scheduled hearing. However, the VJ could not attend as flooding prevented her from travelling. The matter was adjourned to 18 August;

(e)on 26 June Mr Obiaga was transferred to another prison;

(f)on 12 August (six days before hearing) Mr Obiaga’s counsel advised a fixture clash had arisen. The matter was called and after discussion adjourned until 8 September. The Judge intimated Mr Obiaga’s counsel should ensure he had back-up counsel organised. Mr Obiaga confirmed in late August that his counsel could attend;

(g)on 7 September counsel advised a jury trial in which he was counsel had run over its expected time and he could not now attend; and

(h)on 8 September Mr Obiaga unsuccessfully sought another adjournment. The hearing took place. The VJ was concerned at the delay and that this was the second proposed adjournment for counsel unavailability.

[9]                  For the hearing itself, as to witnesses there were the same two corrections officers, Mr Obiaga and then a third corrections officer called by Mr Obiaga. The purpose of this witness seemed tangential to the core issues. On the day of the incident Mr Obiaga had subsequently asked for the name of the complaining officer. He says the officer refused to tell him as did the officer in charge of the unit. It was this latter person who was called, and she confirmed the request and the refusal. Somewhat oddly there was no explanation sought as to why it was refused, and the relevance of it all remains elusive.

[10]              The VJ found the charge proved as charged. The evidence of the corrections officers was clear, and there was an express finding Mr Obiaga said to the officer to “come back to my cell”, and that this was a threat. Mr Obiaga’s defence was ruled to be “not credible”, it being unlikely he would say it to another prisoner while arguing with the prison officer.

Assessment

[11]              The Court has had the benefit of sound submissions from both sides, albeit with a very different emphasis. Ms Pender sought to place the difficulties Mr Obiaga

faced within a wider context of systemic issues. Ms Squires sought to focus on the grounds of review and addressed each on a sequential not cumulative basis.

[12]              My own view is that the case is not a vehicle for wider comments, nor are the case-specific concerns worthy of extrapolating out to a wider principle. It is just a case on its facts and one where in my view the end result cannot stand. What occurred was ultimately not a fair process overall because of a coming together of several factors.

[13]              I start with the finding of the hearing adjudicator. There is an acceptance by the hearing adjudicator of evidence called by Mr Obiaga that the words were spoken to another inmate, not the corrections officer. That does not make the conduct not threatening behaviour, but it is a very different proposition in the prison environment to having said the same to a corrections officer. Yet the charge as laid was not amended and was held to be proven. I did not hear argument on the ability to amend the particulars. The Act and sch 7 to the Corrections Regulations 2005 are silent on the point. If the power exists, it should have been exercised; if it does not, the charge was not proven. No appeal would then have been necessary. As it transpires, the rehearing was a wholly different hearing with some different witnesses and a hearing which led to the original charge, initially not proved, now being held to be proved.

[14]              The second issue is the question of legal representation. As noted, the VJ declined Mr Obiaga’s adjournment request and proceeded without his legal representation, citing concerns as to the prolonged delay in hearing the appeal. The VJ’s concern over the time taken to the hearing is legitimate and an important feature of the prison discipline system. The adjournment request would have been the second adjournment of the matter for the same reason, and it was now eight months since the original decision. As was soon readily apparent from the evidence, in the context of essentially an oral system, and where for the corrections officers over a period such as this there will have been thousands of subsequent interactions with prisoners, memories fade.

[15]              On the other hand, when one considers the chronology, it is the adjournment of the 18 August hearing that is the first delay attributable to Mr Obiaga. The

preceding six months are nothing to do with him. He filed his appeal within two days, his appeal was not called until May, at which time he had the first opportunity to seek legal counsel. At the point, the Court assessed him as needing legal representation. Than at the next call he was present with counsel ready to go, and the VJ was unable to attend. The period of delay attributable to him was 18 August to 8 September, plus the time to the next fixture.

[16]              There is also the fact that the VJ in May gave a reasoned decision setting out why Mr Obiaga needed legal assistance. That assessment changed in September, the VJ now considering that Mr Obiaga could conduct the matter with her assistance, even with no prior notice that he needed to do so.

[17]As regards that conclusion, the following points can be made:

(a)The opportunity for the VJ to get a better impression of Mr Obiaga subsequent to her initial legal representation decision undoubtedly existed. There was Mr Obiaga’s appearance in August by AVL for a largely unopposed adjournment and his appearance in September unsuccessfully seeking this adjournment.

(b)However, it can be observed they were not opportunities for extensive further observation, and the task of cross-examining corrections officers is very different from asking for an adjournment.

(c)Until the afternoon of the day before, Mr Obiaga reasonably believed he would be legally represented. He obviously pinned his hopes then on an adjournment. Whether he should have or not, the opportunity to prepare his case to present it himself was extremely limited.

[18]              The VJ at the August adjournment had talked to Mr Obiaga about ensuring his counsel had a back-up. That is, with respect, not an easy task. Counsel filed an affidavit explaining these matters are covered by civil legal aid and the pool of available counsel is small. It would also require one of these counsel to block out the relevant day, and prepare the case, with no expectation of being needed.

[19]              Finally on this matter, my assessment of the transcript is that the lack of counsel impacted on Mr Obiaga’s defence. He wished the Court to have regard to the record of the earlier hearing but was unable to present legal arguments in support. He wished to challenge the credibility of the complaining officer by exploring why that officer did not have his camera on, and whether that was inconsistent with Corrections policy. It seems to me a legitimate question but the VJ rejected it as irrelevant. A lawyer may have been able to better present the case for relevance. There are further matters which need not be detailed; my firm assessment is that the lack of counsel proved significant. As this Court has observed, while there is no general right to legal representation at prison disciplinary hearings, legal representation may be required by natural justice in some cases.2 Whether natural justice requires such is a context-specific inquiry, depending on the importance of the issues at stake and the nature and potential complexity of the hearing.3

[20]              Overall on this point I would conclude there was an error made in not adjourning. That conclusion reflects all the various factors, and is not a statement that refusal to adjourn for the reason that arose here will always be wrong. Concerns about delay are legitimate. Here though there was a prior assessment of the need for legal representation, the bulk of the delay was nothing to do with Mr Obiaga, the unavailability of counsel came very late in the piece and up to that point Mr Obiaga reasonably believed he was represented, Mr Obiaga had no realistic opportunity to prepare, and the unavailability of witnesses he had previously called added considerable complexity to the hearing. I am satisfied, having reviewed the transcript, that the absence of counsel significantly impacted on Mr Obiaga’s defence.

[21]              The unavailability of witnesses is another factor. One of those witnesses seems to have been sufficiently credible the first time to be the source of the hearing adjudicator’s primary finding. Concerning the unavailability of this witness at the appeal rehearing, the Attorney-General filed evidence from a corrections officer:

Once a prisoner has been transferred to another unit or site, witnesses from the original unit or site tend not to want to give evidence anymore, in my

2      Lory v Attorney-General [2008] NZAR 373 (HC); and Shaw v Attorney-General [2003] NZAR 216 (HC).

3      Tauranga Boys College Board of Trustees v International Education Appeal Authority [2016] NZHC 1381, [2016] NZAR 1029 at [115]. .

experience. If a witness does not want to give evidence, I have them sign a form to that effect …

[22]              Mr Obiaga’s transfer from Waikeria subsequent to the initial hearing would accordingly seem to be a factor, perhaps a significant factor, in the unavailability of the witness. This is another of the factors that have come together in this particular case to work to Mr Obiaga’s disadvantage.

[23]              The final issue is the scope of the VJ’s appellate rehearing function. Comments made by the VJ suggest it may have been thought there was no power on this type of rehearing to have regard to the record of evidence created by the hearing adjudicator, even though a witness was now not available. It is not clear, however, whether that was a view of the VJ’s power, or an assessment of the particular case. Mr Obiaga lacked the training to advance the argument in a way that would have required a fuller consideration by the VJ. The VJ was also not required to reach a view on whether the record of the hearing adjudicator, if potentially admissible, was sufficiently reliable. It is not necessary for me to resolve this topic in order to determine the case, and it is preferrable to leave the issue until an occasion when it does matter to the outcome. It would be surprising, I consider, if there was no power to admit material from the earlier hearing where, for example, there was a reliable record of the earlier evidence of a now unavailable witness.

Conclusion

[24]              A collection of factors means this is a case where the process has miscarried. I very much doubt Mr Obiaga should have needed to appeal at all, but having done so, delay not attributable to him, transfer to another prison which contributed to the unavailability of a key witness, and the last-minute loss of his legal counsel with a concurrent refusal of his adjournment application, have combined to produce an unfair process.

[25]The finding of the VJ confirming the conviction is quashed.

[26]              The normal further order would be a for a rehearing of Mr Obiaga’s appeal. However, successive decision-makers considered the matter minor, the incident

occurred nearly two and a half years ago, and I consider it is likely the first decision of charge proved was incorrect and should instead have been a finding of not guilty. In these circumstances I make a declaration that the initial charge should be classified as not proved, and the matter brought to an end.

[27]Mr Obiaga is legally aided. Counsel may file costs memoranda if needed.

Simon France J

Solicitors:

Meredith Connell, Wellington for Second Respondent