Whichman v Attorney-General - [2019] NZHC 864

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…

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 Whichman v Attorney-General

Details

AGLC: Whichman v Attorney-General [2019] NZHC 864
Case: [2019] NZHC 864
Decision Date: 17 April 2019

CaseChat Overview and Summary

The plaintiff, George Whichman, was a prisoner at Auckland Prison who used another prisoner’s PIN number to make a phone call. He was charged under the Corrections Act 2004 for breaching a prison disciplinary rule and was subsequently given IPA status, which limited his phone privileges for three months. Whichman sought judicial review of the application of IPA status, arguing it was unlawful. The defendant, the Attorney-General on behalf of the Department of Corrections, conceded that the IPA regime as applied to Whichman was ultra vires the Act and the Corrections Regulations 2005, as it amounted to double punishment for the same offence. The court considered whether it should rule on the legality of the IPA regime per se or its application in Whichman’s case. The court decided to focus on the latter, as the former was not necessary to resolve Whichman’s claim and lacked a concrete set of facts. The court concluded that the application of the IPA regime to Whichman was unlawful, as it amounted to double punishment for the breach of the PIN swapping rule.

The court made a declaration that the application of the IPA regime to Whichman was unlawful. Whichman is entitled to be reimbursed for his reasonable and verified out of pocket disbursements in connection with these proceedings, including any filing fees. If the parties cannot agree, such disbursements are to be fixed by the Registrar.

Orders