Smith v Chief Executive of the Department of Corrections

[2019] NZHC 2314

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-138

[2019] NZHC 2314

BETWEEN

PHILLIP JOHN SMITH

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	26 June 2019
Appearances:	Applicant in Person (via AVL) J B Watson for the Respondent
Judgment:	13 September 2019

JUDGMENT OF CULL J

[As to mode of appearance]

[1]    Mr Smith is presently a serving prisoner. A journalist made a request to the Deputy Chief Executive of the Department of Corrections (Corrections) for an interview with Mr Smith in prison. The request was declined. Mr Smith seeks to judicially review this decision on the basis it was unlawful, unreasonable, breached the New Zealand Bill of Rights Act 1990, and failed to consider mandatory considerations. Mr Smith will be representing himself. A substantive hearing date has been set down for 23 September 2019.

[2]    The present application is concerned with whether Mr Smith should appear in person or by audio-visual link (AVL) to argue his case before this Court. As a self- represented litigant, Mr Smith has indicated he wishes to appear in person and does not consent to AVL  being used.  He submits the Court should make an order under   s 65(3) of the Corrections Act 2004 directing the manager of the prison to bring him

SMITH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2314 [13
September 2019]

to Court to appear in person. Corrections opposes this request for an order to produce, instead indicating this Court should make an order Mr Smith appear by AVL under s 7 of the Courts (Remote Participation) Act 2010.

Appearance

[3]    The Corrections Act 2004 governs prisoners’ courtroom attendances. Section 65(3) of that Act provides that a Court may make an order directing the manager of the relevant prison to ensure the prisoner can attend court. Section 65(2) provides for the circumstances in which a s 65(3) order may be made. In this case, a s 65(3) order may be made if Mr Smith’s attendance in court for judicial purposes is in the interests of justice.1 If an order is made under s 65(3) that a prisoner is to attend in Court for judicial purposes, the Judge must make an order, if it is a civil proceeding, for the prisoner to deposit a sum sufficient to pay the expenses for bringing the prisoner to and from the Court.2 “Expenses” is defined as “the prisoner’s maintenance and custody from the time the prisoner leaves the prison until the time he or she returns”.3

[4]    The provisions dealing with AVL in civil proceedings are set out under the Courts (Remote Participation) Act 2010. Because they are of particular relevance to this determination, I set out s 7, followed by s 5.

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.

1      Corrections Act 2004, s 65(2)(b).

2      Section 65(4).

3      Section 65(5).

[5]The mandatory criteria for a determination under s 7(1) are contained in s 5:

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.

[6]    Additional criteria for allowing use of AVL in criminal proceedings are contained in s 6, but these have no relevance to the present proceedings.

[7]    A Judge is able to make a determination as to whether a participant will appear by AVL on its own motion or on application of “any participant”.4 This Court has interpreted s 7(2)(b) and the meaning of the word “participant” in a number of cases. In some cases, a “participant” has been defined narrowly to mean a person applying for an order to appear by way of AVL in relation to his own participation in the proceeding.5 In another, where a prisoner agreed to appear at a strike-out hearing by AVL but withdrew his consent shortly beforehand, the hearing proceeded without the participant appearing in person.6 Each of those cases were determined on their specific facts, while having regard to the differing approaches in the other authorities.7

4      Courts (Remote Participation) Act 2010, s 7(2).

5      Taylor v Manager of Auckland Prison [2012] NZHC 1241 at [63]; Taylor v Attorney-General

[2017] NZHC 2234 at [23].

6      Harriman v Attorney-General [2015] NZHC 3196.

7      Taylor v Attorney-General, above n 5, at [30].

[8]    As each side advocates for a different mode of hearing and no formal application for AVL has been, nor can be, made by Corrections, the most appropriate way to approach this issue is to assess whether it is in the interests of justice for Mr Smith to attend Court in person, with reference to the s 5 criteria set out above.8

The nature of the proceeding

[9]    Mr Smith submits the present proceedings involve important public law issues, including the right to the freedom of expression.9 Freedom of expression has been recognised as having “a very high value” attached to it.10

[10]   The substantive proceedings in this case involve the review of Corrections’ decision to decline permission for a reporter to interview Mr Smith in prison. Similar issues have been raised in two separate decisions of this Court.

[11]   In Watson v Chief Executive of the Department of Corrections, Corrections’ refusal to permit a journalist to conduct a face-to-face interview with Mr Watson was held to be unreasonable and quashed, with a direction that it reconsider the application for permission.11 Subsequently, Corrections allowed the journalist, Mr White, to attend a meeting as a facilitator between Mr Watson and Mr Hope, the father of the victim. However, it did not permit Mr White to record the interview, nor write an article about it. Again, this Court held Corrections’ refusal to be unreasonable, and quashed its decision.12 The issues, therefore, of a prisoner’s right to free expression and any justifiable fettering of that right has been canvassed in these two substantive judicial review hearings.

[12]   Mr Smith’s substantive hearing in this matter has been estimated by him to be one day and by Corrections to be half a day. This contrasts markedly with Taylor v Attorney-General where the Court held it was in the interests of justice for Mr Taylor

8      Taylor v Attorney-General, above n 5.

9      New Zealand Bill of Rights Act 1990, s 14.

10     Jennings v Buchanan [2005] 2 NZLR 577 (PC) at [6].

11     Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227, [2015] NZAR 1049 at [69]–[70] and [77].

12     Watson v Chief Executive of the Department of Corrections [2016] NZHC 1996, [2016] NZAR 1264 at [51] and [55].

to present his case in person.13 That case was described by Fitzgerald J as involving an important public law issue, requiring examination and cross-examination of a number of witnesses and making submissions over, potentially, three days.14

[13]   This matter is to proceed on the affidavit evidence filed. There is no examination or cross-examination of witnesses. The substantive hearing will focus on the legal issues arising from the claim and will be relatively straightforward as, indeed, this hearing was before me.

[14]   I consider the nature of the proceeding does not, on its face, favour Mr Smith appearing in person.

The availability and quality of the AVL technology

[15]   Mr Smith contends that the matter is going to be a one-day hearing and will be substantive. Although not in a judgment, he points to the minute of Fitzgerald J in Taylor v Attorney-General when she said:15

(a)        … [T]he present fixture … is a full day hearing and the hearing of the substantive application in this proceeding.

(b)        Finally, while I do not accept Mr Smith’s position that there are significant issues with AVL, given AVL hearings of some duration regularly take place in this Court with no technical or similar issues arising, they can crop up from time-to-time. Accordingly, and primarily on the basis of the duration of this fixture, I consider the risk of potential technical issue [sic] weighs slightly in favour of Mr Smith’s personal appearance.

[16]   Mr Smith submits the same issues arise in this case. Corrections submits that there are dedicated AVL rooms in the prison in which Mr Smith resides. Mr Smith has, in fact, recently used these facilities to appear in a judicial review with no technical issues.16

[17]   I do not consider the availability and quality of the AVL technology weighs in favour of Mr Smith appearing in person before the Court. AVL has been used recently

13     Taylor v Attorney-General, above n 5, at [29].

14 At [27].

15     Taylor v Attorney-General HC Auckland CIV-2016-404-2269, 27 June 2018 (Minute).

16     Smith v Attorney-General [2019] NZHC 835.

by Mr Smith in a previous proceeding lasting a day with no technical issues. Corrections gave a further example where Mr Smith consented to a two-day judicial review hearing by AVL last year, in which he successfully made out the review claims. The present hearing itself took half a day and again there were no technical issues.

[18]   In these circumstances, I am satisfied that the availability and quality of the AVL technology is sufficient and weighs in favour of its use.

The impact of AVL on the rights of the parties

[19]   Mr Smith submits AVL will substantially impact his ability to engage in the proceedings. Specifically, he will not have immediate access to any documents handed up by Corrections. He also argues that if a McKenzie Friend is appointed he will be unable to confer with them during the hearing. Nor will he be able to confer, on his argument, with Corrections on material matters. He acknowledges that, as of yet, no application to cross-examine has been made. In all, he submits these matters are prejudicial to his fair hearing rights.17

[20]   Corrections submits that the proceedings are likely to be wholly legal and short, lasting only one day. There are no issues relating to the examination of witnesses nor the assessment of evidence in relation to the same, which are likely to arise in these proceedings. The impact of AVL being used is, therefore, minimal.

[21]   As noted above, the substantive hearing is a judicial review proceeding involving legal argument only. In the previous cases where the Court has determined an appearance in person was appropriate in the interests of justice to ensure that the plaintiffs were able to present their case adequately, they involved viva voce evidence, cross-examination of witnesses, and the possibility that the plaintiffs would be appearing from two separate AVL suites in one case.18 In the other, Mr Taylor was represented by counsel but was present by AVL to observe what occurred, with substantial background noise presenting a distraction to the hearing.19

17     New Zealand Bill of Rights Act 1990, s 27.

18     Taylor v Attorney-General, above n 5, [27]–[28].

19     Taylor v Manager of Auckland Prison, above n 5, at [57].

[22]   By way of contrast in this case, Mr Smith does not anticipate that any witnesses will need to attend the hearing or be cross-examination and the quality of AVL, as experienced in this hearing, does not engender concerns or require different considerations for a fair and adequate opportunity for Mr Smith to present his case by AVL.

[23]   Each case must be determined on its facts and circumstances. I do not consider an AVL hearing in the context of this case, which requires legal submissions only, will present the same practical difficulties as a hearing with oral evidence. The issues are legal ones, which have already been canvassed in previous decisions, and I am satisfied that AVL will provide Mr Smith a fair opportunity to be heard.

[24]   For these reasons, I do not consider Mr Smith’s proceedings will be unfairly impacted by the use of AVL in these proceedings.

Other matters

[25]   Mr Smith does not consent to the use of AVL for his appearance.20 This raises two issues. First, Mr Smith argues that the Court will be compelling him to attend the hearing of this proceeding by AVL if the Court makes such a determination. He submits this Court has questioned whether s 7 provides the courts with the jurisdiction to do so.21

[26]   Under s 7 of the Courts (Remote Participation) Act 2010, s 7(1) enables a judicial officer or a Registrar to determine whether AVL may be used in a civil proceeding for the appearance of a participant in the proceeding. In this case, the participant is Mr Smith.22 Under s 7(2), a judicial officer or Registrar is empowered to make a determination on the use of AVL in civil proceedings on the application of any participant in the proceeding,23 or on its own motion.24 This enables the Court to

20 Courts (Remote Participation) Act 2010, s 7(3)(b).

21 See Taylor v Attorney-General, above n 5, at [24]–[25]; Taylor v Manager of Auckland Prison, above n 5, at [62]-[64].

22 In Taylor v Manager of Auckland Prison, above n 5, at [63], “participant” was interpreted to mean the party that wishes to appear by AVL. In that case, the application to compel another person to attend the hearing was rejected. In Taylor v Attorney-General, above n 5, “participant” was further considered at [23]–[24].

23     Section 7(2)(b).

24     Section 7(2)(a).

direct attendance by AVL, which is consistent with the legislative framework in ss 5 and 7 of the Act.

[27]   Second, the consent of the parties is specifically referred to in s 7(3)(b) as a matter to be taken into account in making a determination under s 7(1). Although consent is a mandatory consideration to be taken into account, consent is not a determinative factor. I consider ss 5 and 7 contemplate situations where the Court may, on its own motion, direct that AVL be used in certain proceedings even where the participant who is to appear by AVL does not consent. The Act envisages that the Court retains the discretion in such situations to determine whether AVL is the appropriate method of appearance, taking into account the s 5 criteria, the s 7 considerations, and what is in the overall interests of justice.

[28]   I have weighed the s 5 considerations and taken into account the respective parties’ positions on consent. Mr Smith does not consent to AVL, but Corrections does. Although Mr Smith’s current security risk is assessed as low, there is still a requirement on Corrections to ensure officers are available to transport and secure Mr Smith to and from Court, if his personal attendance is required. The overriding consideration is that Mr Smith has a fair and reasonable opportunity to present his case. I am satisfied that his appearance by AVL for this particular hearing meets that opportunity and the use of AVL in this case is in the interests of justice for both parties.

Conclusion

[29]   I do not find that the interests of justice require Mr Smith to appear in person before the Court for the substantive hearing on this matter. I therefore make a determination under s 7(2)(a) of the Courts (Remote Participation) Act 2010 that AVL may be used in the hearing of this matter for the appearance of Mr Smith. In light of this finding, I do not need to address the costs of appearance.

[30]   I observe, as did Fitzgerald J in Taylor v Attorney-General,25 that this conclusion does not mean that all judicial review proceedings of this nature should

25     Taylor v Attorney-General, above n 5, at [30].

occur by AVL rather than in person. This is a nuanced area, and each decision will be fact-specific.

Result

[31]   I decline to make an order under s 65(3) of the Corrections Act 2004. I direct under s 7(1) of the Courts (Remote Participation) Act 2010 that AVL may be used for the appearance of Mr Smith in the substantive judicial review proceeding.

Cull J

Solicitors:

Crown Law, Wellington for the Respondent