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Bach v Prison Director, Auckland South Corrections Facility (SERCO) [2023] NZCA 550 (6 November 2023)

Last Updated: 13 November 2023

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] Mr Bach, a prison inmate at Auckland South Corrections Facility (ASCF), complained that he was sexually assaulted by a prison staff member. ASCF is operated by Serco New Zealand Ltd (Serco) in a public/private partnership with the Department of Corrections. Mr Bach sought judicial review of the conduct of the Prison Director of ASCF (the first respondent) with reference to the investigation and handling of his complaint, alleging a breach of natural justice in contravention of s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA).^[1] At the hearing he contended that part of the reviewable conduct was an alleged failure to action his request that his complaint be referred to the police. His claim was dismissed in the High Court.^[2] He appeals from that decision.

Factual background

• [2] Mr Bach and the Serco employees have different recollections concerning the process followed in addressing Mr Bach’s complaint.
• [3] In an affidavit of 16 August 2021 in support of his application for review, Mr Bach stated:

I wish to also detail what happened to me during a pre-visit “pat-down” I lodged an F24.01.02 complaint on 19 December 2020 annexed and marked “S”. I had pre-Christmas visits. Before putting [on] my overalls I was in line for what I thought was a routine “pat-down”. Hands on the wall. Through my shorts an officer unexpectedly poked his finger up my anus. It was unexpected and served no purpose (visits had not yet occurred). I was aghast and traumatised during my visit. In my complaint I indicated I wanted the police to be involved as I regarded it to be an assault. The complaint was not uploaded. I annex hereto and mark “T” the response I received from SERCO almost four months later dated 11 April 2021. In response, I was not uncomfortable about the “pat-down” but about the finger insertion (through clothing). The reply did not address the assault allegation.

• [4] The F24.01.02 complaint form summarised Mr Bach’s complaint as follows:

I would like to complain that I was sexually assaulted by a Serco prison officer in a pat down search before visits and putting on an overall for the visit. This occurred on Saturday 19 December 2020 at approximately 3.15 pm. I would like to make a statement to police about this sexual violation and sexual assault. I have asked for the Serco officers name in writing that committed this offence. To date, being Sunday 20 December 2020 at 13.18 pm I have not been given that Serco prison officers name. After making my own enquiries this officers name is [ ] or something like that, of [ ] descent.

Although undated it appears that the document was written on 20 December 2020.

• [5] The second document to which Mr Bach referred was a letter dated 11 April 2021 from the Acting Deputy Prison Director of ASCF, Mr Smith, which stated:

I have investigated your staff related complaint in regard to rub down search by staff at visits area on 19/12/2020. You claimed that staff sexually assaulted you during this process and you raised this complaint.

I have spoken with you and interviewed staff involved with search, staff in attendance and SERT [Site Emergency Response Team] Supervisor who was also in the area. They have all stated that the rub down process was as per guidelines set down and conducted correctly. There is no CCTV available to view for this search.

I am sorry if you felt uncomfortable during this process, but searches are necessary to ensure everyone is kept safe. I find this complaint is unfounded and will be closed.

If you wish you can raise this matter through Inspector/Ombudsman.

• [6] The Serco records paint a somewhat fuller picture. A document titled “F24.03.01 Notification of Staff Related Incident”, dated 23 December 2020, contains the following incident summary:

Mr Bach contacted the Office of the Inspectorate via telephone and made an allegation of sexual assault by a male officer during a pat-down search on Saturday 19 December 2020.

This has been referred back to the prison for investigation under the staff related complaint process.

Mr Bach has stated the following in his call to the Inspectorate ‘he claims he was sexually assaulted by a male officer during pat-down on Saturday on his way to visits. Mr Bach wants to file charges with Police for sexual assault and violation. Mr Bach has requested officers name but this has yet to be provided to him. At the time of incident he asked to speak to the officer in charge, he claims that officers laughed at him. Prisoner is upset as this has brought back memories of assault when he was a child.’

• [7] Mr Bach denied placing a call to the Inspectorate. His reply affidavit of 11 April 2022 stated:

The staff incident form references a call to the Inspectorate and has a date of 30 December 2020 on it. It purports to be in response to a call I had made to the Inspectorate. However, the Inspectorate is a prisoner welfare agency and so in my view my complaint of sexual violation and assault would not be within their area. I am sure I did not make such a call.

• [8] A memorandum of 23 December 2020 which was signed by the Prison Director and addressed to Mr Bach, headed “Staff Related Complaint”, stated:

Your complaint has been received. We are in the process of resolving this matter for you. You will be interviewed within 10 business days.

Log number: SAL# 55972

In his reply affidavit Mr Bach stated that he never received that letter.

• [9] The investigation of Mr Bach’s complaint passed through a number of hands. As Mr Smith explained:
  84. It is standard practice that a prisoner who makes a staff-related complaint receives an acknowledgement memorandum from the Prison Director, but it is not the Prison Director who investigates the complaint. In relation to Mr Bach’s complaint, the Operations Manager at the time, Angela Curtis, began investigating and on 23 December 2020 she met with Mr Bach. Ms Curtis left ASCF a short time after that and no longer works at ASCF. Ms Curtis recorded that Mr Bach advised he had been sexually assaulted by a male officer during a pre-visit pat-down. Mr Bach asked for the officer’s name but was not provided it. A copy of Ms Curtis’ report is annexed to this affidavit and marked “GS-11”.
  85. At some point, Ms Curtis assigned the investigation to Dayle McKibbin. I am not sure why the complaint was reassigned to Ms McKibbin, but it may have been because Ms Curtis was about to leave ASCF at that point and someone else was required to complete the investigation.
  86. After Mr Bach was interviewed by Ms McKibbin on 17 February 2021, Mr Bach said he did not want her to investigate the complaint. It was at this point that I took over the investigation. Usually the person who is initially assigned the investigation will complete it, but that is not always the case.
• [10] Ms McKibbin explained her involvement as follows:
  79. On about 20 December 2020 Mr Bach filed a complaint alleging that during a rub-down search an officer inserted his finger into Mr Bach’s anus. I was initially assigned the complaint and had a lengthy discussion with Mr Bach on the morning of 17 February 2021 in which he recounted his complaint.
  80. Mr Bach advised that he wanted to make a Police complaint against the officer but did not know the officer and would not recognise him if he saw him.
  81. Shortly after that the investigation was reassigned to Gerry Smith, ASCF’s Deputy Prison Director, who completed the investigation.
• [11] Mr Smith’s affidavit annexed an email from Ms McKibbin of 23 February 2021 forwarding information from enquiries undertaken into Mr Bach’s complaint.
• [12] Mr Bach denied having a formal interview with Ms McKibbin. He said:
  15. ... I have already stated that I never had a formal interview with Ms McKibbin, above but that I pestered her about the progress of the complaint, and I mentioned several times I wanted the police involved. I never had an interview with Ms McKibbin on 17 February 2021, as she alleges, that could be described as a “lengthy discussion” and I never knew that she was assigned to investigate. There may have been a few words exchanged on that date lasting two or three minutes. If I had been told she was investigating then I would have asked why it had not gone to the Police, as I also later told Mr Smith. I note that Ms McKibbin recorded however that I wanted to make a Police complaint against the officer. I told her that many times. I do not recall an “interview” as such. I only recall many short conversations of two or three minutes in duration which were out and about in the wing.
• [13] Mr Smith deposed to the inquiries he made and to an interview he held with Mr Bach. He stated:
  88. I interviewed Mr Bach. His main complaint was that he felt violated that day, that he felt degraded and he thought the officer who did it only did it because he, Mr Bach, was a known sex offender. He wanted the staff member charged by police. I asked Mr Bach at that point if he wanted me to lay a Police complaint. I said to him that there was no CCTV footage that I could give to police because it was already gone. I also said that I would be speaking with the staff and investigating the complaint. He was happy with that and indicated that he was content with that outcome and did not want to escalate it to Police.
• [14] With reference to the letter of 11 April 2021 referred to above,^[3] Mr Smith stated:
  95. On about 11 April 2021 I sent Mr Bach a letter relating to the complaint. I advised Mr Bach that I had investigated the complaint by way of speaking with him, interviewing the staff in attendance and interviewing the SERT Supervisor, Mr Pailegutu, who was in the area. I advised Mr Bach that all had stated the rubdown process was as per the guidelines and conducted correctly. There was no CCTV footage available to view the search.
  96. I explained to Mr Bach that I was sorry he felt uncomfortable about the process, but that searches are necessary to ensure everyone is kept safe. I therefore closed the complaint. I advised Mr Bach he could raise the matter through the Inspector (being the Office of the Inspectorate) and/or the Ombudsman.
• [15] In his reply affidavit Mr Bach stated:
  9. ... I can confirm I was interviewed by Mr Smith shortly before he wrote his letter of 11 April 2021. Mr Smith told me words to the effect that he was investigating my complaint. I immediately responded that I wanted it referred to the police. I did not want a prison officer investigating it. He said he was there to see if the police should be called. My response was words to the effect that, well, I want to have the police investigate.
• [16] However, the High Court was not required to resolve the conflict of evidence between Mr Smith and Mr Bach. As the judgment under appeal records:^[4]

[13] Given this conflict of evidence I raised with counsel at the commencement of the hearing whether this might be a case in which it would be necessary for there to be cross-examination on this issue.

[14] Counsel for Mr Bach, Mr Ryken, made it clear that Mr Bach’s case was that part of the reviewable conduct was the alleged inaction on the part of the Prison Director to refer the matter to the Police and to assist Mr Bach in doing so when he first said that he wanted the Police involved. In other words the alleged reviewable conduct had already occurred before Mr Smith interviewed Mr Bach when Mr Bach allegedly said, according to Mr Smith, that he did not want the Police involved.

[15] Mr Ryken specifically made it clear that Mr Bach’s case was not that the Prison Director failed to refer the matter to the Police following the interview that Mr Smith had with Mr Bach which Mr Bach says occurred shortly before the 11 April 2021 letter. Mr Ryken’s position accordingly was that cross-examination would not be required as the Court would not be asked to make a finding of fact as to whether or not Mr Bach said to Mr Smith he did not want the Police involved.

[16] Given that explanation as to the way in which Mr Bach framed his case, counsel for the Prison Director, Mr Scragg, and counsel for the Attorney‑General, Mr Kinsler, agreed with Mr Ryken that cross-examination was not necessary.

• [17] Mr Bach pleaded that the four months taken to respond on 11 April 2021 was unreasonable, egregious and involved a breach of the following obligations imposed by the Corrections Act 2004 (the Act) and the Corrections Regulations 2005 (the Regulations):

(a) The duty to give the complainant the opportunity to verify any information recorded in a complaint: s 154(1)(b) of the Act.

(b) The duty to investigate complaints in a fair, timely and effective manner: s 152(1)(c).

(c) The duty to ensure all reasonable steps are taken to investigate complaints: s 152(1)(f).

(d) The duty to ensure complainants are advised regarding the progress of the investigation: s 152(1)(g).

(e) The duty to notify complainants at monthly intervals in writing as to the progress of the investigation: reg 165(1)(b) of the Regulations.

• [18] Mr Bach framed his cause of action in this way:
  7. First ground for review (NZBORA claim): Treatment of Complaints

7.1 The respondent failed to ensure that the applicant’s complaints via the prisoner complaints channel were properly processed in an accountable and timely fashion. The undue delays without reasonable justification encroach upon the applicant’s right to seek, receive and impart information of any kind in any form and breached this right accordingly (s 14 NZBORA).

7.2 The complaint processes whether the complaint was against a staff member or not, lacked transparency and were therefore unfair and unreasonable, and a breach of natural justice (s 27 NZBORA).

• [19] A declaration was sought that the first respondent had acted in breach of natural justice and therefore unlawfully.^[5]

The High Court judgment

• [20] Gordon J found that there was no breach of s 154(1)(b) of the Act, nor of s 154(1)(a) which, while not pleaded, was referred to by Mr Ryken in submissions.^[6] The Judge observed that the “assistance” referred to in s 154(1)(a)^[7] was assistance in making a complaint through the prison internal complaints system and it did not encompass complaints to the police.^[8]
• [21] Turning to s 152, the Judge agreed with the observation of Gwyn J in Hudson v Attorney-General that s 152 does not provide a standalone ground of judicial review.^[9] Rather it contains organisation-level responsibilities which are not breached by the actions of a single employee.^[10] In any event, the Judge considered there was no breach of s 152 in the manner in which the investigation into Mr Bach’s complaint was investigated.^[11] There was, however, a breach of reg 165(1)(b) of the Regulations because Mr Bach was not notified at monthly intervals of the progress in dealing with his complaint.^[12]
• [22] The Judge proceeded to address the allegation of a breach of s 27 of the NZBORA. She considered it was difficult to see how s 27 was engaged with reference to the internal investigation process when (reg 165(1)(b) aside) there was no breach of the applicable statutory provisions or regulations.^[13]
• [23] With reference to the proposition that s 27 was breached by reason of Mr Bach’s contention that his complaint should have been referred to the police and it was not, the Judge reasoned:

[85] Neither the Act nor Regulations provide the source of a duty to refer a complaint to the Police. There must be an underlying framework that guides the process. Here, the claim under s 27 is untethered to any statutory powers. It is effectively a free-floating claim under s 27. In the absence of a breach of a statutory power there is no standard to enable a measurement of what s 27 requires. Even construing the words “rights” and “interests” broadly it is difficult to see what rights were engaged. The complaint was investigated and there is no suggestion that Mr Bach was unable to contact the Police himself, either in custody or on release on parole.

[86] Further, there was no “determination”, in terms of s 27 by Serco officer Ms Curtis after she received Mr Bach’s written complaint in which he said he wanted to make a complaint to the Police.

[87] In conclusion there was no breach of s 27 arising from the fact that the Prison Director did not refer Mr Bach’s complaint to the Police.

Further evidence on appeal

• [24] Mr Bach applied for leave to adduce further evidence in relation to the final sentence in [85] of the judgment. Leave having been granted,^[14] Mr Bach filed an affidavit, dated 2 February 2023, which stated:
  2. Although there was a phone in my cell, the phone could only be used to dial out pre-approved numbers.
  3. The formal complaint that I made to the Prison was that I wanted my allegation of sexual assault dealt with by the police. At no time was I ever physically able to ring the police myself.
• [25] The first respondent filed an affidavit of Mr Smith in response which explained that, while all cells at ASCF have an in-cell telephone,^[15] prisoners cannot use those telephones to call any telephone number they wish. Prisoners are permitted to call only pre-approved telephone numbers and pre-programmed free phone numbers to enable them to contact certain approved agencies. The free phone numbers include those for the Human Rights Commission, the Inspector of Corrections and the Office of the Ombudsman. Another of the free phone numbers is for Crime Stoppers New Zealand, a charitable organisation that processes complaints made by members of the public on an anonymous basis and refers that information to the appropriate agency. It was Mr Smith’s understanding that most information received by Crime Stoppers is referred to police.

Issues on appeal

• [26] The parties filed a joint memorandum identifying the following agreed issues for determination on the appeal:^[16]

1.1 Issue 1: whether the High Court made a finding of fact that Mr Bach could contact the police personally either in custody or when released on parole?

1.2 Issue 2: If so, is that finding of fact material in terms of the obligations on the respondents under:

1.2.1 Issue 2(a): sections 152 or 154 of the Corrections Act 2004; and/or

1.2.2 Issue 2(b): section 27(1) of the New Zealand Bill of Rights Act 1990.

• [27] Consistent with that memorandum, the synopsis of argument for Mr Bach stated that the appeal raised the following issues:

(i) Whether the error in concluding that the appellant could make his own complaint impacts on whether the prison director breached a statutory duty.

(ii) Whether the breach, if established, leads to a different outcome, and the remedy of a declaration.

• [28] We (and also, it would appear, counsel for the respondents) inferred that Mr Bach’s appeal was confined to the Judge’s observation at [85] which was the subject of Mr Bach’s further evidence. However in the course of his oral submissions Mr Ryken explained that Mr Bach did not abandon his challenge to the Judge’s rulings on the issues determined below, namely:

(a) whether the statutory provisions relating to prisoner complaints impose a duty to refer complaints to the police; and

(b) whether the alleged inaction of various prison officers constituted a “determination” within the meaning of s 27(1) of the NZBORA.

• [29] We will first focus on those matters in respect of which the Judge is said to have erred before turning to discuss what Mr Ryken described as a mistake of fact in [85].

A statutory duty to refer a prisoner’s complaint to the police?

• [30] Section 153(1) of the Act provides that in every prison there must be an internal complaints system that satisfies the prescribed requirements and that enables complaints to be dealt with internally on a formal basis. Section 153(2) provides that the prison manager must ensure that the internal complaints system complies with the objectives set out in s 152.
• [31] Those objectives include:
  • to enable complaints by persons who are or were in custody to be dealt with internally on a formal basis;^[17]
  • to ensure that complaints are investigated in a fair, timely, and effective manner;^[18]
  • to ensure that, if possible in the circumstances, complaints are dealt with reasonably promptly;^[19]
  • to ensure that, if possible in the circumstances, complaints are dealt with at the lowest and most informal level;^[20]
  • to ensure that all reasonable steps are taken to investigate complaints;^[21] and
  • to ensure that complainants are advised of the progress in investigating their complaints.^[22]
• [32] A person who is (or was) in custody may at any time seek assistance from an inspector of corrections for the purpose of making a complaint. The Act sets out a thorough investigation procedure and gives inspectors wide-ranging powers.^[23]
• [33] The headline proposition for Mr Bach was that the Judge had misinterpreted the “constellation” of duties which the Prison Director had in relation to the incident reported to him. Mr Ryken submitted that the reference of a prisoner’s complaint to the police is a “component aspect” of what he described as the duties enumerated in s 152(1)(c), (d) and (f). He acknowledged that, as the Judge observed,^[24] there is no express reference in the Act to an obligation to assist with the provision of complaints to the police. However he maintained that such an obligation was “part and parcel of the complaint mechanism”.
• [34] The respondents supported the Judge’s reasoning that the corrections complaint system in subpt 6 of pt 2 of the Act envisages an internal complaints system and that a requirement to refer a prisoner complaint to the police is not part of the statutory regime.^[25] They argued that reading in a duty to refer a complaint to police in every instance where a prisoner indicates a desire for police to be involved would be akin to acting in the role of the legislator by reading in words not present in the statutory scheme. To do so would interfere with the discretion left with prison management in the operation of the complaints system.
• [35] We consider that the respondents’ submission is sound and that the Judge’s conclusion on this issue was correct. It would not be consistent with the purpose of an internal complaints system to interpret ss 152 and 154 so widely as to impose a blanket duty on prison staff to refer a complaint to police, or to assist in doing so, as soon as a prisoner indicated that he or she wished to refer a matter to the police. We consider there is force in the submission that, due to the sheer volume of issues raised by the prison muster that need to be dealt with on a daily basis, a simple, effective and streamlined procedure is required. Consistent with that view, the question whether or not, and when, a complaint should be referred to the police is properly dealt with on a case-by-case basis.
• [36] In his oral submissions Mr Ryken emphasised that Mr Bach’s challenge concerned not only the failure to facilitate a complaint to the police but also the failure to investigate the complaint in a timely way. Mr Ryken described the complaint as having gone nowhere and as having been swept under the carpet by inaction. In particular he referred to the need to investigate before relevant evidence had disappeared, with specific reference being made to CCTV footage. The respondents observed that, because of privacy reasons, CCTV did not operate in the room where the pat-down search took place. Consequently there would have been no CCTV footage of the alleged incident itself. The submissions for Mr Bach further referred to the lost opportunity to listen to the recorded sounds of “nearby CCTV cameras”, while the respondents countered that there was no evidence to suggest that the CCTV cameras at ASCF record sound.
• [37] The respondents emphasised that there are no set statutory timeframes by which complaints must be resolved, the only reference to timely processing being that in s 152(1)(d).^[26] They supported the reasoning of the Judge in the following passages:^[27]

[73] Even if that is not correct I do not consider there was a breach of s 152(1)(c) in the way in which the internal investigation was conducted. Mr Bach’s complaint was investigated in a “fair, timely, and effective manner”. Mr Bach made his complaint on 20 December 2020; he was spoken to by a Serco officer within three days on 23 December 2020; after that officer left Serco a second officer spoke to Mr Bach on 17 February 2021; an officer who was present at the time of the rub-down search was spoken to on or before 22 February 2021; at Mr Bach’s request the investigation of his complaint was reassigned to Mr Smith; Mr Smith interviewed Mr Bach and obtained accounts from two officers who were present at the time of the rub-down; and the matter was concluded on or before 11 April 2021.

[74] As to timeliness, there is no timeframe in the Act or Regulations for completing an investigation into a complaint. Regulation 165(1)(b) provides that a person who makes a complaint must be notified at monthly intervals in writing and if practicable orally on what progress has been made in investigating and dealing with the complaint. The Regulation clearly anticipates that an investigation may take at least one month or more. In this case Mr Bach was notified of the outcome on 11 April 2021, just over three and a half months from the date the complaint was made. Having regard to the steps that were taken to conduct the investigation and in the absence of any prescribed timeframe I do not consider it can be said that the complaint was investigated in a manner that was not timely. Especially when bearing in mind the Christmas and holiday periods, resourcing challenges presented by the COVID-19 pandemic and Mr Bach’s request that the investigation be handed over to another staff member. Effectively, Mr Bach is asking the Court to undertake a merits-based review in the absence of a clear legal standard as to a time-frame.

• [38] In our view that careful analysis is not susceptible to criticism. The factors which the Judge identified in the penultimate sentence of [74] were material circumstances for the purposes of assessing whether the complaint was dealt with reasonably promptly in terms of s 152(1)(d). We agree that in those circumstances there was no lack of fairness from a timeliness perspective.

A breach of s 27(1) of the NZBORA?

• [39] This aspect of the appeal focused on [85] to [87] of the judgment.^[28] Mr Bach’s notice of appeal relevantly stated:

There [was] an error of law in the conclusion that a statutory duty or power is required for the purposes of finding a breach of s 27 of the New Zealand Bill of Rights Act ([85]).

The fact that no “determination” had been made in relation to the request to refer the complaint to the police by Ms Curtis (on or about 23 December 2020) [was] an irrelevant consideration ([86]).

• [40] So far as the first proposition is concerned, Mr Ryken accepted that a s 27(1) breach requires a breach of a statutory duty, acknowledging the correctness of the Judge’s finding at [83]. However he advanced an argument to the effect that the failure to progress with Mr Bach’s complaint involved a failure to make a “determination” during the relevant period. Mr Ryken submitted that s 27(1) is not confined to matters involved in adjudicative decision making.^[29] The qualifying requirement was simply that there be a “power to make a determination”.
• [41] In circumstances where the appellant had requested that his complaint be referred to the police on 20 December 2020, and repeated that request to a senior officer three days later, it was submitted that the first respondent had a continuing responsibility (and power) to make the determination to refer the matter to the police. The first respondent failed to do so within an appropriate timeframe in respect of Mr Bach’s “rights, obligations or interests protected or recognised by law”. Thus it was said that the Judge erred at [86] in ruling that there had been no “determination” because the qualifying requirement under s 27(1) is simply that there is the power to make a determination.
• [42] Responding to this argument, Ms Shaw for the second respondent acknowledged that a broad approach is taken to s 27 and that in the present context the conclusion of the complaints process may involve a determination for the purposes of that section. She recognised that there were certain features of the complaints process that have a natural justice focus, such as that the prisoner lodging the complaint is entitled to be notified monthly about the progress of the complaint and to be notified of the outcome. However she observed that Mr Bach’s application for review was unconventional in that it was not concerned with any particular decision by a decision‑maker.
• [43] In particular she observed that the conclusion of the complaints process is not what is challenged in this proceeding. Rather Mr Bach seeks to challenge an earlier “non-decision” in the form of an omission to refer his complaint to the police, or to assist with his doing so, following receipt of his written complaint in December 2020. She submitted, and we agree, that this so-called non-decision is not properly viewed as a “determination” that affects Mr Bach’s rights, obligations or interests for the purposes of s 27(1).
• [44] The complaint remained open and a referral to police remained a possibility, one which was apparently discussed with Mr Bach at subsequent points in the investigation process. In those circumstances no determination or decision had been taken that could engage s 27 in the manner asserted. As the Judge correctly observed, even construing the words “rights” and “interests” broadly, it is difficult to see what rights or interests were engaged in these circumstances.^[30] It follows that we reject the submission that the Judge erred in her analysis of Mr Bach’s contention. We turn now to consider the issue which was at the forefront of the argument for Mr Bach on the appeal.

The Judge’s observation at [85]

• [45] Mr Ryken submitted that the Judge made a mistake of fact in the final sentence of [85]:

The complaint was investigated and there is no suggestion that Mr Bach was unable to contact the Police himself, either in custody or on release on parole.

The criticism relates to the reference to Mr Bach’s ability to personally contact the police during the period when he was in custody. Mr Ryken submitted that this was an erroneous statement which impacted the conclusion whether the first respondent had fulfilled the statutory duties he owed to Mr Bach.

• [46] It was Mr Ryken’s contention that the correct starting point for analysis is that if, as Mr Bach contended, he had no means to contact police himself, then the first respondent must provide assistance for him to do so. An assumption that Mr Bach can contact the police himself is said to have created the wrong starting point, which resulted in an incorrect assessment of the scope of the first respondent’s duty.
• [47] The Court’s understanding of a prisoner’s ability to initiate a complaint with police was described by Mr Ryken as an important component in the process of the judicial reasoning. Indeed, reflecting the emphasis placed on this new point in the appeal, it was said that this observation by the Judge was key to the overall outcome of the case, a submission which Mr Scragg, counsel for the first respondent, described as a leap of logic. He submitted that what Mr Bach was able to do in prison did not inform the proper analysis of the statutory duties imposed on the Prison Director. Mr Scragg contended there was a gap in the sense that there is no statutory obligation on the Prison Director to facilitate complaints directly to the police.
• [48] The respondents observed, correctly, that Mr Bach’s ability to contact police directly was not a pleaded issue in the High Court. Consequently there was no evidence on the point. They submitted that the impugned statement, when read in context, is simply an observation about the pleadings and the evidence which were before the Judge. In their submission, focussing on this point on appeal takes the Judge’s reasoning out of context and invites engagement “on the margins” rather than with the key issue squarely dealt with by the High Court, namely whether the Act or the Regulations required the referral of Mr Bach’s complaint to police or the provision of assistance to Mr Bach to complain to the police.
• [49] We consider that the respondents’ characterisation of the Judge’s observation is correct. It followed the Judge’s conclusion on the key issue concerning the statutory scheme. In context it is properly read as an obiter comment. We agree that it falls short of an error amounting to the taking into account of an irrelevant consideration, as Mr Ryken contended.
• [50] We would add that we consider there is merit in the second respondent’s submission that, in the circumstances where Mr Bach elected not to speak to police as at April 2021 (at least on Mr Smith’s account of events) and has not done so since, Mr Bach’s continuing to advance his claim is arguably inconsistent with the availability of judicial review as a remedy of last resort.

Result

• [51] The appeal is dismissed.
• [52] The appellant is in receipt of a full grant of legal aid in respect of his appeal. There being no exceptional circumstances justifying an order for costs against an aided person,^[31] we decline to award costs on either the application to adduce further evidence or the appeal.

Solicitors:
Ryken and Associates, Auckland for Appellant
Duncan Cotterill, Wellington for First Respondent
Meredith Connell, Wellington for Second Respondent

^[1] Mr Bach’s claim included other causes of action relating to mail delays and the distribution of meals by untrained prisoners. The only cause of action pursued on appeal was that relating to the complaint process.

^[2] Bach v Prison Director, Auckland South Corrections Facility – Serco [2022] NZHC 2420 [High Court judgment].

^[3] At [5].

^[4] High Court judgment, above n 2 (footnote omitted).

^[5] The prayer for relief also sought damages for breach of the New Zealand Bill of Rights Act 1990 in accordance with Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA), but Mr Ryken advised that was no longer pursued.

^[6] High Court judgment, above n 2, at [66]–[68].

^[7] Section 154(1)(a) addresses the obligation of the Chief Executive of the Department of Corrections to ensure that a person under control or supervision is given the opportunity to obtain assistance to enable the person to make a complaint.

^[8] High Court judgment, above n 2, at [66].

^[9] At [70]–[72], citing Hudson v Attorney-General [2020] NZHC 3231 at [75] and [85].

^[10] At [72].

^[11] At [73]–[78].

^[12] At [79].

^[13] At [83].

^[14] Bach v Prison Director, Auckland South Corrections Facility (Serco) [2023] NZCA 160.

^[15] And telephones are also available for use by prisoners in common areas.

^[16] In accordance with r 42A of the Court of Appeal (Civil) Rules 2005.

^[17] Section 152(1)(a).

^[18] Section 152(1)(c).

^[19] Section 152(1)(d).

^[20] Section 152(1)(e).

^[21] Section 152(1)(f).

^[22] Section 152(1)(g).

^[23] Sections 155–159.

^[24] High Court judgment, above n 2, at [65].

^[25] At [65]–[66].

^[26] See [31] above.

^[27] High Court judgment, above n 2.

^[28] Quoted at [23] above.

^[29] Citing dicta in Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [17] and [50].

^[30] High Court judgment, above n 2, at [85].

^[31] Legal Services Act 2011, s 45(2).