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Mitchell v Chief Executive of the Department of Corrections [2017] NZHC 2090 (30 August 2017)

Last Updated: 16 December 2018

JUDGMENT OF THOMAS J

Introduction

[1] Kerryn Mitchell seeks judicial review of a decision about her made by the Prison Director, Arohata Prison, on 22 December 2015 (the Decision).

[2] Ms Mitchell, who at the time was a sentenced prisoner, claims the effect of the Decision was to restrict her access to her legal paperwork and legal resources and was illegal, irrational and conducted with procedural impropriety. She claims the

MITCHELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZHC 2090

[30 August 2017]

consequence of the Decision was to make access to the cell in which her legal papers were stored conditional on her wearing prison issued clothing and, in doing so, the respondents’ actions amounted to a criminal contempt of Court.¹ She claims the Decision also amounted to a breach of s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA), the International Covenant on Civil and Political Rights,² and s 5(1)(b) of the Corrections Act 2004 (the Act) which imports the United Nations Standard Minimum Rules for the Treatment of Prisoners,³ and the Decision was unfair and unreasonable.

[3] By her second cause of action, Ms Mitchell alleges her personal clothing was removed from her for certain periods and this constituted an unreasonable seizure in breach of s 21 of NZBORA.

[4] The respondents say the application should be dismissed because the Decision was lawful and consistent with the Act and the Corrections Regulations 2005 (the Regulations). Any problem with Ms Mitchell having access to her legal papers was a direct result of Ms Mitchell’s refusal to comply with the rule made by the Prison Director at Arohata Prison on 1 March 2014 that prisoners who have been convicted of an offence must wear clothing issued by the Prison (the Rule).⁴ It was at all times Ms Mitchell’s choice as to whether or not she complied with the Rule and had access to her legal papers. Furthermore, it could not be said the respondents were acting in a way calculated to obstruct or interfere with Ms Mitchell’s access to the Court.

[5] The respondents say when the circumstances of removal of Ms Mitchell’s clothing are considered, the fact it was removed from her cell on the dates in question did not amount to a seizure of the property.

1. Mathiesen v Hodges [2014] NZHC 2448 at [2]–[5]. The Crown does not pursue the issue as to whether a private litigant ought to be able to seek a declaration that a criminal contempt has been committed without the involvement of the Solicitor-General.
2. International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
3. United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) GA Res 70/175, A/RES/70/175 (2015).
4. Prison Manager Rule PR02/14, 1 March 2014; issued pursuant to s 33(1) of the Correctison Act2 2004, and reg 68(3) of the Corrections Regulations 2005.

[6] The respondents maintain the issues arose because Ms Mitchell refused to comply with the Rule, the lawfulness of which has already been considered by this Court.⁵ Williams J held the Rule was consistent with the purposes of the Corrections system and not wrong in principle. However, Ms Mitchell’s focus in this case was on the circumstances of the Decision which, she claimed, had the effect of preventing her access to her legal papers.

[7] Ms Mitchell successfully appealed against her sentence. Her sentence was reduced and there are ongoing proceedings concerning her release date. However, at the time of the acts at issue in these proceedings, Ms Mitchell was subject to a sentence of two years and three months’ imprisonment. The fact the term was subsequently reduced after the events at issue makes no difference to these proceedings.

Background facts

[8] On 1 January 2015, Ms Mitchell was remanded in custody at Arohata Prison (the Prison) on 55 charges of attempted breach of a protection order, five charges of breach of a protection order and one charge of attempting to threaten to kill. She was convicted of these charges on 23 November 2015 and, on 2 December 2015, sentenced to two years and three months’ imprisonment.

[9] While on remand in custody between 1 January and 23 November 2015, Ms Mitchell was permitted to possess and wear her own clothing. Once sentenced, however, Ms Mitchell was required to comply with the Rule and wear prison issued clothing when she moved about the Prison. The Rule read:

All Remand, Convicted and Sentenced Prisoners are required to wear prison issue clothing. T shirts must be worn at all times. Track pants legs are not to be rolled up and shorts are not to be rolled from the top.

Remand Accused prisoners are permitted to wear their own clothing. They are not permitted to wear singlet tops or any other top that does not sufficiently cover the upper torso. Track pants legs are not to be rolled up and shorts are not to be rolled from the top. Skirts must be a reasonable length.

Any Prisoner found to be contravening the above rules will be placed on a misconduct report in accordance with section 128(1)(a) of the Corrections Act 2004.

⁵ Mitchell v Chief Executive, Department of Corrections [2015] NZHC 347.

Access to legal documents

[10] During her time in custody, Ms Mitchell was involved in a large number of legal proceedings. In many of them she was self-represented. She had acquired a large volume of legal materials and papers and the Prison decided (and Ms Mitchell does not challenge this) that they could not safely be stored in her cell. The Prison allowed Ms Mitchell to store her legal papers in a vacant cell (Cell 8, Secure Unit) which was in a different wing from Ms Mitchell’s cell in the Tizard Unit. She was to be allowed access to Cell 8 at certain times during the day to work on her legal matters.⁶ There was no difficulty with this while Ms Mitchell was on remand because she was permitted to wear her own clothing. The issue arose once she was convicted and subject to the Rule requiring her to wear prison issued clothing when she moved about the Prison.

[11] On 17 December 2015, two of the Prison residential managers and another Corrections officer met with Ms Mitchell to discuss several issues, including the Rule. Ms Mitchell was reminded of the requirements for a sentenced prisoner and told she could continue to wear her own personal clothing within the Tizard Unit where her cell was located. She was also advised force would not be used to make her wear prison issued clothing but, if she refused to comply with the Rule, her movement around the Prison would be minimised. Ms Mitchell told them she had applied for an injunction regarding the wearing of prison issued clothing. Ms Mitchell was issued with a brand new set of prison clothing. Ms Mitchell declined it, threw it out of her cell and said she would continue to throw prison issued clothing away.

[12] The previous day, Ms Mitchell had filed an application in the Court of Appeal for bail by electronic monitoring (EM bail) pending her appeal against conviction and sentence (the Bail Application). The Bail Application did not provide any grounds in support and, on 17 December, the Court of Appeal registry communicated a message to Ms Mitchell that any further submissions were to be filed in writing as soon as possible.⁷

⁶ And to undertake study via the Correspondence School.

⁷ Mitchell v R [2015] NZCA 634 at [5].

[13] On 21 December 2015, Ms Mitchell filed a memorandum with the Wellington High Court and all the courts in which she had proceedings regarding access to legal materials. In the memorandum she said she had been denied access to the legal documentation she required to undertake her proceedings because access was conditional. She requested the courts to issue a Minute to the Prison Director to cease such behaviour. It appears this memorandum did indeed reach the Court of Appeal because, in the bail decision dated 21 December 2015 (the Bail Decision), Harrison J made reference to Ms Mitchell’s allegation she had been deprived of access to facilities and said:⁸

The attention of the prison authorities is drawn to their statutory obligation to cooperate and make facilities available to prison inmates whenever they are reasonably requested.

[14] The Bail Decision noted the statutory test for granting EM bail and that the onus was on Ms Mitchell to show the test was met.⁹ Noting the application provided no grounds in support and the message on 17 December from the registry to Ms Mitchell, the Bail Decision recorded Ms Mitchell had failed to satisfy her statutory onus and the Bail Application was dismissed.

[15] On 22 December 2015, there was a second meeting with Ms Mitchell and Prison officials following a request Ms Mitchell had made on 16 December by a Prisoner Complaint Form (PC.01). She had requested an urgent meeting with the Prison Director about her management plan in relation to the amount of litigation she had. They discussed Ms Mitchell’s feelings about Prison issued clothing and she explained her fear she would lose her identity if she wore the same clothing as everybody else. The Prison Director, Christopher Burns, says he tried to reason with her, explaining her individuality was not compromised. In his affidavit of 4 April 2016, Mr Burns says:

I reiterated to Ms Mitchell the rule that all sentenced prisoners were required to wear prison-issue clothing and explained the reasons why it was in place. I also repeated to Ms Mitchell that her movement outside of Tizard Wing would be restricted unless she wore the prison-issue clothing.

⁸ At [6].

⁹ At [4].

[16] This is the Decision and what Ms Mitchell refers to in her statement of claim as “a final statutory power of decision”, saying:

The decision was his, and it went like this:

Access to Secure, Cell 8 is conditional on me wearing prison issued clothing.

Seizure of property

[17] By her second cause of action, Ms Mitchell says:

The seizure of the applicant’s personal clothing (personal property) on 2 December 2015, 6 January 2016, 21 January 2016 and 1 February 2016 was illegally irrational and invoked with procedural impropriety. The seizure was unreasonable and was ultra vires the statutory power of the first and second respondents.

[18] At the hearing, Ms Mitchell conceded there were no allegations in relation to 1 February 2016.

[19] 2 December 2015 was the date Ms Mitchell was sentenced and when her status at the Prison changed from being on remand to being a sentenced prisoner.

[20] On 6 January 2016, Ms Mitchell was placed in the Prison’s At Risk Unit following an incident connected with her impending transfer to the Auckland Regional Women’s Corrections Facility (Auckland Women’s Prison). Prison staff believed Ms Mitchell had poured boiling water over her lower arms. The usual practice in the At Risk Unit is for the prisoner’s clothing to be removed and replaced with a tamper- proof gown. However, given the burns on Ms Mitchell’s arms, the staff did not want to remove Ms Mitchell’s clothing for risk of causing further injury. She was initially allowed to remain wearing her own personal clothing. Because she was being moved to Auckland, all of Ms Mitchell’s property in her cell had been packed up and removed so the cell could be used for another prisoner. Ms Mitchell was released from the At Risk Unit on 15 January 2016.

[21] On 21 January 2016, following a disciplinary hearing, Ms Mitchell was sentenced to 10 days’ cell confinement and 35 days’ loss of privileges.

The Decision

[22] My analysis of the Decision will address:

(a) the legality of the Rule;

(b) the Authorised Property Rules and their relationship with the Rule;

(c) further context of the Rule and its impact on Ms Mitchell;

(d) whether Ms Mitchell should have been provided an opportunity to retrieve papers;

(e) the Bail Application; and

(f) contempt of Court.

(a) The legality of the Rule

[23] Section 33 of the Act provides the Chief Executive of the Department of Corrections (the Chief Executive) may authorise prison managers to make rules “appropriate for the management of the prison and for the conduct and safe custody of the prisoners”.¹⁰ The rules must not be inconsistent with the Act, the Sentencing Act 2002 or the Parole Act 2002.¹¹ They must not relate to matters for which rules must or may be made under s 45A of the Act. This relates to rules declaring the items of property with which prisoners may be issued or allowed to keep and is discussed further below.

[24] The Director at the Prison made a suite of rules pursuant to s 33(1) on 1 March 2014. This included the Rule.

[25] Williams J, in Mitchell v Chief Executive, Department of Corrections,¹²
considered a rule to similar effect in respect of the Auckland Women’s Prison. He

¹⁰ Corrections Act 2004, s 33(1).

¹¹ Section 33(5).

¹² Mitchell v Chief Executive, Department of Corrections, above n 5.

concluded the prison issued clothing rule was not wrong in principle and it would be inconsistent with maintaining good order and security to allow a broad range of exceptions to the requirement. He was satisfied it was a reasonable restriction on the right of freedom of expression as protected by s 14 of NZBORA. I will not repeat Williams J’s analysis but I concur with and adopt it.

[26] Williams J also considered the United Nations Standard Minimum Rules for the Treatment of Prisoners, holding they proceed on the basis that prison authorities have discretion to require prisoners to wear prison issued clothing and prisoners will have personal clothing which may not be retained on admission to prison. He found the objectives of the prison clothing regime consistent with ss 5 and 6 of the Act and not inconsistent with NZBORA. I do not propose to revisit those conclusions. As I say, I concur with Williams J’s reasoning and conclusions.

[27] I agree with the respondents’ position that, although exceptions can be made to the Rule, there is not, and there is no need for, an exception for prisoners who simply do not wish to comply with it.

(b) The Authorised Property Rules and their relationship with the Rule

[28] In accordance with the requirement of s 45A(1) of the Act, the Chief Executive has made rules about authorised property (the Authorised Property Rules). Authorised property is defined as property declared by rules made under s 45A as property prisoners may be issued with or allowed to keep.¹³ There is no dispute that clothing is property within the natural and ordinary meaning of the word. Schedule 4 of the Authorised Property Rules sets out requirements related to clothing and specifies a prison director is able to require sentenced and remand convicted prisoners to wear certain items of clothing and footwear provided under reg 68(3) of the Regulations.¹⁴ Notably, there is no obligation on a prison to supply the specified maximum numbers of each item of authorised property and the obligation to provide clothing is to the extent necessary to ensure the prisoner has adequate clothing.¹⁵

¹³ Section 3.

¹⁴ Authorised Property Rules 2015,sch 4, cl 4.1.4.

¹⁵ Schedule 4, cl 4.1.7.

[29] The Authorised Property Rules also provide for a prisoner to be issued with legal papers.¹⁶ This and all the Authorised Property Rules are subject to the general conditions and explanatory notes set out at the start of the rules which notably include:

The fact that an item of property is authorised property does not mean a prisoner has the right to be issued with or allowed to keep, use or wear that property at any time. The issue and use of all property is conditional.

[30] The Rule and the Authorised Property Rules cover different matters. The Rule governs the clothing a prisoner may be required to wear at certain times whereas the Authorised Property Rules govern the items of clothing and other property a prisoner may possess at any point in time.

[31] Ms Mitchell put forward the proposition that the general conditions do not include a condition to the effect that access to legal paperwork is conditional on wearing prison issued clothing. While that is correct, it misses the point that the two sets of rules work together but cover different aspects.

(c) Further context of the Rule and its impact on Ms Mitchell

[32] By her written submissions, Ms Mitchell accepted she and the Prison agreed she should store and use her paperwork in the specially designated and authorised area of Cell 8. This was due to the volume of her paperwork, “for the good order and security of the Prison and any other person”.

[33] While on remand, Ms Mitchell was in a separate wing and, when she needed to access her paperwork, she was escorted between wings and permitted from 8.30 am to 1.00 pm to stay in Cell 8 to work on her various legal matters. In her submissions, Ms Mitchell said, as soon as her status changed on 2 December 2015, the Prison Custodial Support Managers stopped her access to Cell 8. On 18 December, she was given an oral instruction she would be granted access to Cell 8 on the condition she wore prison issued clothing when moving between the wings (Tizard to Secure) and while in Cell 8. If she did not comply with the condition, there would be no access. She advised senior management she would not wear prison issued clothing at all and this was “non-negotiable”.

¹⁶ Schedule 5 cl 5.4(a).

[34] The affidavit evidence from the respondents was that up until 22 December the Prison was taking a “softly softly” approach in relation to enforcing the Rule. It was decided staff would not enforce the requirement that Ms Mitchell wear prison issued clothing immediately but would broach the issue and move to enforcing the requirement over time. This approach was taken due to Ms Mitchell’s history of refusing to wear prison issued clothing at both the Prison and Auckland Women’s Prison, as well as “the fact that Ms Mitchell is a difficult prisoner to manage whose behaviour and conduct can often be challenging”. Ms Mitchell was advised on 17 December 2015 that the requirement “would start to be enforced”. As noted above, she was told force would not be used to make her wear prison issued clothing but, if she refused to comply with the Rule, her movement around the Prison would be minimised.

[35] It is fair to say there was an unfortunate coincidence of events around this time. The respondents’ evidence was that in December 2015 there was a large number of prisoners at the Prison and in particular in the Secure Unit. This required, in any event, a new regime for Ms Mitchell’s access to Cell 8. Indeed Ms Mitchell’s PC.01 dated 12 December 2015 says:

I wish to complain about my lack of access to paperwork in secure cell 8 (on my management plan) due to the Voluntary Segregation ladies moaning. This is putting me behind on court deadlines and I am reliant on snail mail to serve the documents. I have been restricted five days now and I was already behind due to trial (6 days).

[36] The “action taken” dated 17 December 2015 is recorded on the PC.01 as:

Arohata Management are currently completing a schedule for the Secure Unit to enable all Voluntary Protective Custody and Accommodation prisoners to have their entitled regimes and to work prisoner MITCHELL’s access to cell 08 in with this. Prisoner MITCHELL will be advised when a Management Plan is put in place.

[37] And then on 22 December 2015, the further action taken is recorded as:

Arohata Management have completed a schedule for the Secure Unit and prisoner MITCHELL has been informed that she can have access to cell 08, Secure Unit on a daily basis between the hours of 1100 to 1500 hours.

[38] David Kerr became the Residential Manager at the Prison on 18 January 2016. He became aware of Ms Mitchell’s opposition to wearing prison issued clothing and the consequence of her being unable to access other parts of the Prison, except the Health Unit, unless she complied with the Rule. He described Ms Mitchell as “very oppositional in her conduct and response” to the Decision. He said Ms Mitchell did have the opportunity to collect legal materials when she passed the Secure Unit on her way back from visits to the Health Unit. He said:

Given the oppositional nature of Ms Mitchell’s conduct and the additional work and pressure this was having on staff I thought it would be appropriate to look into some sort of compromise where she could access her legal materials in cell 8, Secure unit in her own personal clothing rather than wearing the required prison-issue clothing. Such a compromise was intended to be an extension of the access Ms Mitchell was already being afforded to the Health wing without being required to wear prison issue clothing.

[39] As a result, it was agreed Ms Mitchell would be allowed daily access to Cell 8 between 11.00 am and 3.30 pm in her personal clothing. This compromise was reached on 21 January 2016 and was always subject to Ms Mitchell behaving in a way which made it safe for this to take place.

[40] In fact, the daily access did not start on a regular basis until 27 January 2016 due to Ms Mitchell activating a sprinkler on 21 January, as discussed in more detail below.

(d) Whether Ms Mitchell should have been provided an opportunity to retrieve papers

[41] In her submissions, Ms Mitchell said the denial of access to legal paperwork (even on a one-off basis) was unreasonable. Although not expressly referred to in the statement of claim, she submitted the denial resulted in the loss of chance to persuade the Court of Appeal to grant bail. She said, although she made an informed choice not to wear prison issued clothing and accepted the consequences of that decision, the respondents were unfair and unreasonable when they did not allow her to obtain the documents she needed before enforcing the restriction of access to Cell 8. This, she said, was unreasonable and disproportionate to her fundamental rights guaranteed under NZBORA.
[42] In oral submissions, reference was made to the 40 litre container Ms Mitchell had in her cell which she was able to fill with personal possessions. She said, had she been allowed the opportunity, she could have substituted some items in that container for the legal papers she needed, in particular in connection with the Bail Application.

[43] While there would seem to be some force in that submission, Ms McCall referred to the evidence of Mr Kerr that, on her way back from the Health Unit, Ms Mitchell could have retrieved any papers (something Ms Mitchell disputes). More importantly, Ms McCall referred to the context. Between 12 December 2015 and 21 January 2016, Ms Mitchell lodged 48 PC.01s. These complained not only about her lack of access to paperwork but also approximately 20 of those complaints made requests under the Official Information Act 1982, the Privacy Act 1993, the Criminal Procedure Act 2011, and other legislation. In essence, the requests were for copies of the documents stored in Cell 8.

[44] I accept Ms McCall’s submission that this can be considered as Ms Mitchell using a different mechanism to try and obtain all her papers. The response to the requests was to say Ms Mitchell had all the relevant paperwork stored in Cell 8 and it was as a result of her refusal to comply with the Rule that she was unable to access Cell 8.

[45] Ms Mitchell accepted she inundated the Prison with requests and the Prison would not have been able to tell what was important and what was not. She also accepted there was stress on the Prison staff at the time with the upcoming Christmas break.

[46] The importance of all of this is that, while on its face it would not seem unreasonable for Ms Mitchell to have been given one final opportunity to retrieve certain papers without complying with the Rule, because of the volume and extent of her complaints, the Prison staff would have had no way of knowing which of her requests were in fact urgent and which were simply part of a wider ploy by her to achieve her aims without complying with the Rule.
(e) The Bail Application

[47] Ms Mitchell claims the alleged failure to allow her to access her legal papers adversely affected the Bail Application. The Bail Application was made on 16 December and declined on 21 December, the day prior to the Decision.

[48] There are other problems as far as Ms Mitchell’s claim in this regard is concerned. As Harrison J noted, the application did not provide any grounds in support.

[49] Ms Mitchell herself was surprised at the speed at which the Bail Application was dealt with. She certainly had not envisaged such a fast procedure. She acknowledged it was likely occasioned by the impending Christmas break for the Court of Appeal and the need to deal with any bail issues before Christmas. Ms Mitchell in fact tried to obtain an adjournment.

[50] Ms Mitchell pointed out that in July 2016 she was granted bail by a District Court Judge to the same address as proposed in the Bail Application without the added requirement of electronic monitoring. I do not know the circumstances of Ms Mitchell’s alleged offending at that time and the matters which were relevant to the associated question of bail.

[51] Without being able to say with certainty what the Court of Appeal might have decided had it received further submissions from Ms Mitchell, I note the EM Bail Suitability Report considered the house itself was technically suitable for EM bail but the occupant and Ms Mitchell were not. The occupant was described as having a long criminal history of a fraudulent and dishonest nature. Ms Mitchell was described as having a history of breaching court imposed conditions. EM bail was considered insufficient to ensure the safety of the victim of the offences. This consideration, coupled with the nature of Ms Mitchell’s convictions (60 charges of breaching or attempting to breach a protection order and one of attempting to threaten to kill) together with her criminal history, means the chances of Ms Mitchell being able to discharge the onus on her and satisfy the Court of Appeal on the balance of probabilities it would be in the interests of justice to grant bail were extremely slim.
(f) Contempt of Court

[52] In order fully to deal with Ms Mitchell’s claim, I will put to one side the fact the Decision post-dated the Bail Decision and the difficulties with the Bail Application in any event. Ms Mitchell claims the respondents restricted her access to her legal paperwork and resources, thereby directly obstructing her ability to bring a successful Bail Application in the Court of Appeal and, in doing so, interfered with her civil rights to bring the Bail Application which amounted to an unreasonable search and/or seizure of personal property and met the requirements of contempt of court.

[53] The fundamental problem with Ms Mitchell’s application is it relies on her assertion that she had no other means to obtain the legal paperwork in the timeframe available for the Court. In many instances in her written and oral submissions and in her interactions with the Prison staff, she makes it clear her position on not wearing prison issued clothing was “non-negotiable”. That, however, was Ms Mitchell’s choice. She was a sentenced prisoner and subject to the Rule which was lawfully made and did not provide for an exception where a prisoner simply chose to be non-compliant.

[54] Ms Mitchell relied on the House of Lords decision in Raymond v Honey.¹⁷ That case concerned alleged contempt by a prison governor in intercepting correspondence sent by a prisoner and his decision to stop the prisoner’s application to the High Court in respect of actions of the prison governor. The decision was made on the basis the prison rules required allegations against prison officers to first be investigated within the prison. The House of Lords set out two basic principles. First, any act done which is calculated to obstruct or interfere with the due course of justice or the lawful process of the courts is a contempt of court. Secondly, a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication.

[55] The House of Lords found the decision to stop the correspondence came within the rules lawfully made under the Prison Act 1952 (UK) and was not conduct calculated to obstruct or interfere with the due course of justice or the lawful process

¹⁷ Raymond v Honey [1983] 1 AC 1 (HL).

of the courts. It was not therefore contempt. The action of the prison governor in stopping the application to the High Court, however, was clearly to deny the respondent’s rights of access to the Court and constituted a contempt.

[56] In this case, there was no conduct by the respondents which prevented Ms Mitchell from accessing the courts, as the Bail Application and subsequent communications with the courts confirm. As to whether the respondents’ actions were “calculated to obstruct or interfere with” Ms Mitchell’s access to the courts or the administration of justice, the restrictions on Ms Mitchell’s movements around the Prison were not directed towards her access to the courts but instead towards the safety and security of the Prison. The Rule had nothing to do with access to the courts and Ms Mitchell could have accessed her legal documentation each day between 11.00 am and 3.00 pm provided she complied with the Rule.

[57] The Act and Regulations specifically contemplate the regulation of prisoners’ clothing and the Rule made pursuant to those instruments lawfully restricted Ms Mitchell’s rights and freedoms. Unlike in Raymond v Honey, where the prison governor interfered with the prisoner’s application to the court, in this case Ms Mitchell could have continued to access her legal documents if she had chosen to comply with the Rule.

Seizure of property

[58] This part of the decision addresses the second cause of action whereby Ms Mitchell alleges her personal clothing was removed from her in circumstances which constituted an unreasonable seizure in breach of s 21 of NZBORA.

Ms Mitchell’s complaints

[59] Ms Mitchell’s complaint regarding 2 December 2015 relates to the day of her sentence when she became subject to the Rule. She was required to change out of her court attire. This was in accordance with the Rule.

[60] Ms Mitchell maintains that, when she was returned to the Tizard Unit from the At Risk Unit where she was placed on 6 January 2016, all of her personal property
was not returned to her . The respondents rely on Authorised Property Rule 4.1.7 in saying that Ms Mitchell was not entitled necessarily to receive all of her personal property.

[61] On the morning of 21 January 2016, Ms Mitchell had a hearing before a visiting justice for a charge of behaving in a threatening manner. She was found guilty and her punishment was 35 days’ loss of privileges and 10 days’ cell confinement. Shortly after the hearing Ms Mitchell was moved from her cell in Tizard Unit to Cell 7, Secure Unit to commence her period of cell confinement. She considered the condition of the cell unacceptable and complained about this to the extent the staff considered her very bad tempered and abusive. Mr Kerr said:

... Ms Mitchell’s behaviour deteriorated and she began to scream obscenities and throw items around the cell. After putting on all of her clothing (three to four layers) and covering the property in her cell in plastic, at 12.50 pm Ms Mitchell activated the sprinkler system in her cell.

[62] Following this incident, Ms Mitchell was removed to the At Risk Unit so she could have a shower and change into dry clothes. After this she was moved back to the Secure Unit. The clothes Ms Mitchell had been wearing and the other items she had in Cell 7 were taken by staff so they could be washed and dried for her after being soaked by the sprinkler. Once this had occurred, these items were returned to Ms Mitchell with some of her other property on 26 January 2016.

Consideration

[63] I agree with the respondents that there was no seizure of property on either 2 December 2015 or 6 January 2016. On 2 December 2015, Ms Mitchell became subject to the Rule as she was then a sentenced prisoner. On 6 January she was admitted to the At Risk Unit following Prison staff belief she had deliberately self-harmed. Removal of her property was appropriate in those circumstances and the events surrounding the taking of her electric jug are the subject of another decision.¹⁸

[64] There is some confusion over what in fact happened in the days following 21 January 2016. Affidavits on behalf of the respondents say Ms Mitchell was

¹⁸ Mitchell v Chief Executive of Department of Corrections HC Wellington CIV-2016-485-55.

immediately relocated and offered and accepted clean clothes. Ms Mitchell says that for a period of five days from 21 January she had her own underwear and clothing for the upper half of her body only. In her oral submissions, Ms Mitchell discussed the particular indignity associated with that, given there was a camera in her cell. If that was the case, it is indeed a matter of concern.

[65] I am at somewhat of a loss in this regard, however, as the cause of action alleges unreasonable seizure of property and the allegation concerning the clothing to which Ms Mitchell had access in her cell is unclear. Certainly the respondents did not understand her allegation to be that which was made at the hearing. There is also some confusion as to whether Ms Mitchell was offered prison issued clothing for her lower body but refused it. At the hearing, Ms Mitchell said she could not remember whether she had been issued with such clothing, although she accepted there would have been a pair of tracksuit bottoms available. She also accepted she was wearing all her clothing when she set off the sprinkler.

[66] The PC.01s around the time show staff had understood they should not return Ms Mitchell’s personal property with the result she had no additional clothing including clean underwear for this period of five days. The first PC.01 which appears to mention lack of clean underwear is dated 25 January. Ms McCall says, even if Ms Mitchell’s personal property was withheld, it does not constitute a breach of s 21 of NZBORA and there is no pleading under s 23(5).

[67] I agree there was no unlawful seizure of Ms Mitchell’s clothing. As the Court of Appeal noted in R v Grayson, the primary focus of s 21 is to ensure governmental power is not used unreasonably and it is to be applied in a realistic way.¹⁹ What occurred in this case was the removal of Ms Mitchell’s clothing so it could be laundered and dried, something which was required as a result of Ms Mitchell’s own actions. The delay of five days in returning her clothing to her cannot amount to an unreasonable seizure, particularly in circumstances where possession of her clothing was conditional rather than an entitlement.

¹⁹ R v Grayson [1997] 1 NZLR 399 (CA) at 407 and 409.

[68] Ms Mitchell can, to some degree, be considered the author of her own misfortune. Had she not activated the sprinkler system in her cell while wearing all of her clothing, there would have been no need for her clothing to have been removed for cleaning and drying. Her refusal to wear prison issued clothing during this period was her choice. Prison staff cannot be expected to devote excessive time and energy to meeting Ms Mitchell’s demands given other demands on their time and other prisoners whose needs must also be attended to.

[69] It was unfortunate there was an untoward delay in the return of Ms Mitchell’s personal property, particularly given her well-known attitude to wearing prison issued clothing. In certain circumstances, it might be arguable that a reasonable removal and holding of property is rendered an unreasonable seizure due to excessive delay in returning the property. The circumstances in this case do not, however, constitute an unreasonable seizure of her clothing in breach of s 21 of NZBORA.

Result

[70] For the reasons given, I decline to make the declarations sought.

Thomas J

Solicitors:

Crown Law, Wellington for Respondents