Whichman v Attorney-General
[2019] NZHC 864
•17 April 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1420
[2019] NZHC 864
UNDER the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990 IN THE MATTER
of a priority hearing for judicial review hearing
BETWEEN
GEORGE WHICHMAN
Plaintiff
AND
ATTORNEY-GENERAL on behalf of the DEPARTMENT OF CORRECTIONS
First Defendant
VISITING JUSTICE AT AUCKLAND REGIONAL PRISON
Second Defendant
Hearing: 23 November 2018; further submissions 7 and 17 December 2019 Counsel:
Appearance:
MJ McKillop for first defendant
G Whichman, plaintiff in person
Judgment:
17 April 2019
JUDGMENT OF FITZGERALD J
[As to application for judicial review]
This judgment was delivered by me on 17 April 2019 at 3pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Law, Wellington To: G Whichman, Auckland
Whichman v Attorney-General [2019] NZHC 864 [17 April 2019]
Introduction and factual background
[1] On 8 February 2018, Mr Whichman was a serving prisoner at Auckland Prison. On that day, he used a fellow prisoner’s PIN number to make a telephone call to his aunt. The use of another prisoner’s PIN number is called “PIN swapping” and was contrary to a prison disciplinary rule.
[2] Mr Whichman was charged under s 128 of the Corrections Act 2004 (the Act) with breaching the disciplinary rule. The charge was heard by a prison Hearing Adjudicator on 23 February 2018. Mr Whichman initially pleaded guilty to the charge, believing he would receive a fairly light penalty. The Hearing Adjudicator imposed a penalty of five days off privileges. Mr Whichman had no issue with that. At the hearing however, he learned that a further consequence of the misconduct charge being proved was the imposition on him of what is known as “IPA status”.
[3] IPA stands for “identified phone abuser”. Under the Department of Corrections’ IPA regime (IPA Regime), IPA status was imposed on any prisoner found guilty of a telephone-related disciplinary charge. The effect of IPA status being imposed on Mr Whichman was to limit his ability to make telephone calls to his statutory minimum entitlement for a period of three months. The statutory minimum entitlement is one call per week for five minutes, at the prisoner’s expense.1
[4] Mr Whichman was very concerned at the prospect of IPA status being imposed on him. At the hearing on 23 February 2018, he therefore sought to change his plea to not guilty. The Hearing Adjudicator referred the matter to a Visiting Justice. A hearing before a Visiting Justice was held on 18 May 2018. Mr Whichman evidently remained agitated at the prospect of IPA status being imposed on him and refused to enter a plea. A not guilty plea was entered on his behalf and the hearing adjourned. A further hearing before a Visiting Justice was held on 6 June 2018 (though appears to have been treated as an appeal against penalty). The Visiting Justice confirmed the penalty of five days off privileges. This in turn confirmed the consequence of IPA status being imposed on Mr Whichman.
1 The IPA Regime did not, however, affect a prisoner’s entitlement to access a telephone for the purpose of communicating with his or her legal adviser(s), or to access a telephone to call any number prescribed in the Prison Operations Manual as “Spark 0800 and Vodafone 0508 numbers”.
[5] Mr Whichman subsequently filed these proceedings, challenging the Visiting Justice and the Department of Corrections’ jurisdiction to impose IPA status on him, as well as alleging various breaches of the New Zealand Bill of Rights Act 1990.2 The crux of Mr Whichman’s argument was that the Visiting Justice did not have jurisdiction under s 137 to impose IPA status, and the Department had no jurisdiction to impose what was effectively a further penalty for breach of the PIN swapping rule. He also sought an interim order reinstating his phone privileges pending determination of his substantive claim.
[6] The Department consented to an interim order restoring Mr Whichman’s phone privileges pending determination of his claim. As a result, Mr Whichman was restricted to his minimum statutory telephone use entitlement for approximately two months. In addition, in its written submissions filed shortly before the substantive hearing, the Department acknowledged that imposing IPA status on Mr Whichman was ultra vires the Act and the Corrections Regulations 2005 (the Regulations). This was because to do so was to subject Mr Whichman to “double punishment” for his breach of the PIN swapping rule, when the Regulations prohibit double punishment. The Prison Director at Auckland Prison wrote a letter of apology to Mr Whichman, and confirmed that as a result of these proceedings, the Department had revoked the IPA Regime.
[7] The Department does not accept, however, that the IPA Regime was unlawful per se. Rather, it says there will have been situations in which it was quite lawful to impose IPA status on a prisoner, in particular, when doing so was a rational and logical response to security concerns.
[8] Mr Whichman nevertheless seeks relief to the effect that the IPA Regime was unlawful per se, i.e. as it applied to all prisoners as a matter of principle, rather than only its application in his case. Counsel for the Department, Mr McKillop, urges that this judgment address the legality of the regime only insofar as it applied to Mr Whichman, being all that is necessary to resolve Mr Whichman’s claim.
2 The second respondent, the Visiting Justice, abides the decision of this Court. I observe that the Visiting Justice did not himself purport to impose IPA status on Mr Whichman. Rather, that was an automatic consequence of the Department’s IPA Regime.
Mr McKillop submits the pleadings do not extend to a broader challenge to the IPA Regime in any event, and nor did the settled issues for determination. Mr McKillop further says it is appropriate for this judgment to be confined to the legality of the IPA Regime in Mr Whichman’s case given the broader circumstances in which the Department says the IPA Regime could lawfully apply were not the subject of any evidence or detailed argument in these proceedings. Nor are any prisoners to whom the regime might have lawfully applied party to these proceedings.
[9] There is one further introductory matter before turning to the statutory background to Mr Whichman’s claim. As noted, Mr Whichman alleges the imposition of IPA status on him also breached the Bill of Rights Act. He signalled that if he was successful in his claim, he would commence separate proceedings seeking substantial damages for such a breach. He also signalled that those proceedings would include a claim for damages in relation to IPA status being imposed on him on an earlier occasion, in 2016.
[10] Through discussion with counsel and Mr Whichman at the hearing, it was agreed this judgment would deal only with Mr Whichman’s application for judicial review, and not the alleged breach of the Bill of Rights Act and associated damages claims. The courts are generally hesitant to permit damages claims to be brought into claims for judicial review.3 That is because the procedure for determining applications for judicial review is designed to meet the particular needs of judicial review claims and involves a tailored and expeditious approach. This is manifested by, for example, evidence being given by affidavit; discovery not being ordered as a matter of course; it being rare to permit cross-examination of deponents; and rare for other pre-trial procedures to be engaged (such as interrogatories).
[11] There is nevertheless no absolute prohibition on applications for judicial review involving a claim for damages.4 Rather, a court must have in mind the objective of maintaining the simplicity and speed of the judicial review procedure.5
3 See generally Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39] to [48].
4 At [46].
5 At [47].
In some cases therefore, it may be necessary to sever the judicial review aspects of a claim from the non-judicial review aspects in order to maintain that objective.6
[12] In this case, it was accepted it would be inappropriate to determine liability in respect of the Bill of Rights Act claims in these proceedings, but the quantum aspects in later proceedings. Further, given Mr Whichman intends to seek damages for the imposition of IPA status on him in 2016 (about which there was no evidence in these proceedings), it makes sense for all Bill of Rights Act related claims, including the question of damages, to be dealt with together in the same proceeding. I therefore issued a minute after the hearing confirming that in the event Mr Whichman commences separate Bill of Rights Act proceedings arising out of IPA status being imposed on him in 2016 and/or 2018, any remaining aspects of these proceedings alleging breach of that Act are to be heard in conjunction with those separate proceedings.
[13] I turn now to the statutory background to Mr Whichman’s application for judicial review.
Statutory background
[14] The Act contains provisions setting up a regime of prison discipline separate from the criminal justice system. The regime reflects the need to maintain order in prisons by punishing conduct that undermines proper authority or orderly community living.7
[15]The system has two tiers:
(a)Under the first tier, alleged breaches of prison rules are to be heard by senior prison officers sitting as “Hearing Adjudicators”.8
6 Orlov v New Zealand Law Society [2012] NZCA 12 at [21] to [22].
7 Drew v Attorney General [2002] 1 NZLR 58 (CA) at [85] per McGrath J.
8 Corrections Act 2004, s 133.
(b)The second tier involves adjudication by Visiting Justices, who adjudicate hearings of first instance offences of a more serious nature, as well as appeals against Hearing Adjudicators’ decisions.9
[16] If a misconduct charge against a prisoner is made out, penalties including forfeiture of earnings, loss of privileges and/or cell confinement may be imposed. Visiting Justices have the power to impose such penalties for longer periods of time than Hearing Adjudicators.10
[17] The Regulations provide a mandatory procedure for disciplinary proceedings consistent with the requirements of natural justice.11 Of particular relevance in this case, the procedure provides that “no prisoner may be punished more than once for the same disciplinary offence”.12
[18] The Regulations also address the “privileges” of prisoners. Privileges include “the opportunity to make telephone calls other than those to which a prisoner is entitled” under the Act or Regulations.13 A prisoner is entitled to make a five-minute telephone call every week, at the prisoner’s expense.14 Loss of the opportunity to make telephone calls over and above this statutory minimum entitlement is therefore a loss of a privilege which may be imposed by a Hearing Adjudicator or Visiting Justice by way of penalty.
[19] The IPA Regime itself was set out in a section of the Prison Operations Manual (in which it is referred to as a “procedure”). The purpose of the IPA Regime was said to be:
…to reduce re-offending by preventing prisoners abusing the Prison Telephone Call Control System (PTCCS System) to conduct illegal activity. Examples included: introducing, attempting to introduce, and conspiring to
9 Corrections Act 2004, s 137.
10 Sections 133 and 137. For example, a Hearing Adjudicator may order forfeiture or postponement of privileges for up to 7 days, whereas a Visiting Justice may order forfeiture or postponement for up to 3 months.
11 Corrections Regulations 2005, Reg 152 and Sch 7.
12 Schedule 7, cl 49.
13 Regulation 158(b).
14 Corrections Act 2004, ss 69(1)(i), 77(3) and 77(6). This entitlement is in addition to any telephone call made to “an official agency” or to the prisoner’s legal adviser (s 77(4)).
introduce drugs and other contraband into prisons; threatening witnesses; breaches of court orders; and participation in organised criminal groups.
[20] The regime responded to two classes in which a breach of a telephone related rule made under s 33 of the Act was proven:15
(a)First, as set out in C.02.Res.02.02 at paragraph 1(a), namely introducing, attempting to introduce or conspiring to introduce unauthorised items (contraband) into the prison; and
(b)Second, as set out in C.02.Res.02.02 at paragraph 1(b), being other forms of telephone related misconduct, including PIN swapping as occurred in this case.
[21]Only paragraph 1(b) applied in Mr Whichman’s case.
[22] The consequences of paragraphs 1(a) and 1(b) applying were similar, in that under both, an alert in the online prisoner management system (IOMS) was made that the prisoner was subject to IPA status; telephone calls were limited to the statutory minimum entitlement referred to above; and the prisoner was denied telephone access to the number(s) involved in the breach of the prison rule. In cases responding to paragraph 1(a), the prisoner was also limited to booth visits only (i.e. contact visits were removed).
[23] The IPA Regime provided IPA status would be applied for the following time periods (concurrently with “any other restrictions”):
(a)First offence – 3 months;
(b)Second offence – 6 months; and
(c)Third offence – 12 months.
15 Referred to as the “criteria”.
Legality of IPA Regime per se or application in Mr Whichman’s case only?
[24] As noted in the introductory section above, an issue arose during the hearing as to whether, in light of the Department’s concession, this Court ought to adjudicate and rule on the legality of the IPA Regime per se, or should confine its consideration of the IPA Regime to its application in Mr Whichman’s case. I sought and received supplementary submissions from the parties on this issue.
[25] Mr Whichman’s statement of claim did challenge the Visiting Justice and the Department’s “jurisdiction” under ss 137 and 33 of the Act to impose the IPA Regime,
i.e. arguably in a broad sense. Given the nature and content of Mr Whichman’s statement of claim (which I accept was prepared by him in some haste, given it included a claim for interim relief, and without legal input), I directed that rather than the Department filing a statement of defence pleading to the claim on a paragraph-by- paragraph basis, the issues arising on the claim would be settled either by agreement or by the Court.16
[26] In the event, the issues settled by the Court for determination included whether the “imposition of IPA status on the applicant, resulting in the loss of his phone privileges for a period of three months, was unlawful in that…” it was ultra vires the Act and Regulations. In response, the Department understandably directed its evidence to the application of the IPA Regime in Mr Whichman’s case.
[27] Irrespective of the above, however, there is an overriding reason why I have concluded it would be unwise to embark in these proceedings on a broader examination of the legality of the IPA Regime per se.
[28] As noted earlier, the Department says there will be circumstances in which application of the IPA Regime will have been lawful, in particular, where paragraph 1(a) of the regime was engaged, namely the introduction of or an attempt to introduce unlawful items into a prison. It says this gives rise to real and genuine security concerns. In this context, the Department refers to observations of Nation J in Genge
16 Minute dated 22 August 2018.
v Visiting Justice of Christchurch Men’s Prison.17 At issue in that case was a decision to deny a prisoner access to a prison barbecue on the basis of his pending (but not yet proven) misconduct charges.18 It was submitted by the prisoner that not being permitted to go to the barbecue would amount to a double penalty if he were also required to serve the 14 days off privileges later ordered on the misconduct charges.
[29] With reference to earlier authorities, Nation J observed that prison authorities will have to make decisions on the management of a prisoner to ensure their safety, the safety of other prisoners and/or the safety of others dealing with them; such decisions are not to be construed as punishment, even though that is how they might be perceived by the subject prisoner.19 In the particular case of Mr Genge, the Department nevertheless acknowledged that the barbeque decision did constitute a punishment (being the loss of a privilege) imposed as an administrative measure before misconduct charges were finally determined.20 Nation J noted that there was no evidence before him as to the rationale for the decision to deny prisoners generally from such social functions in the case of pending misconduct charges, but “had [security concerns] been the rationale for their exclusion, the prohibition on such a basis against such prisoners could have been considered a management decision rather than a punishment”.21
[30] Mr McKillop also refers to the example of assignment of security classifications, which relies in part on the past conduct of the prisoner, and which may mean that the same behaviour underpinning recent misconduct charges can lead to both penalties imposed by a Hearing Adjudicator or Visiting Justice, and detention under a higher security regime with fewer privileges. Mr McKillop also advanced a scenario in which a Visiting Justice ordered a penalty of three months off privileges, in which case the IPA Regime would have no additional effect.
17 Genge v Visiting Justice of Christchurch Men’s Prison [2017] NZHC 2936.
18 Participation in a recreational activity is a privilege; Corrections Regulations 2005, Reg 158(c).
19 Genge v Visiting Justice of Christchurch Men’s Prison, above n 17, at [59], referring to Shaw v Attorney-General [2003] NZAR 216 (HC) and Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227, [2015] NZAR 1049.
20 At [60].
21 At [63].
[31] The Department therefore submits the lawfulness of the IPA Regime, and in particular, whether it falls foul of the prohibition against double punishment, will depend on the individual circumstances of the relevant case. In other words, the lawfulness of the regime cannot be divorced from consideration of its application in an individual case. The Department therefore submits it cannot be considered a “punishment” per se just because it might have the effect of limiting privileges.
[32] Without deciding or commenting in any substantive way on the point, given it does not arise on Mr Whichman’s claim, I accept there is at least a foundation for the Department’s argument that the IPA Regime will not necessarily have amounted to an unlawful “double punishment” in all cases in which it was applied. I therefore accept that the lawfulness of the regime cannot be divorced from its application in any given case. In this context, it is undesirable to embark on an examination of an issue which is not necessary to the determination of a claim and in the absence of a “concrete” set of facts against which the issue is to be determined. For example, in Attorney-General v Refugee Council of New Zealand Inc, Tipping J, delivering the judgment of the majority, stated:22
The ability to review judicially the instruction itself, in isolation of any impact which it may have had in an individual case, must be regarded as problematic.
…This case shows how difficult it is to deal appropriately with issues in the abstract and how important it almost always is to consider issues of law against a concrete set or sets of facts.
[33] McGrath J made similar observations, noting that seeking to determine the rights of all those to whom a policy has applied over a given period is likely to be problematic, as such proceedings:23
…cannot readily be determined in the abstract, that is without reference to the particular circumstances of the application of the official guidance in individual cases.
[34] A ruling on the legality of the IPA Regime per se is not necessary to resolve Mr Whichman’s application for judicial review. Whether application of the IPA Regime amounted to a “double punishment” when responding to matters such as the introduction of or an attempt to introduce contraband into a prison ought to be
22 Attorney-General v Refugee Council of New Zealand Inc [2003] 3 NZLR 577 at [45].
23 At [107].
determined in a case which squarely gives rise to that issue, and which is therefore subject to full evidence and argument on the topic, and with the appropriate parties before the Court.
Was the application of the IPA Regime unlawful in this case?
[35] As noted, the Department has acknowledged that the application of the IPA Regime in Mr Whichman’s circumstances was ultra vires the Act and Regulations. The Court’s supervisory jurisdiction in the context of judicial review is not to “rubber stamp” the quashing of decisions or the making of declarations as to invalidity. I have therefore considered whether the Department was correct to make the concession it has.
[36] In my view, it was. Mr Whichman was penalised for the PIN swapping misconduct by having his privileges revoked for a period of five days. The Department has not suggested or adduced any evidence to the effect that the PIN swapping in Mr Whichman’s case gave rise to any real or legitimate security concerns. Accordingly, imposition of IPA status on Mr Whichman, and thus removing his telephone privileges for a total of three months, acted as an additional penalty or punishment for the breach of the PIN swapping rule. Its imposition was therefore in breach of cl 49 of sch 7 of the Regulations, which prohibits double punishment for the same offence. For that reason, the imposition of the IPA in Mr Whichman’s case was ultra vires the Act and Regulations and was unlawful.
[37] For completeness, I note that Mr Whichman’s statement of claim also alleged the application of IPA status for a period of three months was unreasonable and/or disproportionate, particularly by comparison to penalties imposed in disciplinary contexts which Mr Whichman says were far more serious than his breach of the PIN swapping rule.
[38] Given the conclusion that imposition of the IPA Regime to Mr Whichman was ultra vires the Act and the Regulations, it is strictly unnecessary to address this argument. But in any event, no substantive submissions were made on this point. There are further difficulties in that the IPA Regime was not imposed by the Visiting Justice as a penalty, giving rise to the issue of whether comparing its effect to other
penalties imposed directly by Hearing Adjudicators or Visiting Justices is appropriate. Nor was there any evidence as to the range of penalties imposed in other cases of misconduct in any event (other than some brief anecdotal evidence from Mr Whichman). It is accordingly not possible, nor ultimately necessary, to come to any concluded view on this aspect of Mr Whichman’s claim.
Result
[39] I make a declaration that the application of paragraph 1(b) of the IPA Regime to Mr Whichman as a consequence of the Visiting Justice’s decision dated 6 June 2018 was unlawful for the reasons set out at [36] above.
Costs
[40] Mr Whichman is self-represented and has presumably not incurred any legal costs. He is, however, entitled to be reimbursed his reasonable and verified out of pocket disbursements in connection with these proceeding, including any filing fees. If the parties cannot agree, such disbursements are to be fixed by the Registrar.
Fitzgerald J
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