Smith v Attorney-General

[2010] NZCA 258

IN THE COURT OF APPEAL OF NEW ZEALAND

CA555/2008
[2010] NZCA 258

BETWEENPHILIP SMITH
Appellant

ANDTHE ATTORNEY-GENERAL
Respondent

Hearing:20 May 2010

Court:Hammond, Arnold and Baragwanath JJ

Counsel:T Ellis and G Edgeler for Appellant
C J Curran for Respondent

Judgment:23 June 2010 at 10 am

JUDGMENT OF THE COURT

A        The several applications for recusal are dismissed.

B        The appeal is dismissed.

C Costs reserved.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No
Introduction  [1]
The recusal issues  [8]
The scope of the appeal  [26]
The expert evidence issues  [31]
The informed consent issues  [42]
The security classification issues  [64]
Invalidity of the Department’s security classification system                 [66]

The security classification decisions unlawfully relied on

Mr T’s impugned psychological assessment  [71]
Unlawful decision makers  [72]
Inadequate reasons given for the seventh, eighth and tenth review
        decisions  [77]
Relief  [84]
Conclusion  [91]

Introduction

[1]       In 1996 Mr Smith was incarcerated at Auckland, on sentence following convictions for a horrific murder, aggravated burglary, various sexual offences, and kidnapping.  From 1996 through until 2004, he was classified as a maximum security prisoner.   

[2]      One consequence of this classification was that Mr Smith was unable to be transferred to a prison in the Wellington region.  Mr Smith’s mother lived in Wellington, and he wished to be nearer to her.  He was eventually transferred to Manawatu Prison in July 2005 after his mother became very ill.  By that time his classification had been revised downwards to high-medium, and in November 2005 his classification was reduced again to low-medium. 

[3]      Notwithstanding the course events have taken over the years leading, eventually, to a much lower classification in 2005, Mr Smith commenced proceedings by way of an application for judicial review of his security classification as a prisoner in the earlier years of his sentence.  The application sought to challenge his earlier classification as “maximum security risk”.

[4]      The first cause of action in the first amended statement of claim related primarily to psychological assessments made of Mr Smith by Mr T in 1999.  Mr Smith maintains in particular that one assessment, he says carried out “on the papers” and without his knowledge, was undertaken without his fully informed consent.  It was therefore in breach of his rights under the New Zealand Bill of Rights Act 1990 (BORA) and unlawful.  The gravamen of the complaint was the alleged reliance, at least in part, on the report of the particular assessment in subsequent decisions on Mr Smith’s security classification.

[5]      The second cause of action attacked 14 decisions reviewing Mr Smith’s security classification carried out between August 1998 and December 2004.  The allegation is that they were unlawful, for various reasons.

[6]      Miller J dismissed the application.[1]

[1]      Smith v The Attorney-General HC Auckland CIV 2005-485-1785, 9 July 2008.

[7]      The appeal to this Court raises, broadly, issues in three areas.  First, it is said that the High Court Judge breached natural justice in the way certain expert evidence was dealt with at the hearing in the High Court.  We will term these the expert evidence issues.  Secondly, it is said that the Judge applied the wrong test in determining whether there was a breach of Mr Smith’s rights.  We will term these the informed consent issues.  Thirdly, there are challenges to various findings the Judge made in concluding that the impugned security classification decisions were lawful.  We will call these the security classification issues.

The recusal issues

[8]      We have first however to deal with a process concern: at the outset of the hearing, Mr Ellis orally requested that the entire panel recuse itself; and failing that, that at least Arnold J should recuse himself.

[9]      We first observe that, as a general proposition, it is inappropriate to make an oral application of that kind at the commencement of a substantive appeal hearing.  Such an application should be made in writing, supported by whatever material is appropriate, in advance of the fixture.  The Court, and the other parties, are entitled to know what is intended to be raised.  And, if the panel is persuaded that it, or some member of it, should recuse, the fixture will then have to go off, which is quite contrary to the public interest in efficient use of a scarce resource.

[10]    Mr Ellis’s first proposition was that the panel had not been chosen by lot so it should stand down.  It is correct that the panel was not chosen by lot. 

[11]    However, Gazette Notice No 48 of 9 April 2009,[2] made under ss 58C(1) and 58E(1) of the Judicature Act 1908, regulates the requisite procedure.  After dealing with the creation of the divisions of the Court, the Notice goes on to provide:

[2]      “Court of Appeal Procedures Adopted” MO No 3024/09 (9 April 2009) New Zealand Gazette.

·Assignment of permanent Judges and/or eligible High Court Judges to panels for the hearing of particular appeals will be by the President who, where appropriate, will consult with other permanent Judges.

·In assigning panels for the hearing of particular appeals and in deciding whether particular appeals should be heard by a permanent division or a CAD, the President may take into account the following considerations:

(a)The forward planning programme and the availability of Judges;

(b)      The equitable sharing of work among the Judges;

(c)       The efficient dispatch of the Court’s business;

(d)The desirability of a prompt hearing in any case of urgency (eg an appeal by an appellant serving a short sentence or an appeal against a pretrial ruling in a criminal case);

(e)Considerations of expense and convenience for counsel and parties, where a decision is required to be made whether an appeal be heard in Auckland, Wellington, or Christchurch;

(f)The role of all the permanent Judges in the clarification and development of all areas of the law and recognition of specific areas of judicial expertise;

(g)That it may be desirable for related litigation (appeals arising out of the same facts between the same or some of the same parties) to be heard by the same or some of the same Judges.

[12]    We add this, as to the mechanics of this exercise in civil cases.  Fixtures in the permanent court are allocated monthly, in advance.  The Judicial Administrator to the President of the Court first circulates to all Judges a copy of the cases proposed to be heard in the relevant month, so that Judges can endeavour to identify any possible conflicts of interest and disqualify themselves at an early date.  This Judicial Administrator then makes up a draft panel list for the month, having regard to the gazetted criteria, and provides it to the President for his or her consideration.  The President then independently reviews that draft and makes the assignments, as contemplated by the Gazette Notice.

[13]    We add that this process is consistent with that employed in the Judicial Committee of the Privy Council, the Appellate Committee of the House of Lords, and the new Supreme Court in the United Kingdom.[3]

[3]Alan Paterson, The Law Lords (University of Toronto Press, Toronto, 1982) at 88; Brice Dickson “The Processing of Appeals in the House of Lords” (2007) 123 LQR 571 at 589; Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford University Press, Oxford, 2009) at 260.

[14]    There are therefore two fundamental objections to Mr Ellis’ first concern that this panel was not drawn by lot.  The first and most important is that a lottery is not what is presently required by law.  And, as has been seen, the process actually used in this Court is not without precedent at the highest level.  Their Lordships – who were acutely aware of the need to comply with art 6 of the European Convention on Human Rights as to “an independent and impartial tribunal” – over time evolved a structure which is very similar to that constructed (independently) by this Court. That is, as required by our statute, criteria are enunciated by the judges as a whole, who then stand aside from the process. An official then employs those criteria to create a draft, but the final selections are made by the Head of Court.

[15]    The second objection is that courts have – whilst appropriately recognising the underlying objective of the necessity for impartiality – to actually function.  All sorts of real life problems have to be accommodated: judges may be sick; judges may have large judgments to write; applications (such as habeas corpus) may be filed that are required by law to be dealt with urgently (and so may have to be allocated to whichever Judges are then available); there are urgent appeals, and so on.  These and other factors have to be recognised or appellants will routinely moulder in jail. Actually getting cases processed is a proper consideration in the design of a scheme that is compliant with rights provisions. 

[16]    Mr Ellis then turned his attention to the particular members of the panel.  Prior to the hearing Justice Baragwanath had disclosed to his colleagues on the panel that his wife, Ms Susan Baragwanath, is a member of the Parole Board.  She had participated in a relatively recent review relating to Mr Smith but that review had nothing to do with any of the matters which fall for our consideration.  The panel took the view, after discussing it collectively, that this matter should be drawn to the attention of counsel.  As the presiding Judge, Hammond J sent a Minute to counsel asking them to raise any concerns.  Mr Ellis confirmed that he had no concerns.

[17]    Mr Ellis’ response to this before us was to complain that the panel should not have met prior to the hearing to discuss this issue.  This is a nonsense.

[18]    First, it is well established in worldwide appellate practice and in the literature (Paterson’s book, already referred to,[4] is as good an illustration as any) that it is entirely acceptable that judges sometimes meet to discuss issues – particularly process issues – arising in a case in order to determine how they might be handled.  If appropriate, these issues are also discussed with counsel. 

[4]      Above n 3.

[19]    Secondly, in principle, discussion between Judges is a good thing from the beginning to the end of a case.  As Lord Reid once said:[5]

You may change your mind off your own bat, or you may change your mind because the respondent has put forward his case in a much better way than you realised was likely, or you may change your mind because of what your colleagues say.  I would think that if you cannot change your mind then you are a pretty bad Judge.

[5]      Quoted in Paterson at 91.

[20]    Thirdly, the Australasian protocol issued by the Council of Chief Justices of Australia (the Chief Justice of New Zealand is also a member), specifically encourages “prior consultation with judicial colleagues”,[6] on recusal issues.

[6]Australasian Institute of Judicial Administration Guide to Judicial Conduct (2nd ed, Australasian Institute of Judicial Administration Inc, Victoria, 2007) at 15-16.

[21]    Mr Ellis then turned his attention to Arnold J.  He complained that Arnold J was Solicitor-General when Mr Smith’s appeal was dealt with in 2003 and so should not sit now.[7]  Arnold J confirmed in open court that he had no involvement in that appeal.

[7]      R v Taito [2003] 3 NZLR 577 (PC).

[22]    Mr Ellis then returned his firing from the hip to the panel.  He said that this panel is not “independent” because of some entitlement matters.  He said that Arnold J, when Solicitor-General, had written a report as to the unequal superannuation entitlements of pre and post-1992 Judges.  He noted that Mr Arnold QC (as he then was) had said there were inequalities and had made certain recommendations for their rectification.  It is unnecessary to recite the details.  Some superannuation adjustments were subsequently made by the administration of the day and are a matter of public record.[8] 

[8]See the Explanatory Memorandum to the Judicial Salaries and Allowances Determination 2003, which explicitly endorsed Mr Arnold’s advocacy for the Judges, in making some adjustments.

[23]    Quite what bearing this has on the present appeal did not seem at all obvious to us.  It appeared that Mr Ellis was somehow suggesting that judges had not protested sufficiently, and that in any event, they are not truly in an independent position because of these perceived inequalities.  What was being advanced overlooks the rather obvious point that judges too are subject to the rule of law.  They may or may not be content with what financial arrangements are made for their retirement, but as with any citizen, they too must obey the law.

[24]    It is offensive, and the presiding Judge felt obliged to say so to Mr Ellis, to suggest that Her Majesty’s judges are inhibited by the sort of concerns raised by Mr Ellis from performing their bounden duty.  Judges do their duty, regardless of whatever private views they may or may not entertain about their entitlements.

[25]    The several applications for recusal are dismissed.

The scope of the appeal

[26]    It is necessary to record another unfortunate feature of this case.  The events which we have to traverse are now of course thoroughly historical.  After the proceedings were commenced (at the height of Mr Smith’s irritation over his security classification) it nevertheless took a good while to advance them.  In fairness to Mr Ellis this seems to have had a good deal to do with problems over legal aid.  The ensuing delay led to the appeal getting out of time. There was also the difficulty that for a period Mr Ellis was overseas. 

[27]    In any event, an application had to be made by Mr Smith for an extension of time for filing of the case on appeal under r 43(2)(a) of the Court of Appeal (Civil) Rules 2005 (the Rules).  Leave was granted by this Court (Hammond, Robertson and Baragwanath JJ) on 22 July 2009, but the Court ordered that “the grounds of appeal are confined to those contained in the notice of appeal”.[9]  This was precisely because cases of this kind notoriously tend to take on a life of their own and the issues to be addressed then become imprecise and inapt for adjudication.

[9]      Smith v Attorney-General [2009] NZCA 321 at [6].

[28]    During the hearing before us Mr Curran protested – and rightly so – that some of the matters sought to be raised before us were not within the notice of appeal and therefore the terms of leave, as granted.  A simple example – it is only one of several – was a reference to certain BORA provisions which were not within the notice of appeal.

[29]    A further complication – which Mr Ellis regards as due to the paucity of legal aid funding – was with deficiencies in the record advanced to this Court.  For whatever reason, a number of items were handed up during the hearing.  Not only is this outside the Rules and contrary to good practice – the general principle is that the record should be settled before the hearing – but also we were routinely left without a proper sense of connection or context to that sought to be put in issue.  Crown counsel had, very fairly, done everything they could do to assist Mr Ellis’ interests.  But the result was that the case on appeal – the appellant’s responsibility – was much less than satisfactory.

[30]    It would not be right to leave this topic without recording that Mr Curran had an admirable grasp of his brief, which was of the greatest assistance to the Court.  This was in marked contrast on some of the precise points of appeal (to which reference will be made later in this judgment) where Mr Ellis had no, or at best only a hazy, recollection of what it was that he had been complaining about in the High Court.

The expert evidence issues

[31]    These issues relate to the evidence of Dr David Wales.  He was the Principal Psychologist of the Psychological Service based in the Auckland office of the Department of Corrections.  He supervised Mr T, a trainee psychologist, who completed the impugned psychological assessments of Mr Smith.  Dr Wales was called by the respondent to give evidence as both a primary witness and as an expert. 

[32]    Mr Ellis objected to the admission of Dr Wales’ evidence.  Mr Ellis’ concern in this regard was aroused by the intituling on Dr Wales’ affidavit.  It read: “AFFIDAVIT OF DAVID SINCLAIR WALES ON BEHALF OF THE RESPONDENT IN OPPOSITION TO JUDICIAL REVIEW” (emphasis added).  Mr Ellis objected on Mr Smith’s behalf that a lack of independence, allegedly implied by the intituling, rendered Dr Wales’ evidence inadmissible as expert evidence.  In the alternative, if the expert evidence was admissible, it was argued that Mr Ellis should have been permitted to cross-examine Dr Wales to establish the degree to which he was independent.  He was permitted to cross-examine him on the “merits” of his affidavit.

[33]    The Judge’s ruling did not in so many words expressly conclude whether or not Dr Wales’ evidence was admissible, although it did by implication: it permitted cross-examination, but not cross-examination as to independence and credentials.  Further, the Judge was not interested “in any suggestion that Dr Wales’ evidence was doctored in any way by counsel”.[10]

[10]Smith v Attorney-General (Judge’s Ruling) HC Wellington CIV-2005-485-1785, 26 May 2008 at [5].

[34]    Mr Ellis claims the Judge erred in the following respects:

·By failing to decide the admissibility of Dr Wales’ evidence.  By so failing, and as a necessary consequence, failing to provide reasons, the Judge breached the appellant’s right to natural justice and inhibited Mr Smith’s ability to appeal.

·By failing to allow cross-examination of Dr Wales on the preparation of his affidavit.

·           By failing to rule Dr Wales’ evidence inadmissible.

[35]    In consequence, it is said for Mr Smith that “the Court’s independence was destroyed”.

[36]    We had a somewhat fruitless exchange with Mr Ellis in relation to this point.  When we sought to get from him precisely what it was he had wanted to ascertain from Dr Wales, but had not been able to pursue, Mr Ellis said that he “could not now remember” what questions he had wanted to ask.  We have to say that this response was hardly propitious.

[37]    Mr Ellis cited Whitehouse v Jordan[11] and referred to the provisions in the High Court Rules 2008 which confirm that an expert witness is not an advocate for the party who engages the witness.[12]

[11]      Whitehouse v Jordan [1981] 1 WLR 246 (HL).

[12]      See in particular r 9.43 and sch 4.

[38]    For the Crown, Mr Curran cited authority for the proposition that an expert witness’ evidence is not inadmissible simply because he or she is associated with one of the parties: Belcher v Chief Executive of the Department of Corrections[13] and Commissioner of Inland Revenue v BNZ Investments Ltd.[14]  Reference was made to the authorities which establish that cross-examination in judicial review proceedings is only rarely allowed and then only when required in the interests of justice.[15]

[13]      Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [97].

[14]      Commissioner of Inland Revenue v BNZ Investments Ltd [2009] NZCA 47.

[15]      See for instance Geary v Psychologists Board [2009] NZSC 67, (2009) 19 PRNZ 415.

[39]    The Crown further suggested that in fact the appellant “declined to pursue his admissibility objection at the hearing”.  For his part Mr Ellis suggested that this was a case in which he had to bow to the inevitable when the Judge made his position – that he thought there was nothing in the objection – quite apparent.  At one point we were invited to obtain a report from the Judge on this issue.  We see no reason to do so. 

[40]    The intituling in itself did not provide Mr Ellis with a sufficient foundation to cross-examine Dr Wales on his independence or lack thereof.  In any event, the admissibility objection had no merit.  Dr Wales made it abundantly clear in his affidavit that he had read the Code of Conduct for expert witnesses in sch 4 to the High Court Rules.  He agreed to comply with it for the purposes of giving evidence on matters within his expertise.  Further, an expert witness’ evidence is not rendered inadmissible because the witness is also a witness as to fact, or is associated with one of the parties.  There is a long line of authority to that effect.[16]  The real issue was under s 25 of the Evidence Act 2006 and that was whether the expert evidence was likely to give the Court substantial help.  Dr Wales’ evidence went to the character of the psychometric measures to be applied to the appellant, the appellant’s test results, and the Department’s psychological report.  It clearly met the requisite standard.

[16]See, as only one example, Belcher v Chief Executive of the Department of Corrections, above n 13 at [97].

[41]    The appeal points under this head are dismissed.

The informed consent issues

[42]    There is at the outset a conceptual problem here.  The first cause of action in the amended statement of claim is somewhat confusing in that it could be asserting two different causes of action.  First, that the relevant assessments of Mr Smith rested (in part) upon the work of an unregistered psychologist (Mr T).  This might be termed a sort of per se unlawfulness.  The other is that Mr Smith did not give a proper informed consent to the psychological testing that was done with respect to him. 

[43]    As a preliminary point it is important to observe that the psychological testing of persons incarcerated in prison might be undertaken for two separate – though they might also overlap – purposes.  If prisoners are to overcome features of their personality or psychological makeup that have caused them to commit the very crimes for which they have been imprisoned, therapeutic assistance is of the greatest moment.  There can also be what we will broadly term “penal consequences”: prisoners might be high risk to themselves or others and have to be placed in stricter supervision on account of their particular characteristics.

[44]    As a general proposition, we have no difficulty accepting that something done for therapeutic purposes should not be utilised for penal purposes without a prisoner understanding the end to which the testing is to be put.  There may well in earlier times have been an inadequate appreciation of the importance of the distinction, but happily in more recent times it has been directly addressed.

[45]    The distinction assists in understanding better what appears to us to be Mr Smith’s real complaint: that an exercise which was initially intended to be therapeutic transmogrified, as it were, into something more.  This is essentially a factual issue, and we need to deal with it in some detail.

[46]    In 1997, Mr Smith had actively sought the assistance of the Department’s Psychological Service to gain insight into the behavioural patterns which had led to his offending.  He wanted to address those patterns so as to reduce the risk of his reoffending upon release.  A report dated 8 April 1998 was produced following an initial consultation with Ms Strang, a departmental psychologist.  This report is not the subject of claim or an issue on appeal.

[47]    Subsequent to that report, the Education Coordinator at Auckland Prison referred Mr Smith to the Psychological Service again.  It was in that context that Mr Smith saw Mr T on 13 October 1998.  Mr T was a trainee psychologist under Dr Wales’ supervision.  He had a psychology degree, but was not yet registered.  The context of the referral was broadly the same as that which led to the prior consultation.  The resultant report noted that “the limits of confidentiality” were explained to Mr Smith.  The Judge found as a fact that it was standard practice for psychologists to explain to prisoners that their reports would be placed on file, with the implication that the reports might be used in making security classification or parole decisions.[17]

[17] At [86].

[48]    During the consultation, Mr T applied the Millon Clinical Multiaxial-III (MCMI-III) personality profiling test.  The Judge summarised Mr T’s conclusions in the report thus:[18]

In his report, [Mr T] concluded that intervention should address Mr Smith’s antisocial sadistic tendencies to improve moral and social behaviour.  Intervention should enhance his cognitive functioning, and work at developing insight and understanding.  He should undertake anger and impulse management programs; he had already attended one such course and found it valuable.  At some point he would have to attend the child sex offender program.  The report noted Mr Smith’s expressions of remorse and positive attitude towards psychological intervention, but observed there was very little evidence of treatment effectiveness with people having antisocial and sadistic problems, beyond better management of their behaviours in an institutional setting.  The report was co-signed by [Mr T] and Mr Wales.

[18] At [18].

[49]    Mr T applied a Psychopathy Checklist-Screening Version (PCL-SV) test on 8 April 1999.  This test is primarily used to screen a subject for psychopathy and may also be a helpful indicator of a person’s propensity to commit serious crime.  Scores within the range of 13-17 indicate that the subject may be a psychopath.  On Mr T’s assessment, Mr Smith rated 16.  Another psychologist, Ms Strang, who as will be recalled had earlier consulted Mr Smith, also applied the test with a score of 15 as the outcome.  Mr T made his assessment on the basis of the information on file, that is, what lawyers and judges might term “on the papers”.  As Miller J records, “it appears that he did not tell Mr Smith” of his intention to apply the test,[19] although it appears that Mr T had intended to use the test for therapeutic purposes in anticipation of his continued involvement with Mr Smith.

[19] At [20].

[50]    The relevance of this report to the fundamental complaint as we conceive it to be is revealed at [22] of the judgment:

It was common ground that the Psychological Service reports of 8 April 1998 and 20 February 1999 would have been placed on the prison file, and were available to anybody carrying out a security classification review.  It is a reasonable inference, as Mr Curran accepted, that those carrying out the reviews did consider those reports, although few of the security reviews refer to them.  There is, however, no basis for concluding that Corrections staff saw the completed PCL-SV checklist, or could interpret it if they did.

[51]    In all, some 14 security classification reviews were challenged.  In all of them the initial recommendation was a classification ranging from low-medium to high-medium.  These recommendations were overridden at a national level through until 2004, and Mr Smith’s classification remained “maximum”.  The inference the appellant sought to have the High Court draw was that the decisions overriding the recommendations, together with later psychological assessments carried out to feed into the decision-making process, were “tainted” by the notes on file of the PCL-SV test, which it was alleged was conducted in breach of Mr Smith’s rights under BORA and was accordingly unlawful.

[52]    The High Court Judge took the allegations very seriously.  He grappled with them carefully.  He, with respect absolutely appropriately, appreciated that the claims could not however be dealt with “in the air” as it were, and had to be squarely confronted on the facts.  It is accordingly important in understanding this case, to appreciate the Judge’s factual conclusions.  Although they are lengthy, we think it appropriate to set them out in full in this judgment.

[53]    The context of those findings was, it will be recalled, that not only did the Judge have Dr Wales’ affidavit, he had also allowed Mr Ellis to cross-examine Dr Wales widely, though not as widely as Mr Ellis had originally contended for.  The Judge found:

[86]     Having heard Mr Wales, I summarise my conclusions on the facts. First, it was standard practice for Corrections psychologists to explain to prisoners that reports would be prepared and that copies of those reports would be placed on the prisoner’s Corrections Department file, such that they would be available to anyone who had reason to consider the file.  That was what was meant by the limits of confidentiality.  It followed, although this probably was not made explicit in Mr Smith’s case, that reports might be used for security classification or parole purposes.

[87]     Second, it is more likely than not that Mr Smith knew when he was interviewed that [Mr T]’s report would be used in that way.  I prefer the Corrections evidence to that of Mr Smith in this regard, for several reasons. Mr Smith must have known that [Mr T] was a trainee psychologist, supervised by Mr Wales in accordance with the normal practice of the Corrections Department.  He had dealt with Ms Strang on the same basis, and the letter he wrote on 11 May 2002 is an admission that he knew what [Mr T]’s status was.  Securing the prisoner’s consent to assessment and treatment was considered an important matter, and it is not likely to have been overlooked.  [Mr T]’s report referred to the limits of confidentiality being explained, as they had been by Ms Strang in 1998 and the psychologist who assessed Mr Smith for sentencing purposes in 1996.  Accordingly, Mr Smith knew a report would be written and would be placed on his prison file, there to be used in security classification reviews.  He had already been subjected to security classification reviews in May and December 1996, December 1997, and July 1998.  The last of those followed Ms Strang’s report of 8 April 1998, and he made submissions in relation to it.  The decision apparently took Ms Strang’s report into account, for it indicated that more psychological profiling was needed to base any future judgment about risks.  The evidence does not establish that Mr Smith was given a copy of the decision, but it seems likely that he was, for Corrections procedure required that he be shown the completed assessment form and given a copy on request.  Finally, I accept Mr Wales’ evidence that it is more likely than not that he did attend Mr Smith’s interview with [Mr T] on 13 October 1998.

[88]     Third, I accept that [Mr T] did not seek Mr Smith’s consent to conduct the MCMI-III or PCL-SV tests.  Mr Smith sought an assessment of the factors that contributed to his offending so that he could be treated, and the psychologists did not think it necessary to discuss with him the tools that they intended to use for that purpose.  He was made aware during the interview that the MCMI-III test was being conducted, and raised no objection.

[89]     Fourth, the purpose of the assessment and testing was therapeutic.  In particular, the PCL-SV was not carried out for Corrections risk assessment purposes.  Had it been, the results would have been analysed and included in a report.  Nor was it intended or used to label Mr Smith.  Rather, I accept Mr Wales’ evidence that the PCL-SV test was carried out to test for psychopathy so that Mr Smith could be treated.  It was followed up with some counselling sessions.  As Mr Smith himself recognised, treatment required that the psychological qualities that contributed to his offending first be identified. Not until 17 April 2001, when Mr Kirker completed his first report, were the scores used in any risk assessment.

[90]     Fifth, Mr Smith may not have been told explicitly that he could withdraw at any time, but he has failed to persuade me that he was unaware he might do so.  On the contrary, [Mr T]’s work was done at his request, so he must have known he was under no compulsion.

[91]     Sixth, there is no substance to the allegation that the results of the tests are suspect.  [Mr T]’s score was very close to that independently obtained by Ms Strang.  The work of both trainees was supervised by Mr Wales, who was trained and qualified in the use of both tests.

[92]     Seventh, Mr Smith was not told that the MCMI-III test had yet to be validated for New Zealand populations, and so he was not in a position to take that consideration into account when submitting to the test.  However, having regard to my conclusion above I do not accept that Mr Smith would have withdrawn his consent had he known that the MCMI-III was not validated. Had the issue arisen, he would have been told that there was nothing improper about the test being carried out before validation, since its absence was taken into account when interpreting the results, which would be clinically useful. For the same reasons I do not accept that he would have refused to undergo PCL-SV screening.

[93]     Eighth, [Mr T]’s work had no impact on any subsequent security classification decisions.  It merely confirmed characteristics that were manifest in the offending itself and in Mr Smith’s attempts to pursue his victim following arrest.  That is why I have recorded the details of the offending at the beginning of this judgment. The same personality traits that were identified by [Mr T] were clearly set out, albeit without the assistance of psychometric testing, in Ms Strang’s report of 8 April 1998.

[94]     Ninth, [Mr T]’s work did not “taint” the work of Mr Kirker and Mr Zuessman.  Both men assessed Mr Smith themselves, reviewing his entire file and conducting interviews with him. Both took the PCL-SV scores into account, but there is no room for an inference that they would have reached different conclusions had they not done so. On the contrary, all of the indicators appeared to point to the conclusions that they reached.  Indeed, an inference is available that Mr Zuessman was sceptical about the PCL-SV scores, thinking them too conservative.  I observe, too, that Mr Kirker recommended that Mr Smith’s security classification be reduced.

[95]     Lastly, it was not necessary to carry out a full PCL-R assessment, for reasons already given. Specifically, it was not needed for [Mr T]’s purposes, and I have found that the PCL-SV scores were not relied on for any other purpose until Mr Kirker completed his first report.  So far as Mr Kirker and Mr Zuessman were concerned, the scores merely tended to corroborate their own clinical assessments.

[54]    In the notice of appeal, his written submissions, and again before us Mr Ellis endeavoured to persuade us that there were here breaches of s 11 of BORA; ss 23(5) and 26 of BORA; and breaches of the Code of Health and Disability Services Consumer’s Rights (COHD).  He took us to the appropriate provisions.  The heart of his concern – and understandably so, if it was supported by the facts – is that, “the right to refuse treatment is meaningless if one does not [know] what or why particular treatments are being undertaken”.  He said that what was required was “fully informed and unequivocal consent”.

[55]    We suggested to Mr Ellis that he would first have to demonstrate that the High Court Judge was wrong on the facts – and show us what the facts really were – before the legal consequences could be articulated.

[56]    We are not at all persuaded, after reviewing such matters as Mr Ellis referred us to, that the Judge was wrong on the facts.  In particular, there was correspondence which does show that Mr Smith knew what Mr T’s status was; and most importantly, that Mr Smith knew that the reports would be placed on his prison file.  Thirdly, and critically to the later security classifications, the Judge found Mr T’s work did not have downstream consequences and taint the work of subsequent assessors who reviewed Mr Smith’s entire file and conducted interviews with him.

[57]    We accept – as for that matter Mr Curran responsibly did – that if Mr Smith lacked any information, it was only that the two kinds of tests administered to him were not validated for New Zealand clinical populations.  It is a fact of life in a small jurisdiction such as New Zealand that in many areas of human and scientific services, tests which professionals consider to be otherwise appropriate have not been expressly normed on New Zealand conditions. 

[58]    But even accepting this as a fair criticism, it is hard to see any factual basis for the argument being advanced for Mr Smith.  Mr Smith did not give evidence on the importance of this information to him, and no expert evidence was called on his behalf to substantiate a criticism under this head.  Indeed, Miller J went so far as to find that Mr Smith would still have consented, even if the technical point had been put to him.  It has to be recalled that the context is that Mr Smith was endeavouring to put himself in a position in which he would have been seen in a better light for parole purposes.

[59]    In these circumstances it is unnecessary and inappropriate for us to consider the undoubtedly difficult issues which can arise under s 11 of BORA.  As this Court has so often had cause to note, this kind of issue cannot be dealt with in the abstract. 

[60]    There is however one s 11 issue on which Mr Ellis made submissions, on which we feel bound to comment.  Perhaps recognising the difficulties that Mr Smith’s claim faced on the facts, Mr Ellis submitted that where allegations of BORA breaches are made in civil cases, the burden of proof should be on the respondent.

[61]    This is a point of general application and requires some response from us.  The authorities are quite clear.  In what might be termed “civil” BORA cases the burden of proof does lie on the party asserting the breach.[20]  This comports with the view taken by the Supreme Court of Canada to alleged Charter breaches.[21]  It is also the view of the authors of the leading texts in New Zealand in this area.[22]  For the avoidance of doubt, we do not here have to go beyond “who has the burden of proof of facts”, which is all we are addressing at this point.

[20]See Brown vAttorney-General [2005] 2 NZLR 405 (CA) at [26], [86], [90] and [98]-[99]; Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [182] per Blanchard J.

[21]Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 at [81].

[22]Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005) at 1095; Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 68.

[62]    That legal issue aside, the High Court Judge did not find it necessary to have to resort to a burden of proof approach.  The Judge identified independent factual bases throughout his findings.  The Judge did not have to resort to a burden of proof type analysis.

[63]    This appeal point also therefore fails, on the facts.

The security classification issues

[64]    The second cause of action concerned 14 security classification decisions made from 1998 to 2004.  As noted earlier, despite initial recommendations in each case that Mr Smith’s classification be downgraded to between low and high-medium, the eventual decision reached was that he be classified as maximum security.

[65]    A number of complaints of errors in Miller J’s judgment were made.

Invalidity of the Department’s security classification system

[66]    This sub-issue is complicated because the systems relating to security classification decisions changed over time.  It is necessary to consider them in each “period”.

[67]    As to the system used between March 1994 and July 1995 (A.08 PPM), Mr Ellis argued that it was invalid because it was not published, and thus contrary to the rule of law.  This is one of the areas where regrettably the claim has enlarged in this Court.  This was never pleaded and thus was not a focus of evidence in the High Court.  Leaving that to one side, Mr McMurray’s affidavit is clear (Mr McMurray being the Assistant General Manager, Operations, Prison Services, Department of Corrections): he deposed that throughout the period under challenge, legal instruments and policy documents on security classification were available to both prisoners and responsible staff.  Mr Smith gave no evidence on this point, so again the claim must fail on the facts.  In any event, A.08 PPM is itself quite transparent.

[68]    The next period is from July 1999 to March 2002, during which Operating Standard 13 (OS-13 1999), applied to the security classification decision.  This is one area where the Full Court of this Court has been critical of departmental documentation.  In Bennett v Superintendent, Rimutaka Prison[23] it considered OS-13 1999 to lack vital substance because it did not define the security classifications.  But the Court declined to issue a declaration because Mr Bennett had since been restored to his previous security classification and the defect was considered “relatively technical”.[24]  The same issues – though with considerably more force – are also operative here.  Mr Smith’s maximum security classification was reduced in November 2004.  It was functionally equivalent to low-medium at the time of the High Court decision and is presently low-medium.  This because the Department responsibly adjusted in response to the criticism from this Court.  This complaint is decidedly technical, late, and now well moot.

[23]      Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA).

[24]      At [76] and [77].

[69]    Between March 2002 and July 2004 OS-13 (2002) was in operation.  The complaint here runs directly counter to other decisions.  In Taunoa v Attorney-General,[25] in the High Court it was held that OS-13 (2002) had remedied the defect in OS-13 (1999) which had been identified in Bennett.  An operational standard was held not to be required to detail how each individual classification would be calculated.  There was no appeal on the point.  It was not challenged in this Court in Taunoa v The Attorney-General.  Unsurprisingly therefore Miller J agreed that OS-13 (2002) was not unlawfully deficient, as he was required to do by the state of the authorities.

[25]      Taunoa v Attorney-General (2004) 7 HRNZ 379 at [278]-[295].

[70]    Another new twist introduced in this Court again goes to publication.  It runs into the same objections as previously identified, plus the fact that OS-13 (2002) itself provides that copies were to be “available ... at all institutions throughout the country, for inspection by inmates”.  The evidence is that it was in fact so available.

The security classification decisions unlawfully relied on Mr T’s impugned psychological assessment

[71]    We have already noted this challenge fails on the facts.  But even if that is wrong, the Judge found that, downstream, Mr T’s work had no impact whatsoever on subsequent security classifications.  It merely confirmed certain other information and was overtaken from April 2001 by independent psychological reports conducted by Mr Kirker and Dr Zeussman.  Their work was in no way “tainted” by that of Mr T.

Unlawful decision makers

[72]    The complaint here is that some of the security classification decisions were made by unlawful decision makers, or by persons who were unlawfully influenced by file notes placed on Mr Smith’s file by Mr McCarthy and Mr Cahill.  These events are said to have constituted improper intervention in Mr Smith’s security classification.

[73]    It would have been possible for Mr McCarthy as the Chief Executive of the Department to reserve security classification decisions about Mr Smith, to himself.  He did no such thing.  He did not want to be involved in Mr Smith’s security classification decisions.  But he did wish to know, in advance, of pending developments in Mr Smith’s classification or transfer status because Mr Smith’s crimes had been so horrendous, and publicly notorious.  In short: Mr McCarthy was following what in bureaucratic language is often referred to as a “no surprises” policy in case there was criticism of the Department.  Mr Cahill’s role was really that of an intermediary in that process.

[74]    Argument was also addressed to s 17B of the Penal Institutions Act 1954.  This was really a prop for the concern already noted.

[75]    OS-13 (1999) was issued under s 17A of the Penal Institutions Act 1954 (repealed) in 1999.  Under it, a prisoner’s initial classification was to be approved by the Chief Executive, but could be and was delegated.  Section 17B contained provisions specifically relating to security classification.  Miller J took the view that s 17B did not reserve exclusive decision making power to the Superintendent.  Each time a relevant power or duty was referred to in s 17B, it was in the sense of the Superintendent had to “cause” something to occur.  In addition, part of s 17B(2) read that on a prisoner’s application for a review of a security classification:

... the Superintendent shall as soon as practicable cause that security classification to be reviewed in accordance with any operational standards issued for the purpose pursuant to s 17A(1) of this Act.  (Emphasis added.)

[76]    There is nothing in this point either.

Inadequate reasons given for the seventh, eighth and tenth review decisions

[77]    To put this issue in context, in Bennett this Court held, consistently with the plain words of s 17B, that written reasons are required to be given for review decisions made by the Superintendent.[26]

[26] Above, n 23 at [79].

[78]    As to the seventh decision, no reasons were given.  The National Office decision maker adopted the recommending officer’s recommendation that Mr Smith be classified as maximum.  Miller J said that it was a reasonable inference that by adopting the recommendation he also accepted its reasoning.

[79]    As to the eighth decision, the Judge appears to have found that the decision maker took into account an irrelevant consideration.

[80]    The tenth decision was given in similar circumstances to the seventh, with the decision maker adopting the reasons of the person recommending the classification.

[81]    Mr Ellis was right that these were errors (certainly at the very least in the case of the eighth decision), and prima facie breaches of natural justice. 

[82]    The difficulty is less with substance than with remedy.  In the context of these reviews being requested regularly (each six months) by Mr Smith, and in circumstances where nothing much seems to have changed in between times, Miller J was disinclined to grant declaratory relief under this head.  The Judge observed that any failure to provide written reasons was practically immaterial: the appellant had already been informed of the central obstacle to a reduction in his classification, namely that his external risk was very high and there was nothing to show it had been mitigated.  Mr McMurray commented in evidence on this recurrent aspect of the National Office reasoning.  There is also the factor that these three decisions (made in 2001 and 2003) are long since moot.  There is no ongoing impact on the appellant.

[83]    Again, it has to be shown on appeal that the Judge was wrong in not granting relief.  We are not persuaded this is so.  We do not wish to be heard as downgrading the importance of reasons in a carceral situation.  But one cannot ignore the reality of Mr McMurray’s evidence that Mr Smith had been made well aware, apart from formal reasons, why his classification system was not changing.

Relief

[84]    It is appropriate to say something further about what was sought in the way of relief in this case.

[85]    On the first cause of action, we pressed Mr Ellis as to what is now sought for Mr Smith.  He responded that points C and D in the particular prayer for relief would suffice: namely, that the results of the PCL-SV and MCMI-III tests and any reference to them should be removed from all departmental files; and that an order in the nature of prohibition be made requiring that the results of these tests not be used in any future reports.  The underlying practical concern here appears to be to avoid any reference to the term “psychopath” lingering, as it were, even if dormant, in departmental files.  Mr Curran told us that the Crown would ensure that the reports resulting from such tests would be confined to a therapeutic file.

[86]    In relation to the second cause of action Mr Ellis responded that what is now sought is F: a declaration that the security classification system operating from 1996 to 2005 was unlawful.  Relief, if granted in those terms, would surely have implications not just for Mr Smith but could conceivably affect many other incarcerated persons or other cases.  Even if it were to be granted, proper judicial caution would have required more finely crafted relief.

[87]    There remains the essential question whether discretionary relief was appropriate at all.  Miller J thought not.  There is no question that the matters which have been canvassed in this judgment are moot in the sense that they have no ongoing impact on the appellant.  Further, the Department’s current security classification system operates in a different legislative environment, under the Corrections Act 2004 and the Corrections Regulations 2005.  The appellant’s security classification system is even more historical than that of Mr Bennett who was denied relief by a Full Court of this Court in Bennett.[27]

[27]      Above at n 23.

[88]    Then too, there has been considerable delay in this whole proceeding.  Proceedings were not filed until September 2005 (some nine years after the first challenged security classification, and almost a year after the last). 

[89]    Further, Mr Smith appears not to have taken any advantage of non-judicial avenues of redress by going to Prison Inspectors, or the Ombudsman.  That too was thought to be a relevant factor by the Full Court of this Court.

[90]      Each was a proper reason to decline declaratory relief.  Taken together they make inevitable the exercise of discretion against the appellant.

Conclusion

[91]    The appeal is dismissed.

[92] The Crown has asked us to reserve costs. It wishes to make submissions. We reserve costs. If the Crown wishes to pursue costs it should file a memorandum within 14 days of this judgment; respondent to have 14 days to reply. Relevant to that question is the appellant’s minor success recorded at [81].

Solicitors:
Nat Dunning Law, Wellington for Appellant
Crown Law Office, Wellington for Respondent