Hearing:	23 July 2013 (further submissions received 1 August 2013)
Court:	Ellen France, Ronald Young, Cooper JJ
Counsel:	T Ellis and G K Edgeler for Appellant A M Powell and S M Kinsler for Respondents
Judgment:	7 November 2013 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed and the judgment in the High Court is set aside.
BWe make declarations that the appellant’s cell confinement for 21 days was in breach of:
(a)his rights under s 23(5) of the New Zealand Bill of Rights Act 1990; and

(b) section 33(3)(g) of the Penal Institutions Act 1954.
CThe first respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
DThe matter is remitted to the High Court for costs to be fixed in that Court in accordance with this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

Para No
Introduction  [1]
The relevant statutory provisions  [9]
The facts found and conclusions reached by Lang J  [16]
Mr Vogel’s health  [44]
The appeal  [46]
Discussion
     Breaches of the Penal Institutions Regulations  [57]
     Breach of s 33(3)(g) of the Penal Institutions Act  [63]
Remedy  [76]
Result  [85]

Introduction

The appellant, Mr Vogel, appeals against the judgment of Lang J delivered on 24 February 2012,[1] in which the Judge rejected Mr Vogel’s claims for:
(a)declarations that his rights under ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990 (the Act) had been breached; and
(b)damages.
[1]Vogel v Attorney-General [2012] NZHC 269, [2012] NZAR 154.
Mr Vogel was sentenced to life imprisonment for murder on 26 February 1988. He was released on parole on 4 May 1998, but recalled to prison in January 2000 because of further offending and apprehended risk to the public.
On 11 April 2000 he was sentenced to 21 days’ cell confinement for drug‑related disciplinary offences by a Visiting Justice at the prison. He was released again from prison in 2001 and recalled in 2002 because of further offending whilst on parole. He has remained in prison since that time.
His claims of breach of the Act relate to the time he spent in cell confinement in April 2000. The basis of the claim was that the sentence of 21 days’ cell confinement was unlawful: the maximum penalty under the Penal Institutions Act 1954 was 15 days’ cell confinement.[2] Mr Vogel also argued that because during the period in which he was confined he was not visited daily by the superintendent or the medical officer, and because the medical officer had not been informed of the cell confinement, there had been breaches of the Penal Institutions Regulations 1999. As well as seeking declarations as to the breach of his rights, Mr Vogel advanced a damages claim for $50,000.
[2]Penal…

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 Vogel v Attorney-General

Details

AGLC: Vogel v Attorney-General [2013] NZCA 545
Case: [2013] NZCA 545
Decision Date: 7 November 2013 at 2.30 pm

CaseChat Overview and Summary

Mr Vogel appeals against the judgment of Lang J in the High Court in which he rejected Mr Vogel's claims for:(a)declarations that his rights under ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990 had been breached; and(b)damages.The appeal turns on whether there was a breach of the Act or a breach of the statutory maximum for the sentence of cell confinement under the Penal Institutions Act 1954. The Court of Appeal found that there was a breach of s 23(5) of the Act, and remitted the matter to the High Court for the assessment of costs. The Court found that the 21 day sentence of cell confinement imposed on Mr Vogel was in breach of s 23(3)(g) of the Penal Institutions Act 1954.

Orders