Taylor v The Chief Executive of The Department of Corrections CA

CourtCourt of Appeal
Docket NumberCA165/2010
JudgeAsher J
Judgment Date16 Aug 2010
JurisdictionNew Zealand
Neutral Citation[2010] NZCA 371

[2010] NZCA 371

IN THE COURT OF APPEAL OF NEW ZEALAND

Court

Randerson, Potter and Asher JJ

CA165/2010

BETWEEN
Arthur William Taylor
Appellant
and
The Chief Executive of the Department of Corrections
Respondent
Counsel

Appellant in Person

V E Casey for Respondent

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.

Held: The interim order sought by T was mandatory in form. Any Court-ordered resumption of contact visits would require positive action by the prison to check and process the visitors in a special way, have a special room available and have prison officers allocated to supervise the visits. There was no limit placed on the nature of interim relief in r30.4 High Court Rules (interim orders) which gave the Court the power to make an interim order in relation to extraordinary remedies on what terms the Court thought just. There were strong policy reasons against a Court making mandatory interim orders or declarations that required positive action. Such orders may not be able to be monitored and may involve inappropriate intervention by the Court which were best left to the discretion of the responsible authority. Nevertheless, there was not a jurisdictional bar to orders having that effect that were necessary to protect the plaintiff's position.

The purpose of the corrections system, as stated in s5(1) Corrections Act 2004 (“CA”) (purpose of corrections system) was to improve public safety. While a prisoner was not wholly deprived of rights, the need to maintain order and discipline in prisons was recognised by the Courts.

The need to maintain discipline within prisons goes against placing any restrictions on the discretionary ability of the Department of Corrections to control prison visits. A Court imposition of positive duties on the prison manger might require the manger to use prison resources in a manner which could compromise public safety. Under s33(1) CA (manager may make rules for prison) the manager may make rules for the management and for the conduct and safe custody of prisoners. Consistent with this r196 Corrections Regulations 2005 (no legitimate expectation as to conditions) provided that there was no legitimate expectation as to conditions. Prison authorities were at liberty to change any conditions as required for disciplinary or other purposes consistent with the legislation. The only entitlement of prisoners to visits was in s73(1) CA (entitlement to private visitors) which permitted that a prisoner was entitled to receive at least one private visit per week. T had not been deprived of this entitlement. For T to suggest that he had an ongoing entitlement to contact visits also inhibited the statutory responsibility of the MSD to act in the best interests of the child.

The arrangement T had did not constitute a licence under s8(1)(c). If T obtained the order sought, he would have converted the monthly arrangement with MSD and the prison into a right to contact visits for however long it took for the matter to be determined and he would end up with more than he had had originally.

There were various avenues open to a prisoner unhappy with prison visits. The internal complaints system was set out in subpart 6 (complaints, investigations, and inspections) of Part 2 CA (corrections system).

These factors showed T's case was weak on both the merits and discretionary grounds. It was unlikely T would obtain the order at the substantive hearing.

Application declined.

JUDGMENT OF THE COURT
  • A The appeal is dismissed.

  • B There will be no order as to costs.

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...

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