Thacker v Attorney-General - [2022] NZHC 3287

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-545

[2022] NZHC 3287

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for interim orders

BETWEEN

JIM DAVID THACKER

Applicant

AND

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

First Respondent

VISTING JUSTICE AT AUCKLAND PRISON

Second Respondent

Hearing: 5 December 2022

Counsel:

J Mason for Applicant

N Copeland for First Respondent

Judgment:

8 December 2022

JUDGMENT OF CHURCHMAN J

[1] Mr Thacker is in Auckland Prison awaiting sentence on a raft of serious charges.1 Mr Thacker has not been a model prisoner. He has had a number of restrictions imposed on him as a result of his behaviour. In the substantive proceedings, Mr Thacker seeks judicial review of his directed segregation, claiming

1 His charges included aggravated robbery, driving while disqualified, unlawfully carrying/possessing a firearm, participating in an organised criminal group, engaging in money laundering transactions, supply/administer/dealing with methamphetamine and amphetamine, and possession for supply of methamphetamine and amphetamine. He has recently been found guilty of all charges.

THACKER v ATTORNEY-GENERAL [2022] NZHC 3287 [8 December 2022]

that it amounted to unlawful solitary confinement, as well as decisions declining him contact with his family. His application 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.

[2] The first respondent is the Attorney-General on behalf of the Department of Corrections, the second respondent is the Visiting Justice at Auckland Prison.

[3] This hearing focused solely on the interim orders that Mr Thacker seeks under s 15 of the Judicial Review Procedure Act 2016. Mr Thacker seeks interim orders granting him:

(a)three hours of phone calls a week to family;

(b)30 minutes of AVL time a week with family;

(c)access to the Secure Online Learning (SOL) computer suite for the purposes of preparing for his Criminal Trial, and his judicial review hearing;2

(d)restricted association, to allow him to mix with one other prisoner;

(e)any other relief the Court sees as necessary; and

(f)costs.

[4]He seeks these orders on the following grounds:

(a)he is suffering significant mental decline. Time on the phone to his family would ameliorate his mental health circumstances;

2 During oral argument, Mr Thacker’s counsel indicated that the parties had resolved this issue and relief in respect of it was no longer sought.

(b)he has a right to see his family, under s 73 of the Corrections Act 2004. If that cannot occur because of COVID-19, and/or Corrections’ staff shortages, then AVL visits should be substituted;

(c)his mental health has been in a consistent state of deterioration since being put into Solitary Confinement, which he contends was illegal. He has undertaken no violent actions against other prisoners or staff since 29 July 2021 and ought to be able to associate with at least one other person;

(d)he had…

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 [2022] NZHC 3287
Case: [2022] NZHC 3287
Decision Date: 8 December 2022

CaseChat Overview and Summary

Jim David Thacker sought interim relief under the Judicial Review Procedure Act 2016 in the High Court, pending a substantive application for judicial review of his directed segregation at Auckland Prison, which he claims amounts to unlawful solitary confinement. Thacker sought three hours of phone calls a week to family, 30 minutes of AVL time a week with family, access to the Secure Online Learning (SOL) computer suite, restricted association, and costs. The Attorney-General opposed the application on the basis that the orders sought would improve Thacker’s position rather than preserve it, and would require positive direction. The second respondent indicated they would abide by the Court’s decision. The legal issue before the Court was whether Thacker’s application for interim orders was necessary to preserve his position pending the substantive hearing. The Court found that the orders sought would improve Thacker’s position, rather than preserve it, and that the orders sought would substitute the Court’s view for that of Corrections staff responsible for the day-to-day operational management of Auckland Prison. The Court found that the orders sought were not necessary to preserve Thacker’s position pending the substantive hearing. Thacker’s application for interim orders was dismissed, and costs were reserved.

Orders