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Toia v Prison Manager, Auckland Prison [2014] NZHC 867 (30 April 2014)

Last Updated: 1 May 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7914 [2014] NZHC 867

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 30 April 2014 at 4:45 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Crown Law (Wellington) for Defendants

(Copy to Plaintiff in person)

TOIA v PRISON MANAGER, AUCKLAND PRISON [2014] NZHC 867 [30 April 2014]

Table of Contents

Introduction ..........................................................................................................[1] Overview ...............................................................................................................[2] B Block .........................................................................................................[4] ARU..............................................................................................................[7]

D Block.......................................................................................................[15] The Law...............................................................................................................[20] Analysis

ARU............................................................................................................[26]

D Block.......................................................................................................[84] (a) Locked in cell for 23½ hours each day .....................................[86] (b) Denial of toothpaste ..................................................................[94] (c) Required to remain on the landing outside his cell ...................[96] (d) Denial of privacy .......................................................................[98] (e) Not provided with opportunity for constructive use of time ....[105] (f) Unhygienic conditions .............................................................[109] (g) Visitor unlawfully turned away................................................ [113] (h) Failure to action complaints ...................................................[121] (i) Removing and failing to account for personal property .........[130] (j) Denial of access to justice .......................................................[131] (k) Sex discrimination ...................................................................[153] (l) Denial of litigation resources ..................................................[164]

Decision .............................................................................................................[172] Remedy...................................................................................[177] Declaration...............................................................................[183] Costs ..................................................................................................................[184] Addendum.........................................................................................................[185]

Introduction

[1] The plaintiff is a sentenced prisoner. He sues the defendants for the way he has been treated in prison by the prison authorities. He contends that they have breached his rights as a human being.

Overview

[2] The plaintiff is not an easy man to hold in a prison. He is defiant, aggressive and determined to live by his own norms of conduct. For example, he has refused to take part in any of the rehabilitative programmes on offer. He said in evidence that he himself is the only person who can rehabilitate him, so there is no point.

[3] The plaintiff has spent a long time classified as a maximum security prisoner. That classification means he has been subject to the most restrictive regime for prisoners who are not under punishment.

B Block

[4] In 2009 and early 2010, the plaintiff was held in B Block in the maximum security wing of Auckland Prison. The cells in the wing have fronts of open-grilled bars. Each cell has a lavatory and a hand basin. A prisoner using the lavatory has no privacy. Anybody passing on the landing outside can see him. Some of the prison officers are female.

[5] A number of the prisoners obtained privacy by hanging a blanket over their cell front when they needed to use the lavatory. This was tolerated by the prison officers. The plaintiff, however, took to screening his cell front all the time. The prison officers did not allow this. Their duties include making regular checks on prisoners for the purposes of security and to ensure the health and safety of the prisoners. They could not do this for the plaintiff because they could not see him.

[6] A contest developed between the prison officers and the plaintiff. The officers did everything they could to dissuade or prevent the plaintiff from screening his cell front. The plaintiff never ceased his efforts to do so.

ARU

[7] On 14 January 2010, the plaintiff was moved to the At Risk Unit (“ARU”) of the maximum security wing. The ARU was designed for prisoners assessed at risk of self harm. There were 10 cells. All had solid doors with an observation window, a monitoring camera and a call button. Eight of the cells had lavatories and hand basins. Two did not. These were called the Round Room and the Tie-Down Room and were meant for the most extreme cases. Prisoners in those rooms were provided with cardboard pans for excretion.

[8] Prisoners in the ARU were monitored closely. Initially, prison officers would physically (i.e. in person, not through the camera) sight an inmate every 15 minutes. If fears for his wellbeing lessened, the checks would be carried out every 30 minutes.

[9] ARU prisoners were allowed out of their cells daily for a shower and for exercise. But only for an hour, and only when sufficient prison officers were available. Rules governing the ARU as part of the maximum security wing of the prison required three to four prison officers to be present every time a cell door was unlocked.

[10] Conditions in the ARU differed from the other maximum security units also in that inmates had to wear a one-piece garment and were not allowed cutlery. Meals were served through feeding slots in the doors. If they were not “finger food” (toast, sandwiches, fruit) then they were meant to be eaten using a polystyrene cup shaped to a scoop.

[11] When the plaintiff was moved to the ARU, all the regular cells were occupied and so he was put into the Round Room. He protested this by often tipping the excrement filled contents of his excretion pans onto the floor outside his cell. He did this by pushing the pans through the food slot in the cell door.

[12] After 72 hours the plaintiff was returned to B Block. He at once covered his cell front. He was taken back to the ARU and, although regular cells were available, he was put in the Tie-Down Room. He continued to empty the contents of his excretion pans onto the floor outside his cell. On 25 January 2010, he was sentenced

to serve a term of detention in “the pound” because of this. After that he was

returned to B Block where he continued to cover his cell door.

[13] The plaintiff’s case is that his rights were breached when he was held in the

ARU:

(a) It was a form of extra-judicial punishment. (b) He was unlawfully segregated.

(c) He was locked up for 24 hours a day.

(d) He had no access to a lavatory or washing facilities.

(e) His health was put at risk as a result of the unhygienic conditions in which he was held because he was forced to use his hands to eat food.

[14] The defendants’ responses are:

(a) From November 2009, the ARU was used additionally as a means of managing difficult prisoners. Further, it was thought that the plaintiff was at risk of suicide. His transfer to the ARU was not a punishment.

(b) He was not segregated. He was put in the ARU so that he could be observed so as to ensure security and the plaintiff ’s health and safety.

(c) The plaintiff was not locked up for 24 hours a day. He was entitled to be unlocked for an hour a day for a shower and for exercise. On some days he chose to have a shower, on others he refused. He always refused exercise. On days when he was dumping excrement he was held in his cell for health and safety reasons.

(d) The Round Room and Tie-Down Room do not have a lavatory, but pans are provided. The plaintiff would have been taken to an ablution

facility to wash his hands had he asked. The call button in his cell would have brought staff to the door.

(e) The plaintiff’s health was not at risk.

D Block

[15] On 23 December 2010, the plaintiff was sentenced to a period of directed segregation having been found guilty of booby trapping a door with a razor blade, which resulted in a prison officer being wounded. He served this sentence in D Block of the maximum security wing. The plaintiff was released from directed segregation in February 2011 but refused to return to B Block. He insisted that he stay in D Block, even though conditions there were harder than in B Block. In

evidence, the plaintiff gave his reason:¹

Q. So you wanted to stay in D Block? You didn’t want to go back to B

Block?

A. Yes.

Q. Was that because you were afraid of other prisoners in B Block?

1. Don’t make me laugh. No, that wasn’t. It was because of the fact that I took away all the Department of Correction’s manipulative tools. See, if I was left in D Block, they got nothing to take away from me, they cannot attempt to, ah, illegally control me. I took away all their, their attempts at controlling me. I fear no man in this jail, prisoner or staff member.

[16] The plaintiff continued to do things his way. His contest with prison officers over covering his cell front carried on. He spent some 13 months in D Block and claims that his rights were breached as follows:

(a) He was locked in his cell for 23½ hours each day. (b) He was denied toothpaste.

(c) He was required to remain on the landing outside his cell on those

_{occasions when he was allowed out.}

¹ Notes of evidence, at 37.

(d) He was denied privacy.

(e) He was not provided with the opportunity to make constructive use of his time.

(f) The conditions in which he was held were unhygienic and threatened his health.

(g) He was harassed by prison staff who:

(i) unlawfully turned away a visitor; (ii) failed to action his complaints;

(iii) removed personal property from his cell and failed to account for it;

(iv) denied him access to justice in that an Inspector of Corrections refused to allow him a support person at an interview and then ended the interview without hearing from the plaintiff.²

(h) He was discriminated against because of being male. The points system by which prison authorities classify prisoners has a lower threshold for designating a male as a maximum security prisoner than for a female.

(i) He was denied reasonable access to the resources and facilities he needed to conduct his litigation against the defendants.

[17] The defendants’ responses are:

_{(a) The plaintiff was not locked in his cell for 23½ hours each day.}

² During the hearing the focus of this complaint changed to wrongful denial of a request to see an

Ombudsman – see [131]-[152].

(b) The plaintiff was not denied toothpaste. He started to misuse toothpaste (as an adhesive and as a means of making opaque a clear polycarbonate screen on his cell door) and so his access to it was rationed.

(c) The plaintiff had the same opportunities for exercise and recreation as any other D Block prisoner. He was not required to remain on the landing.

(d) The plaintiff’s right to privacy was limited by his status as a maximum security prisoner and by the design of the cells. Prison officers allowed prisoners to screen their cell doors while they were using the lavatory.

(e) The plaintiff refused opportunities to make constructive use of his time and preferred to work in his cell on this litigation.

(f) The conditions in which he was held were not unhygienic.

(g) He was not harassed by prison staff. Each of his allegations of harassment are explained by the plaintiff ’s own actions or by inadvertent inefficiencies in a complex system of administration.

(h) Male prisoners are not discriminated against because of their sex.

Security classifications are based on risk assessment. Male prisoners, in general, have more risk factors than female prisoners.

(i) The plaintiff was given access to sufficient facilities to conduct his litigation. He was not given access to a computer because he was not sufficiently computer-literate and because inquiries had revealed that the Court would accept handwritten documents.

[18] On 10 February 2012, the plaintiff was, with his consent, transferred to

C Block. According to Mr Sherlock, Prison Manager of Auckland Prison, this was

the result of other prisoners saying “that they could probably work with him to be

calmer and take him under their wing”.³

[19] The plaintiff is still a maximum security prisoner. Mr Sherlock’s description

of him was:

After Mr Toia moved to C Block he settled down in the sense of being inclined to spend less time alone in his cell as he had previously tended to do. He came out of his shell and became more open to interaction with other prisoners. However, he continues to be abusive to, and unco-operative with, prison staff, and covers his cell front virtually daily.

The Law

[20] Prisoners do not lose their rights and freedoms as human beings upon being sentenced to a term of imprisonment. But some rights and freedoms may be limited during their lawful incarceration. Section 5 of the New Zealand Bill of Rights Act

1990 (“NZBORA”) provides:

5 Justified limitations

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.⁴

[21] Reasonable limits prescribed by law are demonstrably justified when it

comes to a prisoner’s rights to freedom of association⁵ and freedom of movement.⁶

Other rights are emphasised or come into force because of a person’s imprisonment. Two sections of the NZBORA which have been at the heart of recent cases brought by prisoners are:⁷

9 Right not to be subjected to torture or cruel treatment

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

³ _{Brief of evidence in chief of Robert Thomas Sherlock, at [11].}

⁴ _{Section 4 provides that the NZBORA is not supervening legislation.}

⁵ _{NZBORA, s 17.}

⁶ _{Section 18.}

⁷ Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429; Reekie v Attorney-General

[2012] NZHC 1867; Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67.

23 Rights of persons arrested or detained

...

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[22] So, on the one hand, prisoners’ rights may be subject to reasonable limits⁸ but, on the other hand, rights which arise or which are emphasised by the fact of imprisonment must be given effect. It is for the prison authorities to get this balance right. It is for the Court to grant relief if they do not.

[23] The balance which must be struck between limiting (reasonably) some rights of prisoners while giving other rights due effect is not a delicate one. Prisons house criminals. Some are compliant and present no physical threat to anyone. Others are non-compliant and very dangerous. Prisoners have to be managed so that the health and safety of inmates and officers alike are assured. There is a necessary robustness to prison systems of management.

[24] The starting point, therefore, for evaluating claims of breaches of prisoners’ rights is to see whether the rules and standards for prisons established by law have been complied with. Non-compliance does not lead inevitably to a conclusion that rights have been breached, but a finding of non-compliance will bear very heavily on

the assessment of breach.⁹

[25] The legislative instruments primarily governing prisons (during the relevant period) are the Corrections Act 2004 (“the Act”) and the Corrections Regulations

2005 (“the Regulations”).

Analysis

ARU

[26] When the plaintiff was moved to the ARU on 14 January 2010, his living conditions worsened. Neither the Round Room nor the Tie-Down Room had a

_{lavatory or running water. He lost his ability to associate with other prisoners. The}

⁸ _{Such limits being prescribed by law and demonstrably justified in a free and democratic society.}

⁹ Taunoa v Attorney-General, above n 7, at 456 per Elias CJ.

defendants referred me to reg 196(1), which provides that a prisoner does not have any legitimate expectation of:

(a) being accommodated in, or of being provided with, the same or

similar conditions during the whole term of his or her sentence...

[27] However, this is qualified by subclause (2):

Subclause (1) does not affect any entitlement conferred on a prisoner by the

Act or these Regulations.

[28] Section 57 of the Act states that the opportunity of a prisoner to associate with other prisoners may be restricted or denied in accordance with ss 58-60. Section 58 provides:

58 Segregation for purpose of security, good order, or safety

(1) The prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if, in the opinion of the manager,—

(a) the security or good order of the prison would otherwise be endangered or prejudiced; or

(b) the safety of another prisoner or another person would otherwise be endangered.

(2) If a direction is given under subsection (1),—

(a) the prisoner concerned must promptly be given the reasons in writing for the direction and any subsequent direction under subsection (3)(c):

(b) the chief executive must promptly be informed of the direction and the reasons for it.

(3) A direction under subsection (1)—

(a) must be revoked by the prison manager if there ceases to be any justification, under subsection (1), for continuing to restrict or deny the opportunity of the prisoner to associate with other prisoners:

(b) may be revoked at any time by the chief executive or a

Visiting Justice:

(c) expires after 14 days unless, before it expires, the chief executive directs that it continue in force:

(d) if it continues in force because of a direction under paragraph (c), must—

(i) be reviewed by the chief executive at intervals of not more than 1 month:

(ii) expire after 3 months unless a Visiting Justice directs that it continue in force:

(e) if it continues in force because of a direction under paragraph (d)(ii), must be reviewed by a Visiting Justice at intervals of not more than 3 months.

[29] Section 59 provides for protective custody of prisoners and does not apply to this case.

[30] Section 60 provides for segregation for the purpose of medical oversight. Similar requirements to those in s 58 for notice and review apply.

[31] It is apparent that the Act does not establish directed segregation as a punishment, and provides a prisoner subject to it with real safeguards as to its imposition and continuance.

[32] A number of the defendants’ witnesses gave evidence as to the reason for the plaintiff being moved to the ARU. Mr NSD Beales was prison manager at the relevant time. His evidence is particularly important because as prison manager it was his decision to move the plaintiff to the ARU.

[33] In his brief of evidence, he gives the background to his decision:¹⁰

20. A number of prisoners began covering up their cell frontages. This was creating problems for staff. Where prisoners are locked in their cells, daytime staffing numbers allowed staff to unlock the cell, remove the coverings, speak to the prisoner as to why he was doing it, instruct him not to do it again and take the necessary action, including laying misconduct charges.

21. At night, national policy requires staff to carry out prisoner cell and location checks. Prior to 1 February 2010, these were done on at least a two-hourly basis. Presently, three checks are required each night.

22. The purpose of these checks is to ensure that the door and window are secure; there is nothing unusual or out of place in the cell; the correct number of prisoners are in the cell or location and that the

¹⁰ Brief of evidence in chief of Neil Stuart David Beales, dated 10 July 2013.

prisoner(s) appears to be ok; and, in general, nothing is obviously wrong.

23. Where possible, staff are to carry out these checks without disturbing the prisoner. If a prisoner’s location or physical well-being cannot be ascertained by looking into the cell through an observation window, he must be unlocked. Policy only allows a prisoner to be unlocked with the approval of the on-call officer, and at least three prisoner officers must be present in a maximum security prison. This is especially difficult at night. Far fewer staff are on duty, and you do not want to be unlocking prisoners or making their cells less secure unless absolutely necessary. Unlocking maximum security prisoners poses obvious risks, such as attacks on staff, hostage- taking and other situations where prisoners can use the opportunity knowing that fewer staff are on duty to assist.

24. Mr Toia was one of the most difficult prisoners in terms of covering his cell at night. Staff would tell him to take the covering down. He would often shout abuse and refuse to do it, although sometimes he would comply. His behaviour got progressively worse, to the point where he was covering his cell front every night and refusing to even respond to staff. This meant his cell was being opened almost every night, in order to check on his welfare.

...

27. Every morning at East Division we had a staff meeting where we talked about the events of the night and the previous day. Almost daily, concerns were raised by staff that they had to open up Mr Toia’s cell and sometimes one or two others, in order to remove coverings. From my perspective, this posed a number of risks:

27.1 Staff were unable to account for Mr Toia’s well-being;

27.2 They were being placed in a vulnerable position each night;

and

27.3 Other prisoners may realise that this is a way to get their cells opened, and use this opportunity to attack or assault staff.

28. While cell fronts were being covered, I, as the Prison Manager, was unable to provide assurance to my Regional Manager, General Manager and Chief Executive that all of the prisoners in my care were where they were supposed to be and safe. Equally, I was not prepared to have staff placed at risk by continually needing to unlock maximum security prisoners during the night shift.

29. Cells, other than those in the ARU, do not have integral CCTV so are unable to be monitored by any other means than by viewing through the cell frontage.

30. I considered that Mr Toia, through his behaviour, was placing himself at risk. If staff cannot account for his wellbeing, then I cannot stand up and say that he is safe. Following a discussion with

John Small, who at that time was the Principal Corrections Officer for B Block, we decided to move Mr Toia to the ARU for a period.

31. The ARU is primarily for prisoners who are at risk of self-harm or intent on suicide. However, at that time, we were also using ARU cells to manage some of our more disruptive and dangerous prisoners, as Auckland Prison is not equipped with a separate unit to manage disruptive prisoners outside of the main blocks. This occurred very rarely. In the ARU, we were able to observe prisoners and monitor them more closely.

[34] Mr Beales then describes speaking to the plaintiff:

35. I specifically recall having a discussion with Mr Toia in the ARU yard. He was obviously angry, and could not understand why he was there. I explained to him that it was incumbent on me and my staff to make sure he was safe at night and by his actions he was making himself unsafe. By definition, without seeing him, I could not prove that he was safe.

36. Mr Toia was adamant that I did not have legal authority to have him in prison, or even to run the prison. He said he did not recognise the State and was a Maori activist.

37. I listened to Mr Toia’s concerns. I remember saying to him that if he actually behaved himself and just got on with his sentence, his security classification would come down. Bearing in mind the cell frontage of this particular prison, if his security classification came down, we could then move him to another prison with solid cell doors, and the concerns he had about privacy would not be an issue for him again. But he just did not seem to see the point I was trying to make.

38. Mr Toia asked whether I would consider allowing him to partially cover his cell front when he was on the toilet. After talking to John Small, I agreed to this, as long as Mr Toia agreed to call out to staff if they did check on him. Once finished, he was to remove the cover. This was an attempt on my part to move things forward. Mr Toia seemed to think that this was reasonable. I shook his hand, and he thanked me for coming to see him.

[35] It was reported subsequently to Mr Beales that the plaintiff’s behaviour had

regressed:

41. I decided that he would need to return to the ARU. Although he was not in the process of actively self-harming or threatening to self- harm, his behaviour dictated to me that he was at risk because I could not guarantee his safety. The fact staff could not observe him throughout the night or get an appropriate response put him further at risk and once again staff were having to unlock him at night.
42. Shortly after Mr Toia was placed in the ARU in January 2010, I was advised he was embarking on a bizarre course of behaviour, throwing urine and faeces out of his cell front. Staff were trying to manage him and trying to encourage him not to do that.

43. Because of his actions, I was asked by staff what they needed to be doing. He was saying he wanted to come out and go to the yard and do the normal things that prisoners in the ARU would have been allowed to do under normal conditions. My instructions were that whilst he was behaving in that way – throwing faeces and urine out of his cell, and being aggressive and abusive to staff – he was a risk to their health and safety. It would not, in my view, have been wise to unlock him in those circumstances.

44. I did not, at any stage, order staff to lock Mr Toia down for 24 hours each day, without access to washing facilities or a toilet.

45. I was aware that I could only restrict a prisoner’s minimum entitlements under very specific conditions. Those conditions include where the health and safety of any person is threatened. By embarking on these actions, Mr Toia was obviously creating a health and safety risk. All that was ever required from Mr Toia was for him to recognise that we were trying to assist him back to the mainstream units, and all we needed was for him to understand that his actions were not appropriate and that he was responsible for creating the situation he was in.

[36] In cross-examination, Mr Beales made it clear that he did not authorise Mr Toia’s transfer to the ARU in reliance on s 60. The transfer was not for the purpose of medical oversight. Mr Beales also said that the plaintiff was not segregated.¹¹ When challenged by the plaintiff to cite the legislative authority he relied upon, Mr Beales said:¹²

Yes Your Honour, the two authorities that come into play in this instance is the Corrections Act 2004, paragraph 12, “Powers and Functions of Prison Managers”. The prison manager has in relation to the prison for which the manager is appointed or designated has (inaudible 14:15:05) the following powers and functions.” And paragraph (b) on that, “is ensuring the safe custody and welfare of prisoners received in prison.” And equally, Corrections Regulations 2005, section 6, paragraph (1), “General Duties of Prison Managers, which is subject to the Act and to the control of the Chief Executive. The manager of a prison is responsible for its good management and the fair, safe, secure, orderly and humane management of the care of its prisoners.” Under those two authorities, it was my belief I was able to move Mr Toia to the At Risk Unit Your Honour.

¹¹ _{Notes of evidence, at 173.}

¹² At 175.

[37] The plaintiff, in cross-examination, returned to this subject:¹³

Q. What were you segregating me for?

A. I didn’t segregate you. There was no segregation involved. I moved

you to an area where I could observe you.

[38] Mr STA Nui was the unit/residential manager for A and B Blocks during the relevant period. In his brief of evidence, he described how the prison officers in B Block tried to dissuade the plaintiff from covering the front of his cell. For a period, at night, the plaintiff was moved to a cell in the detention unit and then returned to B Block in the morning.¹⁴ Mr Nui’s evidence was that the main difference between detention cells and those in B Block was that the former had no power plugs. However, the plaintiff had no TV or stereo and so Mr Nui did not see any disadvantage to the plaintiff spending nights in a detention cell. This shift

proved effective because the plaintiff did not cover his cell front while in the detention cell. However, concerns were raised that because a detention cell was formally designated as a punishment cell, the plaintiff’s incarceration overnight might be misconstrued as a punishment. The practice was discontinued accordingly.

[39] Mr Nui said that it was actually his decision to place the plaintiff in the ARU, and in his brief of evidence gives the background as follows:

16. On 14 January 2010, I decided to place Mr Toia in the ARU. I did so because I was concerned that changes in his behaviour suggested he was at risk of self harm.

17. An incident information report on 14 January records that at 8.10 am that morning, staff conducted a muster in B Block. Staff could not see into Mr Toia’s cell because a sheet was hanging across the front. They tried to get a response from him, but could not. Staff then unlocked the cell and removed the sheet. Mr Toia was agitated.

18. The report records that, a short time later, at 8.30 am, a Corrections Officer saw that Mr Toia was scratching the polycarbonate front of his cell to obscure the view in. Staff again entered his cell and instructed him to stop. He appeared agitated. He was taken from his cell and escorted to the Principal Corrections Officer’s office to be interviewed. Mr Toia said that he would continue to obstruct the view into his cell if he was returned and would smash cameras so that staff could not see him. He was placed on misconduct and his Management Plan was to be reviewed.

¹³ _{At 186.}

¹⁴ Brief of evidence in chief of Solomon Tuato Nui, dated 10 July 2013, at [13].

19. During that day, I was involved in a number of discussions about Mr Toia. I was informed that his whole demeanour had changed. Prior to this day, he had been mixing with other prisoners on his landing – talking to them and going into the yard with them – and was aggressive and abusive towards staff. On this day, however, he had suddenly become quiet and withdrawn. He said that he did not want to mix or talk with anyone any more, and asked everyone to stay away from him.

20. This change in demeanour was a major concern to me. I understood, from my suicide prevention training, it to be a warning sign of a person being at risk of self harm.

21. Other warning signs were also present. Mr Toia had tidied up his cell, and I suspected he had given most of his property away to other prisoners. There was virtually nothing left in his cell. These are often the last things a person will do before killing himself.

22. I recall discussing Mr Toia’s situation with the Prison Manager, Neil Beales, and the PCO of B Block, John Small. PCO Small was with Mr Beales in his office, and I was on the phone. There was a lot of discussion because even though Mr Toia was exhibiting all the warning signs, he did not have a history of self harm.

23. When a prisoner exhibits these sorts of signs, a key mitigation is for staff to keep a close eye on that person. In Mr Toia’s case, however, his habit of covering his cell front meant this was not possible. Given it only takes one attempt at suicide to be successful, we decided it was appropriate to transfer Mr Toia to the ARU for observation. It all came down to risk. If we left Mr Toia in his cell and he killed himself, we would have failed to ensure his safety when a death might otherwise have been avoided.

24. At about 3 pm that afternoon, PO Shead completed a New Arrival Risk Assessment (NARA) form. These forms are completed for new arrival prisoners, but also in other circumstances. For example, policy B.14 says that a prisoner’s at-risk status must be reassessed where he demonstrates “overt changes in attitude to ‘self’ and situation” or “overt changes in relationships with others, e.g. whanau, other prisoners, and staff”.

25. The NARA records that Mr Toia refused to answer any of PO Shead’s questions. PO Shead concluded that he had concerns for Mr Toia’s safety. He then contacted me and advised that Mr Toia may be at risk of self harm. I decided that Mr Toia was at risk and should be placed in the ARU for observation. He was then transferred to the ARU, where he would be in a safe environment, constantly observed and able to receive psychiatric interventions. I do not recall having any contact with Mr Toia while he was in the ARU.

...

27. A lot of staff were involved with Mr Toia from 14 to 25 January

2010. I am aware of some confusion about the reason for moving

Mr Toia to the ARU.

28. The suggestion that he was moved because he was covering his cell front is not entirely correct. He was moved because he showed a number of signs of being at risk of self harm. Cell front covering was one of those signs, but it also meant staff could not adequately mitigate any risk Mr Toia posed to himself.

29. Both PCO Small and I have been involved in situations where prisoners have been released from the ARU (despite showing warning signs) and have killed themselves on return to their unit. I did not want that to happen again. In the end, I would rather be criticised for taking a precautionary approach to a prisoner who showed warning signs (but did not ultimately hurt himself) than have to explain to his family that, despite such signs, he was left in his cell to kill himself.

[40] Ms CM Mikaere also gave evidence on the transfer of the plaintiff to the ARU. At the relevant time, Ms Mikaere was a manager at the ARU. In her evidence, Ms Mikaere said that from November 2009 the ARU had become a hybrid unit accommodating both genuinely unwell prisoners as well as those who were “difficult and challenging”.¹⁵ For those prisoners, the ARU would be used to

“minimise and/or mitigate risks”.¹⁶

[41] Ms Mikaere gave evidence that the plaintiff was moved into ARU at 3:40 pm on 14 January 2010, having failed a risk assessment. He was placed in the Round Room on observations not exceeding 15 minutes. He was in the Round Room because the other cells were all occupied. Ms Mikaere went on to say that the next day the plaintiff was moved to 30 minute observations:¹⁷

This was because the staff and I viewed him as being at a low risk of self- harming. Staff had reported back at the Friday morning meeting that, in their assessment, Mr Toia did not appear to have suicidal or self-harm tendencies. His “New Arrival Risk Assessment” confirmed he did not want to kill or harm himself. The assessment stated he appeared annoyed and irrational. The assessing officers also stated Mr Toia would not allow staff to check on his welfare.

¹⁵ _{Brief of evidence in chief of Cheryle Moana Mikaere, dated 10 July 2013, at [7].}

¹⁶ _{At [7].}

¹⁷ At [17].

[42] In cross-examination, the plaintiff challenged Ms Mikaere on her assessment of his mental health at the time:¹⁸

17. Okay, thank you. Out of, out of, out of all your meetings with me would you, would you say that I was a suicidal prisoner?

1. Mr Toia I interviewed you once while you were in the At Risk Unit, where you would not engage in conversation, therefore, I relied on my staff to advise me of your status thereafter. When I interviewed you you did not appear to be normal. In my experience as a unit manager in the At Risk Unit, I look at the eyes of the prisoners and that gives me a fairly good indication of the, the mood they are in. When I interviewed you, you would not engage in eye contact, so I relied upon my experience with interviewing other prisoners in the At Risk Unit and deemed it was necessary to have you there for your personal wellbeing and safety.

Q. So would I be correct in saying you did consider me suicidal? A. On observations not exceeding 15 minutes, yes.

[43] Finally, in her brief of evidence, Ms Mikaere made it clear that when the plaintiff was returned to the ARU he was put into the Tie-Down Room because of his behaviour, not because a conventional cell in the ARU was unavailable:

37. Throughout this period in the ARU, Mr Toia was kept in either the Round Room or the Tie-Down Room. His initial placement was because the normal cells were full. He remained, however, in the safe cells because he was throwing his faeces and urine out of his cell. This was a significant health and safety concern. I was responsible for ensuring the welfare of prisoners and staff, and I believed this was best managed by retaining him in the safe cells. As noted above, these were physically separate from the other cells in the ARU.

[44] The final witness for the defendants who gave evidence on the transfer to ARU was Mr MA Khan. During the relevant period, Mr Khan was a corrections officer working in the At Risk Unit. Mr Khan’s view was that the plaintiff was transferred to the At Risk Unit so that he could be observed for his own safety.¹⁹

[45] I will return to the legitimacy of the transfer of the plaintiff to the At Risk

Unit. But bearing on that topic is the legitimacy of confining the plaintiff in cells which had neither a lavatory nor running water.

¹⁸ _{Notes of evidence, at 229.}

¹⁹ Brief of evidence in chief of Mohammed Aferoz Khan, at [4].

[46] A prisoner’s minimum entitlements are set out in s 69 of the Act. I will quote the section in full because it provides for minimum entitlements to be denied in particular, carefully defined, circumstances:

69 Minimum entitlements

(1) Every prisoner has the following minimum entitlements: (a) physical exercise, as provided for in section 70: (b) a bed and bedding, as provided for in section 71: (c) food and drink, as provided for in section 72:

(d) access to private visitors, as provided for in section 73: (e) access to statutory visitors and specified visitors:

(f) access to legal advisers, as provided for in section 74:

(g) to receive medical treatment, as provided for in section 75: (h) to send and receive mail, as provided for in section 76:

(i) to make outgoing telephone calls, as provided for in section

77(3):

(j) to exercise any right conferred on prisoners by regulations made under this Act to communicate using any specified device or medium of communication:

(k) access to information and education, as provided for in section 78.

(2) A prisoner may be denied, for a period of time that is reasonable in the circumstances, 1 or more of the minimum entitlements set out in subsection (1) if—

(a) there is an emergency in the prison; or

(b) the security of the prison is threatened; or

(c) the health or safety of any person is threatened.

(3) A prisoner detained in a Police jail may be denied 1 or more of the minimum entitlements set out in subsection (1) (other than the entitlements referred to in subsection (1)(b), (c), (f), and (g), and the entitlement under subsection (1)(e) of access to statutory visitors) if, in the opinion of the prison manager or other person in charge, it is not practicable to provide those entitlements, having regard to the facilities available at the Police jail and the resources available.

(4) A prisoner—

(aa) may be denied, for not more than 2 consecutive days at a time, the minimum entitlement referred to in subsection (1)(a) if—

(i) the prisoner has been temporarily released from custody or temporarily removed from prison under section 62 or removed for judicial purposes under section 65; and

(ii) in the opinion of the prison manager, it is not practicable to provide the entitlement during the times the prisoner is in the prison:

(a) may be denied the minimum entitlements referred to in subsection (1)(d), (i), (j), and (k) if the prisoner is undergoing a penalty of cell confinement imposed under subpart 5 of Part 2:

(b) may be denied the minimum entitlement referred to in subsection (1)(k) if a direction under section 58 or 59 is in force and the prison manager considers that the prisoner is likely to damage prison property.

(5) The minimum entitlements conferred by subsection (1) are not privileges referred to in section 43(3)(a)(i), section 133(3)(a), or section 137(3)(a).

(6) Subsections (2), (3), and (4) override sections 70 to 78.

[47] I note that subs (2) means that minimum entitlements may be denied if the health or safety of any person is threatened.

[48] The provision of facilities in cells, apart from a bed and bedding, are not prescribed.

[49] The Regulations provide for specific items to be in cells for prisoners at risk of self-harm. However, these regulations go back to s 61 which relates to a prisoner who is subject to a direction under ss 58, 59 or 60.²⁰ There is no reference to a lavatory or to running water.

[50] I accept the evidence of the defendants’ witnesses that they did not view transferring the plaintiff to the ARU as being a punishment. Later email traffic²¹ and the other steps taken by prison officers (such as having the plaintiff spend nights in

_{the detention cells) show that their purpose in transferring him was to enable them to}

²⁰ _{Corrections Regulations 2005, reg 57(2) and reg 60(1).}

²¹ Mr Beales attached copies of emails to his brief of evidence. They were sent during the period

July 2010 to September 2010. They emphasise management of risk.

carry out their duties to keep the plaintiff safe while avoiding undue risk to prison officers. They were aware that transfer to the ARU could not be used as a punishment and, indeed, were using the mandated disciplinary system to respond to the plaintiff’s more egregious acts.

[51] I accept Mr Beales’s evidence that he did not direct the plaintiff to be segregated. Neither s 58 nor s 60 were engaged. Instead, Mr Beales relied on his general powers under s 12(b) to ensure the safe custody and welfare of prisoners.

[52] It is relevant that after the plaintiff’s period in the ARU came to an end (because he was sentenced to detention for tipping out his excrement) and the plaintiff returned to B Block, his recommencement of covering his cell front resulted in further discussions among prison officers as to options for dealing with him. Incarceration in the ARU was again raised. It was rejected as being ineffective and a riskier (for the prison officers) policy of constant unlocks was instituted. This regime came to an end only when the plaintiff was disciplined for the setting of a booby trap with a razorblade. This is consistent with my finding that at the time of transfer to the ARU the prison officers were trying to manage the plaintiff better so that his safety, and theirs, could be assured.

[53] I accept that Mr Beales as prison manager had the authority to move the plaintiff between cells. It was a legitimate exercise of that authority to move the plaintiff to a cell (in this case in the ARU) which provided a better opportunity to observe the plaintiff, even though it did not have a lavatory or running water. However, subject to the exception in s 69(2) where health or safety is threatened, he could not do so if it meant breaching minimum entitlements. It did not. Neither a lavatory nor running water was a minimum entitlement.

[54] Part 7 of the Regulations deals with prisoner treatment and welfare. Regulation 67 prescribes the items which must be contained in cells. There is a distinction drawn between new cells and existing cells, and the regulation does not apply to cells used for segregation directions. The items concerned are listed in Schedule 3.

[55] For new cells,²² “Running potable water”, a “Toilet” and “Hand washing facilities” are mandatory. So, too, is “Privacy screening consistent with safe custodial management”. None of these items or features are mandatory for existing cells.²³

[56] I conclude that moving the plaintiff to the ARU did not breach his minimum entitlements and did not confine him in a cell without the prescribed items to which he was entitled.

[57] I accept that the prison officers who emphasised their concerns for the plaintiff’s risk of self-harm are genuine. However, it is clear that the main factor influencing Mr Beales was the inability to safely monitor the plaintiff’s conduct and welfare.

[58] The second period of incarceration in the ARU is more contentious. There were standard maximum security cells available in the ARU at that time but the plaintiff was sent to the Tie-Down Room.

[59] Although running potable water, a toilet, hand washing facilities and privacy screening (consistent with safe custodial management) are not mandatory for existing cells, they must be present in existing cells “so far as is practicable in the circumstances”.²⁴ I take this to mean that these items and facilities are recognised as being, if not necessary for the humane incarceration of prisoners, then almost so. It is, of course, axiomatic that prisoners are entitled to be contained and managed humanely.²⁵

[60] The evidence of Ms Mikaere²⁶ was that the plaintiff’s placement in the Tie- Down Room was a response to his tipping out his excrement. The Tie-Down Room is physically separate from the other ARU cells and in Ms Mikaere’s view, health

_{and safety concerns meant that it was better to keep the plaintiff separate.}

²² _{Corrections Regulations 2005, Schedule 3, Part A.}

²³ _{Schedule 3, Part B.}

²⁴ _{Regulation 67(2)(b) and Schedule 3, Part C.}

²⁵ _{See, for example, s 51(4)(b) of the Act.}

²⁶ Quoted at [43] above.

[61] Ms Mikaere’s evidence on this point was not challenged in cross- examination. I am satisfied that Ms Mikaere did not put the plaintiff in the Tie- Down Room as a punishment. However, on its face, it is odd that because of concerns for health and safety arising from the plaintiff tipping out his excrement, he was not put in a cell furnished with a lavatory. There he would not have had the cardboard excretion pans and might no longer have had the motive to continue that form of protest.

[62] The evidence is insufficient for me to determine whether Ms Mikaere’s reason for not putting the plaintiff in a standard ARU cell was objectively within the bounds of her discretion or not. In any event, it is not my function to second-guess management decisions.

[63] In my view, the problem with transferring the plaintiff to the ARU was that it amounted to de facto segregation. That is to say, while Mr Beales had the authority to move the plaintiff to the ARU so as to better observe him, he did not have the authority to subject him to the ARU regime, which included losing the ability to associate with other prisoners.

[64] The denial or restriction of the opportunity to associate with other prisoners is, as I have already discussed, carefully controlled through ss 57-60 of the Act. One ground for denying or restricting that opportunity is where, in the opinion of the prison manager, “the security or good order of the prison would otherwise be endangered or prejudiced”.²⁷ That is effectively the opinion Mr Beales formed and was the reason the plaintiff was transferred to the ARU. This resulted in the plaintiff being, in effect, segregated but without the protections afforded by the Act.

[65] I note also reg 62(1):

62 Treatment of segregated prisoners

(1) A prisoner subject to a segregation direction must be detained, so far as is practicable in the circumstances and if it is not inconsistent with the purposes of the segregation direction, under the same conditions as if he or she were not subject to a segregation direction.

²⁷ Section 58(1)(a).

[66] In this case, not only was the plaintiff segregated de facto, he was subjected to the ARU regime which included having to wear a one piece garment and eat without cutlery.

[67] I find, therefore, that the plaintiff’s incarceration in the ARU under the ARU

regime was in breach of the segregation sections in the Act.

[68] As to the other complaints, I do not accept on the evidence that the plaintiff was locked up for 24 hours a day. The detailed evidence of Ms Mikaere and Mr Khan make it clear that the plaintiff had the opportunity to leave his cell for a shower and for exercise. His management plan did not alter in this regard. However, he often declined the opportunity.

[69] The plaintiff gave evidence that he was not allowed to have a shower. However, I accept the evidence of the prison officers, backed up by the prison records, that he did on occasion have a shower.²⁸

[70] I also find there were times when, because of the tipping of the excrement on the floor, prison officers refused to unlock the plaintiff’s cell door. It would be unrealistic of me to find that this breached the plaintiff’s rights, particularly because of the short duration of the resulting confinement and the obvious risk to health and safety that the plaintiff caused.

[71] I accept that the plaintiff had no access to a lavatory. Nor did he have access to washing facilities in his cell. He did have an approved, albeit primitive, excretion facility. Although no expert evidence was called, I accept readily that having to eat food with one’s hands, without having the ability to wash them after excreting, creates a hazard to health. However, I accept the evidence that if the plaintiff had wished to wash his hands he could have used the call button. He did not do that, at least partly because the plaintiff’s view is that his rights are to be afforded, not requested. The following passage from the notes of evidence is related to this issue,

_{but is also indicative of the plaintiff’s strongly held views:}²⁹

²⁸ _{I rely, in particular, on the evidence of Mohammed Aferoz Khan.}

²⁹ Notes of evidence, volume 2, at 33-35.

THE COURT:

Mr Toia just so I understand where you are coming from, is it your case that

after using the toilet while you were in the round room or the tie down room, is it your case that you asked to wash your hands and you were refused.

MR TOIA:

No, my case is this that I don’t need to ask for my rights, I am entitled to

them.

THE COURT:

All right, so your case then is that the prison officers had an obligation to ask

you whether you wanted to wash your hands, is that your case?

MR TOIA:

No, no, my case would be that the prison guards have an obligation to give

me access to wash my hands.

THE COURT:

And in the situation of, just so I understand where you are coming from, when you were in the round room or the tie down room how should they

have carried out that obligation?

MR TOIA:

By unlocking my door.

THE COURT:

Should they have spoken to you before they unlocked your door?

MR TOIA:

Spoke to me about what Mr Brewer?

THE COURT:

Well you are telling me it was their obligation to give you access to washing facilities, should they have asked you first whether you wanted to wash your

hands?

MR TOIA:

Do they got to ask me for my rights?

THE COURT:

No, I am asking –

MR TOIA:

Do I have to –

THE COURT:

I am trying to understand what you are saying they should have done and you have told me that they should have opened the door.

MR TOIA:

Me access to washing facilities, this is what they should have done.

THE COURT:

All right, so how –

MR TOIA:

Without me asking for it because they were well aware that I needed it,

especially Mr Khan because Mr Khan charged me for emptying my piss pot and toiletry gears outside the (inaudible 12:35:22).

...

THE COURT:

Let me just step through this, so he knows you have used the toiletries

because you have tipped them, the contents onto the ground, so you are saying that that once the mess has been cleaned up and without talking to you he should simply have opened the cell door and allowed you to walk to the ablution facilities, the bathroom facilities, is that what you are saying he should have done?

MR TOIA:

Yes, well that’s what he says because he stated in the, to the Court that he

personally washes his hands every time after the toilet, so why is it different for me.

[72] It follows that the complaint I have found proven is that the transfer of the plaintiff to the ARU and being subjected to the ARU regime while there breached the obligations of the prison authorities under the Act. What remains is to consider the applicability of s 9 and s 23(5) of the NZBORA.

[73] Section 9 (right not to be subjected to torture or cruel treatment) is clearly not engaged here. Section 9 is concerned with conduct, on the part of the State, that is outrageous and unacceptable and is to be utterly condemned.³⁰ The plaintiff’s incarceration in the ARU cannot be so described.

[74] I now turn to whether the plaintiff’s confinement in the ARU meant he was treated with humanity and with respect for the inherent dignity of his person as required by s 23(5).

[75] This analysis must reflect the discussion in Taunoa. The Court of Appeal in

Vogel summarised this as follows:³¹

Elias CJ held that s 23(5) was concerned to ensure that prisoners are treated “humanely”. Tipping J noted that a failure to observe the positive duty contained in s 23(5) is different from a breach of s 9: in the case of s 23(5) a claim can be made that a statutory standard has not been met and, in terms of potential liability, why the standard has not been met does not matter.

³⁰ _{Taunoa v Attorney-General, above n 7, at [170] per Blanchard J.}

³¹ Vogel v Attorney-General, above n 7, at [69] (Footnotes omitted).

Consequently, issues such as the intentional infliction of harm, or consciously reckless indifference to causing harm, need not be features of a claim of breach of s 23(5). On this approach, a failure to observe the law relating to prison management may “more readily cause a breach of the State’s positive duty under s 23(5)”.

[76] I have found a breach of statutory duty. That does not mean that a breach of s 23(5) must be found.

[77] Section 23(5) does not prescribe a fixed standard. Whether a person deprived of liberty is treated with humanity and with respect for the inherent dignity of the person depends partly upon context. For example, conditions of incarceration applied to a healthy 20 year old might pass muster whereas the same conditions applied to a frail, incontinent 70 year old might not.

[78] In this case, prison authorities had to respond to a strong and aggressive prisoner who was obstructing them in the carrying out of their duty to keep him under observation for the purposes of security at the prison and, importantly, to ensure the prisoner’s own health and safety. Moving him to the ARU as a management measure was not in itself unlawful. It was subjecting the plaintiff to the ARU regime that was unlawful. This did not mean that the plaintiff was not treated with humanity and that his inherent dignity was not respected. His prisoner management plan remained in force, and although his ability to associate with other prisoners was removed, it was not intended that his transfer to the ARU would be of long duration. The only demeaning aspect of the transfer was the lack of a lavatory and running water. However, confining the plaintiff without those facilities was not,

in the circumstances, “conduct unacceptable in our society”.³² There was adequate,

albeit minimal, provision for sanitation standards to be maintained. It was the plaintiff’s actions in tipping out his excrement which introduced a factor of degradation.

[79] The United Nations Standard Minimum Rules for the Treatment of Prisoners are relevant to this evaluation, particularly since they are endorsed by s 5 of the Act

_{(Purpose of corrections system). Article 12 provides:}

³² Taunoa v Attorney-General, above n 7, at [170].

12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.

[80] The excretion pan system, as it was designed to be used, plus access to hand washing facilities via a call button is adequate, albeit barely. It would not, in New Zealand, qualify if a prisoner were kept in such conditions on other than a temporary, and necessary, basis.

[81] As for the plaintiff’s return to the ARU when he was held in the Tie-Down Room; his dumping of his excrement outside his cell was the (uncontradicted) reason why the prison officers did not want him in close proximity to other prisoners. The mere fact that the Tie-Down Room did not have a lavatory and a hand basin did not mean that he was treated inhumanely.

[82] I do not find that being denied the opportunity to associate with other prisoners for the periods he was in the ARU harmed the plaintiff (and, indeed, he does not claim he was). Nor did the other aspects of the regime to which I have referred.

[83] It follows that I do not find that the plaintiff’s incarceration in the ARU

breached his rights under s 23(5).

D Block

[84] I rule at this point that none of the plaintiff’s complaints if made out,

singularly or collectively, could cross the s 9 NZBORA threshold.

[85] The plaintiff called Mr Arthur Taylor to support his allegations of mistreatment in D Block. Mr Taylor was another long-term maximum security prisoner. Mr Taylor gave evidence that he had been detained in D Block almost continuously since 15 March 2010. I found Mr Taylor to be a useful witness. He is a capable, self-taught advocate for prisoners’ rights and he is obviously intelligent. He is also obviously a thorn in the side of the prison authorities with an agenda

which goes beyond the plaintiff’s case.³³ Accordingly, I give weight to Mr Taylor’s

evidence but I bear in mind the need for balance and, where possible, verification.

(a) Locked in cell for 23½ hours each day

[86] The only evidence of this allegation is from the plaintiff. Mr Taylor, who was held in D Block in a cell close to the plaintiff’s, gave evidence:³⁴

Apart from Friday’s, when all prisoners are locked from 11 am Friday until about 9 am Saturday, the Plaintiff normally had only one hour a day out of his cell. Invariably he would stay on the landing outside his cell cleaning or showering. He was permitted to go to a “workshop” during that time if one was available. However most prisoners declined these “workshops” because they were essentially bare rooms, albeit about three times bigger than a normal cell, had no exercise equipment, no association was permitted with other prisoners and he still had to attend to cell cleaning, showers, any phone calls and all other matters that he had to do in his one hour of unlock time.

During most of the period the Plaintiff was in D Block with me the minimum one hour was perceived as the maximum and time out of our cells was mostly limited to one hour in total per day for all purposes.

Furthermore, unlock time should not be confused with opportunity for meaningful activity or recreation. Unlock time meant only the opportunity to move from the small enclosed area that is the prisoner’s single cell to an enclosed landing or other area where they may not associate with other prisoners. I considered it equated to moving from a small cell to a big cell.

[87] Nothing was put to Mr Taylor in cross-examination about his evidence on this point, which is unsurprising given the evidence called by the defendants.

[88] Mr Anthony Queree was the Residential Manager for (inter alia) D Block from September 2010 until the end of May 2012. His evidence-in-chief, relevantly, was:³⁵

17. From his arrival in D Block, more often than not Mr Toia’s unlock routine was as follows. He would come out of his cell, have a shower, clean his cell and then he would go back in and ask to be locked. He would pretty much always decline opportunities to go outside into the yard to do exercise. In fact, I do not recall him ever going out to the yard. All he wanted to do was hide in his cell.

33. It became clear that Mr Taylor wanted to have a Taunoa-type investigation of the system of operation of D Block. However, my focus is on the plaintiff ’s allegations and the evidence relevant to them.

³⁴ _{Brief of evidence of Arthur William Taylor, dated 6 June 2013, at 4-5.}

³⁵ Brief of evidence in chief of Anthony Graeme Queree, dated 10 July 2013.

18. After his directed segregation ended, Mr Toia moved onto an individual management plan. He was offered more unlock time, but he never took it. He had his own routine that he stuck to. He would come out of his cell, have his shower and then he would go back into his cell and ask the staff to lock him up. If he had a phone call to make, he would do that too. I do not ever recall him going out to the yards.

19. There was never any requirement that Mr Toia remain locked in his cell for 23½ hours each day. Once off directed segregation, he was entitled to substantially more time out of his cell. The reality was that he did not want more time out of his cell. He invariably returned to his cell after 30-45 minutes and asked to be locked up. That was his choice.

20. On Fridays the prison is locked down for half the day and on weekends, staff numbers were reduced and the focus was moving prisoners to and from visits. If it was not possible for prisoners to exercise in the yard due to staff numbers, they still received their minimum entitlement of 1 hour unlock time in the internal areas, such as a recreation room.

[89] In cross-examination, Mr Toia made the point, which was accepted by Mr Queree, that much of his evidence was hearsay. It was based not on actual observations but on the reports Mr Queree got from his staff. However, there were occasions when Mr Queree was present when Mr Toia asked to return to his cell and be locked inside.³⁶ I do not need to place weight on the hearsay aspects of Mr Queree’s evidence. He gave his view as Residential Manager and that view is consistent with other evidence, which I do rely on.

[90] Mr Shane Gibbons was a Corrections Officer in D Block from January 2011 to November 2012. He was the plaintiff’s case officer over this period. He gave evidence-in-chief, relevantly, as follows:³⁷

4. The routine on Mr Toia’s landing was as follows. Each morning, prisoners would be asked whether they wanted to exercise and, if so, whether they wanted to use the yard or a recreation room. We would try and get recreation out of the way in the morning. In the afternoon, prisoners would be unlocked for showers, cell cleaning, phone calls and phone shop (workshop with a pay phone).

...

8. I have been told that Mr Toia claims that he was confined to his cell for 23½ hours each day. This is not true.

³⁶ _{Notes of evidence, at 244.}

³⁷ Brief of evidence in chief of Shane Bertel James Gibbons, dated 10 July 2013.

9. After Mr Toia came off directed segregation, he went to a Management Plan. I understood this to be because he was refusing to move back to B Block. From that point, we managed Mr Toia according to his Management Plan. Under that plan, he was allowed to be unlocked from 9-11am and 1-4pm, although the exact times would depend on staff availability. The reality is that Mr Toia almost never took up that opportunity.

10. Every morning Mr Toia was offered the chance to go to the recreation rooms or out into the yard. He would decline 95 per cent of the time, usually saying something like, “why are you asking me? You know what I do every day”. He would prefer to just have his shower and cell cleaning, and then he would want to get locked up. In fact, he would actually complain if we had to move him down to the recreation rooms because we were doing searches or if there was an incident happening upstairs.

11. The only times I recall Mr Toia asking to go to the recreation rooms was when he wanted to talk to Arthur Taylor, another serving prisoner. He would be placed in the room opposite Mr Taylor’s, and they would stand at their doors talking.

[91] During cross-examination, the plaintiff was referred to his prisoner management plan:³⁸

Q. And that’s your prisoner management plan?

1. No, no, that’s not, that’s not my prisoner management plan. My prisoner management is I manage myself, I don’t have anybody managing my affairs Mr Carter, I am quite capable of managing my own affairs, staff have been notified of that. I, I’ve already made my, my sentence plan and the staff aren’t involved in it, they aren’t a part of my sentence plan.

17. Well can we just have a look at the Department of Corrections management plan that –

A. That’s better –

Q. – is in your name –

A. That’s better, and if you look –

Q. That they, that they have put in my name? A. Yeah.

17. If you look at the box at the bottom of the page which begins, “Prisoner Toia may be unlocked from 0900 to 1100 in the morning and between 1300 and 1600 hours in the afternoon.” So under your management plan you are permitted to be unlocked for up to five hours per day?

³⁸ Notes of evidence, at 39-40.

1. Under their management plan yes I, I am permitted to be unlocked five, five, or whatever, how many hours you claim, but that’s their, their management plan Mr – I wasn’t a part of that.

Q. And it also says just in the next sentence doesn’t it, “However, he

will need to do his unlock hours in the yards and/or the –

A. Exactly.

Q. – and/or the recreation room in the bottom landing on a daily basis?”

1. Exactly Mr Carter, in those, in, in those yards and the rec’ rooms there is nothing, there’s more in my cell, there’s more things in my cell to occupy my, my mind, than what’s in the yards or what’s in the rec’ room.

Q. But what you, what the management –

1. And besides, besides at the time I was busy with this case. Actually the whole period that I was in Delta I was busy with this case.

Q. But the management plan does envisage you being unlocked from

your cell for considerably more than half an hour a day doesn’t it?

1. I think, I think you will find in all the log books the same thing, the same thing is a fact, that I was only unlocked half an hour every day.

17. I suggest to you that when you were in D Block you were offered at least an hour a day outside your cell in the yard or in the recreation rooms. Isn’t that right?

A. Like I says, I was busy. Q. Wasn’t it the case –

1. I’m, I’m a layman expected to defend my case here with half the tools that you’ve got.

Q. Wasn’t it the case that about 95% of the time you turned down the

opportunity to spend at least one hour outside your cell?

A. That’s not true. It’s the case that, every time, half an hour was up,

the staff would come to lock me down.

17. Well evidence will be given on behalf of the Department of Corrections that mostly you prefer to spend time in your cell rather than use the hour or more per day outside your cell. What do you say to that?

A. I was studying, I was busy.

Q. So you were offered, offered time outside your cell –

1. No, I wasn’t offered, I, I wasn’t offered one hour outside my cell. If I stayed, and I think you could, you could pull up video footage of it, if I stayed out of my cell for over half an hour I would be C&R’d

back to my cell. There’s a record of a C&R where I wasn’t even out for half an hour, walking to the shower, and I was C&R’d back to my cell.

[92] On the above evidence, I am satisfied that the plaintiff had the option of leaving his cell in accordance with his prison management programme. I am satisfied also that the plaintiff would have exercised his rights under the prison management programme vigorously if he had wanted to.

[93] Accordingly, the plaintiff has failed to prove this complaint.

(b) Denial of toothpaste

[94] I am satisfied on the evidence that the plaintiff used toothpaste at times as an adhesive and as a means of making the transparent polycarbonate panel on his cell front opaque. It is clear that the prison officers rationed his access to toothpaste accordingly.

[95] I do not find this to be a breach of minimum entitlements or a breach of the duty of care owed by the prison authorities to the plaintiff. The situation was one of his own making and did not constitute a threat to his health or wellbeing. It follows that I do not find a breach of s 23(5) of the NZBORA.

(c) Required to remain on the landing outside his cell

[96] The only evidence that the plaintiff was required to remain on the landing outside his cell, on those occasions when he was allowed out, comes from the plaintiff. It is not confirmed by Mr Taylor.

[97] I accept the evidence of the prison officers that the plaintiff was free to use the recreation rooms or the yard if he had wished.

(d) Denial of privacy

[98] I have no doubt that, to an extent, the plaintiff was denied privacy. The design of the maximum security cells does not permit privacy. The issue is whether this gives the plaintiff a cause of action.

[99] As already discussed, existing cells must have, “so far as is practicable in the circumstances”, “privacy screening consistent with safe custodial management”. I infer from the evidence that none of the cells in the maximum security wing had privacy screens. I infer also that the design of the cells was to allow for direct observation of prisoners at all times. This is why the prison officers came into conflict with the plaintiff when he insisted on screening the front of his cell for long periods. They could not then check on him, particularly when he refused to answer their queries while screened from their sight.

[100] The plaintiff has proved that he had no privacy screen. There is no evidence that it was not practicable in the circumstances for him to have one or that having one would not be consistent with safe custodial management. Accordingly, I find that the lack of a privacy screen was contrary to the Regulations.

[101] I also find that this breach of the Regulations was technical. I find on the evidence that the prison authorities would permit the plaintiff to screen the front of his cell when using the lavatory so long as he took it down afterwards.

[102] In terms of s 23(5), I accept that respect for the inherent dignity of a prisoner requires the prison authorities to grant what reasonable privacy can be granted. This is particularly so when a prisoner needs to urinate or defecate. However, I find that the prison authorities did go to a reasonable extent in this regard. They permitted the plaintiff, and the other prisoners, to screen the fronts of their cells at such times, by using blankets or towels.

[103] I do not accept that the plaintiff was entitled, on any basis, to screen himself from view of prison officers at all times.

[104] There is no breach of s 23(5) in the plaintiff’s treatment in this regard.

(e) Not provided with opportunity for constructive use of time

[105] Section 50 of the Act requires the chief executive to ensure that, as far as is practicable, every prisoner is provided with an opportunity to make constructive use of his time in prison. A prisoner cannot be forced to vegetate. It would, in addition,

be a clear breach of s 23(5) if he were. In D Block, I accept that the facilities for making constructive use of time were limited. There is a limited library service, prisoners can have their own TV sets and stereos, there are bare recreation rooms (and one with some rudimentary exercise equipment) and there is access to a bare yard. Ironically, the plaintiff’s most constructive use of his time was engaging in this litigation. I accept the evidence that he would often prefer to remain in his cell working on this litigation.

[106] Another way in which a prisoner can use his time constructively is to engage in rehabilitation programmes. The plaintiff refused to do so.

[107] The evidence is, further, that it is intended that prisoners work their way to lesser security classifications within as short a time as possible. One of the inducements for prisoners to leave maximum security status is the greater opportunity for constructive use of time.

[108] I find that the plaintiff had as much opportunity to use his time constructively as any other prisoner in D Block. I accept that the choices are limited, but that is largely a result of their maximum security status. I do not find a breach of the Act or Regulations and I do not find a breach of s 23(5) of the NZBORA.

(f) Unhygienic conditions

[109] The evidence is that food was placed on the floor. I accept that the floor was unhygienic. Floors, of course, are usually unhygienic, but in D Block this was made worse by communal mops and buckets and by the occasional floods caused by prisoners blocking hand basins or lavatories. Nevertheless, I find no action by prison authorities which directly threatened the plaintiff’s health. Food was either in appropriate receptacles which shielded it from contact with the floor or (for example, with fruit) it could be washed. The plaintiff in his cell had a hand basin with running

water. There is no evidence that the plaintiff’s health in all the time that he was in

D Block suffered as a result of his confinement there.³⁹

[110] Further, there is evidence that prison staff would take reasonable action to address complaints. On 29 September 2011, the plaintiff filled out a PCO1 complaint form as follows:⁴⁰

A. I wish to make a Complaint about:

Placing my breakfast on a contaminated floor when the officers were asked to put it through the slot.

Subjecting inmates to degrading treatment Health and Safety

Breach section 23(5) of the NZBORA 1990 Universal Declaration of

Human Rights Article 5.

[111] The “action taken” box on the form records the prison authorities’ response:

The prisoner was given another breakfast. This is an isolated incident and the staff have been spoken to about it.

[112] I do not find a breach of the Act or Regulations and I do not find a breach of s 23(5) of the NZBORA.

(g) Visitor unlawfully turned away

[113] On 22 January 2012, a private visitor came to the prison to see the plaintiff. She was turned away. On 8 February 2012, the plaintiff gave prison authorities a complaint form regarding this incident.

[114] The procedure for private visitors is set out in the Regulations. First, in the absence of exceptional circumstances, the visit must be approved by the prison

_{authorities at least a day in advance. A private visitor who does not have such prior}

39. I note that Ronald Young J in Taunoa (2004) 7 HRNZ 379 (HC) at [144] accepted the essence of prisoners’ complaints that the system operating to clean cells was unhygienic, and was one of the factors that led him to conclude that the BMR regime breached s 23(5). He had detailed evidence. I do not know if practices have improved since then. Mr Toia, in his cross- examination of Mr Ellis-Kirifi, concentrated on conditions after flooding. My overall finding from that cross-examination is that Mr Toia was justified in being indignant that food slots were not used as a matter of course, but that the prison officers did not consider their practice in serving food to be a hygiene issue.

⁴⁰ Common bundle of documents, volume 5, at 2641.

approval must be denied entry to the prison.⁴¹ Second, each prison must have a system in place by which private visitors may apply for approval to visit.⁴²

[115] The Auckland prison system was described by Mr Ellis-Kirifi in his brief of evidence:⁴³

18. In the first phase, the prisoner must arrange for any person he wishes to visit him to obtain pre-approval. At the relevant time, this involved the following steps:

18.1 The prisoner sends his visitor a Visitor Application Form;

18.2 The visitor completes the form and posts it to the prison; and

18.3 If approved, the Prison Manager will sign Visitor Application Form and have it sent to the visitor. A copy of the approval letter is also sent to the prisoner.

19. In the second phase, a prisoner is required to schedule particular visits. This involves four steps:

19.1 The prisoner must advise unit staff that he wishes to have a prisoner visit him on a specified date and time. The available times are dictated by the unit the prisoner is in. In D Block, visits were to be arranged on Sundays.

19.2 Staff enter the details of the intended visit into the Department of Corrections’ Inmate and Offender Management System (IOMS).

19.3 Once these details have been entered, unit staff post the visitor pass (completed by the prisoner) to the visitor.

19.4 Each Sunday, D Block staff would print out a list of visitors scheduled for that day. When the visitor arrives, he or she is expected to present a visitor pass and photo identification to staff at the prison entrance. Where a visitor has an incomplete pass (or no pass at all), standard practice is for staff to check either the printed list or IOMS and/or contact unit staff before refusing access to the prison. If the visit has been registered in IOMS, the visitor would not ordinarily be turned away even if they do not have a pass.

[116] Mr Ellis-Kirifi went on to say that he investigated the plaintiff’s complaint

_{and confirmed that the visitor was on the approved visitor list, but that she was not}

⁴¹ _{Corrections Regulations 2005, reg 99(2).}

⁴² _{Regulation 100.}

⁴³ Brief of evidence in chief of Uila Ellis-Kirifi, dated 23 July 2013.

recorded on the day in question as being booked to see the plaintiff. Mr Ellis-Kirifi talked to unit staff, but no-one recalled the plaintiff handing in a visit form request.

[117] Mr Ellis-Kirifi said that on 17 February 2012 he interviewed the plaintiff:⁴⁴

He told me that he had sent the visit form directly to the visitor, without notifying unit staff. This explained why staff were unaware that he was expecting a visitor that day. It also explained why his visitor would have been turned away. Because her visit had not been scheduled in advance through IOMS, her name would not have been on the list provided to staff at the gate, and so she would have been refused entry.

[118] The plaintiff cross-examined Mr Ellis-Kirifi extensively on this issue. His proposition was that he had followed procedure but that the visit had not been entered by prison staff onto the prison computer system (IOMS). Mr Ellis-Kirifi accepted that this failure was the fault of the prison staff.⁴⁵ His explanation was that the visitor pass might not have been noticed by staff in the outgoing letter. He said it helps for prisoners to draw the attention of staff to the inclusion of a pass when

handing over a letter to be posted.

[119] I find no evidence that the visitor was turned away by prison authorities out of a desire to spite or harass the plaintiff. The evidence is that there could have been a number of reasons why a visitor request could, through inadvertence, fail to be entered into the prison computer system. I do not find on the balance of probabilities that anything other than inadvertence was the reason for the visitor being turned away. I note that this is an isolated complaint.

[120] I do not find a breach of the Act or Regulations, nor a breach of s 23(5).

(h) Failure to action complaints

[121] The plaintiff claims that his complaints were not actioned.

[122] Subpart 6 of the Act and Part 12 of the Regulations regulate the making of complaints by prisoners. Whenever a prisoner arrives in prison the Corrections

_{Department is required to give that prisoner, within 24 hours, a description of the}

⁴⁴ _{At [22].}

⁴⁵ Notes of evidence, at 365.

complaints system operating at the prison and the contact details of the Ombudsmen and Inspector of Corrections.⁴⁶ Complaints to a manager of the prison or a controlling officer of the prison must be made by the prisoner in writing.⁴⁷ Staff members are required to provide reasonable assistance to someone who wishes to make a complaint.⁴⁸ If an individual makes a complaint, staff members are required to give written notice of the receipt of that complaint within five working days.⁴⁹ A manager of a prison or a controlling officer can refuse to investigate a complaint if they deem it to be frivolous or vexatious.⁵⁰ However, if such a decision is made, the complainant must be promptly notified in writing of that decision.⁵¹

[123] Complainants are required to be regularly informed of the progress of their complaint. Every manager and controlling officer must ensure that any person who has made a complaint is provided with an opportunity for an interview within

10 working days of the complaint being made if the complainant so wishes and with opportunity for a support person to be present.⁵² The complainant must be notified at monthly intervals in writing, and if practicable orally, on what progress is being made in investigating and dealing with the complaint.⁵³ The person must be notified in writing, and if practicable orally, of the outcome of the complaint once any investigation has been concluded and a decision made, including any decision made by the Department as a consequence of the complaint and any actions to be taken in response to the complaint, agreed by the Department and the complainant.⁵⁴ Under reg 166 the prison is required to ensure its complaints processes are auditable and that they comply with the process set out in reg 165.⁵⁵

[124] The plaintiff made many complaints. In the materials provided to me are

approximately 190 “PC01” (Prisoner Complaint Form 01) complaint forms dated in the period 2009-2012. Subjects of complaint include:

⁴⁶ _{Corrections Regulations 2005, reg 159(1).}

⁴⁷ _{Regulation 160.}

⁴⁸ _{Regulation 161.}

⁴⁹ _{Regulation 162.}

⁵⁰ _{Regulation 163(a).}

⁵¹ _{Regulation 163(b).}

⁵² _{Regulation 165(1)(a).}

⁵³ _{Regulation 165(1)(b).}

⁵⁴ _{Regulation 165(1)(c).}

⁵⁵ Regulation 166.

Lost property (particularly property going missing during cell transfers)

Toothpaste being withheld

Clothing entitlements

Laundry

Poor hygiene conditions

Complaints not being actioned

Not receiving interviews with the Inspector

_{Mail not being posted}

[125] I cannot deduce from the evidence whether the plaintiff received written notice of the receipt of each of his complaints as required by reg 162. However, all the PCO1 forms (discounting duplicates) contain information as to the action taken to address the complaints. Many refer to interviews with the plaintiff resulting from receipt of the complaint. Almost all are annotated “refused to sign” (referring to the plaintiff) in the “action taken” box.

[126] It seems that because of repeated complaints on the same subject, prison staff grouped them for investigation and response. For example, in an internal memorandum dated 6 October 2011,⁵⁶ the plaintiff’s lost property claims are addressed, with the stated purpose being to provide a “full report of the investigation into prisoner Toia’s lost property claims”. The report shows staff members were interviewed and the plaintiff’s property list was checked.

[127] There is no evidence that the plaintiff was given any notices pursuant to reg 163 informing him that any of his complaints were considered frivolous or vexatious.

[128] My conclusion is that there was substantial compliance by prison staff with the complaints process. It is clear that the plaintiff’s many complaints were responded to. Investigations occurred, the plaintiff was interviewed and he was

_{given written responses to his complaints. Where he disagreed with the responses}

⁵⁶ Common bundle of documents, volume 5, at 2651.

and renewed the complaints he was repeatedly reminded of his rights to see an

Inspector or complain to the Ombudsmen. He actively asserted those rights.

[129] The plaintiff has not proved, on the balance of probabilities, that his right to make effective use of the prison complaints system was denied to him.

(i) Removing and failing to account for personal property

[130] The plaintiff contends that pottles of fruit and other minor items of personal property were removed from his cell and not properly accounted for. That might well be right. The evidence called by the defendants on this point did not answer satisfactorily all the allegations made by the plaintiff. However, I regard this issue as being trivial. There is no evidence of any systematic repetition of this sort of action by prison authorities directed to the plaintiff. There is nothing which points to this being other than (on the balance of probabilities) a failure on occasion to follow mandated procedure. I find no support for the plaintiff’s allegations of theft by prison officers. Accordingly, I find no breach of s 23(5) or any actionable breach of the Act or Regulations.

(j) Denial of access to justice

[131] Initially I thought that this complaint was that a corrections inspector had wrongly walked out of an interview with the plaintiff, having wrongly denied the plaintiff access to a support person. In other words, that the plaintiff had been wrongly denied effective access to the prison complaint system. I was reinforced in this view by the plaintiff’s evidence-in-chief⁵⁷ and by the corrections inspector’s (Mr Morrison’s) brief of evidence. However, during cross-examination of Mr Morrison and in evidence given when he was later re-called, a slightly different picture emerged.

[132] To give context, I give a brief description of the role of a corrections inspector. Section 28 of the Act provides for the appointment of inspectors of

_{corrections. Their powers and functions are set out in s 29. They include the powers}

⁵⁷ See, for example, notes of evidence at 14-16.

and functions related to the corrections complaints system enacted in subpart 6 of the

Act.

[133] Essentially, the inspectors are an authoritative part of a system to enable complaints by prisoners to be dealt with formally, internally, fairly, effectively and promptly.⁵⁸

[134] Prisoners have the right, through the complaints process, to request at any time, assistance from an inspector or the Office of the Ombudsman. Inspectors have wide powers to investigate complaints, and obligations consistent with ensuring that a complainant is accorded natural justice (such as informing the complainant, promptly, of the investigation’s outcome).

[135] The powers of the Ombudsman extend to prisoners. Section 160 of the Act requires there to be a protocol to ensure that Ombudsmen can exercise their powers effectively when considering complaints received from prisoners.

[136] In this case, the plaintiff had on 14 September 2011 given to the prison staff a form, known as a PC01, in which he requested an interview with an Ombudsman about a number of matters. The principal matter was apparently his complaint that he lacked adequate facilities to prepare his litigation.⁵⁹

[137] On 15 September 2011, the details of the request were entered by prison staff on a related form⁶⁰ and apparently entered into the prison computer system.

[138] Around the same time, the plaintiff lodged another PC01 asking to see an inspector about other complaints he had.⁶¹

[139] When Mr Morrison arrived at the prison on 20 September 2011, he was told by prison staff that the plaintiff was on his list of prisoners to be interviewed and that the plaintiff’s complaint related to the refusal by prison authorities to give him

_{access to computer facilities for use in his litigation. Mr Morrison did not see either}

⁵⁸ _{Corrections Act 2004, s 152.}

⁵⁹ _{Common bundle of documents, volume 5, at 2602.}

⁶⁰ _{At 2603.}

⁶¹ At 2613.

of the PC01s referred to above; so he was unaware that the plaintiff had asked to see an Ombudsman about this matter, and he was unaware that the plaintiff had asked to see him about unrelated matters.

[140] In the event, the different expectations of the plaintiff and Mr Morrison as to the subject of the interview were not discovered at the time. At the outset of the interview, Mr Morrison denied the plaintiff’s request to have Mr Arthur Taylor present as a support person. The plaintiff then flew into a rage, becoming abusive and aggressive. Mr Morrison ended the interview abruptly. He later wrote to the plaintiff saying he had investigated the (litigation support) complaint and had decided that the prison authorities had acted fairly and reasonably.

[141] Against this fact picture, the plaintiff’s complaint shifted focus to one of denial of access to an Ombudsman because of wrongful intervention by Mr Morrison.⁶² In the plaintiff’s submission (effectively), Mr Morrison should not have intervened and, because he did so, the plaintiff’s attempt to gain access to a computer for the purpose of advancing his litigation was ended.

[142] The defendants’ response is that the intervention was inadvertent (Mr Morrison did not know the request was addressed to the Office of the Ombudsman) and that there was nothing stopping the plaintiff from contacting the Ombudsman. An 0800 number is available for prisoners to use, quite apart from the written complaint process.

[143] It is clear that the prison authorities made errors. They referred Mr Morrison, orally, to a complaint which was not his to resolve. They failed to refer him to the complaint which was his to resolve. Mr Morrison, who knew all about the PC01 complaint system, should have – as a matter of course – looked at the PC01 forms. Had he done so then there would have been no misunderstanding and he would not have gone on to investigate and determine the wrong complaint.

[144] Equally, had the plaintiff not become enraged and abusive, the misunderstanding would have been quickly identified.

⁶² Notes of evidence, at 295-302.

[145] Accordingly, I find there was a breach of the prison complaint system by the defendants. But it was a technical breach. It did not cut the plaintiff off from the Ombudsman. He learned, because Mr Morrison wrote to him, that Mr Morrison had taken it on himself to resolve the complaint he had addressed to the Ombudsman. He then renewed the complaint to the Ombudsman, which was responded to by letter

dated 3 November 2011.⁶³

[146] This was a single incident. There is no evidence that it stemmed from anything other than genuine error.

[147] I conclude that there was no actionable breach of the prison complaints

system. There was no breach of the plaintiff’s right to natural justice.

[148] For completeness, I record that in reaching this conclusion I considered the denial of the plaintiff’s request to have Mr Taylor as a support person. The plaintiff’s submission is that this request was made to the prison authorities (who did not comply with it) and to Mr Morrison.

[149] Regulation 165(1)(a) requires a prison manager to provide a complainant with an opportunity for an interview within 10 working days of the date of the complaint. The opportunity extends to having a support person present. This is in the context of a prison manager’s obligations to action complaints and does not apply to visits by corrections inspectors.

[150] According to Mr Morrison,⁶⁴ the purpose of a support person is set out in the document dealing with the prisoner complaint process. It extends to assisting the prisoner “in responding and presenting the prisoner’s complaint”. I am unsure whether this applies to interviews with inspectors. Mr Morrison’s evidence was that inspectors allow interpreters to be present, but that was not necessary in the plaintiff’s case. Further, the plaintiff was, at the time, on directed segregation and not allowed to associate with other prisoners. Therefore, Mr Taylor could not be a

_{support person. Mr Morrison’s position was that the plaintiff had already presented}

⁶³ _{Common bundle of documents, volume 5, at 2703.}

⁶⁴ Brief of evidence in chief of David William Roche Morrison, at [8].

his complaint to the prison authorities and so there was neither grounds for having a support person (let alone another prisoner) nor a need for one.

[151] In my view, a right to a support person as prescribed by reg 165(1)(a) for the purposes related by Mr Morrison is necessary when a prisoner is being interviewed by prison authorities following the making of a complaint. There is no evidence before me that this right extends to an interview with a corrections inspector. On first principles, and having regard to the powers and duties of an inspector, it should be for an inspector to assess, in each case, what assistance a prisoner might require. For example, a poor command of English would probably mean that an interpreter is required. The end point is that an inspector must ensure that a prisoner has an effective opportunity to make proper use of the interview.

[152] Even if a prisoner has a right, in all cases, to have a support person present at an interview with an inspector, that cannot extend to having anyone the prisoner chooses in that role. In my view, Mr Taylor was not available to the plaintiff as a support person at the interview with Mr Morrison because Mr Taylor was also a prisoner and the plaintiff was on directed segregation.

(k) Sex discrimination

[153] This cause of action arises from the fact that under the system adopted by the prison authorities for determining security status, a male requires fewer points to be classified as a maximum security prisoner than a female.

[154] Section 19(1) of the NZBORA provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. The prohibited grounds of discrimination contained in s 21 of the Human Rights Act include discrimination on the ground of sex.

[155] Section 47(1) of the Act requires that a prisoner sentenced to more than three months be assigned a security classification that reflects the level of risk posed by that prisoner. The classification must be undertaken in the prescribed manner and reviewed (unless an exemption has been granted) at least six monthly or whenever

there is a significant change in the prisoner’s circumstances. Section 48 provides

(inter alia) for a prisoner to apply to have his security classification reviewed.

[156] Part 5 of the Regulations addresses the principles and practice of assigning security classifications. They do not refer to the sex of a prisoner. Regulation 44(1) provides:

A prisoner should be assigned the lowest level of security classification at which the prisoner can safely and securely be managed given the assessment of the level of risk posed by a prisoner.

[157] The assessment of risk is dealt with by reg 45:

Any staff member conducting an assessment under section 47(1) of the Act of the level of risk posed by a prisoner for the purposes of undertaking a security classification, must take into account—

(a) the seriousness of the offence for which the prisoner is serving a sentence of imprisonment or, in the case of a prisoner serving sentences of imprisonment for 2 or more offences, the seriousness of the most serious of those offences:

(b) the duration of the sentence or sentences being served by the prisoner:

(c) any history of escapes or attempted escapes from custody by the prisoner:

(d) any history of violent behaviour by the prisoner: (e) any history of mental ill health:

(f) whether the prisoner is awaiting trial or sentencing on any further charges and, if so, the nature of those charges:

(g) any additional matter specified in writing by the chief executive as a matter to be taken into account in conducting a risk assessment under section 47(1) of the Act.

[158] Ms SP Kennedy, Chief Policy Adviser at the Department of Corrections, gave evidence on this topic. There are five security classification regimes. The Prison Operations Manual contains the procedures to be followed. Risk is assessed using a points system. There are different forms used for male and female prisoners. A male prisoner, on initial assessment, will be classified for maximum security if his score is

36 points or more. By contrast, a female prisoner will be classified for maximum security if her score is 50 points or more.

[159] Ms Kennedy’s evidence on the disparity is:⁶⁵

25. The paper on security classification for women highlighted the following points:

25.1 The Department’s own experience (supported by international research) showed that female prisoners pose less internal and external risk than men, so lower security classifications are justified for women generally.

25.2 At any one time, there would generally only be two or three sentenced women who were being managed as though they were maximum security prisoners. Those women were being managed by frequent use of directed segregation and higher levels of staffing, in a regime similar to that provided for maximum security male prisoners. Accordingly, while it was clear that some female prisoners were just as dangerous as any male maximum security prisoner, it became clear that the numbers of dangerous female prisoners were extremely low. By comparison, the male maximum security muster is usually 90-100 at any one time.

26. It became clear that in order to properly identify the risk that these dangerous female prisoners presented to staff, they should be classified as maximum security. The classification would allow management decisions to be taken with regard to those prisoners with the best information available about the risks presented by them. For example, a female prisoner classified as “maximum security” would generally require a higher staff-to-prisoner ratio for escort than a female prisoner on a lower classification.

27. The research showed that although similar factors should be taken into consideration when assessing the risk posed by male and female prisoners, the weighting accorded to those factors should be tailored differently according to gender.

28. Accordingly, the classification system for women places a lower weighting on dishonesty and drug offending (when assessing internal risk) because those offences are very common among female prisoners. Similarly, the women’s classification system does not include the risk of sexual reoffending, as that factor is less relevant for female prisoners. The research also found that while female prisoners are generally less compliant and can be involved in misconduct more often than men, they are generally less violent when they are involved with staff or other prisoners.

29. Further, while female prisoners are more likely to be involved in incidents, they are also less likely to be involved in serious incidents, and a much smaller proportion of female prisoners pose a serious risk to staff and other prisoners.

⁶⁵ Brief of evidence in chief of Suzanne Patricia Kennedy, dated 24 July 2013.

30. The internal risk assessment for female prisoners (on review) considers two additional factors that the male classification system does not. If a female prisoner:

30.1 Has been involved in two or more serious misconducts over the past six months, or

30.2 Has made frequent serious threats against staff or prisoners and has been on a s 58 segregation at least once in the past six months,

then that female prisoner will be classified as maximum security. As with all classifications, if the system suggests a classification that the Prison Manager feels is inappropriate, the Prison Manager may override the classification. Those factors do not exist as separate considerations for male prisoners but would be simply considered “in the mix” of the men’s classification system.

31. In this way, the female prisoner security classification system more closely targets those female prisoners who are likely to be seriously disruptive and/or dangerous. Because of their behavioural differences, female and male prisoners are treated differently in this way, but that does not mean that female prisoners are treated more lightly in every area: in fact, these factors show that female prisoners can attract an automatic maximum security classification in circumstances where a male prisoner might not.

32. To resolve this problem, the thresholds for each classification are higher for women than for men. A woman scoring 50 points is considered to pose the same level of risk to staff, prisoners and the public as a man who scores 33 points. As a result, a man scoring 33 points and a woman scoring 50 points need to be supervised with the same restrictions and level of control to successfully manage the serious risk they pose.

33. If the point thresholds were equal with both men and women being classified maximum at 33 points, women scoring between 33 and 49 would be supervised in a way that was more restrictive than necessary to manage their risk.

34. The classification of prisoners who pose a serious risk to the public, staff and other prisoners applies regardless of gender. For both men and women, only those prisoners who pose the same level of serious risk are classified as maximum security.

[160] The right to be free from discrimination by reason of sex does not equate to a right to be treated identically. As Tipping J held in Quilter v Attorney-General:⁶⁶

The essence of discrimination lies in difference of treatment in comparable circumstances. For discrimination to occur one person or group of persons must be treated differently from another person or group of persons. Of

⁶⁶ Quilter v Attorney-General [1998] 1 NZLR 523 (CA), at 573.

course difference of treatment will not necessarily in itself amount to discrimination; and not all discrimination will be unlawful.

[161] The purpose of assigning a security classification to a prisoner is to reflect the level of risk posed by the prisoner. In all assessments, the focus is on risk.

[162] I find myself in agreement with the submission of Mr Carter for the defendants:⁶⁷

Overall, male and female prisoners are treated the same in carrying out security classifications because the points system aims to make an initial assessment of the level of risk to staff, prisoners and the public presented by male and female prisoners and the risk level will be approximately the same for a male assessed at 33 points and a female assessed at 50 points. Again, the comparator group to be compared to the affected group occupied by the plaintiff is not a simplistic male/female comparison. Rather the comparator group here is female prisoners who present the same level of risk as male prisoners, with that risk level leading to the assignment of a corresponding security classification under the points system, subject to the discretion of the Prison Manager or Chief Executive. Again, there is no differential treatment in respect of persons in comparable circumstances.

[163] I conclude that in applying a risk assessment model which assigns different points to male and female prisoners, the right of the plaintiff to be free from discrimination on the ground of sex has not been breached. If I am wrong in this, then I would hold, without hesitation, that such a breach would be a reasonable limit and demonstrably justified, pursuant to s 5 of the NZBORA.

(l) Denial of litigation resources

[164] The plaintiff’s complaint relates to denial of resources (particularly, access to

a computer) to assist him with this litigation.

[165] The plaintiff’s rights in relation to the conduct of criminal litigation do not

apply.⁶⁸

[166] There is no human right to have facilitated access to the resources required to undertake civil litigation. The plaintiff, of course, could have applied for legal aid

⁶⁷ _{Defendants’ closing submissions, dated 20 August 2013, at [126].}

68. New Zealand Bill of Rights Act 1990, s 24(f) gives an individual right to receive legal assistance without cost if the interests of justice so require if that individual has been charged with an offence.

and, if his case was assessed as having merit, no doubt it would have been granted. Once granted, he would have had the benefit of counsel and the resources to which counsel had access. However, the plaintiff did not want the support of counsel and chose not to apply for legal aid.

[167] Notwithstanding this, I consider that it would be an unjustifiable limitation on the prisoner’s right to carry on his affairs to prevent him from conducting a civil litigation. I have little doubt at all that it would be a breach of s 27(3) of the NZBORA⁶⁹ if the prison authorities were to prevent a prisoner from taking to the Court allegations that the prison authorities were breaching his rights. But that is a different thing from requiring the prison authorities to provide a prisoner with the same or similar facilities that he would have if he were not a prisoner. A prisoner

must not be prevented from conducting a civil litigation, but the facilities provided must be consistent with the proper management of the prisoner within his prison environment. Where a prisoner is a maximum security prisoner then that status within the prison environment is likely to mean more constraints than would be the case if he were a minimum security prisoner.

[168] In this case, the evidence for the defendants was to the effect that it was not necessary for the plaintiff to have access to a computer (because, having checked, they knew the Court would accept handwritten documents). Further, the plaintiff had said he lacked the skills to prepare and format documents using a computer.

[169] The plaintiff hotly denied that he told anyone that he lacked computer skills. However, he did not give details of how he would have used a computer had he been given access to one.

[170] In the event, the plaintiff was provided with writing materials sufficient to enable him to make his case. He was provided with the ability to correspond with the Court, to participate in the pre-trial management process and to appear, via AVL,

_{to represent himself at the actual hearing.}

69. “Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals”.

[171] I find no breach of the Act or Regulations. I see no breach of s 23(5).

Decision

[172] The evidence establishes that the plaintiff was a difficult prisoner to manage. He challenged the ability of the prison authorities to keep the plaintiff and others safe, to maintain good order and management, and to react professionally to his provocative behaviour.

[173] This case, to a large extent, has examined whether the prison authorities, in meeting these challenges, did so in compliance with the Act and the Regulations, and while respecting the plaintiff’s rights as a human being.

[174] I find:

(a) In subjecting the plaintiff to the ARU regime of non-association with other prisoners while he was held there, the defendants breached the segregation sections of the Act.

(b) The absence of a privacy screen while the plaintiff was in D Block, in the absence of evidence that the provision of such a screen would be inconsistent with safe custodial management, breached reg 67(2) of the Regulations.

(c) The intervention by Mr Morrison in the complaint by the plaintiff to the Ombudsman breached the plaintiff’s right to have that complaint referred to the Ombudsman.

[175] I find no breach of the plaintiff’s rights under the NZBORA.

[176] These findings do not mean that I do not have other concerns about the way the plaintiff was treated:

(a) His transfer to the Tie-Down Room when other ARU cells were available was a questionable decision. The evidence of Ms Mikaere

as to the reason was left to stand and on the balance of probabilities I accept it. However, if the plaintiff’s incarceration there had been longer than a few days then a better reason would have been needed to forestall a finding of extra-judicial punishment and/or a breach of s 23(5).

(b) The conditions in D Block are primitive. I understand the plaintiff’s concerns about hygiene. I share the views expressed by Mr Taylor as to the utility of bare rooms for recreation. I doubt whether, overall, the spirit of the UN Minimum Standards for Treatment of Prisoners was being observed in D Block. I was not called upon by the plaintiff, and had insufficient evidence, to determine whether the D Block conditions actually comply with the minimum standards and,

if not, what that would mean in terms of domestic law.⁷⁰

(c) The plaintiff sued the authorities responsible for the conditions of his imprisonment. They did not allow him access to a computer. That was not an actionable wrong, but there might come a case where it is. For example, if the case is of a complexity where managing documents and producing meaningful submissions realistically requires a computer. I recommend that the Department of Corrections establishes a policy and rules for providing or permitting resources to support prisoners engaged in civil litigation.

Remedy

[177] The Court of Appeal in Vogel noted:⁷¹

As was said by Richardson J in Martin v Tauranga District Court the remedies for breach of the Act should be directed to the values underlying the particular right that has been breached, the remedy granted should be proportional to the breach and other aspects of the public interest should be taken into account.

70. I note Ronald Young J’s comment in Taunoa (above n 39) at [281] that failures by a New Zealand prison to comply with UN minimum standards does not mean that illegality or unlawfulness follows.

⁷¹ At [78] (Footnote omitted).

[178] In this case, only the breaches of the Act resulting from the plaintiff’s de facto segregation in the ARU are significant. The other two breaches are technical, did the plaintiff no harm and do not warrant remedy.

[179] The opportunity to associate with other prisoners is important. It cannot be denied except under the careful circumstances prescribed by the Act. Even when those circumstances exist, conditions must be maintained where practicable. The reason is obvious. Segregation has the real potential to be psychologically harmful.

[180] Here, the plaintiff suffered no harm from his de facto segregation. Further, I have found that the defendants did not transfer the plaintiff to the ARU as a punishment, had the right to confine him in ARU cells and had proper motives for doing so. The physical amenities in the ARU cells did not breach the plaintiff’s minimum entitlements.

[181] Under these circumstances (and putting to one side the Prisoners’ and

Victims’ Claims Act 2005) an award of monetary damages is inappropriate.

[182] However, given the importance of the right breached there should be a declaration. The purpose is to vindicate the right and to emphasise to the defendants the need to comply with it.

Declaration

[183] I make a declaration that applying the ARU regime to the plaintiff while he was confined in the ARU for the period referred to herein was in breach of s 57 of the Corrections Act 2004.

Costs

[184] The plaintiff is entitled to costs. As a self-represented litigant, these will be limited to actual disbursements, if any, and can be fixed by the Registrar.

Addendum

[185] I have set out this judgment as though the plaintiff pleaded his case in the way I have approached it. In fact, he did not. The plaintiff (with Mr Taylor’s help, I infer) filed a lengthy amended statement of claim in which he set out his case and the law on which he relied. It was not, of course, drafted with the precision that would be expected of counsel.

[186] During the pre-trial case management process, the plaintiff proved incapable of defining issues with more precision. In the end, I had the defendants produce a list of issues for determination at trial and directed the plaintiff to annotate the list with agreement or comment. He did not do so to any useful extent. The defendants approached the hearing on the not unreasonable basis that these were the issues they had to address in evidence. Inevitably, more issues arose during the oral testimony phase of the case.

[187] I decided that I should deal with all of the issues raised by the plaintiff because the interests of justice require it. Prisoners are particularly vulnerable to the coercive power of the State and when considering allegations that the power has been misused the Court should not put procedure before justice. I was satisfied that the defendants had, through the procedure adopted at the hearing, sufficient opportunity to respond to all issues.

[188] The formal causes of action in the amended statement of claim were breaches of rights under the NZBORA (s 9, s 19, s 23(5), s 24(d) and (f), s 27(1)); breach of Article 30 of the Universal Declaration of Human Rights; negligence and breach of statutory duty. I have discussed the causes of action, and the particulars pleaded, which I consider relevant to the evidence put before me. For completeness, I refer to three pleadings (which I have classified as particulars of a cause of action) because they were raised or mentioned in evidence. I will not address the others. They are interrelated and cannot succeed.

No contact visits

[189] The plaintiff pleads that he was detained in D Block in unlawful conditions. At 3.21 he gives this particular:

No contact visitation with his private visitors. Female prisoners classified the same (maximum security) as the plaintiff are permitted contact visits with their private visitors.

[190] The plaintiff gave no evidence on this point.

[191] Mr Taylor gave no relevant evidence on this point.

[192] The defendants called some limited evidence to the effect summarised in their closing submissions:⁷²

Contact visits for maximum security women and maximum security men arises from application of a single policy standard but different outcomes due to security factors (male prisoners in East Division regardless of security classification not permitted contact visits due to contraband smuggled into prison).

[193] I concluded that the plaintiff had not proved this allegation.

No sunlight

[194] At 3.23, a further particular of detention in unlawful conditions is pleaded:

No access to direct sunlight. All female prisoners classed (maximum security) have access to direct sunlight.

[195] The only evidence on this point given by the plaintiff was in cross- examination.⁷³ He acknowledged that the D Block landings and the yard get sunlight.

_{[196] I concluded that the plaintiff had not proved this allegation.}

⁷² _{Defendants’ closing submissions, above n 66, at [71].}

⁷³ Notes of evidence, at 42.

Confinement with mentally unwell prisoners

[197] From 3.28 to 3.30 this particular of detention in unlawful conditions is pleaded:

3.28 Some of the prisoners the plaintiff is confined with suffer from severe psychological problems, and are mentally impaired and require special treatment for their own health and protection of other prisoners.

3.29 If the defendants complied with the relevant legal requirements and elementary standards of decency and humanity, they would be detained in a facility where they could receive treatment for their mental health issues from appropriately trained staff.

3.30 Because Corrections chooses to detain them with ordinary prisoners and they are in the care of Corrections officers who are not trained to provide the care and treatment they require the plaintiff suffers the consequences, including enhanced stress and anguish.

[198] The plaintiff gave limited evidence of the effects of being exposed to mentally unwell prisoners:⁷⁴

17. Right. Well tell me what the consequences to you were of being detained with people with psychological problems.

A. The fact that I had to listen to all their bleating, Mister. Q. Yes?

A. Yes.

Q. How did that cause you stress and anguish?

1. Well it’s not my problem but they – it’s not my problem. They got medical people to deal with their problem. Why are they coming to me?

Q. Were any of these people –

A. It says no, it’s not my problem.

Q. Were any of these people in the same cell as you?

1. No, no, the – no, you know when they did the – I don’t know what time and all that, Mister, to do their things. That’s when they come to bleat to me about their problems. Like I’ve got enough of my own problems to, to not have time to listen to anybody else’s problems.

⁷⁴ At 27.

[199] Mr Taylor gave some evidence on this point. But in my view he was advancing his cause that conditions in D Block, generally, have not improved since the Taunoa days. As I have said, my focus is on the plaintiff’s complaints and I

_{concluded that the plaintiff had not proved the pleaded particulars.}

Brewer J