Taylor v Attorney-General

[2018] NZHC 2557

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-797

[2018] NZHC 2557

UNDER

the New Zealand Bill of Rights Act 1990 and the Declaratory Judgments Act 1908

IN THE MATTER

of unreasonable search and public law compensation in the manner of Baigent damages

BETWEEN

ARTHUR WILLIAM TAYLOR

First Plaintiff

PHILLIP JOHN SMITH
Second Plaintiff

AND

THE ATTORNEY-GENERAL ON BEHALF OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Defendant

Hearing:

19 – 21 March 2018

Appearances:

First and Second Plaintiffs in person with Ms T Hartman as McKenzie Friend for First Plaintiff

P J Gunn and K Laurenson for Defendant

Judgment:

28 September 2018

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 28 September 2018 at 4 pm pursuant to r 11.5 of the High Court Rules

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

Solicitors:           Crown Law Office, Wellington Copy for:  First and Second Plaintiffs

TAYLOR v ATTORNEY-GENERAL [2018] NZHC 2557 [28 September 2018]

Introduction

[1]                  On 21 October 2016, the plaintiffs, both serving prisoners then housed in East division at Auckland Prison (“division” and “prison”), were “strip searched”. Their case is that the strip searches were unlawful; unreasonable and so in breach of s 21 New Zealand Bill of Rights Act 1990 (“NZBORA”); and inhumane or undignified, and so in breach of s 23(5) NZBORA. They seek declarations accordingly, and compensation of $10,000 each.

Background

[2]                  The prison is New Zealand’s only “maximum security” facility and as such houses many, if not all, of the country’s most violent and dangerous offenders.

[3]                  On 19 October 2016, four prisoners in C block of the division attacked prison officers (“assault”). An officer brought items requested by a prisoner to a grille that separated prisoners from officers. As the officer opened the grille, three other prisoners appeared and forced open the grille. The four prisoners began attacking the officers present, fighting and kicking them. Two prisoners had “home-made” weapons, referred to as “shanks”, which they used to stab officers.

[4]                  Other officers ran to the scene and eventually brought the situation under control. In all, four officers were injured, one of whom required hospital treatment.1

[5]                  Staff recovered three weapons from the prisoners. An important point for present purposes is that one or more appeared to have been fashioned from a metal bracket within the “standard issue”, and intended to be tamper proof, television available to prisoners.2 The brackets are one of just a handful of metal items in the TVs which are cased in clear plastic.

[6]                  One officer thought two of the prisoners appeared drunk.3 Officers later located a plastic bag containing fruit and liquid, and suspected that the prisoners had

1      Evidence of R T Sherlock, Notes of Evidence (“NoE”) at 64–65.

2      At 64.

3 Brief of Evidence of M E Beukes dated 9 October 2017 at [3].

been drinking “homebrew”. This suspicion was never confirmed, however, and the contents of the bag were not tested…