Van Syp v Attorney-General

[2025] NZHC 703

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2024-419-000120

[2025] NZHC 703

BETWEEN

REGAN VAN SYP

Plaintiff

AND

ATTORNEY-GENERAL (SUED IN RESPECT OF THE

DEPARTMENT OF CORRECTIONS)

Defendant

Hearing:	17 March 2025
Appearances:	Plaintiff in person, self-represented K Hogan for the Defendant
Judgment:	28 March 2025

JUDGMENT OF TAHANA J

This judgment was delivered by me on 28 March 2025 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:  Crown Law, Wellington City Chambers., Auckland

Copy to: Plaintiff

VAN SYP v ATTORNEY-GENERAL [2025] NZHC 703 [28 March 2025]

Introduction

[1]    Mr Van Syp is currently incarcerated in Waikeria prison. He claims that the Department of Corrections (Corrections) opened mail from his legal adviser, stamped it as “unopened letter received,” and by doing so, did not comply with the Corrections Act 2004 (the Act), infringed his right to be secure from unreasonable search and seizure under s 21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and was negligent. Mr Van Syp also claims that Corrections’ response to his complaint contravened the Act. Mr Van Syp seeks damages.

[2]    In response, Corrections accepts that the letter was inadvertently opened partially but was not read and there has been no prejudice to Mr Van Syp. Corrections argue that Mr Van Syp‘s complaint was adequately investigated and resolved and  Mr Van Syp is not entitled to any compensation.

[3]    I  must  therefore  determine   whether   Corrections’   conduct   infringed   Mr Van Syp’s rights and if so, whether he is entitled to recover damages.

Background

Legal correspondence

[4]    Corrections received correspondence addressed to Mr Van Syp from his legal adviser. The correspondence was “double enveloped” meaning that there was an outer envelope and an inner envelope. Within the outer envelope was a cover letter from Mr Van Syp’s lawyer stating that enclosed (in the inner envelope) was a letter containing legal advice that should be delivered to Mr Van Syp unopened in accordance with s 110 of the Act.

[5]    Ms Renee Wylie, Administration Support Officer at Waikeria prison, gave evidence that when she opened the outer envelope with a letter opener, she inadvertently cut both the outer and inner envelopes. She says that she taped the slit on the inner envelope closed and stamped the cover letter with the acknowledgment “unopened letter received”.

[6]    When Mr Van Syp received the letter, he noticed the tape and refused to sign the stamp because he considered that it had been opened.

Complaint by Mr Van Syp

[7]    That same day, on 3 May 2024 Mr Van Syp made a complaint through the online “kiosk” system available to prisoners.

[8]    The Court has been provided with versions four, five and six (x 2) of the “Prisoner Complaint Form” (the Form). In version four of the Form, section A captures Mr Van Syp’s complaint and is dated 3 May 2024. It states:

Today at 4.35 pm [I] received [legally] confidential mail from my lawyer Amanda Hill, with a cover letter stating it should be given to me unopened, in accordance with s 110 of the Corrections Act 2004. [I]t was opened and taped over. [I] have active court proceedings and corrections have breached the Act by opening this… it was witnessed by nikau acting IC Liz.

[9]    Section B relates to action taken and states whether the prisoner was referred to the Manager/Pco. It reads:

I spoke to him today and witnessed that his legal mail had been opened before he had received it

[10]   The person who completed section B is not identified and the entry is dated   6 May 2024.

[11]   Section C is dated 6 May 2024, and is not signed. Section C relates to “further action taken” and states:

This has been sent to the inspector to deal with

[12]   Mr Van Syp gave evidence that the prison officer he spoke with on 6 May 2024 was “Kane” and it was Kane who told him the complaint had been sent to the inspector to deal with. Mr Van Syp says he then rang the Office of the Inspectorate.

Response from the Office of the Inspectorate

[13]   Mr Van Syp received a letter from the Office of the Inspectorate dated 9 May 2024. That letter refers to Mr Van Syp’s telephone calls on 6 and 8 May 2024 and

notes that “[w]e have listened to your messages regarding staff opening your legal mail and withheld mail.”

[14]   The letter informs Mr Van Syp that the Office of the Inspectorate does not undertake investigations of allegations of inappropriate staff behaviour but that it had notified prison management of Mr Van Syp’s phone call and requested that “they initiate the IR.07 process if appropriate.”

Later versions of the complaint form

[15]   Version five of the Form contains a different version of Section C that is also dated 6 May 2024 and states:

This incident has been investigated and the findings are as below.

It has been established as an administration error whereby an administration staff member has mistakenly opened the letter, realised the mistake and immediately resealed the letter, prior to delivery to the unit.

[16]   Section C is signed and agreed by Mr Chris Borland, Principal Corrections Officer.

[17]The first copy of version six records in section C that:

This incident has been investigated and the findings are as below.

It has been established as an administration error whereby an administration staff member has mistakenly opened the letter, realised the mistake and immediately resealed the letter, prior to delivery to the unit.

RM has addressed these findings with Mr Van Syp who was happy with his response.

[18]   The above version is signed and agreed by Mr Borland and is also dated 6 May 2024.

[19]   There is then another copy of version six which records the same information in section C as in version five but is signed by Mr Kahura, Residential Manager, and dated 6 May 2024. That version is then signed by Mr Van Syp and dated 17 June 2024.

[20]Mr Van Syp filed his claim on 15 May 2024.

[21]   At the hearing, Mr Van Syp indicated for the first time that he had called the Office of the Inspectorate again who responded by letter dated 23 May 2024 that the issue was a privacy issue and referred him to the Office of the Privacy Commissioner.

Alleged contravention of the Corrections Act

Alleged breach of s 110

[22]   Section 110(1) of the Act prescribes requirements for the opening of mail from a legal adviser, as follows:

A staff member must not open any mail and an authorised person must not read any correspondence and a prison manager must not withhold any mail between a prisoner and his or her legal adviser, unless authorised to do so under any of subsections (2) to (6).

[23]   In cross examination Ms Wylie explained that this was the first time she had accidentally cut an inner envelope. She was aware that other colleagues who had previously opened an inner envelope in error had either put a post-it note on the envelope or had written on the envelope that the letter was opened in error. She could not recall if she put a post-it note on the envelope.

[24]   Ms Wylie explained that the reason she stamped the cover letter “unopened mail received” was because she was “pretty confident” that she had not slit the envelope completely and she had not opened any of the contents of the inner envelope. Ms Wylie denied that she had tried to cover up her mistake. In her words “I slit it by mistake, I taped it back up, I taped the covering letter over and stamped it.”

[25]   Ms Wylie was open and honest in cross-examination. She accepted that she accidentally cut the inner envelope.   I do not consider that there is any  basis for    Mr Van Syp’s submission that she acted in a misleading or deceptive way. She made it obvious that the envelope had been cut by putting tape over the cut. She stamped the letter with “unopened letter received” because she had not opened the envelope and taken the letter out.  It had not been read.   The purpose of the obligation under   s 110 is to prevent staff reading privileged and confidential correspondence. There is no evidence that Ms Wylie took the letter out of the envelope or read it. I accept her evidence that she did not.

[26]   I agree with Corrections that an inadvertent cut of the envelope, where none of the contents was viewed,  does  not  constitute  a  breach  of  either  statute  or  of  Mr Van Syp’s rights. In these circumstances, I dismiss Mr Van Syp’s claim that Corrections breached s 110 of the Act.

Alleged breach of s 6

[27]   Section 6(f) of the Act lists principles guiding the Corrections system, including that:

(f)     the corrections system must ensure the fair treatment of persons under control or supervision by—

(i)providing those persons with information about the rules, obligations, and entitlements that affect them; and

(ii)ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:

[28]   Mr Van Syp claims Corrections breached s 6(f)(ii) by not providing an appropriate opportunity for him to complain. He seeks a declaration that the decision not to implement the IR.07 process was in breach of s 6(f)(ii) of the Act and was therefore unlawful and invalid.

[29]   I first consider the complaint process. In the absence of any evidence from Mr Kane or Mr Kahura, the Court relies on the versions of the complaint form provided to the Court and the evidence from Mr Van Syp, Mr De Wet Cronjé, the Custodial Systems Manager, and Mr Borland.

[30]   Mr Van Syp gave evidence that he had five interviews, the first with the officer named Kane who referred the complaint to the inspector. He says that after he had spoken with the Office of the Inspectorate on 6 and 8 May 2024, he then spoke with Mr Borland about initiating the IR.07 process. He says the next interview was about the next version of the Form (presumably version five) and the following interview was about another version of the Form (presumably version six) which he says he refused to sign. He says the final interview was with Mr Kahura who Mr Van Syp says pressured him to sign the Form.

[31]   Mr Borland was subpoenaed to give evidence. He could not recall whether he was involved in the complaint process, but he did not think that he was because he was on night shift and rostered days off from 1 to 13 May 2024. He accepted that he had signed versions five and six of the Form. He said he did this because his manager asked him to.

[32]   I consider that it is more likely than not that Mr Borland signed version five and version six after his return to work on 13 May 2024. His evidence was unclear as to whether he requested Mr Van Syp to sign the form. He accepted that he had conversations with Mr Van Syp after returning to work. Mr Van Syp on the other hand said that Mr Borland interviewed him and tried to get him to sign the Form but he would not. Mr Van Syp’s evidence appears consistent with version five and six which are both signed by Mr Borland, presumably because he wanted Mr Van Syp to acknowledge the conversation he had had with Mr Kahura.

[33]   Mr De Wet Cronjé also filed an affidavit annexing a note recorded in the Integrated Offender Management System (IOMS). That note was made by Mr Kahura and has a “created date” of 16 June 2024 and a “reference date” of 6 May 2024. The note states:

Hui/[Kōrero] regarding Lawyers mail been opened.

RM confirmed findings that his Lawyers envelope (mail) had being opened, and the reason was due to an administration error. The Lawyers letter was re- sealed and delivered to the unit. The RM apologised “kanohi ki te kanohi” (face to face – verbally) for the administration error. The hui/[kōrero] ended with Regan, stating that he was happy for these findings and thanked RM for the apology. Hui/[Kōrero] ended.

[34]   Mr Borland was unable to explain the difference between the “reference date” and the “created date”. In the absence of evidence from Mr Kahura, I consider that the reference date (6 May 2024) is likely to be the date of the hui/kōrero (meeting) between Mr Kahura and Mr Van Syp. I consider the “created date” is likely to be the date that Mr Kahura created the note. Mr Kahura appears to have created the note on 16 June 2024, updated the complaint form and issued it to Mr Van Syp on 17 June 2024, at which time Mr Van Syp signed the form. This timing is also consistent with Mr Van Syp’s evidence that he had previously refused to sign the form provided by Mr Borland.

[35]   The date of 6 May 2024 is also the date that Mr Van Syp first called the Office of the Inspectorate. All versions of the form have section C dated as 6 May 2024. It is unclear whether the interview on 6 May 2024 with Mr Van Syp occurred before or after the Office of the Inspectorate requested that the prison initiate a IR.07 process, if appropriate. There are no records of the Office of the Inspectorate’s communications with the prison before the court.

[36]   The letter from the Office of the Inspectorate requested that prison management initiate the IR.07 process “if appropriate”.

[37]   Mr Van Syp argues that Corrections ignored the letter and did not initiate the IR.07 process. He argues that an IR.07 complaint was effectively prevented because he was not given the name of the staff member and was told by Mr Borland that he needed the name of the staff member to make an IR.07 complaint.

[38]   Mr Borland accepted that in relation to a previous situation he had discussed with Mr Van Syp about it not being possible to initiate the IR.07 process without the name of the officer. Mr Borland also gave evidence that had the IR.07 process been initiated the only potential difference would be that it would be investigated by the residential manager because a residential manager is required to investigate complaints against staff.

[39]   Mr De Wet Cronjé explained that the name of the staff member is not required to initiate the IR.07 process. Once initiated, the prison will investigate to determine which staff member was involved. In Mr De Wet Cronjé’s view, it is for the prisoner, and not the prison, to initiate an IR.07. To that extent, he disagreed with the Inspectorate’s letter requesting the prison to initiate the IR.07 process if appropriate. In his view the PC.01 process was correct for Mr Van Syp’s complaint because he was effectively complaining that the correct mail process was not used. As I understand Mr Van Syp’s argument, Ms Wylie should have put a post-it note on the envelope stating that it was opened in error. To that extent, the process was not followed. It was therefore open for the prison to determine to continue to treat the complaint as a PC.01.

[40]   In relation to the IR.07 process, there appears to be a disconnect between the Office of the Inspectorate and the prison. On the one hand, the Office of the Inspectorate appears to be of the understanding that the prison can initiate an IR.07 if a PC.01 complaint is in effect a complaint about specific staff conduct. From the prison’s perspective, it would be necessary for the prisoner to lodge a new IR.07 to commence a complaint directed at a staff member’s conduct.

[41]   Mr Borland’s evidence suggests that he was under a misunderstanding as to whether a prisoner requires the name of the staff member before they can initiate an IR.07 complaint.

[42]   I accept that there was some confusion generated by the Office of the Inspectorate’s letter as to whether the prison should initiate an IR.07 process but that this needs to be viewed against what actually happened.

[43]   It is clear from the evidence that the prison investigated the incident, determined that it had arisen because of an administrative error and  apologised to Mr Van Syp. This is not a case of staff misconduct or a failure of the prison to investigate what had happened. A staff member had inadvertently slit an internal envelope, taped it up and then stamped it “unopened mail received”. After the prison confirmed to Mr Van Syp that it was an administrative error and apologised, it recorded that Mr Van Syp was happy with the response. Despite this, Mr Van Syp then complained to the Inspectorate who indicated that as it was a privacy issue. An IR.07 process would likely have achieved the  exact  same  outcome  because  based  on Mr Borland’s evidence, it would have been investigated by the residential manager, as was the case here.

[44]   I do not therefore consider that these circumstances give rise to an infringement of Mr Van Syp’s rights such that he did not have access to a complaint process or was not treated fairly. I accept that the letter created confusion as to whether the prison should initiate an IR.07 process but at the same time the letter made it clear that this should only be initiated “if appropriate”. The written process regarding IR.07 complaints was not before the Court so it is unclear whether that process informs

prisoners that they do not need to know the staff member’s name to initiate that process.

[45]   While I accept that the substance of the complaint was dealt with fairly, the various versions of the complaint form and the fact they were unsigned or signed by an officer who had not been present when the conversation took place (as was the case for Mr Borland) creates confusion. It is not clear from the various versions of the complaint form, other than the final version six, who interviewed Mr Van Syp and when. If the IOMS note was not created until 16 June 2024, which note appears to form the basis for the information in section C, then version six of the Form was likely not created until then, despite the conversation occurring on 6 May 2024. On the basis of the record, I consider that it is likely that Officer Kane and then Mr Kahura met with Mr Van Syp on 6 May 2024. When Mr Borland returned to work, he was requested to close off the complaint by completing section C and asking Mr Van Syp to sign it. When Mr Van Syp did not sign it, Mr Kahura signed and requested Mr Van Syp to sign it, which he did.

[46]   Despite that process, I accept that Mr Van Syp was able to complain, his complaint was investigated, and Mr Van Syp confirmed he was happy with the response by signing the Form. In these circumstances, I do not consider that Corrections has denied Mr Van Syp access to a complaints process that enabled his complaint to be dealt with in a fair and reasonable way. I therefore decline Mr Van Syp’s claim for a declaration that Corrections has breached s 6 of the Act.

Negligence

[47]   For the same reasons as set out above, I dismiss Mr Van Syp’s claim that Corrections has breached a duty of care by reason of Ms Wylie’s conduct in inadvertently slitting the inner envelope and then stamping it as she did.

Alleged infringement of the New Zealand Bill of Rights Act 1990

[48]   Everyone has the right to be secure against unreasonable search and seizure, whether of the person, property or correspondence or otherwise.1

[49]   For the reasons set out above, I am not satisfied that Mr Van Syp’s confidential and privileged correspondence was searched or seized and therefore there has been no infringement of his rights under the New Zealand Bill of Rights Act 1990.

Result

[50]For the reasons above, I dismiss all of Mr Van Syp’s claims.

Costs

[51]   While Mr Van Syp has been unsuccessful in his claims, given my findings as to the process and potential confusion created by the letter from the Office of the Inspectorate, my preliminary view is that costs should lie where they fall. If Corrections considers that it is entitled to costs, it is directed to file a costs memorandum of no more than five pages within 15 working days of the date of this judgment, with Mr Van Syp filing a costs memorandum in response within a further 10 working days.

Tahana J

1      New Zealand Bill of Rights Act 1990, s 21.