Smith v Attorney-General - [2020] NZHC 1157

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-000133

[2020] NZHC 1157

BETWEEN
PHILLIP JOHN SMITH

Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

Hearing: 28 May 2020 (by telephone)

Appearances:

Plaintiff in person

D Jones for the Defendant

Judgment:

28 May 2020

JUDGMENT OF DOOGUE J

[As to mode and costs of appearance]

Introduction

[1] The plaintiff, Mr Smith, is currently a serving prisoner. The defendant is the Attorney-General, sued on behalf of the Chief Executive of the Department of Corrections (Corrections) pursuant to s 14(2)(c) of the Crown Proceedings Act 1950.

[2] It is Mr Smith’s case that certain legislation creates a public law duty on Corrections to provide rehabilitation programmes to prisoners serving an indeterminate sentence.1 Mr Smith alleges Corrections have failed to provide him with the necessary treatment programmes, in breach of this public law duty. He alleges this has resulted in his arbitrary detention, in breach of ss 22 and 23(5) of the New Zealand Bill of Rights Act 1990 (BORA). Mr Smith seeks declaratory relief, an order in the nature of mandamus requiring Corrections to provide the relevant treatment

1 Mr Smith relies on provisions in the Corrections Act 2004, Sentencing Act 2002, Parole Act 2002, New Zealand Bill of Rights Act 1990, and the International Covenant on Civil and Political Rights.

SMITH v THE ATTORNEY-GENERAL [2020] NZHC 1157 [28 May 2020]

programmes to him, and compensation for not having done so. A substantive hearing of his application is set down for 9 and 10 June 2020.

[3] The current application concerns whether Mr Smith should appear in person or by way of audio-visual link (AVL) from Rimutaka Prison for the substantive hearing. Mr Smith will represent himself, and he wishes to appear in person. He requests that the Court make an order under s 65(3) of the Corrections Act 2004, directing the manager of Rimutaka Prison to bring Mr Smith before the Court and further that he not be required to pay any expenses on his appearance.

[4] Mr Jones for Corrections advised whilst he did not have instructions to consent to the orders sought, he did not anticipate any difficulties in facilitating Mr Smith’s appearance in person now that New Zealand is on COVID-19 alert level two.

[5] Given Mr Jones did not have instructions to consent to the making of the orders sought, both parties require a judgment from this Court for the sake of certainty.

Is the use of AVL appropriate?

The law

[6] Section 65(3) of the Corrections Act provides that a Judge may direct that a prisoner appear in person, where the interests of justice require the prisoner’s attendance for judicial purposes:

65 Removal of prisoner for judicial purposes

…

(2)Subsection (3) applies if—

…

(b)in any other case, the interests of justice require the attendance for judicial purposes of a prisoner.

(3)If this subsection applies, any court or Judge or Registrar may, by order in writing, direct the manager of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Attorney-General

Details

AGLC: Smith v Attorney-General [2020] NZHC 1157
Case: [2020] NZHC 1157
Decision Date: 28 May 2020

CaseChat Overview and Summary

In Smith v Attorney-General, the plaintiff, Mr Smith, a serving prisoner, sought an order for his appearance at a substantive hearing in the High Court. Mr Smith sought to appear in person rather than via an audio-visual link (AVL) from Rimutaka Prison. The court had to decide whether Mr Smith's appearance in person was appropriate under the relevant legislation and whether he should be required to deposit a sum to meet the costs of his appearance.

The court considered the nature of the proceeding, the availability and quality of the technology to be used, and the potential impact of the use of technology on the effective maintenance of the rights of other parties to the proceeding. It noted the importance of the public law issue, the length of the proceeding, and the potential difficulties in using AVL for the production of exhibits and other documents. The court also considered the security concerns and the impacts of COVID-19. Although Mr Smith did not consent to appearing via AVL, the court retained the discretion to determine whether a hearing via AVL was appropriate.

The court found it was in the interests of justice for Mr Smith to appear in person. It made an order under s 65(3) of the Corrections Act 2004 directing the manager of Rimutaka Prison to bring Mr Smith before the Court at the hearing on 9 and 10 June 2020. The court declined to make an order under s 65(4) of the Corrections Act 2004 requiring Mr Smith to deposit a sum sufficient to pay the expenses of his appearance before the Court.

The court's decision was based on the importance of the public law issue, the length of the proceeding, the potential difficulties in using AVL, and the consideration of the security concerns and the impacts of COVID-19. The court also took into account Mr Smith's lack of consent to appearing via AVL, although it noted that his lack of consent was not a determinative factor.

Orders