Watson v Chief Executive of the Department of Corrections [2016] NZHC 1868 (11 August 2016)

High Court of New Zealand

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Watson v Chief Executive of the Department of Corrections [2016] NZHC 1868 (11 August 2016)

Last Updated: 5 September 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000247 [2016] NZHC 1868

BETWEEN	SCOTT WATSON Applicant
AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	(By telephone) 10 August 2016
Appearances:	K H Cook for the Applicant T Westaway for the Respondent
Judgment:	10 August 2016
Reasons:	11 August 2016

_{REASONS FOR JUDGMENT OF GENDALL J}

Introduction

[1] On 27 July 2016, the applicant, Scott Watson (Mr Watson) a serving prisoner, filed in this Court an application (the “Order to Produce Application”) pursuant to s

65 of the Corrections Act 2004, to be present at a hearing of a judicial review application he has brought against the respondent. The judicial review hearing is to take place in this Court on 17 August 2016.

[2] Submissions were filed on behalf of Mr Watson in support of the “Order to Produce Application” and by way of Memorandum in response dated 9 August 2016 from counsel for the respondent.

[3] Having considered those submissions from counsel and having heard further comments advanced at the telephone conference hearing of this “Order to Produce

_{Application” on 10 August 2016, I held that the application succeeded. An order}

WATSON v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 1868 [10

August 2016]

was made pursuant to s 65(3) Corrections Act 2004 directing the manager of the Prison in question to produce Mr Watson and ensure he is present at the hearing in this Court of his judicial review application on 17 August 2016.

[4] This was on the basis first, in terms of the mandatory requirements of s 65(4) Corrections Act 2004, that the expenses of bringing Mr Watson before the Court in a civil proceeding such as this as advised by Corrections were to be $475 and secondly, that this amount was to be paid by Mr Watson to the Registrar of this Court prior to the hearing on 17 August 2016.

[5] Accordingly, an additional order was made which effectively provided that the order to produce Mr Watson was conditional upon him paying to the Registrar of the High Court the sum of $475 by 5.00 pm on Monday, next, 15 August 2016. (This amount is to be retained by the Registrar to meet these proper s 65(4) expenses).

[6] In making these orders yesterday, 10 August 2016, I indicated that my detailed reasons for this decision would follow. I now set out those reasons.

Reasons for decision

[7] Under s 65(3) of the Corrections Act 2004 (the Act), a court may, by order in writing, direct the manager of a prison in which a prisoner concerned is detained to ensure that the prisoner is brought, before the court for “judicial purposes”, as often as may be necessary. The prison manager is to obey that order. For the purposes of the present “Order to produce Application”, this section is only to apply if “the interests of justice” require his attendance for judicial purposes.

[8] Section 3 of the Corrections Act 2004 defines “attendance for judicial purposes” as that person’s attendance, whether as a party or as a witness, before any court (amongst a range of other specific tribunals).

[9] As Mr Watson here is a party to the present judicial review proceeding, being a proceeding which he has brought himself as applicant, the issue is whether the interests of justice require his attendance at the judicial review hearing. The test

essentially as I see it includes questions as to whether the interests of justice necessitate Mr Watson’s attendance at this hearing.

[10] Turning to consider authorities relating to this s 65, in F v Chief Executive of the Ministry of Social Development, the appellant had been granted leave to appeal the High Court’s decision to decline his application for habeas corpus in relation to his child.¹ The child was in the court-ordered custody of the chief executive of the Department of Child, Youth and Family Services. The Court of Appeal agreed with the High Court Judge that habeas corpus was not an available remedy, and dismissed

the appeal.

[11] The appellant had been removed from prison for the judicial purpose of attending the hearing before the Court of Appeal. It appears that this must have been under s 65(2)(b), the “interests of justice” limb of the s 65 test, as none of the other paragraphs of this provision applied. The appellant was self-represented, which may explain to an extent why the interests of justice required his attendance.

[12] In that case, the appellant had not been required to contribute to the costs of his transport of the Court, despite the mandatory provision in s 65(4) for him to do so. The Court of Appeal did not comment further on this irregularity. The Court declined however to make a costs order against the appellant, given his current circumstances.

[13] In Taylor v Chief Executive, Department of Corrections, the Human Rights Review Tribunal declined to have Mr Taylor, a serving prisoner produced from prison for the purpose of representing his wife.² Mrs Taylor had claimed before the Tribunal that the Department failed to deal with her information access request in accordance with the principles of the Privacy Act 1993. Mrs Taylor’s claim was filed by her husband, Mr Taylor. She had authorised him to take all necessary

actions to prosecute and/or settle the proceeding. Both Mrs and Mr Taylor were

_{prison inmates under the control of the Department at the time.}

1. F v Chief Executive of the Ministry of Social Development [2007] NZCA 50, [2007] NZFLR 613 at [21].

² Taylor v Chief Executive, Department of Corrections Decision No 20/2008, HRRT02/08, 19

September 2008.

[14] A real issue in that proceeding appeared to be whether the Tribunal could or should disqualify Mr Taylor from participating in any hearing of the case as agent for Mrs Taylor. The Department objected to the proceeding on several bases, expressing an underlying concern as to Mr Taylor’s status as a high security prisoner in a maximum security prison. Mr Taylor had convictions for escape (including with use of firearms) and kidnapping, one of which related to an escape with firearms from a tribunal-like situation. The term of imprisonment presently being served by Mrs Taylor arose from her role in that incident. Mr Taylor rejected these allegations, and asserted that he had appeared many times, in several courts, without any security incidents.

[15] Were it not for the facts of Mr Taylor’s imprisonment and significant security risk, it seems the Tribunal would have seen no basis for the Department’s objection to Mr Taylor’s involvement in the case as Mrs Taylor’s agent.³

[16] However, the Tribunal was not prepared to dismiss the Department’s concerns about the practicalities and potential risks involved in Mr Taylor’s proposed attendance at a Tribunal hearing outside the prison at which he was being held. Nor did the Tribunal see this as a situation that could or should be dealt with by reference

to s 65 of the Act.⁴ Instead, the Tribunal said a solution must be found in which Mr

Taylor did not leave the prison at which the Department had chosen to hold him. It canvassed several possibilities, including:⁵

(a) having the hearing at the prison where Mr Taylor was being held.

Although this would involve transporting Mrs Taylor for the purpose, the evidence did not suggest she presented the same level of escape risk as Mr Taylor; and

(b) holding the hearing with the parties (including both Mrs and Mr

Taylor) participating by video link, or even simply by telephone conference.

³ _{At [10].}

⁴ _{At [12].}

⁵ At [14]-[15].

[17] The Tribunal clarified that the hearing would not be conducted in such a way as to require the Department to remove Mr Taylor from prison. It left it to the Chairperson of the Tribunal to give effect to the decision by whatever directions were considered appropriate.

[18] In the present case, however, it is clear that Mr Watson does not present the same flight risk as Mr Taylor was identified with.

[19] In Murray v Police, the applicant unsuccessfully applied for review of two District Court decisions. The first declined to produce a witness (the prisoner, R) for the purposes of a non-party disclosure hearing. The second declined to remove counsel for the Department of Corrections from the proceedings.⁶ As to the review of the non-party disclosure hearing, Wylie J in the High Court held that, in order to exercise the discretion vested in the Court under s 65, it had to be satisfied that removing the prisoner to Court was required in the interests of justice.⁷ As the Court had an affidavit in that case from the serving prison, R, and no party sought to cross- examine R, Wylie J held “prima facie, it must follow that there was no need for him to be at the hearing... His evidence was not challenged”.⁸ R’s attendance was seen as simply not necessary.

[20] Wylie J did however accept a submission advanced for the applicant that it may have been preferable for the District Court Judge to have convened a hearing, perhaps by way of telephone conference, to discuss the application and the Police’s objection.⁹ Nevertheless, he was not persuaded that the Judge’s decision to refuse an “order to produce” involved any reviewable error of law, breach of natural justice, nor any finding that it was manifestly unreasonable. Further:

[27] ... Given that no party required him for cross-examination, then unless the Judge required him, for example to answer further questions, his attendance was not necessary. The fact that Ms Murray wanted him in Court does not compel the conclusion that it was in the interests of justice to require his attendance.

⁶ _{Murray v Police [2013] NZHC 1457}

⁷ _{At [24].}

⁸ _{At [25].}

⁹ At [27].

[21] In the present case before me involving Mr Watson, the respondent has indicated it will simply abide the decision of the Court. Notwithstanding this, the respondent has communicated its preferred position which is that in light of the work required for Corrections to transport Mr Watson for the judicial review hearing, and the attendant disruption for Corrections staff, a reasonable alternative is that Mr Watson is simply to observe the hearing from the prison by way of AVL link.

[22] Having said that, before me the respondent clearly acknowledged three things. First, it was confirmed that Mr Watson is a minimum security prisoner, secondly, that he did attend the substantive hearing in this Court on a similar matter before Dunningham J in May 2015 without incident, and thirdly, that the respondent did not formally oppose Mr Watson’s presence at the May 2015 hearing which proceeded without incident. Lastly, the respondent says its formal response here is to adopt a similar non-opposition stance to Mr Watson’s present application. And finally, the respondent acknowledges that Mr Watson has arranged and is immediately prepared to pay the required sum to cover the expenses of his attendance at the 17 August 2016 hearing.

[23] With all these matters in mind I note also that this case differs from the situation which Wylie J faced in Murray v Police, in that the hearing on 17 August

2016 is of a judicial review application brought specifically by Mr Watson himself as applicant. He has a vested interest in the outcome of this proceeding. In addition, there are no security concerns here (unlike the situation in Taylor) and his presence may well prove helpful to counsel if issues arise at the judicial review hearing. Overall, I am satisfied here that the interests of justice in this case require that, even though he is represented by counsel, Mr Watson should be present in Court for the hearing of his own judicial review application.

[24] For all these reasons, the decision outlined at paragraph [3] above and the orders specified at paragraphs [3] and [5] above were made. These are confirmed.

Gendall J

Solicitors:

K H Cook, Barrister, Christchurch

Crown Law Office, Wellington