Mckean v The Attorney-General for and on Behalf of The Department for Corrections and Anor

• Jurisdiction: New Zealand
• Judge: Glazebrook,Chambers,O'Regan JJ
• Judgment Date: 25 November 2009
• Neutral Citation: [2009] NZCA 553
• Docket Number: CA357/2007
• Court: Court of Appeal
• Date: 25 November 2009

BETWEEN

Shannon Blair Mckean

Appellant

and

The Attorney-General For and On Behalf Of The Department For Corrections

First Respondent

and

The Visiting Justice At Paparua Prison

Second Respondent

[2009] NZCA 553

Court:

Glazebrook, Chambers and O'Regan JJ

CA357/2007

IN THE COURT OF APPEAL OF NEW ZEALAND

Breach of natural justice by Visiting Justice during prison disciplinary hearing — whether compensation available as a remedy.

Counsel:

P N Allan and K H Cook for Appellant

D B Collins QC, F R J Sinclair and C A Griffin for First Respondent

No appearance for Second Respondent

JUDGMENT OF THE COURT

• A The appeal is dismissed.

• B Costs are reserved.

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

1 Mr McKean appeals against a decision of Fogarty J of 22 June 2007 refusing to grant Mr McKean compensation under the New Zealand Bill of Rights Act 1990 (Bill of Rights) for breaches of natural justice that occurred in the course of a prison disciplinary hearing: McKean v Attorney-General [2007] 3 NZLR 819 (HC).

Background

2 On 19 July 2005, Mr McKean was required to give a urine sample for drug testing purposes. At the time, he was an inmate at Paparua Prison. The level of urinary creatinine in Mr McKean's sample was considered to be inconsistent with urine and he was charged with tampering with the sample.

3 The charge was heard before the Visiting Justice on 5 September 2005, who found the charge proved. Mr McKean was sentenced on the same day to five days cell confinement and a 28 day loss of privileges.

4 On 19 September 2005, Mr McKean filed an application for judicial review. The next day the High Court made an interim order deferring completion of the penalty pending the hearing of the judicial review application.

5 It was conceded by the Department of Corrections before Fogarty J (and indeed at the time the interim orders were applied for) that the hearing before the Visiting Justice should be declared invalid because it was made unfairly in breach of the principles of natural justice in three respects:

• (a) Mr McKean was refused legal representation in a case that required it;

• (b) Mr McKean did not have prior notice of the ESR report upon which the prosecution relied. Indeed the report was not even given in full to him at the disciplinary hearing. Extracts only were read out at the hearing;

• (c) Mr McKean did not have the opportunity to challenge the ESR report through cross-examination at the disciplinary hearing.

The High Court judgment

6 Because of the concession by the Department of Corrections referred to above at [5], Fogarty J made a declaration that the decision of the Visiting Justice of 5 September 2005 was made unfairly and quashed the decision. In the event, Mr McKean was released from prison before Fogarty J's judgment was issued and there was thus no question of the charge being heard again.

7 Mr McKean's claim for compensation was, however, rejected by Fogarty J. Fogarty J held that the scheme of the Corrections Act 2004 is that Visiting Justices cannot be held to account by the Crown and thus compensation should not be available to prisoners for breaches of the Bill of Rights by Visiting Justices.

8 Fogarty J considered that there are two possible ratios of the decision of this Court in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667. The first is that the Crown is directly liable for all breaches of the Bill of Rights as a matter of public law. The second (and narrower) possible ratio is that the Crown is directly responsible only for a breach of the Bill of Rights by the executive.

9 Fogarty J considered that the second possible ratio should be adopted because that would serve to protect the independence of the judiciary. Mr McKean's claim failed accordingly. If he was wrong and the wider ratio of Baigent's Case applied, Fogarty J went on to consider whether it would be appropriate to award compensation to Mr McKean. He decided that it was not.

10 Fogarty J noted that there was no suggestion that prison officials had in any way contributed to the lapse of 14 days from the judgment of the Visiting Justice and the commencement of the judicial review proceedings in the High Court. Interim relief (suspending the punishment) was granted one day after the proceedings were filed. Fogarty J rejected Mr McKean's contention that there had been continuing adverse effects once the interim relief had been granted. Fogarty J also stressed that the decision had been quashed.

11 In Fogarty J's view, Mr McKean's case demonstrated the efficacy of judicial review, which he considered was adequate redress for the errors of the Visiting Justice in this case. The claim for compensation was therefore not made out.

The parties' submissions

12 Mr Allan, on behalf of Mr McKean, adopts the arguments of Dr Harrison QC in Attorney-General of New Zealand v Chapman [2009] NZCA 552 (heard at the same time as this appeal). Additionally, Mr Allan relies upon the recent comments of the Supreme Court...