Stevens v Chief Executive of the Department of Corrections

[2022] NZHC 3167

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1998

[2022] NZHC 3167

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

MICHAEL AKA MAXIEN STEVENS

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

First Respondent

RICHARD LAWS, PRISON DIRECTOR AT AUCKLAND SOUTH CORRECTIONS FACILITY

Second Respondent

Hearing:

20 October 2022

Counsel:

G E Minchin for Applicant

V E Squires for First Respondent
E M Greig and A Sawant for Second Respondent (All by VMR)

Judgment:

30 November 2022

JUDGMENT OF MUIR J

[Re: Admissibility and leave to cross-examine]

This judgment was delivered by me on 30 November 2022 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Exeo Legal, Wellington

Meredith Connell, Wellington Duncan Cotterill, Wellington

STEVENS v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZHC 3167 [30

November 2022]

Introduction

[1]                  The applicant, who now identifies as female and whom  I  will  refer to  as Ms Stevens, seeks judicial review of a series of directed segregation orders made by the second respondent (the Prison Director) and subsequently supported by the first respondent. These proceedings are scheduled to be heard in March 2023.

[2]Three interlocutory applications were scheduled before me:

(a)An application by Ms Stevens seeking discovery of unredacted emails by the second respondent’s deponent, Ms Dayle McKibbon (redacted material having been made available in response to a previous Privacy Act 2020 application). This application has been resolved and the material provided.1

(b)An application by Ms Stevens that the second respondent’s deponents be made available for cross-examination.2 That application is now confined to the deponent, Ms McKibbon.

(c)An application by  the  second  respondent  to  strike  out  parts  of  Ms Stevens’ reply affidavit.

Background

[3]                  Ms Stevens was, on 12 July 2016, sentenced to preventive detention with a minimum period of five years’ imprisonment. The sentence was imposed in respect of one charge of doing an indecent act on a child under 12. Other concurrent sentences were imposed in respect of charges of knowingly possessing objectionable

1      There remains outstanding an issue of costs. The second respondent says that the application was unnecessary and that the material could simply have been requested in writing. In turn, counsel for Ms Stevens says that the material provided in response to the application and appended to the affidavit of Ms Yates, dated 13 October 2022, included communications beyond those sought in the application and of a prejudicial nature. I directed during the course of the hearing that, if the allegedly prejudicial material is sought to be relied on in the context of the substantive proceedings, it be filed as an annexure to a supplementary affidavit (if rule compliant). I do not intend to rely on that material for the purposes of the present applications.

2      This application and the application seeking discovery were made in the same document.

publications, indecently communicating with a person under 16 and breaching a supervision order.

[4]                  Ms Stevens has since the date of her sentence been imprisoned in various institutions. In June 2020, she was moved to Auckland South Corrections Facility (ASCF) of which the second respondent is the director. Her application for judicial review relates to directed segregation orders imposed on her for much of the period between 12 May 2021 up until 1 November 2021, when she was transferred to Auckland Prison. At earlier times she had been managed in voluntary segregation at her own request.

[5]                  It total four directed segregation orders were made with the last of these being extended three times. A summary of the various orders made by the Prison Director occurs below:

(a)Order of 12 May 2021. This was made under s 58(1)(a) of the Corrections Act 2004 (the Act) which permits segregation orders in circumstances where the prison manager considers the “security or good order of a prison would otherwise be endangered or prejudiced”. This order was revoked on 18 May 2021.

(b)Order of 18 May 2021. This was made under s 59(1)(b) of the Act which permits segregation orders when the safety of the prisoner has been put at risk and there is no reasonable way to otherwise ensure the prisoner’s safety. This order was, in turn, revoked on 27 May 2021.

(c)Order of 8 June 2021. This was made under s 60(1)(a) of the Act which permits a segregation order if the health centre manager of a prison recommends it in order to assess or ensure a prisoner’s physical health (except against the risk of self- harm).   This order was revoked on     9 June 2021 when Ms Stevens was considered to be medically stable.

(d)Order of 9 June 2021. This was made under s 59(1)(b) of the Act and was extended on each of 21 June 2021, 6 August 2021 and 8 September 2021.

[6]                  At its most general level, the substantive contest between the parties is as follows:

(a)Ms Stevens considers the orders made against her were in a form of “punishment” for having entered into emotional attachments with male prisoners and that the second respondent has cast these relationships as symptomatic of her index offending when in fact the relationships were with adult males capable of making their own informed decisions. She says that emotional (but not sexual) relationships are routinely allowed in the prison environment but that she was singled out for punitive treatment, essentially because of her background history with prison officer, Ms McKibbon.

(b)The second respondent says that segregation orders are not punitive in their design or effect, that the initial order was properly made under    s 58(1)(a) and the protection either of other inmates or Ms Stevens herself necessitated the subsequent orders and extensions.

[7]                  Ms Stevens pleads multiple causes of action relating to each of the various orders. Allegations of disproportionality or unreasonableness feature prominently.

[8]                  As will be observed, differences in perception regarding the same conduct may well feature in the litigation. The position is further complicated by the fact that subsequent to Ms Stevens’ transfer, the second respondent no longer has access to her penal file or paperwork recording her former voluntary segregation status. This places at something of a premium the evidence of the second respondent’s deponents and particularly Ms McKibbon on whose advice the initial order of 12 May was made.

[9]                  An additional complication is the fact that the person making the orders — the Prison Director — is currently incapacitated and on medical leave. Although the

Acting Director, Mr Smith, has given an affidavit and although he has first-hand knowledge of some matters, significant parts of what he says represent a composite of information provided to him by others.3

Application to strike out parts of reply affidavit

[10]              The second respondent annexes to its submissions a schedule identifying each of the passages challenged and its submission as to why the evidence should be struck out. I will annex a similar schedule to this judgment including my assessment on each challenge. I start, however, with some general observations. I do so because that will facilitate a brief statement only of my position in respect of the individual challenges, many of which have similar themes. I also do so for the reason that Mr Minchin responsibly accepts the existence of some inadmissible material in the affidavit and has indicated an intention, on receipt of this judgment, to withdraw the affidavit and recast it in a manner consistent with my general observations and specific comments. This avoids the inevitably disjointed product which emerges from any redaction process.

[11]My general points are as follows:

(a)I do not accept as irrelevant evidence by Ms Stevens about the extent to which, within the penal institutions she is familiar with, emotional and romantic relationships are tolerated. In her evidence she says that she accepts the imposition of restrictions (including in respect of sexual contact) and also the penal regime potentially associated with breach of such restrictions. However, she says that emotional relationships are both inevitable and not actively suppressed. Mr Minchin refers in that regard to an “Active IOMS alert”4 in respect of Ms Stevens, which

3      For example, his observation in para [72] that: “The applicant exhibited overly sexualised behaviour towards other prisoners. This included the applicant asking other prisoners to touch her breasts and other parts of her body in a sexual manner”. There is no suggestion that such actions were witnessed by Mr Smith himself nor does any other deponent give direct evidence of the alleged requests by Ms Stevens. Indeed, Ms Stevens says that her breasts only started to develop as a result of hormone therapy at a point after she was placed in directed segregation, so according to her, the evidence cannot be correct.

4      IOMS is an online integrated offender management system accessible by all staff involved in prison management. It contains relevant management information, file notes and active alerts

identifies that prisoners can write letters to each other provided they follow the site mail process.

This evidence is relevant to the unreasonableness and disproportionality causes of action in that Ms Stevens effectively says that she has been singled out for special attention.5 Her evidence in this respect should, however, be limited to her personal observation. By contrast, she has a tendency to suggest “normative” positions as, for example, in paras [20] and [25] of her affidavit. The issue is more stylistic than substantive and can be readily corrected in the proposed redraft.

(b)The affidavit contains a number of statements which are in the nature of submissions as to how she should appropriately have been managed at ASCF. I give an example below.

39. Leaving aside the issue as to whether  any  of  the alleged threats were ongoing, I did not have to be held in solitary confinement [up] until [the point] I was transferred to Auckland Prison on 1 November 2021.

(c)There are also a significant number of inadmissible statements of opinion which are not saved by s 24 of the Evidence Act 2006 (EA). For example:

27.This  is  misleading.  Prisoners  in  voluntary segregation are usually more vulnerable than mainstream prisoners …

…

55. … It is my belief that ASCF invents safety concerns when dealing with prisoners like me.

…

regarding each prisoner. The note relates to events in another penal institution before Ms Stevens’ transfer to ASCF.

5      I do not, in identifying the applicant’s “disproportionality” cause of action, acknowledge its availability as a standalone ground for judicial review. The issue is contentious and unsettled. The cause of action, as pleaded by the applicant, perilously approaches the merits of the impugned orders and therefore tests the outer limits of substantive review. In circumstances such as these, the courts will be particularly vigilant not to stray from the fundamental distinction between review and appeal.

57.… This was a dangerous and inappropriate placement for a low security trans prisoner and GS knows that.

(d)Some of the evidence is irrelevant to any of the pleaded issues. For example, the following portion of para [9] which is about matters which predate the challenged segregation orders and has no probative value in terms of the legality and reasonableness of such orders:

9.… To  warn her man that KR was an evil witch, on 1 July 2020 I got myself transferred to the ‘At Risk’ unit, ‘4HBK3:WingAR’, where her man was being held at the time.

(e)There are examples of scandalous material, particularly in respect of Ms McKibbon’s professionalism for which there is no proper evidential basis. For example:

4. … I do not know whether DMK was dismissed or  allowed to resigned (sic) but I understand that DMK’s conduct as a senior prison officer came into question for serious breaches of the Corrections code of conduct and in particular for giving a prisoner contraband.

Although Ms McKibbon’s evidence is significant in terms of the proportionality and reasonableness of the 12 and 18 May orders, and although a properly supported attack on her professional standards may, in that context, be admissible (especially given the emphasis in the affidavit on the number of awards she has received), hearsay and rumour are not. Although Mr Minchin emphasises the difficulty in obtaining direct evidence, that does not excuse resort by Ms Stevens to inuendo.

(f)There are multiple examples of hearsay.  For example:

20. [Redacted] informed me that DMK had met with him and told him to break up with me or there would be consequences.

…

40. When I was in solitary I spoke with another prisoner there by the name of [redacted] … [He] told me that

ASCF had put him in HBK2W2 and he knew himself to be in danger. Then, like me ASCF used [his] fear of being in HBK2W2, to not place him anywhere else in the prison.

These statements are of course inadmissible as to the truth of their contents unless supported by a proper foundation under s 18 of the EA.

The application for cross-examination

Introduction

[12]              There is no right to cross-examine in judicial review proceedings. This is because a primary purpose of the jurisdiction is to serve “as a relatively simple untechnical and prompt procedure”.6 It will only therefore be in compelling circumstances that cross-examination will be permitted.

[13]              In Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd,7 the Court of Appeal indicated that applications are unlikely to be entertained without a concise statement of the factual areas in dispute and identification of how these relate to the grounds on which a particular decision is challenged in the pleadings. Applicants should also be in a position to match those factual areas of dispute with passages in particular affidavits “contended as giving rise to apparent gaps and deficiencies which should be the subject of cross-examination”.8

[14]              As indicated, although Ms Stevens’ original application extended to all the second defendant’s deponents, it is now limited to Ms McKibbon who Mr Minchin acknowledges has all the requisite experience to be able to address the policy issues around prisoner emotional relationships and who is additionally, from Ms Stevens’ perspective, the most important witness of fact.

6      Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353.

7      Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA).

8      At 658.

Applicant’s position

[15]              Addressing the requirements articulated by the Court of Appeal in Roussel, Mr Minchin filed a memorandum identifying nine proposed topics of cross-examination. He links these to individual grounds of review.

[16]              The first he describes as related to Ms McKibbon’s “veracity”. He says that, in the introduction to her affidavit, she describes herself as winner of the “Pulse Award for the Asia Pacific Region”, “Serco’s Global Award” and “Gold Award”, the latter relating to her previous role at the Department of Corrections (Corrections).

[17]              Mr Minchin wishes to cross-examine her on the circumstances in which she left employment at Corrections. This is not a veracity challenge as such. It does not engage the specific rules in s 37 of the EA because he is not seeking to cross-examine her on prior evidence of untruthfulness, inconsistency or bias. Rather, he will endeavour to establish whether, as a counterbalance to the awards Ms McKibbon highlights, there is anything in her professional history of which the Court should be aware in its assessment of the conclusions she drew and/or articulated. Admissibility in that context would be governed simply by s 8 of the EA. Mr Minchin emphasises the core factual dispute which underpins causes of action 1, 2, 4 5, 6 and 7. He also emphasises the paucity of documentary evidence. He says that the Court’s assessment of Ms McKibbon’s evidence assumes particular relevance in that context.

[18]              His second proposed topic relates to the first ground of review — illegality. He points out that in Ms McKibbon’s affidavit she deposes that she “raised concerns” which resulted in the initial s 58 directed segregation order. The proposed topic for cross-examination is: “What urgency required the applicant to be immediately placed on directed segregation, rather than there being some lesser intervention, in the interim?”

[19]              The third topic similarly relates to the first ground of review. Mr Minchin refers to para [13] of Ms Stevens’ amended statement of claim in which she pleads:

In the afternoon of 12 May 2021 the applicant was taken from the prison unit they were residing in, House-block 1 Wing 4 ‘HB1W4’ and placed in the ASCF solitary confinement punishment cells.

[20]              The proposed topic of questioning focusses on “why the applicant was placed in the most punitive unit in ASCF”, when according to the applicant, there were other directed segregation cells available.

[21]              The fourth topic relates to the second ground of review which alleges illegality on the ground that the order under s 58(1)(a) was for restricted association but in fact all association was denied. The proposed question for cross-examination is: “Who decided the applicant was placed in solitary?”

[22]              The fifth topic relates to the fourth ground of review which is pleaded as “disproportionality”. I have already identified that this ground is contentious. The proposed topics of cross-examination would address core factual conflicts in the proceeding, including:

(a)What were the permissible metes and bounds of emotional relationships between prisoners in ASCF at the relevant time?

(b)Had the applicant transgressed those limits?

(c)If so, was the applicant treated differently from others?

[23]              The sixth topic relates to the fifth ground of review.  This is focused on the  18 May 2021 order. The applicant says that if segregation was based on threats made against her by others, the only relevant documentary evidence is Ms McKibbon’s email of 17 May 2021 to numerous ASCF staff stating that she had had “a contingent from Wing 4 who absolutely do not want her back there. They find her over sexualised behaviour all a bit too much”.

[24]              Mr Minchin proposes to cross-examine on whether the applicant continued to be held in what he describes as “solitary” because of that expressed perception and, if not, for what other reason.

[25]              The seventh topic relates to the sixth ground of review — mistake of fact and unreasonableness. In her amended statement of claim, Ms Stevens pleads:

The second Order recites: the applicant “is currently domiciled in House Block 1 in Wing 4” and stated that there were concerns for the applicant’s safety “if she continues to stay in House block 1 Wing 4”.

[26]              The proposed topic of cross-examination is: “Why the second order inferred that the applicant was in HB1W4 when she had been moved to solitary on 12 May 2021 and was there at the time the second order was made and further, how there could be safety concerns in solitary?”

[27]              The eighth topic relates to the seventh ground of review — unreasonableness. In her amended statement of claim, Ms Steven pleads:

There were no real safety concerns for the applicant in HB1W4.

[28]              Mr Minchin emphasises that the only documentary evidence about safety concerns is Ms McKibbon’s email of 17 May 2021 and proposes that she be cross- examined on whether the contents of that email represented the “safety concerns” and “threats” which he says were the basis of the applicant’s 18 May 2021 segregation order. As such this issue dovetails with the sixth topic.

[29]              The final topic relates to para [70] of the amended statement of claim which states:

In the premise that the second respondent took no reasonable steps to remove those who had threatened the applicant’s safety in HB1W4 elsewhere, the imposition of s 58(1)(b) segregation on 18 May 2021 was unlawful.

[30]              The proposed topic of cross-examination is: “What steps were taken to sanction the purported threats by other prisoners, so that the applicant’s directed segregation could be revoked?”

Second respondent’s position

[31]              Mr Greig, counsel for the second respondent, emphasises that the proceeding challenges a decision of the Prison Director, not Ms McKibbon and that the hearing should proceed on the basis of the material before the Prison Director when the decision was made. He says that any legitimate questions should be pursued by way of interrogatory.9

9      Acknowledged as an available approach in Geary v Psychologists’ Board [2009] NZCA 134, [2009] NZAR 338 at [25].

[32]In respect of the suggested topics, he says:

(a)Proposed cross-examination in respect of Ms McKibbon’s departure from Corrections may result in a baseless “fishing expedition”.

(b)Those topics which assume a segregation order is punitive are based on a mistaken premise.10

(c)Several of the topics (for example, those related to the disproportionately and unreasonableness pleadings) are not defined with the required level of particularity and/or are not adequately linked to paragraphs of the evidence.

Discussion

[33]              The application needs to be assessed in the context of the agreement reached at the telephone conference of 18 October 2022 to abandon attempts to dispose of both the outstanding interlocutory applications and the substantive judicial review proceedings at the 20 October 2022 hearing. That point was arrived at after consideration of the anticipated duration of argument on the interlocutories and the acknowledged difficulty in proceeding with the substantive application on the same day if cross-examination of any one or more deponents was permitted. In the result, the substantive judicial review application will now be heard on 8 March 2023.

[34]              One of the consequences flowing from this and from Mr Minchin’s decision, during the course of argument on 20 October 2022, to limit his cross-examination application to the evidence of Ms McKibbon only, is that an order will not at this point significantly prejudice the respondents or cause significant delay. I accept that, to some extent, this rewards the applicant for her late cross-examination application11 — something that may have possible implications in terms of costs. But the reality of where the parties are now at — in part because of the volume of evidential challenges

10 Relying on Toia v Prison Manager [2014] NZHC 867 at [31].

11 The application for leave to cross-examine was filed after the close of pleadings because counsel was under the mistaken impression that a Notice to Cross Examine was all that was required. After the error was pointed out on 16 September 2022, the necessary leave application was filed.

made by the second respondent and the time required for their disposition — means that prejudice and delay do not now feature significantly in the calculus.

[35]              I must, nevertheless be satisfied that the application is, overall, in the interests of justice, that being a requirement of all applications for leave, and amplified by the exceptional nature of any order allowing cross-examination in the a judicial review proceeding.

[36]              I am satisfied that this case is sufficiently out of the ordinary to justify leave. My primary reason for coming to that conclusion is the unusual circumstances of the decision-maker’s unavailability to depose as to the basis of his decision. The Court is not therefore in the position where it has his evidence as to the extent Ms McKibbon’s advice was taken into account and what other considerations may have featured in his decision making (for example, his own assessment about the degree to which emotional relationships between prisoners may bear on the good order and management of the prison, whether such relationships are generally regarded as benign and, if so, what particular features of Ms Stevens’ relationship took it sufficiently outside the norm to warrant a segregation order). That then places a particular premium on the advice Mrs McKibbon gave, the reasons for it, and whether Ms Stevens was being singled out (for whatever reason) when the segregation recommendation was made. That said, the decision was ultimately that of Mr Laws, not Ms McKibbon and some of the suggested topics (for example, the third, fourth, sixth and eighth identified above) have the appearance of conflating the recommendations with the decisions. Ms McKibbon can only be cross-examined about the former and her reasons for them. What inferences flow from that in terms of the basis of Mr Laws’ decision will ultimately be for the Court.

[37]              In coming to the overall conclusion expressed, I note apparent concerns in the evidence filed on behalf of the second respondent about the appropriateness of any emotional relationship on the part of Ms Stevens with men a decade or more younger than herself, and the suggestion that her conduct echoes her index offending as a result of perceived vulnerabilities on the part of those she has formed relationships with. If such considerations materially featured in Ms McKibbon’s recommendations, they may need to be considered within the wider ASCF policies, practices and procedures

regarding prisoner relationships and in the context also of the fact that Ms Stevens’ prison love interests were with adult men, appreciably older than the victims who featured in her index offending. Again, the proposed cross-examination aligns with Ms Stevens’ central complaint — that she was being inappropriately singled out.

[38]              I do not, in that context, consider much turns on the fact that segregation orders are not intended to be punitive, but rather to facilitate the statutory objectives identified. Because of associated restrictions, involuntary orders will inevitably be identified as punitive by prisoners. That, in turn, makes it particularly important to ensure that decision-makers’ powers are lawfully exercised.

[39]              Parts of Ms Stevens’ judicial review application are heavily focused on the adequacy of the evidential foundation for the decision (possibly to an extent which tests the limits of the jurisdiction). Much ultimately comes back to Ms McKibbon’s recommendation and the basis for it. In my view, absent Mr Laws, limited cross- examination of Ms McKibbon best ensures such basis is properly tested and thus that the decision to order segregation fits within the reasonable bounds of the statutory provisions and the decision-maker’s autonomy.

[40]              However, I emphasise the requirement for focus in respect of the intended cross-examination which cannot be permitted to imperil disposition of the substantive fixture on 8 March 2023. Active judicial management can be expected having regard not only to ss 7 and 8 of the EA, but to the limitations arising from Ms McKibbon’s subordinate role in the decisions actually made. My expectation would be that the cross-examination is concluded by the morning adjournment at the latest, leaving three blocks of one hour and 15 minutes for the respective submissions.

Result

[41]              I grant leave to cross-examine Ms McKibbon within the limits identified in this judgment.

[42]              I make orders as to the admissibility of the challenged portions of Ms Stevens’ affidavit in reply in accordance with my assessments in Schedule A.

Costs

[43]              At the request of the parties, these are reserved for discussion between them and, if necessary, the filing of memoranda. Any such memoranda are to be a maximum of three pages, plus any schedules.

[44]              I can indicate, provisionally, that had the evidentiary application been the only matter before me, I may have been inclined to let costs lie where they fall. The application was more extensive than it needed to be, having regard to judicial ability to separate the wheat from the chaff, and there were wins and losses on both sides.

[45]              The second respondent flags an intention to seek costs on the discovery application on the grounds that the issue should have been addressed and resolved in correspondence. However, the application did not, in my assessment, involve any materially greater work than would have been involved in answering the suggested correspondence. Moreover, the application was within the same document as the application for leave to cross-examine. Any stand-alone scale award of costs is therefore likely to significantly over-compensate the second respondent.

[46]              The cross-examination application was late and in part responsible for adjournment of the substantive fixture. Although the applicant was successful, costs need not necessarily follow. Indeed, they could conceivably be payable to the second respondent. I have not, at this point, however, formed any provisional view in this respect.

[47]              I am uncertain as to whether there are legal aid implications which need to be considered. I encourage counsel to confer in that respect.

[48]              If memoranda are ultimately necessary, they are to be filed on the following timetable:

(a)Memorandum of second respondent — 19 December 2022.

(b)Memorandum of applicant — 23 January 2023.

Muir J

SCHEDULE A

CHALLENGED EVIDENCE	SECOND RESPONDENT’S SUBMISSION AS TO WHY THE EVIDENCE SHOULD BE EXCLUDED	MY ASSESSMENT
The following portion of para [4]: … I do not know whether DMK [Ms McKibbin] was dismissed or allowed to resigned (sic) but I understand that DMK’s conduct as a senior prison officer came into question for serious breaches of the Corrections code of conduct and in particular for giving a prisoner contraband …	Irrelevant, scandalous and hearsay. This evidence is about matters which are irrelevant to any of the pleaded issues. Evidence of Ms McKibbin’s conduct at a previous employer has no bearing on the legality and reasonableness of the directed segregation orders in issue given that they were made by the Prison Director. Ms McKibbin’s evidence does not put her character in evidence: paras [1] to [5] of her affidavit set out her professional background as introductory context. The statement is also speculation (“I do not know”), hearsay (“I understand”), scandalous and given without any corroboration.	The statement is clearly premised on what Ms Stevens has been told or has surmised and is properly regarded as hearsay. There is no reasonable assurance of reliability in respect of the statement given that no proper factual foundation is laid in respect of it. Nor are any of the other requirements of s 18 of the EA satisfied. The statement is therefore inadmissible.

The entirety of para [8]: As it turned out this was a big mistake on my part, as it led to a lot of dramas, but as DMK had approved it, it came back on her. It is my belief that DMK had it in for me because of this. There is also the factor that KR is an extremely sophisticated manipulator and as discussed below, I believe KR manipulated DMK. I have seen KR play mind- games with both prisoners and prison guards, like they are putty in her hands.	Irrelevant, scandalous and opinion evidence. This evidence is about matters which are irrelevant to any of the pleaded issues. The situation that the applicant describes predates the directed segregation orders in issue and the reasons those orders were made. The relationship between the applicant and Ms McKibbin has no bearing on the legality and reasonableness of those orders given that they were made by the Prison Director.	Evidence of double bunking arrangements between Ms Stevens and KR is admissible to the extent Ms Stevens can depose to: (a)    A breakdown in the relationship between her and KR and the consequences flowing therefrom. (b)    Ms McKibbin’s support for the arrangements. (c)    Ms Stevens’ perceptions of attitudinal changes towards her by Ms McKibbin after the arrangements collapsed and/or specific incidents demonstrating that alleged change. In its present form the paragraph contains opinion evidence beyond the limits of s 24 of the EA.
The following portion of para [9]: … To warn her man that KR was an evil witch, on 1 July 2020 I got myself transferred to the ‘At Risk’ unit, ‘4HBK3:WingAR’, where her man was being held at the time …	Irrelevant, scandalous and opinion evidence. This evidence is about matters which are irrelevant to any of the pleaded issues. The situation that the applicant describes predates the directed segregation orders in issue and the reasons those orders were made. The relationship between the applicant and Ms McKibbin has no bearing on the legality and reasonableness of those orders given they were made by the Prison Director.	The statement is irrelevant to the pleaded issues and therefore inadmissible.

The statement is also opinion (“I believe”) and scandalous, in particular, the inference that Ms McKibbin targeted the applicant.
The following portion of the para [10]: It is my belief that KR then used my history and profile as a predator, to manipulate DMK, because as soon as I was released from the ‘At Risk’ unit, on 5 July 2020, DMK pulled me into a room alone and proceeded to yell and swear at me …	Irrelevant, opinion evidence and scandalous. This evidence is about matters which are irrelevant to any of the pleaded issues. This evidence is about matters which predate the first directed segregation order in issue by roughly 10 months and has no bearing on the legality and reasonableness of those orders. Evidence relating to Ms McKibbin is irrelevant to the orders made by the Prison Director. The statements are also opinion (“it is my belief”) and scandalous.	First part of statement is opinion evidence outside the saving provision of s 24 of the EA. Evidence of being yelled and sworn at by Ms McKibbin in the aftermath of the double bunking arrangements is admissible as relevant to her alleged agenda resulting in the segregation order.
The following portion of para [13]: … As DMK’s conduct was a misuse of her authority, I forced a transfer to the Pound, and wrote a 13 page complaint to the prison director to get his intervention …	Irrelevant, opinion evidence, submission and scandalous. This evidence is about matters which are irrelevant to any of the pleaded issues. This evidence is about matters which predate the challenged directed segregation orders and has no bearing on the legality and reasonableness of those orders.	The applicant agrees to substitute the words down to and including “authority” with the word “so”. Evidence of previous complaints by Ms Stevens about Ms McKibbin is admissible in the context of the breakdown in their relationship and thus the alleged singling out of Ms Stevens for disproportionate or unreasonable treatment.

The statements are also opinion (“misuse of her authority”) and scandalous, in particular, the comments about Ms McKibbin’s professional conduct.
The entirety of para [15]: As I had exposed DMK and my stance was validated by an Assistant Director, I demanded that DMK over-ride my Security Classification from low-medium down to low, to counter any misconducts for my protest action. I got DMK to employ me as the unit painter/artist and to put me in the best and safest wing in the unit. DMK went along with all this but I now think she was silently boiling with rage inside.	Irrelevant, opinion evidence and scandalous. This evidence is about matters which are irrelevant to any of the pleaded issues and has no bearing on the legality and reasonableness of the challenged directed segregation orders. The statements are also opinion (“I think”) and scandalous, in particular, the comments about Ms McKibbin “silently boiling with rage inside”.	Direct evidence of validation of the complaint against Ms McKibbin is admissible because it is relevant and sufficiently probative within the context of the impugned decisions involving Ms McKibbin’s advice. Evidence of interactions with Ms McKibbin over security classification is admissible on the same basis. Evidence as to sanctioned employment is likewise admissible. However, the “boiling with rage” statement is opinion evidence which is speculative, unhelpful and therefore not saved by s 24 of the EA.
The following portion of para [16]: … But my protest actions had resulted in me being put on about 9 misconducts, which normally would have pushed [my] classification right up. The reason my security classification was not put up but was reduced was because these were protest actions, against DMK’s treatment of me. Moreover, DMK’s treatment of me was found to be wrongful, by AD Aimee Hunter.	Irrelevant, opinion evidence, submission and scandalous. This evidence is about matters which are irrelevant to any of the pleaded issues and has no bearing on the legality and reasonableness of the challenged directed segregation orders. The statements are opinion and submissions (“[t]he reason my security classification was not put   up”)   and   scandalous,   in   particular,   the	The affidavit can address any findings of AD Aimee Hunter relating to Ms McKibbin’s treatment of Ms Stevens. The balance of the paragraph is a combination of inadmissible opinion evidence and legal submission. Evidence of actions taken by way of protest in response to the alleged treatment of Ms Stevens by Ms McKibbin and the results thereof is admissible in context of the underlying allegation of being singled out for disproportionate and unreasonable treatment.

allegation as to Ms McKibbin’s professional conduct. The applicant does not offer any corroborating evidence that Ms McKibbin’s “treatment of [her] was found to be wrongful”.
The following portion of para [19]: After I broke up with [redacted] a number of young men wanted to hook up with me but I rejected their advances …	Irrelevant. This evidence is about matters which are irrelevant to any of the pleaded issues and has no bearing on the legality and reasonableness of the challenged directed segregation orders.	The statement is admissible. Underlying Ms McKibbin’s recommendations, at least in respect of the 12 May 2021 order, is the proposition that Ms Stevens was engaging in inappropriate relationships with young and vulnerable men and that these had a predatory component echoing her index offending. Evidence of other inmates pursuing emotional relationships with her is relevant as to whether Ms Steven’s general conduct is predatory or consensual.
The entirety of para [20]: [Redacted] informed me that DMK had met with him and told him to break up with me or there would be consequences. As neither of us were breaking the rules we refused to breakup. In ASCF relationships are allowed but sexual behaviour is not. If couples go over the line, the norm is for warnings to be given. If couples do not heed the warnings or in extreme situations, they are separated, by moving them to different wings. If they  have  been  told  to  not  engage  in  sexual	Hearsay and irrelevant. This evidence is about matters which are irrelevant to any of the pleaded issues and has no bearing on the legality and reasonableness of the challenged directed segregation orders. The statements are inadmissible hearsay (“[Redacted] informed me”) which do not prove or disprove any of the issues in the proceeding. While the applicant’s romantic relationships were one of the   reasons   for   her   management   on directed	No adequate s 18 foundation laid for hearsay evidence regarding [redacted] which is prima facie inadmissible. Evidence of personal observations (including in respect of the relationship with [redacted]) and about tolerance of emotional and romantic relationships is relevant and admissible but should not be expressed as the “norm”. Evidence of an absence of disciplinary action in relation to former emotional relationship is

behaviour but do so anyway, they may be charged with misconduct — for disobeying a lawful order. I was never warned, moved (aside from the S58 application) or charged with a misconduct in regard to my relationships, either with [redacted] or [redacted].	segregation, it was the nature of those relationships which was of concern to ASCF staff not that the relationships themselves existed. The statements are also opinion (“the norm”).	admissible on account of its relevancy to the alleged disproportionality and unreasonableness of the impugned orders.
The following portion of para [23]: … I deny all the accusations [of] DMK that I was behaving inappropriately and even if what she said was true, it would not even register on the scale of common sexual behaviour by the girls in ASCF, such as grabbing men by the testicals (sic)…	Irrelevant and opinion evidence. This evidence is about other prisoners, which is irrelevant to any of the pleaded issues and has no bearing on the legality and reasonableness of the challenged directed segregation orders. The statements are also opinion (“the scale of common sexual behaviour”).	Denial of inappropriate conduct admissible. Ms Stevens can place the observed conduct which she says was the catalyst for the 12 May 2021 order within the context of other conduct which Ms Stevens has observed and which has not resulted in segregation orders as part of her proportionality and unreasonableness claims.
The entirety of para [25]: The norm at ASCF at this time, in regard to relationships which were not approved of, or went over the line, was to give warnings or separation to different wings. The “least restrictive outcome” was not transfer to the most restrictive regime in ASCF, the punishment cells.	Opinion evidence. The statements are opinion as to ASCF’s policy for a range of different matters outside of the applicant’s knowledge and not supported by written documents.	The applicant agrees to delete the last sentence. Opinion evidence expressing the “norm at ASCF” is inadmissible. Ms Stevens may, however, depose to her experience which is admissible under ss 7 and 8 in the context of her allegations.
The entirety of para [27]:	Opinion evidence.	Evidence of the practical implications of voluntary segregation is admissible as part of the applicant’s

This is misleading. Prisoners in voluntary segregation are usually more vulnerable than mainstream prisoners because of gang conflicts, because of their offending or because they have never been in prison before, not only because of their age. Also in voluntary segregation you are on 23 hour lockdown, so there is much less opportunity for interaction and it is all on camera.	The statements are opinion as to how voluntary segregation operates and who is subjected to the voluntary/protective segregation regime.	case that the impugned orders were disproportionate and unreasonable. The balance of the paragraph is inadmissible opinion evidence.
The entirety of para [39]: Leaving aside the issue as to whether any of the alleged threats were ongoing, I did not have to be held in solitary confinement until I was transferred to Auckland Prison on 1 November 2021.	Submission. These statements are outside of the applicant’s knowledge and amount to legal submission as to how she should have been managed while at ASCF.	The applicant agrees to deletion of the words down to and including “until”. The balance of the paragraph is unobjectionable.
The entirety of para [40]: When I was in solitary I spoke with another prisoner there by the name of [redacted]. In solitary you can talk to other prisoners through the walls, if your cells are close and if you are in the next exercise yard. [Redacted] told me that ASCF had put him in HBK2W2 and he knew himself to be in danger. Then, like me ASCF used [redacted]’s fear  of  being  in  HBK2W2,  to  not  place  him anywhere   else   in   the   prison.   I   understand	Hearsay, irrelevant, opinion evidence and scandalous. This evidence is about matters which are irrelevant to any of the pleaded issues and has no bearing on the legality and reasonableness of the challenged directed segregation orders. [Redacted]’s experience of ASCF and/or segregation has no bearing on the legality of the directed segregation orders that the applicant was managed under.	The evidence is hearsay for which no proper basis for admission is made out under s 18 of the EA. The statement as to ASCF’s manipulation of [redacted]’s fear is opinion evidence and inadmissible accordingly.

[redacted] also has current proceedings in the High Court, in regard to ASCF’s treatment of him.	The statements are also hearsay (“he told me that”), opinion (“used [redacted]’s fear”) and scandalous, in the particular, the statements about [redacted]’s experience.
The entirety of para [43]: At paragraph 26 and following of his affidavit Gerald Smith ‘GS’ sets out the voluntary segregation regime in ASCF but does not inform that on voluntary segregation, ASCF prisoners are on 23 hour lockdown and that the 1 hour time  unlocked is closely monitored.	Submission. These statements are outside of the applicant’s knowledge and amount to legal submission as to how she should have been managed while at ASCF.	The applicant agrees to deletion of the words down to and including “that” in the fourth line. The balance of the paragraph is unobjectionable.
The entirety of para [45]: This is not true. I was placed on segregation for months, in the SRU, as a punishment, for the reasons I have set out in my affidavits.	Submission. These statements are outside of the applicant’s knowledge and amount to legal submission as to how she claims to have been managed while at ASCF.	To the extent useful, Ms Stevens can state her perception that she was being punished (s 24 of the EA).
The entirety of para [47]: At paragraphs 68–70 of his affidavit GS set out various protest actions of mine, without placing them in the context that some prison officers accepted that the protests had a basis in my wrongful treatment.	Hearsay, opinion evidence and scandalous. This belief of some prison officers is irrelevant to any of the pleaded issues and has no bearing on the legality and reasonableness of the challenged directed segregation orders.	The evidence is hearsay for which no proper basis for admission is made out under s 18 of the EA. Ms Stevens can depose to linkages between specific alleged treatment (presumably by Ms McKibbon) and specific acts of protest.

The statements are also hearsay (“some prison officers accepted”), opinion (“wrongful treatment”) and scandalous.
The following portion of para [51]: … This is misleading. Romantic relationships between prisoners have been around for a long time. As I have said above, there are clear rules around this, which everyone knows.	Opinion evidence and submission. The statements are opinion (“have been around” and “which everyone knows”) and are outside of the applicant’s knowledge and amount to legal submission.	My previous comments apply. Evidence of personal observation of tolerance or acceptance of emotional or romantic relationships is admissible in the context of the proportionality and unreasonableness challenges.
The following portion of para [55]: … It is my belief that ASCF invents safety concerns when dealing with prisoners like me.	Irrelevant, opinion evidence and scandalous. This evidence is about matters which are irrelevant to any of the pleaded issues and has no bearing on the legality and reasonableness of the challenged directed segregation orders. The statement is also opinion (“it is my belief”) and scandalous, in that it makes serious allegations without any corroborating evidence.	The statement is opinion evidence not saved by    s 24 of the EA and inadmissible accordingly.
The following portion of para [57]: … ASCF would only place me in HBK2W2, which was a violent high security wing. This was a dangerous and inappropriate placement for a low security trans prisoner and GS knows that.	Opinion evidence and submission. The statements are opinion (“this was a dangerous and inappropriate placement”) and are outside of the applicant’s knowledge and amount to legal submission.	Evidence of options available to ASCF and of the applicant’s personal experience within HBK2W2 is admissible. Likewise, whether the applicant felt safe there. Redrafting is required to avoid an objection under s 23 of the EA, appropriately made against the evidence in its present form.

The entirety of para [58]: All three deponents for ASCF claim to be highly qualified prison officers. Leaving aside the point that they have provided no records of any complaints or warnings of safety concerns, they should know that in prison there are many stresses and conflicts between prisoners and that one of the most common ways prisoners can pay out on other prisoners is by making false complaints. None of the deponents relate that the ASCF even considered whether or not any of the alleged complaints or safety concerns were false. Submission. These statements are outside of the applicant’s knowledge and amount to legal submission as to how she claims to have been managed while at ASCF. The applicant agrees to this paragraph being struck out.