Thacker v Attorney-General
[2022] NZHC 3287
•8 December 2022
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 a right to adequate facilities to prepare his defence against his criminal charges (now all resolved), and to prepare for his case in these interim proceedings, and his related judicial review proceedings; and
(e)upon the further grounds set out in his affidavit dated 19 October 2022.
[5] The Attorney-General opposes Mr Thacker’s application for interim orders, and says that it should be dismissed. He says that the orders sought seek to improve Mr Thacker’s position, rather than preserve it, and would require a positive direction, which is not permissible. The second respondent has indicated that they will abide by the Court’s decision, and has been granted leave to take no further actions in respect of these proceedings.
Background
[6] In 2018, Mr Thacker was deported from Australia as a “501”. He was charged in 2020, and placed in Waikeria Prison on remand on 15 June 2020. He was transferred to Auckland Prison on 9 October 2020, where he is managed by the Prisoners of Extreme Risk Unit (PERU).
[7] Mr Thacker is subject to directed segregation with denied association pursuant to s 58(1)(b) of the Corrections Act 2004. This first commenced on 23 September 2020, on a temporary basis to 6 October 2020. On 25 September 2020, Mr Thacker was placed on directed segregation after he displayed violent behaviour towards another prisoner. He disputed this episode, saying that he had a friendly boxing match
with a fellow prisoner who is known to him. Following a further incident in which Mr Thacker threatened to kill Corrections staff, another direction of directed segregation with restricted association was made on 7 October 2020.
[8] Directed segregation is an operational practice by which Corrections staff restrict the ability of a prisoner to interact with other prisoners, either in relation to individuals or generally. Such practice is generally recognised as lawful, provided it does not amount to solitary confinement in the terms of the Mandela Rules.3 Those rules prohibit prolonged or indefinite solitary confinement, and define solitary confinement as:4
For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.
[9] Mr Thacker’s current status as subject to directed segregation with denied association means that he may speak with others in his unit but is unable to physically associate with them. He interacts with Corrections staff regularly, and is allowed out of his cell to exercise.
[10] The restrictions applying to Mr Thacker vary from time to time according to his behaviour. Currently he has one hour and 15 minutes of phone calls per week. This is comprised of a 45-minute period on a Wednesday and a 30-minute period on a Friday. Mr Thacker initially had 45 minutes of phone calls but extra minutes were added once face-to-face visits at Auckland Prison stopped due to COVID-19. Mr Thacker is not currently eligible to have AVL calls, although he has recently had an AVL call following the outcome of his trial. He disputes the circumstances that have led to his eligibility being removed.
[11] In this hearing relating to interim relief by way of judicial review, it is not appropriate for the Court to attempt to resolve disputed issues of fact.
3 Section 5(1)(b) of the Corrections Act provides that a core purpose of the Corrections system is to provide for prisons to be operated in accordance with the Mandela Rules.
4 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) GA Res 70/175 (2015), r 44.
Positions of the parties
Mr Thacker
[12] Ms Mason, counsel for Mr Thacker, submits that there is no jurisdictional bar to the making of positive orders pursuant to s 15 of the Judicial Review Procedure Act 2016. She says that the Court must make a determination as to whether the orders are necessary to preserve Mr Thacker’s position, and whether it is appropriate to make such an order.
[13] Ms Mason submits that prisoners are extremely vulnerable to mental injury on account of incarceration conditions, particularly solitary confinement. She says that there is evidence that Mr Thacker’s mental health has been in decline. She relies on the evidence of Dr Caleb Armstrong, a forensic psychiatrist, who says that Mr Thacker’s behaviour is a result of psychosis, and that reconnection with his family will assist. She says that now that Mr Thacker’s trial has concluded, there is no need for his phone calls to be live monitored. She indicated that Mr Thacker accepted the need for some monitoring of his calls.
[14] Ms Mason accepts that AVL may ordinarily be a privilege, but that it should not be when Corrections cannot actually facilitate a prisoner’s entitlement to a 30- minute visit each week. She says that in such circumstances, AVL visits should be substituted. She says that the revocation of Mr Thacker’s use of AVL is unfair and should be revisited.
[15] Ms Mason submits that Mr Thacker’s association restrictions have been continuously rolled over without justification or consideration given to his mental health, despite positive behaviour on his behalf. She says:
The Applicant’s mental health has been in a consistent state of deterioration since being put into Solitary Confinement, which the Applicant contends was illegal. He has undertaken no serious violent actions against other prisoners or staff, and ought to be able to associate with at least one other person. Accordingly, the Plaintiff seeks from the Court a declaration that he be allowed to associate with one other prisoner.
Attorney-General
[16] Counsel for the Attorney-General, Ms Copeland, submits that the orders sought by Mr Thacker are not necessary to preserve his position. She says that the orders sought would instead significantly improve his position, by giving Mr Thacker access to entitlements that he has not previously had.
[17] As to phone calls, she says that Mr Thacker already has an entitlement (an hour and 15 minutes per week) that is significantly in excess of the minimum entitlement (five minutes per week). As to the use of AVL, she says that Mr Thacker is currently not eligible for the use of AVL for calls owing to the Prison Operations Manual, which makes a pre-condition for such eligibility that a prisoner has not previously failed to comply with conditions. Mr Thacker has previously failed to comply with conditions of AVL calls, and has faced other misconduct charges, including an arson charge which resulted from Mr Thacker setting his cell on fire on 6 July 2022.
[18] Ms Copeland submits that in the circumstances, Mr Thacker’s current ineligibility for the privilege of AVL calls does not prejudice his ability to keep in contact with his whānau and receive their support. She says that granting the relief sought would amount to a disregard of the Prison Operations Manual, mandate access to what is a privilege, and improve Mr Thacker’s current position. She says that Corrections assess and respond to Mr Thacker’s requests for AVL calls, making a decision based on the circumstances at the time. This is evident in the facilitation of an AVL call on 29 November 2022.
[19] Ms Copeland submits that the orders sought regarding Mr Thacker’s association status seek to subvert the substantive matter. She says that they go to the “heart of the decisions that are to be judicially reviewed and are encompassed within the prayer for relief in the amended statement of claim”. She says that they are not appropriate to consider on an interim basis as that would directly circumvent the substantive proceeding, and that they are not necessary to preserve Mr Thacker’s position pending hearing.
[20] Ms Copeland submits that there are strong public interest factors against the granting of interim relief in the circumstances. She says that the underlying
application has little merit because it attempts to displace operational decisions taken by prison management, rather than genuinely debate their lawfulness. She says that the orders would require positive action, and are therefore inappropriate, because they would challenge resource allocation decisions, putting the Court in a position of mandating day-to-day prison management. She submits that dictating how resources ought to be allocated would be to the detriment of other prisoners. As an example of this, she says that if Mr Thacker was granted a greater entitlement to phone calls, another prisoner or prisoners would have their entitlement reduced. She says that public policy considerations weigh in favour of declining relief.
Analysis
The legal position
[21]Section 15 of the Judicial Review Procedure Act 2016 provides:
15 Interim orders
(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2)The interim orders referred to in subsection (1) are interim orders—
(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power
…
(3)However, if the Crown is a respondent,—
(a)the court may not make an order against the Crown under subsection (2)(a) or (b); but
(b)the court may, instead, make an interim order—
(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:
(ii)declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.
(4)An order under subsection (2) or (3) may—
(a)be made subject to such terms and conditions as the court thinks fit; and
(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[22] The Court is therefore empowered to make interim orders preserving an applicant’s position, if it considers that it is necessary to do so. That requirement has generally been described as meaning ‘reasonably necessary’. The Court has a wide discretion to consider all of the circumstances, including the merits of the claim, the balance of convenience, and the consequences of granting interim relief.5 The purposes of such relief are to:6
…relieve the applicant from the adverse effects of a challenged decision until the challenge is heard and determined, and to preserve the ability of the Court to grant effective relief if the challenge is successful.
[23] The Court can declare that the Crown ought not to take any further action consequential on the exercise of a statutory power, if it considers that it is necessary do to so, in order to preserve the applicant’s position. When considering that, the following principles are relevant:
(a)whether the applicant would be unfairly prejudiced by reason of a delay in obtaining a final hearing;7
(b)whether there is in fact a position to be preserved, and a necessity that it be preserved;8 and
5 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423, (1986) 2 TCLR 7 (CA); ENZA Ltd v Apple & Pear Export Permits Committee HC Wellington CP266/00, 18 December 2000; and Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, 18 PRNZ 754 at [3].
6 Greer v Chief Executive of Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [24].
7 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).
8 Above n 7.
(c)whether interim relief would improve the position of the applicant, rather than merely preserve it.9
[24] Generally, the Courts have held that interim relief cannot be of a positive or mandatory nature.10 In McBride, a student at the Christchurch College of Education sought to be reinstated after having his enrolment cancelled, pending the determination of a substantive review application.
[25] His application for interim orders was heard pursuant to s 8(a) of the Judicature Amendment Act 1972, which is essentially identical to s 15(a) of the Judicial Review Procedure Act 2016. The Court stated:11
In this case the applicant is seeking a positive or mandatory order for reinstatement. Such an order does not appear to come within any of the three powers listed above.
…
I am not, however, satisfied that this is a case where the Court has the jurisdiction or should make an interim order to reinstate the student on an interim basis. Such an order would not be one in terms of s 8(1) since it would not be prohibiting further action or staying any proceedings.
[26] That position was accepted by the High Court in Taylor v Chief Executive of the Department of Corrections [2010] NZAR 234. However, on appeal, the Court of Appeal considered (again in relation to s 8) that:12
While orders and declarations under s 8 which, in substance, require a respondent to take positive steps would be relatively rare, we do not consider there is a jurisdictional bar to orders having that effect where it is necessary to preserve the applicant's position and where, as a matter of discretion, it is appropriate to make such an order. The discretion is wide and, as has been observed,13 it is undesirable to trammel it with formulations or limitations not found in the section itself.
Despite taking this view, Mr Taylor’s appeal was still dismissed.
9 Squid Fishery Management Company Ltd v Minister of Fisheries (2004) 17 PRNZ 97 (HC); Forster v New Zealand Chiropractic Education Trust Board of Chiropractic [2010] NZAR 361 (HC).
10 McBride v Council of the Christchurch College of Education (1994) 7 PRNZ 662 (HC).
11 At 664–665.
12 Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112 at [27].
13 Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) at 23 per Cooke P.
[27] The High Court has more recently considered that its inherent power to make interim orders on “whatever terms and conditions the court thinks just”,14 provides another avenue by which the Court may grant interim relief on expansive terms.15 However, in that case, Walker J considered that:16
While the interim orders I made in this instance take the form of mandatory terms, because of the manner of their expression, they do not require the respondent to take positive steps other than to stipulate any further reasonable conditions to minimise the public health risk. The orders are therefore distinguishable from those at issue in Taylor v Department of Corrections, where the interim orders would have required Corrections to take positive steps to provide Mr Taylor with a computer. In substance and effect, the permission is really more akin to a prohibitive interim order in the sense that it restricts enforcement of the isolation requirements against Mr Christiansen.
[28] This case potentially supports the proposition that there is no longer considered to be a strict jurisdictional bar to the granting of positive interim orders pursuant to s 15. Nevertheless, the Courts have been reluctant to grant such orders, unless there exists a good reason to do so. It is a high threshold.
Discussion
[29] I accept, for the reasons set out in Ms Copeland’s submissions that the orders sought by Mr Thacker are not necessary to preserve his position pending disposition, and instead seek to improve it. Indeed, neither Mr Thacker nor his counsel have been able to identify a position that is sought to be preserved, that would be harmed by a failure to issue interim orders.
[30] He already has phone privileges, and has been denied use of AVL following misconduct and abuse of that privilege. To make the orders sought would clearly improve his current position, as would orders changing his association status, having the effect of substantially pre-empting the substantive proceedings. That is not the purpose of obtaining orders pursuant to s 15, which are directed to the preservation of an applicant’s position pending disposition, for example where a deportation is imminent. I express the preliminary view also that on the basis of Mr Thacker’s current management plan, put in the evidence of Jeanette Burns, that it is also unlikely
14 High Court Rules 2016, r 30.4.
15 See Christiansen v Director-General of Health [2020] NZHC 887.
16 At [63].
that he will be able to establish that he had been subject to prolonged or indefinite solitary confinement. My view is that the merits of his substantive proceeding are not strong.
[31] I accept that to make 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. That would not be appropriate on an application for interim orders. Nor would it be appropriate in respect of the substantive proceedings notwithstanding a clear finding of unlawfulness in respect of an aspect of the operational management of Auckland Prison. The orders sought by Mr Thacker would also require positive direction. While, in accordance with the Court of Appeal’s approach in Taylor such orders are in fact available, I am not satisfied that they are appropriate in this case, for the reasons I have just noted.
[32] Finally, a prisoner is entitled to receive at least one private visitor each week for a minimum duration of 30 minutes.17 I understand that this entitlement is not always able to be exercised by prisoners generally, due to either COVID-19, or staffing shortages for Corrections. Mr Thacker’s phone call entitlements have been consequently increased as a result. He seeks interim orders on the ground that it is unlawful for him not to be provided with such visits, or at least AVL calls, where they are unable to be provided. Again, this is not the identification of a position that is necessary to preserve. The effect of actions or decisions of Corrections staff on Mr Thacker’s rights is a matter for the substantive proceedings.
[33] Further, in a situation where in-person visits are unable to be provided upon reasonable grounds due to COVID-19 or other factors, and Mr Thacker is said to have previously abused AVL calls, I consider that the status quo adequately provides for his s 73 entitlement. That entitlement must be considered within the context of an environment in which both a Prison Manager and their officers are required to have an individual management plan for every prisoner.18 Such a plan must (among other things) be based on an assessment of the needs, capacities, and disposition of the
17 Corrections Act 2004, s 73.
18 Section 51.
prisoner, and be consistent with the resources available to the chief executive to manage the prisoner.19
Result
[34]Mr Thacker’s application for interim orders is dismissed.
[35]Costs are reserved.
Churchman J
Solicitors:
Phoenix Law Ltd, Wellington for Applicant
Meredith Connell, Wellington for First Respondent
19 Section 51(4).
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