Reekie v Chief Executive of the Department of Corrections [2012] NZHC 1412; [2012] NZAR 775 (20 June 2012)

Last Updated: 17 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-002814 [2012] NZHC 1412

UNDER the Judicature Amendment Act 1972

AND

UNDER the Declaratory Judgment Act 1908

IN THE MATTER OF an Application for Judicial Review and

Interim Relief

BETWEEN NICHOLAS PAUL ALFRED REEKIE Plaintiff

AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing: 15 June 2012

Counsel: Plaintiff in Person (via Audio Visual Link)

J Catran and Ms Inverarity for the Respondent

Judgment: 20 June 2012

_{RESERVED JUDGMENT OF ELLIS J}

This judgment was delivered by me on 20 June 2012 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Law, PO Box 2858, Wellington 6140

Copy To: N Reekie, C/- Private Bag 503, Huntly, Waikato 3740

REEKIE V DEPARTMENT OF CORRECTIONS HC AK CIV-2012-404-002814 [20 June 2012]

[1] Mr Reekie is serving a sentence of preventive detention. Since 28 February

2012 he has been imprisoned at Springhill Correctional Facility (Springhill). Just prior to that date he was detained for a fortnight at Auckland Prison to enable him to participate in a two week civil hearing in the Auckland High Court. Before that, he was imprisoned at the Northern Regional Correctional Facility (NRCF), at Ngawha.

[2] This judgment relates to an application by Mr Reekie for interim orders under s 8 of the Judicature Amendment Act 1972. That application, and his underlying claims for judicial review and for declaratory relief, relates to a wide range of matters arising from his present circumstances. Central to his concerns, however, is his desire to be transferred from Springhill to Auckland Prison.

[3] Mr Reekie, who is self-represented, consented to appear before me by video link with Springhill. Although Mr Reekie is one of the more able and well informed lay-litigants that I have seen, I formed the view that his circumstances required that he be given a considerable amount of leeway, particularly when it came to the cross- over between his role as both witness and advocate.

[4] That said, however, a number of the factual statements made by Mr Reekie were disputed by the Crown and could not properly be tested in the context of an interim orders application, particularly given the quantity of new material received from Mr Reekie just prior to the hearing. Some distillation of that material has also been required in the course of preparing this judgment, in which I have attempted to focus on the key issues at this, interim, stage.

[5] More specifically, the interim orders sought by Mr Reekie are that:

(a) he be immediately transfer back to (Unit 2, West Division) Auckland

Prison;

(b) all misconduct proceedings and/or penalties that are pending against him at Springhill immediately be halted; and

(c) the medication regime to which he was subject before he was sent to

Springhill be immediately reinstated;

[6] Mr Reekie also sought (interim) declarations that:

(i) all interferences with his ability to conduct his legal affairs cease immediately and that the respondent should, “to the degree that is reasonable in the circumstances”, respect those rights and entitlements and not seek to curtail them or his ability to exercise them;

(ii) the respondent and his employees, agents and servants “ought

not to commit any further breaches of the Corrections Act

2004, the Corrections Regulations 2005 or the New Zealand Bill of Rights Act 1990 in the interim, in respect of the plaintiff’s rights and interests contained ... within those various Acts and Regulations”.

[7] Before addressing the merits of the applications, it is necessary to say a little more about the background to them.

[8] As regards transfer, Mr Reekie has particular concerns about:

(a) the manner in which he was moved to Springill (which he says was effectively without notice and contrary to expectations that had been given him by Corrections staff). In this respect I note that even Mr Kanawa (the Acting Prison Manager at Springhill) has described the placement of someone such as Mr Reekie at that facility as “unusual”;

(b) his subsequent (and, Mr Reekie would say, consequential) change of

security classification from “low-medium” to “high-medium”;

(c) the nature of the facilities at Springhill, which he says are not designed or equipped to deal with prisoners such as he who are voluntarily segregated from their fellow inmates;

(d) the location of Springhill, because it is some distance from his support networks in Auckland. In particular his incarceration at Springill means that it is very difficult for his partner, Ms Wood (who also routinely acts as his MacKenzie friend in relation to various litigation matters) to visit during normal visiting hours which, for those in Mr Reekie’s unit, are essentially confined to certain weekdays. Ms Wood has a job in Auckland which means she is only able to travel to Springhill on Mondays and Sundays, which days are outside visiting periods. Because visits outside ordinary hours are discretionary, this has a flow on effect in terms of Mr Reekie’s ability to conduct his legal affairs.

[9] As regards the misconduct charges, Mr Reekie presently faces a number of these. The charges appear to me to relate to comparatively minor matters, principally involving his interactions with other prisoners and with staff.1 The possibility of some connection between the alleged behaviour giving rise to the charges and Mr Reekie’s desire to be transferred necessarily arises.

[10] Mr Reekie’s position, however, is that the charges have arisen because he is being deliberately and unfairly targeted as a result of other Court proceedings he has taken against the Corrections Department and/or prison staff.

[11] More relevant for present (interim relief) purposes is that a number of the pending charges are scheduled to be heard by a Visiting Justice on 21 June.2 It is his

1. The particular charges that are pending related to disobeying lawful orders (the orders being related to such matters as not covering up the camera in his cell and taking his arm out of the meal hatch when officers were trying to close it) and behaving in an offensive and abusive manner (referring to the prison officers in his unit as “gay”).

2 As I understand it all disciplinary charges against Mr Reekie are determined in the first instance

by a Visiting Justice, rather than by an adjudicator, from whose decisions there would be a right of appeal (to a Visiting Justice). To the extent that is a blanket policy, its legality might be

questioned in terms of s 134 of the Corrections Act 2004.

ability to prepare and to defend these charges that is directly at issue in the present context. In particular he says that the Visiting Justice’s recent indication that she would not grant him an adjournment of the 21 June hearing is prejudicial and unfair because:

(a) He is also trying to prepare for a hearing in the District Court in

Huntly on 29 June;

(b) He has not been permitted access to certain portions of CCTV footage that he says is relevant to his defence of the charges. He is also concerned that as a result of departmental policy the relevant footage will be deleted before his substantive proceedings can be determined;

(c) In terms of preparation more generally he has had limited and unsatisfactory access to his MacKenzie friend, Ms Wood, not only by virtue of the matters to which I have already referred, but also because:

(i) He is unable to have satisfactory telephone conversations with her; and

(ii) When he is able to meet with her they are required to sit in a small booth which has insufficient space for all his papers.3

[12] As far as the medications issue is concerned, Mr Reekie had concerns about the dosages he had been prescribed for various medicines, but as I understand it these have now been resolved. There is (he says) an ongoing issue about access, although he accepts that there is now a plan in place whereby he is to be given the relevant medicines on a daily basis. While he says that this plan is sometimes thwarted by the medicines not being delivered in a timely way by medical staff to the

_{staff on his unit, my sense was that this has now become a minor matter.}

3. It appears that Mr Reekie has been required to meet with Ms Wood in this booth because of certain inappropriate behaviour that is alleged to have occurred between them on another occasion. As I understand it, however, the charge laid against Mr Reekie in that respect was dropped.

[13] In terms of the two declarations sought by Mr Reekie, the first relates to matters I have already discussed such as visitation arrangements but also (as I understand it) to the way in which the respondent is dealing with the large number of complaints and information requests presently being made by Mr Reekie. There have, in fact, been so many complaints made by Mr Reekie that a dedicated prison officer has been assigned to liaise, and attempt to resolve them, with him. Similarly he has now made so many information requests that Springhill is not able to deal with them and they are all referred to Corrections Head Office in Wellington. Again, it seems fair to infer that there is a correlation between the scale of Mr Reekie’s activities in these spheres and the transfer issue.

[14] The second declaration sought seems to me to be of an omnibus, or “catch all”, variety whose content adds little to the specific matters I have already outlined.

Should the Interim Orders be Granted?

[15] Section 8(1) of the Judicature Amendment Act 1972 (JAA) provides:

Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

(a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:

(b) Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:

(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.

[16] Subsection (2) applies only where the Crown is a respondent, as it is here. It provides:

Where the Crown is the respondent (or one of the respondents) to the application for review the Court shall not have power to make any order

against the Crown under paragraph (a) or paragraph (b) of this section; but, instead, in any such case the Court may, by interim order, -

(a) Declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:

(b) Declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.

[17] In the present case the principal difficulty faced by Mr Reekie is that in relation to both the transfer and the medications issues he has no position to preserve in the sense required by s 8.

[18] As far as transfer is concerned, he was of course transferred from Auckland Prison some time ago, and the latest advice received from the respondent is that there is now a significant shortage of cells at that facility. Although Mr Reekie questioned whether such a shortage existed in relation to the particular unit where he (as a voluntarily segregated inmate) would reside, he nonetheless very fairly said that he was not seeking orders that would result in him taking the cell of any existing inmate at Auckland Prison.

[19] Accordingly, the reality of Mr Reekie’s present “position” is that he is incarcerated at Springhill, has applied for a transfer to Auckland and is on the waiting list. I accept that there are statutory provisions that govern the exercise of the discretion to transfer, which means that a decision to transfer (or not to transfer) is, in principle, amenable to judicial review. But, in terms of s 8(2) of the JAA, there is no action presently being proposed by the Crown that is consequential on the exercise a statutory power that the Court can declare that it should not take.

[20] Although Mr Reekie urged on me that this was one of those “extraordinary” cases where the Court could make positive, or mandatory interim orders, I do not agree. The possibility of such orders does seem to have been contemplated by the Court of Appeal in Taylor v Chief Executive of the Department of Corrections.4

Although the Court also noted the strong policy reasons against making such orders,

particularly where (as in that case, and as here) the decisions concerned are likely to

involve the utilisation of scarce resources and the balancing of “delicate priorities”.5

And as I have said, Mr Reekie has responsibly accepted that he did not seek to displace existing inmates.

[21] It also seems relevant that at the substantive review hearing the Court would not be able simply to direct that Mr Reekie be transferred to Auckland Prison. The most that could be ordered was that the relevant decision (whether it be the decision to transfer him to Springhill or not to transfer him to Auckland) be made again. In this respect, I accept Ms Catran’s submission that an applicant cannot obtain by way of interim orders a benefit he could not obtain at the substantive hearing: Taylor v

Chief Executive Department of Corrections.6

[22] For all these reasons, interim orders are, in my view, inapt to deal with the transfer issue.

[23] The medications issue is also in my view not susceptible to the making of interim orders. Again, Mr Reekie does not seem to have a relevant position to be preserved. He may have been subject to a different medication regime at an earlier point in time but that has now changed, at least partly (in relation to dosage) at his request. As I have indicated, it seems to me that the residual complaints he has about the regularity of delivery and/or access are not referable to any “position” that he presently occupies. And even accepting Mr Reekie’s evidence that there are, on occasion, operational difficulties those difficulties are not capable of resolution by the making a declaration of the sort contemplated by s 8(2).

[24] The issues around the misconduct charges are in a somewhat different category. More particularly, it seems to me that Mr Reekie does have a position to

_{preserve in relation to those charges that have not been determined and for which he}

5 At [26]. Were it open to me to do so I would respectfully disagree with the Court in Taylor that the terms of s 8(2) might permit such “positive” orders to be made. I do not consider that the case referred to by the Court as supporting that proposition in fact does so. The decision in Te Runanganui o Te Whenua Inc Society v Attorney General [1994] 2 NZLR 20 (CA) (which in turn refers to the dicta in Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423) merely emphasises the breadth of the s 8 discretion and the undesirability of limiting it by formulations not contained in the section itself. But in my view, the terms of s 8(2) are quite clear in their prophylactic rather than positive focus.

6 Taylor v Chief Executive Department of Corrections (No 2) HC Auckland CIV 2011-404-3227,

5 August 2001.

has not yet been punished.7 And, arguably, it would be open to the Court to make a declaration of the sort contemplated in s 8(2)(a) and (b) at least in relation to a pending hearing of disciplinary charges on 21 June.

[25] Given that I therefore accept that Mr Reekie has a relevant position to preserve in this respect, the question of “necessity” under s 8(1) arises. As that threshold has been interpreted and applied by the Courts, it commonly involves consideration of:

(a) whether or not an applicant’s claim in this respect raises a serious question to be tried in that respect and, if so -

(b) where the balance lies between the disadvantage to the applicant if interim relief is not granted and any public interest or policy concerns that militate against the grant of relief.

[26] Given the various difficulties to which I adverted at the outset, I am prepared to hold that this aspect of Mr Reekie’s claim raises a serious question to be tried. Mr Reekie took me to the statutory provisions which govern such matters as entitlements to visits and assistance in conducting his legal affairs, and the overlap between the two. I note, for example, that cl 19 of Sch 7 of the Corrections Regulations 2005 provides that:

If a prisoner detained in a prison is preparing his or her defence in respect of a disciplinary offence, the manager of the prison—

(a) must ensure that the prisoner is provided with paper and writing materials if the prisoner asks for those things; and

(b) as far as practicable in the circumstances, must facilitate contact between the prisoner and any adviser or assistant helping the prisoner prepare the defence (other than another prisoner).

[27] I also note that clause 41 of Sch 7 states that a person who is holding a disciplinary hearing must adjourn that hearing if:

(a) he or she is satisfied that the prisoner who is charged with the disciplinary offence has not had a proper opportunity to prepare his or her defence.

[28] I necessarily express no view on what the outcome would be at the substantive review hearing. I merely record that although any entitlements arising under such provisions are far from absolute, the relevant discretions are also not unfettered. It is therefore in my view arguable on the material before me that the difficulties Mr Reekie (allegedly) has had in obtaining the assistance of Ms Wood, together with the other related matters of which he complains, might give rise to a valid substantive claim for relief.

[29] Having got to that point, the question that arises is where the balance lies between Mr Reekie’s interest in being granted the relief sought and whatever public interest is engaged by the possible grant of relief. In this respect Ms Catran submitted that Mr Reekie’s interests were outweighed by the relevant public interest. She relied in particular on the decision of this Court in Taylor v Visiting Justice at Arohata which involved the same weighing exercise in circumstances similar to the

present.8 There, MacKenzie J said:9

... Dealing first with the applicant’s position, she has as I have noted, already served the bulk of the penalty imposed and the more onerous part of the penalty; that is to say the seven days of cell confinement. While there will be a disadvantage to her if she serves the balance of that penalty and if she were ultimately successful in the Judicial Review application, the extent of the penalty is not a serious one to weigh in the balance of the scales of convenience. On the other side of the scales there is a public interest in the maintenance of discipline within the prison. ...

[30] His Honour then referred to McGrath J’s judgment in Drew v Attorney- General where he said:10

The Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system. It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living. Closely linked to the imperative of continuing order is the maintenance of the integrity of prison security, which includes security against the introduction and use of illegal drugs within the prison. It is a complaint in relation to the

8 _Ibid.

9 _{At [15].}

10 Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85] and [86]. Although McGrath J

events of unauthorised use of drugs within the prison that gave rise to the disciplinary proceedings against Mr Drew which have become the subject of his appeal.

At the heart of the statutory scheme for prison discipline is the policy that is shared with many countries that responsibility for dealing with misconduct by prisoners should, in general, form part of the governmental function of prison management. In this context the Act contemplates that the principal burden of disciplinary adjudication should fall on those responsible for the operation of the prison. That is achieved by providing under the Act a two tier disciplinary process. At the first level the prison disciplinary system is administered by the senior officers in the prison, with the aim that the great majority of incidents will be dealt with at this level in a fair, timely and effective manner consistent with the need to maintain order. An important safeguard for prisoners who become subject to the process at this level is a right of appeal against any finding by the superintendent that a complaint concerning an offence against discipline has been proved and against the penalties that may consequently be imposed (s 35).

[31] MacKenzie J then went on to say:11

Those considerations would militate against the too-ready granting of interim relief on an application for Judicial Review. It is to be noted that where a charge is heard by the hearing adjudicator, rather than being referred to the Visiting Justice, a right of appeal to the Visiting Justice exists and under s 136(6), any penalty imposed by the hearing adjudicator is suspended until the appeal is disposed of. That however is a provision which applies in the context of a disciplinary procedure which envisages the prompt hearing of charges and appeals within a very limited time frame. That time frame is quite different from that which could reasonably be expected to apply in proceedings for Judicial Review. On my assessment, the interests of the community in ensuring that discipline within prisons is able to be maintained militates strongly against the adoption of any general rule that where an application for Judicial Review is made the penalty imposed will ordinarily be suspended. There must, in my view, be something particular to the case of the applicant which would outweigh the public interest to which I have referred. In my view, there is no such consideration in this case, and in the circumstances the balance of convenience favours the maintenance of the penalty notwithstanding the existence of the application for review.

[32] Drew was not an interim orders case; it involved the vires of a regulation relating to the conduct of disciplinary hearing. In Taylor the charges and penalties concerned involved the possession of methamphetamine by the prisoner and were thus considerably more serious than the kinds of charges (and penalties) now faced by Mr Reekie. It cannot be imagined that he would, in reality, be able to obtain any great assistance in conducting his defence from Ms Wood. On the other hand, if

_{interim relief is not granted, then aspects of his underlying claim will potentially be}

11 Taylor at [16].

rendered nugatory (by which I mean by the time the substantive proceedings are heard he will potentially have been convicted by the Visiting Justice and served any sentence).

[33] Against that I must weigh the policy concerns identified by McGrath and MacKenzie JJ. Of particular concern in my view is the importance of the prison authorities’ ability to deal with minor disciplinary matters in a timely and efficient way. The prospect of a prisoner being able to halt such proceedings in their tracks by applying to this Court is not lightly to be countenanced. Notwithstanding Mr Reekie’s apparent concerns about the neutrality of the Visiting Justices, I note that such persons are required to be a District Court Judge, a Justice of the Peace or a barrister and solicitor. As well, there are numerous, and important, procedural safeguards contained in the statutory provisions governing disciplinary hearings of which cl 40 is only one. I am confident that notwithstanding the Visiting Justice’s prior indication that there would be no adjournment of the 21 June hearing, such an adjournment would be ordered if it appeared that Mr Reekie was at a substantive disadvantage.

[34] Having taken into account all the above matters, I have formed the view that the balance between the respective interests here does not ultimately favour the grant of interim relief in this aspect of Mr Reekie’s claim.

[35] Lastly, and in terms of the declarations sought by Mr Reekie, it seems to me that they do not constitute the sort of relief contemplated by s 8 of the JAA. Even if that were not the case, a declaration that the respondent is to comply with the law (which is essentially what is sought) is not necessary. That is plainly the position and merely reiterating it in declaratory form serves no useful purpose.

[36] For all the reasons I have given, Mr Reekie’s applications for interim orders

_{are dismissed.}

Rebecca Ellis J