Taylor v Chief Executive of the Department of Corrections HC Auckland CIV 2009-404-7339

[2010] NZHC 476

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2009-404-7339

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF     an Application for Judicial Review and

Interim Relief

BETWEEN  ARTHUR WILLIAM TAYLOR Plaintiff

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing:         On the Papers

Appearances:  Plaintiff in person

V Casey for Defendant

Judgment:      13 April 2010 at 12 noon

JUDGMENT OF WILLIAMS J

(On the Papers)

This judgment was delivered by

The Hon. Justice Hugh Williams on

13 April 2010 at 12 noon

pursuant to Rule 11.5 of the High Court Rules

……………………………………………..

Registrar/Deputy Registrar

A.  Alternative applications for the appointment of amicus curiae or Court-

appointed  expert  is  adjourned  part-heard  for  parties’  consideration  of other strategies discussed in judgment.

B.  Telephone conference convened for 18 May 2010 at 9:00am

ARTHUR WILLIAM TAYLOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

HC AK CIV-2009-404-7339  13 April 2010

Issue

[1]      The  plaintiff,  is  an  inmate  of  the  East  Division  of  Auckland  Prison  at Paremoremo.

[2]      He is the father of a daughter born on 12 June 2007.

[3]      A  potted  history  of  the  position  concerning  Mr  Taylor,  his  wife  and  his daughter  over  the  period  late  2006-September  2009  appears  in  the  judgment  of Heath J delivered in this matter on 8 March 2010.

[4]      From August 2008-15 September 2009 Mr Taylor had contact visits with his daughter at Paremoremo but the Prison manager ended those visits on 15 September

for reasons briefly discussed by Heath J in the judgment mentioned.

[5]      These judicial review proceedings are brought by Mr Taylor to challenge the lawfulness of the manager’s action.

[6]      Heath  J,  in the  judgment  mentioned,  dismissed Mr  Taylor’s  application  for interim relief in the proceeding for the reasons he discussed, but expressed the view that the substantive hearing should be afforded “some” urgency.

[7]      During a  telephone  conference on  15 March  2010 Mr Taylor  asked  for the appointment of an amicus curiae to assist him in the proceedings.  Ms Casey for the defendant  objected  to  that  application  and  accordingly  it  was  required  to  be  dealt with on formal application.

[8]      On   19   March   2010   Mr   Taylor   filed   that   formal   application   for   an appointment  of  an  amicus  curiae  to  obtain  evidence  Mr  Taylor  requires  for  the substantive hearing of this claim from a criminologist, Dr Newbold, and an expert in child  psychology.  Alternatively,  Mr  Taylor  has  asked  the  Court  to  appoint  an independent  expert  to  report  on  such  matters.  He  proposed  that  the  costs  of  the amicus  or expert be paid by the Ministry of Justice.

[9]      The applications were based on s 27 of the New Zealand Bill of Rights Act

1990, this Court’s inherent jurisdiction and sub part 5 of part 9 of the  High Court

Rules dealing with the appointment of Court experts.

[10]     Corrections   abided   the   decision   of   the   Court   concerning   the   amicus application   and   suggested   this   was   not   the   appropriate   case   or   time   for   the appointment of an expert.

[11]     The  parties  filed  full  submission  and  agreed  that  the  applications  could  be determined on the papers.

Evidence and Submissions

[12]     Corrections   filed   an   affidavit   by   a   solicitor   employed   by   Corrections concerning the facilities available to Mr Taylor in Auckland Prison to conduct this (and his other) proceedings. He said Mr Taylor has been provided with a modified computer  with  word  processing  and  printing  facilities  but  with  Mr  Taylor’s  use being subject to a detailed agreement.  It was designed to assist him in preparing and managing his cases but was balanced against public safety concerns and the security and good order of the prison. That agreement has been extended and applies equally to civil and criminal proceedings.

[13]         The computer is in a separate area for Mr Taylor’s use for 2-2 ½ hours each morning and another half hour in the afternoon. He also has telephone access during those periods and the same rights as other prisoners to visitors and correspondence. Mr  Taylor’s  approved  free  calling  list  includes  his  lawyer,  Crown  Law  and  the CYFS social worker and counsel for the child involved in his custody matters. It is suggested Mr Taylor has not presently asked for special arrangement to telephone his proposed   expert   witnesses,   but   such   would   be   considered   once   details   were furnished.

[14]     Mr Taylor has been offered access to legal research material under Corrections current policy but although he has been given copies of  cases, he has refused to reimburse the Department for the costs of obtaining that material. Beyond

that material, the Department has offered to assist in arranging alternative means of obtaining  it  (for  instance  through  his  lawyer)  and  if  Mr  Taylor  wishes  to  make  a specific request for further material he can, as with other prisoners, apply. Mr Taylor has made a number of such applications but not ,as yet, in relation to the proposed experts.

[15]     Mr Taylor appears to have consulted Mr Tennet concerning this case – but not  yet  formally  instructed  him.  A  fax  of  17  March  2010  said  that  if  this  Court declines his amicus  application he “will have to reconsider obtaining counsel”.

[16]     In   his   supporting   memorandum   Mr   Taylor   submitted   that   were   these applications not to be granted his right of access to the Court on an important human rights issue would be rendered ineffectual and he would be denied equal access to justice.

[17]     He said that constraints on his communication and phone access have meant that he has had no meaningful discussion with Dr Newbold for over three months but

Dr  Newbold  has  written  on  maximum  security  prisons  and  is  well  versed  in sociological factors pertaining to them.

[18]     He said that at the date of his memorandum he had been unable to contact an expert child psychologist and evidenced that difficulty by attaching an affidavit he made  in  proceedings  declining to  find  that Corrections was  under an  obligation to provide him with unimpeded access to witnesses, legislation, case law and persons to assist his defence (Taylor v North Shore District Court, Department of Corrections and New Zealand Police[1]).

[1] Taylor  v  North  Shore  District  Court,  Department  of  Corrections  and  New  Zealand  Police  HC Auckland CIV-2009-404-2350, 24 March 2010, White J.

[19]     Similar issues of access to facilities were discussed by the Judge at length in that case. Whilst the decision focused on an accused’s right under s 24(d) of the New Zealand  Bill  of  Rights  Act  1990  to  adequate  facilities  to  prepare  a  defence,  it  is helpful to note White J’s following observations:

[84] But the difficulty with this approach is that it would mean that a self- represented  accused  who  is  in  fact  unable  to  meet  the  cost  involved  in obtaining adequate facilities to prepare and present his or her defence would be unable to have a fair trial without a legal aid lawyer. If an accused has a right to self-representation, then where it is established in the circumstances of a particular case that in order to receive a fair trial the accused does need access  to  facilities  such  as  legal  research  materials  and  would  be  able  to make use of them, but is unable to meet the cost involved, the Crown would in my view be required to meet the cost, to ensure that the accused was not impeded in the exercise of his or her right to self-representation. In order to implement the purpose of s 24(d), the obligation on the Crown to meet the cost involved in such a case would need to be implied. A violation of s 24(d) in such a case would not be an acceptable consequence of the decision of an accused  to  represent  himself  or  herself.  I  emphasise  that  the  question whether   a   particular   self-represented   accused   will   be   entitled   to   such assistance  from  the  Crown  will  need  to  be  determined  on  the  basis  of  the circumstances of the particular case and in the context of whether the right of the  particular accused to a fair trial  was likely to  be impeded  without  that assistance. I agree with the submission for the Crown that s 24(d) does not create an unqualified right to comprehensive legal research materials at  no cost to an accused.

[85] In Mr Taylor’s case the question whether he is in fact able to meet the cost  involved  in  obtaining  access  to  legal  research  materials  is  in  dispute and,  as  already  noted,  is  not  able  to  be  resolved  in  the  context  of  this proceeding under the Declaratory Judgments Act.

[86] It would also be premature to conclude that Mr Taylor’s rights to have access to potential defence witnesses and other assistance for the purpose of preparing  his  defence  to  the  criminal  charges  have  or  will  be  impeded  to such  an  extent  that  he  will  be  deprived  of  his  right  to  a  fair  trial.  The evidence to  date  on these  issues  is  also  disputed  and there  should  be time before Mr Taylor’s trial, which is not expected before March 2011, to ensure that his rights in this regard are met.

[20]     In his  memorandum Mr Taylor made the point that his  telephone  access  is both restricted in the numbers he can call and that the one pay phone he must use is in  competition  with  other  prisoners.  Calls  are  expensive  to  persons  other  than  the Ombudsmen,  CYFS,  other  official  functionaries  and  counsel.   He  makes  the  point that  recording  calls  to  counsel  may  breach  legal  professional  privilege. He  also makes  the  point  that  Corrections  takes  the  view  it  is  under  no  obligation  under Reg 193 of the Corrections Regulations 2005 to make additional facilities available as that regulation relates only to criminal proceedings.

[21]     He said that to adequately brief Dr Newbold and obtain affidavit evidence would, Mr Taylor thinks, take between three and four hours over the telephone outside of the criminologist’s lecture time, something  which  is  unavailable  and

unaffordable during Mr Taylor’s telephone access periods.  He also said he would be unable to meet Dr Newbold’s fees and disbursements.  Similar considerations apply

as regards an expert witness in child psychology.

[22]     All in all, Mr Taylor submitted that what he sought in this application was no more than is vouchsafed by s 27 (1)(3) of the New Zealand Bill of Rights Act 1990.

[23]     Accordingly,  he  submitted,  the  “Court  has  a  positive  duty  to  take  such measures  as  may  be  necessary  to  protect  its  processes  and  ensure  fairness  and compliance  with  natural  justice”,  that  the  Courts  should  be  “especially  alert  to safeguarding the effective ability of a party to prosecute their case where, as here, the other party has the control over many of the facilities they need to do so”.

[24]     He  submitted  the  appointment  of  a  Court  expert  would  be  an  appropriate alternative should his amicus  application fail.

[25]     For Corrections, Ms Casey relied on the Departmental affidavit as supporting her submission that  the  Department  had  gone  as  far  as  was  reasonable  in  the circumstances to assist Mr Taylor and certainly as far as it was obligated so to do. She  pointed   to   what   she   suggested   was   lack   of   evidence   of   Mr   Taylor’s impecuniosity stating that, should his financial position be such that he was entitled to legal aid, he should apply and, if not, should not be permitted to “sidestep” the legal aid system by the appointment of a amicus.

[26]     She pointed to appointments of amici   being rare in criminal proceedings –

R v Chatha[2]and White J’s decision in the case previously discussed – and still rarer should that be the case in civil matters.

[2] R v Chatha [2008] NZCA 547.

[27]     She  pointed  to  what  she  submitted  was  a  lack  of  evidence  that  Mr  Taylor could  not  brief  Dr  Newbold  or  a  child  psychologist  if  special  arrangements  were sought. She suggested the Court might consider appointing counsel for Mr Taylor at a later stage of the proceedings.

[28]     In relation to the Court expert application, Ms Casey again submitted there was an evidential dearth to support Mr Taylor’s assertion he could not meet the cost

of an expert and made the point that Court experts are normally appointed to resolve matters for the Court not as a means of funding one party’s expert evidence. Under

r 9.36(1), Mr Taylor’s application was both misconceived and premature given the pleadings were not finalised.

[29]     Mr Taylor’s responding and updated memorandum said that, since his earlier memorandum, he had been able to telephone Dr Newbold once. He was scornful of Ms Casey’s submissions concerning his finances and submitted the Court would be unable to decide the case justly in the absence of the evidence he proposed to call.

[30]     He  pointed  to  R  v  McFarland  & Brooks[3]  as  to  the  variable  role  that  amici might play, a submission on which he elaborated by reference to a number of other cases where amici had been appointed.

[3] R v McFarland & Brooks [2007] NZCA 449

[31]     He concluded by submitting this case is an important one involving human rights issues concerning prisoners and children and thus had the potential to affect the large number of people.

Discussion and Decision

[32]     At the present time – emphasising that phrase – it must initially be said that

Mr Taylor’s applications face at least the following significant hurdles:

a)            Whilst Mr Taylor has spoken with Dr Newbold, there is no indication on  the  file  that  Dr  Newbold  would  be  prepared  to  assist  him  or whether  he  feels  that  he  has  expert  evidence  which  may  be  of assistance to the Court in deciding this case.

b)Similarly,  as  yet,  Mr  Taylor  has  not  even  identified  an  expert  child psychologist,  still  less  named  that  person  and  ascertained  whether

they, like Dr Newbold, are prepared to assist and believe they could give relevant evidence.

c)        There is no indication on the file as to the likely cost of an amicus or a Court  expert,  still  less  the  likely cost  of  involving Dr Newbold  or  a child psychologist.

d)Although the cases reviewed by Mr Taylor show that amici have been appointed on a number of occasions so as – putting it broadly – that the  fairness  of  a  trial  to  all  participants  can  be  preserved  as  far  as possible, it remains the case that the basic role of an amicus is to assist the Court – not particularly to assist a litigant – and the basic role of a Court expert appointed under r 9.36(1) is to comply with the code of conduct  for  expert  witnesses  and  “inquire  into  and report upon any question  of  fact  or  opinion  not  involving questions of  law  or  of construction”. That role is well removed from the somewhat partisan evidence Mr  Taylor  obviously expects  Dr  Newbold  and  the  child psychologist to provide. (There are a number of other preconditions to the  appointment  of  the Court expert, but they need  not be considered at this stage).

[33]     Whilst it is not difficult to  conceive  of  the  possibility  a  Court  trying

Mr Taylor’s substantive proceeding  may derive  relevant  and  useful  evidence  from

Dr   Newbold   and   a   child   psychologist,   it   remains   a   fundamental   hurdle   to Mr Taylor’s  applications  that  the  roles  of  an  amicus  curiae  or  a  Court  expert  are essentially  non-partisan  –  and  fundamentally  Mr Taylor  wishes  to  engage  them  to obtain evidence which basically will be to help his case, not to help the Court.

[34]     All those factors combined indicate that the appropriate course might well be

to dismiss Mr Taylor’s applications on the basis of the confusion of roles between what  he  wants  and  what  assistance  the  Court  is  likely  to  get. The  lack  of particularity in what Mr Taylor proposes also make an appointment inappropriate or likely to be unhelpful in the resolution of these proceedings.

[35]     But that tentative view may turn out to be wrong. If at least an outline of the proposed evidence is detailed, the Court may find that of relevance and of assistance

in deciding issues in the proceeding. Therefore, as did White J in the passage recited from  Mr  Taylor’s  other  case,  it  would  appear  to  be  premature  to  conclude  that Mr Taylor’s  rights  to  have  access  to  potential  witnesses  and  other  assistance  may result in the Court not having the benefit of evidence relevant to the issues pleaded. There is simply insufficient material on the file to reach a concluded view on that topic.

[36]     Two  possible  courses  of  action  commend  themselves  as  worth  further inquiry.

[37]     The first is that Dr Newbold and a nominated child psychologist should be invited to submit to the Court and the parties a résumé of the evidence they believe they would be able to give which would be of assistance to the Court in resolving the issues, together with an estimate of the fees and disbursements likely to be incurred

in that exercise. That  might  include  the  cost  of  spending  sufficient  time  with Mr Taylor – either in person or on the telephone – to familiarise themselves with the issues  and  gain  an  impression  of  the  degree  to  which  they  might  assist. Since Heath J directed that this case be accorded “some urgency”, those résumés should be filed and served within 28 days of delivery of this judgment.

[38]     The other possible line of action is that, in his latest memorandum, Mr Taylor said  that,  amongst  the  persons  whom  he  can  telephone  apart  from  the  prison  pay phone,  is  Ms Cobcroft  as  counsel  for  his  daughter.   The  Corrections  affidavit  said that Ms Cobcroft is counsel for the child in a custody case in which Mr Taylor must be involved.  But the interests of Mr Taylor’s daughter in this litigation would appear to be likely to parallel those of her father and the evidence of the criminological and psychological evidence Mr Taylor wishes to adduce would appear to be as relevant to his daughter’s position as to Mr Taylor’s.  It is, of course, recognised that this case challenges the lawfulness of Corrections’ actions in ending custodial visits between Mr Taylor and his daughter.   But if, at the end of this case, Corrections’ actions in ending  those  visits  were  to  be  held  unlawful  as  far  as  Mr  Taylor  is  concerned,  it

would seem to follow they would almost certainly be unlawful as far as his daughter

is concerned as well.

[39]     In those circumstances, consideration might usefully be given by the parties

to  the  possibility  of  appointing  counsel  for  the  daughter  in  these  proceedings, directing that counsel be served pursuant to s 10(2)(c) of the Judicature Amendment Act 1972, and making appropriate procedural or timetable directions.

[40]     Should  that  course  be  followed,  it  seems  highly  likely  that  Mr  Taylor’s daughter would be entitled to legal aid for her counsel and accordingly that counsel, if he or she considered it appropriate, could consider the benefit to his or her client of calling  criminological  and  psychological  evidence.          They  could  seek  legal  aid funding for that course if it seemed best so to do.

[41]     Mr Taylor and Ms Casey are to advise their views on that possible course of action also within 28 days of delivery of this judgment.

[42]     In  formal  terms  Mr  Taylor’s  applications  for  appointment  of  an  amicus curiae  or  a  Court-appointed  expert  are  adjourned  part  heard.   They  and  the  other issues discussed in this Judgment will be dealt with at a further telephone conference with Williams J to be convened on 18 May 2010 at 9:00 am.

.................................................................

HUGH WILLIAMS J.

Solicitors:
Crown Law, PO Box 2858, Wellington 6140

Copy to:
Arthur William Taylor, Auckland Prison, Private Bag 50-124, Albany, North Shore 0752

Case Officer:      Vasantha[email protected]
Schedulers:        Corrin[email protected]  /  Michel[email protected]