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King v Attorney General and ors [2006] NZCA 288 (13 October 2006)

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King v Attorney General and ors [2006] NZCA 288 (13 October 2006)

Last Updated: 30 October 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA73/06

BETWEEN ALISTAIR JOHN KING
Applicant

AND THE ATTORNEY GENERAL
First Respondent

AND THE VISITING JUDGES AT PAPARUA PRISON
Second Respondent

Court: William Young P, Robertson and Arnold JJ

Counsel: P N Allan for Applicant
F Sinclair for First Respondent

Judgment: 13 October 2006 at 11 am

(On the papers)

JUDGMENT OF THE COURT

Leave to appeal out of time is refused.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] By application dated 12 April 2006, the applicant seeks leave to appeal out of time against a decision of John Hansen J delivered on 14 December 2005. By agreement, the Court is dealing with the application on the papers. Mr Allan has filed written submissions on behalf of the applicant, Mr Sinclair on behalf of the first respondent. The second respondents abide the decision of the Court.

Background

[2] The applicant was one of five prison inmates who brought applications for judicial review against the Attorney-General (on behalf of the Department for Corrections) and the Visiting Justices at Paparua Prison. The principal claim in the proceedings was that the plaintiff inmates had each suffered a breach of natural justice in the way in which the Visiting Justices determined internal disciplinary charges against them. Those internal charges alleged that the inmates had adulterated or tampered with urine samples contrary to s 32A(1)(c) of the Penal Institutions Act 1954.
[3] The applicant and his fellow plaintiffs were required to provide urine samples for the purpose of drug testing. The samples provided were analysed for drugs by the ESR. The testing may produce what is known as an "inconsistent" result. This means that the sample has been characterised as inconsistent with normal human urine. This result does not necessarily indicate that there is no human urine present in the sample – it may simply mean that the sample is not comprised wholly of human urine.
[4] The samples provided by the applicant and his fellow plaintiffs were all characterised as being inconsistent with human urine. The inmates sought to explain their results by saying that they had been drinking a lot of water prior to the tests, which had greatly diluted their urine. (This is known as "water-loading".) Despite this explanation, the applicant and his fellow plaintiffs were charged with adulterating or tampering with their urine samples contrary to s 32A(1)(c). All were convicted at hearings before Visiting Justices.
[5] None of the plaintiffs was legally represented at the hearings before the Visiting Justices. The applicant had requested legal representation but that was denied. In all cases the charge of tampering was found to have been proved and sentences involving cell confinement and loss of privileges were imposed. The inmates then sought to challenge the findings of the Visiting Justices by way of judicial review proceedings.
[6] The proceedings were heard by John Hansen J. In relation to the applicant, the Judge:

(a) accepted that there had been a flaw in the applicant’s hearing before the Visiting Justice in that the Justice accepted hearsay evidence by a prison officer concerning the effect of water-loading rather than requiring that a scientist be called and allowing the applicant an opportunity to cross-examine that scientist;
(b) in light of that finding, did not consider it necessary to determine whether an analyst’s certificate as to the results of the applicant’s urine analysis was admissible against the applicant by virtue of reg 171(b) of the Penal Institutions Regulations 2000;
(c) held that there had been a breach of natural justice, and a breach of the applicant’s right to justice under s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA), principally because the applicant was not permitted to have legal representation at his hearing but also because he was denied the opportunity to cross-examine an expert;
(d) therefore made a declaration that the Visiting Justice’s decision in relation to the applicant was invalid, and set it aside;
(e) but made no order for compensation, on the basis that the s 27 breach did not cause any actual loss to the applicant. The Judge considered that had appropriate scientific evidence been presented at the hearing and cross-examination been allowed, the outcome would have been the same. There was no evidence at any stage that the test results could have resulted from water-loading.

[7] The applicant seeks leave to appeal out of time against this judgment. He argues that the High Court was in error on two points:

(a) The Court erred in finding that reg 171(b) of the Penal Institutions Regulations 2000 did not render inadmissible the analyst’s statement that the applicant had supplied a sample inconsistent with human urine.
(b) The Court erred in refusing to award compensation to the applicant as a result of the breach of s 27 NZBORA.

Principles

[8] There is no dispute as to the relevant principles on an application for leave to appeal out of time. They are helpfully summarised in McGechan on Procedure at CR 29.04. The discretion to grant special leave is "wide and flexible", but it will not be lightly exercised. The ultimate test is whether the overall interests of justice require that leave be given. Relevant considerations include the reason for the delay, the importance of the issues raised, whether there is any prejudice to any other party from the delay and whether the appeal has any merit. Mr Allan and Mr Sinclair sought to address these issues in their written submissions.

Discussion

[9] Mr Sinclair accepted that the delay had not caused any prejudice to the respondents. Accordingly, we focus on the other three issues.

Reasons for Delay

[10] Under r 29 of the Court of Appeal (Civil) Rules 2005, the applicant had 20 working days within which to bring his appeal as of right. John Hansen J’s judgment was delivered on 14 December 2005, so that the calculation of the 20 working days commenced from 15 December 2005 (s 35(2) of the Interpretation Act 1999). Rule 3 of the Court of Appeal (Civil) Rules defines "working day" to exclude a day in the period commencing 25 December 2005 and ending on 15 January 2006. Accordingly, the time limit for filing the appeal expired at the beginning of February 2006. The application for leave to appeal was filed on 12 April 2006, so that it was approximately ten weeks out of time.
[11] The applicant has filed a brief affidavit seeking to explain the delay. He said that when the High Court delivered its decision he had been moved from Rimutaka Prison to Wanganui Prison. His lawyer was not aware of this and was unable to contact him immediately. The lawyer did, however, eventually find out where the applicant was and sent him a copy of the decision. The applicant deposes that by the time he had received the decision and read it carefully he was out of time for lodging an appeal as of right. There was then some further delay in preparing the papers and applying for legal aid.
[12] Although the affidavit is short on specifics (e.g. it does not give the date of the applicant’s move from the Rimutaka Prison to Wanganui Prison or the date on which he received the decision from his lawyer), we do not consider that the extent and circumstances of the delay in this case should prevent the grant of leave, if other considerations merit it.

Importance of issues

[13] The applicant wishes to pursue two issues, the first concerning reg 171(b) of the Penal Institutions Regulations and the second concerning the award of compensation for breach of s 27(1) NZBORA. Mr Allan says that these issues go to the rights of inmates as to drug testing and that the case "is of high public importance as it is relevant to future drug testing procedures in prisons throughout New Zealand".
[14] We accept that the public importance of the issues raised on a proposed appeal is a relevant factor in determining whether to grant special leave to appeal out of time - see Thompson v Turbott [1963] NZLR 71 (Full Court at 73 and Court of Appeal at 81). The presence of issues of public importance will be a significant factor favouring a grant of leave. However, on a first appeal at least, the absence of such issues will not necessarily be decisive against the granting of leave. In the present case, we do not agree with the applicant’s contention that the issues are of "high public importance", nor do we accept that they have implications for drug testing of inmates throughout New Zealand.
[15] As to the first issue, the Penal Institutions Regulations have now been replaced by the Corrections Regulations 2005. Regulation 86(1)(d) of the Corrections Regulations is the equivalent of reg 171(b) of the Penal Institutions Regulations. Regulation 86 clarifies the uncertainty that the applicant says existed in relation to reg 171(b). There is thus no ongoing significance in resolving the dispute as to the meaning of reg 171(b). None of the other plaintiffs has appealed. As a result, there is no interest in this Court’s addressing the meaning of reg 171(b) beyond that of the applicant.
[16] However, as the Judge noted, whether or not reg 171(b) applied to the applicant’s case has no particular significance given the Judge’s finding (which is not challenged) that the applicant’s hearing was flawed in other significant respects.
[17] As to the second issue, there has been no challenge to the Judge’s findings as to breach. The issue simply concerns the appropriate remedy. We accept that the availability of damages for NZBORA breaches is, as a general proposition, a matter of public importance. However, this Court has addressed the question of damages for breach of natural justice or fair trial obligations in several recent cases, including Brown v Attorney-General [2005] 2 NZLR 405 at [100] – [101] and, per William Young J, at [126] – [142] and Attorney-General v Udompun [2005] 3 NZLR 204 at [168] – [170].
[18] What the applicant seeks to challenge is the Judge’s assessment that a sufficient remedy for the breach of s 27 in his case was to declare the Visiting Justice’s decision invalid and to set it aside, and that compensation was not required. The Judge summarised the relevant principles correctly (at [50] – [53]) and applied them to the facts (at [54]). We consider that the conclusion which the Judge reached was within the range available to him. Accordingly the case does not raise an issue of public importance (see the Supreme Court’s decision refusing leave to appeal in Udompun v Minister of Immigration [2006] NZSC 1).

Merits of appeal

[19] As to the merits, Mr Allan said that in determining whether the applicant was entitled to compensation for breach of s 27 NZBORA, the Judge found it unnecessary to consider the claim of an unlawful refusal to allow an adjournment, or the claim that the applicant had a legitimate expectation of an inquisitorial process, or the claim that the results of the urine samples were inadmissible. Mr Allan submitted that the effect of this was that the Judge failed to look at the totality of the breaches in determining whether compensation should be awarded.
[20] However, as Mr Sinclair submitted, what is at issue in this context is conduct amounting to a breach of s 27. The other grounds for judicial review that were advanced (such as legitimate expectation) are not, of themselves, relevant to breach of s 27. The Judge was alive to the significance of the various breaches in the particular factual context and had regard to the relevant legal principles in deciding that a remedy of compensation was not justified in this case. We see no error of principle in his approach and, as already noted, consider that the result which he reached was within the range properly available to him. Accordingly, the appeal has no prospect of success on this point.
[21] As to the reg 171(b) point, we agree with John Hansen J. Even if the point were to be determined in the applicant’s favour, we do not see how that could make any practical difference to the outcome of the applicant’s case. The point is, therefore, essentially an academic one.

Decision

[22] Leave to appeal out of time is refused. We make no order as to costs.

Solicitors:
G C Knight, Christchurch for Applicant
Crown Law Office, Wellington for Respondent

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[2]	The applicant was one of five prison inmates who brought applications for judicial review against the Attorney-General (on behalf of the Department for Corrections) and the Visiting Justices at Paparua Prison. The principal claim in the proceedings was that the plaintiff inmates had each suffered a breach of natural justice in the way in which the Visiting Justices determined internal disciplinary charges against them. Those internal charges alleged that the inmates had adulterated or tampered with urine samples contrary to s 32A(1)(c) of the Penal Institutions Act 1954.
[3]	The applicant and his fellow plaintiffs were required to provide urine samples for the purpose of drug testing. The samples provided were analysed for drugs by the ESR. The testing may produce what is known as an "inconsistent" result. This means that the sample has been characterised as inconsistent with normal human urine. This result does not necessarily indicate that there is no human urine present in the sample – it may simply mean that the sample is not comprised wholly of human urine.
[4]	The samples provided by the applicant and his fellow plaintiffs were all characterised as being inconsistent with human urine. The inmates sought to explain their results by saying that they had been drinking a lot of water prior to the tests, which had greatly diluted their urine. (This is known as "water-loading".) Despite this explanation, the applicant and his fellow plaintiffs were charged with adulterating or tampering with their urine samples contrary to s 32A(1)(c). All were convicted at hearings before Visiting Justices.
[5]	None of the plaintiffs was legally represented at the hearings before the Visiting Justices. The applicant had requested legal representation but that was denied. In all cases the charge of tampering was found to have been proved and sentences involving cell confinement and loss of privileges were imposed. The inmates then sought to challenge the findings of the Visiting Justices by way of judicial review proceedings.
[6]	The proceedings were heard by John Hansen J. In relation to the applicant, the Judge:

[10]	Under r 29 of the Court of Appeal (Civil) Rules 2005, the applicant had 20 working days within which to bring his appeal as of right. John Hansen J’s judgment was delivered on 14 December 2005, so that the calculation of the 20 working days commenced from 15 December 2005 (s 35(2) of the Interpretation Act 1999). Rule 3 of the Court of Appeal (Civil) Rules defines "working day" to exclude a day in the period commencing 25 December 2005 and ending on 15 January 2006. Accordingly, the time limit for filing the appeal expired at the beginning of February 2006. The application for leave to appeal was filed on 12 April 2006, so that it was approximately ten weeks out of time.
[11]	The applicant has filed a brief affidavit seeking to explain the delay. He said that when the High Court delivered its decision he had been moved from Rimutaka Prison to Wanganui Prison. His lawyer was not aware of this and was unable to contact him immediately. The lawyer did, however, eventually find out where the applicant was and sent him a copy of the decision. The applicant deposes that by the time he had received the decision and read it carefully he was out of time for lodging an appeal as of right. There was then some further delay in preparing the papers and applying for legal aid.
[12]	Although the affidavit is short on specifics (e.g. it does not give the date of the applicant’s move from the Rimutaka Prison to Wanganui Prison or the date on which he received the decision from his lawyer), we do not consider that the extent and circumstances of the delay in this case should prevent the grant of leave, if other considerations merit it.

[13]	The applicant wishes to pursue two issues, the first concerning reg 171(b) of the Penal Institutions Regulations and the second concerning the award of compensation for breach of s 27(1) NZBORA. Mr Allan says that these issues go to the rights of inmates as to drug testing and that the case "is of high public importance as it is relevant to future drug testing procedures in prisons throughout New Zealand".
[14]	We accept that the public importance of the issues raised on a proposed appeal is a relevant factor in determining whether to grant special leave to appeal out of time - see Thompson v Turbott [1963] NZLR 71 (Full Court at 73 and Court of Appeal at 81). The presence of issues of public importance will be a significant factor favouring a grant of leave. However, on a first appeal at least, the absence of such issues will not necessarily be decisive against the granting of leave. In the present case, we do not agree with the applicant’s contention that the issues are of "high public importance", nor do we accept that they have implications for drug testing of inmates throughout New Zealand.
[15]	As to the first issue, the Penal Institutions Regulations have now been replaced by the Corrections Regulations 2005. Regulation 86(1)(d) of the Corrections Regulations is the equivalent of reg 171(b) of the Penal Institutions Regulations. Regulation 86 clarifies the uncertainty that the applicant says existed in relation to reg 171(b). There is thus no ongoing significance in resolving the dispute as to the meaning of reg 171(b). None of the other plaintiffs has appealed. As a result, there is no interest in this Court’s addressing the meaning of reg 171(b) beyond that of the applicant.
[16]	However, as the Judge noted, whether or not reg 171(b) applied to the applicant’s case has no particular significance given the Judge’s finding (which is not challenged) that the applicant’s hearing was flawed in other significant respects.
[17]	As to the second issue, there has been no challenge to the Judge’s findings as to breach. The issue simply concerns the appropriate remedy. We accept that the availability of damages for NZBORA breaches is, as a general proposition, a matter of public importance. However, this Court has addressed the question of damages for breach of natural justice or fair trial obligations in several recent cases, including Brown v Attorney-General [2005] 2 NZLR 405 at [100] – [101] and, per William Young J, at [126] – [142] and Attorney-General v Udompun [2005] 3 NZLR 204 at [168] – [170].
[18]	What the applicant seeks to challenge is the Judge’s assessment that a sufficient remedy for the breach of s 27 in his case was to declare the Visiting Justice’s decision invalid and to set it aside, and that compensation was not required. The Judge summarised the relevant principles correctly (at [50] – [53]) and applied them to the facts (at [54]). We consider that the conclusion which the Judge reached was within the range available to him. Accordingly the case does not raise an issue of public importance (see the Supreme Court’s decision refusing leave to appeal in Udompun v Minister of Immigration [2006] NZSC 1).

[19]	As to the merits, Mr Allan said that in determining whether the applicant was entitled to compensation for breach of s 27 NZBORA, the Judge found it unnecessary to consider the claim of an unlawful refusal to allow an adjournment, or the claim that the applicant had a legitimate expectation of an inquisitorial process, or the claim that the results of the urine samples were inadmissible. Mr Allan submitted that the effect of this was that the Judge failed to look at the totality of the breaches in determining whether compensation should be awarded.
[20]	However, as Mr Sinclair submitted, what is at issue in this context is conduct amounting to a breach of s 27. The other grounds for judicial review that were advanced (such as legitimate expectation) are not, of themselves, relevant to breach of s 27. The Judge was alive to the significance of the various breaches in the particular factual context and had regard to the relevant legal principles in deciding that a remedy of compensation was not justified in this case. We see no error of principle in his approach and, as already noted, consider that the result which he reached was within the range properly available to him. Accordingly, the appeal has no prospect of success on this point.
[21]	As to the reg 171(b) point, we agree with John Hansen J. Even if the point were to be determined in the applicant’s favour, we do not see how that could make any practical difference to the outcome of the applicant’s case. The point is, therefore, essentially an academic one.