Smith v Prison Director at Rolleston Prison - [2024] NZCA 163

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA528/2022
[2024] NZCA 163

BETWEEN	PHILIP JOHN SMITH Appellant
AND	PRISON DIRECTOR AT ROLLESTON PRISON Respondent

Hearing:	10 April 2024
Court:	Mallon, Thomas and Wylie JJ
Counsel:	Appellant in person P J Gunn and S Cvitanovich for Respondent
Judgment:	16 May 2024 at 12 pm

JUDGMENT OF THE COURT

AThe respondent is given leave to adduce in evidence rule PR/001 made on 1 October 2021 by the Prison Director at Auckland Prison under s 33(1) of the Corrections Act 2004.
BThe appeal is dismissed.
CThe appellant is to pay costs to the respondent in the sum of $1,000.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Table of Contents

Para No

Introduction
Factual background

Mr Smith
The Kia Marama Unit
The Totara Unit
Rule PR/004
Te Piriti Unit

The High Court judgment
Additional evidence
The submissions

Mr Smith
The Director

Analysis

Section 33
The statutory context — is the rule consistent with the Act?
Is the rule inconsistent with other legislation?
Does the rule impose an unlawful blanket prohibition?
Is the rule discriminatory and inconsistent with the NZBORA?
Does the treatment afforded to prisoner who go into the Kia Marama and Totara Units have a discriminatory impact?
Is the rule inconsistent with New Zealand’s international obligations?
Section 5 of the NZBORA

Costs
Result

[1]
[8]
[8]
[11]
[16]
[20]
[32]
[34]
[43]
[46]
[46]
[50]
[56]
[57]
[59]
[64]
[69]

[71]

[88]

[89]
[100]
[123]
[125]

Introduction

The appellant, Philip Smith, is, and at all relevant times was, a sentenced prisoner. In June 2020, he was transferred to the Kia Marama Unit at Rolleston Prison, near Christchurch. The Kia Marama Unit is a special treatment unit for men who have been convicted of child sex offences. There is another specialist unit at Rolleston Prison, also for male child sex offenders — the Totara Unit.
Since 2017, the respondent, the Prison Director at Rolleston Prison (the Director), has made a series of rules under s 33(1) of the Corrections Act 2004 (the Act) that have applied to prisoners in the Kia Marama and Totara Special Treatment Units. Each of the rules has been in substantially the same terms. The current rule, rule PR/004 in force as from 29 September 2021 (the rule), provides that prisoners in the Kia Marama or Totara Special Treatment Units must not participate in sexual activity, or encourage, pressure or threaten other prisoners to participate in sexual activity. Any prisoner breaching the rule commits an offence against discipline pursuant to s 128(1)(a) of the Act and may, on conviction, be subject to any penalty that can be imposed under ss 133 or 137.
Mr Smith became aware of a previous version of the rule when he was transferred to the Kia Marama Unit. It was prominently displayed in the Unit. He considered that the rule sought to prohibit what was otherwise lawful homosexual sexual activity between consenting males, and he commenced judicial…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] NZCA 163
Decision Date: 16 May 2024 at 12 pm

CaseChat Overview and Summary

In the matter of Smith v Prison Director at Rolleston Prison, the Court of Appeal of New Zealand dismissed the appeal brought by Philip Smith, a prisoner at Rolleston Prison, against a rule prohibiting sexual activity between prisoners in the Kia Marama and Totara Special Treatment Units. Smith argued that the rule was discriminatory and inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The Court of Appeal held that the rule was not discriminatory and was consistent with the Corrections Act 2004 and other relevant legislation, including the NZBORA and the Human Rights Act 1993. The Court found that the rule was a proportionate means to achieve the justified ends of maintaining the integrity of the treatment programmes and ensuring the safety of prisoners in the Units. The appeal was dismissed, and Smith was ordered to pay costs to the respondent in the sum of $1,000.

Orders