X v Attorney-General - [2022] NZHC 1531

NOTE: THE NAME OF THE PLAINTIFF IS PERMANENTLY SUPPRESSED

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-362

[2022] NZHC 1531

UNDER a claim for compensation and declaration under the New Zealand Bill of Rights Act 1990 and Corrections Act 2004

BETWEEN

X

Plaintiff

AND

THE ATTORNEY-GENERAL (SUED IN RESPECT OF THE DEPARTMENT OF CORRECTIONS)

Defendant

Hearing: 17 and 18 March 2022

Counsel:

S J Fraser for Plaintiff

D P Neild and V M Rea for Defendant

Judgment:

30 June 2022

JUDGMENT OF SIMON FRANCE J

[1] Mr X was a serving prisoner at Christchurch Men’s Prison (CMP) between 5 December 2016 and 2 February 2022.1 In the proceeding he claims that various actions towards him constitute breaches of s 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA) which provides that persons deprived of their liberty have the right to be:

treated with humanity and with respect for the inherent dignity of the person.

1 Mr X was not in custody between 20 August 2017 and 7 May 2018.

X v ATTORNEY-GENERAL [2022] NZHC 1531 [30 June 2022]

[2] The conduct claimed to have occurred and to constitute a breach of this provision includes:

(a)a period in which Mr X was deprived of access to Ritalin as treatment for his ADHD;

(b)being summonsed over a loudhailer to come for his medication, the breach being embarrassing him in front of other prisoners and identifying him as on medication;

(c)being referred to, occasionally, by prison officers as a “druggie”;

(d)being subjected to thousands of rub-down searches. Each visit to take medication (twice a day) involved leaving his unit, which was accompanied by a mandatory rub-down search on leaving and on returning; and

(e)having taken his pill, being required to run his finger around his gums inside the mouth to show the pill had been swallowed. Mr X suffers from a skin condition which made this alleged unlawful requirement more unpleasant.

Facts

[3] There is little dispute over what occurred. The Court heard evidence from Mr X, and from several persons connected to the prison: Mr Wood who is operations system advisor at CMP, Ms Whiteford who is health centre manager at CMP and Ms McDaid who is Mr X’s case manager at CMP.

[4] I consider all to be truthful witnesses. I observe Mr X has a significant sense of grievance and a keen sense of his rights and entitlements. This colours the lens through which he views and recalls events. As I say, however, I do not consider he was untruthful, just occasionally incorrect or wrongly viewing the context.

(a) Ritalin

[5] When Mr X entered CMP as a remand prisoner in December 2016 he was taking Ritalin pursuant to a prescription. The prison declined to continue the controlled drug until its own medical assessors prescribed it.

[6] Mr X was immediately referred to Forensic Psychiatric Services. In the interim, on the third day he saw a GP…

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 X v Attorney-General

Details

AGLC: X v Attorney-General [2022] NZHC 1531
Case: [2022] NZHC 1531
Decision Date: 30 June 2022

CaseChat Overview and Summary

The case of X v Attorney-General involved a claim by Mr X, a prisoner at Christchurch Men's Prison (CMP), that various actions towards him constituted breaches of s 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides that persons deprived of their liberty have the right to be treated with humanity and with respect for the inherent dignity of the person. Mr X claimed that the following actions constituted a breach of this provision: the deprivation of access to Ritalin as treatment for his ADHD; being summoned over a loudhailer to come for his medication, which embarrassed him in front of other prisoners and identified him as on medication; being referred to, occasionally, by prison officers as a "druggie"; being subjected to thousands of rub-down searches; and having taken his pill, being required to run his finger around his gums inside the mouth to show the pill had been swallowed. Mr X also claimed these actions constituted breaches of s 21 of NZBORA, the right to be free from unreasonable search.

The court found that there was no breach of s 23(5) in relation to the non-provision of Ritalin, the rub-down searches, the loudspeaker summons, or the druggie comment. However, the court found that the requirement for Mr X to sweep the inside of his mouth with a finger affected by skin psoriasis on numerous occasions constituted a breach of s 23(5) of NZBORA. The court also found that the finger-sweeping was a breach of s 21 of NZBORA, but no further remedy would be appropriate even if the evidence were found to engage a second right. The court made a declaration that the requirement for Mr X to sweep the inside of his mouth with a finger affected by skin psoriasis on numerous occasions constitutes a breach of s 23(5) of NZBORA.

The court awarded Mr X a standard award of costs on a 2B basis, subject to what his actual costs as a legally aided person were. The court also made an order suppressing the name of the plaintiff, finding that the public interest was best served by encouraging rehabilitation.

Orders