Palmer v SuperIntendent Auckland Prison Albany HC Auckland M1023-As/01

[2001] NZHC 1268

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M1023-AS/01

IN THE MATTER of an Application for Judicial Review

UNDER The Judicature Amendment Act 1972

BETWEEN GRAHAM ASHLEY ROBERT PALMER
Plaintiff

AND THE SUPERINTENDENT AUCKLAND PRISON ALBANY
Defendant

Hearing: 3 December 2001

Counsel: Plaintiff in Person
A S Butler for Defendant
G M Illingworth as Amicus

Judgment: 17 December 2001

JUDGMENT OF SALMON J

Solicitors:
G A R Palmer, Auckland Prison, West Division, PO Box 50-124. Albany Crown Law Office; PO Box 5012, Wellington Central
G A Illingworth, PO Box 7025, Wellesley Street, Auckland.

[1] These proceedings seek an order requiring the defendant to allow the plaintiff, who is an inmate of Auckland Prison, to use a computer and printer in his prison cell. The proceedings purport to be by way of mandamus. Counsel for the defendant raised no objection to them being treated as an application for review and this judgment will proceed as if the application had been made under the Judicature Amendment Act 1972.

[2] Mr Illingworth was appointed as Amicus by an earlier order of this Court. The Court is grateful for his assistance.

Background and evidence in relation to this application

[3] Mr Palmer claims that he needs his own personal computer to enable him to progress a number of proceedings in this and other Courts. He says that he is not able to hand write documents because of a medical condition. At the hearing I was provided with a certificate from Dr Mathew Gentry, which says:

“Mr Palmer has right-handed weakness especially his ring and little fingers. He has reduced sensation in this hand and gets numb and pins and needles with attempts to write or hold his hand in a fixed position for more than five minutes.”

There is no challenge by the defendant to the position as recorded in that report.

[4] The proceedings which Mr Palmer wishes to advance include:

1. An application pursuant to s 406 of the Crimes Act 1961 seeking the exercise by the Governor-General of the prerogative of mercy in relation to his conviction on the charges which resulted in the sentence of preventive detention presently being served by him.

2. An application to the Court of Appeal to re-hear his appeal against conviction and sentence.

3. Proceedings in this Court against a number of defendants. These proceedings, it seems, relate to the criminal charges on which he was convicted and which resulted in his present sentence. He proposes to file an amended statement of claim in those proceedings. He showed the Court a document which ran to some 163 pages and advised the Court that in order to complete the amended statement of claim a further 150 pages was necessary. Mr Palmer will no doubt reconsider the appropriateness of those proceedings in the light of the judgment I have recently given on the original statement of claim filed in his name.

4. He has various proceedings, both civil and criminal in the District Court. One set of proceedings set down in the Henderson District Court is for hearing early next year. Mr Palmer says that he needs to prepare six briefs of evidence in relation to those proceedings.

[5] Mr Palmer acknowledges that there are computers available for his use at the prison, but gives a number of reasons why he should not have to rely on those. Principal amongst the reasons are his concern at the possibility of files being wiped, lack of privacy and the difficulty of obtaining enough computer time.

[6] The defendant has filed a number of affidavits. These traverse some history of the prison service’s experience of Mr Palmer and his use of computers. The affidavits address the rules relating to the use of computers and the Department’s policy. They describe the security implications of allowing the use of computers in inmates’ cells. They describe the computer facilities available to inmates. Reference is made to the resource implications associated with the use of private computers.

[7] In this regard Mr Palmer advised the Court that he would accept conditions on his use, that he would pay for all necessary repairs and for a regular inspection to ascertain that he was meeting any conditions on computer use.

The statutory framework as it affects entitlement to computer use

[8] Section 71 of the Penal Institutions Act 1954 (the Act) charges the superintendent of a penal institution with the general administration of that institution. Section 45(1) allows regulations to be made for a range of purposes connected with the administration of penal institutions including “ensuring the good management and government of institutions”, “ensuring the safe custody of inmates and prisoners”, “regulating the management, care and treatment of inmates in providing for their welfare and reintegration into the community”, “regulating the use by inmates and prisoners of telephones and other means of communication”.

[9] Access to computers is regulated through the combined effect of the Penal Institutions Regulations 2000 (the Regulations) and relevant parts of the Departmental Policy and Practices Manual (the Manual).

[10] Part 6 of the Regulations is concerned with property and inmate finances. Regulation 113(1) provides:

(1) An inmate may be issued with or allowed to keep any property specified in Schedule 3 (authorised property), subject to the conditions referred to in Regulation 114 and Schedule 3 (if applicable), and to any special conditions imposed by a designated staff member.

(2) Despite subclause (1), a designated staff member may refuse to issue or allow an inmate to keep an item of property if the staff member has reasonable grounds to believe that -

(a) the item may be used to damage other people or property; or

(b) the item may be used to record security features or actions in the institution; or

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

(d) the item is objectionable; or

(e) the item may assist an inmate to -

(i) discover new methods of committing offences; or

(i) continue offending; or

(f) the item may interfere with the effective management of the institution.

[11] Schedule 3 deals with authorised property. It is divided into five parts. Part B refers to inmate property (electrical equipment) permitted to be kept in cells, one personal computer is included in the list. Part C sets out conditions attaching to certain electrical equipment permitted to be kept in cells under Part B. Clause 2 of Part C provides:

“2. A personal computer is permitted to be kept in a cell if the superintendent is satisfied that -

(a) the inmate who uses the cell requires the use of a computer to complete an educational course; and

(b) access by the inmate to a computer in the institution used by inmates generally is not possible, or practicable, or will not be able to be provided in a manner that will enable the inmate to complete the course; and

(c) the only programme or material that will be loaded or stored on the computer is material that is necessary for, and directly related to, the educational course; and

(d) the inmate has agreed in writing that the computer will be removed from his or her cell -

(i) when the educational course for which the computer is needed is completed; or

(ii) if there is a change in circumstances that allows the inmate to have adequate access to a computer used by inmates generally.”

[12] Part D refers to other inmate property. The list includes legal papers, stationery and writing materials, up to 13 books and at the end of the list “other inmate property allowed to be kept in cells by an inmate, if the superintendent has given approval to that inmate to keep the item”. The Manual has a section entitled “Cell Standards Personal Computers”. That section repeats the contents of the Regulations, but with the addition that since 3 August 2001 minimum security inmates may have a personal computer in their cell in circumstances connected with their case management plan. There are conditions as to the initial and on-going inspection of the computer and its contents.

[13] The effect of Schedule 3 to the Regulations in my view is that a personal computer may be kept in a cell as of right, but only subject to the conditions set out in Part C. I consider the final item of Part D to be wide enough to enable the superintendent to approve the keeping of a computer in an inmate’s cell in circumstances other than those described in Part C and I assume that it is pursuant to that power that the Manual provisions extending the circumstances in which a computer can be used were made.

[14] The Regulations also deal with the question of legal assistance. Regulation 137 provides:

“137 Assistance with Court Proceedings -

(1) This regulation applies to -

(a) any inmate who is appealing or applying for leave to appeal against any conviction, order, or sentence; and

(b) any remand inmate who is preparing his or her defence or plea in mitigation.

(2) When an inmate to whom this regulation applies is preparing an appeal, application, defence, or plea, the superintendent of the institution -

(a) must ensure that the inmate is provided with paper and writing materials if the inmate asks for those things; and

(b) as far as practicable in the circumstances, must facilitate contact between the inmate and any adviser or assistant (other than another inmate) helping the inmate prepare the appeal, application, defence, or plea.”

[15] Regulation 85 allows an inmate’s legal adviser to visit an inmate at times agreed to by the superintendent to discuss an inmate’s legal affairs. Provisions are made for privacy in relation to such visits. Regulation 109 requires the superintendent to ensure that a sentenced inmate has access to a telephone at all reasonable times for the purpose of communicating with his or her legal adviser about pending proceedings and for the purpose of obtaining any type of legal advice.

[16] Regulation 110 provides that a sentenced inmate must be given reasonable access to a telephone free of charge for the purpose of speaking to a legal adviser about pending proceedings.

[17] It is also important to record details of the access which prisoners have to computers outside their cells. The evidence is that there are 30 computers in the West Division of Auckland Prison where Mr Palmer is held. The following is the unchallenged evidence of Mr Meekins, who is employed by Auckland Regional Prisons as a computer specialist.

“28. There are thirty computers in the West Division of Auckland Prison. Ten of these are available to Mr Palmer and thirty other inmates of the segregation unit. Mr Palmer has access to a computer for three hours per day, five days a week. On occasions and as the need arises, his time allocation has been increased. Other associated facilities such as printing are also rationed. Generally, inmates are allowed to print 30 pages per month. However, to date Mr Palmer has had unlimited use of the printers and client services have supp0lied toner and paper to this end. Toner is very expensive, costing around $200 a cartridge. Furthermore, the printers are not commercial grade printers and cannot cope with large print volumes.

29. While the prison does have rosters and page limits, there is some flexibility as Mr Palmer’s own computer use shows. Since 6th June 2001, he has printed 689 pages at an average of 137 per month. A copy of the computer records detailing Mr Palmer’s computer use is annexed to this affidavit and marked “B”.

30. We tried to accommodate Mr Palmer’s requests for extra computer time in order for him to prepare his affidavit for those proceedings. However this cannot continue. Other inmates are saying that they too should be entitled to extra hours. We can cope with requests for extra time as an extraordinary event but not as a regular occurrence - we do not have the resources.”

[18] It is against the above background that the issues raised by these proceedings must be considered.

The arguments in this Court

[19] I have already mentioned earlier in this judgment the basis upon which Mr Palmer claims a need for his own personal computer. In terms of a legal basis for that claim the Court was greatly assisted by the submissions of Mr Illingworth.

[20] Mr Illingworth considered there to be potential grounds of review under the following headings.

• Error of law in relation to the interpretation or validity of the Regulations.

• Error of law in relation to the New Zealand Bill of Rights Act 1990.

• Wednesbury unreasonableness.

[21] As to the Regulations, Mr Illingworth submitted that they may have been interpreted in such a way that the only permissible purpose for which a personal computer may be in an inmate’s cell is an educational purpose. Mr Illingworth submitted that the Regulations should not be interpreted in that way. I agree, as is apparent from what I have said earlier in this judgment. However, it seems that the prison authorities do not interpret the Regulations in that way. I have already referred to the extension to the right to use computers in cells. It is the case too that Mr Palmer has been allowed to use his computer for litigation purposes in the past.

[22] As to the Bill of Rights, Mr Illingworth referred to s 24(d) which provides in respect of every one charged with an offence that they shall have the right to adequate time and facilities to prepare a defence. Mr Illingworth submitted that it was at least arguable that a person who has been convicted of an offence, but who still has an appeal before the Courts should be able to claim the benefit of this provision. That does not seem an unreasonable proposition, but Mr Palmer does not have an appeal before the Courts. On a very liberal interpretation of the provision it could perhaps be extended to cover the case of an application for the exercise of the Royal prerogative of mercy.

[23] Mr Illingworth also submitted that it was arguable that to restrict unduly the plaintiff’s ability to participate in civil proceedings might constitute a breach of natural justice. Sections 3 and 27(1) of the New Zealand Bill of Rights Act would certainly apply to some acts of the superintendents of prisons. However, I do not consider that s 27 has application to administrative acts of prison authorities.

[24] Mr Illingworth also presented an argument based on discrimination on the grounds of disability. Finally, he submitted that a decision by the superintendent which had the effect of hindering unnecessarily an inmate’s right to have access to justice should be reviewable on the traditional Wednesbury unreasonableness grounds including failure to take account of relevant considerations and taking account of irrelevant considerations.

[25] Mr Butler, for the Crown, submitted that the issues for determination were:

1. Whether the plaintiff’s claim raised reviewable issues. He acknowledged that in so far as the claim raised the question of a denial of access to justice, then an issue affecting rights and interests does arise.

2. If there is a reviewable issue then are the relevant provisions of the Regulations and the Manual reasonable in so far as they govern access to computer facilities?

3. If the answer to that question is “yes”, were those provisions properly applied to the plaintiff?

[26] In my view the issues identified by Mr Illingworth and those set out by the Crown come down to a consideration of whether or not adequate access to computers is provided by the prison service and whether the rules relating to such access have been applied reasonably in relation to the plaintiff.

[27] A consideration of the matter in that way would seem to me to deal with the issues raised by Mr Illingworth.

[28] It is necessary to refer further to the evidence. Affidavits filed on behalf of the defendant claim that it is necessary for security reasons to ensure that the prison authorities are in a position to monitor all computer use by inmates. A computer can, of course, be used as a communication device and there is an obvious need to regulate use in that regard. Wireless communication is now possible with computers. Connection to a telephone line is no longer necessary. Obviously too, there will be sound reasons for restricting the material accessed by inmates from the computers.

[29] In the case of Mr Palmer the prison service has concerns relating to some of the material that he has produced on his computer. They are concerned at the potential for the production of documents which could be used for fraudulent purposes. Some examples were annexed to affidavits. Mr Palmer denies any intention to use documents for such purposes, but it needs to be noted that he has a long history of convictions for offences of false pretences, using documents for pecuniary advantage and related offences. In fairness to him, however, it must be said that the most recent such conviction was in 1989.

[30] The defendant’s evidence notes the virtual impossibility of monitoring the use of computers if they are widely used in cells. The evidence is that monitoring is a highly labour intensive process. Mr Meekins, the computer specialist whose evidence has been referred to earlier, deposes that the prison service just does not have sufficient staffing resources to monitor an unlimited number of personal computers.

[31] I have concluded that by any standard the access to computers provided by the prison service is reasonable. I do not hold as a matter of law that there is a right to access to computers other than as provided for in the Schedule to the Regulations, but, on the assumption that such a right exists, I am satisfied that reasonable access is provided. I have set out the evidence as to the number of computers available to the inmates of the segregation unit. Effectively there is one computer to every three inmates. Although usage and printing are rationed, considerable flexibility has been accorded in Mr Palmer’s favour. The general allowance to print 30 pages per month does not seem to me to be unreasonable provided, as seems to be the case, the service is prepared to recognise special circumstances. I do not accept that the privacy issues or the possibility of files being wiped are sufficiently serious to outweigh the benefits of the access available.

[32] In my view on the evidence available the defendant has acted entirely reasonably in relation to the plaintiffs needs for computer use. I hold, therefore, that no ground for review has been made out and the application is dismissed.

[33] The defendant seeks costs. I order that costs assessed on the basis of Category 2 Band B be paid by the plaintiff to the defendant, together with disbursements to be fixed if necessary, by the Registrar.