Smith v Legal Services Agency HC WN CIV 2009-485-1781

[2010] NZHC 103

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2009-485-1781

UNDER  the Legal Services Act 2000

IN THE MATTER OF     an appeal from a decision of the Legal Aid

Review Panel

BETWEEN  PHILLIP SMITH Appellant

ANDLEGAL SERVICES AGENCY Respondent

Hearing:         28 January 2010

Counsel:         T Ellis for Appellant

G D S Taylor for Respondent

Judgment:      8 February 2010

RESERVED JUDGMENT OF RONALD YOUNG J

Introduction

[1]      In 1996, the appellant (Mr Smith) was sentenced to life imprisonment (with a

13  year  minimum  period)  for  murder.  In  a  decision  delivered  on  9  July  2008, Miller J   rejected   Mr Smith’s   attempt   to   judicially   review   his   prison   security classification undertaken by the Department of Corrections (Smith v Attorney-General HC Wellington CIV-2005-485-1785, 9 July 2008).

[2]      Mr Smith wanted to challenge Miller J’s decision.   He filed an appeal in the

Court of Appeal and sought legal  aid. He  was  refused  legal  aid  by  the  Legal

Services Agency (the Agency) and also on review by the Legal Aid Review Panel

PHILLIP SMITH  V LEGAL SERVICES AGENCY HC WN CIV-2009-485-1781  8 February 2010

(the  Panel).   These  proceedings  are  therefore  Mr Smith’s  appeal  from  the  Panel’s decision to confirm the Agency’s refusal to grant aid for his appeal.

[3]      Section 59 of the Legal Services Act 2000 (the Act) restricts such appeals to questions of law.

[4]      Mr Smith identified the two questions of law for this Court as:

a)        the Panel was wrong in accepting that the ruling made by Miller J in respect of cross-examination of the Department’s expert witness was reasonable (paragraph 44);

b)the  Panel  was  wrong  to  conclude  that  the  costs  of  an  appeal  to determine   the   issue   of   informed   consent   could   not   be   justified (paragraph 47).

[5]      However,   the   appellant   accepted   that   the   respondent’s   recast   of   his submissions more accurately reflected his grounds of appeal.  They are:

(a)      LARP erred in law in “applying” s 9(4)(e) of the 2000 Act by    (i)      “accepting”        that   Miller J’s    ruling   on   cross- examination  was  “reasonable”  and  (ii)  concluding  that  the costs of an appeal to determine the issue of informed consent “would not be justified” – Appellant’s submissions, paras 25 and 26.

(b)LARP  was  “wholly  unreasonable”  in  its  conclusion  on  the matter in sub-para 8(a)(i) (“Everyone has the right to expect that every trial will be conducted on an independent basis”)

– Appellant’s submissions, paras 101-102.

(c)LARP erred in the matter in sub-para 8(a)(ii) because on the submissions in relation to Miller J’s decision (1) it was never possible  for  the  Appellant to  give  [informed]  consent,  and, (2)   if   he   did,   a   reasonable   person   would   not   expect information  to  be  used  for  security  rating  –  Appellant’s submissions, paras 103-104.

(d)      LARP  failed  to  “appreciate”  the  seriousness  of  the  issues, which would be the first “real opportunity” for the Court of Appeal to rule on NZBORA, s 11 – Appellant’s submissions, paras 105-106.

(e)Appellant’s submissions, para 70 in effect only reinstate the proposition in sub-para 8(d).

Background

[6]      To   understand   these   appeal   grounds,   some   background   information   is necessary.    A  useful  summary  of  Mr Smith’s  challenge  to  Corrections’  decisions regarding his security classification can be found in Miller J’s decision as follows:

[1]       Mr Smith was sentenced on 16 August 1996 to life imprisonment, with  a  minimum  non-parole  period  of  13  years.   He  spent  the  next  eight years  in  maximum  security  at  Auckland,  despite  13  reviews  in  which  the prison staff responsible for managing him frequently recommended that his security  classification  be  reduced. Had  it  been,  he  would  have  become eligible  for  transfer  to  the  Wellington  region  where  his  mother  lived,  and where his offences were committed.

[2]      When Mr Smith’s classification was finally reduced to high medium

in  November  2004,  following  a  14th  review,  the  Superintendent  placed  a manual  override  on  his  file,  precluding  a  transfer  to  Wellington.   He  was finally transferred to the Wellington region in July 2005, when his mother was  very  ill.   He  is  now  held  at  Hawkes  Bay  Regional  Prison,  where  his security classification is AB, corresponding to low medium under the former classification system.  He will attain eligibility for parole in 2009.

[3]      Mr   Smith   complains   that   his   maximum-security   classifications resulted  from  an  assessment  by  a  trainee  psychologist,  Tavita  Tofi,  who carried out psychological screening tests on him without his fully informed consent. Those  tests  were  the  Millon  Clinical  Multiaxial  Inventory-III (MCMI-III) and Psychopathy Checklist Screening Version (PCL-SV).   The PCL-SV test was administered without his knowledge.   The MCMI-III test suggested   that   Mr   Smith   was   unrevealing   and   secretive   in   reporting difficulties, that he could be cruel, malicious and callous, and that he might act for self-interest only, without regard for others.   The PCL-SV checklist scores  were  not  reduced  to  any  report  at  the  time,  but  later  psychological reports   examined   Mr   Smith’s   scores,   concluding   that   they   raised   the possibility that he had psychopathological traits and suggested his self-report might not be taken at face value.

[4]      Mr Smith contends that lay staff involved in processing his security classification reviews relied on the MCMI-III and PCL-SV tests.  He says he was never told that the tests might be used in this way.  Nor was he told that neither test had been validated with New Zealand populations.

[5]      In a second cause of action, Mr Smith complains that the 14 reviews carried  out  between  August  1998  and  December  2004  were  unlawful  for various  reasons.    In  particular,  those  who  made  the  decisions  lacked authority to do so, operational standards under which they were made were “void  for  vagueness”,  and  senior  managers  in  the  Corrections  Department unlawfully  interfered  in  his  security  classification  decisions.   Three  of  the decisions were not accompanied by reasons.

[7]      Miller J’s  conclusions  can,  as  relevant  to  this  case,  be  summarised  in  this way:

a)        it is standard practice for  Corrections  psychologists  interviewing inmates to tell the inmates that any reports prepared as a result of the discussions will be placed on the prisoner’s file and will be available

to anyone who has access to the file.  The Judge was satisfied that this proposition would have been explained to Mr Smith, but accepted that

he was probably not explicitly told that the reports could be used for security  classification  and  parole  purposes. The  Judge  concluded, however,  that  it  was  more  likely than  not  that  Mr Smith  understood that these reports could be used for security classification and parole purposes;

b)        Mr Smith knew Mr Tofi was a trainee being supervised by Mr Wales,

a senior Corrections psychologist;

c)        specific consent to conduct the two tests, MCMI-III and PCL-SV, was not sought.   However,  given Mr Smith had sought an assessment of the factors which contributed to his offending the psychologists who undertook  the  assessments  did  not  think  it  necessary  to  discuss  the particular   tools   used   to   assist   them   in   assessing   the   factors contributing  to  his  offending.     The  assessment  was  undertaken  for therapeutic  purposes  and  not  to  assess  Mr Smith’s  risk.  Despite claims to the contrary, Mr Tofi did not label Mr Smith a psychopath;

d)although  Mr Smith  may  not   have  been   explicitly  told  he  could withdraw  from  the  process  at  any  time,  given  the  assessment  was being done at Mr Smith’s request, he must have known he was under no compulsion and could do so.   There was nothing to establish that the results of the testing were suspect;

e)        the  MCMI-III  had  not  been  validated  for  New Zealand  populations, and  Mr Smith  had  not  been  told  this.          However,  the  Judge  was

satisfied  that  had  it  arisen,  Mr Smith  would  have  been  told  that  the test was clinically useful and there was nothing improper about using the test in this way.  There is nothing to suggest that Mr Smith would have withdrawn his consent had he known of this;

f)            finally, and most importantly, Mr Tofi’s work had no impact, in fact, on any subsequent security classification decisions but merely confirmed   Mr Smith’s characteristics   which   were   already   clear. Mr Tofi’s work did not taint the work of any other assessors.

[8]      In Miller J’s assessment, his factual findings essentially disposed of the first cause  of  action.           However,  he  went  on  to  consider,  essentially  as  an  alternative, informed consent in s 11 of the New Zealand Bill of Rights Act 1990 (BORA).  He found  that,  given  Mr Smith  had  sought  the  assessment  and  knew  any  resulting reports  would  be  placed  on  his  file,  the  consent  he  had  given  was  sufficiently informed for that purpose.

[9]      The second cause of action challenged the validity of 14 individual security classification reviews.   The Judge was satisfied that those reviews were undertaken

by those with proper authority and undertaken appropriately.

[10]     Two   further   matters   were   raised   by   Mr Smith   before   Miller J. First, Mr Smith argued that the onus in civil claims under BORA lay on the respondent. Miller J rejected that approach.   Secondly, Mr Smith had sought an order (pre-trial) to  allow  cross-examination  of  Mr  Wales  who  was  a  witness  of  fact  and  an  expert witness.  This was allowed in part, but not as to credibility.  Mr Ellis argued that Mr Wales was not a neutral or independent witness, given he worked for Corrections, that he was a witness of fact and that his affidavit was headed “in opposition” and “on  behalf  of  the  respondent”  thus it was said his evidence  was  inadmissible. Miller J rejected these challenges.

Agency and Panel decisions

[11]     After  the  Agency  initially  denied  Mr Smith  legal  aid,  he  applied  for  a reconsideration. He  was  unsuccessful. As  to  Mr Wales’  evidence,  the  Agency observed  that  the  Judge  allowed  Mr Wales  to  be  cross-examined,  and  there  was nothing in  the  objection  to  Mr Wales  giving evidence  as  an  expert  witness.   They observed that it was quite common for a witness of fact to also be an expert and that admissibility of expert evidence depended upon the expertise of the witness, and not any challenge to his or her independence.   This went to the weight of the evidence. They concluded therefore that an appeal based on a challenge to this aspect would be unlikely to succeed.

[12]     As to the question of informed consent, the Agency said Miller J’s findings

of fact dispose of the issue of consent and as such the s 11 issue was academic and the cost of an appeal was not justified.  They considered there was no real possibility

of challenging Miller J’s factual conclusions on appeal.

[13]     As to the onus in BORA claims, the Agency considered there was little value

in an appellate Court decision given there was no reason to support a reverse onus claim   for   BORA   proceedings   and   Mr Smith   had   already   had   his   security classification reduced.

[14]     As  to  the  second  cause  of  action,  the  Agency  considered  these  challenges were  now  essentially  moot,  given  Mr Smith’s  security  classification  had  been reduced.

[15]     In upholding the Agency’s findings, the Panel rejected the suggestion that an expert witness called by their employer cannot be impartial.   They said there could

be no sensible challenge to Miller J’s cross-examination  ruling,  given  this  was judicial review and cross-examination had been allowed, albeit limited.   They said there were no strong grounds for challenging the factual findings of Miller J and that in those circumstances the issue of Mr Smith’s consent was dealt with.

[16]     The Panel considered that the costs of an appeal could not be justified by the desirability of  the  s 11  BORA  issue  of  consent  being  argued  on  appeal,  given  the factual  findings.   They did not consider  that the  case  raised issues of fundamental importance to human rights’ jurisprudence in New Zealand, as counsel for Mr Smith had claimed.   The Panel observed that Mr Smith now had a relatively low security classification and was eligible for parole and there was nothing in these proceedings which would affect that.

Relevant legislation

[17]     Firstly, some brief legislative background to the process by which this appeal came before this Court.   Section 9 of the Act sets out the grounds upon which aid may be granted or refused.  In particular s 9(4)(e) provides as follows:

9        When legal aid may be granted: civil matters

...

(4)      The Agency may refuse to grant legal aid to an applicant in any of the following circumstances:

...

(e)      in  the  case  of  an  appeal  (whether  or  not  in  respect  of proceedings  in  which the applicant  has  received  legal  aid), the Agency considers that for any reason the grant of legal aid or further legal aid is not justified.

[18]     The Agency’s original decision in refusing legal aid said:

Having regard to costs, benefits and the likelihood of an appeal succeeding we are not satisfied that a grant for an appeal is justified.  See Legal Services Agency  v  Brown  (2005)  PRNZ 523;  Legal  Services  Agency  v  A  (HC) Auckland, 4 July 2008.

[19]     I agree with Wylie J as to his assessment of the meaning of s 9(4)(e) in Legal

Services Agency v A he said:

[42]     In  my  view  s 9(4)(e)  is  quite  clear.   In  the  case  of  an  appeal,  the

Agency may, in exercise of its discretion, refuse to grant legal aid if
it considers that “for any reason” a grant of legal aid is not justified.

It is difficult to see that the grounds for the exercise of the discretion could  have  been  expressed  more  widely.   The  expression  “for  any reason” is open ended.  Obviously the exercise of the discretion must

be confined by its  statutory  context  and  it  should  not  result  in  a decision which is manifestly unreasonable or wrong in law. Subject

to these restrictions, the discretion can be exercised “for any reason”
and  this could  embrace  any of  the factors identified in  s 9(4)(a)  to

(d),   or   indeed   other   factors.  In   my   view,   the   words   permit consideration  of  discretion,  and  when  it  stated  that  aid  should  be granted if good grounds for an appeal are identified.   In effect, the Agency was saying that if there are reasonable or good prospects of success,  aid  should  be  granted.  That  is  not  what  the  section provides,  and  the  discretion  conferred  on  the  Agency  permits  it  to consider rather more than this.

[20]     At  the  request  of  the  appellant  the  Agency  reconsidered  its  decision  but reached the same conclusion with rather more detailed reasoning.

[21]     The  right  of  appeal  from  the  Agency’s  decision  to  the  Panel  is  given  by s 54(1) of the Act.  It provides:

54       Grounds for review

(1)An aided person or an applicant for legal aid may apply to the Panel for a review of a decision of the Agency referred to in subsection (2) on the grounds that the decision is—

(a)      manifestly unreasonable; or

(b)      wrong in law.

…

[22]     Thus, the grounds of appeal against the Agency’s decision to the Panel are severely restricted.  They do not include a general appeal on the merits.  Apart from legal  error,  manifest  unreasonableness  focuses,  as  John  Hansen J  said  in  Legal Services Agency v A and O (2003) PRNZ 443, on whether the decision is clearly and unmistakably unreasonable and only if it is will the Panel be empowered to step in and  reverse  the  Agency.  This  Court’s  jurisdiction  is  even  narrower,  limited  to appeals solely based on a question of law.

This appeal

[23]     To return to the Panel decision. I agree with counsel for the Agency that the Panel erred when it considered the appeal from the Agency to the Panel. As I have observed the review from the Agency to the Panel is not a merits based appeal. The

Agency must consider pursuant to s 9(4)(e) whether a grant of aid is for any reason “not justified”.  Such a power is very wide.  It would include an analysis based on, as here, the cost benefit and likelihood of success of an appeal ([18]).

[24]     The  Panel’s  decision  wrongly  undertook  an  analysis  of  the  merits  of  the Agency’s  conclusions  as  to  Miller J’s  judgment. While  it  is  understandable  the Panel  would  wish  to  identify  the  Agency’s  reasoning  once  identified  it  needed  to apply  the  manifest  unreasonableness/error  of  law  test  to  the  reasoning.   Instead  it undertook  a  merit  based  review  of  the  Agency’s  reasoning,  not  authorised  by  the Act.  A consideration of the appeal grounds in this case and the Panel’s decision will illustrate the error.

[25]     Appeal  grounds  (a)(ii),  (c),  (d)  and  (e)  raise  in  various  ways  the  issue  of consent.   Ground (a)(ii)  is  concerned  with  a  challenge  to  the  Agency’s  conclusion that the costs of determining the s 11 BORA consent issues would not be justified. Ground (c) challenges Miller J’s claim the appellant gave informed consent and that Mr Smith would have understood the information obtained from the psychological testing would be used for security ratings.  Grounds (d) and (e) repeats the assertion that an appellate decision on s 11 of BORA would be valuable.

[26]     The first point that can be made about all these grounds of challenge is that they are not allegations of error of law but simply assertions that the Agency/Panel were wrong in the exercise of their discretion.

[27]     Miller J concluded, on the facts, that  the appellant had given  informed consent  for  the  tests  to  be  done. This was a factual  conclusion  which  both  the Agency and Panel  considered was very unlikely to be able to be  successfully challenged on appeal. It could not be argued that there were no facts upon which Miller J based his assessment. The appellant’s  argument  before  the  Panel  (and before this Court) was that the Judge’s  conclusions were  wrong.  This  was not an allegation of an error of law but a claim the Judge should have reached a different conclusion. This ground of appeal was correctly dealt with by the Panel and no error of law by the Panel has been shown on this aspect of the challenge.

[28]     As to the challenge of what is said to be Miller J’s conclusion that Mr Smith would have understood the information could be used for security classification,  two points can be made.   Firstly, this was a factual conclusion and no question of law arises.   Secondly, Miller J expressly found that in fact the test results had not been used in the security classification of Mr Smith.  The issue was therefore irrelevant to the appellant’s challenge to the security classification system.

[29]     As  to  the  s 11  BORA  issue  (grounds (a)(ii)  and  (d))  given  the  factual conclusions this issue was no longer live.   It was no error of law therefore for the Agency and Panel to conclude that the cost of obtaining an appellate judgment was not  justified.   This  was  for  self  evident  reasons,  a  conclusion  reasonably  open  to them.

[30]     At  [40]  to  [50]  in  their  decision  the  Panel  undertook  an  analysis  of  the Agency’s  conclusions  about  Miller J’s  judgment. This  was  in  part  a  merits  based review.  The focus should have been on identification of any error of law (none was in  fact  expressed)  and  manifest  unreasonableness. The  Agency  identified  the grounds  of  Mr Smith’s  appeal  from  Miller J’s  judgment. They  then  undertook  a coherent and logical analysis of these grounds of appeal.  They concluded Miller J’s factual findings could not be challenged and that the legal issues were mostly moot and did not justify appellate authority.

[31]     The  Agency’s  conclusions  therefore  could  not  have  been  attacked  as  being manifestly unreasonable.  As the Agency illustrated their conclusions were logically and reasonably open to them.

[32]     The Panel’s analysis, based on its assessment of  the appellant’s  grounds  of appeal  to  the  Agency,  therefore  erred  in  a  way  which  advantaged  Mr Smith. Mr Smith had two merit based reviews of his application for aid, one by the Agency and another by the Panel.   Although the Panel’s merit based analysis was wrong in law given it favoured the appellant no harm or disadvantage has been caused to the appellant.  A correct application of the statutory grounds of review would inevitably have  resulted  in  the  Panel  dismissing  the  appeal  from  the  Agency. This  error therefore has not prejudiced the appellant and is not therefore an error of law which

requires  me  to  set  aside  the  Panel’s  decision  (see  Re  Fehling  HC  Wellington AP 24/94, 25 July 1997).

[33]     I reject Mr Ellis’ proposition that in some way the Agency has a duty to help provide a vehicle for appellate decision on the  interpretation  of  the  BORA  (here, section 11). In this case the Agency reached a clear view applying the s 9(4)(e) test.

It would have been wrong for it to say, despite its conclusion that aid should not be granted, it would grant legal aid because an appellate ruling (if given) might develop the  law  in  this  area. One  can  appreciate  that  in  marginal  cases  where  appellate guidance is likely and would be of practical benefit (perhaps as a result of avoiding the cost of other similar litigation in the future) this might tip the balance in favour of a grant.   However this is not a finely balanced case and, in any event the decision was well within the Agency’s discretion.

[34]     As to appeal grounds (a)(i) and (b) ([23]) they are in my view effectively one ground  of  appeal  relating  to  the  challenge  to  Mr Wales  as  an  expert  witness. It seems  that  pre-trial  before  Miller J  the  appellant  challenged  the  admissibility  of Mr Wales’   affidavit   and   if   unsuccessful   in   that   challenge   sought   leave   to cross-examine Mr Wales at the substantive hearing.

[35]     Miller J    ruled    Mr Wales’    affidavit   admissible    and    allowed    limited cross-examination.  As to this he said:

[85]     I  allowed  Mr Ellis  to  cross-examine  Mr  Wales.   I  considered  that cross-examination  was  necessary  to  allow  the  application  to  be  decided properly, in that there were several respects in which it might elaborate on the  process  that  was  followed:          Stratford  Racing  Club  Incorporated  and Another v Adlam [2008] NZAR 329 (CA). I directed that cross-examination might extend to the qualifications necessary to actually administer the PCL-SV checklist, the extent of supervision that Mr Wales gave to Mr Tofi, the validity of the PCL-SV test in predicting serious reoffending of the New Zealand male offender population, and the proposition that Mr Smith was not told of the use to which the assessments would be put, in particular, that he was not told that they might be used in security classification decisions. The latter issue was not clearly addressed by the respondent’s witnesses, because it is evident that the respondent had not appreciated that it was in issue.

[36]     When applying for a reconsideration of the Agency’s decision the appellant argued that the Agency was wrong to accept that a senior Corrections Department

psychologist could give expert evidence on behalf of the Department of Corrections. As the Panel said in reporting the Agency’s response to that submission:

It  projected  the  proposition  that  an  expert  witness  must  necessarily  be independent; the admissibility of such evidence depends as a matter of law on the expertise of the witness, not independence, although the party calling the evidence should make clear any involvement the witness may have with the issues to be tried.

[37]     Before the Panel the appellant argued that Mr Wales was not a neutral expert

as required by the High Court Rules because he was a witness both as to the facts and an expert as to what was proper practice.  In response the Panel said:

[40]With   regard   to   the   Applicant’s   submission   as   to   the   lack   of independence of the expert witness, rule 1.3 of the High Court Rules defines:

an expert as:

“… a person who has specialised knowledge or skill based on training, study, or experience”

and expert evidence as:

“…the   evidence   of   an   expert   based   on   a   specialised knowledge or skill of that expert and includes evidence given

in the form of an opinion”

[41]     Expert witnesses called in High Court civil proceedings are required

to  comply  with  the  Code  of  Conduct  for  Expert  Witnesses

(Schedule 4  of the  High  Court  Rules).  The  Code  provides  that  an expert witness has  an  overriding  duty  to  assist  the  court

“impartially”  on relevant matters within the expert’s  area of

expertise.   The expert witness is not an advocate for the party who engages the witness.

[42]     The Panel rejects the suggestion that an expert witness called by his

or her employer could never be “impartial”.  Experts must approach their  task  in  a  fair-minded  and  objective  fashion. There  is  no evidence that the expert in this case failed to do so.  The gist of the Applicant’s argument appears to be that it was simply not possible for him to be impartial.  The Applicant complains about the affidavit sworn by the expert, the title of which stated the affidavit was sworn “in opposition to judicial review”.  The Applicant argues that if that affidavit  was  “in  opposition”  it  could  not  be  a  “neutral  expert position”.  The word “neutrality” is not mentioned in the High Court Rules:   rather  the  requirement  is  to  provide  impartial  assistance  to the Court.

[43]     Sometimes the only practical course in litigation is for a party to call one  of  their  own  employees  as  an  expert  witness.  A  frequent example is policemen giving expert evidence in criminal trials as to

such  matters  as  the  current  street  or  wholesale  price  of  drugs.   It would be impractical to suggest that an employee could never give expert evidence in support of his/her employer’s case.

[44]     The Panel is satisfied that the ruling made by Miller J in respect of cross-examination  of   the   Department’s   expert   witness   was reasonable, particularly in the context of an application for judicial review.

[38]     I note at [44] the Panel concentrated on the Judge’s reasoning although  the appellate  test  is  whether  the  Agency,  in  concluding  there  was  unlikely  to  be  a successful  appeal  from  the  Judge’s  decision  erred  in  law  or  reached  a  manifestly unreasonable decision.

[39]     In this appeal the appellant submits that the Agency and the Panel erred  in law when they agreed with Miller J’s analysis of the admissibility of the evidence of Mr Wales because:

a)        the proposition that in the circumstances given that Mr Wales was a witness as to fact he should not have been called as an expert witness;

b)Mr Wales   showed   bias   as   exhibited   by  the   entitulement   of   his affidavit;

c)        counsel  for  Corrections  assisted  Mr Wales  in  the  preparation  of  his affidavit thereby tainting that affidavit;

d)Mr Wales had a close relationship with the trainee psychologist whose testing was under challenge;

e)        Mr Wales  was  not  impartial  as  he  was  an  employee  of  Corrections, the defendant in these proceedings.

[40]     Both  the  Agency  and  the  Panel  identified  that  the  traditional  approach  to expert evidence is to first identify whether the witness is an expert in a relevant field. If  the  expert  is  appropriately  qualified  and  his  or  her  evidence  is  relevant  it  is generally admitted in evidence at trial.  There is, and was, no challenge to Mr Wales

“expertise” in the field in which he gave evidence.  Equally clearly his evidence was relevant.  It related directly to the substance of the judicial review proceedings.

[41]     Mr Ellis for the appellant accepted the propositions and approach outlined in

[40] accurately described the current New Zealand law.  However he submitted that

in cases where there was predisposition or bias through association with one of the parties then the proposed expert witness should be disqualified as an expert.

[42]     In support of this proposition he referred to a decision of the European Court Bonish v Austria Ser. A No. 92 (1985) 9 EHRR 191. The relevant facts involved the appointment of an expert by the Court who was an employee of the prosecution authority.

[43]     This  case  did  not  assist  Mr Ellis.   As  Mr Taylor  pointed  out  this  case  was concerned  with  a  Court  appointed  expert.         One  can  readily  understand  how  the capacity of a Court to properly decide a case would be undermined when the expert the Court itself appointed was employed by or directly associated with a party to the litigation itself.   Further,  as  I have observed,  the Agency’s  function is not to fund litigation to challenge established law in the absence of any compelling reason.

[44]     As to Mr Ellis’ points of objection there is nothing wrong with a witness of fact also being an expert witness.  They often are.  The fact that the expert is also a witness  of  fact  will  be  relevant  to  an  assessment  of  the  weight  to  be  given  to  the evidence.

[45]     As to the entitulement of Mr Wales’ affidavit I agree with the Agency and the Panel that this is of no moment at all.  The entitulement indicates nothing more than which side is calling the witness, it said nothing at all about Mr Wales’ attitude and certainly  did  not  mean  he  was  in  some  way  bias  or  prejudiced. Nor  was  there anything  objectionable  about  counsel  assisting  Mr Wales  in  the  preparation  of  his affidavit.  Counsel have a preliminary responsibility to ensure affidavits are relevant, logical and readily able to be understood.  The appellant had no evidence to suggest that anything other than this was undertaken by counsel for the defendant.

[46]     As  to  the  other  factors  these  were  relevant  to  the  weight  to  be  given  to Mr Wales “expert opinion” and as to the matters of fact relevant where there was a dispute as to fact.

[47]     The  other  factor  to  keep  in  mind is  the  very limited  evidence  of  Mr Wales and  the  limited  account  that  the  Judge  took  of  Mr Wales’  evidence. Primarily Mr Wales’  evidence  was  of  explanation  of  the  standard  practice  by  Corrections psychologists  explaining  the  use  and  availability  of  reports  to  inmates.   This  was hardly controversial evidence.  Mr Wales had no particular recollection of Mr Smith and therefore could not give any evidence directly relevant to him.  As to supervision of trainee psychologists Mr Wales could only give general evidence as to what was his habit.

[48]     This illustrates neither the Agency nor the Panel made an error of law in their approach.  They accurately identified the relevant law.  The Agency concluded as it was entitled to that Miller J applied well established law in reaching his decision on the  expert  evidence  topic.       The  Agency  was  on  this  point  entitled  therefore  to conclude  the  likelihood  of  the  appeal  succeeding  was  modest  and  thus  the  costs could not be justified.  As I have said the Panel’s analysis of the Agency’s decision generously (to the appellant) reviewed and agreed with the Agency’s decision when what had to be established was manifest unreasonableness.

[49]     Other than this overly generous approach to the appellant the Panel made no error of law.

[50]     For the reasons given therefore the appeal will be dismissed.

[51]     I record the Agency sought no costs.

Ronald Young J

Solicitors:

T Ellis, PO Box 24347, Wellington:  email: [email protected]
G D S Taylor, Barrister, Wellington, email:  g[email protected]