Smith v Attorney-General
[2020] NZHC 1157
•28 May 2020
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 the prison in which the prisoner is detained to bring the prisoner, or to ensure that the prisoner is brought, before the court or, as the case may require, to arrange the attendance of the prisoner for those judicial purposes, as often as is necessary, and the manager must obey the order.
[7] Section 7 of the Courts (Remote Participation) Act 2010 provides that a Judge may allow the use of AVL in a civil proceeding:
7 Use of audio-visual links in civil proceedings
(1)AVL may be used in a civil proceeding for the appearance of a participant in the proceeding if a judicial officer or Registrar determines to allow its use for the appearance of that participant.
(2)A judicial officer or Registrar may make a determination under subsection (1)—
(a)on his or her own motion; or
(b)on the application of any participant in the proceeding.
(3)A determination under subsection (1) must—
(a)be made in accordance with the criteria in section 5; and
(b)take into account whether or not the parties consent to the use of AVL for the appearance of the participant.
[8] Section 5 of the Courts (Remote Participation) Act sets out the criteria a Judge is required to consider under s 7(3)(a), when determining whether AVL may be used:
5 General criteria for allowing use of audio-visual links
A judicial officer or Registrar must consider the following criteria when he or she is making a determination under this Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding:
(a)the nature of the proceeding:
(b)the availability and quality of the technology that is to be used:
(c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—
(i)the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and
(ii)the level of contact with other participants:
(d)any other relevant matters.
[9] I note one case in particular that has considered the same issue, in relation to Mr Smith. In 2017 in Taylor v Attorney-General, Fitzgerald J made an order under s
65(3) of the Corrections Act directing Mr Smith and his co-plaintiff appear in person, for a hearing relating to breaches of BORA.2 Although acknowledging the associated risks in arranging for the transport and accommodation of the plaintiffs, Fitzgerald J noted their security classifications at the time were low to medium.3 In finding that an order was in the interests of justice, Fitzgerald J noted: the case involved an important public law issue; the substantive hearing would involve examination and cross-examination of a number of witnesses, and making submissions over three days; conducting the hearing via AVL would be uncomfortable for the plaintiffs; the hearing was unlikely to run smoothly via AVL, and would lead to practical difficulties with the production of exhibits and other documents; the plaintiffs were representing themselves; and AVL would prejudice the plaintiffs’ ability to confer with one another.4
The factors in s 5 of the Courts (Remote Participation) Act 2010
[10] Before considering whether to grant an order under s 65 of the Corrections Act, I need to first consider whether or not Mr Smith’s appearance should be by way of AVL. As is required by s 7(3)(a), I first consider the criteria in s 5 of the Courts (Remote Participation) Act:
(a)the nature of the proceeding;
(b)the availability and quality of the technology that is to be used; and
(c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding.
The nature of the proceeding
[11] The nature of the substantive proceeding supports the granting of an order that Mr Smith appear in person. It raises an important public law issue. It will require
2 Taylor v Attorney-General [2017] NZHC 2234.
3 At [26].
4 At [27]-[29].
examination and cross-examination of witnesses, and the making of submissions over two days.
[12] The discomfort of the restricted size of the AVL booths at the prison is a key relevant factor. Whilst the spatial restrictions of the AVL booths at the prison do not present problems for the vast majority of prisoners in most appearances via AVL, that is because those appearances are relatively brief and not the matter of some days duration. The length of the proceeding is thus also a relevant factor in favour of Mr Smith appearing in person.
[13] I consider there may be practical issues with the production of exhibits and other documents, particularly during cross-examination. There may also be difficulties facilitating the receipt of the transcript of evidence in the prison environment. This likely puts Mr Smith at a disadvantage, particularly when cross-examining and making his closing submissions.
The availability and quality of the technology that is to be used
[14] The technology to be used is very high quality. From the Court’s perspective, there are no issues intrinsic to the technology alone that would cause disadvantage to Mr Smith. AVL will be able to produce a good quality image of all those in the courtroom to Mr Smith and vice versa. Both Mr Smith and the parties present in Court will be able to hear the proceedings well because the audio quality matches the visual quality of the technology used between the Court and the prison.
The potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding
[15] There are now many cases that have considered the issue of fairness so far as the assessment of credibility and veracity of witnesses when they appear by remote technology is concerned.
[16] In Taniwha v R the Supreme Court considered the issue in the context of a criminal appeal.5 The Court referred to the Law Commission’s discussion paper
5 Taniwha v R [2016] NZSC 121, [2017] 1 NZLR 116.
entitled Evidence Law: Character and Credibility, which highlighted research demonstrating that popular notions regarding demeanour are without foundation.6 The Court set out what a judge in a jury trial might say to the jury about this issue. They said the judge should include reference to the following: whether the witness’ evidence is consistent with the evidence of other witnesses whose evidence has been accepted by the jury; whether the witness’ evidence is consistent with objective evidence such as documents or text messages, and if not the reason given for the inconsistencies; whether the witness has been consistent in their account and if not why not? The court stressed the jury must consider a witness’ evidence in the context of the totality of the evidence in the case.
[17]As Thomas J said in Burden v Debonaire Furniture Ltd:7
[49] Although that decision involved a criminal trial, similar observations apply when it comes to assessing the credibility of a witness in a civil proceeding. In other words, New Zealand courts focus on a critical analysis of the evidence with an emphasis on consistency and how the evidence relates to other material. There is little support for the notion that demeanour is a reliable indicator of credibility. This context is important when considering the observations which have been made in various cases about the potential difficulty in assessing credibility when a witness gives evidence by AVL. A number of the authorities relied on by Mr Hazel predate the Evidence Act and, to that extent, have more limited weight. Many of the more recent authorities on which he relies are Australian cases. It is for this reason that I prefer the guidance of the Supreme Court in Taniwha.
[18] Mr Smith clearly disagrees with the expert witnesses for Corrections in this case. The use of AVL will not diminish his ability to challenge their evidence and to point to any of the matters which he says undermines their credibility by reference to the matters referred to in Taniwha as listed at [16].
[19] Mr Smith is representing himself and therefore considerations concerning the ability to consult with counsel throughout the proceeding and in private are not relevant. Nor does he have any co-plaintiffs or witnesses to interact with during the hearing. These factors weigh against the necessity to have him appear in person.
6 Law Commission Evidence Law: Character and Credibility (NZLC PP27, 1997) as cited in
Taniwha v R, above n 5, at [26].
7 Burden v Debonaire Furniture Ltd [2017] NZHC 1553.
Any other relevant matters
[20] Mr Smith’s history does raise security concerns, which count against the granting of an order allowing him to appear in person. Mr Smith escaped from custody (by way of failing to return from a supervised temporary release form custody) in 2014, leaving New Zealand for Brazil. However, I understand Mr Smith’s security classification is currently low medium.
[21] The impacts of COVID-19 also need to be considered. New Zealand is currently at alert level two, and I make my decision on the basis that all Government announcements indicate New Zealand will not be moving to alert level one until 22 June 2020. Alert level two will thus likely still be in force at the time of the substantive hearing.
[22] The High Court has modified its standard procedures in various ways to avoid the unnecessary movement of prisoners. Corrections too have been vigilant, and at an earlier time quarantine restrictions could have attached to Mr Smith’s appearance in Court in person. I understand Corrections’ current practice would not now require Mr Smith to spend 14 days in isolation following his return to prison, so long as he has not had contact with a confirmed or suspected case of COVID-19 and has been wearing the appropriate personal protective equipment (PPE).
Do the parties consent to the use of AVL?
[23] As required by s 7(3)(b) of the Courts (Remote Participation) Act, I take into account that Mr Smith does not consent to appearing by way of AVL. However, I note his lack of consent is not a determinative factor, and the Court retains the discretion to determine whether a hearing via AVL is appropriate even if the participant who is to appear via AVL does not consent.8
Conclusion
[24] For the reasons discussed above at [11]-[13] and [22] I do not consider it appropriate to conduct the substantive hearing with Mr Smith appearing by way of
8 Smith v Chief Executive of the Dept of Corrections [2019] NZHC 2314 at [27].
AVL. I consider it is in the interests of justice that Mr Smith is able to appear in person. Accordingly, I make an order under s 65(3) of the Corrections Act directing the manager of Rimutaka Prison to bring Mr Smith before the Court at the hearing on 9 and 10 June 2020.
Costs
The law
[25] Under s 65(4) of the Corrections Act, if an order is made in a “civil proceeding” the Court must require the prisoner to deposit a sum to meet the costs of their appearance. In “any other proceeding”, the Court has discretion to order a deposit:
65 Removal of prisoner for judicial purposes
…
(4)The court or Judge or Registrar making any order under subsection
(3) must, if the order is made in a civil proceeding, and may, if it is made in any other proceeding, require any person applying for the order to deposit a sum sufficient to pay the expenses of bringing the prisoner before the court or, as the case may require, arranging the attendance of the prisoner for judicial purposes, and returning the prisoner to the prison in which he or she is required by law to be detained.
[26] Fitzgerald J considered this provision in Taylor.9 She noted the Supreme Court and Court of Appeal’s conclusions that proceedings against the Crown in relation to BORA are not regarded as actions in tort, but are sui generis public law actions.10 If the term “civil proceeding” in the context of s 65(4) is given a wide interpretation, so as to require costs in these types of cases, prisoners could be denied the right to have their case heard if they do not have the financial means to pay for their attendance.11 She also noted the requirement in s 6 of BORA to prefer a rights-consistent interpretation of an enactment where possible, and the rights to justice contained in s 27.
9 Taylor v Attorney-General, above n 2, at [33], citing the approach of Wylie J in Smith v Attorney- General HC Auckland CIV-2016-044-1599, 28 February 2017 (Minute).
10 Taylor v Attorney-General, above n 2, at [33], citing Simpson v Attorney-General [Baigent’s case] [1994] 3 NZLR 667 (CA); Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429; Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.
11 Taylor v Attorney-General, above n 2, at [33].
[27] Fitzgerald J held sui generis public law actions against the Crown are “other proceedings” for the purposes of s 65(4) of the Corrections Act, meaning a Judge has discretion as to whether a prisoner must deposit a sum to meet the expenses of their appearance in court.12
[28] Fitzgerald J held it was not appropriate to order the plaintiffs to deposit a sum sufficient to meet the expense of their appearance, having found it was in the interests of justice that they appear before the Court, and the plaintiffs were likely to have limited resources due to the length of time they had spent in prison.13
Discussion
[29] I apply this interpretation to s 65(4), and treat the substantive proceeding as “other proceedings”. Given I have found it is in the interests of justice that Mr Smith appear in person, I do not consider it appropriate to order him to deposit a sum sufficient to pay the expense of his appearance.
Result
[30] I 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 at the hearing on 9 and 10 June 2020.
[31] I decline 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.
Doogue J
Solicitors:
Crown Law, Wellington
12 At [34].
13 At [36].
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