Reekie v Attorney-General and Others

JurisdictionNew Zealand
CourtHigh Court
JudgeWylie J
Judgment Date30 Jul 2012
Neutral Citation[2012] NZHC 1867
Docket NumberCIV 2008-404-005757

[2012] NZHC 1867

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2008-404-005757

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
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

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).

Held: Pursuant to s47 Summary Proceedings Act 1957 (“SPA”) (warrant for detention of defendant remanded in custody) when R was remanded in custody the Court should have issued a warrant in the prescribed form. The authorities suggested that the issue of a warrant was not a prerequisite to lawful custody ( R v Fisher). This was consonant with s201 SPA (amendment of conviction, order, or warrant), which provided that the High Court could amend a warrant of commitment in any way. This suggested that the detail of a warrant was not critical when determining whether or not a person was in lawful custody.

R had been remanded in custody on 22 July 2002 and was lawfully imprisoned pursuant to the March 2000 sentence until 9 September 2002. On that day he had become a remand prisoner. The Court's failure to issue a warrant of commitment under s47 SPA had been addressed promptly, first on 11 September and again on 1 October. While there had been an initial administrative deficiency in the process, this did not mean that R had been unlawfully detained.

Although R had not been in Court on 22 July 2002 when the remand order was made, his counsel was there on his behalf. The Court file did not record whether his counsel consented to an adjournment in excess of the eight-day period. It was, however, a distinct possibility he did. R was serving a recall sentence until 9 September 2002 and it was inconceivable that R would have received bail after that date, given the number and nature of the charges outstanding against him, and his past history. Consenting to a remand until the depositions hearing would have been the sensible course.

There was a presumption of regularity attaching to Court proceedings. It was unlikely that the need for consent to an adjournment longer than eight days would have been overlooked. R had failed to satisfy the Court on the balance of probabilities that his counsel had not consented to the adjournment. In any event, any absence of consent to a remand order for longer than eight days would not have would have rendered the order unlawful. Rather a failure to return R to Court with eight days might have amounted to a breach of his rights under the Summary Proceedings Act 1957. R did not however assert this in his statement of claim.

Breach of the minimum legislative requirements applicable to prisoners did not always automatically lead to a breach of s9 NZBORA or s23(5) NZBORA ( Taunoa v A-G). It was an evaluative exercise. Minimum entitlements were provided for under reg 42 PIR (physical exercise, bedding, food and drink, access to legal advisors and visitors and right to medical treatment). Pursuant to reg 152 PIR isolation cells to prevent self-harm were required to have a window, artificial lighting controlled from outside the cell, heating, natural lights and no modesty screen. Use of force was provided for under s17C PIA (use of force — reasonably necessary in the circumstances) and reg 7 PIR (use of force) and reg 146 PIR (Conditions attached to the use of physical hold). Strip searches were provided for in s21E PIA, s21G PIA and s21K PIA.

The use of ankle straps had not been permitted at the time and was a breach of the PIA and PIR (which only provided for torso restraints). There was no evidence that the use of ankle straps had any impact on R, either physically or psychologically and he had not complained about it at the time. The breach was not sufficiently outrageous to amount to a breach of s9 NZBORA. However, there was a breach of s23(5) NZBORA. The legislation and the regulations were clear but staff had been unaware of them. The use of ankle restraints had been demeaning and should not have occurred.

The test for establishing a breach of s9 NZBORA was a high one. If R suffered injuries through the restraint process, the injuries were not caused deliberately. There was no breach of either s9 NZBORA or s23(5) NZBORA. R had consented to being held in isolation, either under s7(1A)(b) PIA (inmate consents) or under reg 147(1)(i) PIR. There was no evidence R had challenged his placement in isolation or that he had complained about it at the time.

Section 7(1A) PIA (directions for safety of an inmate) and reg 147 PIR (isolation on self-harm grounds) provided that an inmate could be placed in isolation when assessed as being at risk of self-harm. On the balance of probabilities R had been held in isolation cells that did not have windows. This was a breach of the PIR's. R had also been denied opportunities for recreation, which infringed s23(5) NZBORA. There was no evidence that air conditioning or heating had been turned off for punitive reasons. In-cell toilets were not a mandatory requirement in isolation cells, neither was there any statutory entitlement to books, newspapers, radio or television. There were legitimate penal reasons whey access to those materials could be limited.

However the routine strip searches, while not part of any deliberate policy to reduce R's resistance or to dehumanise him, were unlawful and a breach of rights under s23(5) NZBORA. The necessity for a strip search should have been considered on an inmate by inmate basis and on each occasion. There was no evidence that staff considered the necessity of the searches or what alternatives might have been available.

There was no evidence that R had suffered any detrimental effects from the breaches. He had not complained about them to prison management, health staff, the prison inspector or the ombudsman at the time. Even though R had consented to remaining in the high care unit, he was still entitled to the minimum requirements detailed in the regulations. That entitlement was not affected by the fact that R had wanted to remain in the unit. His consent to remaining in the unit suggested that he consented to being treated like a High Care Unit prisoner, being accorded his normal entitlements and according to law. It did not suggest that he consented to treatment falling below that standard. However, the absence of any harm and the lack of any complaint at the time, were relevant in assessing the remedy appropriate for the breaches that had occurred.

NZBORA was not a means of punishing the State for its wrongdoing. A declaration was a remedy of considerable potency and was not toothless. It was a sufficient remedy in this case. Compensation was not available to R as his proceeding was a “specified claim” under s6 Prisoners' and Victims' Claims Act 2005 (“PVCA”) (claim for compensation by inmate). Section 13(1)(a) PVCA (restriction on awarding of compensation) provided that the Court could not award any compensation unless it was satisfied that the prisoner had made reasonable use of all of the specified internal and external complaint mechanisms reasonably available to him.

While R had complained about the restraints on the tie-down bed, he had not specifically complained about the fact that he was restrained by his ankles. R's claim for compensation was precluded by s13(1)(a) PVCA. Declarations were given that: restraining R's ankles on the tie-down bed, holding R in isolation cells without windows, denying R recreation time and strip searching on a routine basis when he was taken in or out of his cell were breaches of s23(5) NZBORA.

[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...

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  • Nicholas Paul Alfred Reekie v Attorney-General
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