Reekie v Attorney-General
[2012] NZHC 1867
•30 July 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2008-404-005757 [2012] NZHC 1867
BETWEEN NICHOLAS REEKIE Plaintiff
ANDATTORNEY-GENERAL (SUED ON BEHALF OF THE DEPARTMENT OF CORRECTIONS)
First Defendant
ANDATTORNEY-GENERAL Second Defendant
ANDTHE DISTRICT COURT AT WAITAKERE
Third Defendant
Hearing: 13-17 February; 21-22 February 2012; 17 April 2012
Counsel: N Reekie in Person supported by R Woods as McKenzie Friend
J Foster and J Catran for the Defendants
Judgment: 30 July 2012
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 30 July 2012 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Distribution:
N Reekie: (via Arul Prakash: [email protected]) J Foster: [email protected]
J Catran: [email protected]
REEKIE V ATTORNEY-GENERAL & ORS HC AK CIV 2008-404-005757 [30 July 2012]
[1] Mr Reekie is a sentenced prisoner. Following a trial by jury, he was sentenced to preventative detention with a minimum term of imprisonment of
25 years by Harrison J in July 2003.1
[2] At the time that he was sentenced, Mr Reekie had spent 11 of the previous
14 years in prison. These proceedings relate to his imprisonment in late 2002 and in early to mid 2003.
[3] The third amended statement of claim is a lengthy document. In some respects, it is confusing. It runs allegations relating to different issues together, and the causes of action pleaded in respect of the allegations are repetitive and not always clear. Nevertheless, broadly, the proceedings concern two issues;
(a) First, there is a claim by Mr Reekie that he was unlawfully detained for the nine-day period from 9 to 25 September 2002. Six of the ten causes of action brought by Mr Reekie relate to this allegation. They are as follows: the first cause of action for false imprisonment; the third, seventh and ninth causes of action for breach of s 22 of the New Zealand Bill of Rights Act 1990; the fifth cause of action for negligence; and the tenth cause of action for breach of s 27 of the New Zealand Bill of Rights Act.
Mr Reekie has also alleged that the responsible authorities knew that he was being held without lawful authority, and that the Department of Corrections, the police and the District Court at Waitakere, conspired to cover up his unlawful imprisonment.
For this alleged unlawful detention, Mr Reekie seeks damages
(including exemplary damages) in tort both for false imprisonment and for negligence, public law compensation for breach of ss 22,
1 R v Reekie [2003] BCL 794 (HC).
23(5) and 27(1) of the New Zealand Bill of Rights Act, and various declarations.
(b)Secondly, there is a claim by Mr Reekie in relation to his treatment in prison and the conditions in which he says he was held, first in the High Care Unit at Auckland Prison, and then in the Special Needs Unit at Auckland Central Remand Prison. He has asserted that his treatment and the conditions in which he was held breached his right to be treated with humanity and with respect for the inherent dignity of the person under s 23(5) of the New Zealand Bill of Rights Act in his fourth and eighth causes of action, and/or that his treatment and the conditions in which he was held amounted to torture, or that they were cruel, degrading, disproportionately severe or inhumane under s 9 of the New Zealand Bill of Rights Act in his second and sixth causes of action
Specifically, Mr Reekie has alleged that he was subject to an act of torture. He says that his left arm was placed in an arm lock and that his arm was then deliberately twisted by a prison officer when he was being restrained on a “tie-down” bed on 8 July 2002.
Mr Reekie seeks damages, including exemplary damages, and various declarations, including a declaration that his treatment has been such that a substantial reduction in his sentence is “just and deserving”. He also seeks a declaration that his treatment “prevented, or at the very least, contributed [to him] not receiving a fair trial”.
[4] I deal with these allegations in turn.
Factual background
[5] There is little dispute between the parties as to most of the essential facts. Moreover, the records of the District Court have been produced pursuant to an order made by this Court and they largely speak for themselves.
[6] As I have already foreshadowed, Mr Reekie has a very lengthy criminal record. Relevantly, on 16 March 2000, he was sentenced to a term of imprisonment of three years for burglary and to a concurrent term of imprisonment of one year for aggravated assault. He did not however serve the full term of imprisonment imposed on him; rather he was released on parole on 10 December 2001.
[7] Mr Reekie was not at liberty for long. On 13 February 2002, he was arrested on various charges laid under the Crimes Act 1961, including the following:
(a) taking away without consent with the intention to have sexual intercourse;
(b) assault with intent to commit sexual violation; (c) sexual violation by rape (x 2);
(d) violation by unlawful sexual connection (x 4); (e) male assaults female.
All charges related to the same complainant. Mr Reekie appeared in Court on
13 February 2002 on these charges and he was remanded in custody, by consent, until 22 February 2002. A warrant of commitment on adjournment pursuant to s 47 of the Summary Proceedings Act 1957 issued.
[8] On 20 February 2002, an interim recall order was made in respect of the earlier sentence that had been imposed on Mr Reekie in March 2000.
[9] When Mr Reekie was back before the Court on 22 February 2002, two further charges were laid against him. He was charged with taking another complainant away with intent to have sexual intercourse with her. He was remanded in custody until 4 March 2002. On 4 March 2002, he was remanded in custody until
25 March 2002, and on 25 March 2002, he was remanded in custody until 8 April
2002. On each occasion, a warrant of commitment was issued.
[10] On 8 April 2002, a further ten charges were laid against Mr Reekie, all involving a third complainant. The charges alleged:
(a) taking away without consent with intent to have sexual intercourse, (x 2);
(b) assault with intent to commit sexual violation; (c) sexual violation by rape (x 2);
(d) sexual violation by unlawful sexual connection (x 4), and
(e) breaking and entering a dwelling with intent to commit a crime therein.
Mr Reekie appeared in Court and he was remanded in custody, by consent, until
22 April 2002. A warrant of commitment was issued. [11] On 11 April 2002, a final recall order was made.
[12] On 22 April 2002, Mr Reekie was remanded in custody until 20 June 2002, and a warrant of commitment was issued. Presumably, this remand was by consent, given the provisions of s 45(3) of the Summary Proceedings Act as it stood at the time, although I cannot see any reference to this in the District Court file. The
records of hearing noted on the relevant summons are not, however, particularly clear. In any event, this issue is not raised by Mr Reekie. I take it no further.
[13] On 3 May 2002, Mr Reekie was transferred to Auckland Prison. He was assessed as being at risk of self harm, and he was placed in the High Care Unit. I come back to this matter later in this judgment.
[14] On 18 June 2002, the Criminal Office of the District Court at Henderson sent a facsimile to Auckland Prison advising that one of its staff had talked to Mr Reekie’s counsel, a Mr Roberts, and that Mr Roberts had advised that he did not require Mr Reekie to attend Court on 20 June 2002. The facsimile advised that the hearing on 20 June 2002 was a callover so that the date for the deposition hearing could be set.
[15] On 20 June 2002, Mr Reekie was remanded in custody until 28 June 2002, and on 28 June 2002, he was remanded in custody until 15 July 2002, again I assume by consent. On 15 July 2002, he was remanded in custody until 22 July 2002. On each occasion, a warrant of commitment was issued.
[16] On 16 July 2002, the Parole Board terminated Mr Reekie’s parole. The relevant part of the decision read as follows:
Mr Reekie has a final release date of 9 September [2002]. He is currently on remand for charges of abduction and rape. He will remain in custody on these charges until after his final release date, therefore we decline parole, he is to be released on his final release date…
[17] On 22 July 2002, all of the various charges then outstanding against Mr Reekie were called before Judge Thorburn. The pre-depositions hearing sheet on the District Court file records that Mr Roberts appeared for Mr Reekie. Mr Reekie was not present. Mr Reekie in his statement of claim accepted that Mr Roberts entered an appearance on his behalf. Mr Reekie did, however, assert that he was prevented by Auckland Prison management from appearing in Court on 22 July
2002. He argued that he had been maltreated in the prison and that prison authorities did not want the Court to see his physical condition.
[18] I do not accept this submission. The evidence against it is overwhelming:
(a) The Department of Corrections’ hunger strike records show that
Mr Reekie started a hunger strike on 18 July 2002;
(b) The clinical record kept by the Department of Corrections records that
Mr Reekie was on a hunger strike on 22 July 2002;
(c) That Mr Reekie was on a hunger strike is confirmed in the logbooks kept by the Department. It is also confirmed in Mr Reekie’s sentence plan and in the prison nurses’ diary;
(d)Evidence confirming that Mr Reekie was on a hunger strike was given by Ms Maureen Brown, the Health Care Manager at Auckland Prison, and by Mr Peter Phelan, the Reception and Movements Manager at Auckland Prison. In 2002, Mr Phelan was a Principal Corrections Officer responsible for the day-to-day operation and management of the High Care Unit at the prison;
(e) In cross-examination, Mr Reekie accepted that he was not physically well on 22 July 2002. He said that he was dehydrated and that his lips were swollen.
[19] His physical condition notwithstanding, the documentary evidence shows that it was anticipated that Mr Reekie would be attending in Court on 22 July 2002. However, Mr Reekie’s behaviour was irrational on that morning. The logbook records that at 9.30 am, when his cell was unlocked, he refused to clean his cell and threw his breakfast at the staff. He was abusive and confrontational. Mr Reekie was interviewed at 10.30 am by a Senior Corrections Officer, a Mr Malcolm, and he was then locked in his cell at 11.25 am until he could be seen by the prison doctor at
15.05 pm. Mr Reekie’s sentence plan records as follows:
Very badly behaved – kicked door for 1.5 hrs, threw porridge at staff, threw urine bottle over floor. Another attention seeking display of behaviour.
Mr Reekie put it to Mr Phelan that these entries were fabricated. Mr Phelan denied this. I accept Mr Phelan’s evidence. There are numerous entries in the prison records. They were made by different officers or department staff. They are also consistent with the behaviour of Mr Reekie at the period that is recorded in other contemporaneous documentation. There is no basis for Mr Reekie’s assertion.
[20] I am satisfied on the evidence that on 22 July 2002, Mr Reekie was physically debilitated because he had been on a hunger strike for some days. He was also abusive, confrontational, and physically aggressive.
[21] It was Mr Phelan’s evidence that prisoners who are unwell or who are demonstrating behaviour that could present a risk, are not usually sent to the Court. Rather, the Court is contacted and, if necessary, the matter is brought to the attention of the presiding Judge so that the prisoner’s attendance can be excused.
[22] Although there is no record that the Court was contacted on 22 July 2002, it seems likely that this did occur. Mr Phelan said that he would have applied to the Registrar to seek leave from the presiding Judge. Mr Reekie in giving evidence said that on the morning of 22 July 2002, he could hear staff talking about him and his Court appearance, that Mr Phelan asked who his lawyer was, and that Mr Phelan asked for the Court to be contacted and told that Mr Reekie could not attend.
[23] I am satisfied that Mr Reekie was not prevented from attending Court by prison management for any improper purpose. Rather, prison staff considered that Mr Reekie’s medical condition and his emotional state were such that he was not fit to attend. Although there was no order to produce issued for the hearing on 22 July
2002, I consider that it is likely that the matter was brought to the attention either of the Registrar of the District Court, or to Mr Reekie’s counsel, Mr Roberts.
[24] When the matter was called before the Court, a date for the depositions hearing was fixed. The date was 7 October 2002. The record of hearing shows that Judge Thorburn made an order that Mr Reekie be remanded in custody until that date. Unfortunately, no warrant of commitment on adjournment was then issued. Rather, an order to produce was issued by the Deputy Registrar on 26 July 2002
directing that Mr Reekie be brought before the District Court at Waitakere on
7 October 2002.
[25] On 9 September 2002, Mr Reekie was due to be released from the sentence that had earlier been imposed on him. Various prison records record that on release, he was to revert to being a remand prisoner. The manager at Auckland Prison issued a verbal instruction that Mr Reekie should remain on remand initially at Auckland Prison. The evidence suggested that this instruction was given pursuant to a request from the police.
[26] On 11 September 2002, Mr Reekie was transferred to Auckland Central Remand Prison. He was placed in the Special Needs Unit. On the same day, Judge Rota issued a warrant of commitment ordering that Mr Reekie be detained until 7 October 2002. The warrant records that Judge Rota was acting for Judge Thorburn.
[27] On 23 September 2002, yet further charges were laid against Mr Reekie. He was charged with:
(a) breaking and entering a dwelling with intent to commit a crime therein;
(b) taking away with intent to have sexual intercourse; (c) sexual violation by rape, and
(d) sexual violation by unlawful sexual connection. These charges were historical. They involved a fourth complainant.
[28] On 24 September 2002 Mr Reekie complained to an Inspector of Prisons, a Mr Aumua that he had been falsely imprisoned. Mr Aumua contacted Auckland Prison regarding the complaint.
[29] Mr Reekie appeared on the new charges in the Waitakere District Court on
25 September 2002. He was remanded in custody until 7 October 2002, and a warrant of commitment was issued. The following day, on 26 September 2002, the warrant issued by Judge Rota on 11 September 2002 and the warrant issued on
25 September 2002 were faxed to prison authorities.
[30] On 26 September 2002 a “notification of incident” report was prepared by the Custodial Support Manager at Auckland Prison — a Mr Carl Manning. It recorded that staff at the Auckland Prison Receiving Office believed that there may have been a wrongful detention, and that Mr Reekie may have been held in prison for two days on an order to produce.
[31] Mr Aumua reported by email on 26 September 2002. He was concerned that there was no warrant for the two day period 9–11 September 2002. He was however satisfied that there was a current warrant for Mr Reekie’s commitment as at
26 September 2002. He recorded that he had advised Mr Reekie to take the issue up with his lawyer.
[32] On 27 September 2002, Mr Manning sent a letter addressed to Chief District Court Judge RJ Johnson. He asked whether it had been the intention of the District Court to remand Mr Reekie in custody until 7 October 2002, and whether or not a warrant reflecting that intention had been issued on 22 July 2002.
[33] The matter was referred to Judge Johnson. On 1 October 2002, he issued a warrant of commitment for the period 22 July 2002 to 7 October 2002. That warrant was faxed to Auckland Prison on 2 October 2002.
[34] No application for bail was made by Mr Reekie at any stage. Nor was there any challenge to the remand order made by Judge Thorburn or to the warrants issued either by Judge Rota or by Judge Johnson.
Submissions
[35] Against this background, Mr Reekie argued that he was falsely imprisoned for the period 9 September 2002 to 25 September 2002 because: first, no lawful order was made remanding him in custody between 9 September 2002 and
25 September 2002; secondly, he did not consent to any remand in custody beyond
9 September 2002; and thirdly, the police, the Department of Corrections and the
Ministry of Justice had conspired to cover up his unlawful detention.
[36] Ms Foster for the Crown submitted that Mr Reekie’s assertions were untenable. She argued that there was an order remanding Mr Reekie in custody for the whole of the relevant period, and that his detention was lawful regardless of the delay in issuing the warrant of commitment. Further, she submitted that there was no “cover up” or conspiracy, and that the actions taken by the Prison Department and the Court following the discovery that no warrant of commitment had been issued at the time the order remanding Mr Reekie in custody was made on 22 July 2002, cannot sensibly be described as a conspiracy. She also argued that Mr Reekie’s claims in tort for false imprisonment were claims in respect of acts undertaken in the discharge of judicial duties and that they could not be brought pursuant to s 6(5) of the Crown Proceedings Act 1950. She argued that that provision also applied to the causes of action based on breach of the New Zealand Bill of Rights Act, because those claims were in substance tort claims for false imprisonment. Finally, she argued that this Court had no jurisdiction to hear and determine the claims of public law compensation based on breaches by the judiciary of ss 22 and 27 of the New Zealand Bill of Rights Act, following the decision of the Supreme Court in
Attorney-General v Chapman.2 She submitted that each of the causes of action
pleaded by Mr Reekie were claims in respect of acts undertaken in the discharge of judicial duties.
2 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.
Analysis
[37] Despite the sophisticated legal arguments made by Mr Foster, in my judgment, it is preferable to consider Mr Reekie’s base complaint — was he falsely imprisoned? This can be dealt with relatively simply, and largely by reference to the facts.
[38] It is common ground that Mr Reekie was imprisoned from 9–25 September
2002. It is clear from the District Court files that an order remanding Mr Reekie in custody until 7 October 2002 was made by Judge Thorburn on 22 July 2002. It is also clear that no warrant of commitment was issued on 22 July 2002. What is in issue is what consequences follow from these facts.
[39] False or wrongful imprisonment is committed where one person is detained or imprisoned by another person acting without lawful justification.3 The tort is one of strict liability, and lack of fault in wrongly believing that there is lawful authority to detain is irrelevant.4 Persons imprisoned pursuant to a lawful order of a Court that has authority to make the order are not falsely imprisoned. The manager of a penal institution, and every person lawfully assisting him or her, is justified in receiving and detaining a person the subject of a warrant of commitment issued by a Court.5
[40] On 22 July 2002, the multiple charges then outstanding against Mr Reekie were called before Judge Thorburn. The court record shows that Mr Roberts appeared for Mr Reekie on that date. A depositions hearing was set for 7 October
2002, and Judge Thorburn made an order remanding Mr Reekie in custody until that date. That is clear from the record on each of the summons then outstanding against Mr Reekie, and from the various informations.
[41] While it is clear that an order was made remanding Mr Reekie in custody, the balance of the narration on the Court records is in some respects unclear. The
3 Willis v Attorney-General [1989] 3 NZLR 574 (CA) at 579.
4 R v Governor of Brockhill Prison, ex parte Evans (No 2) [2001] 2 AC 19 (HL) at 26; Manga v
Attorney-General [2000] 2 NZLR 65 at [37]; and see Stephen Todd The Law of Torts in
New Zealand (5 ed, Brookers, June 2009) at [4.5.01].
5 District Courts Act 1947, s 97(2); Crimes Act 1961, s 26; Quinland v Governor of Swaleside
Prison [2002] EWCA Civ 174, [2003] QB 306 at [15]–[17].
informations record that Mr Reekie was remanded in custody until 7 October 2002, but then go on to say “(deft excused 1 week) Deps”, or to similar effect. Ms Foster submitted that this meant that Mr Reekie was excused from appearing during the first week of the anticipated three-week depositions hearing. That, however, is speculation. There was no evidence on the point. However, in the event, I think little turns on the precise wording used because the subsequent orders made clarified
matters. Further, a defect in the form of an order does not render it invalid.6 It is the
order made in open Court that prevails over what is recorded in the Court’s notes, and as I have already noted, it is abundantly clear that on 22 July 2002, Mr Reekie was remanded in custody until 7 October 2002.7
[42] Pursuant to s 47 of the Summary Proceedings Act, when Mr Reekie was remanded in custody, the Court should have issued a warrant in the prescribed form. The section provides as follows:
47 Warrant for detention of defendant remanded in custody
Where the defendant is remanded in custody under section 46, the Court or Justice or Community Magistrate or Registrar must issue a warrant in the prescribed form for the detention of the defendant in custody for the period of the adjournment.
The Court did not issue a warrant for Mr Reekie’s detention. However, the
authorities suggest that the issue of a warrant is not a prerequisite for lawful custody.
[43] In R v Fisher,8 Blanchard J held that detention consequent upon an oral order for remand in custody is lawful, regardless of the fact that there is a lapse between the making of an order and signing of a warrant. He noted as follows:9
Mr Hart came to argue the present application under the impression that no warrant of commitment had been signed by Morris, D.C.J. He proposed to argue that a detention in custody is unlawful unless a warrant in Form 11 of the Summary Proceedings Regulations 1958 (1980/84) is in existence. Section 47(1) of the Summary Proceedings Act says:
“(1) Where, pursuant to s.46 of this Act, the defendant is remanded in custody, the Court or Justice shall issue a warrant in the prescribed form for the detention of the defendant in custody for the period of the adjournment.”
6 Summary Proceedings Act 1957, s 204.
7 See R v Love CA 353/02, 26 November 2002 at [6].
8 R v Fisher HC Auckland T236/95, 4 October 1995.
9 Ibid, at 7.
It appears to me that it cannot be correct that after an oral order for remand in custody has been made any detention is unlawful if a warrant of commitment is not subsequently signed. A warrant is needed for administrative purposes and, if an issue is raised, for proof of the existence of the Court order. But, because a period of time will always elapse between the making of the order and the drawing up and signing of the warrant, it cannot have been intended that s.47(1) should make the warrant a prerequisite to the lawful holding of the defendant in custody as ordered by the Court.
[44] This decision is consonant with s 201 of the Summary Proceedings Act which, inter alia, provides that the High Court may amend a warrant of commitment in any way when it is brought before the Court. This provision suggests that the detail of a warrant is not critical when determining whether or not a person is in lawful custody.
[45] In Misiuk v Superintendent of a Penal Institution,10 Mr Misiuk’s bail was revoked following a bail appeal in this Court. The requirements of s 44 of the Bail Act 2000 were not, however, complied with and no warrant for Mr Misiuk’s detention in custody was issued. Four days later, Mr Misiuk appeared in the District Court and he was remanded in custody and a warrant was issued. At a later stage, a further warrant was issued. Mr Misiuk sought habeas corpus. In the High Court, Dobson J considered that he could correct the administrative error and
he issued a retrospective warrant.11 Dobson J’s decision was upheld by the Court of
Appeal.12 The Court was satisfied that the later warrants issued by the District Court overtook the earlier “administrative deficiency” in failing to issue the initial warrant of commitment. The Court did have reservations about Dobson J’s conclusion that the absence of the warrant was a mere matter of form. It accepted however that, as a matter of practicality, it is inevitable that there will be some delay between the pronouncement of the Court’s decision and the preparation and execution of the warrant. It expressed the view that the statute should ordinarily be complied with as soon as practicable, but it was satisfied that any deficiencies in the case before it had
been overtaken by the warrants subsequently issued in the District Court.13
10 Misiuk v Superintendent of a Penal Institution [2011] 1 NZLR 393 (HC).
11 Ibid, at [16]–[17].
12 Misiuk v Chief Executive of the Department of Corrections [2010] NZCA 480, [2011] 2 NZLR
114.
13 Ibid at [26]–[27].
[46] Much the same reasoning applies in the present case. Judge Thorburn remanded Mr Reekie in custody on 22 July 2002. Mr Reekie was lawfully imprisoned pursuant to the March 2000 sentence until 9 September 2002. On that date, he became a remand prisoner pursuant to Judge Thorburn’s order. The Court’s failure to issue a warrant of commitment under s 47 was addressed promptly, first on
11 September 2002 by Judge Rota, and then by Judge Johnson on 1 October 2002. While there was an initial administrative deficiency in the process followed by the Court, this does not compel the conclusion that Mr Reekie was not lawfully detained.
[47] In my judgment, Mr Reekie was lawfully held in custody from 9–25
September 2002. He has failed to prove that the orders made on 22 July 2002,
11 September 2002 and 1 October 2002, were unlawful or invalid. It follows that he was not falsely imprisoned as alleged by him.
[48] I now turn to the issue of consent. The period of remand imposed by Judge Thorburn on 22 July 2002 exceeded the eight-day limit that was then in force under ss 45 and 46 of the Summary Proceedings Act. Up until June 2009, on any adjournment, any remand in custody under s 46 could not be for a period longer than eight days, unless both parties consented to the extension.
[49] Mr Reekie was not at Court on 22 July 2002 when the order was made. However, his counsel, Mr Roberts, was in Court on his behalf. There is nothing express on the Court file recording whether or not Mr Roberts, on Mr Reekie’s behalf, consented to an adjournment in excess of the eight-day period, and Mr Roberts was not called as a witness. Nevertheless, there must be a distinct possibility that Mr Roberts did consent to an extension on Mr Reekie’s behalf. Mr Reekie was serving a recall sentence until 9 September 2002. It was inconceivable that he would have received bail after that date, given the number and
nature of the charges then outstanding against him, and his past history.14
14 This was, in effect, confirmed by Ms Woods. Ms Woods and Mr Reekie are friends. They have known each other since 2001. She offered her address as an address to which he could be bailed. She said that they decided that if further serious charges were laid against Mr Reekie before his recalled sentence expired, no application for bail would be made.
Consenting to a remand in custody until the depositions hearing on 7 October 2002 would have been the sensible course.
[50] While Mr Reekie asserted that he did not speak to Mr Roberts while he was in the High Care Unit in 2002, the evidence did not support this assertion. Mr Reekie acknowledged in evidence that he left messages on Mr Robert’s answer phone, that Mr Roberts was turned away on two occasions when he tried to visit him in prison, that Mr Roberts left documents for him to read and that he saw Mr Roberts when he was in attendance at various of the Court hearings. Prison records record that Mr Reekie spoke to his lawyer by telephone on 17 July 2002.
[51] There is a presumption of regularity attaching to Court proceedings. Judge Thorburn was an experienced and long-serving District Court Judge. A cursory glance at the Court files would have disclosed that Mr Reekie had been appearing on a regular basis leading up to the fixing of the date for depositions. It is unlikely that the need for consent to an adjournment longer than eight days would have been overlooked. If Mr Reekie wished to assert that Mr Roberts did not consent to an extension of the eight-day period, the burden was on him to satisfy me on the balance of probabilities in that regard. He has failed to do so.
[52] In any event, any absence of consent to a remand order for longer than eight days would not have rendered the order that Mr Reekie be remanded in custody unlawful in itself. Rather, failure to return Mr Reekie to the Court within the eight days may have amounted to a breach of his rights under the Summary Proceedings
Act.15 Mr Reekie did not however assert this in his statement of claim.
[53] Finally, in this regard, I deal with the allegation of conspiracy. [54] The elements necessary to establish the tort are:16
[a] a combination of two or more persons;
[b] made with the dominant purpose of injuring another;
15 R v Fisher, above n 8.
16 Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 (HL) at 442.
[c] without just cause or excuse; and
[d] carried into effect so as to cause damage to that other.
[55] There is simply no evidence as to any of these matters. Rather, the actions taken by the police, prison staff, court staff and District Court Judges were manifestly appropriate. The police asked the prison authorities to keep Mr Reekie in custody after 9 September 2002 because there was an order made by the Court remanding him in custody until 7 October 2002. The Court’s paperwork was unsatisfactory and prison staff sought to clarify the situation. The matter was brought to the attention of the Court, and the actions of Judge Rota and Chief Judge Johnson were appropriate. They simply recorded, albeit belatedly, what had already happened. There is no tenable basis on which it can be suggested that there was a conspiracy.
[56] In my judgment, Mr Reekie was lawfully detained from 9–25 September
2002, and I reject Mr Reekie’s various causes of action in regard to this issue. It is not necessary for me to go on and address the sophisticated legal arguments made by Ms Foster and I do not do so.
B) Treatment and conditions in which Mr Reekie was held
Mr Reekie’s complaints
[57] As noted above, Mr Reekie has made a series of claims in relation to his treatment in prison, and the conditions in which he says he was held, initially in the High Care Unit at Auckland Prison, and then in the Special Needs Unit at Auckland Central Remand Prison. He has asserted breach of both ss 9 and 23(5) of the New Zealand Bill of Rights Act. Mr Reekie particularises his allegations at some length in [32] of the third amended statement of claim filed, with leave, on
14 February 2012.
[58] During the course of the hearing, Mr Reekie endeavoured to raise a number of additional grievances that had not been pleaded. At times, it appeared that he was
inviting the Court to conduct, in effect, an inquiry, into the operation of the old High Care Unit at Auckland Prison. Additional grievances he raised included the use of ankle straps on the tie-down bed, the use of metal handcuffs on the tie-down bed, the lawfulness of the decisions made to put him on the tie-down bed, the number of times he was restrained on the tie-down bed and the duration of his restraint on some occasions. He also endeavoured to lead evidence about the treatment he says was meted out to other inmates. Mr Reekie did not seek leave to further amend his pleadings to make reference to any of these additional issues. The Crown objected from time to time and queried the relevance of some of the evidence Mr Reekie was seeking to give or elicit. It did not ask for an adjournment and it tried to deal with as many of the additional matters as it reasonably could. It did, however, protest that it could not reasonably have been expected to anticipate that they might be raised.
[59] A statement of claim must show the general nature of a plaintiff’s claim to the relief sought, and it must give sufficient particulars to inform the Court and the party against whom relief is sought, of the plaintiff’s cause of action.17 The object is to inform the Court and the opposing party. As is noted in McGechan on Procedure:
Essentially a statement of claim must sufficiently inform the Court and the opposite party of the factual situation, the existence of which (if proven) entitles the plaintiff as a matter of law to claim relief.
From the Court’s perspective, the requirement is for sufficient detail and clarity to understand at the outset, the issues being posed for decision, enabling determination of relevancy. From the respondents’ perspective, the requirement moves rather further to include sufficient particularisation in regard to matters of fact, to enable the opposite party not only to understand the issues raised, but to prepare evidence in
advance of the trial.18
[60] Mr Reekie represented himself. Some of the additional matters raised by him came up incidentally, in the sense that they arose out of evidence given by some of the witnesses called. I refer, for example, to evidence about the use of ankle restraints and the use of “handcuffs” to restrain prisoners on the tie-down bed. The
Crown was largely able to deal with these issues through its witnesses and in
17 High Court Rules, rr 5.26(a) and (b).
18 Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HR5.2 6.07].
submission. I deal with these matters in this judgment to the extent that I am able to do so. Other issues raised by Mr Reekie were both discrete and new, and they could not reasonably have been anticipated by the Crown. For example, Mr Reekie sought to challenge the lawfulness of the various decisions made to place him on the tie-down bed, and the frequency and duration of the restraints to which he says he was subjected. While there was some material in the bundle relevant to these issues, that material was not complete. Nor was it self-explanatory. Witnesses were not in a position to deal with the matters fully. I am not satisfied that I had all relevant material before me in relation to them. I decline to deal with these matters. It would be unfair to the Crown to do so.
Background facts
[61] As I have already noted, Mr Reekie was remanded in custody on 13 February
2002. He was assessed by a psychiatrist, a Mr Tapsel, on 18 February 2002. The report recorded that Mr Reekie described a long history of variable and unstable moods, and of repeated deliberate self-harm. On 3 May 2002, Mr Reekie was transferred to Auckland Prison. He was interviewed and assessed as being at risk of self-harm; he was placed in the High Care Unit within the prison. The appropriate authorities were signed and Mr Reekie was placed in an isolation cell with 15-minute observations, and subject to a direction that his exercise was to be taken in the recreation corridor.
[62] On 6 May 2002, Mr Reekie made two attempts to hang himself. As a result, he was placed on the tie-down bed in the unit. The following day, Mr Reekie was assessed by another psychiatrist, a Mr Seth. Mr Reekie refused to communicate. On
9 May 2002, he began a hunger strike. He was still refusing to speak. On 10 May
2002, he was again assessed by Mr Seth, and again he chose not to talk. Mr Seth could find no clear evidence that Mr Reekie suffered from a depressive illness and he expressed the view that Mr Reekie’s way of coping with the offences he was then charged with appeared to be one of self-harm, not communicating with staff, and refraining from eating and drinking.
[63] Mr Seth assessed Mr Reekie again on 14 May 2002. By this stage, Mr Reekie was eating and drinking. Mr Seth noted that he appeared depressed about the charges he was facing, and the possibility of receiving a sentence of preventative detention. Mr Seth recorded that Mr Reekie stated that he hoped to give himself a heart attack and die. He also described other attempts at self-harm. Mr Seth could find no evidence of any depressive illness, or that Mr Reekie suffered from any psychotic phenomena. Mr Seth recommended that he should stay in the High Care Unit.
[64] Sometime between 16–20 May 2002, Mr Reekie started banging his head against the wall in the “round room” in the High Care Unit. He was again assessed by Mr Seth on 21 May 2002. Mr Seth again concluded that Mr Reekie was not suffering from any psychotic phenomena. He was not then actively suicidal, but Mr Seth thought that he was at high risk of harm to others and to himself. Mr Seth recommended that he should stay in the High Care Unit.
[65] On 10 June 2002, a fellow inmate asserted that Mr Reekie had a weapon concealed in his shoes, and that he would try and escape at his next District Court appearance. While an initial search did not reveal anything, another search was carried out two days later. Two pieces of metal window frame were found concealed in Mr Reekie’s shoes. He was charged under prison disciplinary regulations.
[66] On 12 June 2002, medical staff at the prison considered Mr Reekie’s case, and concluded that he could be moved out of the High Care Unit. On 17 June 2002, a liaison nurse again recommended that Mr Reekie was fit to be transferred out of the unit. Mr Reekie however did not want to be moved out of the unit. On 2 July
2002, Mr Reekie threatened suicide when the staff discussed with him a move out of the High Care Unit.
[67] On 8 July 2002, Mr Reekie was “c and r’d” (controlled and restrained) from cell 1 in the High Care Unit to the tie-down bed in the tie-down bed cell following an incident involving prolonged door kicking. I deal with this incident shortly. On
10 July 2002, Mr Reekie began another hunger strike. On 1 August 2002, Mr Reekie was moved to the Special Needs Block within the prison. He threatened to hang
himself. He then attempted to carry out this threat when he arrived in the Special
Needs Block. He was promptly moved back into the High Care Unit. On 6 August
2002, Mr Reekie threatened to “take someone out” if he was transferred out of the High Care Unit. On 27 August 2002, Mr Reekie again refused to go into the Special Needs Block, and again he displayed angry and aggressive behaviour, kicking and banging on walls.
[68] As already noted, on 9 September 2002, Mr Reekie became a remand prisoner, and on 11 September 2002, he was transferred from Auckland Prison to Auckland Central Remand Prison. Again he was interviewed, and assessed as being at risk of self-harm and he was placed in the Special Needs Unit. The Special Needs Unit was a rather less restrictive unit that the High Care Unit at Auckland Prison. Mr Reekie was initially placed in an observation cell under 15-minute observations. A week or so later, he was reassessed and put on 30-minute observations. As his sentencing date got closer, his risk assessment increased and his observations became more frequent. At one stage, he asked to be located to a mainstream unit. That request was declined. The assessment team thought that he should remain in the Special Needs Unit.
[69] On 15 July 2003, Mr Reekie was sentenced to preventative detention, with a minimum period of imprisonment of 25 years. On the same day, he was transferred from the Auckland Central Remand Prison back to Auckland Prison. Again, he was placed in the High Care Unit. He was assessed by a nurse on 16 July 2003, and it was decided that he should stay in the High Care Unit. On 26 July 2003, a prison officer interviewed Mr Reekie regarding his proposed transfer to C Block within the prison. He threatened to self-harm if he was moved out of the High Care Unit. On 29 July 2003, Mr Reekie was cleared to move out of the High Care Unit into C Block. After a number of discussions with prison staff, Mr Reekie eventually agreed to move from the High Care Unit into C Block on 20 August 2003.
[70] This is very much a potted summary of Mr Reekie’s history at Auckland Prison and at Auckland Central Remand Prison over the relevant periods. There were a number of incidents I have not referred to — for example, on one occasion
Mr Reekie defecated in his cell and covered himself in his own faeces. On other occasions, he used his own faeces to write words on his cell walls.
[71] I have no doubt that Mr Reekie was an extremely challenging prisoner. The evidence established that over the relevant period, he was generally non-compliant. He frequently exhibited offensive and abusive behaviour. He made repeated allegations against prison staff. He was manipulative and intent on trying to get his own way. There is nothing however to suggest that he was suffering any major psychiatric illness at the time. I suspect that his behaviour was largely a reaction to the raft of very serious charges he was facing, and to the distinct possibility that he would be sentenced to preventative detention. The medical opinion was to the effect that his irrational behaviour was attention seeking and nothing more than a response to the predicament in which he found himself.
The High Care Unit at Auckland Prison
[72] The Crown submitted, and I accept that prisoners are at an increased risk of suicide or self-harm.19 Indeed, this was noted in Everitt v Attorney-General,20 where Thomas J commented that prisoners are more than usually likely to attempt suicide or self-injury. He in turn referred to the decision of the House of Lords in Reeves v Commissioner of Police of the Metropolis in this regard.21 In that case, Lord Hoffman observed a quote from an instruction given to prison governors of the United Kingdom, which said that the care of prisoners who are at risk of suicide and self-harm is one of the prison service’s most vital tasks.
[73] The High Care Unit at Auckland Prison is for prisoners who are at risk of suicide or self-harm. The evidence established that the prison was built in or about
1968 and that the High Care Unit was set up following a number of suicides in the late 1980s in Auckland Prison. By 2002, the High Care Unit could accommodate seven prisoners. The unit was eventually closed in 2006. It has now been replaced
by a new, more modern High Care Unit.
19 D van Zyl Smit and S Snacken, Principles of European Prison Law and Policy, Penology and
Human Rights (Oxford University Press, New York, 2009) at [6.6.4].
20 Everitt v Attorney-General [2002] NZLR 82 at [61].
21 Reeves v Commissions of Police of the Metropolis [2000] 1 AC 360, at 369.
[74] A wide range of prisoners went through the old unit, and they would stay for varying lengths of time. The length of stay depended entirely upon a prisoner’s needs. When the prisoner was no longer assessed as being at risk of self-harm, they were moved out of the unit.
[75] The High Care Unit serviced the whole of the prison. As a result, it accepted all classifications of prisoners, including maximum security prisoners. This meant that it would often be used to hold dangerous and volatile prisoners when they were assessed as being at risk of self-harm.
[76] Although Mr Reekie, and one of his witnesses, a Mr Baker, suggested otherwise, I accept on the clear and unequivocal evidence of other witnesses that prisoners would be placed in the High Care Unit only when they were assessed as being at risk of suicide or self-harm, or if they had self-harmed or attempted to suicide or self-harm. They were not placed in the unit as a form of punishment.
[77] With new prisoners, the prison used a questionnaire called “NARA”, or new arrival risk assessment, as an initial assessment tool. The prisoner was asked simple questions about his situation, history, state of mind and whether he felt like or had been involved in self-harming. If a prisoner answered yes to two or more questions, the prisoner was deemed to be at risk, and as needing to be placed in the High Care Unit. At this point, there were two options. Either the prisoner would immediately go to the High Care Unit as an “at risk” prisoner, or the prisoner would be interviewed by the prison manager to determine whether there were any mitigating factors. When a prisoner was placed in the High Care Unit, then generally within a period of 24 hours, he or she would be assessed by a forensic nurse or a forensic psychiatrist.
[78] The decision to transfer a prisoner out of the unit was made by a multi-disciplinary team. That team included corrections officers, nursing staff, prison psychological services staff, and visiting psychiatrists from the Mason Clinic. The team met every Tuesday afternoon, and it used its operational knowledge of different units on site to consider where each prisoner could most suitably be placed.
The objects were to ensure the smooth transition of prisoners out of the High Care
Unit, when they were no longer deemed to be at risk, and to prevent relapse.
[79] Each prisoner housed in the unit had his own at risk management plan, in addition to the ordinary sentence plan that all prisoners have.
[80] During the course of the trial, I visited both the new and old High Care Units. I found that visit invaluable in assessing the evidence.
[81] The old unit was accessed off a main corridor. It was close to the prison medical centre. There were eight cells in total, a staff office in the middle of the unit, a shower block, a small staff kitchen, an interview room, a recreation room, a store and a locker room, and an outside yard.
[82] Five of the cells were ordinary observation cells. Each of these cells had a platform bed, a toilet and a sink. All cells had a light, a night light, and a security camera. Most had a call button. There was a cell known as “the fish bowl”, which was located directly outside the staff office. It had a glass front for observation purposes. There was a cell (cell 3A) that had a large glass door and glass wall. This cell contained the tie-down bed. It was also immediately opposite the staff office. A prisoner who was acutely at risk, or persistently self-harming, could be placed on the tie-down bed in certain situations. There was another cell known as “the round room”. While it was not round, it had no sharp corners. It had vinyl on the walls to minimise the risk of self-harm. The windows in this cell were up high, and the room had no toilet, or sink or elevated bed. The recreation room in the unit was relatively large. It had windows. The outside recreation yard was no longer in use as from mid
2002. It was considered to be unsafe because the wire mesh covering it was beginning to age and rust. At-risk prisoners could pick off pieces of wire, and use them to self-harm. The evidence established that prisoners in the unit could be very inventive and that a number of seemingly innocuous objects could be used to self-harm — for example, staples from a magazine, plastic cutlery, pips from fruit and the like.
[83] The tie-down bed used in 2002 was no longer available for inspection. The evidence, however, established that it was not purpose-built. Rather, it was a single bed with wire springs and a utilitarian hospital-type vinyl covered mattress. The bed had leather straps, which were used to restrain prisoners by the wrists and the ankles. There was also a chest or lower leg strap. I have inspected the new tie-down bed in the new High Care Unit at the prison, and the restraining straps on that bed. They have soft lining on the inside of the leather straps. Some of the evidence suggested that the new straps are similar to the old straps. Other evidence suggested that there was no padding inside the leather straps on the old tie-down bed, but that staff used to put padding on a prisoner’s wrists and ankles if a prisoner was struggling unduly and injuring himself. The evidence was that prisoners could only be put on the tie-down bed if authorisation was given by the prison manager, or by his or her delegate. After a prisoner had been tied down for 24 hours, further authorisation from a Visiting Justice was required. It was prison policy for the unit manager, or the on-call manager, to visit the prisoner the day after the prisoner had been tied down. Further, a nurse or other medical officer was required to check a prisoner on the tie-down bed, initially, and again on any subsequent day, if the restraint was for longer than a day.
[84] Mr Phelan gave evidence that prisoners were untied to eat, to shower, and to take recreation time, even though sometimes prisoners would refuse to do any or all of those things. This evidence is supported by the contemporaneous documentation. The records for Mr Reekie show that on occasion, when he was restrained on the tie-down bed, he was taken off the bed for a shower, either by himself, or by medical staff. It also appears that he was taken off the bed on occasion so that he could have recreation time, or to use the toilet. Mr Phelan told me that when a prisoner on the bed wished to go to the toilet, they could request to be released, either when prison staff were doing their regular observations, or by shouting out asking to be released. This was confirmed by Ms Osment, a Senior Corrections Officer who was working in the unit in 2002. The tie-down bed cell was locked during the night. Mr Phelan said that prisoners were still able to go to the toilet during the night with the assistance of the night patrol staff. There is again some support for this evidence in the logbook records. On one occasion when Mr Reekie was on the tie-down bed, he was taken off the bed so that he could use the toilet at 1.50 am. Prisoners restrained
on the tie-down bed were under regular observation — normally every 15 minutes. They could readily attract the attention of staff.
Sections 9 and 25(5) of the New Zealand Bill of Rights Act 1990
[85] Section 9 provides as follows:
9 Right not to be subjected to torture or cruel treatment
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
[86] 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.
[87] The Act applies to acts done by any person or body in the performance of any public function, power or duty conferred on or imposed on that person or body by or pursuant to law.22 It applies to acts done by staff employed by the Corrections Department.23
[88] The leading decision on the provisions is the decision of the Supreme Court in Taunoa v Attorney-General.24 In this case, the Court was considering the legality of a behaviour modification regime which five prisoners had been subjected to. That regime had been operated at Auckland Prison by the Department of Corrections over the period 1998–2004, to deal with extremely disruptive prisoners. There was a distinctly punitive element to the regime. The point of the regime was to change the
prisoners’ behaviour. The regime involved a highly controlled environment and severe restrictions on association and maximum security conditions, which could become progressively less restrictive depending on a prisoner’s behaviour. The
regime was found to be unlawful. The majority found that there was no breach of
22 New Zealand Bill of Rights Act 1990, s 3.
23 Penal Institution Act 1954, s 41E(1). This was the statute in force at the time of the events raised in these proceedings. It has been replaced by the Corrections Act 2004.
24 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
s 9, but the Court unanimously held that the regime breached the prisoners’ rights
under s 23(5).
[89] The Court discussed the relationship between s 9 and s 23(5) in some detail.25
[90] Elias CJ expressed the view that ss 9 and 23(5) are not simply different points of seriousness on a continuum, but that they involve distinct, though overlapping rights. She considered that s 9 is concerned with the prevention of treatment properly characterised as inhuman, amounting to a denial of humanity; s 23(5) is directed to an additional, but complementary requirement that prisoners be treated humanely. She considered that denial of humanity could occur through deprivation of basic human needs, including personal dignity and physical and mental integrity. In contrast, inhumane treatment was treatment that was not fitting for human beings,
“even those behaving badly in prison”.26
[91] The majority did not agree with these views. They held that ss 9 and 23(5)
establish a hierarchy of proscribed conduct:
(a) Blanchard J considered that there are “degrees of reprehensibility” evident in ss 9 and 23(5). He considered that s 9 is concerned with conduct on the part of the state and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances; section 23(5) is confined in its application to persons deprived of their liberty. It proscribes conduct which is unacceptable in our society, but is of a lesser order, not rising to a level deserving to be called
outrageous.27
(b)Tipping J considered that s 9 can be seen as prohibiting inhumane treatment, whereas s 23(5) requires prisoners to be treated with humanity. He warned that there is a danger of these concepts being
conflated in a way which reduces the degree of seriousness required
25 See also analysis by Court of Appeal in Vaihu v Attorney-General [2008] NZAR 83 at [35], and by Lang J in Vogel v Attorney-General [2012] NZHC 269, [2012] NZAR 154 at [7]–[18].
26 Taunoa v Attorney-General, above n 24 at [11], [70]–[80].
27 Ibid, at [170].
for a s 9 breach. He considered that s 9 is reserved for truly egregious cases which call for a level of denunciation of the same order as that appropriate to torture.28
(c) McGrath J considered that s 9 affirms the rights of all not to be tortured or subjected to cruel, degrading or disproportionately severe treatment or punishment, while s 23(5) focuses on the rights of those deprived of their liberty to be treated with respect for human dignity. He considered that there is a hierarchy between the two sections, and that they are separate, though complementary, affirmations of rights. That hierarchal relationship reflects the graduated standards of the two provisions in the relative gravity of breaches of the rights they respectively affirm. There is a high threshold to be met before the
Court can find that there has been a breach of the prohibition in s 9.29
(d) Henry J agreed with Tipping J.30
[92] Tipping J noted that conduct breaching s 9 will usually involve intention to harm or at least consciously reckless indifference as to the causing of harm, as well as significant physical or mental suffering.31 It seems that s 9 could extend to:
(a) torture involving the deliberate infliction of severe physical or mental suffering for a prescribed purpose, such as the obtaining of information;
(b)cruel treatment which inflicts suffering, or results in severe or substantial suffering or distress. 32 Views differed on whether or not
this needs to be deliberate;33
28 Ibid, at [297].
29 Ibid, at [339].
30 Ibid, at [383].
31 Ibid, at [295] per Tipping J, [383] per Henry J.
32 Ibid, at [171] per Blanchard J, [282]–[283] per Tipping J, [339]–[340] per McGrath J, [383] per
Henry J.
33 See ibid, [171] per Blanchard J and [283] per Tipping J; note Vaihu v Attorney-General, above n
25 at [35].
(c) degrading treatment which gravely humiliates and debases the person subjected to it;34
(d)disproportionately severe treatment which is so severe as to shock the national conscience, or so grossly disproportionate as to cause shock and revulsion, or well beyond even manifestly excessive treatment.35
It is clear that the test for establishing a breach of s 9 is a high one.36
[93] Section 23(5) by contrast, is breached by state conduct that is less reprehensible, but is still unacceptable in New Zealand society.37 It is conduct that does not rise to the level of outrageousness required to engage s 9.38 Section 23(5) captures conduct that lacks humanity, but falls short of cruelty, conduct that is demeaning but not degrading, and/or conduct that is clearly excessive in the
circumstances but not grossly so.39
[94] The Courts in Taunoa appear to have accepted that a breach of the minimum legislative requirements applicable to prisoners does not automatically lead to a breach of s 9 or s 23(5). A Judge considering s 23(5) must undertake an evaluative exercise, having regard to the conditions under which the inmate is held, the extent to which these diverge from the conditions which ought to have applied if there had been compliance with the legal requirements, and, in some circumstances, the extent
to which those legal requirements are insufficient to meet the s 23(5) standard.40
Nevertheless, the legislative standards are an appropriate measure, and perhaps the most valid measure available, against which compliance with the New Zealand Bill
of Rights Act provisions can be assessed.41 An example is the recent decision in
34 Taunoa v Attorney-General, above n 24 at [173] per Blanchard J, [284]–[285] per Tipping J, [339]–[340] per McGrath J.
35 Ibid, at [172], [176]–[177], [212] per Blanchard J, [289] per Tipping J, [339]–[340] per McGrath
J, [383] per Henry J.
36 Vaihu v Attorney-General, above n 25, at [36].
37 Taunoa v Attorney-General, above n 24 at [170] per Blanchard J, [285] per Tipping J, [339]–
[340] per McGrath J.
38 Ibid, at [11] per Elias CJ, [170] per Blanchard J, [341] per McGrath J.
39 Ibid, at [170] and [177] per Blanchard J, [339]–[340] per McGrath J.
40 Attorney-General v Taunoa [2006] 2 NZLR 457 (CA) at [45]; Taunoa, above n 24 at [31] per
Elias CJ, [211] per Blanchard J, [353] per McGrath J, [386] per Henry J.
41 Taunoa v Attorney-General, above n 24 at [31] per Elias CJ.
Vogel v Attorney-General.42 Lang J applied Taunoa, and held that a technical breach of the Correction’s Regulations 2004 is not automatically a breach of s 23(5). He considered that whether there is breach will depend upon the nature and effect of the breach, and its impact on the plaintiff.43
[95] Various combinations of factors, such as lack of hygiene, lack of natural light, deprivation of food, solitary confinement, lack of bedding, insufficient medical care and lack of exercise, can render an inmate’s conditions of detention inhumane.44
The legislative requirements in 2002/2003
[96] Prison conditions in 2002–2003 were prescribed under the Penal Institutions Act 1954 and the Penal Institutions Regulations 2000. Although the Act and its regulations have since been repealed,45 they were in force over the period referred to in the third amended statement of claim.
[97] Under the legislation, there was an overarching statutory obligation on prison authorities to look after inmates’ safety. This was reflected in s 7(1) of the Act. It charged every superintendent of a prison with the general administration of the institution, and gave him or her power to make rules for, inter alia, the conduct and
safe custody of the inmates.46 This requirement of safe custody was reflected in the
regulations, which required that prisons be operated in a manner that provided for the “fair, safe, secure, orderly and humane management of its inmates”,47 and for a prisoner’s accommodation to be “safe, secure and humane”.48
[98] The Penal Institution Regulations 2000 were made pursuant to s 45 of the Act. They were broad in their scope. Inmate treatment and welfare was specifically addressed in Part 5 of the Regulations. Minimum entitlements were recorded in
reg 42. It provided as follows:
42 Vogel v Attornel-General, above n 25.
43 Ibid, at [46]–[50].
44 Taunoa v Attorney-General, above n 24 at [157].
45 The Corrections Act 2004 and its regulations came to force as from 1 June 2005.
46 Penal Institutions Act 1954, s 7(1A)(a).
47 Penal Institution Regulations 2000, regs 5 and 12(1).
48 Ibid, at reg 50.
42 Minimum entitlements
(1) Every inmate has the following minimum entitlements:
(a) physical exercise as provided for in regulation 49:
(b) a bed, mattress, and bedding as provided for in regulation
53:
(c) food and drink as provided for in regulation 56:
(d) access to private visitors as provided for in regulation 82: (e) access to legal advisers as provided for in regulation 85:
(f) the right to receive medical treatment, if reasonably necessary:
(g) access to statutory visitors and specified visitors:
(h) the right to make outgoing telephone calls as provided for in regulation 107.
(2) An inmate may be denied, for a period of time that is reasonable in the circumstances, any of the minimum entitlements set out in subclause (1) if—
…
(c) the health or safety of any person is threatened. (3) An inmate—
(a) may be denied the minimum entitlements referred to in subclause (1)(b) if regulation 157(3) applies; and
…
I deal with reg 157(3) below.
[99] In broad terms, other relevant regulations provided as follows:
(a) Each inmate was required to have a management plan — reg 44;
(b)The prison environment was to be such that the health of inmates could be maintained to a satisfactory standard — reg 48;
(c) Inmates could, on a daily basis, take at least one hour of exercise, if practicable, outdoors — reg 49;
(d)Cells were to provide for the safe, secure and humane containment of inmates — regs 50 and 51;49
(e) Inmates were to be provided with a separate bed, mattress and sufficient bedding for warmth and reasonable comfort. Bedding was to be laundered as necessary to maintain cleanliness — reg 53;
(f) Clothing provided by the institution was to be adequate for safety, warmth, comfort and health — reg 54(4);
(g) Every inmate was required to keep his or her cell clean and tidy.
Inmates were to have the means to do so — reg 55;
(h)Inmates were to be provided with sufficient quantities of wholesome food and drink — reg 56;
(i)Inmates were to have access to a standard of health care reasonably equivalent to the standard of health care available to the public — regs 42(1)(f) and 58;
(j) Inmates were to have access to statutory visitors and specified visitors
— regs 42(i)(g) and 74, and prison inspectors — reg 78;
(k)Inmates were entitled to visits by their legal advisor, at a time agreed to by the superintendent — reg 85;
(l)Inmates were entitled to reasonable access to a telephone for the purpose of communicating with their legal advisors — reg 109;
(m)Inmates could have one outgoing telephone call of five minutes duration per week — reg 107;
49 There was no minimum requirement for cell size in the Act or Regulations. In Taunoa v Attorney General, above n 24, the Supreme Court referred to international commentary, that cells of 7 m2 were acceptable, and that 6 m2 was acceptable where the inmate spent a reasonable time out of the cell, at [190] per Blanchard J.
[100] There were regulations dealing with at risk prisoners — including prisoners at risk of self-harm. Medical officers and corrections officers were required to notify the superintendent of any prisoner considered to be at risk of self-harm — regs 20(4)(b) and 63(1)(a). Prisoners could be confined to an isolation cell, inter alia, if they were assessed as being at risk of self-harm — reg 147(d). This was referred to in the regulations as “the self-harm ground”. There were various procedures that prison staff were required to follow when a prisoner was confined in an isolation cell. The prisoner so confined retained his minimum entitlements detailed in reg 42 set out above — reg 155(1). However, for inmates isolated on the self-harm ground, bedding and other items (such as clothing) could be removed if this was considered necessary by the medical officer to reduce the risk of self-harm — regs 157(3)–(5).
[101] Pursuant to r 152, isolation cells used to prevent self-harm were required to have the features and items specified in Part A of sch 6, namely:
(a) A cut-down knife outside the cell, but in the vicinity;
(b)A window in the cell door allowing a complete view of the inside of the cell from a vantage point outside the cell door;
(c) Artificial lighting controlled only from outside the cell;
(d)Furniture and fittings free from features which could facilitate self-harm;
(e) Heating as appropriate;
(f) Intercom, alarm or call-button; (g) Natural lighting (window);
(h)No modesty screen or other barrier preventing a full view of the cell from the door window;
(i) Ventilation or air conditioning;
Insofar as was practicable, any isolation cell was required to be located close to the health centre.
[102] Inmates could be “mechanically restrained” in cases of “necessity”, initially for 24 hours, and longer if authorised by a Visiting Justice.50 The superintendent could approve the use of a tie-down bed in advance — cl 5 of sch 5 of the Regulations. Where the circumstances required an immediate reaction from staff, the superintendent was required to be informed of the restraint after the fact, as soon as possible after use — cl 6 of sch 5 of the Regulations. A medical officer had to be notified if a mechanical restraint was used — r 67(b). Tie-down beds could only be used on medical advice — cl 9(b) of sch 5 of the Regulations, and the prisoner had
to be examined within three hours by a health practitioner — cl 8 of sch 5 of the Regulations. Only authorised restraints could be used — cls 1 and 3 of sch 5 of the Regulations. Tie-down beds could only be used with wrist bed restraints and/or torso restraints — cl 9 of sch 5 of the Regulations. Wrist bed restraints were “soft cuffs” designed to secure the prisoner’s wrists to the tie-down bed — cl 16 of sch 5 of the Regulations. They could not be used around the ankles — s 19(4) of the Act and cl 10(c) of sch 5 of the Regulations. Torso restraints were soft belts designed to immobilise arms or legs or secure a person to a tie-down bed — cl 16 of sch 5 of the Regulations. They could only be used around the chest, thighs or lower legs (excluding ankles) — cl 11 of sch 5 of the Regulations.
[103] The use of force by officers was provided in s 17C of the Act and in regs 7 and 146 of the Regulations. Officers could use force only where there were reasonable grounds for believing the use of force was necessary, in self defence or in defence of another, to protect the inmate from injury, to prevent an inmate damaging any property, to prevent attempted escape or in case of active or passive resistance to a lawful order — s 17C(1) of the Act. Force could be used only to the extent “reasonably necessary” in the circumstances and it had to be reported to the
superintendent — s 17C(2) of the Act. A medical officer had to be notified, and the
50 Penal Institutions Act 1954, s 19.
prisoner examined within three hours of a physical hold being used on the prisoner
— regs 67(c) and 146(3) of the Regulations.
[104] Strip searches were provided for in ss 21E, 21G and 21K of the Act. A strip search could be conducted where necessary for the purpose of detecting any unauthorised item, before the inmate was locked in an observation cell — ss 21K(3) and (4)(b) of the Act. A strip search had to be observed by a second officer, and undertaken with the greatest degree of privacy and dignity consistent with the purpose of the search, and out of view of another inmate or any person of the opposite sex — s 21G.
[105] In Taunoa, the Supreme Court held that strip searches are necessary in a prison, but that they must be regulated. Unlawful routine strip searches that took place in a public area as part of a deliberate policy to reduce resistance of the prisoners subject to the behaviour management regime, were held to be in breach of
s 23(5) of the New Zealand Bill of Rights Act.51
[106] The issue of strip searches was also considered by the Court of Appeal in
Forrest v Attorney-General.52 The Court stated as follows:
[14] Whether “a strip search [was] necessary in the circumstances” will be a very fact-specific inquiry. For example, if a scanner search or a rub-down search was likely to detect the particular unauthorised item the prisoner was suspected of carrying, then a strip search would be less likely to be found to be “necessary in the circumstances”. Where the prisoner had recently been (for instance, a prison kitchen) might be relevant in an assessment of necessity. The history of the particular prisoner would generally be a very relevant circumstance: a strip search may well be considered “necessary” if the prisoner has a history of secreting unauthorised items in body orifices.
[15] We should not be prescriptive about when strip searches are or are not appropriate in subs (6) situations. What is undeniable, however, is that officers planning to search in subs (6) circumstances must turn their minds to the circumstances and the options available to them. They may strip search only if they reasonably conclude such a search “is necessary in the circumstances for the purpose of detecting an unauthorised item”. This must involve consideration of whether a scanner search or a rub-down search would suffice. And, of course, any decision must be made in light of two fundamental principles guiding the corrections system, namely the need for
51 Taunoa v Attorney-General, above n 24 at [54] and [100] per Elias CJ, and [349] per McGrath J.
52 Forrest v Attorney-General [2012] NZCA 125 at [14]–[15].
“the fair treatment of persons under control or supervision” and the need for
“decisions about those persons [to be] taken in a fair and reasonable way”.
Mr Reekie’s incarceration in the High Care Unit — Auckland Prison
[107] Against this general background, I turn to consider the particular complaints made by Mr Reekie and pleaded in his statement of claim in relation to the High Care Unit at Auckland Prison.
[108] Mr Reekie called a number of witnesses who either worked in, or were associated with, the High Care Unit. They were as follows:
(a) Ms Pamela Osment — in 2002, she was a Senior Corrections Officer working in the High Care Unit;
(b) Mr Carl Hansen — a Senior Corrections Officer of 27 years’
experience, who has worked in the High Care Unit;
(c) Ms Mary Robertson — a registered nurse based at Auckland Prison; (d) Mr Niuia Aumua — an Inspector of Corrections;
(e) Mr Murray Frew — in 2002, he was the Unit Manager of the
High Care Unit at Auckland Prison.
[109] Mr Reekie gave evidence himself. I did not however consider him to be either a particularly truthful or a reliable witness. I accept that he genuinely believes that he has been mistreated. That belief probably has its origin in some event that Mr Reekie believes occurred at the time. However, Mr Reekie has allowed this sore to fester and weep. It was my very clear impression that Mr Reekie has become obsessed about the way in which he considers that he has been dealt with by Corrections Department staff. He is now unable to see matters in any rational way. In my judgment, he very much exaggerated what occurred when he gave evidence before me. He tended to focus on minutiae contained in prison records; he then criticised witnesses for being unable to remember the detail behind those records,
notwithstanding that the events of which he complained happened ten or so years ago; he would try and build a conspiracy theory around trivia and witness’ inability to recall exactly what happened. It was abundantly clear that Mr Reekie does not accept any responsibility for his actions or accept in any way that Corrections Department staff were simply trying to prevent him from self-harming and degrading
himself.53 That is not to say that all aspects of Mr Reekie’s incarceration were
appropriate, but it needs to be emphasised that Mr Reekie was initially placed in the High Care Unit because of the risk that he might harm himself. At a later stage, he refused to leave, and threatened to self-harm or harm others if he did not get his own way. I was left with the overwhelming impression that Mr Reekie was, and still is, wallowing in a slough of self-pity.
[110] Mr Reekie also called evidence from a Mr George Baker. He is also a sentenced prisoner currently serving his sentence at Auckland Prison. For the reasons which I set out below, I did not consider him to be a reliable witness either.
[111] The Crown called evidence from:
(a) Mr Phelan — the principal Corrections Officer responsible for the
High Care Unit at the time;
(b) Ms Brown — the Team Leader of the prison health centre at the time; (c) Mr Tony Queree — the Unit Manager in East Wing at the prison in
2002.
Tie-down incident on 8 July 2002
[112] I start with Mr Reekie’s allegations made in relation to the events that
occurred on 8 July 2002. Mr Reekie asserted that on that day, he was subjected to an act of torture while partially strapped to the tie-down bed. This is the most egregious
53 Also in this regard, I note comments made by Harrison J in sentencing Mr Reekie — R v Reekie, above n 1, at [17], [21], [27], [32], [35], [44]– [46] — “…your reactions …are internalised
self-pity.”, and [49].
allegation made by Mr Reekie, and if it can be sustained, it could amount to a breach of s 9. The other allegations fall more naturally within the purview of s 23(5).
[113] Mr Reekie alleged that he was placed on the tie-down bed overnight on
8 July 2002, as punishment for kicking his cell door with his bare feet. He claimed that force was used against him, and that he was not given the opportunity to go of his own accord from his cell to the cell in which the tie-down bed was kept. He said that he was subjected to an act of torture while partially strapped to the bed, that his arm was put in a lock, and that it was twisted back and forward while he was being yelled at. He claimed he was then left in a cruel and degrading state overnight, and denied basic entitlements. He said that he was not checked by medical staff, that he was left with his modesty gown up around his waist, that he was not given blankets, food or drink, and that he was not give the opportunity to use the toilet. He said further, that there was no ventilation in the cell overnight.
[114] The Crown did not dispute that Mr Reekie was forcibly placed on the tie-down bed on 8 July 2002. It did, however, dispute the balance of the allegations. The Crown said that Mr Reekie was tied down to prevent him from self-harming. It said that some force was necessary, because Mr Reekie would not stop the kicking, or come to the tie-down cell voluntarily. It denied that his arm was deliberately twisted, although it acknowledged that his arm may have been hurt while he was struggling with officers. The Crown maintained that Mr Reekie was interviewed by a manager in accordance with prison practice, and that he was checked by a prison nurse. It said that there is no evidence that Mr Reekie was denied food and water, blankets or the opportunity to use the toilet.
[115] Mr Reekie gave evidence of the incident. He also called as a witness a fellow inmate, a Mr George Baker, who said that he saw the incident.
[116] Mr Reekie’s version of events was as follows. On the morning of 8 July
2002, he was interviewed by a prison officer, a Dominic Malcolm. Mr Malcolm asked him a series of questions about his hunger strike, his Court case and his time in prison. The interview ended about an hour later, around 11.00 am. At about
1.15 pm, he asked for his recreation time, but was told by another prison officer, a
Vanessa Sutton, that he had already had time out of his cell that day, and that he would not be allowed out again. He then decided that he had little option but to protest. He put his mattress on the floor up against the cell door, and he then proceeded to kick the door one foot at a time. He soon got tired, but he then began to kick the door with both feet. After about 10–15 minutes of kicking the door, he was worn out. His kicking on the door made a lot of noise, but it caused no damage to the door. At about 2.15 pm, a number of unit managers walked passed his cell, and looked in at him while he was still “dropping his feet” against the door. About ten minutes later, the unit managers arrived back at his cell. One of them made abusive remarks about the size of his penis, and that another made similar degrading comments. A short time later, at about 2.30 pm, the cell door was opened without warning, and he was grabbed by two unit managers while other managers and staff looked on. The unit managers did not say anything to him. He could only recall some of the staff who were involved. Mr Manning was one of the officers present, along with a Mr Queree and Mr Phelan. Mr Manning grabbed him by his left arm and Mr Queree grabbed him by his right arm, and they half dragged and half carried him down to the tie-down bed cell. Once he was in the tie-down bed cell, he was placed on the bed and Mr Queree cuffed his right arm to the bed, while Mr Phelan and possibly Ms Sutton, strapped his legs down to the bed. Mr Manning, who still had a hold on his left arm, locked his elbow into his stomach and bent his wrist back with his hands. Mr Manning started to wrench his arm backwards and forwards in a hard twisting motion, saying at the same time in an aggressive tone of voice, “Next time you’ll do what the staff tell you”. Mr Manning twisted his arm in a twisting motion, about six or eight times. It caused him a great deal of pain, and he could not do anything about it because he was tied down. Other staff were standing watching, and they said and did nothing. Mr Manning cuffed his left wrist to the bed, and left the cell. Mr Phelan then shut and locked the door. He yelled abuse at the officers as they departed. He then noticed that his modesty gown was up around his chest, fully exposing his genitals. After the prison staff left, the main light in the cell was turned off. The light was left off throughout the night, and that the cell door was not opened again until about 8.30 am the following morning. He was not given any blankets during the night. He was not offered any dinner or fluids throughout the night, although he would probably have refused them anyway. He was given no opportunity to use the toilet throughout the night, and he ended up urinating over
[223] I do not consider that the Department’s stance in not using the outside recreation area was particularly satisfactory. I accept that it was appropriate not to use that area, where there was a risk that inmates could use bits of mesh to self-harm. However, there is no evidence that the Department attempted to repair or replace the mesh. Mr Frew said he could not get approval to get the work done. The Department, it seems, simply closed the outside recreation yard to most inmates
indefinitely. In my view, that was inappropriate. It meant that many prisoners in the High Care Unit, including Mr Reekie, were denied natural light. They had to take their recreation generally in the recreation room, or the corridor outside that room. While the recreation room was relatively large, a prisoner could not really undertake any proper physical exercise in that room, or in the adjoining corridor.
[224] Further, the evidence established that sometimes, prisoners were expected to take their recreation time by sitting on or standing beside a red chair situated immediately outside the staff office. This was so staff could keep an eye on prisoners of particular concern. It was considered to be a way of preventing self-harm, while allowing prisoners to get out of their cell. I do not consider that this was appropriate either, or that it was recreation time in the sense envisaged in the regulations. It did not allow for physical exercise.
[225] Mr Reekie was cross-examined about the recreation time he received. He accepted that on most days, he was out of his cell for between one and three hours. He said that on rare occasions, he would get maybe three or four hours’ recreation time. Further, he accepted that there were occasions when he declined recreation time when it was offered to him.
[226] There are however, a number of instances where the records confirm that Mr Reekie received either no recreation time, or less than the one hour minimum specified in the regulations. I refer, for example, to the logbook entries which show that Mr Reekie did not receive one full hour’s recreation on 7, 9, 11, 12, 13, 14, 16 and 17 May 2002. There is evidence that on occasion, Mr Reekie was assigned to the “red chair” for his recreation time. The Crown suggested that Mr Reekie was in a poor state of mind, and on a hunger strike at these times, and that it is likely that in the circumstances, he received reduced recreation time either of his own volition, or because he was not well enough to take it, or because it was not considered safe enough for him to take the one hour minimum entitlement.
[227] I do not consider these to be particularly convincing explanations. Subject to reg 42(2)(c), Mr Reekie was entitled to receive recreation time. If a decision was
made to deny him recreation time, then the decision and the reasons for it should have been recorded. No such records have been produced.
[228] In my view, there has been a breach of the regulations. Mr Reekie did not always receive the recreation time he was entitled to. The use of the red chair, and the fact that the Department made no endeavour to repair the exterior recreation yard, or take prisoners to an alternative outside recreation area which was in a proper state of repair, is in my view unsatisfactory and in breach of s 23(5) of the New Zealand Bill of Rights Act. Keeping a prisoner in a cell for prolonged periods, without appropriate recreation time when the prisoner is given the opportunity to take physical exercise out of the cell, is not humane treatment consistent with human dignity. I come back to the appropriate remedy below.
Degrading conditions
[229] Mr Reekie alleged that the physical conditions in which he was held were such that he had to degrade himself in protest, for example, by kicking his cell door, by going on a hunger strike, by having to defecate on his cell floor, or by drawing pictures, or writing words on the glass cell wall with his own faeces, as a form of stimulus and protest. In addition to the physical conditions in which he was held, he said that it was degrading and dehumanising for him to be forced to listen to other prisoners being verbally abused, to see others being degraded, or to see or hear others being left or encouraged to self-harm or to watch or hear others being assaulted by police officers. He claimed that he was able to watch other prisoners shower and change. He said that he had to watch and smell prisoner officers have “fry ups” while he was kept hungry. He also claimed that he was verbally abused by staff, that he was told he was a “piece of shit”, that he had a small penis, and that he was called “knob rot” when he had an infection in his genital area.
[230] Mr Baker also stated that the conditions in the unit were depressing and that they made people self-harm.
[231] I have considered the evidence in relation to these various matters, and the evidence of all of the various prisoner officers who were called to give evidence.
[232] It was Mr Frew’s evidence, as the officer in overall charge of the unit, that officers in the unit were carefully selected by him for their empathy, compassion and understanding of difficult prisoners, many of whom appeared to be suffering from mental illness. He said that staff would occasionally vent their frustrations through black humour, but that the main method of dealing with stress was to walk out of the unit to cool down. It was his evidence, and the evidence of other officers, that staff did not cover for each other if an inmate complained, and that there was no “us and them” culture between staff and inmates.
[233] There is independent support in relation to these matters. The Prison Inspector, Mr Aumua, visited the unit in August 2002. In his report to the prison manager, he expressed amazement at the composure and patience of staff, who he considered had “complex roles” in dealing with inmates, and in acting both as disciplinarians and counsellors. He was particularly impressed by the patient handling of an inmate who self-harmed during his visit to the High Care Unit.
[234] Mr Reekie accepted that the staff were at times compassionate. For example, he accepted that the staff found him some earplugs when he complained of noise in the unit, that they organised for him to exercise a vote, and that they arranged for him to make a telephone call to his sister. He also accepted that staff, from time to time, gave inmates their own newspapers to read.
[235] I observed a number of officers, past and present, give evidence. I was generally impressed by them and by the evidence they gave. I prefer their evidence to that of Mr Reekie and Mr Baker. They were working with extremely difficult and demanding prisoners and in a difficult environment. While they had no specialist training in dealing with disturbed inmates, there was nothing to suggest to me that staff were other than professional in their duties. I have no doubt that, on occasion, individual staff became frustrated. This is reflected in the occasional entry in the logbook. Those entries are, however, remarkably rare. I do not however consider that there was any reliable evidence to show that staff in the unit were not compassionate and understanding, or that staff abused inmates. The position is well summarised in an answer Mr Hansen gave to Mr Reekie. He was asked whether he enjoyed working in the High Care Unit. He replied as follows:
Um, I've found it to be stressful at times but once you understand that the guys that are in there are not mentally well it takes on a whole different, it’s a different outlook you know. You tend to be a lot more, you're concerned for them, you know, so you watch, you gotta watch all the time, you know, try and prevent self-harms or injuries and for their sake too more than anything else.
These comments were echoed by Mr Frew.
[236] Mr Reekie complained that he was encouraged by staff to bang his head against the wall in the round room. There is no corroborating evidence of this incident. Mr Phelan said that it would have been totally unacceptable for staff to encourage or stand by. There is a prison record from 16 May 2002, noting that Mr Reekie was banging his head in the round room, and that he was tied down after approximately 30 minutes to prevent this happening. Although that is a relatively long time, the delay was not necessarily inappropriate. The logbook records that although Mr Reekie was banging his head on the wall, he was not causing himself any injury. He was apparently upset because he did not get to pick which cell he was to move to. Mr Reekie was given the opportunity to stop self-harming. That is preferable to immediately tying him down. There is no evidence to suggest that Mr Reekie required medical treatment following the incident. The medical notes for the day record “small lacerations top of the skull. No treatment required”. There is nothing suggesting encouragement to self-harm.
[237] Mr Reekie stated in evidence that in June 2002, he obtained a piece of window frame, that staff knew that he intended to self-harm, and that they did nothing. Again, there was no corroborating evidence for Mr Reekie’s version of events. The incident is also documented. The records show that staff were told by another inmate that Mr Reekie had obtained a piece of window frame. They were unable to find the window frame on an initial search. They found it in Mr Reekie’s shoe two days later. Mr Reekie was charged with possession of an unauthorised object. He complained to the inspector, who refused to intervene. I do not accept Mr Reekie’s evidence in regard to this matter.
[238] Mr Reekie states in evidence that staff watched him self-harm for about five minutes on 1 August 2002 before intervening. The record shows that Mr Reekie had
been told the previous day that he was to move out of the High Care Unit into the Special Needs block. The logbook records that Mr Reekie was moved to the Special Needs Block at 9.50 am, that he threatened to hang himself, and that he started bashing the perspex in the cell in the Special Needs Block. Staff observed Mr Reekie for a short period to see whether it was a brief moment of pique. When it became apparent that was not the case, Mr Reekie was returned to the High Care Unit at 10.15 am. Once again, I do not accept Mr Reekie’s evidence in regard to this issue.
[239] Mr Reekie stated in his evidence that another prisoner was taken into the yard and beaten by staff with batons, and that he observed this on a television screen in the unit office through a gap in the curtain. Again, there is no corroborating evidence to support this allegation. Mr Phelan denied that it happened. I do not accept Mr Reekie’s evidence in relation to this issue.
[240] Mr Reekie stated in his evidence that staff practised “c and r” techniques on Mr Baker. Again, there is no corroborating evidence. Mr Baker was not asked any questions in relation to this allegation. Mr Phelan said that experimentation with “c and r” techniques on inmates would have been inappropriate. Again, I do not accept Mr Reekie’s evidence in regard to these issues.
[241] Mr Reekie complained that staff had “fry ups”, and ate in front of prisoners. The evidence suggested that staff took their meals on the job, rather than taking a meal break, and that they stored and prepared meals in the unit kitchen. While it is possible, or even probable, that inmates may have smelled the staff heating or cooking their meals on occasion, that does not compel the conclusion that there has been any breach of the New Zealand Bill of Rights Act. Rather, to my mind, it suggests that Mr Reekie is simply seizing at every possible matter he can think to criticise the Department of Corrections.
[242] I do not accept that there has been any breach of the New Zealand Bill of Rights Act in regard to any of the “degrading conditions” allegations made by Mr Reekie. The fact that Mr Reekie frequently degraded and humiliated himself is a matter for which he must take responsibility. I have no doubt that he was highly
stressed at the time. However, the medical evidence which I referred to above, was clear. He was not suffering from any mental or depressive illness at the time. Rather, he was seeking to attract attention, and vent his frustration at the dilemma in which he found himself.
Hygiene Practices
[243] Mr Reekie claimed that there were poor hygiene practices in the unit and that inmates were given only a bucket of cleaning water with little or no detergent in it for cleaning their cell. He stated that walls, floors and toilets were covered in bodily fluids, that the toilets were often caked in faeces, that the broom given to inmates to clean their cells was full of dirt and fluff, that the mop head was old, dirty and smelly, that the same bucket of water was used for every cell, and that toilet brushes were never offered.
[244] Regulation 55 provides that inmates must keep their cell clean and tidy, and that the Superintendant must ensure that they have the means to do so. Further, the superintendant must take all reasonable steps to provide a healthy environment for inmates — reg 48.
[245] Mr Reekie’s evidence is not corroborated. Indeed, most of the witnesses called by Mr Reekie did not support his claim. Mr Frew was emphatic that the unit was kept clean, and that it was regularly inspected by him. The evidence was that inmates were required to clean their cells every day, generally before they took a shower or recreation time. This was done with a broom, a mop, and hot soapy water that was changed by staff between cells. If an inmate had diminished capacity to clean, an inmate from the Special Needs Block would be employed as a cleaner, or staff would do it themselves. The evidence further suggested that if an inmate soiled his cell with faeces, this would generally be cleaned by staff.
[246] Ms Osment said that the unit was generally cleaned on a daily basis.
[247] Mr Reekie produced a series of photos of the unit, which do show some wear and tear and apparent soiling. However, the photographs were taken in 2011, long
after the unit was decommissioned in 2006. They do not show its condition in 2002 and 2003.
[248] It is noteworthy that Mr Aumua expressed no concerns about the cleanliness of the unit when he conducted his surprise visit in August 2002. Rather, he recorded that he was surprised at how acceptable the conditions were. He said in evidence that if he had found the unit to be dirty, he would have required staff to clean it.
[249] It is also noteworthy that Mr Reekie did not complain to Mr Aumua, or to anybody else, about the cleanliness of the unit in 2002/2003.
[250] I do not consider that Mr Reekie has made out this allegation on the balance of probabilities.
Showers
[251] Mr Reekie claimed that he was forced to shower in front of other prisoners, female officers and visitors, with no shower curtain or door, and that he was able to watch other prisoners shower.
[252] Regulation 55 provided that every inmate had to keep his person clean and tidy, and that the superintendent had to ensure that the inmate had the means to do so.
[253] The High Care Unit had a shower room. There was a toilet in the shower room, two showers and hand basins. It was opposite the office.
[254] The evidence from a number of witnesses, for example, Ms Brown, was that inmates were offered a shower every day, but that they occasionally declined to take a shower. Inmates were very rarely forcibly showered, but they might be showered if necessary for hygiene reasons. The scroll book records that Mr Reekie was forcibly taken to the shower on one occasion on 13 June 2002, after he covered himself in his own faeces.
[255] The evidence in relation to the facilities in the shower room was not particularly clear. Witnesses for both parties said that there was a door to the shower area, but that the door was not closed when an inmate was showering. Some witnesses, for example, Ms Osment, Mr Hansen and Mr Phelan, said that there was a shower curtain. The evidence was that inmates were showered one at a time while a male officer observed. The officer would stand in the doorway and talk to the inmates. The officer was there to keep an eye on inmates, and to ensure that they did not self-harm while they were in the shower.
[256] Ms Osment and Mr Phelan said that female officers did not observe inmates in the shower, and that the number of female officers per shift was limited because of this. Mr Phelan said that visitors were asked to wait in the entranceway if an inmate was showering.
[257] I have visited the shower room. There was a door when I visited. There is some evidence suggesting that there was no door in 2002. I do not think that much turns on this. As I have indicated, the evidence was that the door was kept open. There was no shower curtain in the shower when I visited it, but that does not compel the conclusion that there was no shower curtain in the shower room in 2002. It was impossible to tell whether or not a shower curtain had ever been affixed to the shower units. Most of the evidence I heard was to the effect that there was a shower curtain in place in 2002/2003.
[258] I accept that for operational reasons, it was necessary to have a male officer in the shower room while inmates were showering. I also accept that on occasion, inmates moving within the unit may have seen other inmates showering. However, Mr Reekie has failed to establish on the balance of probabilities that there was no shower curtain, or that he was forced to shower in front of other prisoners, female officers and visitors. His allegations in this regard fail.
Strip searching
[259] Mr Reekie claimed that while he was in the High Care Unit at Auckland
Prison, and again while he was in the Special Needs Unit at Auckland Central
Remand Prison, he was routinely strip searched, between two and six times per day, even when he was constantly with staff, or in a pre-searched area. He claimed that he was made to strip naked, stand spread eagled, open his mouth and lift both legs, and that he was scanned with a wand.
[260] The Crown does not dispute that Mr Reekie was strip searched on most occasions when he was returned to his cell at both Auckland Prison and at Auckland Central Remand Prison. It says that this was authorised by law, and that it was necessary to protect Mr Reekie from the risk of self-harm. It notes that on one occasion, Mr Reekie attempted to hide pieces of aluminium window frame on his person. It also points to other evidence, from Mr Reekie and from Mr Baker, that even the most inane objects could be used to self-harm.
[261] As I have noted, strip searches were provided for in ss 21E, 21G and 21A of the Penal Institutions Act. Section 21K provided authority for the search of prisoners and cells. Section 21K(4)(b) provided authority to strip search inmates when they were locked in an observation cell, where it was necessary in the circumstances for the purpose of detecting any unauthorised item. An unauthorised item was broadly defined in s 2 as including any article that could, while in the possession of any inmate or prisoner, be harmful to any inmate or prisoner or to any other person. As I have already noted, the evidence suggested that even the most innocuous item could be used to self-harm.
[262] There is, however, nothing to suggest that officers turned their minds to the circumstances of each search and the options open to them. There is no evidence that they considered whether a scanner search or a rub down search would suffice. Rather, it seems that strip searches were the norm and that no individual consideration was given to each particular search. It may be that Mr Reekie’s history was such that a strip search was necessary, but there is no evidence that this was considered. I note that the piece of aluminium window frame was only found on Mr Reekie’s person on 12 June 2002. There is nothing to suggest any prior history of concealing dangerous objects prior to that date.
[263] Section 21G set out certain restrictions on strip searches. They had to be observed by a second officer — s 21G(3)(a), and undertaken with the greatest degree of privacy and dignity consistent with the purpose of the search, and out of view of another inmate or any person of the opposite sex — s 21G(1), (2) and (4). Scanner searches were authorised for the purpose of detecting any unauthorised item by s 21K(1)(a) of the Act. A scanner search had to be conducted with decency and sensitivity, and in a manner that afforded the greatest degree of privacy and dignity consistent with the purpose of the search — s 21G(2).
[264] The evidence of Ms Osment, Mr Hansen, Mr Phelan and Ms Kesha was that strip searches were conducted inside the cells by one male officer and that they were observed by a second male officer. There is no evidence suggesting that they were ever observed by female officers. Inmates were permitted to cover their genital area with one hand during the strip search.
[265] Having considered all of the evidence which was presented to me, I accept the evidence that Mr Reekie was routinely strip searched. I do not, however, consider that this was part of a deliberate policy to reduce his resistance, or to dehumanise him. Inmates, including Mr Reekie, were strip searched to ensure that they had not obtained and hidden on their person any item that they could use to self-harm when they were placed in their cell. Strip searches may well have been necessary when inmates returned to their cells from, for example, any Court appearance, any medical check up, or after recreation or a shower or an interview. In the circumstances that applied to the operation of the unit, it may well have been necessary for the inmates to be strip searched on many occasions when they returned to their cell, given their propensity to self-harm, and their ability to harm with the most seemingly innocuous object. However, the necessity for a strip search should have been considered on an inmate by inmate basis and on each occasion. There is no evidence that staff considered the necessity of the searches or what alternatives might have been available.
[266] On the balance of probabilities, I accept that the routine strip searching which occurred was unlawful, and in breach of Mr Reekie’s rights under s 23(5) of the New Zealand Bill of Rights Act. I deal with the appropriate remedy below.
Lawyers’ visits
[267] Mr Reekie claimed that he was refused a legal visit while he was in the round room in June 2002, as officers did not want his lawyer to see the conditions in which he was kept.
[268] Mr Reekie failed to provide any evidence of this alleged legal visit. In part of his evidence, he did refer to being refused two visits from his lawyer during his stay, but did not provide any detail as to the dates. Nor did he specify the circumstances.
[269] In contrast, there was evidence from the Crown that Mr Roberts was due to visit Mr Reekie on 13 June 2002. There was, however, no record of that visit occurring, because Mr Reekie was unwell on that day. He had covered himself in faeces, and he had been compulsorily taken to the shower room to be cleaned up. He was then put in the round room. It may be that Mr Roberts’ visit was cancelled for safety reasons. However, the scroll book confirms that Mr Reekie was able to telephone his lawyer later that afternoon, and he attended at Court the following day. I cannot see that there has been any breach of the regulations. The regulations provide for reasonable access to legal advisors — reg 85.
[270] I now turn to Mr Reekie’s complaints in relation to the time he spent at
Auckland Central Remand Prison.
Mr Reekie’s incarceration in the Special Needs Unit at Auckland Central Remand
Prison
[271] Mr Reekie claimed that he was degraded into accepting unlawful treatment throughout his period of remand at Auckland Central Remand Prison, that he was regularly threatened and assaulted by a group of prisoners, that he was subjected to intimidation, and that officers knew about this and did nothing to stop it.
[272] There is no evidence to support these allegations. Indeed, Mr Reekie confirmed in cross-examination that he had no complaint about how staff at Auckland Central Remand Prison treated him.
[273] The evidence did not support Mr Reekie’s contention that he was assaulted by other inmates and that officers stood by and did nothing. The evidence showed that Mr Reekie was involved in a number of fights with other inmates, on 17 October
2002, 20 October 2002, 24 November 2002 and 19 December 2002. When the incident reports were put to him in cross-examination, he accepted that he was involved in these altercations, (he said he simply retaliated), that officers did intervene and that all parties involved were charged with misconduct offences. The corrections officers’ records noted that Mr Reekie had fights with other prisoners, that he was abusive or aggressive towards other inmates, and that he tried to show his supremacy over other inmates by being bossy or intimidating. The misconduct reports suggest that Mr Reekie was far from the innocent party in these various scraps.
[274] The Crown called evidence from a Ms Kesha. She was a Corrections Supervisor in 2001, and acting Unit Manager responsible for managing the Special Needs Unit at Auckland Central Remand Prison in 2002. I accept her evidence. It was balanced and reliable. It is clear that Mr Reekie was well treated in the Special Needs Unit.
Conditions and treatment claims — summary
[275] The majority of Mr Reekie’s claims about the conditions and treatment he received in the High Care Unit at Auckland Prison or in the Special Needs Unit at Auckland Central Remand Prison, have not been made out.
[276] However, some breaches of the Penal Institutions Act and of its accompanying regulations have been established:
(a) Mr Reekie was restrained on the tie-down bed by his ankles; (b) Mr Reekie was, at times, held in cells without a window;
(c) Mr Reekie was not always given the opportunity to take recreation time, and the recreation opportunities which were offered to him did
not always comply with the regulations. He was often denied the right to physical exercise;
(d)Mr Reekie was routinely strip searched and no consideration was given to the necessity for each individual strip search or to the other options available.
I am satisfied that these breaches also breached Mr Reekie’s rights under s 23(5) of
the New Zealand Bill of Rights Act.
Remedy
[277] There is no evidence that Mr Reekie suffered any detrimental effects from these breaches. He made no complaint about them to prison management, health staff, the prison inspector or the ombudsman at the time. He admitted in cross-examination that the conditions in the unit were not important to him at the time, and that they seemed insignificant in comparison to other issues then facing him.
[278] The Crown argued that it is also relevant that Mr Reekie was cleared to move out of the High Care Unit at a relatively early stage as from 12 June 2002, but that he preferred to stay in the unit. As noted, he strenuously resisted transfer elsewhere, to the point where he attempted to self-harm when he was transferred.
[279] Authorities in the United Kingdom and Europe suggest that an inmate’s deliberate decision to subject himself to deprivations is a significant, if not a determinative factor, when assessing human rights breaches. For example, in Malcolm v Secretary of State for Justice,59 the Court of Appeal in the United Kingdom held that by refusing to transfer out of a segregation unit, Mr Malcolm had deliberately subjected himself to the conditions that were necessary for the operation of that unit, and that he was “the author of his own misfortune”. The Court stated as
follows:
59 Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538 at [29].
The fact that the appellant chose without good reason to remain in the segregation unit, so that the loss of the full hour in the open air was the result of his own deliberate decision, might well be enough in itself to justify the conclusion that there was no interference within article 8(1).
[280] Similar reasoning was applied in Vogel v Attorney-General.60 In that case, a disciplinary penalty of 21 days’ confinement to cells had been imposed, six days in excess of the statutory maximum. There were additional breaches of regulations in failing to notify the medical officer of the confinement, and a possible failure by the superintendent to undertake the daily statutory visit. Lang J held that the penalty was unlawful, but that it was imposed at Mr Vogel’s express request to help him quit his drug habit. He held:
Once again I find the circumstances in which Mr Vogel received the sentence of cell confinement to be determinative. Had the Visiting Justice imposed the sentence arbitrarily, or had he done so out of spite and/or with the intention of causing Mr Vogel unnecessary suffering, this claim may have stood a chance of success. The evidence suggests, however, that he imposed the sentence in the genuine belief that it might assist Mr Vogel in his forthcoming bid to be released upon parole. To me, that does not suggest that the Visiting Justice was motivated by a lack of humanity. Although the sentence exceeded his statutory authority, he imposed it in accordance with Mr Vogel's express request.
[281] This reasoning is consistent with the majority of the Supreme Court’s decision in Taunoa, regarding Mr Taunoa’s contribution to the duration of the breaches he suffered. I note Tipping J’s observations:61
Put bluntly, Mr Taunoa was a very difficult prisoner. The Department was in general terms entitled to respond accordingly, but not, of course, by unlawful means. The length of time Mr Taunoa spent on the BMR was influenced by his own response to the regime. That response was only in part a justified reaction to its illegal aspects…
McGrath J noted as follows:62
In Mr Taunoa’s case the reason he spent such a long time under the regime was in part because of his own conduct. This was not merely, as was argued, by way of protest against the conditions and treatment he received. The conduct that caused the prison authorities to place him on the regime for a second time included standover tactics in relation to other inmates. This is
60 Vogel v Attorney-General, above n 25, at [103].
61 Taunoa v Attorney-General, above n 24, at [287] per Tipping J.
62 Ibid, at [357]–[358] per McGrath J. Blanchard J disagreed, and held at [216] that Mr Taunoa’s
behaviour was irrelevant, given that the whole of the segregation regime was unlawful.
indicative of Mr Taunoa’s generally disruptive behaviour as an inmate. He was also convicted of assaulting another prisoner.
There are, of course, good policy reasons why his misbehaviour while being subjected to an illegal regime of confinement should not be seen to condone the underlying illegality of his treatment. The lengthy duration of Mr Taunoa’s periods under the BMR regime is, clearly, an aggravating factor in the assessment. Mr Taunoa’s conduct does, however, have some relevance to the overall assessment in that it indicates that his failure to progress through the regime in a timely way was not due to any deliberate intention by prison administrators to deny Mr Taunoa his rights.
[282] In the present case, Mr Reekie consented to staying in the High Care Unit from 12 June 2002 onwards. However, he was or should have been entitled to the minimum requirements detailed in the regulations. That entitlement is not affected by the fact that he wanted to remain in the unit. The fact that Mr Reekie consented to remain in the unit suggests that he consented to being treated like a High Care Unit prisoner, being accorded his normal entitlements and according to law. It does not suggest that he consented to treatment falling below that standard. Therefore, I do not accept the Crown’s argument in this regard. However, the absence of any harm, and the lack of any complaint at the time, are relevant in assessing the remedy appropriate for the breaches that have occurred.
Declaration/Compensation
[283] In some respects, Mr Reekie’s rights under s 23(5) of the New Zealand Bill of Rights Act have been breached. Remedies for breaching the New Zealand Bill of Rights Act are discretionary.63 The Court’s core task in the exercise of its remedial discretion is to provide a remedy which is effective to vindicate the right in issue.64
It is important to defend and uphold the importance and value of the right.65
[284] The legitimate goal of an effective New Zealand Bill of Rights Act remedy is as follows:
63 Ibid, at [225] per Blanchard J, [303] and [318] per Tipping J, [366] per McGrath J and [385] per
Henry J.
64 Ibid, at [353] per Blanchard J, [300] per Tipping J, [366] per McGrath J and [385] per Henry J.
65 Ibid, at [253] per Blanchard J, [300] per Tipping J and [366] per McGrath J.
(a) to vindicate the right breached;66
(b) to deter authorities from future breaches;67
(c) to denounce the breach — that is to mark society’s disapproval of the
breach of rights in issue.68
It is not to punish the State for its wrongdoing.69
[285] A declaration of breach is a remedy of considerable potency. It is not toothless. In my view, in the present case, a declaration of breach is sufficient remedy in itself.
[286] Compensation is not available to Mr Reekie. Mr Reekie’s proceeding is a “specified claim” under s 6 of the Prisoners’ and Victims’ Claims Act 2005. It has been brought by Mr Reekie as a prisoner; it is based on acts and omissions by or on behalf of the Crown. It alleges breach of the New Zealand Bill of Rights Act. The Act applies to such claims whether the acts or omissions complained occurred before
or after the Act commenced.70 Section 13 provides that the Court may not award any
compensation unless it is satisfied that the prisoner has made reasonable use of “all of the specified internal and external complaint mechanisms reasonably available to him” to complain about the act or omission on which the claim is based, but has not obtained redress that the Court considers effective.71 The relevant complaint mechanisms in this case are the prison’s internal complaints system, the prison inspectorate, the Ombudsman and the visiting justice.72
[287] Here, Mr Reekie did complain to the inspector about his restraint on the tie-down bed on 8 July 2002. He did not specifically complain about the fact that he
66 Ibid, at [106] per Elias CJ, [253] per Blanchard J, [300] per Tipping J, [366] per McGrath J and
[385] per Henry J.
67 Ibid, at [253] and [258] per Blanchard J, [109] per Elias CJ, [366], [368], [369] and [373] per
McGrath J, cf Tipping J at [318]–[320].
68 Ibid, at [253], [255], [259] and [261] per Blanchard J, [300] and [318] per Tipping J.
69 Ibid, at [255] per Blanchard J, [300] and [321] per Tipping J, [385] per Henry J, [372] per
McGrath J; Attorney-General v Udompun [2005] 3 NZLR 204 at [177].
70 Prisoners’ and Victims’ Claims Act 2005, s 6(1)(a)(ii).
71 Section 13.
72 Sections 7(1)(c) and 7(2).
was restrained by his ankles. Nor did he complain about being restrained by his ankles on any other occasion. He did not make any complaints about being held in isolation cells without windows, about being denied appropriate recreation time, or about being strip searched.
[288] It was clear from the evidence that Mr Reekie was very familiar with the prison’s internal complaints system, the inspectorate and the Ombudsman. Indeed, it was clear he was a frequent complainant. Further, he had the opportunity to complain to the inspector in person when the inspector visited the High Care Unit in August 2002, and to the Ombudsman in person, when he saw the Ombudsman in the unit on 5 June 2002.
[289] I am satisfied that Mr Reekie’s claim for compensation is precluded by
s 13(1)(a) of the Prisoners’ and Victims’ Claims Act 2005.
[290] Accordingly, I declare the Department of Corrections’ actions in:
(a) restraining Mr Reekie’s ankles on the tie-down bed in the High Care
Unit at Auckland Prison between 3 May 2002 and 11 September
2002;
(b) holding Mr Reekie in isolation cells without windows in the
High Care Unit at Auckland Prison between 3 May 2002 and
11 September 2002;
(c) denying Mr Reekie recreation time which enabled him to undertake physical exercise while he was being held in the High Care Unit at Auckland Prison between 3 May 2002 and 11 September 2002; and
(d)strip searching Mr Reekie on a routine basis when he was taken in or out of his cell, in either Auckland Prison or Auckland Central Remand Prison, between 3 May 2002 and 20 August 2003, without considering the necessity for each search, or available alternatives other than a strip search,
were in breach of s 23(5) of the New Zealand Bill of Rights Act 1990.
[291] I do not extend the declarations in (a), (b) and (c) above to the time that Mr Reekie spent in the High Care Unit in 2003, because there was little or no evidence given in relation to that period.
[292] Mr Reekie’s claim to compensation is denied.
Costs
[293] It is my preliminary view that costs should lie where they fall. If either Mr Reekie or the Crown nevertheless wishes to seek costs, then I direct that any application is to be made by way of written memorandum within ten working days of the date of this judgment. Any reply is to be filed within a further five working days. I will then deal with the question of costs on the papers, unless I require
assistance from Mr Reekie and counsel.
Wylie J
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