Taylor v The Chief Executive of The Department of Corrections CA

• Jurisdiction: New Zealand
• Judge: Asher J
• Judgment Date: 16 August 2010
• Neutral Citation: [2010] NZCA 371
• Docket Number: CA165/2010
• Court: Court of Appeal
• Date: 16 August 2010

BETWEEN

Arthur William Taylor

Appellant

and

The Chief Executive of the Department of Corrections

Respondent

[2010] NZCA 371

Court

Randerson, Potter and Asher JJ

CA165/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against a High Court decision declining Taylor's application for interim relief — Taylor was a prisoner in the high security wing of Paremoremo — he had direct contact visits with his young daughter which were terminated on the basis of safety — Taylor sought judicial review of the decision and interim relief restoring contact visits — whether the Court had jurisdiction to grant interim mandatory relief under s8 Judicature Act 1908 — whether Taylor had a legitimate expectation the visits would continue.

Counsel

Appellant in Person

V E Casey for Respondent

• A The appeal is dismissed.

• B There will be no order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Asher J)

Table of Contents

Para No
Introduction	[1]
Background	[4]
Application to adduce further evidence	[13]
Pleadings	[15]
The decision of Heath J	[17]
The jurisdictional issue	[19]
Approach to s 8	[22]
Statutory background to the prison regime	[28]
The merits of Mr Taylor's application for review	[34]
Conclusion on Judicial Review	[44]
Other causes of action	[46]
Result	[49]

Introduction

1 Arthur William Taylor is a prisoner in the eastern wing of Paremoremo Prison. The eastern wing holds prisoners with the highest security ratings in New Zealand. Mr Taylor is classified as “CB”, the highest of all ratings.

2 Mr Taylor has a two year old daughter. Through to October 2009 she had been having visits with her father in prison where he was allowed to have direct physical contact with her. In October the prison manager terminated physical contact visits so that future visits would involve separation by a perspex screen in accordance with the usual rule that applies to all visitors to prisoners in the eastern division.

3 Mr Taylor filed judicial review proceedings challenging that decision and sought interim relief restoring contact visits. In a decision delivered on 8 March 2010 Heath J dismissed that application for interim relief and made various directions. 1 Mr Taylor now appeals against that decision refusing him interim relief.

Background

4 Mr Taylor's daughter was born in June 2007. She was conceived while Mr Taylor was in prison and her mother was awaiting sentence on charges relating to her part in an earlier escape from custody by Mr Taylor. Mrs Taylor has now been released from custody. A short while after her birth the daughter was removed from her mother's care. She was placed under the guardianship of the High Court with the Chief Executive of the Ministry of Social Development (“MSD”) acting as its agent. On 17 December 2008 the Family Court made a declaration that the daughter was in need of care and protection. That decision was challenged but upheld on appeal. She is presently in the care of a foster parent.

5 From late 2007 and on a regular monthly basis from January to September 2009 Mr Taylor was allowed contact visits with his daughter. The arrangements were made between a social worker in the MSD, and a representative of the Manager of Paremoremo Prison. Mr Taylor's daughter was transported to and from the prison by a contractor engaged by the MSD. A representative of the Chief Executive of MSD was present during the access visits. An exchange of emails dated 26 August 2008 has been produced between Pamela Putland of the MSD and Solomon Nui of Paremoremo Prison recording this arrangement.

6 Auckland Prison (East Division) at Paremoremo is New Zealand's maximum security prison. It holds 230 high security prisoners. The general policy of the eastern division at Paremoremo Prison is to prohibit contact visits to prisoners. This is a policy unique to the high security eastern wing and is implemented because of the very high security risk. Other prisons allow contact visits. In the eastern wing visitors normally meet prisoners in a special room which is supervised, and where there is a perspex screen between the visitor and the prisoner. However, for Mr Taylor's daughter's visits a contact visiting room was made available. In addition to a social worker being present in the room with the daughter, a prison staff member would supervise the hour-long visit from the other side of the glass frontage. The daughter's caregiver and pushchair would be searched prior to entry into the visitors’ room.

7 Mr Taylor has a history of escape and his last conviction involved kidnapping prison staff. During the period of 24–27 September 2009 there were nine incident information reports relating to Mr Taylor's conduct. He was alleged to have made threats affecting the safety of a staff member. He was alleged to have deliberately damaged property including perspex cell windows. Mr Taylor was described as being in an “uncontrollable rage” and “aggressive and volatile”. A sprinkler was allegedly deliberately damaged causing flooding to a cell and landing. There was a deliberate destruction of toilet bowls. On the face of the complaints, he was on a long-term and angry rampage. Criminal charges have been laid in the District Court. The incidents are regarded as serious and are said to have imposed health and safety risks for the staff and other prisoners.

8 Mr Puohotaua, the prison manager, observed in an affidavit before the High Court that the previous contact visit arrangements were made between the MSD and the prison, and he stated:

I understand that the arrangement described above was simply left to continue without any real basis for it (except as noted, on the mistaken understanding that developed that these arrangements were in accordance with the Court order).

9 Following those incidents in September 2009 he determined that it would not be in the interests of prisoner safety for contact visits from Mr Taylor's daughter to continue. No other prisoner in the east division was allowed contact visits except on rare occasions involving compassionate grounds (for example, if there had been a death in the family). Another MSD deponent Ms K Urwin produced the national policy on “Unit Attributes and Managing Risk” which limits visits for the highest security risk inmates to non-contact visits.

10 Mr Puohotaua also stated that another reason for terminating the visits was that using a staff member to arrange the contact visits reduced the number of staff available to meet security requirements and maintain the good order of the unit in the prison. He stated that it was also considered appropriate, in terms of managing the prisoner and in terms of the good management and discipline of the prison, that Mr Taylor have only the same visiting arrangements as other prisoners in the east division.

11 Mr Puohotaua deposed that he understood that the social worker, Ms Putland, did not consider there was any particular reason relating to the best interests of the child for there to be special visiting arrangements. He produced an email from Ms Putland, who was the social worker who had organised the visits in August 2008. This email of 28 October 2009 from Ms Putland to a Ms Sutton of Paremoremo Prison read:

Re CYFS view about future access:

The specialist report recommends access only 3–4 times per year. CYFS supports access being determined in the best interests of [Mr Taylor's daughter] and given the other matters mentioned in the report about the anxiety and disruption to [Mr Taylor's daughter] it may be that an even lower frequency will be appropriate, however, that is a matter to be determined by the Court.

12 There are ongoing Family Court proceedings relating to Mr Taylor's daughter and issues as to contact and access. The specialist report referred to in the email was obtained in the context of those proceedings.

Application to adduce further evidence

13 Prior to the hearing of this appeal Mr Taylor applied for leave to adduce further evidence in the form of an affidavit from him annexing briefs of evidence from Dr Greg Newbold, an Associate Professor of the School of Sociology and Anthropology at the University of Canterbury, and Ruth Wood, a regular visitor to East Division at Paremoremo for approximately seven years. Dr Newbold commented on international policies in relation to prisons and prison visits, and some history of Paremoremo's security and visit policy. He gave his view that contact visits should not be used to sanction an inmate for behaviour in the prison not related to the visits. He suggested that the sole concern should be the interests of the child. Ms Wood commented on the difficulties in having meaningful interaction, particularly with young children, in the Paremoremo visiting room on standard visiting terms. They both put forward further views supportive of contact visits.

14 The Crown initially opposed that application, but in submissions to us Ms Casey for the Chief Executive of the Department of Corrections did not strongly pursue the objection, putting it on the basis of principle rather than substance. We do not consider that the filing of the affidavits significantly prejudices the Crown, and given the urgent nature of the initial hearing and the limited resources available to Mr Taylor, we have decided to receive the evidence and take it into account in our considerations.

Pleadings

15 The amended statement of claim before Heath J contained four causes of action, based on breach of natural justice, unreasonableness, illegality/failing to take into account relevant considerations and/or breach of statutory duty, and legitimate expectation. A declaration was sought that the cancelling of the agreement for the monthly visits, and the failure to make provision for contact visits at reasonable times and of...