Smith v Prison Director at Rolleston Prison - [2022] NZHC 2366

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000404

[2022] NZHC 2366

BETWEEN
PHILLIP JOHN SMITH

Applicant

AND

THE PRISON DIRECTOR AT ROLLESTON PRISON

Respondent

Hearing: 6 April 2022

Appearances:

The Applicant in person

P J Gunn & H P Graham for the Respondent

Judgment:

15 September 2022

JUDGMENT OF NATION J

Introduction

[1] The applicant (Mr Smith) is a prisoner at Rimutaka Prison. In August 2021, when he filed these proceedings, he was a prisoner at Rolleston Prison, detained in the Kia Marama Unit. The Kia Marama and Totara units at Rolleston Prison are special treatment units for child sex offenders. The only other unit offering similar treatment is the Te Piriti Unit associated with the Auckland Regional Prison.

[2] Pursuant to s 33(1) of the Corrections Act 2004 (the Act), in 2019 and 2021 the respondent (the Director) made a rule forbidding any sexual activities between prisoners within the Kia Marama and Totara Special Treatment Units for child sex offenders at Rolleston Prison.

SMITH v THE PRISON DIRECTOR AT ROLLESTON PRISON [2022] NZHC 2366 [15 September 2022]

[3] Through these judicial review proceedings, Mr Smith claims the rules were unlawful. First, because the rule is in breach of the Homosexual Law Reform Act 1986 which he said makes participation in consensual homosexual acts lawful and, second, because a rule forbidding consensual participation in a homosexual act breaches ss 19(1) and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA). Mr Smith seeks declarations to that effect, an order in the nature of certiorari quashing the rule, and an order the respondent pay his disbursements in relation to the proceeding.

The Rule

[4] Rolleston Prison, near Christchurch, is a low security prison for general prisoners but includes prisoners who are serving their sentence in the Kia Marama or Totara Special Treatment Units for child sex offenders. On 6 March 2017, the director of the prison made a rule forbidding prisoners in the units from engaging in sexual activity with another prisoner. This was replaced by new rules on 4 March 2019 and 27 September 2021.

[5] In an affidavit of 13 December 2021, Alexandra Green, the Manager of Psychological Services at the Kia Marama and Totara Units said the rule states:

All prisoners in Kia Marama or Totara Special Treatment Units for child sex offenders are forbidden from participating in or encouraging, pressuring or threatening any other prisoner to be involved in any sexual activity with any other prisoner.

…

Any prisoner breaching this rule commits an offence against discipline pursuant to s 128(1A) of [the Act] and may on conviction of such a breach be subject to any penalty imposed pursuant to s 133 or s 137 of [the Act].

Ms Green was referring to the 2019 rule.

[6] In an affidavit of the same date, the Director, Michael Howson, said that on 29 September 2021 he replaced the 2019 rule with a further revised rule forbidding…

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: [2022] NZHC 2366
Decision Date: 15 September 2022

CaseChat Overview and Summary

In Smith v The Prison Director at Rolleston Prison, the High Court of New Zealand dealt with a challenge by Phillip John Smith, a prisoner at Rimutaka Prison, against a rule prohibiting any sexual activity between prisoners in the Kia Marama and Totara Special Treatment Units for child sex offenders at Rolleston Prison. Mr Smith claimed the rule was unlawful because it violated his rights under the Homosexual Law Reform Act 1986 and the New Zealand Bill of Rights Act 1990 (NZBORA). He sought declarations that the rule was unlawful, an order in the nature of certiorari quashing the rule, and an order for the respondent to pay his disbursements. The court was required to decide whether the rule was valid and whether it constituted unlawful discrimination. The court found that the rule was valid and not discriminatory. The rule was made under s 33 of the Corrections Act 2004, which allows the Chief Executive to authorise the manager of a corrections prison to make rules that the manager considers appropriate for the management of the prison and for the conduct and safe custody of the prisoners. The court found that the rule was made for the purpose of ensuring the safety of all prisoners in the Kia Marama and Totara Units and promoting the rehabilitation and reintegration of those prisoners through the therapeutic programmes. The court also found that the rule was not discriminatory because prisoners in other units were not subject to the same rule. The court held that the rule was rationally connected with its purpose, did not impair any right or freedom more than was reasonably necessary, and was in due proportion to the importance of the objective. The court also found that the rule did not violate Mr Smith's rights under the Homosexual Law Reform Act 1986 or the NZBORA. The court concluded that the rule was valid and dismissed Mr Smith's application for review. The Director was entitled to costs.

Orders