Reekie v Attorney-General

[2024] NZHC 2566

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-351

[2024] NZHC 2566

BETWEEN

NICHOLAS REEKIE

Plaintiff

AND

ATTORNEY-GENERAL (ON BEHALF OF THE DEPARTMENT OF CORRECTIONS

Defendant

CIV-2019-404-2703

UNDER

New Zealand Bill of Rights Act 1990, Corrections Act 2004, Corrections Regulations 2005 and Common Law

IN THE MATTER OF

A claim for compensation and damages

BETWEEN

NICHOLAS PAUL ALFRED REEKIE

Plaintiff

AND

ATTORNEY-GENERAL (FOR THE DEPARTMENT OF CORRECTIONS)

Defendant

Hearing:	4 July 2024, further submissions 29 August 2024
Counsel:	D Manning for the Plaintiff K Hogan for the Defendant
Judgment:	6 September 2024

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 6 September 2024 at 3 pm.

Pursuant to r 11.5 of the High Court Rules.

Solicitors/Counsel:

D Manning, Auckland

K Hogan, City Chambers, Auckland

…………………..

Registrar/Deputy Registrar

REEKIE v ATTORNEY-GENERAL (ON BEHALF OF THE DEPARTMENT OF CORRECTIONS [2024]

NZHC 2566 [6 September 2024]

Introduction

[1]    The plaintiff, Nicholas Reekie (Mr Reekie), is a sentenced prisoner currently incarcerated in Auckland Prison, serving a sentence of preventive detention which commenced on 15 July 2003. Since 2003, Mr Reekie has been incarcerated in various facilities.

[2]    In these proceedings, Mr Reekie sues the Attorney-General on behalf of the Department of Corrections (Corrections), alleging breaches of statutory and tortious duties owed to him while he is incarcerated.

[3]There are two proceedings that have been consolidated:

(a)CIV-2018-404-351 (351), which relates to the standard of health care that Mr Reekie has received; and

(b)CIV-2019-404-2703 (2703), which is a claim regarding Mr Reekie’s transfer from a low security rating unit to an “At Risk Unit” during a period in 2013.

[4]    Progress of the proceedings has been slow. The parties are presently completing discovery. The next step for Mr Reekie will be preparation of his witness statement.

[5]    Mr Reekie has applied for communication assistance under s 80 of the Evidence Act 2006 (the Act) to enable him to give evidence. The application is made on the grounds that Mr Reekie has complex and overlapping cognitive, behavioural and psychological issues. Corrections does not oppose the application.

[6]The application raises two primary issues:

(a)Does Mr Reekie require communication assistance to enable him to give evidence?

(b)If the answer is yes, who should pay for the communication assistance?

Does Mr Reekie require communication assistance to enable him to give evidence?

The statutory framework

[7]    Under the Act, the default position is that all persons are eligible witnesses, including children and intellectually impaired persons.1

[8]    The purpose of the Act includes helping secure the just determination of proceedings by promoting fairness to parties and witnesses.2 This purpose is reflected in ss 80 and 85 of the Act. Section 85 deals with unacceptable questions:

85 Unacceptable questions

(1)In any proceeding, if the Judge considers a question, or the way in which it is asked, is improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand, the Judge must disallow the question or direct that the witness is not obliged to answer it.

(2)Without limiting the matters that the Judge may take into account for the purposes of subsection (1), the Judge may have regard to—

(a)the age, maturity, or vulnerability of the witness; and

(b)any physical, intellectual, psychological, or psychiatric impairment of the witness; and

(c)the linguistic or cultural background or religious beliefs of the witness; and

(d)the nature of the proceeding; and

(e)in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding; and

(f)the nature of previous questions and any cumulative impact the questioning may have on the witness.

[9]Section 80 of the Act provides:

80Communication assistance

(1)A defendant in a criminal proceeding is entitled to communication assistance, in accordance with this section and any regulations made under this Act, to—

(a)enable the defendant to understand the proceeding; and

(b)give evidence if the defendant elects to do so.

1      Evidence Act 2006, s 71.

2      Section 6(c).

(2)Communication assistance may be provided to a defendant in a criminal proceeding on the application of the defendant in the proceeding or on the initiative of the Judge.

(3)A witness in a civil or criminal proceeding is entitled to communication assistance in accordance with this section and any regulations made under this Act to enable that witness to give evidence.

(4)Communication assistance may be provided to a witness on the application of the witness or any party to the proceeding or on the initiative of the Judge.

(5)Any statement made in court to a Judge or a witness by a person providing communication assistance must, if known by the person making that statement to be false and intended by that person to be misleading, be treated as perjury for the purposes of sections 108 and 109 of the Crimes Act 1961.

[10]No regulations have yet been made under s 80(3).

[11]Section 4 of the Act defines communication assistance:

communication assistance means any assistance (for example, oral or written interpretation of a language, written assistance, or technological assistance) that enables or facilitates communication with a person who for any reason (for example, insufficient proficiency in the English language, age, or a disability) requires assistance to—

(a)understand court proceedings; or

(b)give evidence

[12]   “Disability” is not defined in the Act. In T v R,3 a criminal proceeding, the Court of Appeal defined a communication disability as:4

a condition impinging on a person’s ability to speak, hear, listen, understand, read or write in a way that materially affects their ability to participate meaningfully in court proceedings.

[13]Section 81 of the Act provides:

81Communication assistance need not be provided in certain circumstances

(1)Communication assistance need not be provided to a defendant in a criminal proceeding if the Judge considers that the defendant—

(a)can sufficiently understand the proceeding; and

(b)if the defendant elects to give evidence, can sufficiently understand questions put orally and can adequately respond to them.

3      T v R [2020] NZCA 626.

4 At [84].

(2)Communication assistance need not be provided to a witness in a civil or a criminal proceeding if the Judge considers that the witness can sufficiently understand questions put orally and can adequately respond to them.

(3)The Judge may direct what kind of communication assistance is to be provided to a defendant or a witness.

[14]   There is an important difference between the communication assistance that may be provided in a criminal proceeding in contrast to a civil proceeding. In a criminal proceeding, a defendant is entitled to communication assistance to enable the defendant to understand the proceeding and to give evidence if the defendant elects to do so. In a civil proceeding, the entitlement to communication assistance is limited to witnesses, to enable a witness to give evidence. A party to a civil proceeding has no entitlement to communication assistance to enable the party to understand the proceeding.

[15]   The different treatment of criminal and civil proceedings is consistent with the different legislative frameworks and policy considerations that apply to each type of proceeding. For example, a person charged with an offence is entitled to the fair trial rights afforded by s 24 of the New Zealand Bill of Rights Act 1990, including s 24(g) which confirms that a person charged with an offence has the right to the free assistance of an interpreter if the person cannot understand or speak the language used in court.

[16]   If a party to a civil proceeding is unable to understand the proceeding, then the appropriate course is for a litigation guardian to be appointed, rather than a communication assistant.

[17]   Under r 4.35(2) of the High Court Rules 2016 (HCR), the court may appoint a litigation guardian if it is satisfied that a person for whom the litigation guardian is to be appointed is an incapacitated person. Rule 4.29 relevantly provides:

incapacitated person means a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—

(a)not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or

(b)unable to give sufficient instructions to issue, defend, or compromise proceedings

[18]Mr Reekie has not applied for the appointment of a litigation guardian.

[19]   In a civil proceeding, the issue for the provision of communication assistance is whether a witness requires assistance to sufficiently understand questions put orally and to adequately respond to them.

[20]   There is little case law concerning communication assistance in civil proceedings. In MacKay v Blair,5 evidence in chief in a civil proceeding was by affidavit. The Court held that the subject witness would be able to sufficiently understand appropriately put questions and be able to adequately respond to them, and for that reason declined to appoint a communication assistant for the trial.

[21]   However, the Court appointed a communication assistant to participate in a pre-trial conference to assist counsel in preparing for questioning. The Court then convened a ground rules hearing, and directed that counsel observe the ground rules set out in a schedule approved by the Court. The appointment of the communication assistant was extended to assist counsel in the period leading up to trial in relation to the technique and aids which would serve to ensure that the witness could communicate effectively.

[22]   Under rr 9.7 and 9.12 of the HCR, the evidence in chief of a witness in a civil trial in the High Court is usually by a written statement of evidence, referred to as a brief, which is read by the witness in open court at the trial. This requirement is subject to any direction by the Court for the giving of oral evidence. Rule 9.7(4)(b) requires every brief to be in the words of the witness.

[23]   For evidence in chief, the oral questions to a witness and the responses to them initially occur in a private briefing session between counsel and the witness, culminating in preparation of the written brief.

[24]   Accordingly, the entitlement of a witness to communication assistance in a High Court civil proceeding may extend to any assistance required to enable the witness to sufficiently understand questions put to the witness during a private briefing

5      MacKay (by her litigation guardian Choppin) v Blair [2024] NZHC 2459 at [19].

session and to provide adequate responses so that a written brief can be prepared. If that is not practically possible the evidence in chief may need to be given viva voce at trial, with communication assistance.

[25]   In respect of cross-examination, the issue is whether the witness can sufficiently understand questions put orally in a hearing, and adequately respond to them.

The process of obtaining communication assistance

[26]   The Ministry of Justice publishes a Communication Assistance Quality Framework for court-appointed communication assistance services (the Framework).6 The Framework is tailored towards the provision of communication assistance in criminal proceedings.

[27]   Section 4.1 of the Framework sets out four key steps in communication assistance service delivery:7

(a)The participant is identified as requiring communication assistance, and an application form is submitted to the court. The judge determines if a communication assistant will be engaged to do an assessment.

(b)The communication assistant assesses the participant’s communication abilities, and submits an assessment report to the court with recommendations on the special measures required to facilitate communication.

(c)The judge considers the report and directs whether further assistance is required. The judge may direct the communication assistant to work with counsel to prepare for trial.

6      Communication Assistance Quality Framework (Ministry of Justice, July 2021).

7      At 16.

(d)The communication assistant may attend trial hearings and conferences to facilitate participation and communication between the court and the participant.

[28]   Steps (c) and (d) encompass the broader scope of assistance available to a defendant in a criminal proceeding.

[29]   The Framework suggests that the assessment take place in a formal setting, including prison if the participant is held in a facility. The Framework describes the assessment as follows:

The [communication assistant] will carry out a specialist analysis of the participant’s communication abilities and difficulties. The assessment is not a formal diagnostic assessment but will aim to understand how the participant is likely to function in a justice context in relation to their ability to understand and interact. It will also assess how to best facilitate communication with the participant in the court proceeding.

[30]   Again, this description encompasses the broader scope of assistance available to a defendant in a criminal proceeding.

[31]   In R v Ebdell,8 a criminal proceeding, Osborne J summarised the procedural approach that has developed in New Zealand, which is consistent with the framework:

[55]      In the absence of regulations (whether under s 80 of the Act or otherwise) governing the provision of communication assistance in New Zealand, a settled approach has nevertheless developed:

(a)a responsible person submits an application for a Judge to approve a communication assistance assessment in relation to the witness, as done in this case (above at [1]);

(b)upon the Judge’s direction, the Registrar issues instructions to a communication assistant for an assessment report;

(c)upon receipt of the report, a Judge will hear from counsel, and may hear from the report writer, before making a decision under ss 80–81 of the Act as to whether communication assistance will be provided to the witness — such communication assistance may be directed in relation to a ground-rules hearing (involving Judge, counsel and communication assistant), pre-trial preparation of the witness for questioning, pre-trial discussion with counsel as to

8      R v Ebdell [2022] NZHC 580.

questioning, and/or assistance in the course of examination at trial; and

(d)such events as are directed (such as a ground-rules hearing and pre-trial preparation) will then take place.

Mr Reekie’s substantive claims in these proceedings

[32]   It is necessary to consider the nature of the allegations made by Mr Reekie in his pleadings, which inform the scope of the evidence likely to be adduced at the trial. It appears from the pleadings that Mr Reekie’s evidence will traverse events over an extended period from 2005 to 2019.

[33]   In 351, the nub of the claim is that while Mr Reekie has been in custody he has not received adequate treatment for any of his mental health needs, or accommodation for his neurodevelopmental difficulties, beyond limited interventions in times of acute crisis to deal with or prevent self-harming behaviour. This is pleaded to be a systemic failure.

[34]   Mr Reekie pleads facts relevant to his “long-term mental health problems”, including four attempts at suicide.

[35]   Mr Reekie pleads numerous acts of violence which he alleges he was involved in or observed, pleading that he suffered mental distress as a result without any adequate psychological or psycho-support or treatment.

[36]   In 2703, Mr Reekie alleges particulars of strip searches, failure to provide a latex overlay required for Mr Reekie’s medical needs, and breaches of his privacy while held in the “At Risk Unit”.

[37]   It appears that Mr Reekie wishes to give evidence in respect of all of these events, which will be traumatic.

What assistance is Mr Reekie seeking and why?

[38]   Counsel for Mr Reekie relies on a Psychological Report to the New Zealand Parole Board dated 22 August 2022, prepared by Katrina Beach, a Registered Clinical Psychologist (the psychological report). Counsel submits that the report indicates that

Mr Reekie presents with conditions including Attention Deficit Hyperactivity Disorder (ADHD), Autism Spectrum Disorder (ASD), Personality Disorder, Dyslexia, and post-traumatic stress disorder (PTSD).

[39]   Counsel submits that these conditions are manifest. Mr Reekie has a limited attention span and struggles to focus on matters. It is said that some of the content of Mr Reekie’s claim is particularly difficult for him to engage with, and may trigger a trauma reaction. Reference is also made to Mr Reekie’s dyslexia, however this application is concerned with Mr Reekie’s ability to understand and respond to oral questions.

[40]Counsel submits that communication assistance is required to:

(a)facilitate meetings between counsel and Mr Reekie;

(b)assist Mr Reekie to read and understand the pleadings, discovered documents, and other witnesses’ briefs; and

(c)to prepare Mr Reekie’s brief of evidence.

Analysis

[41]   The psychological report was prepared to provide an assessment of risk and a formulation of Mr Reekie’s offending. It records elements of Mr Reekie’s self-reporting. The report does not contain any confirmed diagnosis of ASD or ADHD. The summary concludes:

In terms of his needs moving forward, the presence of neuro-diversity (Autistic Spectrum Disorder) needs to be clarified by further assessment …

[42]However, under the heading “PRESENTATION”, Katrina Beach observed:

There were several features of Mr Reekie’s presentation that were unusual. Mr Reekie struggled to answer questions directly, even when that would have favoured him. He would often engage in a detailed narrative and appeared to be unaware of what information was relevant and what was not.

[43]   At this stage, it is not appropriate to speculate on the scope of the communication assistance that might be required, or the form that specific assistance

might take. However, I note that some of the assistance referenced by counsel, such as assistance to enable Mr Reekie to read and understand the pleadings, discovered documents and other witnesses’ briefs, may relate to Mr Reekie’s understanding of the proceeding in general, rather than his ability to sufficiently understand questions put orally and to adequately respond to them.

[44]   As a first step, Mr Reekie requires an assessment report from a communication assistant, including an assessment of whether Mr Reekie requires assistance to sufficiently understand questions from counsel and to adequately provide answers so that a brief of his evidence can be prepared.

Who should pay for the communication assistance?

[45]   At the conclusion of the hearing of this matter, I requested counsel to provide submissions concerning who bears the cost of paying for communication assistance, and whether the cost of communication assistance is eligible for a grant of legal aid as a legal aid disbursement.9 Mr Reekie has a grant of legal aid for these proceedings.

[46]   In a joint memorandum dated 29 August 2024, counsel for Mr Reekie and the Attorney-General advised the Court that they have made enquiries with the Ministry of Justice and a contracted service provider for communication assistance services, and the parties submit that there is no other payment method permitted except through the courts.

[47]The parties cite the Framework, which provides:10

Communication assistance must be engaged only when a judge approves the use of communication assistance.

Impartiality and neutrality are central to the [communication assistant] role: as such, communication assistance providers are paid by the Ministry for the services they provide to the court through a contractual arrangement.

No other payment method for communication assistance is permitted – this includes payment for communication assistance via legal aid, private payment or through a lawyer’s disbursements.

9 Minute of Associate Judge Brittain, dated 4 July, at [5(b)] and [6].

10     Communication Assistance Quality Framework, above n 6, at 22.

[48]   However, the learned authors of Mahoney on Evidence note that the general practice is that a party to a civil proceeding calling a witness who needs communication assistance bears the costs. The authors state that the appropriate starting point or presumption should be that the individual meets the cost of providing communication assistance but where circumstances require the need for a witness to have assistance, that cost should be borne by the Court rather than the party calling the witness. And it should not be a cost imposed on another party to the proceedings.11

[49]   Relevant decisions concern the cost of a language interpreter, which is a form of communication assistance. Li v Commissioner of Police involved a number of applications concerning restraining orders. A practical issue arose: Mr Li could not afford the costs of an interpreter.12 The Crown argued the proceedings were civil proceedings and Mr Li, as the applicant, was seeking to rely on his own affidavit. The Crown submitted that it “is entitled to cross examine him on that affidavit, and that in civil proceedings it is the party putting forward a witness who is required to arrange to meet the costs of an interpreter if one is required”.13

[50]   Wylie J concluded that in appropriate cases, such as impecuniosity, the cost of providing assistance should fall on the Crown, observing:

[14] The practice that has developed in civil proceedings is that it is not the Court’s responsibility to arrange or meet the costs of an interpreter. Rather, the party calling the witness who needs an interpreter generally meets the costs involved, at least in the first instance. The costs are then treated as a disbursement which can be incorporated into a costs order by the Court.

[51]   Wylie J considered that the default position that the costs of an interpreter should be met by the party was inconsistent with s 80 of the Act.14

… I am not persuaded that this practice is necessarily consistent with s 80(3) of the Evidence Act 2006. It provides that a witness in a civil proceeding is “entitled to” communication assistance, in accordance with the section and any regulations made under the Act, to enable that witness to give evidence. Communication assistance can be provided on the application of the witness, or any party to the proceeding, or on the initiative of the Judge.

11     Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (Thomson Reuters, Wellington, 2018) at [EV80.07].

12     Li v Commissioner of Police [2016] NZHC 1383, (2016) 23 PRNZ 240 at [8].

13 At [9].

14 At [15].

[52]He further observed:

[17] The Evidence Act does not expressly deal with the issue of who meets the cost of providing communication assistance. It does however provide that a person requiring communication assistance is entitled to that assistance. The implication must be that, in appropriate cases, the costs of providing that assistance fall on the Crown.

…

[19] Mr Deliu has asserted that Mr Li requires an interpreter to give  evidence when he is cross examined. If he is correct in that assertion, and Mr Li does require communication assistance to enable him to give evidence, then unless Mr Li is prepared to pay for that assistance himself, in my judgment the Crown must provide the communication assistance required, and if necessary meet the costs involved. Otherwise Mr Li’s entitlement to communication assistance would be denied.

[53]   In a subsequent decision, Duffy J preferred a narrower interpretation.15 The judgment arose in the context of the provision of a Chinese interpreter. The defendant contended that since an interpreter was required in order to assist the plaintiff in giving evidence, the plaintiff was responsible for providing the interpreter. However, counsel for the plaintiff maintained that Li v Commissioner of Police was authority for the proposition that where necessary the Court must provide an interpreter in civil proceedings.16

[54]Duffy J considered:

[6]        First, I am not persuaded that s 80(3) of the Evidence Act should be read to mean that a party in a civil proceeding is entitled to the provision of an interpreter. Rather, I consider that the section should be more narrowly interpreted to mean that a party in a civil proceeding is entitled to have access to an interpreter, in the sense that if a party requires the assistance of an interpreter, the Court and other parties must permit that to occur. That interpretation is compatible with the general practice that the party calling a witness should be required to pay the costs of providing an interpreter.

[7]        There are two further factors which, in my view, militate against the general proposition which Mr Deliu has put forward. The first is that I am not persuaded that Wylie J’s reference to “the Crown” as a source of funds should be interpreted to mean “the Court”. Throughout his decision, the Judge refers to the respondent as “the Crown” rather than “the Commissioner of Police”. On that basis, I consider that Wylie J’s intended meaning was that the costs of providing an interpreter should be met by the Commissioner of Police. That leads to my second reason for rejecting Mr Deliu’s submission; namely, that there are policy reasons why it might be appropriate to reverse the burden of

15     Zhang v King David Investments [2016] NZHC 1479, (2016) 23 PRNZ 253.

16 At [2].

providing an interpreter in cases concerning proceeds of crime. Although such proceedings are undoubtedly civil in nature, they share some of the characteristics of criminal proceedings, specifically the power imbalance between an individual and the might of the state. Furthermore, the plaintiffs in such proceedings will often suffer from a lack of funds due, as I have noted above, to the very restraining orders which the plaintiff seeks to vary or overturn. I consider that those factors may weigh in favour of a narrow exception to the general principle that the party who calls a witness in civil proceedings should pay the cost of an interpreter, where necessary.

[55]   Both Li and Xiang were concerned with the costs of a language interpreter. However, there is no basis for any conceptual distinction between the cost of a language interpreter and the cost of a communication assistant dealing with disability as a result of neuro-diversity.

[56]   Whether the Court’s approach in Li or Xiang is followed, the approach is different to that set out in the Framework. The statement in the Framework that only the Ministry is permitted to pay for communication assistants is in respect of communication assistants in a criminal proceeding.

[57]   Regarding civil proceedings, I prefer the approach of Duffy J over the approach of Wylie J. The entitlement conferred by s 80(3) of the Act is an entitlement to access communication assistance, not an entitlement that communication assistance will always be provided at no cost to the party calling the witness. It remains open to a court to direct in appropriate cases that the cost of a communication assistant, whether an interpreter or not, be met by the court. Wylie J’s decision in Li is an example of an appropriate exercise of that discretion.

[58]   Mr Reekie is receiving legal aid for these proceedings. There is no provision in the Legal Services Act 2011 for communication assistance. Nor does the Legal Aid Services Grants Handbook provide specifically for communications assistance other than a language interpreter. That document recognises that additional work may be required, and accordingly compensated for, where a defendant has significant barriers to communication.17 However the specific provision of a communication assistant is not addressed.

17     Legal Aid Services Grants Handbook (Ministry of Justice, August 2024) at 80.

[59]   Mr Reekie is incarcerated and impecunious, and he met the criteria for a grant of legal aid. If the Court does not provide funding for communication assistance, then he may be denied access to justice. This is an appropriate case for an exercise of the Court’s discretion to order a communication assistance assessment, and to meet the cost of that assessment.

[60]   The extent of any further communication assistance required, if any, can only be considered once the assessment has been completed.

Orders

[61]   The Registrar shall instruct a communication assistant to prepare an assessment report in respect of  Mr  Reekie,  which  shall  include  consideration  of  whether  Mr Reekie requires assistance to sufficiently understand questions from counsel in a private briefing session, and to adequately provide answers so that a brief of his evidence can be prepared.

[62]The costs of the assessment shall be met by the Court.

[63]Costs on this application shall lie where they fall.

Associate Judge Brittain