Thacker v Attorney-General - [2023] NZHC 1901

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-000545

[2023] NZHC 1901

IN THE MATTER OF The Judicial Review Procedure Act 2016

BETWEEN

JIM DAVID THACKER, Prisoner, of Auckland

Applicant

AND

ATTORNEY-GENERAL, sued for and on behalf of the DEPARTMENT OF CORRECTIONS, Wellington

First Respondent

AND

VISITING JUSTICE AT AUCKLAND

PRISON, Auckland Second Respondent

Hearing: 24 May 2023

Appearances:

J Mason and N T U Thrupp for the Applicant

S L K Shaw and E McDowell for the First Respondent No appearance for the Second Respondent

Judgment:

20 July 2023

JUDGMENT OF GENDALL J

Introduction

[1] The applicant, Mr Jim David Thacker, brings this judicial review application against the first respondent, the Attorney-General, sued on behalf of the Department of Corrections and the second respondent, the Visiting Justice at Auckland Prison (the Visiting Justice). There was no appearance for the Visiting Justice on this application before me, s/he advising me that s/he would abide the decision of the Court.

JIM DAVID THACKER, Prisoner, of Auckland v ATTORNEY-GENERAL, sued for and on behalf of the DEPARTMENT OF CORRECTIONS, Wellington [2023] NZHC 1901 [20 July 2023]

[2] Mr Thacker is in Auckland Prison. He seeks judicial review of his directed segregation, alleging that it amounted to “punishment” and unlawful solitary confinement, as well as decisions declining him contact with his family. His application for review relies on the grounds of improper purpose, failure to consider relevant considerations, consideration of irrelevant factors, bias, use of fettered discretion, substantive unfairness, error of law, legitimate expectation and breach of natural justice. Essentially, he maintains too the Department of Corrections (Corrections) discharged its functions and responsibilities and exercised decision- making powers in a way that is contrary to the Corrections Act 2004 and related regulations and policies; it failed to properly consider te Tiriti o Waitangi/the Treaty of Waitangi and international instruments; and it acted in breach of the New Zealand Bill of Rights Act 1990.

[3] Mr Thacker is currently a prisoner incarcerated in the Prisoners of Extreme Risk Unit (PERU) at Auckland Prison in Paremoremo. Mr Thacker was taken into custody on 15 June 2020 at Waikeria Prison near Te Awamutu. He remained there until 9 October 2020 when he was transferred to Auckland Prison. Since 11 January 2021, Mr Thacker has been in PERU. His period under conditions of directed segregation began on 23 September 2020 and was continuing as at the date of the hearing, amounting to a period of two years and eight months.

[4] The decisions Mr Thacker seeks to judicially review are a number of decisions to place, and keep, him in directed segregation and two decisions to decline Mr Thacker contact with his family, first via audio video call (AVL) and second in person.

Chronology

[5] In 2018, Mr Thacker was deported to New Zealand from Australia under s 501 of the Australian Migration Act 1958 on the basis that he was deemed to be a “person of…

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 Thacker v Attorney-General

Details

AGLC: Thacker v Attorney-General [2023] NZHC 1901
Case: [2023] NZHC 1901
Decision Date: 20 July 2023

CaseChat Overview and Summary

Jim David Thacker, a prisoner in Auckland Prison, sought judicial review of his directed segregation, alleging it amounted to "punishment" and unlawful solitary confinement, as well as decisions declining him contact with his family. The applicant's application for review relied on various grounds, including improper purpose, failure to consider relevant considerations, consideration of irrelevant factors, bias, use of fettered discretion, substantive unfairness, error of law, legitimate expectation, and breach of natural justice. The court considered the context in which the decisions Mr Thacker seeks to review were taken. The court held that directed segregation was not a form of punishment but a prison management tool designed to enable the orderly management of prisons and to diffuse potential flashpoints. The court was satisfied the Prison authorities made careful and considered decisions to manage the risk Mr Thacker posed. On this aspect, the court held that the decisions not to allow Mr Thacker AVL time were not substantively unfair. For all the reasons outlined above, Mr Thacker's application for judicial review was dismissed.

For the Applicant: Meredith Connell – Wellington

For the First Respondent: Phoenix Law Ltd

Orders