Greer v Chief Executive of Department of Corrections [2018] NZHC 813 (26 April 2018)

Last Updated: 3 May 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2017-485-873 [2018] NZHC 813

BETWEEN	ALAN IVO GREER Applicant
AND	CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS Respondent

Hearing:	26 April 2018
Counsel:	Applicant in Person D Harris for Respondent
Judgment:	26 April 2018

JUDGMENT OF SIMON FRANCE J

[1] Mr Greer is a serving prisoner. Pursuant to a Departmental Drug and Alcohol Testing protocol, prisoners may be randomly selected for a drug test. This happened with Mr Greer three times in 2017, and on each occasion, he refused to submit to the test.

[2] Refusal is a disciplinary offence and Mr Greer was charged. The three occasions were subject to separate charges and were referred to Visiting Justices for determination. There appears to have been some confusion over whether they were to be heard together or separately. Ultimately, there were two hearings disposing of the three charges. Mr Greer was convicted.

[3] A consequence of conviction, separate from any penalty imposed by the Visiting Justice, arises under the Drug Policy. The prisoner becomes subject to IDU status (identified drug user). This status has consequences on various aspects of a prisoner’s life, but its impact is greater for those otherwise on lower security classifications. Mr Greer is assessed as a high security prisoner and so the practical

GREER v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2018] NZHC 813 [26 April 2018]

effect of the status, for now, is various restrictions on visiting rights. The status runs for a year from conviction. If there is more than one conviction, they run concurrently so the expiry date is 12 months after the latest conviction. Further, there are levels of IDU status – one offence, two offences, or three or more offences. Each level attracts greater restrictions. Mr Greer is IDU3.

[4] Mr Greer has filed judicial review proceedings challenging his convictions. In the broadest terms, the challenges are to the random selection process, and to the hearing process followed in relation to his convictions. More particularly, Mr Greer believes that he is entered twice into the database (by virtue of having two prisoner identification numbers). He accordingly submits he has been invalidly selected under the Random Drug Policy (and inferentially that this means the request for him to undertake a drug test was unlawful).

[5] The challenge to the hearing process has three components:

(a) the three proceedings were to be heard together and were not, to his disadvantage;

(b) the wrong evidence (being not the “best” evidence) was led about his identification numbers. This needs to be seen as a reasonableness challenge, it being claimed the evidence lacked sufficient evidential value to establish he was lawfully selected for a test;

(c) one of the two Visiting Judges wrongly declined to recuse himself.

[6] This ruling addresses Mr Greer’s application for a suspension of his IDU status pending determination of his substantive proceeding. A fixture has been allocated for 15 August.

[7] The respondent opposes interim relief, primarily on the basis that the case is weak, and a stay would undermine the drug policy. It is noted:

• (a) the disadvantage in not having had the three charges heard together is not clear, nor is it apparent why the point of itself invalidates any of the decisions;

(b) the Department led evidence about the identification numbers and neither visiting Justice thought Mr Greer’s point raised a concern. (It is accepted none of the rulings particularly address the point.)

(c) Mr Greer can address the IDU status by agreeing to undertaking two drug tests.

[8] The application for suspension of the IDU status is granted. If Mr Greer’s proceedings succeed, then he will have invalidly been subject to restrictions, a factor not to be minimised in the context of prison. On the other hand, if he is unsuccessful, then the status goes back in place, and for the full period. The balance clearly favours interim relief.

[9] As for the strength of the case, while there is apparent merit in the Department’s position, the proceedings appear to be a genuine challenge. Mr Greer obviously has issues with the random drug testing policy. He is serving an indeterminate sentence and it is a policy likely to continue to affect him. As far as I can see, he has been randomly selected five times over the 2016–2017 period. I am unaware if that is statistically to be expected or otherwise, but it is clearly a policy that impacts upon him.

[10] I am not prepared to hold at this point that there is obviously a lack of merit such as to decline interim relief. There is otherwise nothing that really tells against relief.

[11] A concern is that there may be delay in the substantive proceedings, and no incentive for Mr Greer to advance matters. If the matter were to drag I accept that could undermine the policy. A timetable is in place. The interim relief is subject to a requirement that Mr Greer comply with that timetable. A failure to do so, without
reasonable excuse, will provide a basis on which the respondent can seek to have the interim relief revisited.






Simon France J