Taylor v The Chief Executive of The Department of Corrections

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 08 October 2015
• Neutral Citation: [2015] NZCA 477
• Docket Number: CA816/2013
• Court: Court of Appeal
• Date: 08 October 2015

BETWEEN

Arthur William Taylor

Appellant

and

The Chief Executive of the Department of Corrections

Respondent

[2015] NZCA 477

Court:

Randerson, Harrison and Cooper JJ

CA816/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against the refusal of judicial review of the respondent's decision to refuse permission to Television New Zealand (TVNZ) to interview a prison inmate (the appellant) — TVNZ's request for a face to face interview with the appellant followed his successful challenge in the High Court (HC) of the legality of steps taken to create a “smoke-free” environment in prisons — permission was refused on the grounds, inter alia, that it would be contrary to reg 109 Corrections Regulations 2005 (protect the interests of people other than the prisoner concerned and maintain the security and order of the prison) of) — HC had said that concerns about security and the good order of the prison outweighed the appellant's rights under s14 New Zealand Bill of Rights Act 1990 (“NZBORA”) (right to freedom of expression) — whether the obligations in reg 109(3) to maintain good order and a secure environment prevailed over the rights of individual prisoners — whether the decision-maker was obliged to consider whether the reg 109 objectives could be addressed and mitigated in a way that would be consistent with minimising any impairment of the right to freedom of expression.

Counsel:

Appellant in person (by AVL)

R L Roff and T P Westaway for Respondent

• A The application to adduce further evidence on appeal is declined except to the extent stated in [40].

• B The appeal is allowed.

• C The respondent's decision dated 11 June 2013 declining a request by Television New Zealand to interview the appellant is set aside.

• D The respondent must pay to the appellant reasonable disbursements incurred by him in bringing the appeal.

(Given by Randerson J)

Introduction	[1]
Background	[3]
Mr Taylor's history	[6]
TVNZ's request for an interview with Mr Taylor	[12]
Consideration of the request	[18]
Mr Wright's memorandum	[18]
Mr Sherlock's report	[22]
Mr Beale's peer review	[26]
The comments by the national intelligence analyst	[27]
The incident of 2 June 2013 allegedly involving Mr Taylor	[30]
Mr Carruthers’ decision	[32]
The scope of the evidence in the High Court	[33]
Mr Taylor's application to adduce further evidence on appeal	[40]
The grounds for review	[46]
The judgment in the High Court	[48]
Discussion	[60]
The statutory background	[60]
Principles to be applied in decision making under regs 108
and 109	[64]
Is a proportionality analysis required in administrative
decisions such as requests under reg 109?	[76]
The intensity of review	[87]
This case	[92]
Result	[107]
Formal orders	[110]

Introduction

1 The appellant Mr Taylor is a serving prisoner at Auckland Prison, commonly known as Paremoremo. On 11 June 2013 an authorised delegate of the respondent (the Chief Executive) declined a request by Television New Zealand (TVNZ) to interview Mr Taylor in prison. TVNZ intended to record the interview on camera and broadcast it on television and TVNZ's internet news service. Mr Taylor's application for judicial review of the Chief Executive's decision was declined by Heath J in the High Court. 1 Mr Taylor now appeals against the High Court's decision.

2 As Heath J succinctly put it, the issues arising involve the balance to be struck between the need to maintain order in a prison and the human rights of its inmates. 2

Background

3 TVNZ's request to interview Mr Taylor arose following proceedings in the High Court in which Mr Taylor had successfully challenged the legality of steps taken to create a “smoke-free” environment in prisons throughout the country. On 20 December 2012, Gilbert J upheld Mr Taylor's challenge to a rule made by the Chief Executive under's 33 of the Corrections Act 2004 purporting to ban smoking in all areas, including prison cells and open areas. 3

4 Before Gilbert J's judgment was delivered, an Order in Council was passed introducing a new regulation purporting to declare tobacco (and equipment used for smoking it) to be an unauthorised item in a prison. 4 Mr Taylor then challenged the validity of that regulation. Parliament's response was to pass the Corrections Amendment Act 2013, which effectively banned smoking in prisons. 5 In a judgment delivered on 3 July 2013, Brewer J found that the regulation was not authorised by the Act when it was passed. Further, it was not necessary to give effect to the policies underlying the Smoke-free Environments Act 1990. 6

5 It is common ground that the Department of Corrections conducted an extensive publicity campaign commencing at least 12 months prior to 1 July 2011 claiming that substantial benefits to prisoners, prison staff and the good order and management of prisons would result from the blanket ban on smoking contemplated by the rule that was the subject of Gilbert J's judgment. Mr Taylor maintains that

there was further publicity on the issue on 24 December 2012 after Gilbert J's judgment was delivered. This included a broadcast by TVNZ of statements made by the general manager of Corrections Services and a New Zealand Herald report quoting the then Minister of Corrections. According to Mr Taylor, the statements made at that time asserted that the smoking ban had been successful and that prisons were safer and healthier in consequence. Although not formally admitted in the pleadings, it was not suggested Mr Taylor's evidence on this point was incorrect

Mr Taylor's history

6 There is no dispute that, as the Judge put it, Mr Taylor is one of the more notorious prison inmates in New Zealand. The Judge recorded that Mr Taylor was aged 57 years and had spent most of his adult life in prison. His first recorded convictions in the District Court were in 1975. His statutory release date is in 2022 although he has completed the minimum non-parole period imposed upon him and has been eligible for parole since 2012. He has not been successful so far in his applications for parole but, as we discuss later, he has been successful in securing the downgrading of his security classification from the highest level of maximum security. Since February this year he has been classified as low-medium for security purposes.

7 The Judge described Mr Taylor's criminal record as extensive. It is not in dispute that he has multiple convictions for aggravated robbery, firearms offences, burglary, receiving stolen goods and other offences involving dishonesty. Since 2004, Mr Taylor has been convicted of a number of other serious offences.

8 He was convicted on charges arising from items found in a storage unit in Paraparaumu in 2004. He was not in custody at the time but was on parole. The convictions included possession of controlled drugs, precursor substances, firearms and ammunition, as well as receiving a computer and cellphone. He was sentenced to eight years for that offending. In his judgment, Heath J inadvertently referred to the storage unit being located at Auckland Prison. 7 It is accepted this was in error. While Mr Taylor submitted this was a serious error that flavoured Heath J's decision,

we do not accept the error made was material to the outcome. Rather, our focus in this judgment is on the decision made by the Chief Executive's delegate and the material available to him at that time. The location of the storage unit was not a matter before the person who declined TVNZ's interview request

9 In addition, Mr Taylor has a number of convictions for escaping from custody. The most recent of these was in 2005 when he escaped while on prison leave. Mr Taylor was also convicted on charges of kidnapping three prison guards for a brief period during this incident. He received a cumulative sentence of four years imprisonment with a MPI of two years. Concurrent sentences of one year were imposed on the three kidnapping charges. 8

10 Mr Taylor was also convicted on one charge of conspiracy to supply methamphetamine and sentenced to a term of imprisonment of seven years with a MPI of three and a half years (reduced on appeal to five and a half years with a MPI of two years and 9 months). 9 This offending occurred in 2007 while Mr Taylor was in prison. His most recent conviction was for intentional damage relating to an incident in prison in 2009. He was sentenced to a concurrent term of five months imprisonment on that occasion.

11 As well as his convictions for criminal offending, Mr Taylor has been found guilty of misconduct offences arising from disciplinary breaches while in prison.

TVNZ's request for an interview with Mr Taylor

12 On 20 March 2013 Ms Lisa Owen, who was then employed by TVNZ as a journalist, wrote to the principal media adviser for the Department of Corrections, Mr Chris Wright. She sought permission to record a “face-to-face on camera interview” with Mr Taylor, principally for TVNZ's news programmes and internet news service. The key section of Ms Owen's letter said:

The focus of the interview would be around the legal challenges taken up by Mr Taylor and his reasons for pursuing these maters through the courts, his

view of the Corrections Amendment Bill now enshrining the ban in law, the ban itself, the consequences of Justice Gilbert's ruling and any subsequent declaratory judgments and his future plans in terms of compensation. An interview would also cover Mr Taylor's self-education in the law over the past fifteen plus years.

Mr Taylor has as mentioned educated himself in the law while in prison and is regarded as a formidable courtroom opponent. Choosing to exercise legal options (above others) to challenge what one disagrees with and pursuing an education must be regarded as positive moves and...