Reekie v Attorney-General

[2019] NZHC 1679

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1196

[2019] NZHC 1679

BETWEEN

NICHOLAS PAUL ALFRED REEKIE

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing:

20-23 May 2019

(Further submissions received 28 June, 12 and 17 July 2019)

Appearances:

Plaintiff in person

S K Shaw and S M Kinsler for Defendant

Judgment:

19 July 2019

JUDGMENT OF LANG J

This judgment was delivered by me on 19 July 2019 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

REEKIE v ATTORNEY-GENERAL [2019] NZHC 1679 [25 July 2019]

[1]    Mr Reekie is serving a sentence of preventive detention. Between 2003 and July 2011 he was serving his sentence at Auckland Prison. On or about 30 June 2011 the prison authorities decided to transfer him to the Northern Region Correctional Facility in Northland (NRCF). They implemented that decision on 5 July 2011.

[2]    The decision to transfer Mr Reekie to NRCF, coupled with the manner in which the transfer was carried out, has given rise to the present proceeding. Mr Reekie contends that in transferring him to NRCF the prison authorities breached several of his rights under the New Zealand Bill of Rights 1990 (NZBORA) and also breached a duty of care that they owed to him at common law.

The claims

[3]    Under each cause of action Mr Reekie seeks a declaration that his rights have been breached and/or monetary damages to reflect the gravity and consequences of the breach.

First cause of action – breach of rights guaranteed under s 14 of NZBORA

[4]    Under this cause of action Mr Reekie contends the prison authorities breached his right under s 14 to seek and receive information by deliberately misinforming him regarding the reasons for the transfer and other matters relevant to the transfer.

Second cause of action – breach of rights guaranteed under s 23(5) of the NZBORA

[5]    Mr Reekie also contends that his rights under s 23(5) were breached because the transfer and use of restraint mechanisms collectively were unreasonable, unlawful and unnecessary. Further, the transfer thwarted attempts Mr Reekie had been making to hold a family group conference designed to restore his relationship with his sister Victoria. In addition, the Prison Inspectorate failed to investigate, or properly investigate, the complaints Mr Reekie subsequently made about the decision to transfer him to Ngawha Prison and the manner in which the transfer was carried out.

Third cause of action - breach of rights guaranteed under s 27(1) of NZBORA

[6]    Under this cause of action Mr Reekie contends the decision to transfer him to Ngawha Prison and the manner in which it occurred, together with the likely and known adverse consequences of the transfer, breached Mr Reekie’s rights under       s 27(1) of NZBORA.

Fourth cause of action – negligence

[7]    Under this cause of action Mr Reekie alleges the individuals responsible for the decision to transfer him to NRCF owed him a common law duty of care to ensure that the complaints he made were dealt with impartially and in accordance with the procedures mandated by the Department of Corrections (Corrections). He says that they breached that duty and are liable in damages to him as a result.

Why was the decision made to transfer Mr Reekie from Auckland Prison to NRCF?

[8]    Before considering the individual causes of action I propose to make factual findings regarding one of the key issues the proceeding raises. This relates to the reasons why Mr Reekie was transferred from Auckland Prison to NRCF. That issue will be relevant to the determination of all four causes of action.

[9]    The person who made the decision to transfer Mr Reekie to NRCF was Mr Neil Beales, the Manager of Auckland Prison in June 2011. Mr Reekie contends Mr Beales made the decision in retaliation for a letter of complaint Mr Reekie had sent to      Mr Beales  on  18  June  2011.   The  letter  contained  several  complaints  about   Mr Reekie’s Residential Manager, Mr Murray Sweet. These included Mr Reekie’s concern about Mr Sweet’s involvement  in  a  recent  security  re-classification  of  Mr Reekie.1 Mr Reekie also raised concerns that Mr Sweet had interfered in both a family group conference Mr Reekie was endeavouring to arrange with his sister and a case Mr Reekie had lodged with the Human Rights Review Tribunal.

1      The algorithm produced as a result of this process indicated Mr Reekie met the criteria for re- classification as a low-medium security prisoner but this was manually overridden and he retained his high-medium security classification.

[10]Mr Reekie concluded the letter by saying:

I am really annoyed by the actions of Mr Sweet as I had enough of his interference in my legal matters when he was my Unit Manager in 2008. Further Mr Sweet was the person who started everything that saw me moved back to East Division and all that has occurred since. Matters I am still sorting out and suffering the consequences of.

This latest interference and targeting of myself by Mr Sweet is the final straw for me, hence this Formal Complaint.

4. At our meeting I warned you about Mr Sweet’s conduct towards me and his well known history and that is not just me. It is well known to the Department, Ombudsmen’s Office and beyond.

Mr Sweet should have been gone out of the job years ago, and everyone knows it, but he has manipulated the system to a degree I would consider and label corrupt, in order to pervert the course of justice and avoid criminal charges and/or dismissal from the job.

While I respect your needing to support him to some degree as a member of your staff, my view of you went down, Mr Beales, when you started to sing his praises.

I have no doubts you are aware of his reputation and you should have been right on top of this the moment a prisoner such as myself started to raise concerns with you about what Mr Sweet was doing, but obviously you did not heed my concerns and hence my now making this formal complaint to you as a first step.

…

[11]   Mr Beales denies that the decision to transfer Mr Reekie to NRCF was made in retaliation for the complaint about Mr Sweet. Mr Beales says he had been aware for a considerable time that there were significant difficulties in the relationship between Mr Reekie and Mr Sweet. He said it was difficult to determine the exact causes of this and where responsibility lay. By June 2011, however, Mr Beales was satisfied Mr Reekie’s rehabilitative prospects were being affected by his relationship with Mr Sweet. In addition, Mr Beales became aware in late June 2011 that Mr Reekie had significant issues with other inmates in his unit. Mr Reekie had filed a complaint on 2 May 2011 in which he raised concerns about his safety due to threats made by other prisoners who wrongly believed he had lodged a complaint against them. These factors persuaded Mr Beales that Mr Reekie should be transferred to another institution.

[12]   The factors underpinning Mr Beales’ decision to transfer Mr Reekie to NRCF are best discerned from the contemporaneous documentation. This provides the most reliable means by which to determine why Mr Beales decided Mr Reekie should leave Auckland Prison. It also avoids the risk of reasoning conducted through hindsight.

[13]   The complaint that Mr Reekie made on 18 May 2011 also needs to be considered in context. It was by no means an isolated complaint. The evidence demonstrates that Mr Reekie is a person who is quick to lodge a complaint when he considers he has a genuine grievance. Many of these are investigated by the Prison Inspectorate, an agency that reports to the Chief Executive of Corrections rather than the manager of any prison. The Inspectorate is tasked with ensuring the fair, secure and humane treatment of prisoners. One of the key roles of the Inspectorate is to investigate complaints made by prisoners who consider they have been treated unfairly or unreasonably by Corrections staff. The Inspectorate has its head office in Wellington, but inspectors are based at prisons throughout New Zealand to deal with day to day issues that arise.

[14]   In an email sent on 5 May 2011 Mr David Morrison, a Regional Inspector based at Auckland Prison, had advised Mr Andy Fitzharris, the Chief Prison Inspector, that Mr Morrison was aware Mr Reekie had lodged 60 complaints or requests for information in the current financial year alone. Several of these related to concerns Mr Reekie had raised about his interactions with the Health Services Manager at the prison. This had resulted in Mr Reekie lodging complaints with the Health and Disability Commission. The Commission had then referred the matter back to Corrections’ Regional Health Services Manager to deal with. Mr Reekie had subsequently refused to meet with the Regional Health Services Manager after that person requested that the meeting take place in a booth to address safety concerns. The manner in which Mr Beales dealt with Mr Reekie’s complaint dated 18 May 2011 needs to be considered against the background of numerous earlier complaints, some of which had related to Mr Sweet.

[15]   Mr Reekie forwarded a copy of his letter of complaint about Mr Sweet to the Chief Ombudsman, the Chair of the Human Rights Review Tribunal and Mr Fitzharris at the head office of the Inspectorate. Mr Fitzharris then forwarded a copy of the

complaint to Mr Morrison at Auckland Prison. He did so with a covering note that it was probably not necessary for Mr Morrison to become involved at this stage, but he should keep an eye on the complaint as it was likely to become a major issue for    Mr Reekie.

[16]   Mr Morrison advised Mr Fitzharris in an email sent on 29 June 2011 that he had discussed Mr Reekie’s complaint with Mr Beales.  The email went on to say   Mr Beales was to seek an explanation from Mr Sweet and was also investigating the possibility of transferring Mr Reekie to Mt Eden Correctional Facility (MECF). The email concluded:

The transfer is looked upon as management of issues as there could be a continued security issue to the prison if Reekie continues to complain about Murray Sweet and also he is still complaining about Health Services. MECF is seen as a prison where Reekie can still receive his visitor (Ms Wood) to deal with his legal meetings and receive medical treatment from a different health provider.

[17]   On 29 June 2011 Mr Beales received a response from Mr Sweet regarding the issues Mr Reekie had raised in his letter of complaint dated 15 June 2011. It is clear that by this stage Mr Beales had already begun considering the possibility of transferring Mr Reekie to another site.

[18]   Mr Beales had obviously made the decision to transfer Mr Reekie to NRCF by the afternoon of 30 June 2011, when he sent the following email to Mr Morrison:

Hi David

As we discussed.

In addition to our discussion last week with regard to moving him [Mr Reekie] off site due to his ongoing complaints towards his residential manager, he has also managed to make himself very unpopular with the prisoners on his landing. I am obliged on several fronts to ensure his safety, from his issues with his manager and now his peer group. MECF will agree to take but only for three months, and in return I am being asked to take a prisoner who requires daily dialysis in the CBD. This is probably not something I can agree to.

NRCF however will take him with no strings attached and they are aware of the extensive nature of his litigation and complaints.

As we have had a lengthy discussion on this, and in light of the fact that there are no current criminal matters he is dealing with, I propose to send him to NRCF at the earliest opportunity.

Kind regards Neil

[19]   Mr Beales copied this email to Mr Sweet, Mr Rogers (a Principal Corrections Officer at Auckland Prison) and Mr Christopher Lightbown, the Manager of NRCF. The email makes it clear that Mr Beales had already discussed the possibility of     Mr Reekie being transferred to NRCF with Mr Lightbown and he had agreed to this occurring. Mr Beales had also obtained confirmation from Mr Rogers earlier in the day that Mr Reekie was not involved in any current criminal proceedings in Auckland that would require him to remain in Auckland.

[20]   Later the same day Mr Morrison forwarded a copy of the email to the Head Office of the Inspectorate in Wellington with the following message:

Good Afternoon All,

I refer you all to the email below from Prison Manager Neil Beales at Auckland.

Prisoner Reekie has been causing a few problems lately which have been impacting on the safety and security of the prisoner and the prison. This is a muster issue and there are no reasons why this transfer cannot proceed.

No doubt this prisoner will complain if he runs true to form.

…

[21]   During cross-examination Mr Reekie challenged Mr Beales on numerous occasions and in different ways regarding his motivation for transferring Mr Reekie to NRCF but Mr Beales remained steadfast in his explanation. This is encapsulated in the following response to one such challenge:

As I’ve stated on several occasions over the last day, my decision to move you to NRCF was as a result of ongoing issues between you and staff, including Mr Sweet, and including my concerns that you had become offside with prisoners in the unit and looking at your history, it didn’t appear to me that your continued stay at Auckland Prison was conducive to your long-term rehabilitation and reintegration needs. So, once again, it’s incumbent upon me as the prison director at that time, or the prison manager at that time, to make sure that the site is safe and secure for everybody, staff and prisoners, and it was important for me to make sure that you were able to go somewhere where

you had a fresh start, where you had no issues with the staff or the management team or anybody in that management team, or the prisoners that you were going to be located with. That was the basis for my decision, I cannot recall exactly what day I made the decision or at what point I made the decision, but it was in the tail end of June 2011 and I believe it was the right decision to make.

[22]   Mr Beales’ evidence on this point is in line with his contemporaneous written and oral communications. The consistency and obvious logic of Mr Beales’ approach satisfies me beyond doubt that, although the complaint dated 18 June 2011 is likely to have been the catalyst for Mr Beales’ decision to transfer Mr Reekie to NRCF, he did not make it in retaliation for the fact that Mr Reekie had made the complaint about Mr Sweet. Rather, it reflected Mr Beales’ genuine concern that Mr Reekie would benefit from a change of custodial environment due to the issues that had arisen over a lengthy period between Mr Reekie and Mr Sweet. In addition, Mr Reekie’s health care would change to another provider and the risk to his safety at the hands of other prisoners would be averted. The latter would also reduce the risk to the security and order of the prison.

[23]   Mr Reekie places considerable emphasis in this context on an email Mr Lightbown sent to several persons on 10 February 2012 when he was considering whether to transfer Mr Reekie from NRCF to Spring Hill Correctional Facility. In the email Mr Lightbown observes that NRCF “agreed to take him [Mr Reekie] to give Auckland some rest last July”. Given that background he asks Spring Hill to consider taking him “to likewise support the region”.

[24]    Several points need to be made about this email. First, it was sent a considerable time after the transfer to NRCF occurred and does not carry the same weight as contemporaneous documentation. Secondly, Mr Beales made the decision to transfer Mr Reekie to NRCf and not Mr Lightbown. As Mr Lightbown pointed out in his evidence, only Mr Beales can give the reasons the transfer was made. Thirdly, the letter is understandably couched in colloquial terms because Mr Lightbown was sending it to his work colleagues. It was not in any sense a considered document. For these reasons I do not accept the email provides any assistance in determining why Mr Reekie was transferred from Auckland Prison to NRCF.

[25]   During the hearing I asked Mr Beales why he had not taken the lesser step of moving Mr Reekie to a different part of Auckland Prison. Mr Beales pointed out that Mr Reekie was a voluntary segregated prisoner. This meant there were limitations on the areas in which he could be housed at Auckland Prison. In addition, Mr Reekie had been at the prison since 2003 and had built up a history with a number of staff at the prison. Staff are regularly rostered to work in different parts of the prison. As a result, Mr Beales considered there could be no guarantee that a move to another part of the prison would prevent Mr Reekie from coming into contact with staff with whom he had been in conflict in the past. Mr Beales therefore saw “a clean slate at a new site” as being the best option available in the circumstances.

[26]   I see no reason to disagree with Mr Beales’ assessment of the issues that surrounded Mr Reekie as at 30 June 2011 and the options available to deal with those issues at that time. I am therefore satisfied Mr Beales made the decision to transfer Mr Reekie to NRCF for reasons relevant  to both the security of the prison and      Mr Reekie’s safety and rehabilitation.

First cause of action - breach of rights guaranteed under s 14 NZBORA

[27]Section 14 of NZBORA provides:

14       Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

[28]   As the wording of the section makes clear, s 14 relates to freedom of expression. Mr Reekie contends the prison authorities breached his right under the section to seek and receive information because they deliberately misinformed him of the reasons for the transfer to NRCF.

[29]   The claim cannot succeed for several reasons. First, s 5 of the NZBORA provides that the rights and freedoms contained in the Act are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Section 56 of the Corrections Act 2004 (the Act) prescribes the rights of prisoners to obtain the reasons for their transfer from one prison to another. It provides:

56     Information about reasons for transfer

(1)A prisoner who is transferred from one prison to another under section 53(1) may ask the manager of the prison from which the prisoner was transferred to specify the reasons for the prisoner's transfer.

(2)A request under subsection (1) must—

(a)     be in writing, and

(b)     be forwarded to the manager within 1 month after the prisoner has been transferred to the other prison.

(3)Reasonably promptly, and in any case no later than 1 month, after receiving a request under subsection (1), the manager must inform the prisoner, in writing, of the reasons for the prisoner's transfer.

[30]   As will be evident, s 56(1) gave Mr Reekie the right to ask the manager of Auckland Prison to specify the reasons for his transfer. Any such request needed to satisfy the requirements set out in s 56(2). It therefore needed to be in writing and had to be made no later than 5 August 2011, being one month following his transfer to NRCF. Provided Mr Reekie satisfied these requirements Mr Beales would have been obliged to inform him of the reasons for the transfer reasonably promptly and in any event no later than 5 September 2011.

[31]   In the absence of a provision such as s 56 prisoners would arguably have the right to seek the reasons for a transfer before it takes place. I consider s 56 plainly imposes a limit on that right. Parliament must be assumed to have decided it would be impracticable or unreasonable for the prison authorities to be required to provide reasons every time a prisoner is transferred from one prison to another. This reflects the fact that, as the evidence in the present case confirmed, numerous prisoners are moved around New Zealand on a daily and weekly basis.2 Furthermore, transfers may be undertaken urgently to deal with muster issues or to maintain security and order in prisons. Section 56 therefore requires requests for reasons to be made in writing and promptly following transfer. Where this occurs the Prison Manager must respond to the request within the next month.

2      Mr Lightbown said that at NRCF alone approximately 150 prisoners would be transferred in and out every week.

[32]   In the present case Mr Reekie did not make a written request to Mr Beales seeking the reasons for his transfer to NRCF. Instead he complained directly to the Inspectorate about Mr Beales’ conduct on 6 July 2011. His adviser Ms Wood did the same. The Inspectorate then sought an explanation from Mr Beales regarding the reasons for the transfer. After receiving Mr Beales’ explanation the Inspectorate reported back to Ms Wood on 7 July 2011 and to Mr Reekie on 20 July 2011.

[33]   Given this sequence of events it is clear that s 14 is not engaged. Mr Reekie’s right to seek information from the manager was not breached because he never sought information from Mr Beales under s 56. Rather, he sought and received the information in question from the Inspectorate. Viewed in this light Mr Reekie exercised his rights under s 14 to seek and receive information albeit using a complaint to the Inspectorate rather than a request to the Prison Manager under s 56.

[34]   The essence of Mr Reekie’s claim under this head is that a breach occurred because Mr Beales deliberately misinformed the Inspectorate, and hence Mr Reekie, about the reasons for the transfer. I do not consider this occurred but, even if it did, I do not accept that it would constitute a breach of s 14.  As I have already observed,   s 14 is concerned with freedom of expression, including the right to seek and receive information. I do not consider the right incorporates a right to receive information that is correct.

[35]This claim fails as a result.

Second cause of action: breach of s 23(5) NZBORA rights

[36]Section 23(5) provides as follows:

23       Rights of persons arrested or detained

…

(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[37]   The leading authority as to how s 23(b) is to be applied remains the decision of the Supreme Court in Taunoa v Attorney-General.3 All members of the Court in that case considered s 23(5) cast a positive obligation on the state in relation to persons deprived of their liberty. Elias CJ considered s 23(5) required the state to treat prisoners humanely.4 Blanchard J held that s 23(5) proscribes conduct that is unacceptable in New Zealand but which is of a  lesser order than that proscribed by  s 9.5 Such conduct does not rise to a level deserving to be called outrageous.6 Tipping J held that a failure to observe the law relating to the running of prisons may more readily cause a breach of the state’s positive duty under s 23(5).7 A claim under s 23(5) may therefore lie where the prison authorities have failed to meet a statutory standard and it will not matter why that has occurred.8

[38]   In the present case Mr Reekie alleges that both the decision to transfer him to NRCF and the manner in which it was carried out collectively resulted in a breach of his rights under s 23(5).

The decision to transfer Mr Reekie to NRCF

[39]   I have already found9 that Mr Beales made this decision in order to remove Mr Reekie from an environment that was not conducive to his rehabilitation and in which he was at risk of physical harm from other prisoners. This would likely satisfy the Chief Justice’s requirement that the treatment of Mr Reekie be humane. Under the approach taken by Tipping J, however, the reason for the transfer may not avoid liability for breach of s 23(5) if the decision nevertheless breached relevant statutory provisions.

[40]    As s 5(1)(a) of the Act confirms, the purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by ensuring that sentences imposed by the courts “are administered in a safe, secure, humane, and effective manner”. Where appropriate and where resources permit, its purpose is also

3      Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429.

4 At [79].

5 With whom McGrath J agreed at [340].

6 At [170].

7 At [296].

8 At [294].

9      At [22]-[26].

to assist in the rehabilitation of offenders and their reintegration into the community through the provision of programmes and other interventions.10

[41]   Section 6 sets out the principles that guide the operation of the corrections system. Paramount of these is the maintenance of public safety.11 Furthermore, sentences must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff and persons under control or supervision.12 In addition, contact between prisoners and their families must be encouraged and supported, where reasonable and practicable and to the extent that contact is consistent with the maintenance of safety and security requirements.13

[42]   The transfer of prisoners between prisons is governed by ss 53(1) and 54 of the Act which provide:

53Transfer from one prison to another

(1) A prisoner may be transferred, on the direction of the chief executive, from any prison to any other prison in which he or she may be lawfully detained.

…

54Reasons for transfer

(1)A prisoner may be transferred by the chief executive from one prison to another for 1 or more of the following reasons:

(a)      to assist in reducing the likelihood of reoffending by the prisoner:

(b)      to assist in facilitating the—

(i)rehabilitation of the prisoner; or

(ii)reintegration of the prisoner into the community on his or her release:

(c)     to place that prisoner in a prison closer to his or her family:

(d)      to respond to the needs of that prisoner, as identified in the management plan:

10     Corrections Act 2004, s 5(1)(c).

11     Section 6(1)(a).

12     Section 6(1)(g).

13     Section 6(1)(i).

(e)     to ensure the safety of that prisoner or any other person:

(f)      to implement a change in the security classification of that prisoner:

(g)     to provide medical or psychiatric care for that prisoner:

(h)     to reduce the risk of self-harm by that prisoner if he or she is identified as being at risk:

(i)     to reduce the risk to that prisoner if he or she is identified as being vulnerable to mistreatment by other prisoners:

(j)     to grant a request by a prisoner for a transfer.

(2)    …

(3)A prisoner may be transferred by the chief executive from one prison (the first prison) to another prison—

(a)     to restore or maintain the security and order of the first prison:

(b)     to enable effective management of the national prisoner muster:

(c)     to allow repairs or alterations at the first prison:

(d)     in response to the closure or change of use of the first prison or part of that prison.

(4)When considering whether to transfer a prisoner for 1 or more of the reasons set out in subsection (1) or when considering how a transfer for 1 or more of the reasons set out in subsection (2) or subsection (3) is to be effected, the chief executive must, as far as is reasonably practicable, have regard to—

(a)     the desirability of providing the least restrictive environment for the prisoner that is consistent with the maintenance of public safety and the safety of staff members and other prisoners; and

(b)      the need to facilitate the rehabilitation and reintegration of the prisoner into the community, taking into account the availability and location of appropriate services and programmes that will contribute to the achievement of those objectives; and

(c)      the desirability of ensuring that the prisoner is detained at a location as close as is practicable to his or her family.

(5)A decision by the chief executive to transfer a prisoner must be made in the prescribed manner.

[43]   It can immediately be seen that the transfer of Mr Reekie from Auckland Prison to NRCF met several of the objectives contained in s 54. First, the transfer fell within s 54(1)(b) because by removing Mr Reekie from an environment in which he would

be required to continue to deal with Mr Sweet it assisted in facilitating his rehabilitation. The transfer also ensured Mr Reekie’s safety under s 54(1)(e) and (i) by reducing the identified risk that he was vulnerable to mistreatment by other prisoners. In addition, his transfer restored or maintained the security and order of Auckland Prison in terms of s 54(3)(a) because it removed the dysfunctional relationship between Mr Reekie and Mr Sweet and also averted the risk of Mr Reekie being physically harmed by other prisoners.

[44]   Section 54(4) sets out other factors that must be taken into account so far as practicable when transfer is being considered. The factors referred to in s 54(4)(a) and

(b) were clearly met because NRCF could accommodate Mr Reekie under a regime commensurate with his existing security classification and his identified rehabilitative needs could be met there. At the time the decision was made Mr Reekie was not in contact with any members of his family so the factor identified in s 54(4)(c) was not relevant.

[45]   The transfer would obviously have an impact on Mr Reekie’s attempts to re- establish contact with his sister Victoria. As at 30 June 2011, however, no date had been set for the family group conference Mr Reekie was endeavouring to set up.    Mr Beales said he was not aware of this issue and may have taken it into account if he had known of it when he made his decision. He did not see, however, why the family group conference could not have taken place at a prison outside Auckland if Mr Reekie and his sister wanted it to occur.

[46]   It follows that I consider the transfer of Mr Reekie from Auckland Prison to NRCF was authorised under s 54 of the Act on several bases. Of itself that decision could not give rise to a breach of s 23(5) of NZBORA.

The manner in which the transfer was carried out

[47]   Mr Beales says that after he approved the transfer the logistics were then arranged by Mr Fallon, the reception and movements manager at Auckland Prison. On 30 June 2011 Mr Fallon created a form headed “Instructions for Escorts for Inter Prison Transfer.” This set out the manner in which the transfer to NRCF would be undertaken on 5 July 2011.

Failure to give Mr Reekie notice of the transfer

[48]   Section 55(1) of the Act requires a prisoner to be given seven days notice of an impending transfer unless one of the exceptions set out in s 55(2) applies. These are:

55     Information to be given to prisoners

(1)A prisoner must be—

(a)      informed of an impending transfer, and the destination, at least 7 days in advance; and

(b)       provided with a reasonable opportunity to inform a member of his or her family of the impending transfer, and the destination, before the transfer is made.

(2)Subsection (1) does not apply if—

(a)      the prisoner to be transferred is expected to create a management difficulty before the transfer is made or as a result of the transfer; or

(b)      the transfer is being made because there are reasonable grounds to believe that the safety of the prisoner or others at the prison within which the prisoner currently resides is at risk; or

(c)      the transfer is being made to restore or maintain the security and order of the prison from which the prisoner is being transferred; or

(d)      the transfer is being made to allow for the effective management of the national prisoner muster; or

(e)       the transfer is being made under section 65(1) or (3) (which relates to removal for judicial purposes).

…

[49]   Mr Reekie was not advised of the proposed transfer until the morning of 5 July 2011 and was not permitted to make any telephone calls before he left. In addition, he was not permitted to take any of his property with him. This was packaged and sent to NRCF at a later date.14

[50]   Mr Beales said he decided not to give Mr Reekie the required notice under s 55(1) because he believed Mr Reekie would immediately take steps to resist

14     Corrections later paid Mr Reekie the sum of $300 by way of compensation for items of property that did not arrive at NRCF.

implementation of that decision. Examples Mr Beales gave included Mr Reekie barricading himself in a cell or threatening to self harm so that he would have to be placed in an at risk unit.

[51]   I am satisfied Mr Reekie would not have taken the news of his transfer well. If history is any guide he would immediately have lodged a complaint and then taken whatever steps were within his power to avoid being transferred away from Auckland Prison. I therefore consider Mr Beales could reasonably expect Mr Reekie to create a management difficulty if he was given the required notice of the proposed transfer. In addition, Mr Reekie was being moved both because his safety was at risk in Auckland Prison and to maintain security and order at Auckland Prison. As a result, reasons existed under s 55(2)(a),(b) and (c) not to give Mr Reekie prior notice of his impending transfer.

Assessing Mr Reekie as having “at risk” status

[52]   Mr Reekie is concerned that he was erroneously assessed by staff at Auckland Prison as being at risk of self harm for the purposes of the transfer. This meant the staff who accompanied him were required to record their observations of him every 15 minutes during the four hour journey from Auckland Prison to NRCF. Mr Reekie points out that he was not regarded as being at risk at Auckland Prison, and the staff who assessed him on his arrival at NRCF also recorded that he was not at risk.

[53]   Mr Beales accepts that Mr Reekie should not have been assessed as being at risk for the purposes of the transfer because he did not meet the criteria for that status. He therefore considers the assessment was made in error by staff members responsible for arranging the transfer.

[54]   I do not consider anything turns on the error for present purposes, however, because it only lasted for the duration of the journey between Auckland Prison and NRCF. Furthermore, the only practical effect of the assessment was that staff members in the van were required to observe Mr Reekie regularly and to record their observations in a log. That must have been to Mr Reekie’s benefit and did not result in any greater restriction on his freedom or ability to move around the van during the

journey. As he acknowledges, he was free to move around the rear of the van and to lie on the floor in order to make himself more comfortable.

Use of mechanical restraints

[55]   Mr Reekie was transported from Auckland Prison to NRCF in a single cell van in which he appears to have been the only prisoner. He complains that the van was dirty and the only way in which he could make himself comfortable was by lying on the floor of the van for lengthy periods. He says the entire journey was extremely uncomfortable, and the use of handcuffs and waist restraints added to his discomfort.

[56]   The written instructions for the transfer recorded that Mr Reekie was to be transferred from Auckland Prison to NRCF on 5 July 2011 using a secure vehicle that was to take the most direct route possible. The form also recorded that Mr Reekie was to be restrained during the journey using a waist restraint that was to be applied at the last secure point before departure and removed at the first secure area at the destination. In accordance with Corrections policy he did not wear any seat belt during the journey north.

[57]   Mr Beales explained that the issue of whether prisoners should wear seat belts during transfers by road has been the subject of considerable attention over a lengthy period by bodies including not only Corrections but also the Ombudsman. As at 5 July 2011 seat belts were not worn during transfers because they were recognised as posing a risk to prisoners due to the fact that they could be used as ligatures. I did not take that issue to be the subject of any claim or complaint by Mr Reekie.

[58]   Mr Reekie takes issue with the use of waist restraints and handcuffs in his case. The questions he asked Mr Beales during cross-examination suggest he believes they were only used because staff had erroneously assessed him as being at risk of self harm or escape during the journey.

[59]   As Mr Beales explained, however, the at risk assessment would not have been the reason restraints were applied to Mr Reekie during the journey. Mr Reekie was classified as a high security prisoner and the staff who decided he should wear the restraints would have taken a range of factors into account in making that decision.

These included the need to protect the escorting staff and the public at large from the risk that he posed during the transfer. Mr Beales said the use of handcuffs and waist restraints is very common when transferring high security prisoners from one site to another.

[60]   In any event r 125(1)(a) of the Corrections Regulations 2005 (the Regulations) permits prison officers to apply both handcuffs and waist restraints on a prisoner for the purpose of escorting the prisoner outside of a prison. In the present case Mr Reekie was to be outside prison boundaries and under escort by prison officers for the entire journey between Auckland Prison and NRCF. Those responsible for arranging the transfer therefore had the necessary legislative authority to require Mr Reekie to wear handcuffs and waist restraints for the duration of that journey.

[61]   For these reasons I do not consider the use of handcuffs and waist restraints for the duration of the transfer engages s 23(5) of NZBORA. It was clearly lawful and made for a proper purpose. The use of mechanical restraints would obviously have made the journey north more uncomfortable for Mr Reekie than would have been the case if he had not been wearing them. That fact does not mean it was inhumane or otherwise showed lack of respect to Mr Reekie’s inherent dignity.

Failure to properly investigate Mr Reekie’s complaints

[62]   Mr Reekie alleges Mr Beales, the Chief Prison Inspector (Mr Fitzharris) and Corrections all failed to investigate and/or properly investigate his complaints in accordance with the Act, the Regulations and the policies and procedures promulgated by Corrections.

[63]   This cause of action relates not only to Mr Reekie’s complaints about his transfer to NRCF but also to three earlier complaints. These comprise his letter of complaint about Mr Sweet dated 18 June 2011, a complaint made on 6 June 2011 about the removal of an item from his canteen purchase and a formal complaint made on 20 June 2011 about a decision declining him permission to interview another prisoner, Mr George Baker.

[64]   Whilst he was at Auckland Prison Mr Reekie was assisted in relation to his legal affairs by Ms Ruth Wood. As I have already observed, Ms Wood lodged a formal complaint about the transfer with the Inspectorate on 6 July 2011. The complaint also raised concerns regarding the fact that Mr Reekie had voluntarily placed himself in segregation for safety reasons following his arrival at NRCF, and this meant he was confined to his cell for 23 hours every day. In addition, he had no ability at NRCF to continue with his legal work.

[65]   Mr Reekie lodged a formal complaint about the transfer with the Inspectorate on 6 July 2011. This raised concerns about the reasons for the transfer and the manner in which it had been carried out.

[66]   Mr Morrison responded to Ms Wood’s complaint by letter dated 7 July 2011. This stated that the Inspectorate had received information from the Prison Manager (Mr Beales) that the transfer was necessary because “the security of the prison and the safety of Mr Reekie were at risk.”   It also said the decision was made to send       Mr Reekie to NRCF because of the availability of beds there for Mr Reekie’s security classification. The letter concluded that “the circumstances surrounding Mr Reekie’s transfer to NRCF [were] lawful and that his rehabilitation and reintegration needs will not be compromised.”

[67]   Mr Morrison responded to Mr Reekie’s complaint by letter dated 20 July 2011. He did so after he had sought and received comments from Mr Beales about the complaint on 19 July 2011. Mr Morrison advised Mr Reekie of the response he had received from Mr Beales regarding the reasons for the transfer and the manner in which it had been carried out. Mr Morrison did not find any substance to Mr Reekie’s complaints about either issue.

[68]   Mr Reekie says that on 18 June 2012 he formally referred his letter of complaint about Mr Sweet dated 18 June 2011 to Mr Fitzharris and also sent a copy to the Chief Ombudsman. He alleges he followed the issue up on several occasions at meetings with the Inspectors but, despite assurances that they would look into the matter, nothing was done to progress the complaint. This later prompted him to refer

both the original complaint dated 18 June 2011 and the failure of the Inspectorate to deal with that complaint to the Chief Ombudsman on 8 June 2014.

[69]   On 12 August 2014 Mr Reekie also formally referred his earlier complaint about the transfer and the manner in which it had been investigated by Mr Morrison to the Chief Ombudsman for investigation.

[70]   The Chief Ombudsman responded to Corrections on 27 October 2015. She declined to investigate the complaint about Mr Sweet dated 18 June 2011 but found that the Inspectorate’s investigation of Mr Reekie’s complaint about the transfer was inadequate for the following reasons:

The Inspector’s Investigation of Mr Reekie’s complaint was not completed to an adequate standard. The decision not to notify Mr Reekie of the transfer, the decision to place him on at risk status and the apparent non-compliance with the review risk assessment process should have required further investigation and/or clarification from the Inspector as to the appropriateness of those decisions.

The Inspector’s Investigation, whilst providing Mr Reekie with an outline of the prison manager’s decision for the transfer, did not provide an analysis of that decision, and whether or not the transfer was, in fact, appropriate.

…

Overall, I did not identify any systemic issues about the Inspector’s handling of Mr Reekie’s complaints.

[71]   This sequence of events demonstrates that following Mr Reekie’s transfer to NRCF both Mr Reekie and Ms Wood immediately invoked the review function provided by the Inspectorate. When Mr Reekie considered the Inspectorate’s response to be inadequate, he invoked the assistance of the Chief Ombudsman. It is obviously a matter of regret that Mr Morrison’s investigation of the transfer did not provide   Mr Reekie with a robust analysis of the reasons given by Mr Beales for the transfer to NRCF. That fact could not, however, amount to a breach of Mr Reekie’s rights under s 23(5). The manner in which the Inspectorate dealt with his complaints did not engage issues relating to humanity or Mr Reekie’s right to be treated with inherent dignity.

Conclusion

[72]   Regardless of whether they are viewed individually or collectively, the matters relied upon by Mr Reekie under this cause of action do not establish a breach of his rights under s 23(5) of NZBORA.

Third cause of action: breach of rights under s 27(1) of NZBORA

[73]Section 27(1) provides:

27     Right to justice

(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

…

[74]   Under this cause of action Mr Reekie alleges that in making and carrying out the decision to transfer him to NRCF, and ignoring the consequences to him of doing so, the defendant has breached his rights under s 27(1). He contends “the defendant has in totality actioned an unreasonable fetter upon the observance of and/or failed to observe the principles of natural justice.”

[75]   Mr Reekie particularises this claim by alleging the defendant acted “in breach of [Mr Reekie’s] rights to be properly, accurately, promptly and fairly treated and informed”, “in breach of a fair and lawful, and/or independent process” and “in breach of the principles of justice, procedural fairness and fairness.” He also alleges the defendant acted in breach of numerous sections of the Act and Regulations.15 Finally, he alleges the defendant acted “in such a callous and/or deliberate manner as to subject the plaintiff and his family to serve [sic] adverse consequences for making complaint[s].”

[76]   I have already held that Mr  Beales  had  lawful  grounds  for  transferring  Mr Reekie to NRCF.16 Furthermore, there is no requirement in the Act or Regulations

15     Corrections Act 2004, ss 5, 6, 8,12, 29, 50, 51, 54, 55, 56, and 152; Corrections Regulations 2005, regs 5,6 and 164.

16     At [43]-[46].

that a Prison Manager must consult or seek input from a prisoner before a decision is made to effect a transfer to another prison. Nor is there any requirement that prisoners be consulted about the manner in which they are conveyed from prison to prison. Obligations of that kind would obviously be wholly impracticable given the number of prisoners Corrections is required to transfer between prisons for a variety of reasons on a daily basis. Those responsible for making such decisions therefore have a considerable degree of discretion so long as the transfer is being made in accordance with s 54(1) to (3) of the Act and taking into account the matters set out in s 54(4).17

[77]   In addition, the right of a prisoner to request the reasons for transfer is circumscribed by the Act as set out above.18 I have also found that Mr Beales was lawfully entitled not to give Mr Reekie prior notice that he was to be transferred for the reasons I have already given.19

[78]   Furthermore, reg 196 provides that prisoners have no legitimate expectation that they will be accommodated in, or be provided with, the same or similar conditions during the whole term of a sentence. As the Court of Appeal observed in Taylor v Chief Executive of the Department of Corrections, this means prison authorities are at liberty to change any such conditions as required for disciplinary or other purposes consistent with the legislation so long as entitlements under the Act or regulations are not affected.20 If prisoners have no legitimate expectation they will be accommodated at the same prison for the duration of a sentence it is difficult to see why they would have a right to be heard on decisions relating to the prison at which they are to serve their sentence.

[79]   All of these factors persuade me that Mr Reekie had no right to be heard prior to being transferred to NRCF and he only had limited rights to enquire into the reasons for his transfer thereafter. He certainly had no right to be consulted about the manner in which the transfer would be undertaken.

17 These sections are set out at [42].

18 At [29].

19 At [51].

20     Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112 at [31].

[80]   Taking those factors into account I see no room for any claim based on failure to observe the principles of natural justice under s 27(1). This claim must fail as a result.

Fourth cause of action: breach of common law duty of care

[81]   Under this head Mr Reekie claims Mr Beales had a duty of care at common law to ensure Mr Reekie’s complaint about Mr Sweet was dealt with impartially and in accordance with established protocols and procedures. Furthermore, he had a duty to ensure Mr Reekie did not become the subject of any reprisal for having made any complaints.

[82]   In addition, Mr Reekie contends Mr Beales had common law duties to treat him fairly, lawfully, with dignity and respect and to only transfer him to another prison for lawful reasons. He also says Mr Beales had a “statutory duty of care to honestly provide accurate reasons for any transfer even where that occurred through the Inspectorate.

[83]   Mr Reekie also contends Mr Lightbown had a duty of care to ensure he only permitted Mr Reekie to be transferred to NRCF in accordance with s 54 of the Act. The statement of claim goes on to allege that those members of the prison inspectorate who dealt with Mr Reekie’s complaints had a duty of care to investigate complaints to an adequate standard and in accordance with established procedures.

[84]   Mr Reekie alleges all of these persons breached these duties in numerous ways and that Mr Reekie has suffered significant loss as a result.

[85]   I do not propose to deal with Mr Reekie’s individual allegations because I am satisfied none of the  persons  he has named owed  a common law  duty of care to  Mr Reekie. All are undoubtedly subject to statutory duties to carry out their functions in accordance with the legislation under which they have been appointed. Mr Reekie’s remedies for any breach of those duties lie in public law, including the procedures prescribed by the Act and Regulations for dealing with complaints. He retains his rights under NZBORA and also other legislation such as the Privacy Act 1993 and Ombudsmen Act 1975. He may also seek judicial review of any decisions he considers

were made in breach of his rights under the legislative regime. He exercised those rights when he sought judicial review of a subsequent decision to transfer him from NRCF to Spring Hill Prison in February 2012.21 Beyond these public law remedies, however, I do not consider Mr Reekie has any ability to seek redress at common law.

[86]   I reach this conclusion because the Act and Regulations contain a comprehensive suite of obligations imposed on prison management to ensure the humane and safe treatment of prisoners. It also provides prisoners with limited rights to challenge decisions made by management. Two factors in particular suggest that a common law duty of care does not exist. The first is the wide discretion given to the prison authorities under the Act and Regulations regarding the management of prisoners. This is subject only to the limitations and requirements imposed by these instruments and other relevant legislation. The second is the removal by reg 136 of any legitimate expectation by prisoners that they will be accommodated at the same prison or subject to the same conditions for the duration of their sentence. I do not see there is any room for a common law duty of care in light of the statutory regime.

[87]   This aspect of Mr Reekie’s claim bears similarities to Forrest v Attorney- General.22 In that case the plaintiff, also a serving prisoner, claimed he had been mistreated whilst in prison. He alleged this resulted in the prison authorities breaching a common law duty of care they owed to keep him safe. Chisholm J rejected the claim in the following passage:

[45] I agree with Ms Foster that these causes of action cannot get off the ground. The Corrections Act provides a comprehensive code as to the Corrections system. It binds the Crown. Although Mr Forrest relied on Taunoa, I am unable to find anything in either the decision of the High Court or the decision of the Supreme Court that might suggest that the private law duties alleged by Mr Forrest existed in the circumstances under consideration. I do not accept that any such duties have arisen.

[88]   In Wool Board Disestablishment Co Ltd v Saxmere Co Ltd all three members of the Court of Appeal found that the appellant Board had not been negligent when it performed its statutory duties. Hammond J, with whom Ellen France J agreed, found that the trial Judge had been wrong “to have run an entirely parallel common law

21     Reekie v Chief Executive Officer of the Department of Corrections [2013] NZHC 271.

22     Forrest v Attorney-General HC Christchurch CIV 2009-409-2373, 1 November 2010.

obligation with the statutory obligation.23 Hammond J observed that this fact alone should give rise to considerable concern because “careless performance of a statutory obligation has always been held not of itself to give rise for liability for common law negligence”.24 Hammond J then went on to say:

[198] Secondly, it is hard to see what particular features would justify the imposition for the need of a common law duty having regard to the usual principles of foreseeability, proximity and policy. This case is a long way from the sorts of categories where common law duties have been recognised. And any loss here is economic and indirect. Then, too, as Mr Kós urged on us, generally speaking our courts have set their face against the imposition of a common law duty upon an administrative decision of the kind which was in issue here, confining a challenge instead to judicial review or the tort of misfeasance in public office.²⁵ There is also the distinct alternative of judicial review and a scheme of accountability imposed within the statute:²⁶ ultimately this Board was under the surveillance of the Minister.

Chambers J found that all of the private law claims must fail because the actions of the defendant Board were at all times lawful and reasonable.27

[89]   I take broadly the same view in the present case. In particular, it is difficult to discern policy reasons in favour of the imposition of a common law duty of care when the Act and Regulations contain such a detailed regime to deal with complaints by prisoners and public law remedies are also available. Imposition of a duty of care on those responsible for administering the New Zealand corrections system would also be a major step that could only be taken where the Court is sure it has the necessary facts to decide whether a duty of care should be imposed as a matter of policy. That is not the case here.

[90]   Significant issues also arise in relation to whether Mr Reekie suffered any loss or damage as a result of the acts he relies on. I have already held the transfer to NRCF was lawful and made for proper reasons. The transfer also effectively resolved the issues Mr Reekie had raised in his complaint dated 18 June 2011 because it removed him from the orbit of both Mr Sweet and the prisoners who had been threatening him.

23     Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513; [2011] 2 NZLR 442 at [197].

24     At [197], citing X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 732-735.

25     Takaro Properties Ltd v Rowling [1987] 2 NZLR 700 (PC).

26     Bella Vista Resort Ltd v Western Bay of Plenty District Council [2007] NZCA 33, [2007] 3 NZLR 429 at [60].

27     Wool Board Disestablishment Co Ltd v Saxmere Co Ltd, above n 22, at [282].

Furthermore, any failure to properly investigate complaints is unlikely of itself to have caused damage. Any damage suffered by Mr Reekie is likely to have been caused by the acts that form the subject of those complaints.

[91]   I am therefore satisfied this cause of action fails both because it is untenable at law and cannot in any event be sustained on the facts.

Result

[92]Mr Reekie’s claims are dismissed.

Costs

[93]   The defendant is obviously the successful party in this proceeding and is entitled to costs as a result. My tentative view is that costs should be awarded on a category 2 basis together with disbursements as fixed by the Registrar.   Should     Mr Reekie not be able to reach agreement with the defendant regarding costs I reserve leave to the parties to file concise memoranda regarding costs (ie no more than five pages in length) and I will deal with the issue on the papers.

Lang J

Solicitors:

Meredith Connell, Wellington

K Gibbons, Department of Corrections, Auckland Prison Copy to:

Plaintiff