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Nuku v Attorney-General [2019] NZHC 2309 (13 September 2019)

Last Updated: 23 September 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1] This case raises issues relating to the extent to which freedoms guaranteed by the New Zealand Bill of Rights Act 1990 (NZBORA), in particular, the freedom from unreasonable search and seizure set out in s 21 of NZBORA, apply to someone who is, at the time of an alleged unreasonable search and seizure, a prison inmate.

[2] The first statement of claim in this matter was filed on 21 November 2017, over three years after the events in question had occurred. That statement of claim named Stephanie Temm, an intelligence analyst employed by the Department of Corrections (Corrections), as the defendant.

[3] Although the statement of claim was one which nominally advanced judicial review proceedings, the document was discursive and in narrative form. It contained a lot of material that was evidence or submissions rather than pleadings.

NUKU v ATTORNEY-GENERAL [2019] NZHC 2309 [13 September 2019]

[4] What was sought by way of relief were various declarations including one that would have effectively acted as an injunction restraining Ms Temm from entering Mr Nuku’s cell. Among the other relief sought was an apology from Ms Temm and what was said to be an order of mandamus requiring Corrections to conduct an inquiry.

[5] The statement of claim contained a heading “Interlocutory Order” and under that heading other relief was sought which essentially sought to oblige Corrections to provide Mr Nuku with various forms of assistance in advancing the proceedings.

[6] By a document filed on 11 May 2018, described as an amended statement of claim, in the place of Ms Temm, Mr Nuku substituted the Attorney-General on behalf of Corrections as the respondent to the proceedings.

[7] No objection was taken by the Attorney-General to that substitution and the Court confirmed it on 27 February 2018.

[8] The amended statement of claim did not replace the earlier document but added certain additional matters to it. They included:

(a) a claim for Baigent damages in the sum of $20,000;

(b) an allegation that Ms Temm had made an unreasonable decision; and

(c) sought to extend the “injunctive” relief previously sought against only Ms Temm to “all managerial staff within the Department whether at Paremoremo Prison or any other nation-wide prison facilities”.

[9] These proceedings were not the first time that Mr Nuku had raised the issue of an alleged unreasonable search of his prison cell on 4 June 2014.

[10] They had been raised by him before the Court of Appeal in the course of an appeal against conviction on the aggravated robbery and unlawful possession of a firearm charges. The Court of Appeal had held that the allegations could not provide a ground of appeal and had commented that Mr Nuku should pursue his concerns
regarding the conduct through appropriate avenues.¹ Mr Nuku has also pursued various other forms of complaint about the matters at the heart of these proceedings including use of Corrections internal complaints procedures, a complaint to the Independent Police Complaints Authority and complaints to the Ombudsman and the visiting justices. None have been successful.

[11] As the resolution of Mr Nuku’s claims in these proceedings will, in large part, depend on findings of fact, I will summarise the background and relevant evidence and make the necessary findings of fact.

Background

[12] In July 2011, Mr Nuku was sentenced to life imprisonment for murder with a non-parole period of 18 years. As at 4 June 2014, he was serving that sentence at Paremoremo Prison in Auckland.

[13] Between 26 May 2014 and 10 June 2014, Mr Nuku stood trial in the Auckland District Court on charges of aggravated robbery and unlawful possession of firearms.

[14] On 4 June 2014, upon his return to Paremoremo Prison from the Court, Mr Nuku was informed by Mr David Lothian, a fellow prisoner who occupied the cell adjacent to his, that earlier that day two individuals had entered his cell and spent some time in there. Mr Lothian’s description of one of those individuals matched that of Detective Byron Reid, who had been attached to the aggravated robbery and unlawful firearms matter for which Mr Nuku was on trial.

[15] The following day, Mr Nuku informed his counsel of what he had been told, asking him to enquire of Detective Reid if he had, in fact, entered his cell and, if so, what the surrounding circumstances were.

[16] Having made the requested enquiries, counsel informed Mr Nuku that the detective assured him that he had not actually entered his cell, but that he had been present at the prison that day on unrelated matters. To the extent that Detective Reid’s

¹ Nuku v R [2016] NZCA 179 at [98].

presence at Paremoremo Prison was not directly connected with the charges Mr Nuku was standing trial for, that statement was correct, but, as is detailed later, Detective Reid’s visit to the prison did have some connection with Mr Nuku and his co-offender.

[17] Further investigation revealed that the other individual who Mr Lothian had seen entering Mr Nuku’s cell was Ms Temm, an intelligence analyst at the prison. She was the person against whom these proceedings were originally issued.

[18] Mr Nuku filed a complaint with the prison and was given an email from Ms Temm which confirmed that the detective had entered the cell. Furthermore, an entry from Detective Reid’s notebook stated that Ms Temm had showed him Mr Nuku’s cell area.

[19] The respondent acknowledges that the detective was at the prison on the day in question and explains that the detective had been given a familiarisation tour of the prison by Corrections staff, that tour including several areas of the prison, but that no search was conducted of Mr Nuku’s cell by Detective Reid or Ms Temm.

Evidence

[20] Mr Nuku gave evidence himself in these proceedings and also called David James Lothian. As to exactly what had occurred at Paremoremo Prison on 4 June 2014 in respect of the alleged search of his cell, Mr Nuku was entirely reliant on the evidence of Mr Lothian.

[21] Mr Lothian’s evidence was that, on 4 June 2014, he was an inmate in a cell on the “bottom east” landing of A-block. There were 12 cells on each landing and he was in cell No. 5 which was adjacent to the cell occupied by Mr Nuku.

[22] Mr Lothian confirmed that on the morning of 4 June, only two of the 12 cells were occupied, with the other 10 cells being empty during the day, with most of their occupants participating in the CIE work unit.
[23] Mr Lothian’s recollection was that he saw two people who he thought were detectives come onto the landing. He could not be precise as to the time as he said that he did not have a watch, but he recalled that the television programme “Dr Phil” was running and he placed the time as being about 12:50 pm by reference to when that programme screened. He said that inmates on the lower east landing at A-block were generally unlocked at about 1:00 pm for the purpose of showering, telephoning families and similar activities, and he recalled that on 4 June the unlock was late by about 15 minutes or so. He later varied his evidence by claiming that the unlock might have been late by as much as 30 minutes. He assumed that the delay in the time of the unlock was the consequence of the visitors being on the landing. He described two visitors, one being male and the other female. He described the female as having dark hair although he stated that he was colour-blind and could be wrong about hair colour, and during the course of cross-examination, described the woman’s hair as “darkish to light auburny/ginger hair”. When she gave evidence in this case, Ms Temm had fair hair. She was not asked whether she had the same colour hair in June 2014.

[24] Mr Lothian denied the suggestion put to him during cross-examination that the woman had said hello to him or acknowledged him saying that he did not remember the female acknowledging him and indicating that was unlikely because at the time the visitors arrived he was yelling obscenities at them.

[25] Mr Lothian recalled that a Corrections officer (who he described as an older officer called “Mac”) accompanied the visitors to the landing and opened Mr Nuku’s cell door for them. In cross-examination, Mr Lothian denied that Mac ever went into Mr Nuku’s cell. He denied that there were two Corrections officers present.

[26] Mr Lothian said that the two visitors entered Mr Nuku’s cell. His specific words were:

They were in the cell rummaging through Mr Nuku’s property. I don’t know whether they were putting something in there or taking something from him.

[27] Mr Lothian said that they did this for between 25 and 35 minutes. He said that he was able to observe this by lying on the floor of his cell, putting his hand out through the gap at the bottom of the cell door and reaching around the wall between his cell
and Mr Nuku’s cell. He said that he was holding a CD in his hand and using it as a mirror. He said that while he was doing this, he was yelling at the visitors saying things like “what the f...s going on?”; “why are we locked down?”; “what’s going on?”; “who the f... are they?”; “have they got a search warrant?”. He acknowledged that he did not observe the people in the cell for the whole time he said they were there.

[28] When questioned about his claim that the visitors were rummaging through paperwork, Mr Lothian’s evidence was: “Officers walk straight in his door, walk straight over to all that paperwork, and started going through it.”

[29] When it was put to Mr Lothian that he could not have seen what he claimed, and that he would have initially seen the visitors through the small window in his cell door, Mr Lothian responded:

When they first walked down the wing, because you can hear the door crack open, I straight away jumped off my bed, went onto the ground, held my CD out the door, and looked down the wing, and I’ve seen two detectives, two police officers of the New Zealand Police walking down and I’ve seen the other Corrections officer at the end of the wing opening the door for them. The detectives walked straight into the cell and I took the CD out of my left hand and put it into my right hand, flicked it around that way of the door so I could see into my neighbour’s cell, which I do most nights to talk to him. You know, I used to do that just about every night to talk to my neighbour. So I poked it around the corner and seen that they were going, they went straight to his desk, started rummaging straight through his stuff.

[30] Mr Lothian said that the female visitor carried a bag into and out of the cell but he did not see anyone place anything into the bag or remove anything from the cell. He said he did not see a Corrections officer in the cell or a Corrections officer remove anything from the cell.

[31] Mr Nuku gave evidence by way of prepared written brief and was cross- examined. In his evidence-in-chief he described what he was told by Mr Lothian upon his return to Paremoremo Prison on 4 June 2014. He said that Mr Lothian:

... informed me that earlier that day a male and female whom appeared to look like “Detectives”, had entered my cell on the Bottom-East landing, and spent some considerable time in there.

[32] Mr Nuku conceded in cross-examination that Mr Lothian had not told him that the visitors had rummaged through his belongings.

[33] Mr Nuku noted that Detective Reid had told his counsel in the aggravated robbery proceedings (Mr Wimsett) that he had not actually entered his cell, and this contradicted an email Ms Temm had sent indicating that he had entered the cell.

[34] Detective (now Detective Sergeant) Byron Reid and Stephanie Temm gave evidence for the Attorney-General. Detective Reid confirmed that he was the file manager for the murder trial involving Mr Nuku which had been concluded in 2011, and that he was also the file manager for the aggravated robbery/unlawful firearms’ trial which took place in Auckland in 2014.

[35] He confirmed that he had visited Paremoremo Prison during the 2014 trial. He said that the purpose of the visit was to discuss with a prison intelligence officer information about a possible escape risk.

[36] He said that while at the prison he was offered a familiarisation tour which he accepted and that the whole tour which included A, B, C and D blocks together with the medical, special needs, and at risk areas would have taken an hour or more. He said that as they moved around the building, they had to stop and wait for staff to be able to show them around.

[37] He confirmed that he was shown Mr Nuku’s empty cell in A-block and said that he took one step inside. He denied touching or taking anything in the cell and estimated that he had been in the cell for a matter of seconds. He recalled one of the guards who had accompanied him and Ms Temm on the tour removing a small item which he described as possibly being an apple, from Mr Nuku’s cell on the basis that it was a banned item. He said that neither he nor Ms Temm had a bag with them during the tour. He also confirmed that he was not at the prison for the purposes of undertaking a search and did not conduct one.

[38] In his oral evidence, Detective Reid said that there was a Corrections officer with him while he was in A-block. He said he was aware of other prisoners in A-block
but did not speak with, and was not spoken to, by any prisoner. He confirmed that the prison guard who picked up the apple or fruit commented that it was contraband as it could be turned into alcohol.

[39] Detective Reid was cross-examined as to what information he had about the risk of a possible escape and confirmed that, as was common place with such matters, he was not made aware of the details of the allegation including who had supplied it. He acknowledged that he was likely to have told Ms Temm that he was in Auckland for purposes connected with Mr Nuku’s trial. He stated that he did not direct where he was to be taken on the tour and that it was up to Ms Temm. He denied that either he or Ms Temm had a bag with them and noted that he even had his keys and phone removed from him at the prison check-in.

[40] Ms Temm confirmed that as at June 2014 she was an Intelligence Analyst at Paremoremo Prison and that in the course of her duties she received a request for information from the Police about Mr Nuku and his co-offender. She said that this request was received in May 2014 and that Detective Reid came out to the prison on 4 June 2014 to discuss the request. She confirmed that Detective Reid was not there for the purpose of conducting any search and did not ask to conduct a search.

[41] Ms Temm said that she offered Detective Reid a familiarisation tour and that such tours were common place for external partner agencies such as the Police with her having undertaken at least six or eight such tours personally during 2014/2015. She confirmed that they visited Alpha, Bravo, Charlie, and Delta units on the tour and that she introduced Detective Reid to the Principal Corrections Officer for Delta Unit and to the Residential Manager. She said that two custodial staff accompanied her and Detective Reid during the tour of Alpha block and that Mr Nuku’s cell was chosen to view as it was empty.

[42] Ms Temm agreed that it was possible to look into the cell through the window in the cell tour but said that the door was open in order to get a sense of a typical cell/the layout and size – by viewing it from inside. She said that one of the custodial staff opened the cell door and remained present while Detective Reid looked at the interior of the cell. She said that nothing was touched by Detective Reid and that they
were only at the cell for a few moments. She confirmed that one of the custodial staff had removed from the cell “a small plastic cup with the end of what appeared to be the sprouting of some vegetable matter”.

[43] Ms Temm said that she did not have a bag with her on the tour and nor did Detective Reid, and that a bag would not have been permitted to be taken on such a tour for security reasons. She thought that the tour would have taken about an hour in total and confirmed that there was a considerable amount of stopping and waiting.

[44] During cross-examination, Ms Temm was referred to an email of 7 May 2014 from Detective Sergeant D R Gower to the Department of Corrections Regional Intelligence Manager, which referred to Mr Nuku and his co-offender and the receipt of information about potential witness harm and plans to escape. That email had requested information in respect of persons visiting Mr Nuku and his co-offender or persons they were communicating with.

[45] Ms Temm said that she gave Detective Reid the relevant information that had been sought in this email but did not look at it or discuss it with Detective Reid. Ms Temm did not accept the proposition put to her that she and Detective Reid came onto the landing unescorted and that the prison staff stayed behind the grill. She also did not accept that Detective Reid spent 25 to 35 minutes in the cell and that she was carrying a black bag. She said that she had been issued with a clear plastic bag to carry personal items but that even to bring that into the prison, it had to go through security checks, scanning and x-ray at the security point. She said that Detective Reid was her guest and under her instruction and that she was under the instruction of the custodial staff and that she did not carry any keys.

[46] When Ms Temm was asked by the Court how she became aware that there was a prisoner in the cell next to Mr Nuku’s, she said that she saw a prisoner with his face pressed up against the window looking at her and that was when she inclined her head to acknowledge the prisoner. She confirmed that the prisoner made no noise whatsoever, and that it was very quiet on the landing. She also said that it was not unusual for there to be a 15-minute delay in prisoners being released at unlock time.
[47] When cross-examined by Mr Nuku in relation to her evidence that the prisoner in the adjacent cell was not making any sort of noise or calling out, Ms Temm said that prisoners would not normally talk to her, and that she would have remembered if the prisoner had called out. She noted that, on other occasions when inmates had been “going off”, the staff in the unit would intervene.

[48] In addition to the evidence given by the witnesses to the Court, there is also documentary evidence that is of assistance in analysing whether the oral evidence given is reliable or not. The Police Inquiry Form sent by Detective Sergeant Gower dated 7 May 2014 confirmed that information was received in respect of harm to witnesses and possible plans to escape custody. It noted that Mr Nuku’s co-offender had previously threatened witnesses. The relevant passages in the form said:

We are trying to establish if there has been any behaviour/incidents in prison or in their communications which would place witnesses or members of the public at risk.

[49] And:

I am also requesting information in respect to all persons visiting them and/or in communication with them.

[50] There was also an email from Ms Temm to the prison manager, Mr Sherlock, on 9 May 2014 referring to the Police request for information and requesting permission to monitor incoming and outgoing correspondence.

[51] An email of 15:49 on 4 June 2014 from Ms Temm to Don Owen of Corrections confirmed that she had hosted Detective Reid that day and that he had shared with her information surrounding the background of Mr Nuku and his co-offender and had visited Alpha and Delta blocks, both with COs.

[52] Detective Reid made a notebook entry at 0830 on 5 June 2014 confirming that he had visited Paremoremo Prison on 4 June. He confirmed that he spoke to a prison staff member about some inquiries he needed to carry out and spoke to Ms Temm, and after speaking to her, she took him through different blocks of the prison and introduced him to staff members and they spoke of their roles. He also said he had been shown Mr Nuku’s cell area but did not touch or take or do anything in the cell.
[53] In response to a complaint (PCO1) from Mr Nuku, Ms Temm sent an email to Phil Cullen of Corrections on 10 June 2014 confirming the familiarisation tour and the meeting with senior prison staff, David Bullians and Solomon Nui. It identified the Alpha block staff, COs Barkatulla and Henema, as having escorted Ms Temm and Detective Reid to the landing. It confirmed that Mr Nuku’s cell was not searched, nor were any items touched or moved other than Mr Barkatulla removing a small plastic cup with the end of what appeared to be the sprouting of some vegetable matter, possibly an onion. The email finished by saying, “CCTV will demonstrate that at no time was either Det. Reid or I carrying items prior to or exiting from Alpha Block, nor throughout the entire tour.”

Analysis of evidence

[54] The evidence establishes that the Police had concerns about the possibility of an escape in relation to Mr Nuku and his co-accused and the possibility of intimidation of witnesses, although that concern appeared to be related to Mr Nuku’s co-accused rather than him.

[55] The emails referred to above confirm that there was a request of the prison for information in respect of persons visiting Mr Nuku and his co-accused and communicating with them. It confirms that in response to a request, Ms Temm requested consent to monitor such communication. This information is important because it confirms Detective Reid had a legitimate reason for visiting the prison on 4 June.

[56] It is clear that Detective Reid went to the prison and interacted with Ms Temm pursuant to the request for information. It is also clear that she was the person who offered him a familiarisation tour, and that there was no request by him to go into any cell block. I am satisfied that the route taken during the tour was set by Ms Temm and that it covered a large part of the prison. It also involved brief meetings with two senior prison staff. I accept that there would have been delays moving from one block to another while Corrections staff unlocked the appropriate access ways. I accept that the tour, in total, took something over an hour. Ms Temm was not challenged on her evidence that such tours are common place, and I accept it.
[57] My findings as to what the tour involved and how long it took, have a direct impact on the evidence given by Mr Lothian that the visit to Mr Nuku’s cell lasted between 25 and 35 minutes. If Detective Reid spent that long in Mr Nuku’s cell, it is difficult to see how they could have managed to visit all the other areas of the prison that they did.

[58] Given my finding that the itinerary of the tour was controlled by Ms Temm, it is inconceivable that she would have scheduled such a large proportion of the total tour to be carried out inside one small cell.

[59] There are some difficulties with Mr Lothian’s evidence about his claimed behaviour after he became aware that Detective Reid and Ms Temm were on the landing outside his cell. His evidence was that he was lying on the floor with his arm underneath the door holding a CD disk in his hand which he was using as a mirror. And at the same time, he says that he was shouting obscenities at the visitors. If he had his arm out under the door, it seems unlikely that he would have wanted to attract attention to himself and to what he was doing with the mirror. It seems more probable that, as Ms Temm described, he had his face pressed against the window in his cell and was observing the visitors by that means.

[60] Given that Mr Lothian did not know who the visitors were, it also seems unlikely that he would have had justification for screaming the sort of abuse at them that he claims to have done at the time the visitors entered the cell.

[61] Mr Lothian also denied that the visitors were accompanied by Corrections officers. However, it seems most unlikely that Ms Temm would have reported to Phil Cullen that they were accompanied by Corrections officers, Barkatulla and Henema if that was not correct.

[62] It was not challenged by Mr Nuku that what he described as a small piece of sprouting garlic in a plastic cup was in his cell on 4 June and had been removed from the cell that day. Such an object would have been of no interest to Detective Reid or Ms Temm but would have been of interest, as being contraband, to Corrections officers. I find that it was Corrections officer Barkatulla who removed this item. To
do so, he must have been in the cell. That is inconsistent with Mr Lothian’s account of what happened.

[63] As to Mr Lothian’s evidence that he saw Detective Reid rummaging through papers in Mr Nuku’s cell, I note that this was not something that he reported to Mr Nuku at the time. Had he actually observed that, it is likely to have been one of the first things he would have reported to Mr Nuku. It is also something that Mr Nuku would have immediately complained about.

[64] If Detective Reid had engaged in any rummaging through papers in Mr Nuku’s cell, he would have to have done it in the presence of both Ms Temm and the two Corrections officers. Given that such an activity would have been completely outside the bounds of the familiarisation tour that Ms Temm was taking Detective Reid on, it seems most unlikely that she would have countenanced it. It also seems unlikely that the Corrections officers would have permitted it.

[65] Another telling factor is that there seems to be no reason why Detective Reid would want to search any papers in Mr Nuku’s cell. The murder trial had been concluded some three years previously, and the aggravated robbery and firearms trial was already well under way. There is also no claim that any papers were removed from the cell and Mr Nuku accepted that the first time he had raised the possibility that legally privileged material might have been accessed, was during his appeal to the Court of Appeal against conviction in March 2016.

[66] As to Mr Lothian’s claim that “unlock” was late as a result of Detective Reid and Ms Temm visiting the landing and Mr Nuku’s cell, other than Mr Lothian’s recollection, there was no evidence that unlock was in fact late. There was no challenge to Ms Temm’s evidence that it was not unusual for unlock to be late.

[67] I therefore accept the evidence of Detective Reid and Ms Temm that they were accompanied onto the landing by two Corrections officers who unlocked Mr Nuku’s cell for them. I accept that Detective Reid was shown into the cell and was briefly inside it but that he did not rummage through papers, or in fact touch anything. I find that Mr Lothian is mistaken in respect of his evidence that no Corrections officers were
in the cell, and I find that it was Corrections officer Barkatulla who removed the sprouted piece of garlic.

[68] I reject Mr Lothian’s evidence that he was screaming obscenities at the visitors from the moment they arrived on the landing. I accept Ms Temm’s evidence that she saw Mr Lothian with his face pressed against his cell window, that she acknowledged him and that he made no reply or sound to that acknowledgement.

[69] I accept that Mr Lothian would have been curious about the visit of Detective Reid and Ms Temm to the landing, and about the fact that Mr Nuku’s cell had been entered. However, I find that aspects of the evidence he gave to the Court were embellished, including his claim that he saw Detective Reid rummaging through papers; that only Detective Reid and Ms Temm were inside the cell and that the visit to the cell lasted between 25 and 30 minutes. These aspects of his evidence are inconsistent with the objective evidence referred to above, and the evidence of Detective Reid and Ms Temm.

[70] I accept Ms Temm’s evidence that at no stage during the tour did either she or Detective Reid carry a bag with them. That would not have been permitted in accordance with the security protocols in place in the prison at the time.

[71] Having made these findings of fact, the issue then becomes whether a fleeting visit to a prisoner’s cell as part of a familiarisation tour undertaken by a Police officer visiting the prison, where the Police officer does not touch or interfere with anything in the cell, can amount to a search of the prisoner’s cell or breach of any other right protected by NZBORA. Mr Nuku submits that it does.

Mr Nuku’s arguments

[72] Mr Nuku’s primary argument was that an unreasonable search had been “orchestrated” on his cell and that was in breach of both the Search and Surveillance Act 2012 and s 21 of NZBORA.

[73] With the findings that I have made as to what actually occurred on 4 June 2014, there can be no question of a breach of the Search and Surveillance Act. There was
no challenge by Mr Nuku to the right of Corrections officer Barkatulla to search his cell and seize the contraband item. However, Mr Nuku advanced an alternative argument which was that a prisoner has a legitimate expectation that the only person who will gain access to their cell, other than themselves, is a Corrections officer lawfully undertaking their duties. His submission was that, in addition to this general obligation, he had a heightened expectation of privacy because his cell contained privileged materials. Implicit in this argument is that by merely stepping into his cell, Detective Reid and/or Ms Temm were conducting a “search” of it in breach of s 21 of NZBORA.

[74] In his submissions, Mr Nuku also complains that the Police did not bring to his attention, or that of his counsel in 2014 trial, or the Judge presiding in that case, that they were investigating a potential escape risk. He does not specify the source of such an obligation, and I am unaware of any legal basis upon which it could be said that the Police had an obligation to do that. In any event, the only defendant in these proceedings is the Attorney-General in respect of the Department of Corrections, not the Police.

[75] Mr Nuku argued that a cell was the equivalent of a prisoner’s residence or dwelling and was similar to a room in a rest home which had been acknowledged to be a residence for the purpose of a home invasion offence.

[76] He put considerable emphasis on an observation by Gilbert J in Taylor v The Manager of Auckland Prison where the Court said:²

It is well-established at common law that prisoners retain all civil rights and freedoms of ordinary citizens unless these are removed by law expressly or by necessary implication.³ The presumptive starting point is therefore that prisoners have the same rights as other citizens to possess tobacco and to smoke in their own home, if they wish. The prison cell is the institutional equivalent of a prisoner’s home.

[77] These observations were made in the context of a judicial review challenging a non-smoking policy which banned possession of tobacco and tobacco-related products in all prisons in New Zealand.

² Taylor v The Manager of Auckland Prison [2012] NZHC 3591 at [14].

³ Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 (SC).

[78] Mr Nuku submitted that his personal property rights, including the rights he had in the potentially privileged papers in his cell, had been breached by the mere presence in his cell, even fleetingly, of Detective Reid and Ms Temm.

[79] The extent of the privacy right enjoyed by a prisoner in his cell has been the subject of consideration in a number of Courts. A case often referred to is the decision of the United States Supreme Court in Hudson v Palmer.⁴ In this case, prison officers conducted a search of the prisoner’s cell and found some prison property which had been damaged. The prisoner was subsequently charged with intentional damage. The Court described its task as being:⁵

We must determine here, as in other Fourth Amendment contexts, if a “justifiable” expectation of privacy is at stake.

[80] The Court held:⁶

... that society is not prepared to recognise as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.

[81] The Court noted that prison administrators were under an obligation to take reasonable measures to guarantee the safety of inmates themselves, prison staff and administrative personnel and visitors.

[82] The New Zealand Supreme Court has considered a prisoner’s right under s 21 of NZBORA in the case of Hamed v R.⁷ That case is the authority for the proposition that an individual’s reasonable expectation of privacy in any given situation is considered in light of all the circumstances.

[83] An assessment of the seriousness of a particular intrusion involves consideration of fact and degree.⁸

⁴ Hudson v Palmer [1984] USSC 169; 468 US 517 (1984).

⁵ At 525.

⁶ At 526.

⁷ Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.

⁸ See R v Grayson & Taylor [1997] 1 NZLR 399 at [260].

[84] In the United Kingdom, the Court of Appeal Criminal Division, in the case of R v CF considered whether a prisoner was liable for racist remarks and hate speech made in a cell.⁹ If the cell was a public area, he was liable. If it was “other living accommodation” or a “dwelling”, he was not. The Court said:¹⁰

A police cell is not a home. It is not “other accommodation where a person lives”, even though a person detained in a police cell may from time to time do the same things which he or she may do in his own home, or in the place where he or she lives. The Judge was accordingly wrong to rule that the police cell came within the exception to subsection (2) of section 4A. A police cell is a place where a person is detained in custody, not a place which a person occupies as living accommodation.

[85] There is Canadian authority to the same effect as the United States and United Kingdom authority.¹¹

[86] The Canadian case of R v Wong held that a prisoner would have a reasonable expectation that their cell would not be subject to constant surveillance, especially when performing activities such as using the toilet.¹²

[87] The leading New Zealand decision on the privacy rights of prisoners in their cell is Toia v The Prison Manager Auckland Prison.¹³

[88] The prisoner was held in B-block at Paremoremo Prison. At that time, the cells had fronts with open grilled bars. This allowed anybody walking past, including female prison officers, to observe the prisoner using the lavatory in the cell.

[89] Brewer J held that the absence of a privacy screen was a breach of the Corrections Regulations 2005. However, he held that the breach was technical because prison authorities had made reasonable efforts to allow prisoners to screen the fronts of their cells by using blankets or towels at such times when they used the lavatory.

⁹ R v CF [2007] 1 Cr App R 36.

¹⁰ At [10].

11. See the Supreme Court of Canada’s decision in Wetherall v Canada [1993] 2 SCR 872 and R v Simon [2013] ABQB 95 at [50].

¹² R v Wong [1993] SCR 36.

¹³ Toia v The Prison Manager Auckland Prison [2014] NZHC 867.

[90] Brewer J also held that there was no breach of s 23(5) of NZBORA. That provision requires:

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

Was there a search?

[91] An important aspect of Mr Nuku’s claim that s 21 of NZBORA was breached is that there was, in fact, a “search” of his cell.

[92] The test for what might amount to a search was considered by the Supreme Court in R v Ngan.¹⁴ At [111], McGrath J said:

Whether or not in any case a particular activity falls within that meaning of “search” must ultimately turn on a value judgement that considers the nature of the particular examination or investigation by government officials and its impact on the privacy and security of the person subjected to it. This will allow the Court to decide whether that type of activity should or should not be exposed to assessment in light of Bill of Rights Act restraints. A finding that official actions amount to a search entails no judgement on whether in the particular circumstances the search is reasonable. That aspect must be the subject of further inquiry. (Citation omitted)

[93] The cases establish that something more than observation is necessary for a search to exist. In the case of Ward v R, simply shining the light into a car was held not to amount to a search.¹⁵

[94] The question here is whether or not permitting a visitor to the prison to enter a cell which was empty because the prisoner was away for the day, as part of a familiarisation tour amounts to that visitor searching the cell.

[95] The Corrections’ regime contemplates permitting visits or the viewing of a prison.¹⁶ There is evidence that this particular prison tour was approved by the prison director at the time.¹⁷

¹⁴ R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48.

¹⁵ Ward v R [2016] NZCA 580.

¹⁶ Corrections Regulations 2005, r 88.

17. Letter from Julie Miller to Mr Nuku dated 19 September 2017, Common Bundle of Documents, Volume 1, p 42.

[96] The detection and removal by Corrections officer Barkatulla of the plant material was clearly both a search and seizure. However, it was authorised by s 98 of the Corrections Act 2004. The fact that Detective Reid and Ms Temm were in the cell at the time when this occurred does not make them parties to the search and seizure nor does it render the search and seizure unlawful.

[97] The brief entry into and observation of Mr Nuku’s cell by Detective Reid and Ms Temm was not a search of the cell. It did not involve any breach of any provision of NZBORA or a breach of any statutory duty.

[98] To the extent that Mr Nuku advanced a claim of breach of privacy that was separate from breaches of his rights under NZBORA or alleged breaches of the Corrections Act 2004 and Corrections Regulations 2005, I find that, to the limited extent that Mr Nuku had a legitimate expectation of privacy in his cell discussed above,¹⁸ the events which I have found occurred did not breach any privacy rights.

[99] Because of the finding I have come to that Detective Reid and Ms Temm did not search Mr Nuku’s cell and that the familiarisation tour was lawful, I do not need to address the remedies that Mr Nuku sought beyond observing that a number of them would not have been available even if I had concluded that s 21 of NZBORA had been breached.

Outcome

[100] For these reasons, Mr Nuku’s claims are dismissed.

Churchman J

Solicitors:

Meredith Connell, Wellington for Defendant

¹⁸ See Toia v Prison Manager, Auckland Prison [2014] NZHC 867.