Smith v Attorney-General [2016] NZHC 2103 (6 September 2016)

Last Updated: 6 September 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000041 [2016] NZHC 2103

UNDER	Part 1 of the Judicature Amendment Act 1972 and Part 30 of the High Court Rules
IN THE MATTER OF	an application for judicial review
BETWEEN	PHILLIP SMITH Plaintiff
AND	THE ATTORNEY-GENERAL First Defendant THE AUCKLAND DISTRICT COURT Second Defendant

Hearing:	23 May 2016
Counsel:	A J Ellis for the Plaintiff A M Powell and T P Westaway for the Attorney-General
Judgment:	6 September 2016

_{JUDGMENT OF EDWARDS J}

This judgment was delivered by Justice Edwards on 6 September 2016 at 12.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel: A J Ellis, Wellington

_{Solicitors: Crown Law, Wellington}

SMITH v ATTORNEY-GENERAL [2016] NZHC 2103 [6 September 2016]

Introduction

[1] Mr Phillip Smith applies to judicially review the decision to handcuff him during the hearing of two pre-trial applications in the Auckland District Court on

12 November 2015.

Background

[2] Mr Smith is serving a life sentence for murder, and sentences for child sex offending, aggravated burglary and kidnapping. He has a conviction for escaping police custody in 1995. He is also currently serving a sentence for offences relating to an escape to Brazil in November 2014.

[3] Mr Smith originally pleaded not guilty to the 2014 escape charges. He applied for a stay of proceedings and discharge without conviction in the District Court. Those applications were set down for a pre-trial hearing on

12 November 2015.

[4] Mr Smith was transported from Auckland Regional Prison to the District Court to attend that hearing. He was escorted by officers employed by First Security, a contractor engaged to provide transit and courtroom custodial services pursuant to the Corrections Act 2004.

[5] The First Security officers’ instructions in terms of Mr Smith were set out in a form from the Department of Corrections. That form contains information about a prisoner’s security classification, active alerts, escape risks and any non-association orders in place. The form also includes specific instructions on how, when and where the prisoner is to be handcuffed or otherwise restrained.

[6] The form for Mr Smith identified him as a maximum security prisoner and a flight risk. The directions in the form required him to be handcuffed in all non- secure areas at the destination and when being escorted through public areas of court.

[7] When Mr Smith arrived at the District Court, he was initially placed in a holding cell in the basement of the court building. Mr Smith was not handcuffed

whilst in the cell and nor was he handcuffed in the passage between the cell and the courtroom. The cell and the passage areas are considered “secure areas” within the court building.

[8] The courtroom is not considered a secure area. Mr Smith was handcuffed to the security officer to enter the courtroom with a chain approximately one metre long. The security officer sat next to Mr Smith in the dock. Media were present in the courtroom and the hearing was open to the public.

[9] Mr Smith was called to the witness box to give evidence. The security officer handcuffed to him sat beside him. It became apparent at this stage that Mr Smith was handcuffed. Mr Smith’s counsel, Dr Ellis, made an application to have the handcuffs removed. The application was made shortly before the lunchtime adjournment.

[10] Judge Sharp heard from Dr Ellis and then questioned Mr Jackson, the senior supervisor for First Security, about the decision to handcuff Mr Smith. Mr Jackson stated that following an incident with a maximum security prisoner, Judge Bouchier had directed that all maximum security prisoners should be handcuffed when they appeared in court. In addition, Mr Jackson stated that he had a written notice from the prison which said that if a maximum security prisoner was outside a secure area, he had to be handcuffed to an officer. He indicated that he was bound to follow those instructions subject to any ruling from the Judge.

[11] Dr Ellis made further submissions and then indicated that he needed to locate a European court decision over the lunch break. The Judge considered that the handcuffs did not provide too much restraint on Mr Smith at that time and so decided that they would remain in place subject to Dr Ellis being able to show some authority to the opposite effect. The lunchtime adjournment was then taken. Mr Smith was taken out of the courtroom and back down to the cells.

[12] Following the lunchtime adjournment, and after hearing submissions from both counsel, Judge Sharp gave an oral ruling declining the application to remove the handcuffs. The written version of that oral ruling is set out below.

[13] Mr Smith’s pre-trial application was adjourned part-heard that day. That is because a further application made by Mr Smith to cross-examine the Commissioner of Police was granted by the Judge. The Commissioner of Police subsequently applied to judicially review that decision. That application was heard at the same time as this application for judicial review.

[14] Subsequent to the hearing of the judicial review applications, Mr Smith decided to accept a sentence indication for the escape charges. At his request, a jury was empanelled and directed to convict him of those charges. Convictions were accordingly entered and he was sentenced to 33 months’ imprisonment.

[15] As a result, Mr Smith’s pre-trial application was not reconvened. The Commissioner of Police indicated that a judgment on his judicial review application was no longer required and that proceeding was brought to an end. This judgment was delayed pending a response from Dr Ellis as to whether a judgment in this proceeding was still required. A response was not received and this judgment is issued accordingly.

Decision

[16] Judge Sharp’s ruling was as follows:

[1] An application has been made during the course of the proceeding. When Mr Smith was called to give evidence it became obvious that he [had] a restraint and handcuffs in place. Dr Ellis immediately made application for the handcuff to be removed.

[2] This application took me slightly by surprise firstly, because I was not aware previously that Mr Smith had been handcuffed and secondly, the arrangements for security are generally matters which are managed externally, although on reflection, I accept the obligation to determine such arrangements falls ultimately with myself.

[3] Dr Ellis has provided a copy of the English Crown Prosecution Service guidelines and those guidelines, with the authority of the English Courts, provide that an application for restraint is required from the prosecution who has an onus to supply a basis for continued restraint. Dr Ellis also referred me to R v Burns, a decision in which an appeal ground was the handcuffing of the accused in that trial, that was a trial which took place before a jury.

[4] Also I have been referred to material from the European Courts of Justice and an article which has been published in respect of DOC and physical restraints, the presumption of innocence put to the test in appearance at the trial and I have had excerpts from the opinions which are contained within that article put to me.

[5] I had asked the director of security to speak to the Court as to the reasons for Mr Smith having handcuffs. I save for myself the impact upon presumption of innocence and fair trial considerations. For me these arguments are more engaged if there were a jury that might believe a person subject to trial was dangerous or at risk of immediate escape, that situation does not necessarily arise here. Judge alone consideration of a pre trial application [or] an application of stay will be unaffected by the presence of handcuffs. Notwithstanding that the appearance of trial should be of fairness.

[6] The circumstances here are that there are directives from security and from the prisons that Mr Smith is a person who is detained under maximum security; he is subject to an alleged escape and of trying to put himself outside this jurisdiction. Accordingly, a basis is present, in fact, for concerns and I am not prepared to order the removal of the handcuffs.

Pleadings

[17] Mr Smith’s statement of claim contains two causes of action.

[18] The first cause of action concerns the initial decision to handcuff Mr Smith. It is pleaded that “up until the time Judge Sharp correctly conceded he had the obligation to determine whether Mr Smith was to be handcuffed, Judge Sharp had abdicated or surrendered his powers to handcuff to other authority or authorities”.

[19] The second cause of action relates to the decision not to grant the application to remove the handcuffs. Mr Smith pleads that Judge Sharp erred in law and took into account an irrelevant consideration in determining that a judge alone pre-trial application did not warrant the removal of handcuffs.

[20] Orders of certiorari and various declarations, including that the handcuffing was unlawful and breached ss 23(5) and 25(c) of the New Zealand Bill of Rights Act

1990 (NZBORA) and s 5 of the Corrections Act 2004 are sought by way of relief for both causes of action.

[21] The Attorney-General is sued in respect of the acts and omissions of the

Auckland District Court. In his statement of defence dated 28 January 2016, the

basis for joining the Attorney-General as pleaded by Mr Smith is denied, but it is accepted that as the decision arose in the course of a Crown prosecution it is appropriate that the Attorney-General be a party to the proceeding. The factual allegations are for the most part admitted. The real contest concerns the grounds for review in both causes of action.

[22] The Auckland District Court abides the decision of this Court. I excused attendance at the hearing on that basis.

First cause of action – abdication of judicial power

[23] Mr Smith submits that the initial decision to handcuff Mr Smith was made by Department of Corrections’ staff, contractors or security staff at the court, and not Judge Sharp. He says this was an abdication or surrendering of the Judge’s powers to determine handcuffing inside a courtroom.

[24] Dr Ellis, on behalf of Mr Smith, made comprehensive submissions referring to a wide range of materials in support of this cause of action. The provisions of the Corrections Act 2004, the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Mandela Rules 2015¹ were offered in support of a starting presumption that an accused should not be handcuffed in court. Reference was made to guidance from the United Kingdom Crown Prosecution Service which

sets out a presumption against handcuffing inside a courtroom unless there is a risk of escape or violence which cannot be managed by alternative means. Dr Ellis placed emphasis on the Supreme Court of India decision in Prem Shankar Shukla v Delhi Administration.² The judgment of Justice Krishna Iyer in that case strongly denounces the practice of handcuffing as inhuman, unreasonable and arbitrary.³

Dr Ellis also submitted that handcuffing in court breached the presumption of

_{innocence in s 25(c) of the NZBORA and also breached the right of those deprived}

¹ Corrections Act 2004, s 5 refers to the United Nations Standard Minimum Rules for the Treatment of Prisoners. Rule 33 of those rules provides that restraints may be used as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority. Those rules have since been replaced by the “Mandela Rules 2015”, but r 47 is in similar terms.

² _{Prem Shankar Shukla v Delhi Administration 1980 SCR (3) 855 (SC India).}

³ At 22.

of liberty to be treated with humanity and with respect for the inherent dignity of the person as preserved in s 23(5) of the NZBORA.

[25] These submissions, and those received on behalf of the Attorney-General, canvassed the practice of handcuffing in different jurisdictions in some depth. They underscore the importance of the issue in terms of fundamental human rights and the various considerations to be taken into account when deciding whether a defendant should be handcuffed both inside and outside the courtroom.

[26] However, the issue for determination in the first cause of action is a relatively narrow one. The pleading is confined to an allegation that Judge Sharp abdicated or surrendered his judicial power. To prove his claim, Mr Smith must show that there was an exercise, refusal to exercise, proposed or purported exercise of a statutory power within the meaning of the Judicature Amendment Act 1972, or some other act which engages the Court’s supervisory jurisdiction under Part 30 of the High Court Rules.

[27] I do not consider Mr Smith can surmount that first hurdle, at least up until the application was made by Dr Ellis shortly before the lunchtime adjournment. There is no evidence that the Judge took any steps, acted in any way, or made any decision relating to Mr Smith’s handcuffing in that period. As is evident from [2] of the ruling, the Judge was not even aware that Mr Smith was handcuffed until the application by Dr Ellis was made.

[28] Mr Smith sought to prove this cause of action by referring to the decisions of the Department of Corrections or First Security to handcuff Mr Smith. But that does not advance the position in my view. The fact that the initial decision regarding handcuffing appears to have been made by others does not, in and of itself, evidence an abdication or surrender of a power by Judge Sharp.

[29] In any event, I do not consider it appropriate to entertain a collateral challenge to the decisions of the Department of Corrections or First Security when the challenge is only made to establish an abdication or surrender of power by Judge Sharp. Those parties are not parties to the proceeding, and they were not

afforded a separate right to be heard at the hearing. Similarly, the Auckland District Court was only joined as a party insofar as Judge Sharp’s actions or decisions were concerned, and not in relation to a wider challenge to District Court processes and procedures. Where fundamental human rights are at issue, and the processes and procedures of a number of organisations are implicated there must be fair notice of the decisions or actions which are challenged so that all parties may have a right to be heard.

[30] Once the Judge became aware of the issue, shortly before the lunchtime adjournment, then the Judge was exercising a judicial power. But I do not consider the Judge to have abdicated or surrendered his power at that stage. Judge Sharp’s questioning of Mr Jackson as to the reasons why Mr Smith had been handcuffed elicited factors relevant to the Judge’s assessment of risk. There is no evidence that the Judge was being dictated to by the Department of Corrections, or that he was not exercising his discretion to determine the issue before him. The Judge took into account the submissions made and determined that the handcuffs should remain.

[31] In the circumstances, I do not consider Judge Sharp to have abdicated or surrendered his power and the first cause of action is dismissed.

Second cause of action – error of law and irrelevant consideration

[32] The second cause of action is directed at the ruling made by Judge Sharp

declining Mr Smith’s application to remove the handcuffs.

[33] Dr Ellis submits that the Judge erred in law in concluding that a Judge alone pre-trial application did not warrant removal of handcuffs. He also submits that the fact the application was before a Judge alone was an irrelevant consideration. Dr Ellis says that the correct legal test is whether there is a breach of the presumption of innocence and the right to a fair trial before the public, not before a Judge sitting alone. Finally, Dr Ellis submits that the fact of Mr Smith’s prior escape was not sufficient reason to handcuff him in completely different circumstances and without the prosecution showing that it was necessary in the absence of alternative methods.

[34] There is no dispute that the trial Judge has the power to determine the question of handcuffing inside the courtroom. As the Court of Appeal observed in R v Burns, that decision is part of the trial Judge’s power to regulate the procedure of the Court.⁴

[35] That decision must be “exercised consistently with the fundamental rights of the accused to a fair trial”.⁵ Those fair trial rights include “the right to a fair and public hearing by an independent and impartial court”⁶ and the “the right to be presumed innocent until proved guilty according to the law”.⁷

[36] It is the prejudice to the defendant in the eyes of the decision-maker that typically engages fair trial rights in this context. The prejudice to a defendant where the decision-maker is a jury was described in Horden v R as follows:⁸

The jury must be free to decide upon the guilt or innocence of the defendant without the risk of being influenced against him by sight of restraint which in their minds suggests that he is regarded with good cause as being a dangerous criminal.

[37] Even where the appearance is before a jury, handcuffing may nevertheless be justified if there is a legitimate risk of escape or violence, although measures to lessen that prejudice may be appropriate.⁹

[38] Judge Sharp clearly had regard to fair trial rights in making his decision. He considered that the arguments based on such rights were more engaged where the appearance was before a jury, rather than before a Judge alone hearing of a pre-trial application for a stay. That factor was a key consideration to be weighed in the balance. The Judge did not err in law by having regard to this factor, and nor can it

_{be said to be an irrelevant consideration.}

⁴ _{R v Burns CA 308/00, 17 October 2001 at [14].}

⁵ _{At [14].}

⁶ _{New Zealand Bill of Rights Act 1990, s 25(a).}

⁷ _{New Zealand Bill of Rights Act 1990, s 25(c).}

⁸ _{R v Horden [2009] EWCA Crim 388, [2009] 2 Cr App R 24 at [2].}

⁹ In R v Burns, above n 4, the trial Judge had directed that the defendant was to be handcuffed during a view of the murder scene which was attended by both Judge and jury. However, the security officers were directed to use discretion so that the fact that the accused was handcuffed was not obvious.

[39] Dr Ellis submits that the fair trial rights concern an appearance before the public. The focus of this submission is not entirely clear.

[40] To the extent that it is directed to potential prejudice to Mr Smith from his appearance before the media then it is apparent that the Judge was alive to this potential prejudice. Following the lunchtime adjournment, there was a discussion about suppression orders. The Judge asked Dr Ellis whether an order suppressing the details of the pre-trial hearing was required. Dr Ellis confirmed that he did not ask for a suppression order to be made and accordingly the Court did not make one. I do not consider the Judge erred by failing to have regard to this aspect of potential prejudice to Mr Smith.

[41] To the extent that Dr Ellis’ submission is concerned with Mr Smith’s character and reputation, then it appears to be a submission directed towards the right protected in s 23(5) of the NZBORA, rather than fair trial rights. European jurisprudence suggests that the use of handcuffs will not be inhuman or degrading where they have been imposed in connection with a lawful detention and they do not entail use of force, or public exposure, exceeding what is reasonably considered

necessary.¹⁰ There is nothing to suggest that the handcuffing of Mr Smith exceeded

what was reasonably necessary in light of the risks that he posed. I do not consider the Judge’s decision could be considered inconsistent with s 23(5) of the NZBORA in those circumstances.

[42] Finally, I do not consider the Judge erred in law or took into account any irrelevant factors in assessing the risks posed by Mr Smith. The Judge took into account Mr Smith’s maximum security classification and the fact that he was the subject of charges relating to an alleged escape. There was no reviewable error in

_{the way in which that assessment was undertaken.}

¹⁰ Mouisel v France [2004] 38 EHRR 38 (ECHR) at [47]. See also R (on the application of Spinks) v Secretary of State for the Home Department [2005] EWCA Civ 275 at [39]; and R (on the application of Graham and Allen) v Secretary of State for Justice [2007] EWHC 2940 (Admin) at [23]–[29].

[43] In summary, I am not persuaded that Judge Sharp applied the wrong legal test, or took into account irrelevant factors in determining that Mr Smith should be handcuffed at the pre-trial hearing. The second cause of action is dismissed.

Result

[44] The application for judicial review is declined.

[45] The Attorney-General sought costs in the event the application was successfully opposed. Such an order would normally be appropriate. However, given the proceeding concerned matters of fundamental human rights, and in light of the fact that there is no practical prospect of securing payment from Mr Smith,¹¹ I

_{decline to make an award in this case.}

_{Edwards J}

¹¹ See Smith v Attorney-General [2010] NZCA 336 where costs were declined on the grounds that Mr Smith enjoyed some, albeit slight, success in the proceeding, and there was no practical prospect of securing payment.