Watson v Department of Corrections [2012] NZHC 3542 (18 December 2012)

Last Updated: 8 January 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-002780 [2012] NZHC 3542

SCOTT WATSON

Applicant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing: 18 December 2012 (Heard at In Chambers)

Appearances: K H Cook for the Applicant

C L Lange for the Respondent

Judgment: 18 December 2012

_{ORAL JUDGMENT OF FOGARTY J}

Introduction

[1] Scott Watson is a life prisoner, having been convicted of a double murder. He makes an application for judicial review seeking an order requiring the Chief Executive of the Department of Corrections or his authorised delegate to give authority for a temporary removal from custody on a compassionate and/or humane ground to enable him to attend the funeral of his mother.

[2] The question of such approval has been under consideration by authorised delegates of the Chief Executive for some time. Today, a decision was made by an

_{authorised delegate. The reasoning was brief but followed upon a series of notes}

WATSON V DEPARTMENT OF CORRECTIONS HC CHCH CIV-2012-409-002780 [18 December 2012]

which meant that the brief reasoning cannot be fully understood without appreciating the application and the analysis that was undertaken by the Department. I am going to treat the whole as the decision for the purpose of subsequent analysis as to whether there is a remedy of judicial review available.

[3] Section 62 of the Corrections Act 2004 provides:

62 Temporary removal from custody or temporary removal from prison

(1) This section applies to every prisoner who is a member of a class of prisoners specified in regulations made under this Act as a class of prisoners who may be—

(a) temporarily released from custody under this section; or

(b) temporarily removed from prison under this section while remaining in custody under the control or supervision of an officer, staff member, or probation officer during the period of removal.

(2) The chief executive may give authority for the temporary removal from custody or temporary removal from prison of a prisoner to whom this section applies—

(a) for any purpose specified in regulations made under this Act that the chief executive considers will facilitate the achievement of 1 or more of the following objectives:

(i) the rehabilitation of the prisoner and his or her successful reintegration into the community (whether through release to work (including self-employment), to attend programmes, or otherwise):

(ii) the compassionate or humane treatment of the prisoner or his or her family:

(iii) furthering the interests of justice; or

(b) in any circumstances that, in the opinion of the chief executive, are exceptional and that will facilitate the achievement of 1 or more of the objectives described in paragraph (a).

(3) In exercising the powers conferred by subsection (2), the chief executive must consider—

(a) whether the release or removal of the prisoner might pose an undue risk to the safety of the community while the prisoner is outside the prison:

(b) the extent to which the prisoner should be supervised or monitored while outside the prison:

(c) the benefits to the prisoner and the community of removal or release in facilitating the reintegration of the prisoner into the community:

(d) whether removal or release would undermine the integrity of any sentence being served by the prisoner.

(Emphasis added)

[4] Mr Watson’s mother has been ill for some time. He has been temporarily removed to visit his mother while she was dying, more than once. He has applied to attend the funeral of his mother, which is to take place tomorrow, 19 December 2012 at 10.00 am. Within the Department of Corrections, the application has been analysed and a plan developed. The plan is to take him to the funeral chapel before the funeral, discretely transiting from the prison van to the chapel in a way which will mean that he will only be in public gaze for a few seconds, if at all. Following the service, he will be immediately returned to Rolleston Prison. The funeral directors are aware of the arrangement. No media have been given permission, nor will they be given permission, to attend or to be allowed to enter the property. Mr Watson wants to speak at the funeral with his brother and sister, and read a poem.

[5] The following transit conditions were developed prior to the application being declined:

(i) Prisoner to remain under the direct supervision of the two escorting officers at all times.

(ii) Strict security to be maintained at all times.

(iii) The prison van shall travel directly to and from the Westpark Chapel, Wairakei Road.

(iv) No unauthorised stops.

(v) No unauthorised visits or phone calls during escort.

(vi) Handcuffs are not to be applied to the prisoner whilst in a single cage in the prison van.

(vii) Handcuffs are to be carried and used at the discretion of the escorting officer.

[6] There is then a note on the file that this application is supported at site level, however, there are concerns around media attendance, and placing staff/prisoner in that situation. To date, there has been a lot of media interest and the likelihood of presence is high. There is an additional comment:

As per PM (Prison Manager) comments above, the escort plans as outlined are considered sufficient to mitigate security risks, however, there is significant media interest. This application is not supported at a national level, therefore it is not possible to support it regionally despite the robust plans outlined above.

[7] Then follows what appears to be the final decision.

Having considered the advice from regional and national offices and considering media pressures and putting staff into that situation, application is declined. Residential Manager to work to options for an onsite alternative.

[8] I have had two hearings on this matter, this afternoon and this evening. At the end of the first hearing, I adjourned the application to enable Mr Lange for the Department to obtain fuller instructions as to the nature of the concern by the Department over placing staff/prisoner in such a media intensive situation. At the resumed hearing, he advised that there was a significant concern over media related matters and public perception of the prisoner, as to how he was being controlled and security. An alternative solution was to allow Mr Watson to come to the chapel after the funeral for a final farewell to his mother.

[9] I have also had the benefit of reading the Department of Corrections policy on temporary removals, which relevantly includes the policy that the prisoner(s) being escorted are exposed to public view as little as possible and, as far as practicable in the circumstances, do not communicate with the public.

_Analysis

[10] The purpose of judicial review is to ensure that all government powers are exercised according to law. The control of prisoners, including temporary removal, are government powers. Section 62(2) of the Act clearly anticipates temporary removal from prison for a prisoner to visit a dying mother or to go to her funeral. Such removals fall clearly within the language of s 62(a)(ii):

(ii) the compassionate or humane treatment of the prisoner or his or her family.

[11] It is also clear from the opening words of subs (2) that the Chief Executive has a discretion as to whether or not to give this authority. It is a fundamental principle of public law that discretionary powers can only be exercised for the purposes for which they are given. This is both an enabling principle and a confining principle. Subsection (3) sets out considerations which the Chief Executive must consider.

[12] There can be no question, in the light of the transit conditions set out above, that Mr Watson would in any way pose an undue risk to the safety of the community while being removed from prison to participate at the funeral and being taken back. It is clear that he will be under constant supervision during transit and during the funeral.

[13] Subsection (3)(c) seems to not apply. Subsection (3)(d) needs to be examined.

[14] Mr Watson is a public figure, his crimes have generated a significant degree of intense public feelings. There will undoubtedly be some members of the community who consider that any compassionate treatment of Mr Watson is not justified because of the double murder of which he has been convicted. They would see this as, to a degree, undermining the integrity of the life sentence he is serving. However, while I recognise that some members of the public will have that opinion, subs 3(d) has to be interpreted by the Judge, consistent with the whole of s 62 and the whole of the Corrections Act.

[15] Parliament has clearly intended to provide for occasions for temporary removal from custody, or temporary removal from prison, of a prisoner on compassionate or humane grounds. There is no distinction drawn in the section as to categories of prisoner, as to the crimes that they have committed. There is no provision in s 62 that requires some balancing by the Chief Executive as to whether or not this favour is justified by the gravity of the sentence. Subsection (3)(d) does,

however, require examination of whether or not the integrity of any sentence being served is undermined.

[16] The sentence here to be examined is life imprisonment. The temporary removal from prison is a matter of some hours, of one day, under close supervision. It cannot be said that the removal undermines significantly the length of the sentence. Such temporary removal does not undermine the integrity of the life sentence. I am reinforced in this view by the longstanding practice, that all prisoners are treated humanely, and do get the opportunity to maintain their family relations and, from time to time, participate in the final stages of a family member ’s life and attend a funeral.

[17] For these reasons, I am of the view that the Department of Corrections genuine concerns about the likely intense media attention in this particular case, has led to inappropriate consideration being given to the policy that prisoners are exposed to public view as little as possible (see [9] above). The application of that policy has to be compatible with s 62, particularly s 62(2)(a)(ii) and s 62(3)(d), as I have analysed. For these reasons, I think that there is an error of law embedded in the decision.

[18] This is a case where time is of the essence. It is not realistic to use the option of referring the matter back to the Department for further consideration. A decision has to be made. This Court has the power to make this decision in the nature of a mandamus order (s 4(1) Judicature Amendment Act 1972). Normally such an order is not made in respect of a discretionary power. But here the evidence is that there would have been a temporary order, but for the likely intense media attention.

[19] I order that the Chief Executive or one of his authorised delegates give authority for the temporary removal from prison of the applicant Scott Watson for the purposes of attending the funeral of his mother, subject to conditions.

[20] For the importance of clarity, I am going to set out all the transit conditions that are to apply, these include the conditions already set out above, but they have

been refined by this hearing process, and slightly extended. The following transit conditions are to apply:

(i) Prisoner to remain under the direct supervision of the two escorting officers at all times.

(ii) Strict security to be maintained at all times.

(iii) The prison van shall travel directly to and from the Westpark Chapel, Wairakei Road.

(iv) No unauthorised stops.

(v) No unauthorised visits or phone calls during escort.

(vi) Handcuffs are not to be applied to the prisoner whilst in a single cage in the prison van.

(vii) Handcuffs are to be carried and used at the discretion of the escorting officer.

(viii) Notwithstanding that previous condition, Mr Watson will be handcuffed when being moved from the prison van to the side door and otherwise at the discretion of the escorting officers.

(ix) Mr Watson shall not converse with the public, other than family members, when viewing his mother’s body in the private/quiet room. (The term converse is used because that is not intended to stop Mr Watson speaking formally with his brother and sister, and reading a poem, to the congregation at the funeral.)

(x) Mr Watson is to leave the Westpark Chapel following the conclusion of the funeral service, being removed in similar fashion as he was brought.

(xi) If, for any reason, any of the escorting officers becomes incapacitated, Mr Watson must return to the prison immediately.

(xii) Mr Watson will meet the expenses arising from the compassionate temporary removal in terms of the Department of Corrections policy

M.04.05.09. (I have not heard argument and do not make any final judgment as to the general validity of that policy.)

[21] I have heard no argument on the question of costs. I do not know whether there will be any application. Formally, costs are reserved.

Solicitors:

Raymond Donnelly & Co, Christchurch

Kerry Cook Barrister, Christchurch