Mr White is claiming damages from the Attorney-General for actions of Corrections officers which, he says, breached three of the rights affirmed by the New Zealand Bill of Rights Act 1990 (the NZBORA). In this appeal he challenges a judgment of the High Court, in which Associate Judge Johnston dismissed Mr White’s application to strike out three paragraphs of the Attorney-General’s statement of defence.[1] The strike-out application was based on the contention the Attorney-General could not lawfully challenge, in the High Court proceeding, certain findings made by a Visiting Justice in a prison disciplinary hearing. Four interconnected events form the background to this appeal.
On 12 March 2019 Mr White, who at the time was a prisoner in Rimutaka Prison, was ordered by three Corrections officers to submit to a strip search. Mr White partially complied. He removed his upper clothing and pants. He then lowered his underpants to his ankles. One of the Corrections officers subsequently explained that when Mr White was told to take off his underpants, he became aggressive and refused to completely remove his underpants. At that point Mr White was “taken to the ground” by Corrections officers. Mr White was charged under the disciplinary regime set out in s 128 of the Corrections Act 2004 (the Act). We explain the relevant portions of that section at [19]. Specifically, Mr White was charged with disobeying a lawful order of a Corrections officer pursuant to s 128(1)(a) of the Act.
Second — The findings of the Visiting Justice
Mr White pleaded not guilty to the charge, which was then referred to Mr Pratley, a barrister and Visiting Justice. After conducting a defended hearing, the Visiting Justice dismissed the charge on 2 September 2019.[2] The Visiting Justice concluded the order to strip search Mr White was not lawful.[3] He reached that conclusion after hearing evidence from one of the Corrections officers involved in the attempt to search Mr White and the Residential Manager of the prison who had, on the day before the…
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 White v Attorney-General
Sign in free to access the full text
Details
AGLC
White v Attorney-General [2021] NZCA 479
Case
[2021] NZCA 479
Decision Date
CaseChat Overview and Summary
In this case, the appellant, Deon Micheal White, appealed against the decision of the High Court to dismiss his application to strike out certain paragraphs of the statement of defence by the Attorney-General of New Zealand. The appellant alleged that the actions of Corrections officers breached three of the rights affirmed by the New Zealand Bill of Rights Act 1990. The Court of Appeal allowed the appeal in part, striking out certain paragraphs of the statement of defence on the grounds of res judicata and abuse of process. The Court held that the findings of the Visiting Justice were clear, and the Department of Corrections had every opportunity to produce all evidence in the disciplinary hearing. The Court concluded that it would be an abuse of process to now allow the Attorney-General to try and adduce evidence to establish what should have been proven before the Visiting Justice. The Court also held that it would be an abuse of process to allow the Attorney-General to collaterally challenge the findings of the Visiting Justice. The Court granted the appellant costs for a standard appeal on a band A basis, plus usual disbursements.