Court:Elias CJ, Blanchard, Tipping, McGrath and Henry JJ
Counsel:T Ellis, D La Hood and A C Wills for Appellants

C Gwyn, D J Boldt and B Keith for Respondents

Judgment:31 August 2007

JUDGMENT OF THE COURT

A The appeals are dismissed.
B The cross-appeals are allowed to the following extent:
1.The damages awarded to Mr Taunoa are reduced to $35,000.
2.The damages awarded to Mr Robinson are reduced to $20,000.
3.The damages awarded to Mr Kidman are reduced to $4,000.

CThe cross-appeal in relation to Mr Gunbie is dismissed.
DCosts are reserved. If any question of costs arises counsel may file memoranda.

REASONS

Para No

Elias CJ  [1]
Blanchard J  [121]
Tipping J  [275]
McGrath J  [336]
Henry J  [382]

ELIAS CJ
The appeals and cross-appeals
[1]       The appeals and cross-appeals are concerned with the treatment of five prisoners held under a programme operated in Auckland Prison by the Department of Corrections between 1998 and 2004. The programme was called the “Behaviour Modification Regime” and, later, the “Behaviour Management Regime”. I refer to it throughout as “BMR”. BMR was found in the High Court to have been applied to the prisoners in breach of s 23(5) of the New Zealand Bill of Rights Act 1990 because they were not treated with humanity and with respect for their inherent dignity.[1] The Court of Appeal confirmed the finding of breach of s 23(5) in respect of all prisoners and held further that the placement on the regime of Lesley Frederick Tofts constituted disproportionately severe treatment contrary to s 9 of the New Zealand Bill of Rights Act.[2] These conclusions as to breaches of ss 23(5) and 9 have been accepted by the Attorney-General. In the High Court, the five prisoners were granted declaratory relief and were awarded damages,[3] in application of Simpson v Attorney-General [Baigent’s Case].[4] The Court of Appeal upheld that relief.
[1]Taunoa v Attorney-General (2004) 7 HRNZ 379 (Ronald Young J) (the liability judgment) at para [276].
[2]Attorney-General v Taunoa [2006] 2 NZLR 457 (Anderson P, Glazebrook, Hammond, William Young and O’Regan JJ) (the Court of Appeal judgment) at paras [135] – [148].
[3]     Taunoa v Attorney-General (2004) 8 HRNZ 53 (Ronald Young J) (the relief judgment).
[4][1994] 3 NZLR 667 (CA).

[2]       The appellants Christopher Hapimana Ben Mark Taunoa, Alistair Wayne Robinson and Matthew George Kidman appeal against the rejection by the High Court and Court of Appeal of their claim that their treatment while on BMR also amounted to “cruel, degrading, or disproportionately severe treatment or punishment”, in breach of s 9 of the New Zealand Bill of Rights Act. Taunoa, Robinson, Kidman and Tofts also appeal against the damages awarded to them on the grounds that they were too…

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.

Continue reading Taunoa v Attorney-General

Details

AGLC: Taunoa v Attorney-General [2007] NZSC 70
Case: [2007] NZSC 70
Decision Date: 31 August 2007

CaseChat Overview and Summary

The Supreme Court of New Zealand heard appeals and cross-appeals related to the treatment of five prisoners held under the Behaviour Management Regime (BMR) in Auckland Prison between 1998 and 2004. The regime was found to be unlawful by the High Court and the Court of Appeal, as it failed to treat prisoners with humanity and respect for their inherent dignity, in breach of s 23(5) of the New Zealand Bill of Rights Act 1990. The Court of Appeal also found a breach of s 9 of the Act in relation to one of the prisoners. The prisoners sought additional declarations, damages, and an independent investigation into their treatment. The Attorney-General cross-appealed on the grounds that the damages awarded were excessive and that no award was appropriate for some of the prisoners. The Supreme Court dismissed the appeals but allowed the cross-appeals, reducing the damages awarded to three of the prisoners. The Court found that the cumulative conditions of the BMR amounted to cruel, degrading or disproportionately severe treatment in breach of s 9 of the Act. The Court also held that the failure to observe natural justice principles in the placement and continuation of prisoners on the BMR contributed to the severity of the treatment. The Court concluded that an award of damages was necessary to provide an effective remedy for the breaches of ss 9 and 23(5) of the Act. The Court did not find it necessary to order an independent investigation into the treatment of the prisoners.

Orders