Reekie v Chief Executive Officer of the Department of Corrections

[2013] NZHC 271

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2814 [2013] NZHC 271

BETWEEN  NICHOLAS PAUL ALFRED REEKIE Applicant

ANDCHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIONS First Respondent

ANDVISITING JUSTICE OF SPRING HILL CORRECTIONAL FACILITY

Second Respondent

Hearing:         11 and 12 February 2013

Counsel:         Applicant in person with RY Wood as McKenzie Friend

JL Foster for First Respondent
Second Respondent abides the decision of the Court

Judgment:      20 February 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 20 February 2013 at 5.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:          Crown Law, P O Box 2858, Wellington 6140 for Respondents

(Email:  [email protected] )

Copy to:             N Reekie, P O Box 50-124, Albany, Auckland 0755

(Assistant: Ruth Wood, P O Box 62, Albany Village, Auckland 0755, Fax: [phone])

NICHOLAS PAUL ALFRED REEKIE V CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2012-404-2814 [20 February 2013]

TABLE OF CONTENTS

Introduction  [1] The issues  [5] The evidence  [6] Part One – decision of prison management

Background  [8] Grounds of review  [19] Transfer        [20]

Discussion  [27] Security classification  [37] Management plans  [43] Directed segregation  [47]

Part two – disciplinary charges

First charge  [51]

Charge laid in retaliation  [60] Charge brought out of time  [62] Representative charge  [65] Procedural fairness  [67] Reasonableness  [68]

Second, third and fourth charges  [69]

Referral of charge in the applicant’s absence  [77] Procedural fairness  [78] Unreasonableness  [80]

Remedy  [82]

Result  [80]

Introduction

[1]      On 15 July 2003, Mr Reekie was sentenced to preventive detention with a minimum term of imprisonment of 25 years.1   He had been found guilty after trial on

31 charges arising out of serious sexual assaults committed over a 10-year period.

[2]      From the time of his sentencing until 5 July 2011, he was held at Auckland Prison.   He was then transferred to the Northern Regional Correctional Facility at Ngawha (Ngawha).   In February 2012, he was temporarily transferred back to Auckland  Prison  before,  on  28 February  2012,  being  transferred  to  Spring  Hill Correctional Facility (Spring Hill).  He remained there until 17 August 2012 when he was transferred back to Auckland Prison.

[3]      Mr Reekie was unhappy about the decision to transfer him to Spring Hill and with the management of his sentence while he was there.  In this proceeding he seeks judicial review of the decision to transfer him to Spring Hill and of aspects of his management while he was there, including the decisions of the Visiting Justice at Spring Hill Prison in respect of four disciplinary charges.

[4]      Mr Reekie’s claim included wide ranging claims based on the common law and the New Zealand Bill of Rights Act 1990 covering aspects of his detention over the period 2008 and 2012.  This part of the proceeding has been severed and will be dealt with separately.2     This judgment is concerned only with his application for judicial review.

The issues

[5]      Mr   Reekie’s   pleadings   suffer   from   many   of   the   defects   commonly

encountered in the drafting of lay litigants.  His second amended statement of claim is prolix, discursive and, while in some respects lacking adequate particulars, replete

1      R v Reekie HC Auckland T021833, 15 July 2003, Harrison J.

2      Minute of Venning J, 1 November 2012.

with extraneous material.  It is nevertheless adequate to identify his key complaints. I agree with Ms Foster that they can conveniently be divided into two parts:

(a)      Part one – judicial review of decisions of prison management.   The main one is the decision to transfer Mr Reekie to Spring Hill.  Other decisions challenged include his management plan, security reclassification and placement on directed segregation.

(b)Part  two  –  the decisions of the Visiting  Justice at  Spring  Hill  in respect to the disciplinary charges.

The evidence

[6]      Mr Reekie swore four affidavits in support of the application.  His McKenzie Friend, Ms Ruth Wood, also swore several affidavits.   Mr Reekie tendered three unsworn affidavits from former fellow inmates at Spring Hill.  He accepted that one of  the  deponents  would  no  longer  be  prepared  to  swear  an  affidavit.    At  the beginning of the hearing he said he wanted to leave open the option of taking steps to have the other two affidavits sworn.  They were not referred to in argument and I have no reason to think they would have assisted Mr Reekie’s cause.

[7]      The first respondent filed an affidavit by Mr Robert Sherlock, the Acting Prison Manager  at Auckland Regional  Prison  at  Paremoremo,  who was  able to depose to the background to the decisions to transfer Mr Reekie from Auckland Prison to Ngawha and Spring Hill.  Mr John Kanawa, the Acting Prison Manager at Spring Hill, swore three affidavits dealing with the decision to transfer Mr Reekie to Spring Hill and his management there.  The remaining deponent is Mr John Dustow, a Corrections Officer at Spring Hill, who had the role of site prosecutor.   He was responsible for bringing the disciplinary charges against Mr Reekie.

Part One – decisions of prison management

Background

[8]      Mr Reekie was and still is a voluntary segregation prisoner who, at his own request, is kept apart from mainstream prisoners.3   At Auckland he was housed in a dedicated voluntary segregation unit for high security prisoners.  He was transferred to Ngawha because of what was described by Mr Sherlock as a “perceived conflict” between him and his unit’s manager which was not considered helpful to his rehabilitation.  There were limited other beds available for prisoners of his security

classification and the decision was made after consultation between the prison managers of Auckland Prison and Ngawha to transfer him to Ngawha.

[9]      In   early   January   2012,   Auckland   region   prison   managers   discussed Mr Reekie’s placement.  He had requested a transfer back to Auckland.  It appears that Ngawha were finding him challenging.   Mr Kanawa refers to the significant administrative burden on staff associated with his frequent complaints.  As he was about to be transferred temporarily to Auckland for the purpose of a Court hearing, it was seen as timely to consider his long-term placement after the Court case.

[10]     I  was  told  that  the  transfer  of  high  profile  and/or  difficult-to-manage prisoners is often facilitated by agreements between prison managers.  At a meeting on about 9 January 2012, Mr Kanawa, as Acting Manager of Spring Hill, indicated that Spring Hill could possibly accommodate Mr Reekie in the longer term.  This was suggested as a means of supporting other prisons in the Auckland region and as giving Mr Reekie an opportunity to progress in a different environment.

[11]     The  request  to  accommodate  Mr  Reekie  was  not  supported  by  Ms Trish Taylor, the Acting Reception and Movements Manager at Spring Hill.  She did not see him as suitable for transfer.  However, after discussion the decision was made to

accept him and he was transferred on 28 February 2012.

3      A voluntary segregation prisoner is a prisoner who has requested segregation for the purpose of protected custody under s 59(1)(a) of the Corrections Act 2004.

[12]     Mr Reekie was not advised of his impending transfer.  This was a breach of s 55(1)(a)  of  the  Act  which  provides  that  a  prisoner  must  be  informed  of  an impending transfer, and the destination, at least seven days in advance.  Mr Sherlock said this was not the result of a deliberate decision but due to unit staff not being aware of the transfer until the last minute.

[13]     Spring Hill does not have a dedicated voluntary segregation unit.  Mr Reekie was accommodated in a unit which accommodates prisoners who have been directed to be kept segregated as well as those who have sought segregation status.  This had adverse consequences for Mr Reekie.  Prisoners in the unit were kept under 23-hour lockdown.  In contrast, conditions in the voluntary segregation unit at Auckland were much less onerous. The hours of lockdown were much reduced.

[14]     Mr Kanawa said that management generally look for opportunities to give voluntary segregated prisoners longer than one hour out of their cell.  That depends on the number of directed segregation prisoners present as they cannot mix with voluntary segregated prisoners.  Efforts are also made to enable voluntary segregated prisoners to mix and exercise together during their unlock time.  Mr Reekie agreed that  was  not  a  good  idea  in  his  case  because  his  behaviour  earned  him  the antagonism of many other prisoners.   Mr Reekie was also given opportunities to move to another unit which would provide more time out of his cell while ensuring that he was protected from other prisoners.  He declined to take advantage of these opportunities.

[15]     Immediately  after  his  arrival,  Mr  Reekie  made  a  formal  request  to  be informed of the reasons for his transfer, how long he was going to be at Spring Hill and why he was being housed in the management unit.  While the reasons for his placement in the management unit were discussed with him the following day, he was not given written reasons for his transfer to Spring Hill until 1 May 2012, after the intervention of the Ombudsman.   Mr Kanawa acknowledged that Mr Reekie should have been advised in writing of the reasons for his transfer well before this. He acknowledged also that the written reasons should have been fuller.  The material part of the letter read:

Reekie has been transferred from [Ngawha] and placed in [Spring Hill] as [Ngawha]  is  trying  to  remove  all  voluntary  protective  segregation  from there.  With issues around beds in Auckland Prison you have been placed in [Spring Hill] so that you still remain in Northern Region for your family support and ongoing Court proceedings you may have.   At this stage you will remain at [Spring Hill].

[16]     It is accepted that this was an inadequate and incomplete explanation.  The matters referred to in the letter were only part of the factual matrix in which the decision was made.

[17]     During  the  time  Mr  Reekie  was  at  Spring Hill  there  were  a  number  of administrative decisions made with which he takes issue.  His security classification was upgraded from low-medium to high.   He was the subject of a security management plan which he contends was unlawful.  And for two periods of 14 days he was directed to be segregated from other prisoners.

[18]     On 17 August 2012, Mr Reekie was transferred back to Auckland Prison on the direction of senior management.   It had become clear that his placement at Spring Hill was not working for him or Spring Hill.   He had submitted over 170 complaints while at Spring Hill.  Mr Kanawa considered he was trying to manipulate the complaints process, staff and other prisoners so as to force a transfer back to Auckland.

Grounds of review

[19]     Mr Reekie’s grounds of review, as articulated in the declaratory judgments he

seeks, are:

(a)      The decision to transfer him was unlawful as made:

(i)For  an  improper  purpose,  namely,  to  punish  him  for  his complaints.

(ii)Was unreasonable in that it led to his being placed in a more restrictive environment than was reasonable or justified.

(iii)     Was effected without proper notice to him.

(iv)Without  his  being  provided  with  reason  for  his  transfer  in writing within one month after making such a request.

(b)His placement in a high security management unit while he had a security classification of low-medium was unreasonable and unlawful and done for an improper purpose.

(c)      The security management plan and/or his management support plan was unreasonable and/or unlawful and compiled for an improper purpose.

(d)      The orders for directed segregation were unlawful.

Transfer

[20]     The transfer of prisoners is governed by ss 53 – 56 of the Corrections Act

2004. A prisoner may be transferred from any prison to any other prison in which he or she may be lawfully detained.4   The transfer may be made for one or more of the reasons set out in s 54(1) which relevantly provides:

54       Reasons for transfer

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

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

(b)      to assist in facilitating the—

(i)       rehabilitation of the prisoner; or

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

(c)      to place that prisoner in a prison closer to his or her family: (d)      to respond to the needs of that prisoner, as identified in the

management plan:

4      Corrections Act 2004, s 53(1).

...

[21]     Section  54(4)  sets  out  the  matters  which  must,  as  far  as  is  reasonably practicable, be taken into account when considering whether to transfer a prisoner. Those factors are:

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

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

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

[22]     As previously noted, a prisoner must be informed of an impending transfer, and the destination, at least seven days in advance5  and provided with a reasonable opportunity to inform a member of his or her family of the impending transfer and the destination, before the transfer is made.6

[23]     A prisoner  who  is  transferred  from  one  prison  to  another  may  ask  the manager of the prison from which he or she was transferred to specify the reasons for the transfer.7    Such a request must be in writing and forwarded to the manager

within one month of the transfer.8   The manager must inform the prisoner in writing

of the reasons for the transfer no later than one month after receiving a request.9

[24]     Mr Reekie submitted that his transfer to Spring Hill was made contrary to the policies  and  conditions  of Spring  Hill  and  that  the management  of Spring  Hill succumbed to pressure to accept him.   He referred to concerns expressed by both Ms Taylor and the Acting Prison Manager of Spring Hill when his transfer was being

considered. They said his transfer would be contrary to:

Spring Hill’s policy of not accepting segregated prisoners.

5      Section 55(1)(a).

6      Section 55(1)(b).

7      Section 56(1).

8      Section 56(2).

9      Section 56(3).

Spring Hill’s requirement to double-bunk prisoners.

The risk to female staff.

Mr Reekie also claimed that Spring Hill did not accept prisoners with ongoing legal issues.

[25]     Mr Kanawa explained the background to the decision which included muster management pressures in the Auckland region.   He said high security beds are in high demand in the Auckland region and it was not appropriate for Mr Reekie to occupy a high security bed long-term at Auckland Prison when he had a low-medium security classification.  Further, it was thought that Mr Reekie would not progress if he remained at Auckland Prison or returned to Ngawha.   Spring Hill was seen to provide opportunities for him.   These included employment and outside activities which would help to de-institutionalise him.  It was hoped he could be transitioned from voluntary segregation status into a motivated, mainstream unit at Spring Hill. An associated consideration was to give staff at Ngawha and Auckland Prison respite from a prisoner who was time-consuming to manage and taxing on administrative resources.

[26]     Mr Kanawa said there were no real barriers to Mr Reekie’s transfer to Spring Hill.  Although most prisoners were expected to double-bunk, Spring Hill was able to accommodate prisoners on voluntary segregation in the management unit.  It was not the case that Spring Hill did not accept prisoners with ongoing legal issues.

Discussion

[27]     As the first respondent has conceded, Mr Reekie’s complaint about the way the transfer to Spring Hill was handled is well founded and it is easy to understand why it should have engendered in him a sense of grievance.  The omission to give him notice that he was to be moved to Spring Hill was a significant oversight, particularly when it was known that his preference was to remain at Auckland.

[28]     Mr Reekie’s request for reasons for his transfer was also badly handled, again in breach of statutory requirements.  He was given the written advice he was entitled to out of time and only after the intervention of the Ombudsman.  The explanation given was  inadequate on its  face and  proved  to  be incomplete and  misleading. Mr Reekie was fully entitled to feel dissatisfaction about this also.

[29]     Despite these material deficiencies in the way the transfer was handled, I am satisfied that the decision itself was lawful.  The evidence of the prison managers, backed up by the contemporary record, makes it clear that the decision was made for proper reasons and was not unreasonable.

[30]     It seems that when he chooses to be, Mr Reekie can be an extraordinarily demanding  prisoner  who  presents  special  challenges  to  prison  management. Mr Kanawa   described   him   as   time-consuming   to   manage   and   taxing   on administrative resources.   It is not at all surprising that those responsible for his management should welcome respite.

[31]     However, it is clear that the decision to transfer Mr Reekie was not made in order to give staff at Ngawha and Auckland a break (though that was a welcome consequence) or as a punitive response to his persistent complaints and legal action against the Department of Corrections, as Mr Reekie believes.   Rather, it was a considered judgment, aimed at providing opportunities for his personal development (or offender pathway as the prison authorities call it), having regard to the resources available in prisons in the Auckland region.  The managers of all three prisons at the time were supportive of the move.  Mr Sherlock, the then Acting Prison Manager at Auckland, wrote that Mr Reekie “needs to keep moving forward with his sentence” and said his placement back at Auckland would be “regressive”.  Mr Lightbrown, the manager of Ngawha, described the opportunities at Ngawha as more limited with the segregation population reducing and also referred to the importance of keeping prisoners within their “catchment area”.

[32]     It is true that there was opposition to the move at Spring Hill.   As earlier mentioned, the Acting Reception and Movements Manager declined the initial request.  She, of course, had a much narrower focus than the prison managers.  She

was not required to give consideration to the potential benefits to Mr Reekie or the resourcing issues which the prison managers were required to consider.

[33]     The transfer was considered over a period and in a way which ensured all relevant factors were weighed.   Ultimately there was a consensus that a move to Spring Hill would be in Mr Reekie’s best interests.  It was plainly made for several at least of the reasons stipulated in s 54(1), in particular to assist in facilitating his rehabilitation and to respond to his needs.  I am satisfied also that the decision was made having regard, as far as was reasonably practicable, to the factors required to be considered under s 54(4).

[34]     Mr Reekie was naturally unhappy that his transfer led to his being confined in more restrictive conditions than he had enjoyed at Auckland and Ngawha.  However, it is clear that it was always intended that he would be given the opportunity to move to a less restrictive regime.  He rejected offers that would have led to his being held in much more favourable conditions.

[35]     The Act and the Regulations make it clear that a prisoner does not have any legitimate expectations that the terms and conditions on which he or she is held will remain the same throughout the term of the sentence.10     Regulation 196 of the Regulations provides:

196     No legitimate expectation as to conditions, etc

(1)      To avoid doubt, a prisoner does not have any legitimate expectation of—

(a)       being accommodated in, or of being provided with, the same or similar conditions during the whole term of his or her sentence, period of remand, or other period of detention; or

(b)      being provided with the same or similar programmes or opportunities during the whole term of his or her sentence, period of remand, or other period of detention.

(2)      Subclause (1) does not affect any entitlement conferred on a prisoner by the Act or these regulations.

10     Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR

112 at [31].

[36]     I am satisfied that the decision to transfer Mr Reekie to Spring Hill was a lawful exercise of the first respondent’s  discretion.   There was, as  I have said, breaches of the statutory requirements to advise him of the move and provide him with the reasons for it, but these do not affect the validity of the decision itself.

Security classification

[37]     Every prisoner who is subject to a sentence of imprisonment of over three months is assigned a security classification that reflects the level of risk posed by the prisoner. 11    It must be reviewed at least every six months.12   A prisoner should be assigned the lowest level of security classification at which the prisoner can safely and securely be managed and be placed and managed within a facility and regime that is consistent with the security classification, to the extent that it is practicable (having regard to the availability of accommodation and other resources). 13

[38]     At the time of his transfer to Spring Hill, Mr Reekie was classified as low- medium security.  On 20 April 2012, as part of the regular six-monthly review of his classification, he was reclassified to high security.

[39]     Mr Reekie complains that his security reclassification following his transfer to Spring Hill was pre-determined and carried out for the purpose of justifying and giving lawful effect to the decision to place him in a management unit.   I am satisfied there is no substance to his complaint.

[40]     Mr   Kanawa   explained   that   while   at   Ngawha   Mr   Reekie’s   previous classification had been “high” but had been “over-ridden” to low-medium due to satisfactory progression on his offender plan and relatively low number of negative incidents.  Because of the number of incidents that had occurred at Spring Hill by April 2012 and Mr Reekie’s poor interaction with staff and prisoners, there was seen

to be no reason to over-ride the high security classification.

11     Corrections Act 2004, s 48(1)

12     Section 47(3).

13     Corrections Regulations 2005, reg 44.

[41]     The reclassification was carried out in accordance with prescribed procedures and by reference to all relevant criteria.   The decision not to downgrade the classification, as occurred at the time of the previous review, cannot be criticised. That is a purely discretionary matter.

[42]     By  s  48(2)  of  the Act,  a  prisoner  who  is  dissatisfied  with  the  security classification assigned may apply to the Chief Executive for reconsideration of the classification.  Mr Reekie did not take that step.

Management plans

[43]     In anticipation of Mr Reekie’s arrival at Spring Hill, managers prepared a plan, known as a security management plan.   This was never finalised and was superseded by a management support plan which must be prepared and maintained for every prisoner sentenced to imprisonment for a term of more than two months. 14

The plan must be based on an assessment of the needs, capacities and disposition of

the prisoner and, among other things, outline how the prisoner can make constructive use of his or her time in prison and prepare for eventual release.

[44]     Mr Reekie said he became aware for the first time that he was the subject of a prison security management plan when it was referred to in an affidavit sworn by Mr Kanawa for the purpose of his application for interim relief.  He complained that the plan  had  been  put  in  place  by  “stealth  and  secrecy”;  that  it  should  have  been disclosed to him; and that it was prepared for an unlawful and improper purpose in response to his making legitimate complaints.

[45]     Mr Kanawa deposed that the security management plan was not shown or given to Mr Reekie because it was never finalised.  At the time Spring Hill was in the process of transitioning from security plans to management support plans, the first of which was completed on 29 March 2012.  It was updated on 7 May 2012 and again on 6 July 2012.   Copies of each revision were shown to Mr Reekie.   The contents of the plan confirm the aim of prison management to move Mr Reekie to a

mainstream unit and his resistance to proposals that would have helped to achieve that outcome.

[46]     I can find no grounds for criticism in the preparation of both the draft security management plan and the management support plan.

Directed segregation

[47]     A  prison  manager  may  direct  a  prisoner  to  be  segregated  (directed segregation) if satisfied that the safety of the prisoner has been put at risk by another person and there is no other reasonable way to ensure the prisoner’s safety.15   Any such  direction  expires  after  14  days  unless  the  Chief  Executive  directs  that  it continue in force.

[1]      Mr Reekie was placed on directed segregation for two periods of 14 days. The first, which commenced on 4 July 2012, was made as a result of Mr Kanawa’s concerns about Mr Reekie’s safety.  He had complained about feeling unsafe due to the nature of his offending and, although he was already on voluntary segregation, Mr Kanawa considered a directed segregation order was necessary so that prison management could have full control over his interactions with other prisoners.   A second period of directed segregation commenced on 1 August 2012 following a letter written by Mr Reekie to the Inspectorate saying he feared for his safety.  The effect of the directed segregation orders was that Mr Reekie was not allowed to associate with other prisoners and had to be unlocked at a different time to the unit cleaners.

[48]     Although not the subject of a separate prayer for relief, Mr Reekie challenged the decisions to make directed segregation orders.  Mr Reekie submitted that the first segregation order was given for unlawful reasons.  He said that at the time it was made he was not in conflict with other prisoners.  However, he himself deposed to having had threats made against him by other prisoners before this time.  I have no reason to doubt Mr Kanawa’s evidence that Mr Reekie complained that he felt

unsafe and that a directed segregation order was warranted in order to give the prison authorities full control over his interactions with other prisoners.  I am satisfied that there were available grounds for the making of the order in the exercise of the prison manager’s discretion under s 59(1)(b).

[49]     The second order was made after Mr Reekie wrote to the Inspectorate stating he feared for his safety.  He confirmed in his evidence that he was being threatened by other prisoners at this time. Again, the making of the order was plainly justified.

[50]     Mr Reekie complained that he was not promptly given reasons in writing for either direction as required by s 59(3) of the Act.  This appears to be the case.  If so, Mr Kanawa says it would have been due to a simple oversight or because of the administrative burden generated by Mr Reekie’s complaints.  He said this worsened progressively until the prison officer responsible was spending 3 – 4 hours a day on such matters.  These omissions, of course, had no bearing on the lawfulness of the orders themselves.

Part two – disciplinary charges

First charge

[51]     It is convenient to consider separately the first of the four disciplinary charges in issue.  It was laid on 29 March 2012 after the Corrections officer who acted as the prosecutor at Spring Hill, John Dustow, was told that over the period from 22 March

2012 three prisoners had laid formal complaints that Mr Reekie had made offensive and threatening comments to them.   As site prosecutor, Mr Dustow’s role  is to facilitate the prosecution of prison disciplinary offences under the Act.  Disciplinary proceedings are governed by Schedule 7 of the Regulations. Any staff member other than the prisoner manager or a witness may prosecute an offence, although at Spring Hill Mr Dustow had sole responsibility for that function.

[52]     In general terms, the three complaints made were that Mr Reekie had made comments about raping prisoners and their family members and that on one occasion faeces had been smeared across the window of a prisoner’s cell.  Mr Dustow spoke

to the three prisoners.  All advised they were willing to give evidence which he said is rare in a prison environment.  He also spoke to staff members who knew of the events.  He decided there was sufficient evidence for a prosecution and that it would be prudent to lay a charge for the sake of the victims and having regard to the serious nature of Mr Reekie’s alleged actions.

[53]     On 29 March, Mr Reekie was served with the charge which was incorporated in a Misconduct Report and accompanied by a notice providing particulars of the procedure  to  be  followed,  the  prisoner’s  rights  and  the  penalties  that  may  be imposed. The material part of the misconduct report read as follows:

Offence

CORRECTIONS ACT 2004 SECTION (128) SUBSECTION (1) PARAGRAPH (c)

Representative charge:

Being a Prisoner at Spring Hill Corrections Facility, between the dates of Thursday the 22nd   of March 2012 to Thursday the 29th  of March 2012, Behaves in an offensive, threatening and abusive manner.

Report

On or about Thursday the 22nd  of March 2012, Prisoner REEKIE, Nicholas was in Unit 13.

The prisoner then walked up to Prisoner DOWD’s cell, reached down the back of his pants and proceeded to smear faeces across the window of DOWD’s Cell window.

On or about the 25th  of March 2012, the prisoner was on the phone in unit

13.  At this time, he yelled at prisoner HUGHES that he was going to find out where his family lives and Rape his daughter.

Between the dates of the 22nd  of March 2012 and 28th  of March 2012, the prisoner approached Prisoner GASCOIGNE and stated that he looked like an

11 year old boy and would love to rape him.

[54]     The charge was considered by the prison adjudicator16 who has the power to hear any complaint relating to any offence against discipline alleged to have been committed by a prisoner.17   At the request of the prosecutor, the prison adjudicator referred the charge to the Visiting Justice because of the likely complexity of points

of law that may arise and the seriousness of the offences. 18

16     Appointed under s 15 of the Corrections Act.

17     Corrections Act 2004, s 133(1).

18     Pursuant to s 134(1) of the Corrections Act.

[55]     On 10 April 2012, the charge came before the Visiting Justice for hearing. Mr Reekie applied to have the charge dismissed for a range of reasons, including the delay in bringing the charge, that it was laid in retaliation and that it was a representative  charge  and  unfair.    The Visiting  Justice  declined  the  application. Mr Reekie  then  applied  for  an  adjournment  on  the  ground  that  he  was  not sufficiently prepared.  The adjournment was granted, subject to one of the witnesses, Mr Hughes, who was to be released within the next few days, giving his evidence. Mr Reekie agreed to that.  Mr Hughes gave evidence and was cross-examined.

[56]     The hearing was reconvened on 24 April 2012.   Mr Reekie again made an unsuccessful application to have the charge dismissed and for a further adjournment on the basis he had had only partial disclosure.  He was provided with the documents he asked for and given an opportunity to look at them.  A further adjournment was declined as the documents contained nothing material that had not previously been disclosed in other documents.

[57]     When  the  hearing  was  reconvened,  evidence  was  given  by  prosecution witnesses (the two other prisoners and a Corrections officer).   They were cross- examined by Mr Reekie.   Mr Reekie gave evidence in his own defence and also called a Corrections officer.  Mr Reekie also tendered an affidavit from his partner, Ms Wood.  It was received despite objections from the prosecutor.  Oral submissions were made and Mr Reekie handed in written submissions on the representative charge issue.  A further adjournment was granted to enable the prosecution to file submissions on the representative charge issue.

[58]     On  22  May  2012,  the  Visiting  Justice  gave  her  decision.    She  found Mr Reekie guilty.   After hearing submissions,  he was sentenced to 11 days cell confinement and 25 days loss of privileges. A transcript of her decision was received on 30 May 2012 and given to Mr Reekie.

[59]     The grounds on which Mr Reekie seeks to review the decision of the Visiting

Justice are:

(a)       The charge was laid in retaliation.

(b)      The charge was laid out of time.

(c)       The charge was wrongly laid as a representative charge.

(d)There was inadequate disclosure of documents and an insufficient opportunity for Mr Reekie to prepare his defence.

(e)       The  Visiting  Justice  failed  to  properly  consider  and  weigh  the evidence.

Charge laid in retaliation

[60]     On 12 March 2012, Mr Reekie was subjected to two strip searches.   His complaint that they were unlawful was subsequently upheld by the Ombudsman. One of the officers involved in the search was Mr Dustow.  Mr Reekie claims that the charge brought by Mr Dustow on 29 March was “manufactured” and laid in retaliation against Mr Reekie for the complaint he made about the strip searches.

[61]     I am satisfied there is no substance in the allegation that the charge was laid in retaliation or for an improper motive.  Mr Dustow’s decision to bring the charge was plainly justified and vindicated by the Visiting Justice’s decision.  His minor role in the unlawful searches and the subsequent complaint (which had no consequences for him) were irrelevant to his decision to bring the charge.  Further, before doing so he consulted with senior managers, including the prison manager who supported his decision to initiate the charge.

Charge brought out of time

[62]     A charge in respect of a disciplinary offence must be laid promptly after a staff member becomes aware of the act or omission alleged to constitute that disciplinary offence.19    A charge is laid when the prisoner is given written notice which includes a description of the incident or circumstances giving rise to the

alleged offence and a statement of the provision under which the prisoner is charged.20

[63]     Mr  Reekie  complained  that  the  charge  was  laid  out  of  time  and/or unreasonably delayed.  The Visiting Justice rejected his submission.  I am satisfied she was right to do so.  The complaints about Mr Reekie’s behaviour were made on

26 and 27 March and the requisite written notice given on 29 March.

[64]     Mr Reekie also invited the Visiting Justice to dismiss the charge under cl 10 of Schedule 7 of the Regulations which provides that a prisoner charged with a disciplinary offence may apply to an inspector for the charge to be dismissed if the charge was not laid within seven days after the date on which a staff member became aware of the act or omission alleged to constitute that offence.  The charge was laid within the seven-day period.  Further, as the Visiting Justice pointed out, if there had been non-compliance, the remedy was to apply to an inspector for the charge to be dismissed.

Representative charge

[65]     The Visiting Justice gave detailed consideration to Mr Reekie’s complaint that it was unlawful for the charge to be laid on a representative basis.  She said it was “perhaps unfortunate” that there were not four separate charges.  However, she was satisfied that Mr Reekie was not prejudiced by the way in which the charge was laid.  He had been fully and fairly informed of the allegations he faced.  She had no hesitation in accepting that Mr Reekie understood the charge.   She said sufficient particulars had been provided to reasonably inform Mr Reekie of the alleged acts. The Visiting Justice also reminded herself of the importance of considering each incident separately and not on a global basis.

[66]     The Visiting Justice was  right  to  approach  the  issue by reference to  the touchstone of fairness.   The Act and the Regulations provide a framework for the efficient  despatch  of  the  many  thousands  of  disciplinary  offences  which  are

processed annually in the prison system.21    The regime is quite distinct from the criminal justice system.22   Compliance with the statutory requirements and the basic rules of natural justice should be sufficient to ensure that charges are fairly heard and determined.23   While the “representative charge” may have run into difficulties in a Court of general jurisdiction, it raises purely technical grounds of objection in the context of prison disciplinary proceedings.  Mr Reekie was not at all disadvantaged

by the way in which the charge was formulated.

Procedural fairness

[67]     Mr  Reekie  complained  that  he  did  not  receive  proper  disclosure  of  the prisoner complaint forms recording the initial complaints against him by his fellow prisoners.  They were finally provided to him at the adjourned hearing on 24 April

2012 and a short adjournment granted to enable him to consider them.  There was little in the complaint forms which was not disclosed in other reports made available before the hearing.  I heard nothing to suggest that Mr Reekie was prejudiced by the late disclosure. There is nothing of substance in this issue.

Reasonableness

[68]     Mr Reekie mounted a general attack on the Visiting Justice’s finding that the charge was proved.  Ultimately, it turned on her assessment of the credibility of the witnesses.  Having preferred the evidence of the complainants, as she was entitled to do, a guilty verdict was inevitable.

Second, third and fourth charges

[69]     The three further charges were preferred on 30 May 2012.  They related to events which are alleged to have taken place on 26 May.  In each case it was alleged

21     Poi & ano v District Court and Attorney-General HC Christchurch CP36/02, 11 March 2003;

Drew v Attorney-General [2002] 1 NZLR 58 at [41].

22     Drew at [85].

23     See also Morgan v Chief Executive of Department of Corrections HC Auckland CIV-2004-404-

70, 15 July 2005 at [119] and Johansen v Department of Corrections & ano HC Dunedin CIV-
2009-412-238, 27 October 2009 at [30].

that Mr Reekie disobeyed lawful orders contrary to s 128(1)(a) of the Act.   The individual charges were:

Charge No: 228610

“On Saturday the 26 May, 2012, staff were observing the camera in the

separates unit of Unit 13.

Staff noted that camera in cell 120, solely occupied by prisoner REEKIE was covered.  The prisoner was ordered several times to remove it to which he refused.

After lunch, the prisoner again covered his camera and would not respond to instructions to uncover the camera.”

Charge No: 228607

“At approximately 1200 hrs on Saturday the 26th  May 2012, staff were attempting to close the meal hatch of cell S120 of unit 13, solely occupied by Prisoner REEKIE.

At this time, the prisoner placed his arm through the hatch and refused to move it. This prevented the officer from closing the hatch.

The prisoner was ordered several times to remove the arm but he refused. Trifling force was required to push the prisoners arm through so the hatch

could be closed.”

Charge No: 228609

“At approximately 1215 hrs on Saturday the 26th May 2012, Prisoner REEKIE, Nicholas Paul Alfred, repeatedly used the emergency call system, demanding to see a nurse and to speak to the On Call Manager.

Staff instructed him to desist from using the emergency call button unless it was an emergency.

However, the prisoner continued for about 20 minutes.   The prisoner was warned repeatedly, to desist but each time Mr Reekie would call the officer a cock-sucker, telling him to get the nurse and on-call.  He would then push his call button repeatedly so the officer could not speak to him.”

[70]     On 31 May 2012 at the request of the prosecutor (again Mr Dustow) the hearing adjudicator referred the charges to the Visiting Justice on the basis that “complex legal argument may arise with this prisoner”.

[71]     The charges first came before the Visiting Justice on 5 June.  Mr Reekie had agreed the charges could be heard together but sought to have them dismissed as he claimed the prison manager had failed to provide camera footage and  that was

hampering his defence.   Mr Reekie had previously requested extensive camera footage as evidence.  His request was declined on the basis that the footage appeared to be irrelevant to the charges, raised privacy issues concerning other prisoners and would take a great deal of time to collate.   The prosecutor had, however, saved footage relating directly to the charges and that would be shown in the course of the hearing.

[72]     The Visiting Justice declined to dismiss the charge, noting that production of additional footage could be ordered if it transpired that it would be of assistance. Mr Reekie also applied for the charges to be dismissed on the basis that he had not been provided with recordings of the cell emergency button.  That application was also  declined  but  the  proceeding  adjourned  to  enable  the  prosecutor  to  enquire further into that issue.

[73]     When the matter next came before the Visiting Justice on 3 July 2012, the charge relating to the pressing of the emergency cell button (228607) was adjourned as the information on the recordings had yet to be provided.  The Visiting Justice proceeded with the hearing of the remaining two charges.  The camera footage was shown and evidence for the prosecution given by a Corrections officer.  Mr Reekie gave evidence but there was insufficient time for him to be cross-examined.   The matter was adjourned part-heard.

[74]     On 29 July 2012, Mr Dustow and Mr Reekie listened to the relevant cell audio recordings and on 31 July 2012 the hearing was reconvened.   The Visiting Justice declined to dismiss the proceeding on the basis that CCTV footage sought by Mr Reekie had not been made available to him.   She confirmed that she did not regard the footage as relevant.   Mr Reekie was then cross-examined and evidence given by a Corrections officer whom he called in his defence.

[75]     On 28 August 2012, Mr Reekie appeared before the Visiting Justice by way of an audio visual link.  The Visiting Justice read out her decision.  She found all charges proven beyond reasonable doubt.  She sentenced Mr Reekie to five days cell confinement and 15 days loss of privileges in relation to the charges of covering the camera  and  failing  to  remove  his  arm  from  the  hatch  and  to  two  days  cell

confinement and five days of loss of privileges for failing to stop pressing the cell emergency button.

[76]     Mr Reekie’s  grounds of review in  relation to the second, third and four

charges are:

(a)       It was unlawful for the hearing adjudicator to refer the charges to the

Visiting Justice without him being present;

(b)There was procedural unfairness in failing to disclose all the camera footage he requested; and

(c)       The  Visiting  Justice  failed  to  properly  consider  and  weigh  the evidence.

Referral of charge in the applicant’s absence

[77]     The decision to refer the charges to a Visiting Justice was made pursuant to s 134 of the Act which was considered by the Court of Appeal in Department of Corrections v Taylor.24   The Court held that there is no requirement to hold a hearing before the decision to refer is made.25

Procedural fairness

[78]     Mr Reekie claimed that the hearing was procedurally unfair because of the failure to disclose camera footage to him.  He said the footage would show that other prisoners covered their cameras from time to time, which was relevant to his defence that the charges were brought in retaliation and inconsistently with the way in which other prisoners were treated.

[79]     The Justice found the material would not be relevant to her decision as to whether Mr Reekie had disobeyed a lawful order as it had been conceded in evidence

24     Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34.

25     At [42] – [59].

that other prisoners covered their cameras from time to time.  Her reasoning on this issue is plainly correct. There was no unfairness in the way she dealt with the issue.

Unreasonableness

[80]     Mr Reekie’s oral submissions in relation to the disciplinary charges provided no basis for finding that the Visiting Justice’s carefully reasoned decision was unreasonable.

Remedy

[81]     I  have  found  that  the  prison  authorities  failed  to  give  proper  notice  of Mr Reekie’s transfer to Spring Hill and of the reasons for it and to give him prompt written notice of the reasons for the directed segregation orders made against him. The effects of these oversights were, of course, relatively short-lived and were of no consequence to the substantive decisions themselves.  They are now well and truly spent.  A remedy will achieve nothing.  In such circumstances, there is no reason to make the declarations sought by Mr Reekie.   The Court’s role is to resolve live

disputes, not to rule on matters that have been rendered of academic importance.26

Result

[82]     The application for judicial review is dismissed.

26     Finnigan v New Zealand Rugby Football Union Inc (No 3) [1985] 2 NZLR 190 (CA); Bennett v

Superintendent, Rimutaka Prison [2002] 1 NZLR 616 at [76] (CA).