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Chief Executive of the Department of Corrections [2020] NZCA 675 (21 December 2020)

Last Updated: 23 December 2020

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

• [1] In 2019 the Chief Executive of the Department of Corrections refused a journalist’s request to interview a serving prisoner, Phillip John Smith. Mr Smith is serving a term of life imprisonment following convictions for murder, sexual offending against a child, aggravated burglary and kidnapping. In 2014 he escaped from prison and travelled to South America. He was deported back to New Zealand and convicted of offences relating to the escape.^[1]
• [2] Mr Smith brought judicial review proceedings challenging the Chief Executive’s refusal to allow the interview. Doogue J held that the refusal was unreasonable and a disproportionate limitation on Mr Smith’s right to freedom of expression, protected by s 14 of the New Zealand Bill of Rights Act 1990 (BORA).^[2] The Chief Executive appeals both conclusions. Mr Smith seeks to support the judgment on other grounds.
• [3] Mr Christian, the journalist whose request triggered the proceedings, took no steps in the High Court and has not taken any steps in the appeal.^[3]
• [4] Given the judicial review context, the approach on appeal differs from a general appeal on the merits, as previously observed by this Court:^[4]

The court’s supervisory role on judicial review has the objective of ensuring that decisions of the kind at issue in this proceeding are made according to law. The court will intervene on conventional judicial review grounds to ensure that objective is achieved. Substituting its own view for that of the decision-maker would be an exceptional step in this context.

Media interviews with prisoners: the application of regs 108 and 109 of the Corrections Regulations 2005

• [5] The decision under challenge was made pursuant to regs 108 and 109 of the Corrections Regulations 2005, which restrict the right of prisoners to freedom of expression, through being interviewed by members of the media. Before considering the issues arising in the appeal, we briefly record the statutory context in which the regulations sit.
• [6] The regulations were made under s 200 of the Corrections Act 2004. The purpose of the Corrections system as set out in s 5 of the Corrections Act is to improve public safety and contribute to the maintenance of a just society by, amongst other things, ensuring that sentences are administered in a safe, secure, humane and effective manner. To that end, Department of Corrections (Corrections) facilities are also required to be operated in accordance with rules set out in the Act and regulations made under it which are based (amongst other matters) on the United Nations Standard Minimum Rules for the Treatment of Prisoners.^[5]
• [7] Section 6 sets out the principles that guide the operation of the Corrections system and which must be taken into account in the exercise of powers and duties under the Act or regulations made under the Act. The maintenance of public safety is the paramount consideration in decisions made about the management of those under control or supervision.^[6] The other relevant principles for present purposes are that victims’ interests must be considered in decisions related to the management of persons under control or supervision,^[7] and that sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, Corrections staff and persons under control or supervision.^[8]
• [8] Although incarceration brings inevitable constraints, the fact of incarceration does not take away a prisoner’s usual civil rights. In R v Secretary of State for the Home Department, ex parte Simms, Lord Steyn said that:^[9]

A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus the prisoner’s liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”.^[[10]]

• [9] Freedom of expression is a civil right retained notwithstanding incarceration, albeit in a limited form.^[11] As Lord Steyn also observed, however, although a primary right in a democracy, freedom of expression is nevertheless not absolute.^[12] In New Zealand the protected right to freedom of expression may be subject to limitations that are justifiable under s 5 of BORA. Regulations 108 and 109 of the Corrections Regulations impose limits on the right to freedom of expression. They provide that a prisoner cannot be interviewed by a journalist (or other person defined in reg 108(3)) for the purposes of publication or broadcasting without the approval of the Chief Executive and set out considerations for whether approval should be given:

108 Restrictions on interviews and recordings

(1) Without first obtaining the written approval of both the chief executive and the prisoner concerned, no person may—

(a) interview a prisoner, for the purpose of—

(i) obtaining information and publishing or broadcasting it; or

(ii) publishing or broadcasting a transcript or description of the interview; or

(b) make a sound recording of a prisoner, or an interview with a prisoner, for the purpose of—

(i) broadcasting it; or

(ii) publishing a transcript of it; or

(c) make or take a film, photograph, videotape, or other visual recording of a prisoner, for the purpose of publishing or broadcasting it.

(2) Without first obtaining the written approval of both the chief executive and the prisoner concerned, no person to whom subclause (3) applies may—

(a) interview a prisoner; or

(b) make a sound recording of a prisoner, or an interview with a prisoner; or

(c) make or take a film, photograph, videotape, or other visual recording of a prisoner.

(3) This subclause applies to a person who is—

(a) a publisher of books, or a magazine, newspaper, newsletter, circular, or other similar publication; or

(b) a broadcaster or producer of radio or television programmes; or

(c) a disseminator of news or opinion by electronic means; or

(d) a writer, a journalist (whether in electronic or print media), a radio or television broadcaster, or a producer of radio or television programmes; or

(e) an employee, contractor, or agent of a person described in any of paragraphs (a) to (d).

(4) In this regulation and regulation 109,—

(a) a reference to any film, information, interview, photograph, recording, transcript, or videotape includes a reference to any part of it:

(b) interview includes interview by telephone or electronic message:

(c) publish includes publish in a book.

109 Approvals

(1) The chief executive must, in deciding whether to give approval under regulation 108, have regard to the need to—

(a) protect the interests of people other than the prisoner concerned; and

(b) maintain the security and order of the prison concerned.

(2) The chief executive must not give that approval unless satisfied that the prisoner understands—

(a) the nature and purpose of the filming, interviewing, photographing, recording, or videotaping concerned; and

(b) the possible consequences to the prisoner and other people of the publication or broadcasting of the film, interview, photograph, recording, transcript, or videotape concerned.

(3) The chief executive may give that approval subject to any conditions reasonably necessary to—

(a) protect the interests of any person other than the prisoner; or

(b) maintain the security and order of the prison.

(4) Subclause (1) is subject to subclause (2).

• [10] In Taylor v Chief Executive of Department of Corrections this Court said of regs 108 and 109:^[13]

[72] Here, the right to freedom of expression is abridged by regs 109 and 109, the validity of which (as we have already noted) is not in issue. Regulation 109(1) requires the decision-maker to have regard to two mandatory factors: the need to protect the interests of people other than the prisoner concerned and the need to maintain the security and order of the prison. Taking the right to freedom of expression as the starting point, the decision-maker is required to balance against that right any conflicting considerations and in particular, those reflected in the two mandatory factors. In exercising this discretion and undertaking the balancing process, the decision-maker must also have regard to any purposes and principles of the Corrections Act relevant to the task.

• [11] We note particularly that the considerations that might be relevant to the discretion are not limited to the two mandatory factors at reg 109(3). Further, in both the United Kingdom and New Zealand there is a recognised difference between cases involving prisoners who claim to have suffered a miscarriage of justice through unsafe convictions and have exhausted their appeal rights, and those who wish to express their views about other matters. The former engages what Lord Steyn described in Simms as:^[14]

a fundamental or basic right ... of a prisoner to seek through oral interviews to persuade a journalist to investigate the safety of the prisoner’s conviction and to publicise his findings in an effort to gain access to justice for the prisoner.

• [12] In New Zealand, this approach is seen in Watson v Chief Executive of the Department of Corrections (No 2) in which a meeting was proposed between the prisoner and the father of one of the victims, attended by a journalist to record the discussion with a view to reporting on it.^[15] The prisoner had been interviewed by the journalist previously.^[16] The presence of the journalist at the meeting was refused because of concerns over the expected level of tension and unpredictability.^[17] Finding the refusal to be unreasonable, Mallon J referred to the high value of the right to freedom of speech in the particular circumstances of the case.^[18]
• [13] However, other types of expression will not necessarily be regarded as having that level of value in the balancing process. In Simms, expression for the purpose of challenging the safety of the conviction was contrasted with other, less valuable forms of expression such as hate speech or even general debate on political issues.^[19]

The decision under review

• [14] In November 2017 Mr Christian contacted Corrections requesting approval to interview Mr Smith. The purpose was to examine Mr Smith’s claims that being held in maximum security conditions was a breach of his human rights and his (at that point successful) claim that Corrections had acted in breach of his human rights by confiscating a hairpiece from him.^[20]
• [15] The request was refused. Judicial review proceedings were commenced but then discontinued on the basis that Corrections would reconsider its decision. Mr Smith made a written submission to Corrections. He requested that the interview include the taking of photographs or video. He indicated that he would not accept any control over the content of the interview and added that:

If asked, I will canvas the following topics:

6.1 my offending, focusing on remorse and an acceptance of responsibility;

6.2 my November 2014 escape to South America. The reasons for that decision; an acceptance that it was a wrongful decision that breached the Department's trust, and which had regretful consequences for other people;

6.3 my treatment by the Department following my November 2014 escape to South America, with a particular focus on those decisions which have been held to have been unlawful by the courts or by the Office of the Ombudsman, with a theme of forgiveness for that decision-making, further balanced by recognising some of the positive things the Department has done and is doing;

6.4 my views on the importance of human rights considerations in the management of offenders, and the normalisation of prisons as a more effective means of meeting the objectives of successfully rehabilitating and reintegrating offenders, and the paramount consideration of public safety;

6.5 the investigation currently being conducted by the United Nations, the highest appellate courts of the Republic of Brazil, and soon the New Zealand Court of Appeal, into the alleged unlawful conduct of the New Zealand and Brazilian authorities in November 2014, and the [i]mplications of those investigations in terms of miscarriage of justice allegations in relation to a number of my current convictions;

6.6 my present circumstances, parole, and plans moving forward.

• [16] Mr Richard Waggott, the Deputy Chief Executive of Corrections, contacted Mr Christian to confirm that he still wished to proceed with the interview, the nature and scope of the interview and whether it was intended that there be photographs or film taken. Mr Christian responded that he wished to have a photographer present for the purposes of taking photographs or video and agreed with the expanded list of topics that Mr Smith proposed.
• [17] Having reconsidered the request, Mr Waggott refused approval of the interview on any terms. This is the decision under review. It was conveyed to Mr Christian by letter dated 21 February 2019. The letter recorded the proposed nature of the interview and identified as relevant reg 108 of the Corrections Regulations and Mr Smith’s right to impart information and the general public’s right to receive information under s 14 of BORA. The relevant portion of the letter stated:

With respect to the need to protect the interests of people other than the prisoner concerned, the victims of Mr Smith’s offending had been contacted for their views after you made your request. The responses we received reflect strong opposition to your request. I have placed great weight on the victims’ views and the need to protect their interests.

With respect to the need to maintain the security and order of the prison, I consider that the security and order at Rimutaka Prison would not be greatly affected by the interview. However, there is a concern that the interview and subsequent publication will raise Mr Smith’s profile, as prisoners have access to newspapers, television news and may be provided with printed articles from the internet. Additional media attention in these circumstances, particularly given the content of what Mr Smith would talk about, potentially increases the risk to Mr Smith’s personal safety (and hence the risk of disorderly behaviour in the prison).

In my view, these considerations point against the granting of your request. I have considered the relevant right under s 14 of NZBORA, and while this is important, I consider it is outweighed by the factors noted in the preceding paragraphs.

• [18] Mr Waggott went on to consider whether conditions could be imposed that would ameliorate his concerns and concluded that there would not.

Issue 1: The finding of unreasonableness

• [19] This ground of appeal is concerned with whether Mr Waggott’s decision to refuse the interview request was reasonable. As identified by Doogue J, the intensity of review required of the Court varies in accordance with the subject matter of the decision at issue and the range of rational decisions available to the decision-maker depends on the circumstances of the case.^[21] We note, too, this Court’s observation in Taylor (in the specific context of reg 109) that while the Chief Executive’s view on matters of security and good order for the prison should only be departed from with caution:^[22]

...the court is in as good a position as the decision-maker to weigh matters such as the effect on victims of the public broadcasting of an interview with a prisoner and the extent and nature of any public interest in the subject matter of the appeal. Where human rights are involved, prison authorities tend to be supervised intensively because they do not have special expertise or authority on rights and there are important individual interests at stake.

Evidence of Mr Waggott’s decision-making

• [20] As judicial review proceedings are determined on the basis of the material before the decision-maker at the time of the decision, the scope for affidavit evidence following the decision is limited.^[23] The contemporaneous evidence of Mr Waggott’s decision-making is primarily a briefing document used for determining requests of this kind. Mr Waggott also provided an affidavit for the High Court, further elaborating on his decision-making process. The affidavit identified the various considerations and recorded the information that Corrections had on each.
• [21] Of particular relevance was the likely impact on the victims of Mr Smith’s offending. They were contacted following the initial request. One responded, conveying strong opposition. Those views were recorded in the briefing document.^[24] Given the strength of that response, no further approach was made before the decision was reconsidered, even though the nature and scope of the proposed interview had changed.
• [22] In his affidavit Mr Waggott said that he considered the proposed interview and resulting publication as likely to have a serious adverse impact on at least the victim who had responded:^[25]

The severe impact this interview would have on at least one of the victims was clear from both the response and the comments in the older article, which reflected the impact that media coverage of Mr Smith has had in the past. I also considered the request for photos and/or video to accompany the article would lift the level of visibility and exposure, which would exacerbate the impact.

I placed a large amount of weight on the victim’s views, and the need to protect all of their interests.

• [23] In identifying the basis on which she would consider the question of unreasonableness, the Judge rejected Mr Waggott’s evidence that, in his view, the request for photographs and/or video footage would exacerbate the impact of the interview on the victims.^[26] The Judge considered that there was nothing on the face of the decision itself relating to the perceived additional impact on the victims of photographs or video footage of an interview. Nor was there anything in the briefing document to that effect. The Judge considered that, as a result, the evidence did not show this factor to have been part of the original decision-making process.

The finding of unreasonableness

• [24] Having put Mr Waggott’s evidence about the additional impact of photographs or video footage to one side the Judge turned to the issue of unreasonableness:

[33] In order to determine whether Mr Waggott’s decision was unreasonable, it is necessary to look more closely at Mr Christian’s request. ... Mr Christian sought to interview Mr Smith on six [discrete] matters. Only the first matter — Mr Smith’s offending — directly related to his victims and their families. The other topics related to his November 2014 escape to South America (including an alleged miscarriage of justice arising from his repatriation, and his treatment in prison since then), the importance of human rights considerations in the management of offenders, and his current circumstances and plans going forward.

[34] It is clear from the 21 February 2019 decision that Mr Waggott was influenced by two factors: the impact on Mr Smith’s victims and the risk to Mr Smith’s personal safety (and therefore the risk of disorderly behaviour in prison).^[[27]] Mr Waggott did not consider that any conditions would ameliorate his concerns. ...

[35] Two aspects of the standard Corrections form used to brief Mr Waggott are therefore relevant to the question of unreasonableness. First, Mr Waggott was advised that regardless of the mode of interview, Mr Smith’s victims would likely be negatively impacted by any resulting article. ...

[36] Second, he was advised that if the interview requested were declined, Mr Smith had other ways to express his opinion:

Mr Smith is also able to write to reporters and express his opinion about the topics he proposes to cover in the interview, if he wishes - subject to security issues and knowingly false allegations against officers.

• [25] On the basis of these facts the Judge rejected the Chief Executive’s submission that publication of an interview would have greater impact on victims than publication of written correspondence:

[37] Mr Waggott was therefore aware of the fact that any publicity given to Mr Smith would likely cause some distress to his victims and their families. This harm would not result solely from the publication of photos or video footage of the interview. Mr Smith would still be able to communicate with Mr Christian in writing and discuss his offending and his victims. This could then be published using older photos or videos of Mr Smith.

(Emphasis in original.)

• [26] The Judge accepted the submission by Mr Smith that the case should be treated as comparable to Watson (No 1) in which Dunningham J had concluded that, since publication of an article about Mr Watson was inevitable, there was no basis for differentiating between a face-to‑face interview and an article “stitched together” through a series of written communications in terms of impact on victims.^[28]
• [27] The Judge reasoned that because Mr Smith could convey in writing to a journalist what would have been discussed in an interview, publication was inevitable:^[29]

This is evidenced by the fact Mr Christian’s initial interview request did not include a request for photos/video footage meaning that Mr Christian was content for any resulting article to be based solely on a written record of the interview. Any resulting article could still have been accompanied by file photos or older video footage and may have garnered significant publicity in its own right. No doubt it would have also caused Mr Smith’s victims some level of distress; the same outcome as if video footage of the interview would have been published.

• [28] The Chief Executive had sought, unsuccessfully, to distinguish Watson (No 1) on the basis that because Mr Watson continued to deny the offending any form of publication would be disturbing to the victims but in this case it was the fact of the publicity rather than the content that would be distressing to the victims.
• [29] The Judge also rejected Corrections’ concerns over Mr Smith’s personal safety and consequent risk of disorderly behaviour as not rationally connected to the evidence; because publication was inevitable, it was irrational to refuse approval on this ground.^[30]

Was there error in the finding of unreasonableness?

• [30] Mr Powell, for the Chief Executive, submitted that the Judge had wrongly treated Mr Waggott’s evidence as over-stating the effect of a published interview on the victims. Relatedly, the Judge failed to recognise the greater impact of a published interview with a prisoner compared with an article written about a prisoner. Mr Smith supported the Judge’s reasoning, submitting that the assessment of the impact on victims had to be supported by probative evidence, with ex post facto justifications impermissible.
• [31] In our view the Judge erred in analysing unreasonableness. The first error was to reject the effect of the proposed interview being accompanied by photographs or video footage. It is hardly controversial to recognise that visual depictions tend to evoke a more immediate and visceral response than the written word. It is evident from the response of the victim that being confronted by newspaper reports about Mr Smith brings back traumatic memories. Where victims had already described the traumatising effect of publicity about a prisoner, it was obvious that publicity that included fresh visual depictions would exacerbate that effect.
• [32] The fact that Mr Waggott did not have a specific response from the victims about the effect of photographs and/or video footage not previously in the public domain does not mean that this obvious effect could not be inferred and should be ignored. The Judge did not have to accept Mr Waggott’s affidavit evidence on this point to reach this conclusion. The Judge should have proceeded on the basis that the decision took into account the impact on the victims that could be inferred from the inclusion of photographs or video footage of Mr Smith. We also accept Mr Powell’s submission that there is a difference between the portrayal (drawn from archives) of a prisoner appearing in a courtroom and one showing him conducting a face-to-face interview on his own terms.
• [33] Secondly, it was an error to conclude that publication was inevitable. The Judge inferred from the fact that Mr Christian’s original request did not include a request for photographs or video, that an article would be published regardless (possibly using archived material) and there was no basis for treating the impact of an interview as different from an article based on letters from Mr Smith. As noted, the Judge followed the reasoning in Watson (No 1), which she considered indistinguishable from the present case.
• [34] There are, however, significant differences between Watson (No 1) and the present case. Watson (No 1) involved the assertion of a miscarriage of justice in relation to two murder convictions. Dunningham J considered that the main source of distress was likely to be Mr Watson’s continued denial of the murders, which would be distressing regardless of whether it was conveyed in an article based on a face‑to‑face interview or in written communications with the journalist.^[31] The consequent effect of the denial had to be weighed against the importance of media engagement in cases raising legitimate questions of miscarriage of justice.
• [35] In comparison, it is the fact of Mr Smith having a platform to express his views that is likely, in itself, to cause distress. We see a significant difference between an article about Mr Smith (even including archived photographs or footage) and the report of an interview. The former is the province of the media, which is entitled to write about a prisoner and to use whatever archived material exists. The latter creates a platform from which the prisoner can “speak” directly to the public (including victims of his offending), a situation recognised as likely to be distressing for victims.
• [36] Thirdly, the Judge wrongly identified only one of the proposed interview topics — Mr Smith’s offending — as relating to the victims and their families. That limited view failed to appreciate the fact, evident from the reported views of the victims, that it is publicity about Mr Smith generally that causes anguish. The fact that an interview might range across topics other than the specific offending of which they were victims will not lessen the impact.
• [37] Fourthly, Mr Powell submitted that the Judge was wrong to conclude that publication of written communications by Mr Smith was also inevitable; Corrections is entitled to control other means by which Mr Smith might use the media to secure a platform for his views. The definition of “interview” under reg 108(4)(b) is very wide and includes interview by telephone or electronic message rather than the way the Judge stated the effect of the regulation — “[t]he requirement for written approval applies to interviews conducted by telephone or electronic message in addition to interviews in person”.^[32]
• [38] Moreover, not only could a written question and answer correspondence amount to an interview, unilateral written correspondence from Mr Smith could be withheld under s 108 of the Corrections Act if the prison manager believed on reasonable grounds that the correspondence may directly or indirectly endanger the safety or welfare of any person or pose a threat to the security of the prison. Thus, mechanisms exist to prevent Mr Smith from using the media to provide a platform for expressing his views directly. In these circumstances, we agree that there was no basis on which to conclude that publication of Mr Smith’s views was inevitable.
• [39] For these reasons we agree that the Judge’s conclusion was not available to her. Based on the evidence before Mr Waggott, his decision was reasonable.

Issue 2: Disproportionality

The finding of disproportionality

• [40] After determining that the decision was unreasonable, the Judge went on to consider whether the complete refusal was proportionate and whether conditions could be imposed that would represent a reasonable limitation on Mr Smith’s freedom of speech. The Judge took as her starting point the statement in Taylor:^[33]

[85] Where, as here, there is a range of options for interviewing prisoners and the decision-maker has the ability to impose conditions on any form of interview granted, the decision-maker is obliged to consider whether the objectives reflected in the mandatory considerations in reg 109(1) could be met by granting an interview in a format that sufficiently addresses and mitigates the identified risks to safety and good order. That approach is consistent with minimising any impairment of the right of freedom of expression.

• [41] The Judge considered that there was a level of public interest in some of the topics that Mr Smith wished to address in the proposed interview (which the Chief Executive accepted).^[34] These were prisoners’ rights and Mr Smith’s treatment following his escape to South America and subsequent repatriation. The Judge considered that there was “undoubtedly” a public interest in knowing how prisoners are managed and treated.^[35] However, Her Honour considered that there was a low public interest in the remaining topics. Mr Smith’s offending and escape, whilst attracting publicity at the time, were not topics in respect of which there was any new information and therefore genuine public interest was low. There was no public interest in Mr Smith’s personal circumstances and plans. Nor was the Judge persuaded that Mr Smith’s claims to miscarriage of justice arising from his deportation from Brazil raised a high level of public interest. At the time of the judgment Mr Smith’s conviction appeal in respect of his escape was still being considered by the courts and he had not fully exhausted his appeal rights.^[36]
• [42] In these circumstances, the Judge considered that the outright refusal to grant the interview request was disproportionate to Mr Smith’s right to freedom of expression. Mr Waggott should have considered the value of each topic and whether conditions were possible:

[59] While I accept that Mr Smith’s victims may be caused distress by seeing Mr Smith in the media, that factor, in and of itself, is not sufficient to completely displace Mr Smith’s right to freedom of expression. Nor is it determinative of Corrections’ approach to applying reg 109 of the Regulations. If it were, reg 109 would effectively trump s 14 of the NZBORA.

[60] Nevertheless, limiting a prisoner’s right to freedom of expression may be justified where publicity of that prisoner’s views is highly likely and the prisoner wishes to speak solely about his or her victims and offending. Therefore, a condition that Mr Smith refrain from discussing his offending and his victims would have constituted a reasonable limitation on Mr Smith’s right to freedom of expression. As would have a condition limiting the interview to the topics in Mr Christian’s original request. ...

[61] It would also have been a reasonable limitation, had Corrections properly articulated the basis on which it distinguished between the effect of an article incorporating photos and video content and one based solely on written correspondence, for Mr Christian to have been permitted to take a sound recording of the interview for the purposes of having an accurate record on which to write an article, but not for the purposes of publication.

(Footnote omitted.)

Error in the finding of disproportionality?

• [43] Supporting the judgment on another ground, Mr Smith submitted that regs 108 and 109 do not permit the outright refusal of requests for an interview; the Chief Executive must give approval, subject only to such conditions as a necessary to ameliorate the apprehended impact of the interview. This submission was based on the high value of freedom of expression and the limited nature of the protection given by s 4 of BORA. We do not accept this submission. Regulations 108 and 109, recognised as intra vires by this Court in Taylor, specifically contemplate that the right to freedom of expression through access to the media may be precluded altogether as a result of the countervailing interests of victims of crime and the good order and security of the prison.^[37] Although the outcome always depends on the case-specific analysis, it is clear from Taylor that the effect on victims or risk to the security and order of the prison could be sufficiently serious as to justify refusal to approval altogether. Whether that is the proper outcome depends on the result of the balancing exercise.
• [44] We turn next to the Chief Executive’s argument. Mr Powell submitted that the Judge had approached the balancing exercise incorrectly and had wrongly treated the question as being whether the interests of victims could, alone, outweigh the right to freedom of expression. In doing so the Judge failed to address the other relevant factors articulated by this Court in Taylor.
• [45] Mr Powell identified the following considerations as relevant. The first was the views of the victims which justified significant weight, given the nature of the offending and the expressions of distress previously indicated by them in response to the suggestion of further publicity about Mr Smith. We note the observation in Taylor that very different considerations apply in considering the views of victims of sexual offending or serious violence from other kinds of cases (there the Court was considering the effect on prison officers of having had a firearm presented to them by an escaping prisoner).^[38] Publicity about such offenders is recognised as likely to cause much greater distress than other kinds of cases. The present case is an extreme example, involving both types of offending with the most serious of consequences for the victims concerned. We agree that there is particularly acute distress to the victims here, which had to be given significant weight by the decision-maker.
• [46] Secondly, the value of the proposed speech. The Judge saw some public interest in the issue of prisoners’ rights and Mr Smith’s treatment after his escape but we see little legitimate public interest in these topics as Mr Smith has framed them. Mr Smith wishes to be interviewed mainly about his own offending (which is not denied) and his personal circumstances and views. Even in relation to the broader issue of management and rehabilitation of prisoners, Mr Smith frames the topic by reference to his personal views. This case is far away from Watson (No 1) where there was a genuine public interest in a possible miscarriage of justice that required media engagement. Nor does it reach the level of public interest raised in Taylor, in which there was a significant public interest in relation to the prison-wide smoking ban and in respect of which Mr Taylor was recognised as having established himself as a skilled advocate for prisoners’ rights generally. While the right to freedom of expression must be given due weight, Mr Waggott was entitled to conclude that it was outweighed by the countervailing considerations in the particular circumstances of the case.
• [47] Thirdly, Mr Powell identified other avenues by which Mr Smith has can address his opinions and concerns about prisoners’ rights and his treatment in prison after his escape, such as legal proceedings, contacting the Ombudsman or Members of Parliament, or written correspondence with a journalist. We agree that a media interview is not the sole mechanism for Mr Smith to express his views.
• [48] Finally, security and order in the prison. Although the Chief Executive did not suggest that this aspect was the most significant, we consider that some measure of weight had to be attached to it. It is a consideration that Mr Waggott was bound to take into account and, even if Mr Smith asserts that his personal safety is not at risk because of his status as a segregated prisoner, that fact does not take in the broader concern to maintain order in the wider prison population, given the resentment that Mr Smith’s escape reportedly engendered among other prisoners.
• [49] It is clear that consideration was given to conditions that might mitigate the harm. However, given the significant weight attaching to the relevant factors Mr Waggott was entitled to conclude that there were no conditions that would adequately address the concerns. In the circumstances, his refusal to approve the interview was not a disproportionate limit on Mr Smith’s right to freedom of expression.

Result

• [50] The appeal is allowed.
• [51] There is no order as to costs.

Solicitors:
Crown Law Office, Wellington for Respondent

^[1] Mr Smith’s challenge to his convictions arising from the escape have been unsuccessful to date: Smith v R [2020] NZCA 499.

^[2] Smith v Chief Executive of the Department of Corrections [2019] NZHC 2472 [High Court judgment].

^[3] Mr Christian was a journalist with Fairfax Media (now Stuff).

^[4] Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [91].

^[5] United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) GA Res 70/175 (2015).

^[6] Corrections Act 2004, s 6(1)(a).

^[7] Section 6(1)(b).

^[8] Section 6(1)(g).

^[9] R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 (HL) at 120.

^[10] Citing Raymond v Honey [1983] 1 AC 1 (HL) at 10; R v Secretary of State for the Home Department, ex parte Leech [1993] EWCA Civ 12; [1994] QB 198 at 209.

^[11] For example, mail from a prisoner may be withheld by a prison manager pursuant to s 108 of the Corrections Act 2004.

^[12] R v Secretary of State for the Home Department, ex parte Simms, above n 9, at 125.

^[13] Taylor v Chief Executive of the Department of Corrections, above n 4, at [72] (footnote omitted).

^[14] R v Secretary of State for the Home Department, ex parte Simms, above n 9, at 130.

^[15] Watson v Chief Executive of the Department of Corrections (No 2) [2016] NZHC 1996, [2016] NZAR 1264 [Watson (No 2)].

^[16] The interview followed a successful judicial review application against a previous decision of the Chief Executive: Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227, [2015] NZAR 1049 [Watson (No 1)]

^[17] The Chief Executive’s decision permitted the journalist to attend as a facilitator of the meeting, not in their capacity as a journalist.

^[18] Watson (No 2), above n 15, at [51].

^[19] R v Secretary of State for the Home Department, ex parte Simms, above n 9, at 127.

^[20] The High Court decision finding in Mr Smith’s favour was overturned by this Court in March 2018: Attorney‑General v Smith [2018] NZCA 24, [2018] 2 NZLR 899.

^[21] High Court judgment, above n 2, at [27]–[28] and [48]–[49]; citing Watson (No 1), above n 16, at [32]–[33].

^[22] Taylor v Chief Executive of Department of Corrections, above n 4, at [89] (footnotes omitted).

^[23] Palmerston North City Council v Dury [2007] NZCA 521, [2008] NZRMA 90 at [62]–[63]; Chief Executive Land Information New Zealand v Te Whanau O Rangiwhakaau Hapu Charitable Trust [2013] NZCA 33, [2013] NZAR 539 at [117]; and Taylor v Chief Executive of the Department of Corrections, above n 4, at [33].

^[24] The copy of the briefing document was redacted for the purposes of the hearing, with an unredacted copy provided to the Judge. This Court was similarly provided with an unredacted copy.

^[25] The views of the other victims were received by Corrections at the time the request was reconsidered but were not made known to Mr Waggott and were therefore not referred to by him.

^[26] High Court judgment, above n 2, at [32].

^[27] The risk to Mr Smith’s personal safety was not advanced by the Chief Executive as having any significance to the appeal.

^[28] Watson (No 1), above n 16, at [65].

^[29] High Court judgment, above n 2, at [40].

^[30] At [41].

^[31] Watson (No 1), above n 16, at [65].

^[32] High Court judgment, above n 2, at [10].

^[33] High Court judgment, above n 2, at [48], quoting Taylor v Chief Executive of the Department of Corrections, above n 4.

^[34] At [53].

^[35] At [53].

^[36] At [54]–[56].

^[37] Television New Zealand Ltd v Attorney-General [2004] NZCA 229; (2004) 8 HRNZ 45 (CA) at [11]; and Taylor v Chief Executive of the Department of Corrections, above n 4, at [48] and [72].

^[38] At [103].