Reekie v Attorney-General and Others

• Jurisdiction: New Zealand
• Judge: Wylie J
• Judgment Date: 30 July 2012
• Neutral Citation: [2012] NZHC 1867
• Docket Number: CIV 2008-404-005757
• Court: High Court
• Date: 30 July 2012

Between

Nicholas Reekie

Plaintiff

and

Attorney-General (Sued on Behalf of the Department of Corrections)

First Defendant

and

Attorney-General

Second Defendant

and

The District Court at Waitakere

Third Defendant

[2012] NZHC 1867

CIV 2008-404-005757

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for declaration and damages for unlawful detention, breach of s9 New Zealand Bill of Rights Act 1990 (“NZBORA”) (right not to be subjected to torture or cruel treatment), s25(3) NZBORA (rights of persons arrested or detained — everyone deprived of liberty shall be treated with humanity and with respect) — plaintiff was serving prisoner — committed offences while on parole and was recalled to serve remained of sentence — on expiry of sentence was remanded in custody in respect of new charges but no warrant for detention issued — held on remand for a period exceeding eight days — plaintiff said had not consented to remand but plaintiff's counsel had appeared at hearing — plaintiff alleged he was subjected to torture and sub-standard prison conditions — was placed in high care isolation cells and restrained to bed — whether a warrant was a prerequisite for lawful custody — whether plaintiff had consented to remand — whether plaintiff's claim for compensation was precluded by s13(1)(a) Prisoners' and Victims' Claims Act 2005 (claim for compensation by inmate — must make reasonable use of all of the specified internal and external complaints).

Distribution:

N Reekie: (via Arul Prakash: arul.prakash@corrections.govt.nz)

J Foster: jane.foster@crownlaw.govt.nz

J Catran: jenny.catran@crownlaw.govt.nz

Counsel:

N Reekie in Person supported by R Woods as McKenzie Friend

J Foster and J Catran for the Defendants

[RESERVED] JUDGMENT OF Wylie J

Introduction

1 Mr Reekie is a sentenced prisoner. Following a trial by jury, he was sentenced to preventative detention with a minimum term of imprisonment of 25 years by Harrison J in July 2003. 1

2 At the time that he was sentenced, Mr Reekie had spent 11 of the previous 14 years in prison. These proceedings relate to his imprisonment in late 2002 and in early to mid 2003.

3 The third amended statement of claim is a lengthy document. In some respects, it is confusing. It runs allegations relating to different issues together, and the causes of action pleaded in respect of the allegations are repetitive and not always clear. Nevertheless, broadly, the proceedings concern two issues;

• (a) First, there is a claim by Mr Reekie that he was unlawfully detained for the nine-day period from 9 to 25 September 2002. Six of the ten causes of action brought by Mr Reekie relate to this allegation. They are as follows: the first cause of action for false imprisonment; the third, seventh and ninth causes of action for breach of s 22 of the New Zealand Bill of Rights Act 1990; the fifth cause of action for negligence; and the tenth cause of action for breach of s 27 of the New Zealand Bill of Rights Act.

  Mr Reekie has also alleged that the responsible authorities knew that he was being held without lawful authority, and that the Department of Corrections, the police and the District Court at Waitakere, conspired to cover up his unlawful imprisonment.

  For this alleged unlawful detention, Mr Reekie seeks damages (including exemplary damages) in tort both for false imprisonment and for negligence, public law compensation for breach of ss 22,

  23(5) and 27(1) of the New Zealand Bill of Rights Act, and various declarations.

• (b) Secondly, there is a claim by Mr Reekie in relation to his treatment in prison and the conditions in which he says he was held, first in the High Care Unit at Auckland Prison, and then in the Special Needs Unit at Auckland Central Remand Prison. He has asserted that his treatment and the conditions in which he was held breached his right to be treated with humanity and with respect for the inherent dignity of the person under s 23(5) of the New Zealand Bill of Rights Act in his fourth and eighth causes of action, and/or that his treatment and the conditions in which he was held amounted to torture, or that they were cruel, degrading, disproportionately severe or inhumane under s 9 of the New Zealand Bill of Rights Act in his second and sixth causes of action

  Specifically, Mr Reekie has alleged that he was subject to an act of torture. He says that his left arm was placed in an arm lock and that his arm was then deliberately twisted by a prison officer when he was being restrained on a “tie-down” bed on 8 July 2002.

  Mr Reekie seeks damages, including exemplary damages, and various declarations, including a declaration that his treatment has been such that a substantial reduction in his sentence is “just and deserving”. He also seeks a declaration that his treatment “prevented, or at the very least, contributed [to him] not receiving a fair trial”.

4 I deal with these allegations in turn.

A) Unlawful Detention

Factual background

5 There is little dispute between the parties as to most of the essential facts. Moreover, the records of the District Court have been produced pursuant to an order made by this Court and they largely speak for themselves.

6 As I have already foreshadowed, Mr Reekie has a very lengthy criminal record. Relevantly, on 16 March 2000, he was sentenced to a term of imprisonment of three years for burglary and to a concurrent term of imprisonment of one year for aggravated assault. He did not however serve the full term of imprisonment imposed on him; rather he was released on parole on 10 December 2001.

7 Mr Reekie was not at liberty for long. On 13 February 2002, he was arrested on various charges laid under the Crimes Act 1961, including the following:

All charges related to the same complainant. Mr Reekie appeared in Court on 13 February 2002 on these charges and he was remanded in custody, by consent, until 22 February 2002. A warrant of commitment on adjournment pursuant to s 47 of the Summary Proceedings Act 1957 issued.

• (a) taking away without consent with the intention to have sexual intercourse;

• (b) assault with intent to commit sexual violation;

• (c) sexual violation by rape (x 2);

• (d) violation by unlawful sexual connection (x 4);

• (e) male assaults female.

8 On 20 February 2002, an interim recall order was made in respect of the earlier sentence that had been imposed on Mr Reekie in March 2000.

9 When Mr Reekie was back before the Court on 22 February 2002, two further charges were laid against him. He was charged with taking another complainant away with intent to have sexual intercourse with her. He was remanded in custody until 4 March 2002. On 4 March 2002, he was remanded in custody until 25 March 2002, and on 25 March 2002, he was remanded in custody until 8 April 2002. On each occasion, a warrant of commitment was issued.

10 On 8 April 2002, a further ten charges were laid against Mr Reekie, all involving a third complainant. The charges alleged:

Mr Reekie appeared in Court and he was remanded in custody, by consent, until 22 April 2002. A warrant of commitment was issued.

• (a) taking away without consent with intent to have sexual intercourse, (x 2);

• (b) assault with intent to commit sexual violation;

• (c) sexual violation by rape (x 2);

• (d) sexual violation by unlawful sexual connection (x 4), and

• (e) breaking and entering a dwelling with intent to commit a crime therein.

11 On 11 April 2002, a final recall order was made.

12 On 22 April 2002, Mr Reekie was remanded in custody until 20 June 2002, and a warrant of commitment was issued. Presumably, this remand was by consent, given the provisions of s 45(3) of the Summary Proceedings Act as it stood at the time, although I cannot see any reference to this in the District Court file. The records of hearing noted on the relevant summons are not, however, particularly clear. In any event, this issue is not raised by Mr Reekie. I take it no further.

13 On 3 May 2002, Mr Reekie was transferred to Auckland Prison. He was assessed as being at risk of self harm, and he was placed in the High Care Unit. I come back to this matter later in this judgment.

14 On 18 June 2002, the Criminal Office of the District Court at Henderson sent a facsimile to Auckland Prison advising that one of its staff had talked to Mr Reekie's counsel, a Mr Roberts, and that Mr Roberts had advised that he did not require Mr Reekie to attend Court on 20 June 2002. The facsimile advised that the hearing on 20 June 2002 was a callover so that the date for the deposition hearing could be set.

15 On 20 June 2002, Mr Reekie was remanded in custody until 28 June 2002, and on 28 June 2002, he was remanded in custody until 15 July 2002, again I assume by consent. On 15 July 2002, he was remanded in custody until 22 July 2002. On each occasion, a warrant of commitment was issued.

16 On 16 July 2002, the Parole Board terminated Mr Reekie's parole. The relevant part of the decision read as follows:

Mr Reekie has a final release date of 9 September [2002]. He is currently on remand for charges of abduction and rape. He will remain in custody on these charges until after his final release date, therefore we decline parole, he is to be released on his final release date…

17 On 22 July 2002, all of the various charges then outstanding against Mr Reekie were called before Judge Thorburn. The pre-depositions hearing sheet on the District Court file records that Mr Roberts appeared for Mr Reekie. Mr Reekie was not present. Mr Reekie in his statement of claim accepted that Mr Roberts entered an appearance on his behalf. Mr Reekie did, however, assert that he was prevented by Auckland Prison management from appearing in Court on 22 July 2002. He argued that he had been...