|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 22 March 2023
|
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
|
|
CIV-2017-485-802
[2022] NZHC 3170 |
|
BETWEEN
|
ARTHUR WILLIAM TAYLOR
Plaintiff
|
|
AND
|
ATTORNEY-GENERAL
Defendant
|
|
Hearing:
|
28 February–1 March; 3–4 March; 7–10 March; 14–18
March;
21–25 March; 28 March–1 April; 4–5 April; 13–14
April 2022
|
|
Counsel:
|
Plaintiff in Person
S M Kinsler and D M A Wiseman for Defendant
|
|
Judgment:
|
30 November 2022
|
Re-issued: 5 December 2022
JUDGMENT (No 3) OF ISAC J
TAYLOR v ATTORNEY-GENERAL [2022] NZHC 3170 [30 November 2022]
TABLE OF CONTENTS
Introduction, Structure and Legal Framework [1] Chapter 1: Directed Segregation and Conditions of Detention [46] Chapter 2: Fires [447]
Chapter 3: The Truth Newspaper Ban [518]
Chapter 4: Rehabilitation and Parole [568]
Chapter 5: Transfer to Waikeria Prison [621]
Chapter 6: Strip Searches and Mechanical Restraints [788]
Conclusion and Summary of Results [835]
INTRODUCTION, STRUCTURE AND LEGAL FRAMEWORK
[1] Mr Arthur Taylor, the plaintiff, is a well-known former prisoner and prisoner rights advocate. He has made a significant contribution to the development of New Zealand’s constitutional law and brought numerous proceedings—many successful— for the benefit of others.
[2] This proceeding has a more personal focus. In it, Mr Taylor seeks public law damages against the Department of Corrections of $1.45 million relating to his treatment as an inmate. The claims are wide-ranging, spanning events from June 2011 until March 2018. Mr Taylor alleges serious mistreatment, designed to disrupt his legal work against Corrections and to prevent him assisting other prisoners to assert their basic rights. Except in one respect, the claims are advanced as breaches of rights and freedoms in the New Zealand Bill of Rights Act 1990.
[3] During the trial both parties referred to the different elements of Mr Taylor’s claims as “chapters”, and I have adopted the same term in this judgment. Each chapter represents a discrete aspect of Mr Taylor’s detention that could have been the subject of a separate judgment. As my consideration of the issues is consistent with the chapters identified by the parties, it is helpful to begin with a broad over-view:
(a) Chapter 1 relates to a period between 2011 and 2012 when Mr Taylor was placed on “directed segregation”. This had the effect of limiting his contact with other prisoners. Mr Taylor says the decisions and processes leading to his directed segregation were unlawful and for an improper purpose, and that the conditions and duration of his detention were such as to constitute both a breach of s 9 of the Bill of Rights, the prohibition on torture and cruel and inhuman treatment, and s 23(5), the positive duty to treat those in detention humanely and with respect (at [46] below).
(b) Chapter 2 relates to a series of three fires lit by another prisoner close to Mr Taylor’s cell in Auckland Prison in 2011 and 2012. Mr Taylor claims that acts or omissions of Corrections resulted both in a breach of
a duty of care in negligence, and a further breach of s 23(5) of the Bill of Rights (at [447] below).
(c) Chapter 3 addresses what became known at trial as the Truth newspaper ban. In 2011 a decision was made to ban the paper from the wing of the prison where Mr Taylor was held. He argues that the ban was unlawful and constituted a breach of his right to freedom of expression under s 14 of the Bill of Rights (at [518] below).
(d) Chapter 4 relates to a claim that Corrections failed in its obligation to provide Mr Taylor with rehabilitation between 2011 and 2014, and as a result he was denied earlier parole. This, too, is said to constitute a breach of s 23(5) (at [568] below).
(e) Chapter 5 concerns Mr Taylor’s claim that the decision to transfer him from Auckland Prison to Waikeria Prison in December 2017, and the use of force to effect that transfer, was unlawful and a breach of s 23(5) (at [621] below).
(f) Chapter 6 deals with a series of nine strip-searches and one occasion when handcuffs (or “mechanical restraints”) were used while transporting Mr Taylor from Auckland back to Waikeria following a court appearance. As there was no disagreement that the relevant conduct occurred, and that it was unlawful, the only issue requiring determination is whether Mr Taylor is entitled to a remedy and, if so, what that remedy should be (at [788] below).
[4] The background to each claim, and the issues requiring determination, are set out within the appropriate chapter.
Mr Taylor’s amended statement of claim
[5] Mr Taylor’s pleading sets out his general allegations marshalled broadly into the chapters identified above. Those allegations are then drawn into three causes of action:
(a) The first cause of action is based on a breach of s 9 of the Bill of Rights. An range of mistreatment is alleged to have constituted torture or cruel, degrading or disproportionately severe treatment or punishment.
(b) The second cause of action pleads that Mr Taylor’s treatment over the claim period amounted to a breach of s 23(5) of the Bill of Rights, as well as ss 14 (freedom of expression), 19 (freedom from discrimination), and 27(1) (the right to natural justice). The facts on which these claims are based are, as pleaded, nearly identical to those supporting the s 9 claim.
(c) The third cause of action is in negligence. Mr Taylor claims a breach of a duty of care, again based largely on the same conduct covered by the other parts of the claim.
[6] On the first two Bill of Rights causes of action, Mr Taylor seeks a host of declarations and public law and aggravated damages of $500,000 and $550,000 respectively. In relation to the claim in tort, Mr Taylor seeks a declaration, together with damages for psychological and emotional harm of $500,000. The total damages claimed comes to $1.45 million.1
[7] While the pleading suggests that all three causes of action relate to essentially the same underlying factual allegations, during the trial and by closing the causes of action were significantly refined. In summary:
(a) Mr Taylor’s claim under s 9 of the Bill of Rights was limited to a period of time he spent in Auckland Prison’s High Care Unit while on directed segregation. This is a subset of the claims dealt with in Chapter 1.
(b) Mr Taylor’s s 23(5) cause of action relates to the claims in all six chapters.
(c) Mr Taylor’s claim under s 14 of the Bill of Rights (freedom of expression) is confined to the Truth newspaper ban considered in Chapter 3.
(d) The claim under s 27 of the Bill of Rights (breach of natural justice) forms part of the claims relating to directed segregation dealt with in Chapter 1.
(e) Mr Taylor’s claim for a breach of s 19 of the Bill of Rights (freedom from discrimination on the basis of gender) was abandoned.
(f) Mr Taylor’s claim in tort was limited to the three fires in Auckland Prison in 2011 and 2012, dealt with in Chapter 2.
[8] Other deficiencies in the Mr Taylor’s pleading were identified during the trial. By and large the defendant and his counsel were able to respond to the evolving case. By closing, only one pleading point was taken by the defendant.
The trial and pre-trial issues
[9] The trial was set down for six weeks commencing on 28 February 2022. Unfortunately, this timing coincided with the beginning and expected peak of the Omicron outbreak in New Zealand.
[10] Shortly before the trial commenced, Corrections raised a concern that some of its staff involved in the hearing as witnesses would likely be required to isolate during the trial or might be unwell. It sought a hybrid approach to taking the evidence, permitting witnesses to attend by audio-visual link as required. An added difficulty was that Mr Taylor was likely to encounter difficulties travelling from his home in the South Island to the Wellington High Court due to public health measures applicable at the time.
[11] This created the possibility of accommodating both an in person and virtual hearing, with added complications in terms of resourcing. Having heard from the parties, and given indications of likely case-numbers, I resolved to conduct the entire
hearing on Microsoft Teams. While an in-person hearing would have been preferable, Mr Taylor and counsel for the defendant are to be commended for their adaptability, and their efforts to ensure the trial was completed successfully. There were few interruptions as a result of technical issues.
[12] On 21 February 2022, a week before the trial was due to commence, the defendant filed two interlocutory applications. The first was for non-party discovery orders against the Capital and Coast District Health Board, relating to medical records from Mr Taylor’s admission to hospital in September 2005. The second application related to the admission as hearsay of a signed brief of evidence of one of the defendant’s witnesses, Mr Paul Burrow, who passed away shortly before the trial was due to commence. Mr Taylor opposed both applications. I was unable to hear or determine them in advance of the trial. As a result, I heard both matters on 28 February 2022 and issued a results judgment the following day.2 The trial proper then commenced with an oral opening from Mr Taylor on 1 March 2022.
[13] Mr Taylor called two witnesses: himself, and Dr James Freeman. Given the scope of Mr Taylor’s claims it is perhaps unsurprising that he was cross-examined for nine days.
[14] The defendant called a total of 33 witnesses. A significant proportion of them were nursing staff and corrections officers involved in Mr Taylor’s transfer to Waikeria Prison. Mr Taylor and his expert witness strongly criticised the nursing staff, and what was said to be a failure to make basic checks of Mr Taylor’s wellbeing. Given the professional consequences that might follow from an adverse finding, Corrections wished to meet Mr Taylor’s allegations firmly. As a result, an issue that was relatively narrow in the context of the entire claim took on a disproportionate significance.
[15] The evidence concluded on 5 April 2022. The trial was then adjourned to permit Mr Taylor time to prepare a written closing address. Closings were then delivered at an in-person hearing on 13 and 14 April 2022.
[16] At the conclusion of closing addresses Mr Taylor indicated he might wish to pursue an application for leave to post on his website some of the video footage discovered by the defendant during the course of the proceeding. The application came before me in June 2022, and following a hearing I declined Mr Taylor’s request in a judgment of 27 July 2022.3
Approach to the claims and evidence
[17] Although some of the claims required consideration of events over a decade ago, Corrections retained (with some notable exceptions) many contemporaneous prison records and associated documentation. In general, I have preferred the contemporaneous written record where it was at odds with the oral evidence I heard. This has particular importance to Mr Taylor’s case, which was largely reliant on his oral evidence.4 As will become apparent, Corrections also invited me to make adverse credibility findings on significant elements of Mr Taylor’s claims.
[18] It is also appropriate to record that Mr Taylor was self-represented throughout the trial. Given Mr Taylor’s many years of conducting High Court proceedings in his own name, that is no surprise. Mr Taylor was assisted throughout the trial by Ms Hazel Heal, who was present with Mr Taylor while he was appearing and giving evidence. To the extent it would not create unfairness, I endeavoured to provide Mr Taylor with as much latitude as possible in the conduct of his case. This included the delivery of an oral opening statement, which was surprising given the length and complexity of the trial. In addition, I provided Mr Taylor with an adjournment following the conclusion of the evidence so he would have additional time to prepare a detailed written closing address.
[19] As noted, Mr Taylor’s pleaded claims were subject to significant change during the trial. Aspects of Mr Taylor’s claim were defined for the first time in opening. One new claim was raised in his closing address. Because of this, I have endeavoured to
3 Taylor v Attorney-General (No 1) [2022] NZHC 1825.
deal with Mr Taylor’s claims as he left them in closing, rather than as they were framed in the statement of claim or opening.
Relevant principles — Bill of Rights claims
[20] Mr Taylor’s primary cause of action is under s 23(5) of the New Zealand Bill of Rights Act 1990. Almost every claim alleges that s 23(5) has been breached in some way. A more limited aspect of the proceeding is focussed on an alleged breach of s 9. Given the prevalence of s 23(5) in Mr Taylor’s claims, and that provision’s connection with s 9, it is useful to begin with the principles informing these provisions.
[21] Section 9 of the Bill of Rights provides:
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.
[22] And s 23(5) provides:
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.
[23] The leading case on the treatment of prisoners in terms on ss 9 and 23(5) is the Supreme Court’s decision in Taunoa v Attorney-General.5 It concerned a challenge to the lawfulness of the so-called Behaviour Management Regime (BMR) at Auckland Prison.6 As Mr Taylor relies heavily on the conditions of detention in Taunoa as a comparison with his own, a brief description is useful.
5 Taunoa v Attorney General [2007] NZSC 70, [2008] 1 NZLR 429 [Taunoa (SC)] at [339].
[24] The BMR was a regime employed by Corrections between 1998 and 2004 to improve prisoner behaviour through a system of punishment and reward. It involved a highly controlled environment which was more restrictive than maximum security conditions and imposed severe limitations on association as well as other basic conditions. Prisoners on the BMR were confined to their cell for 22–23 hours a day and had their ordinary entitlements and privileges significantly reduced or, in some cases, removed altogether. Restrictions on entitlements and association gradually eased as prisoners progressed through the different phases of the programme, provided Corrections considered their behaviour had improved. Compliance and good behaviour could result in faster progression, while bad behaviour could lead to regression.
[25] Importantly, the BMR had no statutory foundation whatsoever. It was a system invented by Corrections staff that sat outside the normal legislative safeguards for prisoner welfare. The Supreme Court identified the most troubling aspects of the regime as including:7
(a) cell conditions that fell well short of proper hygiene standards;
(b) the failure by officials and medical officers to adequately monitor the health and wellbeing of BMR prisoners, notwithstanding their vulnerability as segregated prisoners;
(c) inadequate opportunities to exercise, particularly outdoors;
(d) the failure to provide adequate privacy to BMR prisoners, and a clearly unlawful practice of routine strip searches (including searches done in a passageway with limited privacy);
(e) the lack of rehabilitative programmes available to BMR prisoners, and the unnecessary deprivation of access to books and television;
7 Taunoa (SC), above n 5, at [128] per Blanchard J.
(f) the provision of unclear and inadequate information about the operation of the BMR, including the reasons for placement and continuation on the regime; and
(g) isolated incidents of improper seizure of items during cell searches, as well as verbal abuse of prisoners by corrections officers that was sufficiently common to be concerning.
[26] In light of this, the Court concluded the conditions imposed by the BMR were unlawful and without statutory basis.8 The statutory scheme did not permit segregation to be used as punishment. The BMR was a punitive regime, designed to send a message to prisoners about their place in the corrections system.9 The majority of the Supreme Court held that these conditions collectively amounted to a breach of s 23(5), but not s 9.10
[27] One of the first questions the Court considered was the relationship between the two provisions. Elias CJ found that the two provisions create distinct though overlapping rights.11 While s 23(5) places an obligation on the State to treat its citizens “with humanity”, that is to be contrasted with the focus of s 9, which prevents “inhuman treatment”:12
On this view, s 23(5) is concerned to ensure that prisoners are treated “humanely” while s 9 is concerned with the prevention of treatment properly characterised as “inhuman”. The concepts are not the same, although they overlap because inhuman treatment will always be inhumane. Inhuman treatment is however different in quality. It amounts to a denial of humanity...
8 At [138]–[145] per Blanchard J.
9 At [47]–[48] per Elias CJ, [129] per Blanchard J, and [348] per McGrath J.
10 The exception was for one of the prisoners, Mr Tofts. The Court of Appeal found that Mr Tofts’ placement on the BMR amounted to disproportionately severe treatment in breach of s 9 due to his psychiatric vulnerabilities and psychological difficulties, and the fact that his time on the BMR exacerbated those issues: Attorney-General v Taunoa [2005] NZCA 312; [2006] 2 NZLR 457 (CA). The Attorney- General did not appeal that finding.
11 Taunoa (SC), above n 5, at [5] and [70]–[80].
[28] The majority of the Court were inclined to consider there is a continuum on which ss 9 and 23(5) rest and a hierarchy between the two provisions.13 The hierarchy could be described as covering “degrees of reprehensibility”.14
[29] Section 9 captures the most reprehensible treatment and is reserved for “truly egregious cases”.15 A breach of s 9 will involve conduct “which is to be utterly condemned as outrageous and unacceptable in any circumstances”.16 Whereas s 23(5) requires prisoners to be treated with humanity, s 9 prohibits treatment that is “less than human”.17 The threshold is a high one.
[30] Conduct breaching s 9 will usually involve an intention to harm or conscious and reckless indifference to the causing of harm, as well as significant physical or mental suffering.18 The Court identified the conduct proscribed by s 9 in these terms:
(a) “torture” involves the deliberate infliction of severe physical or mental suffering for a purpose, such as obtaining information;19
(b) “cruel” treatment is treatment which deliberately inflicts suffering or results in severe suffering or distress;20
(c) “degrading” treatment is treatment which gravely humiliates and debases the person subjected to it;21 and
(d) “disproportionately severe” treatment is conduct which is so severe as to shock the national conscience, or so disproportionate as to cause
13 At [170] per Blanchard J, and [339] per McGrath J.
18 S v Attorney-General [2017] NZHC 2629 at [213].
19 Taunoa (SC), above n 5, at [81] per Elias CJ, and [171] per Blanchard J.
20 At [171] per Blanchard J, and [282]–[283] per Tipping J.
shock and revulsion. It imports conduct which is well beyond treatment that is manifestly excessive.22
[31] In assessing whether there has been a breach of s 9, relevant factors may include the nature of the impugned conduct, the state of mind of the party responsible for the conduct, and the effect of the conduct on its victims.23
[32] The threshold for a breach of s 23(5), while high, is considerably lower than for s 9. Section 23(5) is engaged by conduct that is regarded as unacceptable in contemporary New Zealand society (though not rising to a level deserving to be called outrageous).24 It captures conduct “which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so”.25
[33] Section 23(5) responds to the special vulnerability of prisoners by imposing a positive duty on the Crown to treat them humanely.26 That positive duty is an objective baseline that must be met.27 Failure to meet this standard will be a breach, regardless of whether that failure was intentional or inadvertent.28 In other words, the Crown’s state of mind goes to the degree of its culpability but not liability.29
[34] To determine whether the impugned conduct amounts to a breach of s 23(5) requires an evaluative exercise that is highly contextual and fact specific.
[35] Breaches of minimum standards relating to prisoners will be highly relevant to a breach of s 23(5).30 As Elias CJ said in Taunoa, “legislative standards are perhaps the best guide to what is unacceptable in contemporary New Zealand” and are “highly
22 At [172] per Blanchard J, and [289] per Tipping J.
24 Taunoa (SC), above n 5, at [11] per Elias CJ, and [170] per Blanchard J.
26 At [78] per Elias CJ, [177] per Blanchard J, and [294] per Tipping J.
28 Pere v Attorney-General [2022] NZHC 1069, [2022] 2 NZLR 725 at [40].
30 Taunoa (SC), above n 5, at [11] per Elias CJ, and [180] per Blanchard J.
significant” in assessing whether there has been a breach of ss 9 and 23(5).31 Likewise, a breach of relevant international standards, such as the United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as the Mandela Rules),32 will be a strong indication of a breach.33
[36] Importantly, however, a breach of minimum requirements does not automatically lead to a breach of s 23(5).34 There is a severity threshold that must be met.35 In addition to being unlawful, the conduct must also be unacceptable. Purely technical breaches will not suffice. So, in Taunoa, McGrath J’s finding of a breach of s 23(5) turned primarily on an “assessment of the nature of treatment itself and its effects”, and less on the prison’s breaches of the regulations.36
[37] Equally, compliance with minimum standards does not preclude a breach of s 23(5). The content of fundamental rights is not defined by what Parliament or the Executive might prescribe as minimum standards of treatment from time to time, but rather the Bill of Rights itself. Were it not so, the content of the right could be defined indirectly through the promulgation of minimum standards. The Bill of Rights requires the Court’s assessment of the conduct or treatment, and whether it falls below a standard acceptable in contemporary New Zealand society.37 That threshold is the bottom line.
[38] The following factors are relevant in determining whether a failure to meet minimum standards of treatment is also a breach of s 23(5):
32 United Nations Standard Minimum Rules for the Treatment of Prisoners GA res 70/175 (2015) [Mandela Rules].
33 As Ellis J explained in S v Attorney-General, above n 18, at [220(d)]: “Section 23(5) is based on art 10(1) of the ICCPR, and so the [Mandela Rules]... which are used by the Human Rights Committee as a tool for assessing art 10 ICCPR compliance, will influence New Zealand decisions on compliance with it.”
34 Taunoa (SC), above n 5, at [181] per Blanchard J.
35 S v Attorney-General, above n 18, at [245].
36 Taunoa (SC), above n 5, at [353].
37 In a different context, both the High Court and Court of Appeal have recently reinforced the importance of the Court’s constitutional duty to determine whether a limitation is demonstrably justified under s 5 without undue deference to Parliament or the Executive. See for example Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291 at [61]–[63]; Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 3012; and Make It 16 Inc v Attorney-General [2021] NZCA 681 at [51]–[53]. This dichotomy is reflected, for instance, in the rare search and seizure cases where a lawful search is nevertheless found to be unreasonable in terms of s 21 of the Bill of Rights.
(a) The nature and severity of the treatment. This inquiry is directed at how the detainee was treated by the authorities, and how far that treatment deviated from the minimum standards required. Significant departures are likely to amount to a breach while merely technical failures will be insufficient.38
(b) The duration and frequency of the impugned conduct. While a one-off failure to meet the minimum requirements will generally not amount to a breach of s 23(5), the accumulation of multiple minor failings, or a failure repeated consistently over a period of time, may suffice.39
(c) The nature and extent of the impact on the detainee. The suffering of actual and serious negative effects, such as physical harm, mental trauma, embarrassment or humiliation, will be indicative of a breach.40 Mere annoyance or inconvenience on the other hand will usually not.
(d) Any particular vulnerability or condition of the detainee.41 In Taunoa, the placement of a prisoner on the BMR, whose physical and psychological conditions made him particularly vulnerable and unsuited to the regime, was held to constitute disproportionately severe treatment in terms of s 9.42
(e) The purpose of the treatment. Treatment which is not rationally connected to the purpose of the detention is likely to be found in breach of s 23(5), due to the absence of an obvious State interest in the acts or omissions in question.43
38 In Falwasser v Attorney-General [2010] NZHC 410; [2010] NZAR 445 (HC), the use of excessive force and pepper spray by police on a detainee was found to be a clear breach of s 23(5).
39 The duration of time spent on the BMR was an aggravating factor in Mr Taunoa’s case: Taunoa (SC), above n 5, at [358] per McGrath J. In Reekie v Attorney-General [2012] NZHC 1867, routine strip searches over a 15-month period amounted to a breach of s 23(5).
40 In Attorney-General v Udompun [2005] NZCA 128; [2005] 3 NZLR 204 (CA), the failure to provide sanitary products to an immigration detainee created hygiene issues and caused discomfort and personal embarrassment, and was found to constitute a breach of s 23(5).
41 S v Attorney-General, above n 18, at [246].
42 Taunoa (SC), above n 5, at [133] per Blanchard J.
43 S v Attorney-General, above n 18, at [247]. See also A v Capital Coast District Health Board
[2022] NZHC 2041 at [35] and [129], and B v Waitemata District Health Board [2016] NZCA
(f) The detainee’s own conduct. While the Supreme Court in Taunoa was careful to observe that a prisoner’s poor behaviour never justifies unlawful treatment, the majority noted that the alleged illegality cannot be considered in a vacuum, and the detainee’s behaviour could be relevant in some circumstances.44 Where a detainee’s own conduct necessitates certain conditions of confinement (for instance, segregation to protect others), that conduct must be relevant to determining whether there has been a breach of s 23(5).45 As s 23(5) is engaged by treatment that is “clearly excessive in the circumstances”, and is determined by reference to what is acceptable in New Zealand society, the plaintiff’s conduct is an important part of the factual matrix. The question will be whether the authority’s response to that behaviour was reasonable, proportionate and rationally connected to the purpose of the treatment.
Requirements for a breach of s 23(5) where there is no minimum entitlement
[39] Some of Mr Taylor’s claims involve an alleged breach of s 23(5) where there is no applicable minimum standard. One example is his claim in relation to fires in D Block in 2011 and 2012. Others include his claims relating to the transfer to Waikeria Prison, and the failure to provide him with adequate cutlery, sports equipment and refrigeration facilities.
[40] Recent decisions of the High Court have considered the approach to be adopted where there is no relevant prescribed standard. In S v Attorney-General, Ellis J observed that while many cases involving s 23(5) involve positive actions by a detaining authority:46
184[2016] NZCA 184; , [2016] 3 NZLR 569 at [71], where the health and safety purposes behind restrictions to movement and access to smoking were considered relevant to whether there was a s 23(5) breach.
44 Taunoa (SC), above n 5, at [286]–[287] per Tipping J, and [357]–[358] per McGrath J.
45 McGrath J observed at [358] that Mr Taunoa, as a result of his own conduct, was at least partly responsible for the length of time he spent on the BMR. His conduct was therefore relevant, albeit to the s 9 inquiry, because it showed a lack of any deliberate intention by prison administrators to deny Mr Taunoa his rights. Ellis J drew a similar conclusion in A v Capital and Coast District Health Board, above n 43, at [108]–[110], finding that a mental health patient’s right under s 23(5) was not breached simply by dint of the time they were kept in a particular facility because their own conduct was the principal reason for that duration.
46 S v Attorney-General, above n 18, at [217].
... inaction, neglect or failure to take the necessary steps to ensure the humane treatment of a detainee have also been discussed by the courts, and positive duties recognised under s 23(5). There is no doubt ... that s 23(5) requires the State not simply to refrain from inhumane conduct, but also to act to maintain minimum conditions of detention, as defined in the statute authorising the detention, subordinate legislation and/or any relevant standards.
[41] In cases of omission leading to a risk of harm, her Honour considered that a test based on the common law duty of detaining authorities to protect their charges from unnecessary harm can be applied to the positive State duty in s 23(5). Ellis J considered that in order to find a breach of any positive duty owed under s 23(5), there needs to be a clearer or more serious departure than is required to find a simple breach of the common law protective duty of care.47 She summarised the position in these terms:48
[Section] 23(5) also incorporates an obligation on a detaining authority to protect and keep detainees safe from harm. But absent any actual illegality, there must be an unacceptable and serious departure from the standard of care expected of a reasonable person in the position of the detaining authority in order to find that such a duty has been breached
[42] This principle is most apt to determine Mr Taylor’s claim under the Bill of Rights in relation to the fires lit by another inmate while he was held in D Block of Auckland Prison.
[43] S v Attorney-General required consideration of claims that there had been a failure to protect vulnerable in-patients from sexual assaults by other patients. That explains its focus on obligations of protection from harm and the standard applicable to cases involving a failure to take some positive action. While in the present case it might be considered that some of Mr Taylor’s claims involved the risk of mental distress or suffering, the nature of most of the alleged omissions are of a different quality to those in S. In the present case, in relation to claims where there is no relevant minimum standard prescribed and no question of immediate physical harm, I consider s 23(5) simply requires the broad contextual assessment noted at [37] above. This approach is consistent with that of the Court of Appeal in Attorney-General v
Udompun, which involved consideration of conduct in the absence of a prescribed minimum standard, and the Supreme Court in Taunoa more generally.49
[44] The burden of proof in civil proceedings seeking to establish a breach of the Bill of Rights rests on the plaintiff.50 The standard of proof is proof on the balance of probabilities. In addition, proof to that standard:51
... must be commensurate with the seriousness of the allegation, but it is also to be remembered that in a case of this kind the Court is not concerned with the culpability of individual officials but with the protection of the rights of those who may have suffered from a breach, and with any necessary redress.
[45] Recently, the Court of Appeal in Wallace v Attorney-General has recognised the place of inference and shifting evidential burdens in a trial about human rights. Miller J observed:52
A court may also make robust and flexible use of evidential burdens in civil proceedings, effectively compelling a defendant to offer evidence to avoid inferences which would otherwise follow from an act or event. To the extent facts are within the State’s knowledge but not that of the plaintiff, an evidential burden may be consistent with effective enforcement of the right to life
50 Taunoa (SC), above n 5, at [182] per Blanchard J.
52 Wallace v Attorney-General [2022] NZCA 375 at [104].
CHAPTER 1: DIRECTED SEGREGATION AND CONDITIONS OF DETENTION
Overview of the claim and the issues
Background in brief [46]
Mr Taylor’s claim and the defendant’s response [55]
Refinement of the claim and Mr Taylor’s case in closing [59]
Legal framework of the corrections system [63] The common law and Bill of Rights protections for prisoners [64] The Corrections Act 2004 [65]
Security classifications, prisoner management plans and lawful orders [72] Internal protective mechanisms [75]Directed segregation [80]
The Corrections Regulations 2005 [87]
The Prison Operations
Manual [89]
Auckland Prison’s East Division in 2011 and 2012
The physical environment [90]
Making and implementing segregation decisions [102]
Part 1: Was Mr Taylor’s directed segregation unlawful?
Issues to be determined in this part [111] First issue: did Mr Taylor’s directed segregation amount to solitary confinement?
The evidence [112]
International consideration of solitary confinement [123]
Consideration [134]
Second issue: the first segregation period — 15 June to 28 June 2011
Mr Taylor’s claim [141]
Corrections’ account of the initial segregation decision [143] The National Office email to the Auckland Prison Manager [149] Mr Beales’ evidence [159]
Consideration [161]
The balance of Mr Taylor’s challenges to the initial period of segregation [170]
Third issue: subsequent segregation directions — 29 June 2011 to 7 September 2012
Overview and Mr Taylor’s case [179]
The Ombudsman’s report [181]
The Inspectorate of Corrections’ report [188]
The issues for consideration [192]
What risks did Mr Taylor present to the security and good order of the
prison? [194]
Violence and threats to staff [199]Contraband [204]
Flooding [207]
Dirty protests [217]
Barricading and destruction of common property [219]
The frequency of Mr Taylor’s misconduct [225] Were Mr Taylor’s management plans tailored to his risk? [228] Did Mr Taylor understand the reasons for his directed segregation? [241]
Timing of supply of paperwork to Mr Taylor? [246]
Was the second segregation decision only supported by historical
incidents? [249]
Cell confinement as well as directed segregation? [253] No reasons for a decision to deny rather than restrict association? [255] Was there a breach of regs 55 and 56? [260] Were the segregation decisions otherwise fair and reasonable? [267]
Overall conclusion on solitary confinement and the decisions to place
Mr Taylor on directed segregation [270]
Part 2: Was there an unlawful reduction in Mr Taylor’s conditions of
detention on directed segregation?
Mr Taylor’s claim [271]
The legal framework [277]
Minimum conditions of detention [278]
Physical requirements of Mr Taylor’s cells [282]
First issue: was there a failure to deliver Mr Taylor’s minimum
Recreation time between 15 June and 14 September 2011 [285]
Recreation time between 1 October 2011 and 30 May
2012 [293] The balance of Mr
Taylor’s claim in relation to his recreation entitlement [309] Second issue: was there a breach
of reg 62? [310] Third issue:
are any of Mr Taylor’s specific claims made out? [317] Contact visits [322]
Exercise in the open
air [325]
Access to direct
sunlight [327]
No provision of exercise or sports equipment [330] Constructive use of time and access to TV, radio and books [332] Access to rehabilitative programmes [337]
Insufficient unlock time [343]
Hot meals and eating utensils [347]
Refrigeration of milk rations [351]
Phone calls [354]
Fourth issue: did Mr Taylor’s conditions of detention in the HCU
breach ss 9 or 23(5) of the Bill of Rights?
Overview [359]
The events leading up to and during Mr Taylor’s detention in the HCU [361] Summary of the Ombudsman’s findings in relation to the HCU [369] Were the conditions in the HCU in breach of ss 9 or 23(5)? [373]
Overall conclusion on Mr Taylor’s conditions of detention on directed segregation [386]
Part 3: Was there a breach of Mr Taylor’s right to natural justice? [390]
Part 4: Was there a breach of Mr Taylor’s right under s 23(5) of the Bill of Rights?
Summary of the findings so far [398]
The key arguments and issues to be determined [399]
Comparison with Taunoa [405]
Breach of s 23(5) of the Bill of Rights? [408]
Nature and severity of the treatment [413]
Duration of the conditions [418]
Nature and extent of impact on Mr Taylor and any vulnerability he
may have had [426]
Purpose of the treatment and Mr Taylor’s own conduct [429]
Overall conclusion on breach of s 23(5) [433]
Part 5: Relief [435]
Counsel: ... they're saying essentially that they couldn’t give you your minimum entitlements because you'd barricaded yourself in your cell.
Mr Taylor: Well why do you think I was barricading myself in my cell? Because they weren’t giving me my minimum entitlements, so they're stopping me making calls that were necessary for my legal proceedings or stay in touch with my family or some other thing. Which came first, the chicken or the egg, you know, this is what they should’ve asked themselves. Any reasonable prison administrator would, otherwise this is just going to continue on and on and on and on.
Counsel: All right and so now we finally come to –
Mr Taylor. It’s a war of attrition, which is to nobody’s benefit...
OVERVIEW OF THE CLAIM AND THE ISSUES
[46] Mr Taylor’s first claim relates to a lengthy period he spent on “directed segregation” that began on 15 June 2011 and ended on 7 September 2012.
[47] Mr Taylor was sentenced to 12 years’ imprisonment on a range of serious offences in September 2006. In November 2006, he was transferred from Rimutaka Prison to the East Division of Auckland Prison, New Zealand’s only maximum security prison.
[48] Then, in June 2007, over a continuous 32-hour period police intercepted a number of communications between Mr Taylor and two other men in the form of calls and texts from a cellphone illegally in Mr Taylor’s possession in Auckland Prison.53 As a result, in September 2008, Mr Taylor was charged with conspiracy to supply methamphetamine and three charges of offering to supply the drug. He pleaded not guilty and elected trial by jury.
[49] On 15 March 2010, Mr Taylor was classified as a maximum security prisoner. He was transferred from C Block into D Block—the unit where the most challenging prisoners within the entire corrections system were managed.
53 Taylor v R [2012] NZCA 332 at [4].
[50] Mr Taylor was put on trial in February 2011. He was convicted on the charge of conspiracy and acquitted of the other charges. On 19 May 2011, just a month before the first period of directed segregation, Mr Taylor was sentenced by Wylie J to a further seven years’ imprisonment cumulative on his existing 12-year term.54 The net result for Mr Taylor was that he would be imprisoned until 12 October 2022 unless granted parole.
[51] Also relevant at this time was Corrections’ decision, announced in June 2010, to make New Zealand prisons smoke free from 1 July 2011. On 1 June 2011, the Chief Executive directed prison managers to introduce a rule prohibiting smoking in all areas of all prisons. Mr Taylor was not a smoker. However, he commenced proceedings in 2011 challenging what became known as the prison smoking ban. He successfully challenged the ban not once but twice.55
[52] Then, on 14 June 2011, prison officers carried out a targeted search of Mr Taylor’s cell. They found significant amounts of contraband, including a cellphone.
[53] The next day Mr Taylor was placed on directed segregation for 14 days pursuant to s 58(1)(a) of the Corrections Act, on the basis that the “security or good order of the prison would otherwise be endangered or prejudiced”. Had his segregation ended after just 14 days, matters may have worked out differently. However, the prison manager considered that continued segregation remained necessary because, in his view, Mr Taylor’s conduct continued to present a risk to the good order of the prison.
[54] If anything, Mr Taylor’s behaviour deteriorated. This was—at least in Mr Taylor’s eyes—legitimate protest against what he considered was unlawful treatment. As a result, Mr Taylor’s directed segregation was extended on seven further occasions.56 Within this period Mr Taylor spent two spells in an old at-risk unit— known as the High Care Unit or HCU—in a decommissioned area of the prison. In
total, Mr Taylor remained continuously on directed segregation for almost 15 months, until a Visiting Justice ordered that he be removed from segregation on 7 September 2012.
Mr Taylor’s claim and the defendant’s response
[55] In closing, Mr Taylor submitted that between 15 June 2011 and 7 September 2012, he was placed on directed segregation unlawfully, and that he was denied his minimum entitlements guaranteed by the Corrections Act and Regulations. He also submitted that, cumulatively, his conditions of detention gave rise to a breach of s 23(5) and, when he was housed in the HCU (for approximately 46 days), s 9 of the Bill of Rights. Specifically, he claimed:
(a) The directed segregation was unlawful because the requirements of the Act, the Corrections Regulations 2005 and the Prison Operations Manual were not complied with. He contends that his time on directed segregation amounted to a lengthy period of solitary confinement, given that his association and contact with other prisoners was proscribed.
(b) The reduction in his conditions of detention and the duration of directed segregation were a breach of the Bill of Rights, the Act, Regulations, Operations Manual and relevant international instruments.
(c) He claims he was denied his right to natural justice under s 27(1) of the Bill of Rights during his time on segregation on one occasion. He says Corrections failed to forward his submissions in August 2011 to the Visiting Justice reviewing a decision to extend his segregation.
[56] In response to Mr Taylor’s claims, Corrections argues that they are not borne out by the facts. The defendant says:
(a) The requirements of s 58 of the Act were complied with and, with the exception of a brief period between 15 June and 1 September 2011, Mr Taylor was provided with all of his minimum entitlements while on
directed segregation in accordance with the requirements of s 69.
(b) Mr Taylor’s conditions of detention do not approach the high threshold described in Taunoa for a breach of s 9 of the Bill of Rights, nor do they constitute a breach of the positive obligation in s 23(5). While Mr Taylor’s association with other prisoners was denied pursuant to a segregation direction, this did not amount to solitary confinement. To the extent there were breaches of the Act, and Regulations, the defendant submits these are isolated, minor in context, and have been remedied.
(c) Related to these specific points, Corrections argued that Mr Taylor’s credibility was in issue. It was said that Mr Taylor’s evidence was at odds with the contemporaneous prison records and with the evidence of prison officers. To the extent there was a difference of position, the defendant argued the Court should prefer the documentary record and the evidence of its witnesses.
[57] It follows that the issues I have to consider are:
(a) Were any of the decisions placing Mr Taylor on directed segregation unlawful?
(b) Beyond this, was there a reduction in Mr Taylor’s conditions of detention contrary to law?
(c) Was there a breach of natural justice by Corrections in failing to provide Mr Taylor’s submissions to a Visiting Justice?
(d) If I find for Mr Taylor on any of the preceding issues, does that amount to a breach of either ss 9 or 23(5) of the Bill of Rights Act?
(e) If so, what if any relief is appropriate?
[58] This chapter is structured in five parts to reflect these issues. Before turning to consider them, I begin with the refinements made by Mr Taylor to his claims during the trial, and the legal and physical setting in which they arise.
Refinement of the claim and Mr Taylor’s case in closing
[59] It will be remembered that after the trial began, Mr Taylor abandoned his claim of discrimination and narrowed his s 9 claim to his time in the HCU. By closing, the balance of his claims in this chapter were advanced under s 23(5) of the Bill of Rights.
[60] In addition, while Mr Taylor was subject to eleven discrete periods on directed segregation between 15 June 2011 and 26 November 2012, early in the trial he confined his claim to the first eight segregation periods, ending on 7 September 2012.57 He did so because those periods were the subject of investigation by both the Ombudsman and an Inspector of Corrections.
[61] While Mr Taylor pleaded in the amended statement of claim that the directed segregation decisions were unlawful because “the requirements of the Act, Regulations and Prison Operation Manual were not complied with”, the challenge was not really to the underlying merits of each segregation order. Rather, Mr Taylor’s focus was the process by which each decision was made, documented, or implemented. This aspect of the claim is wholly reliant on the findings of the Ombudsman and, to a much lesser extent, the Prison Inspectorate.
[62] Finally, while Mr Taylor opened the trial on the basis that he accepted the initial segregation decision (covering the period 15–28 June 2011) was lawful, that position changed by closing. No criticism can be made of this because the change of position arose from the discovery by the defendant of an important email chain during the course of the trial.
57 First period: 15 June to 28 June 2011 (decision of Prison Manager Beales); second period: 29 June to 14 July 2011 (decision of Prison Manager Beales); third period: 15 July to 14 August 2011 (decision of Prison Manager Beales); fourth period: 15 August to 14 September 2011 (decision of Acting Prison Manager Sherlock); fifth period: 15 September to 14 December 2011 (decision of Visiting Justice Greenbank); sixth period: 15 December 2011 to 13 March 2012 (decision of Visiting Justice Sage); seventh period: 13 March to 11 June 2012 (decision of Visiting Justice Sage); eighth period: 12 June to 7 September 2012 (decision of Visiting Justice Sage, who also revoked the segregation when Corrections sought approval for a further period).
Legal framework of the corrections system
[63] The corrections system operates under a legal framework that imposes obligations on prison staff in relation to decision-making, the conditions in which prisoners must be held, and the minimum entitlements they are to receive.
The common law and Bill of Rights protections for prisoners
[64] The starting point is ss 9 and 23(5) of the Bill of Rights. As noted already, these provisions are fundamental protections for people deprived of their liberty. In addition to these important constitutional protections, sentenced prisoners retain all civil rights which have not been removed by law.58 As Lord Steyn observed:59
A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus the prisoner’s liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”.
[65] The purpose of the corrections system, and the principles guiding it, are set out in ss 5 and 6 of the Act. The purpose of the system is to improve public safety and contribute to the maintenance of a just society by:60
(a) ensuring that sentences imposed by the courts “are administered in a safe, secure, humane and effective manner”;
(b) requiring prisons to be operated in accordance with rules in the Act and Regulations. Those rules are explicitly said to be based, amongst other things, on the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules);61
(c) assisting in the rehabilitation of offenders and their reintegration into
58 Taunoa (SC), above n 5, at [97] per Ellis CJ, citing Raymond v Honey [1983] 1 AC 1 at p 10 per Lord Wilberforce; and Chief Executive v Department of Corrections v Smith [2020] NZCA 674 at [8].
59 R v Secretary of State for the Home Department ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 (HL) at 120.
60 Corrections Act 2004, s 5(1).
61 Mandela Rules, above n 32.
the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions; and
(d) providing information to the courts and Parole Board to assist them in decision-making.
[66] The statutory principles guiding the operation of the corrections system include:
(a) that the maintenance of public safety is the paramount consideration in decisions about the management of prisoners;62
(b) the corrections system must ensure fair treatment of prisoners by providing them with information about the rules, obligations, and entitlements that affect them, and by ensuring that decisions about them are taken in a fair and reasonable way and that they have access to an effective complaints procedure;63
(c) that sentences are not administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision;64 and
(d) that offenders must “so far as is reasonable and practicable in the circumstances within the resources available”, be given access to activities that may contribute to their rehabilitation and reintegration.65
[67] In addition, under s 6(2), those exercising powers and duties under the Act— including the discretion to segregate prisoners under s 58—must take into account the applicable guiding principles “so far as is practicable in the circumstances”.
62 Corrections Act, s 6(1)(a).
[68] The Act also provides that important statutory powers affecting prisoners are delegated to prison managers. The prison manager of each prison is appointed by the chief executive of the Department of Corrections.66 A prison manager’s functions under s 12 include ensuring that the prison operates in accordance with the purposes and principles in ss 5 and 6, making rules appropriate for the prison and for the conduct and safety of the prisoners under s 33, and ensuring the safe custody and welfare of the prisoners. The powers and functions of a prison manager (other than the power to make rules under s 33) may be delegated to an employee.67
[69] Judicial decisions, especially concerning judicial review of decisions by prison managers and prison staff, highlight two competing factors. On the one hand, a margin of appreciation is often afforded to institutional decision-makers reflecting that they, rather than a judge, are best placed to make decisions concerning a dynamic environment involving the allocation of resources (including staff) where those matters affect the security and good order of a prison.68 As Katz J observed:69
The courts have recognised a wide range of factors that are relevant to the administrative decisions made in the course of the day-to-day operation of a prison, and the judgment and experience of the prison manager in assessing and weighing those factors should be given considerable deference.
[70] On the other hand, recognising both the vulnerability of those deprived of liberty to abuses of power, and the importance of fundamental human rights, where intervention is warranted it is the duty of the Court to intervene.70
[71] In addition to the Act and Regulations, the chief executive of the Department of Corrections may issue staff members with guidelines on the exercise of powers
68 Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331 at [127]–[132]; Mitchell v Attorney-General [2013] NZHC 2836 at [35] and [39]; Wellington International Airport Ltd v Commerce Commission HC Wellington, CIV-2011-485-1031, 22 December 2011 at [54]; Genge v Visiting Justice at Christchurch Men's Prison [2017] NZHC 3168 at [86], citing Taylor v Chief Executive of the Dept of Corrections [2010] NZCA 371; [2011] 1 NZLR 112 (CA); Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 at [9]; and Hudson v Attorney-General [2020] NZHC 3231 at [43].
69 Smith v Attorney-General, above n 68, at [127].
70 Taylor v Chief Executive of Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 [Taylor (Media interview judgment)] at [89]; Taylor v Chief Executive of Department of Corrections [2016] NZHC 1805 [Taylor (STURP judgment)] at [1]–[4]; and McEwen v Spring Hill Corrections Facility Department of Corrections [2020] NZHC 724 at [55]–[58], referring to McGrath J’s separate judgment in Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 (CA) at [85]–[86].
under the Act, and prescribe procedures to be followed and standards which are to be met.71 These operational guidelines are contained in a document known as the Prison Operations Manual (commonly referred to as “POMS”, but in this judgment I will refer to it as the Operations Manual).
Security classifications, prisoner management plans and lawful orders
[72] Every prisoner serving a sentence of imprisonment of three months or more is assigned a security classification pursuant to s 47. That classification reflects the risk a prisoner poses while inside or outside the prison, including the risk of escape. There are five security classifications: maximum, high, low-medium, low and minimum.
[73] Pursuant to s 51, an individual “management plan” must be devised for every prisoner.72 Each plan must be prepared and revised at regular intervals and in accordance with the Operations Manual. In addition, each plan must:73
(a) be based on assessment of the prisoner’s needs, capacities, and disposition;
(b) make provision for the prisoner’s safe, secure and humane containment;
(c) outline how the prisoner can make constructive use of his or her time in prison;
(d) outline how the prisoner can be prepared for eventual release and reintegration into the community; and
(e) be consistent with the resources available to the chief executive to manage the prisoner.
[74] The Act also imposes obligations on prisoners. One important to the present case is that contained in s 40, which provides that prisoners must promptly obey every
72 At least for those serving a term of imprisonment of more than two months: s 51(1)(a).
lawful order given to them by a corrections officer or staff member. It is a disciplinary offence to disobey such a direction.74
Internal protective mechanisms
[75] Reflecting New Zealand’s international obligations to treat those deprived of liberty with dignity and humanity, the Act contains a hierarchy of supervisory and protective measures.
[76] Every prison must have an internal complaints system for prisoners that allows complaints to be dealt with on a formal basis in a fair, timely and effective manner and without fear of adverse consequences.75 For decisions affecting prisoners within the appropriate scope of a prison manager’s discretion, the appropriate avenue of challenge is generally through internal complaint mechanisms.76
[77] Visiting Justices have a wide range of powers. These include visiting and inspecting the prison at their discretion, interviewing prisoners, examining the treatment and conduct of prisoners, inquiring into all alleged abuses within a prison, dealing with offences against discipline by prisoners, and reporting to the chief executive on any of these matters.77 As we will see, some important decisions affecting segregated prisoners must be made by a Visiting Justice rather than a prison manager.78 Section 19 provides that every District Court Judge is a Visiting Justice for every prison. In addition, the Governor-General may on the recommendation of the Minister of Justice appoint a Justice of the Peace or a Barrister and Solicitor of the High Court to be a Visiting Justice for every prison.
[78] In addition to Visiting Justices, inspectors of corrections are also appointed by the chief executive.79 Unlike Visiting Justices, inspectors are employees of the Department. Inspectors also have wide powers, which include inspecting any prison
78 See below at [179]. In particular, while the initial decisions to segregate a prisoner for a total period of three months rests with a chief executive, once that time-limit has been reached, any further extension of directed segregation can only be made by a Visiting Justice.
at their discretion, interviewing any prisoner, examining the treatment and conduct of the prisoners and inquiring into all abuses or alleged abuses relating to the management of prisoners. Inspectors may also take evidence under oath and provide reports to the chief executive on any matters falling within their powers and functions.80
[79] Finally, the entire corrections system is also subject to the Ombudsman’s supervision. The chief executive and the Chief Ombudsman are required to enter into an agreement under s 160 to facilitate access by the Ombudsman’s office to complainant prisoners, their records, and prison sites and facilities. The Ombudsman also acts as the National Preventive Mechanism, which examines and monitors the treatment of persons detained in prisons for the purposes of the Crimes of Torture Act 1989. As part of this role, the Ombudsman regularly examines the conditions of detention at prisons and the treatment of prisoners.81 Ombudsmen also routinely make recommendations regarding the improvements of conditions and treatment of prisoners, and to ensure that prisoners’ treatment is in keeping with New Zealand’s international obligations.
[80] Segregation of any kind involves the denial or restriction of direct physical access between prisoners. Simply put, it means two prisoners cannot occupy the same room or space together. Sections 58–60 of the Act provide for three types of segregation. Mr Taylor’s arose under s 58, which provides:
58 Segregation for purpose of security, good order, or safety
(a) the security or good order of the prison would otherwise be endangered or prejudiced; or
...
81 Crimes and Torture Act 1989, s 27.
[81] Where a direction is made by the prison manager under s 58(1), the prisoner must be promptly given the reasons in writing, and the chief executive must be promptly informed of the direction and the reasons for it.82 Pursuant to s 58(3), further important procedural safeguards are put in place:
(a) First, any direction by a prison manager placing a prisoner on directed segregation must be revoked if there ceases to be any justification for continuing the order.83
(b) The order may be revoked at any time by the chief executive or a Visiting Justice.84 In Mitchell v Attorney-General, the Court recognised that a prisoner subject to directed segregation has a statutory right of review if they request it.85
(c) The order expires after 14 days unless, before it expires, the chief executive (or their delegate) directs that it continue in force.86
(d) If the order for directed segregation continues beyond 14 days, the order must:
(i) be reviewed by the chief executive at intervals of not more than one month; and
(ii) expire after three months unless a Visiting Justice directs that it continue in force.87
(e) Finally, where a period of directed segregation does not expire after three months, it must be reviewed by a Visiting Justice at intervals of not more than three months.88
85 Mitchell v Attorney-General [2015] NZHC 3295 at [18].
87 Section 58(3)(d)(i) and (ii).
[82] It follows that the power to keep a prisoner in directed segregation under s 58 is removed from the chief executive and vested in a visiting justice once the order has continued for three months. It will also be evident that s 58 imports a broad subjective standard. What matters is the “opinion of the manager” on whether the security or good order of the prison would be endangered or prejudiced without a directed segregation order. Parliament’s use of a subjective standard confirms a policy choice between the need to ensure adequate protection against abuse of power while acknowledging prison managers and their staff are better placed to make decisions about the day-to-day management of a prison using limited resources.89
[83] While s 58 requires a chief executive to be properly informed of a directed segregation order and the reasons for it, in practice the function is delegated to another senior member of corrections management. In Mr Taylor’s case that was generally the Acting Assistant Regional Manager.
[84] A direction to restrict or deny association with other prisoners does not necessarily mean a physical removal of the prisoner away from other prisoners, or the movement of the prisoner into a new cell. Sometimes, a prisoner on directed segregation will remain in the cell they routinely occupy, but their time out of their cell (or “unlock” time) is managed around other prisoners. And, as noted, directed segregation is not a form of punishment. It is a prison management tool designed to enable the orderly management of prisons and to diffuse potential flashpoints.90
[85] In contrast, bad behaviour warranting a formal response is dealt with through a separate prison disciplinary process, itself prescribed in the Corrections Act.91 The Act defines a number of prison “offences” which may be committed by prisoners. They include disobeying a lawful order; offensive, threatening, abusive or intimidating conduct; communicating with any person outside prison without authority using a telephone; and possessing “contraband”.92 Minor or unintentional breaches of discipline are required to be dealt with by an officer informally, and usually involve
89 For a discussion of the principles applicable to subjective legislative powers, see the recent decision of the Court of Appeal in Idea Services Ltd v Attorney-General [2022] NZCA 470 at [51]–[54].
90 Mitchell v Attorney-General, above n 85, at [4].
91 Corrections Act, pt 2 subpart 5.
92 Section 128(1)(a), (c), (d) and (f).
an instruction to the prisoner to correct their behaviour.93 However, more serious offences can be dealt with through more formal procedures. A “hearing adjudicator” may conduct a hearing in relation to a misconduct charge or, in the case of more serious matters, they may be referred to a Visiting Justice to be determined at a hearing.94 If a Visiting Justice finds an offence proved, they may impose a penalty known as “cell confinement” for a period not exceeding the 15 days. As we will see later, at least at Auckland Men’s Prison in 2011 and 2012, a sentence of cell confinement was usually served in “the pound”, a separate area of the prison specifically designed for prisoners undertaking punishment.
[86] Where a decision is made to deny rather than restrict a prisoner’s ability to associate with other prisoners, the health centre manager must be notified “reasonably promptly” after the prisoner is placed in a cell.95 The prison manager or an officer authorised by them must also visit every segregated prisoner at least once a day.96
The Corrections Regulations 2005
[87] In addition to the Act, the Corrections Regulations 2005 set out a number of requirements in relation to the treatment and conditions of detention of segregated prisoners.97 Generally speaking, the Regulations provide higher levels of detail which enable the high-level rules, rights and procedures in the Act to be given substance. For instance, the Regulations set out a range of mandatory items, features and standards that segregation cells must include.98
[88] An important aspect of Mr Taylor’s claim arises from reg 62(1). It requires that a prisoner subject to a segregation direction must be detained “so far as 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”. Additionally, a prisoner under directed segregation must not be denied
95 Corrections Regulations 2005, reg 55.
98 Regulations 57–59, and sch 2 pts A and B.
access to activities consistent with the fulfilment of their prisoner management plan simply because they are subject to a segregation direction.99
[89] The Operations Manuals, as noted, are guidelines issued by the chief executive under s 196 of the Corrections Act. The Manual applicable at the relevant time set out requirements for the making of segregation directions, as well as requirements for segregated prisoners. The requirements of the Manual understandably reflect the requirements of the Act and Regulations. While Mr Taylor referred to the Manual in his statement of claim and in opening, he spent relatively little time on the document in evidence or closing. To the extent I need to consider the requirements of the Manual, I do so when considering Mr Taylor’s specific claims.
Auckland Prison’s East Division in 2011 and 2012
[90] Throughout the period of Mr Taylor’s directed segregation claim he was accommodated in blocks and cells in the East Division of Auckland Prison. East Division was the only specialist maximum security facility for men in New Zealand. It was constructed in 1969 and remained operational until 2018, when construction of a new maximum security facility at Auckland Prison was completed.100
[91] The division was made up of four blocks: A, B, C, and D. Each block consisted of four landings, which each contained 12 individual cells. East Division also had three other blocks: the Special Needs Unit, which housed prisoners who had been treated by forensic mental health services or were otherwise vulnerable; the old High Care Unit (HCU); and the Detention Unit or “separates area”, known colloquially as “the pound”, where prisoners were relocated to serve sentences of cell confinement after they had been found guilty of a prison offence.
100 East Division is in the process of being demolished.
[92] When Mr Taylor was on directed segregation in 2011 and 2012, he was accommodated in his usual cell in D Block, but was occasionally relocated to the HCU or (for shorter periods) the Detention Unit.
[93] D Block housed mainly maximum security prisoners, as well as high security prisoners who were on the verge of becoming maximum security due to their behaviour in prison. The classification of a prisoner as “maximum” or “high” security relates to the risk the prisoner presents within the prison environment rather than a description of the facility in which they are accommodated. And while A, B, C and D Blocks were all in East Division, D Block housed the maximum security prisoners who posed the greatest security risks. In short, it held the most dangerous and difficult prisoners in the prison system, and those with the greatest management needs.
[94] Although the pathways into prison for those in D Block varied, many were violent and volatile. As the prison manager at the time, Mr Tom Sherlock, explained in evidence, it was this aspect of “volatility, their inability to control their anger” which meant there was a heightened risk which had to be managed. Maximum security prisoners required different and more resource-intensive management than prisoners with a “high” security classification. This included higher staff to prisoner ratios and more precautions in terms of prisoner movements and association with other prisoners. Mr Sherlock explained that the movement of maximum security prisoners involved a staff to prisoner ratio of at least three to one. This arose whenever a prisoner was moved from their cell to the yard, a workshop or for a phone call. This could be contrasted with the staff ratio for high security prisoners, where normally there would be three staff managing an entire wing of 12 prisoners in a yard.
[95] Given the behavioural issues of prisoners in D Block, many of them were on directed segregation at any one time. This complicated movements in the unit, as prisoners on directed segregation were required to be managed away from other prisoners. Another senior Corrections Officer, Mr Uila Kirifi, who worked in D Block during the relevant period, explained in evidence that the high staff ratios made unlocks, movements within the unit and the facilitation of minimum entitlements more complex:
[I]f you’ve got 12 prisoners on the landing with denied association, that’s 12 different unlocks we’ve gotta do... so that’s 12 rec rooms you know we’ve gotta schedule... but if you allowed for association of three prisoners, that’s only four unlocks... so it’s certainly makes our job easier in that regard, but again it’s just the risk factors that we sort of have to consider.
[96] Even for those prisoners who were not on segregation, the ordinary D Block conditions were of necessity very restrictive. Indeed, in closing Mr Taylor acknowledged this point:
... I had been in D Block since 15 March 2010. The “ordinary” D Block conditions were already very restrictive. The only significant way they differed from segregation was in the hours of unlock and that up to 6 prisoners could associate together [in the yard].
[97] While D Block held the highest risk prisoners, the aim was to improve a prisoner’s behaviour so they could reduce their security classification from maximum to high. This would permit them to progress from D Block into one of two “progression units”, being A or B Block. In these blocks prisoners could be managed with a lower staff ratio, and had greater access to one-on-one treatment, work, skills development and other opportunities. If a prisoner continued to cope with greater degrees of association with other prisoners and autonomy, they would ordinarily be moved to what was then the West Division. This division consisted of units opened up to 48 prisoners at a time, and which offered still greater opportunities for programmes, work and the possibility of time off-site.
[98] Apart from the high-risk prisoners held in D Block, the architecture of the unit itself also created risks for prisoners and Corrections officers. The division had four levels. Prisoners were detained in cells on the upper three floors, while the bottom floor contained recreation areas and workshops. Mr Taylor’s cell was on the top story.
[99] Prisoners (and their escorts) moving from their cell to yards or a recreation area were required to go down a single flight of stairs. An added difficulty presented by the multi-floor construction was that prisoners held on upper levels—like Mr Taylor— who were inclined to flood their cells could affect not only prisoners held on their own landing, but also those on floors below. Water could migrate freely out of the grill door of one cell into the landing, and from there flow to adjacent cells before eventually flowing downstairs onto other landings.
[100] Related to the risk of flooding was the difficulty that existed in turning water off to individual cells when a prisoner chose to flood their cell, and the apparent ease with which prisoners could also set-off the sprinkler in their cell.
[101] In addition, D Block cells did not have their own showers. That meant for prisoners to be able to attend to their basic daily hygiene they had to be unlocked to go to a shower area, creating an added demand on resources.101
Making and implementing segregation decisions
[102] The requirements of the Act, Regulations and Operations Manual in relation to segregation decisions were, in practice, met through a series of standardised forms produced by Corrections. Other than Mr Taylor’s first segregation decision, the first step in the decision-making process was the preparation of a memorandum by Auckland Prison’s residential manager (at first Mr Tony Queree, but in later periods Mr Kirifi) to the prison manager, recommending an extension of Mr Taylor’s directed segregation.
[103] The memoranda set out a summary of Mr Taylor’s behaviour and response to segregation, before ending with a recommendation for the Prison Manager. The memorandum would be reviewed by the Prison Manager and, where the recommendation for segregation was accepted, a series of forms prescribed by the Operations Manual recording the decision, its reasons and consequences would then be prepared. The forms also reflect multiple levels of consideration and approval.
[104] The initial decision to place a prisoner under directed segregation under s 58 was—in Mr Taylor’s case—recorded in a form with the somewhat inelegant title: M.01.03.Form.01 Initial segregation for purpose of security, good order, or safety form.
101 The evidence indicates that the physical impediments created by the former layout of East Division has now largely been addressed as a result of the new single-story maximum security prison which has been constructed. Behaviour such as flooding has less impact on the security and functioning of the unit, and on other prisoners and their access to minimum entitlements. The new prison also has cells with their own showers and sprinklers designed to make it more difficult for prisoners to set them off.
[105] The form contemplated supporting documentation would be attached to it, such as misconduct and incident reports recording the behaviour leading to the segregation direction. The form sets out first the decision to place a prisoner on directed segregation and, where the prison manager was not the first decision-maker, it also provided for review and approval of the decision by them.
[106] Two further forms were also required when a segregation direction was made. The first, M.01.03.Form.08 Prison manager’s notification to the prisoner of the prisoner’s placement on segregation or continuation of segregation, enabled the prisoner to be promptly given the reasons for their segregation, as required by s 58(2)(a).
[107] The second form was M.01.03.Form.09 Confirmation of minimum entitlements for a prisoner who is on segregation. This document served as written notification to the prisoner that even though they were subject to a segregation direction, they continued to receive their minimum entitlements. The form often cross-referenced the management plan specifically prepared for that prisoner while on directed segregation.
[108] Where a prison manager decided that a further period of directed segregation was required (that is, beyond the initial 14 days) yet another form was completed: M.01.03.Form.03 Segregation for security, good order, or safety to continue in force beyond 14 days and extensions. And where the extension went beyond three months, the form provided for a Visiting Justice to record their decision to approve or decline the extension.
[109] The relevant forms also reflected the two types of directed segregation contemplated by s 58 of the Corrections Act: restricted or denied association. This generally involved the prison officer or visiting justice ticking the appropriate box. Restricted association involved reducing the pool of prisoners with whom the subject of the segregation order could associate. Denied association meant the prisoner could not be placed in the same room or exercise yard as other prisoners.
[110] Finally, a management plan would be prepared and provided to the prisoner for each period of directed segregation. The management plans covered important matters
such as the delivery of entitlements, and also identified the prisoner’s “target behaviours” that had led to the segregation direction (really the risks the prisoner presented to the security and good order of the prison), accompanied by “intervention actions” designed to address those behaviours.
PART 1: WAS MR TAYLOR’S DIRECTED SEGREGATION UNLAWFUL?
Issues to be determined in this part
[111] Mr Taylor’s first challenge is to the lawfulness of his time on directed segregation. There are three issues I will address:
(a) Did Mr Taylor’s time on directed segregation amount to prolonged and unlawful solitary confinement?
(b) Was the original decision and process leading to Mr Taylor’s first period on directed segregation unlawful?
(c) Were any of the subsequent periods of segregation unlawful?
First issue: did Mr Taylor’s directed segregation amount to solitary confinement?
[112] Mr Taylor argued that the period he spent on directed segregation amounted to solitary confinement. He said that he had been “denied any association or contact with other prisoners”. In closing, he pointed to rr 43 and 44 of the Mandela Rules. Rule 43 prohibits solitary confinement that is “prolonged” or “indefinite”. Rule 44 defines solitary confinement in these terms:102
For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.
[113] Given s 5(1)(b) of the Corrections Act expressly provides that a core purpose of the corrections system is to provide for prisons to be operated in accordance with the Mandela Rules, I accept that the prohibition on prolonged or indefinite solitary confinement in r 44 is a minimum standard of detention in New Zealand. As with other minimum standards, a breach of r 44 will be strongly indicative—although not determinative—of a breach of s 23(5).
[114] Apart from two periods of time when Mr Taylor was detained in the old HCU, when he was on segregation, like other segregated prisoners in the unit, Mr Taylor continued to be managed within the unit in his usual cell and in proximity to the other prisoners on his landing.
[115] Due to the maximum security status of most prisoners in D Block, even when he was not on directed segregation Mr Taylor was only managed with no more than three other prisoners. This management system did not change when he, or the other prisoners with whom he was managed, were on directed segregation. It followed that Mr Taylor’s ability to physically congregate with other prisoners in D Block at any given time was complex, because it would not simply depend on Mr Taylor’s segregation status. Sometimes he would be unable to associate with other prisoners because of their segregation status.
[116] Despite this, prisoners, including Mr Taylor, continued to have regular contact with each other. The construction of the cells meant that the cell doors were open grills. When prisoners—even those on directed segregation—were unlocked for showers or recreation time, they were able to walk along the landing and speak to other prisoners in their cells. This applied when Mr Taylor was released from his cell onto the landing, and equally when other prisoners were released from their cells while Mr Taylor was locked in his. The evidence—including contemporaneous prison records—also indicated that when he was on directed segregation, Mr Taylor liked to spend a lot of his unlock time out on the landing.
[117] Mr Taylor confirmed it was quite common for him to spend time speaking with fellow inmates on the landing. He described (during cross-examination) occasions when he would do so with Mr Paki Toia:
Q ... So when [the daily prison log] says: “Spent most of the time out on the landing” that means the corridor directly in front of your cell, right?
A Yes, that's right.
Q And why would you spend time out there on the landing?
A Probably it's the only opportunity you got to really clean up your cell and have showers and things like that and talk with some of the other prisoners.
Q Okay, so but obviously if you're on the landing, you're not having a shower, you're not cleaning yourself ‘cos you're out on the landing so would it have been to talk to him?
A They unlock the door and the showers always opened, you know, ‘cos it's at the end of the landing and as long as your cell doors up you can use the shower.
Q Yes, but if you were out on the landing itself not in the showers? A I was out in the landing, yeah.
Q You'd be talking to other prisoners? A Yep, could've been, yeah.
A Yeah, some of the time they'd be out in the yards or they'd be gone somewhere or doing something or in the workshops or in the rec room or wherever, yeah.
Q But if they happened to be in this –
A I was, yes. I got appointed as his McKenzie Friend by Justice Brewer but Tom Sherlock would claim that it was too dangerous to have two of us in a room together so, you know, to try and undermine that, yeah.
[118] Mr Taylor also accepted during cross-examination that despite the segregation directions he was able to continue assisting other prisoners with their litigation, although “not as much as I would have been if I’d had them sitting in a room with me”.
[119] Mr Kirifi, a Principal Corrections Officer working on D Block in 2011 and 2012, also confirmed that prisoners on denied association were still able to communicate with other prisoners when they were in the recreation rooms because “that is all open so although the grills are all securely locked ... they can still have that communication with others”.
[120] Beyond daily contact with other prisoners and prison staff, Mr Taylor also continued to have weekly visits with private visitors (something set out in his management plans), and monthly visits from his daughter. He also continued to be able to make phone calls to private individuals, and official bodies such as the Ombudsman and the Prison Inspectorate.
[121] Even when he was detained in the HCU for two periods of his directed segregation, Mr Taylor continued to have regular contact with another prisoner— Mr Tony Adamson—when they were both located in the HCU. During Mr Taylor’s cross-examination of Mr Sherlock, Mr Taylor described his contact with Mr Adamson in these terms:
Q So, it looks like you were trying to take some steps in relation to Mr Adamson anyway, at least you’re getting some care. But ultimately though the care you gave him was you put him next to me in the High Care Unit”.
A Well that ultimately worked I think actually Arthur, I don't know if it was your influence or not but certainly his behaviour changed dramatically whilst we took him out of D Block and put in that High Care Unit...
Q Yes, well I spent a lot of time with him because he never had any distractions down there, you know, going over him like a blasted counsellor, you know, to try and just make him see what was going on, see where he was going in life but I’m glad to see it worked because I wasn’t sure whether he’d lighten anymore...
[122] Finally, when Mr Taylor was squarely asked whether he was completely on solitary confinement when on directed segregation, he said: “No, not completely like 24/7 solitary, no.” This answer is at odds with his evidence in chief, statement of claim and opening address, in which he said that he was “denied any association or contact with other prisoners”.
International consideration of solitary confinement
[123] The focus of r 44 of the Mandela Rules is on the human contact experienced by a prisoner, and whether that contact is meaningful. This imports a contextual and fact-specific inquiry into the degree, nature, duration, and quality of the human contact. That fact-specific analysis is relevant to both whether the conditions of
detention amount to unlawful solitary confinement and, if so, whether that treatment also amounts to a breach of s 23(5).
[124] Accordingly, the focus is not on the label used to describe particular conditions of detention.103 There are numerous correctional regimes around the world designed to separate a prisoner from the rest of the prison population—whether for security, good order, safety, punishment, or some other reason—each with different conditions and varying degrees of isolation. Mr Taylor’s bare assertion that directed segregation amounted to solitary confinement is therefore of little assistance.
[125] So what is meaningful human contact? That, it seems, is not an easy question to answer. An expert meeting convened in Essex, England in April 2016 subsequently led to the publication of Initial Guidance on the Interpretation and Implementation of the UN Nelson Mandela Rules, otherwise known as Essex Paper 3.104 The group concluded that the requirement to have meaningful human contact must be interpreted in light of the intent and purpose of the Mandela Rules:105
The experts stressed that [r 44] needs to be interpreted in good faith and conscious of its intent and purpose. They emphasised that, therefore, it does not constitute ‘meaningful human contact’ if prison staff deliver a food tray, mail or medication to the cell door or if prisoners are able to shout at each other through cell walls or vents. In order for the rationale of the Rule to be met, the contact needs to provide the stimuli necessary for human well-being, which implies an empathetic exchange and sustained, social interaction. Meaningful human contact is direct rather than mediated, continuous rather than abrupt, and must involve genuine dialogue. It could be provided by prison or external staff, individual prisoners, family, friends or others – or by a combination of these.
[126] Likewise, the Ontario Court of Appeal has observed that “evidence of perfunctory contact” between segregated prisoners and corrections staff did not constitute meaningful contact.106
103 In Sheepway v Hendrick 2019 YKSC 50 at [118], the Chief Judge of the Yukon Supreme Court warned against falling into what he called “the label trap”. His Honour observed that the important issue “is the lack of meaningful human contact rather than the label attached”.
104 Essex Paper 3: Initial Guidance on the Interpretation and Implementation of the UN Nelson Mandela Rules (based on deliberations at an expert meeting organised by Penal Reform International and the Human Rights Centre at the University of Essex, 7–8 April 2016) [Essex Paper 3].
106 Canadian Civil Liberties Association v Canada (Attorney General) 2019 ONCA 243, 144 OR (3d) 641 [Canadian Civil Liberties Association] at [25].
[127] While this guidance is useful, it demonstrates that the concept of meaningful human contact does not readily lend itself to hard and fast rules or concrete definition. As the United Kingdom Supreme Court observed in R (on the application of AB) v Secretary of State for Justice:107
“Solitary confinement” is not an expression with a defined meaning in English law. Nor does it have any universally agreed definition in international law. It has been used by the European Court of Human Rights in cases covering a variety of circumstances, but has not been defined. In the case law of the European court concerning article 3, as in domestic cases applying the Human Rights Act, the court has carried out an evaluation of the circumstances of the individual case, rather than asking whether the treatment of the applicant satisfied a particular definition and, if so, basing its decision on whether the period of time during which the definition had been satisfied was in excess of a specified maximum.
[128] In terms of art 3 of the European Convention on Human Rights, it has long been held that removal from association or solitary confinement is not in itself inhuman or degrading treatment.108 In order to constitute a violation of art 3, treatment must attain a “minimum level of severity”.109 That assessment requires a “highly fact- sensitive inquiry into all the circumstances of a case”,110 including where on the spectrum of “sensory deprivation” the case falls.111 The United Kingdom Supreme Court has observed:112
The [European Court of Human Rights] has also made it clear that an assessment of whether removal from association falls within art 3 requires a range of considerations to be taken into account. As it said in Van der Ven (ibid):
“In assessing whether such a measure may fall within the ambit of art 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.”
107 R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28, [2022] AC 488 [AB v Secretary of State for Justice] at [32].
108 Van der Ven v Netherlands [2003] ECHR 62; (2004) 38 EHRR 46 at [51]; Ramirez-Sanchez [2006] ECHR 685; (2007) 45 EHRR 49 at [123]; Ilaşcu v Moldova [2004] ECHR 318; (2005) 40 EHRR 46 at [432]; and Öcalan v Turkey [2005] ECHR 282; (2005) 41 EHRR 45 at [191].
109 AB v Secretary of State for Justice, above n 107, at [40], citing Ireland v United Kingdom (1979- 80) [1978] ECHR 1; 2 EHRR 25 at [162].
110 At [29] and [34]. For factors relevant in the context of ill-treatment of prisoners, see Babar Ahmad v United Kingdom [2012] ECHR 609; (2012) 56 EHRR 1 at [178].
111 Babar Ahmad v United Kingdom, above n 110, at [206]; SF v Director of Oberstown Children Detention Centre [2017] IEHC 829, [2018] 3 IR 466; and Baader and Raspe v Federal Republic of Germany (1979) 14 DR 64 (ECHR) at p 109, cited in Taunoa (SC), above n 5, at [158].
112 Babar Ahmad v United Kingdom, above n 110, at [44].
That statement again makes clear the necessity for a consideration of the particular circumstances, rather than the application of an automatic rule. The stringency of the measure and its duration are naturally treated as relevant factors, but not as the only factors; and the court's consideration of the stringency of the measure is broader than the question of whether it conforms to a particular definition. The same approach has been adopted in later cases such as Peňaranda Soto v Malta...
[129] While the European Convention on Human Rights does not have an equivalent to s 23(5), the jurisprudence around art 3 has “captured the flavour of s 23(5)” by finding a positive obligation on the State to “ensure that a person is detained in conditions which are compatible with respect for his human dignity”.113 As such, the approach to assessing breaches of art 3 may be relevant in the s 23(5) analysis.
[130] Similarly, in relation to challenges to solitary confinement under the Canadian Charter of Rights and Freedoms, the courts have focussed on the meaningfulness of the human contact available to segregated prisoners.
[131] Recent decisions of the most senior appellate courts in Ontario and British Columbia have struck down the legislative provisions authorising the Canadian equivalent of directed segregation,114 on the basis that they breached ss 7 and 12 of the Charter.115 A central finding of those cases was that “administrative segregation”, as practiced in Canadian federal prisons, amounted to solitary confinement under the Mandela Rules.116 That is, isolation from meaningful human contact for more than 22 hours per day. As a result, the Canadian Government in 2019 replaced administrative segregation with “structured intervention units”, in which prisoners are required to receive at least four hours out of their cells and two hours of meaningful human contact per day.
113 Taunoa (SC), above n 5, at [156], citing Kudla v Poland (2000) 10 BHRC 269 at [94], and
McFeeley v United Kingdom (1980) 20 DR 44 at [46].
114 Canadian Civil Liberties Association, above n 106; and British Columbia Civil Liberties Association v Canada (Attorney General) 2019 BCCA 228 [British Columbia Civil Liberties Association]. Unlike in New Zealand, the Canadian constitution is “supreme law”. Under s 52 of the Canadian Constitution Act 1982, “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.
115 Section 7 provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 12 provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
116 Canadian Civil Liberties Association, above n 106, at [1] and [20]: “The distinguishing feature of administrative segregation is the elimination of meaningful social interaction or stimulus”; and Brazeau v Canada (Attorney-General) 2020 ONCA 184 at [13] [Brazeau].
[132] While at a general level there (unsurprisingly) appears to be broad similarities between administrative segregation as it was practiced in Canada and the directed segregation that Mr Taylor was subject to in 2011 and 2012, I do not consider the findings of the Canadian courts (which were not raised or addressed by either party) to be particularly helpful to the issues I have to determine. As I have said, a fact- specific approach is required. There is no evidence of any equivalence between the two regimes in terms of human contact. Indeed, the Canadian decisions were based on extensive evidence, including expert evidence and witness testimony, which is not before me. Further, the now-repealed Canadian segregation regime had a range of surprising features which are not shared by its New Zealand counterpart. For instance:
(a) There were “no hard or soft caps” on the duration of administrative segregation.117 Instead, inmates were to be released “at the earliest appropriate time”, which in some cases was measured “in the thousands of days”. Thus, the legislation authorised “prolonged” or “indefinite” solitary confinement.
(b) The legislation did not provide for independent review of decisions to place inmates in administrative segregation (the power of review remained with prison officials),118 and lacked adequate legislative safeguards to prevent prolonged solitary confinement.119
(c) Administrative segregation cell doors typically had a “small food slot a few feet off the ground”.120 It was through those food slots that meals and medication were delivered, and most communication between segregated inmates and correctional staff occurred.
[133] These factors reinforce my conclusion that the Canadian experience is of limited assistance in determining Mr Taylor’s claim.
117 British Columbia Civil Liberties Association, above n 114, at [12].
118 Canadian Civil Liberties Association v Canada (Attorney General) 2019 ONSC 7491; and
Brazeau, above n 116, at [4].
119 Canadian Civil Liberties Association, above n 106, at [113]–[115].
120 At [20]; and British Columbia Civil Liberties Association, above n 114, at [10].
Consideration
[134] Corrections argued that directed segregation—at least in Mr Taylor’s case— did not amount to solitary confinement. As Mr Kirifi and Mr Sherlock explained in evidence, directed segregation does not in practice completely isolate a prisoner from other prisoners. I accept this submission.
[135] As I have found, while on directed segregation Mr Taylor continued to have regular contact with other prisoners and prison staff, private visitors, and officials. This included assisting other prisoners with litigation, “counselling” them (to use Mr Taylor’s description of some of his interactions with Mr Adamson), and having discussions with them while he was on the landing, or when they were on the landing and he was confined to his cell. Mr Taylor also continued to have non-contact visits with private visitors, and his monthly visits with his daughter. He also continued to make phone calls to both private individuals and officials. And he continued to receive visits from the Ombudsman, the Inspectorate and the Visiting Justice. He continued with his Court work, including appearances.
[136] Even during his time in the HCU, Mr Taylor accepted that when Mr Adamson shared the HCU with him, the two would regularly talk.
[137] While Mr Taylor’s ability to physically interact with other prisoners was certainly curtailed, I am not satisfied on the evidence that his directed segregation amounted to solitary confinement in the sense used in the Mandela Rules. Mr Taylor’s opportunity for meaningful human contact was not limited to time he was unlocked from his cell.
[138] I am reinforced in my conclusion by an analysis undertaken by the Ombudsman in 2013 of Mr Taylor’s logbook entries detailing his daily activities over an eight-month period.121 While the records indicate that on a large number of days Mr Taylor may not have had two hours out of his cell, they also clearly establish that situation did not persist for 15 or more consecutive days. Even if I had found that his
opportunity for meaningful human contact was limited to time out of his cell, the Ombudsman’s report indicates Mr Taylor was not subjected to prolonged solitary confinement.
[139] The time Mr Taylor spent out of his cell, and his contact with prisoners, visitors and officials, are likely to explain why there is no evidence that he suffered from any adverse mental or physical effects from his time on directed segregation. As the Essex Paper panel of experts noted, the general requirement limiting solitary confinement to a period of 15 days is that there is now an established body of evidence indicating that any longer period of isolation is likely to cause lasting harm to the individual.122 This is likely reflected in the Corrections Act itself, which places a 15-day limit on sentences of cell detention. Conditions in cell detention are more likely, given the evidence I heard, to amount to solitary confinement.
[140] For these reasons, I conclude that Mr Taylor’s opportunity for meaningful human contact while on directed segregation did not breach the Mandela Rules, and was consistent with his right to humane treatment under s 23(5) of the Bill of Rights.
Second issue: the first segregation period — 15 June to 28 June 2011
[141] Mr Taylor was first placed on directed segregation on 15 June 2011. At trial, he initially accepted this decision was lawful based on a finding of the Ombudsman in her subsequent report that “the decision to [place] Mr Taylor on directed segregation
... appeared to be reasonable”. However, as noted, this position changed following discovery of an important email exchange by the defendant during the trial.
[142] By closing Mr Taylor argued that the original decision of the prison manager, Mr Neil Beales, had been influenced by senior officials within the Department’s National Office, who wanted Mr Beales to prepare “the most restrictive regime to manage” Mr Taylor’s risk. In essence, Mr Taylor argued that the initial segregation decision was for an improper purpose. He claimed that at the time his challenges to
the prisoner smoking ban had resulted in national media attention and embarrassment for Corrections and its then Minister. While the apparent reason for the initial segregation decision was the discovery of the contraband cellphone in Mr Taylor’s cell on 14 June 2011, Mr Taylor pointed to evidence that possession by a prisoner of a contraband cellphone at the time would not ordinarily result in segregation. He argued there was a reasonable inference the decision had little to do with managing his risk as a prisoner, and more to do with frustrating (or punishing him for) his legal action to challenge the smoking ban.
Corrections’ account of the initial segregation decision
[143] On 14 June 2011 Corrections officers carried out what is described as an “after hours target search” of Mr Taylor’s cell in D Block. Prison officers who were involved prepared incident reports of what occurred shortly after the search. These are contemporaneous records and the best evidence of what took place.
[144] At 4.50 pm, prison officers arrived at the cell to find Mr Taylor standing on a steel table reaching for a light fitting. The cell light had been partly unscrewed and the light cover was hanging loose. Mr Taylor is said to have immediately jumped off the table. He was noticed fidgeting in his shorts pocket and then placed a screwdriver head that fitted the light fittings into his mouth. He spat out the screwdriver head when ordered to do so by the officers. Mr Taylor was then removed from his cell, strip searched and relocated to the D Block phone room under staff supervision.
[145] A subsequent search of the light fitting resulted in the discovery of:
(a) eight new prison issue razors;
(b) a black smart cellphone containing a battery;
(c) Telecom and Vodafone SIM cards and a 4GB memory chip;
(d) a spare cellphone battery;
(e) a hands-free cellphone kit;
(f) four cellphone charger heads; and
(g) five screws (that fitted the light screw fittings).
[146] Also found on the desk of the cell was an Allen key and a “T-bomb” in a plastic jug of water which the officers unplugged when they entered the cell. A “T-bomb” is an improvised electrical element used by prisoners to heat water in their cells. They were prohibited items because of the risk of fire and electrocution they presented, and because prisoners at times (although not Mr Taylor) used them to boil water which could be thrown on other prisoners or staff.
[147] Another prison officer recorded in a separate incident report that while searching the top bed in Mr Taylor’s cell he found concealed under clothing:
(a) 23 packets of zig zag papers;
(b) eight full Riverstone 30 gram packets of cigarettes, and one which had been cut in half;
(c) 13 white lighters;
(d) a black watch with its insides ripped out; and
(e) condoms.
[148] The following day, 15 June 2011 at 4 pm, Mr Brian Singh, Auckland Prison’s Custodial Systems Manager, made an oral decision to segregate Mr Taylor for the purpose of security or good order of the prison. This was subsequently recorded on forms provided to Mr Taylor and to which I will return later.
The National Office email to the Auckland Prison Manager
[149] Four days before the search of Mr Taylor’s cell revealed the contraband, Ms Kelly Reeve, Manager of Executive Services situated in Corrections’ head office in Wellington, sent an email to a number of senior Corrections officials. The recipients
included Mr Beales, the Auckland Prison Manager. The subject line was: “Is this a photo of the space Arthur Taylor is working in?”
[150] The email contained an html link to an article on the Stuff website. The article contained a photo of a desk attributed to Mr Taylor as his “office”. Ms Reeve’s email recorded:
How is Taylor talking with Steve Hopkins and Steve Cook (journalists)? Can you please check his pre approved phone numbers and trace them to check calls are not being diverted or we have not been duped into approving a journalists phone number. Can you assure me again all his mail is monitored, including legal mail to ensure this is indeed legal mail. What intelligence do we have on how this prisoner is communicating directly with journalists? I want to know everything we know about photo's being taken of this space.
We need this ASAP.
[151] Later the same day Ms Reeve emailed the same group of Corrections staff. She said that she had had helpful conversations with two of them. She asked for confirmation that the photo identified in the Stuff article related to Mr Taylor’s office in “Charlie Block ... (pre-May 2010)” and noted “[i]t has been confirmed that it is not his current office space”. Her email then went on to ask for inquiries into Mr Taylor’s phone calls from the D Block office:
... can you look into who and when he has made calls from office phones in the last three months? In particular the lawyer Chris Tennet and Ombudsmen’s office, purportedly Phillip Hooper ... are we being conned with any of these calls – e.g. diverted phones or to people who are not who they/he says they are?
[152] Next her email enquired about mail checking procedures. This included “legal mail” and sought confirmation that all mail was being checked “in compliance with the law” to ensure that Mr Taylor was “not abusing this avenue to communicate with the journalists or conduct any other illegal activity”. Ms Reeve also sought answers relating to Mr Taylor’s visitors and contact with other prisoners, and information relating to Mr Taylor’s attendance at court and who he might have been communicating with there. In particular she asked: “What is the status of the purported amicus curiae?” She then concluded:
With this information in mind, and all other intelligence, can you produce a number of management scenarios to address his risks going forward? These will then be discussed with legal services, but [National Office] will decide as
to the risks we are prepared to take around legal action by Mr Taylor / Ombudsmen / potential human rights issues etc. Please put forward the most restrictive regime to manage his risks along with more moderate approaches.
Lastly, I want to confirm that you have our full support and understanding around the immense frustration this one individual creates and know our intention is to help manage this situation.
(emphasis added).
[153] In accordance with Ms Reeve’s request, Mr Beales provided a detailed response on 13 June 2011. He noted that a Corrections staff member from “Op Intel” was working on providing the majority of the information she had requested. His email then provided the requested “management scenarios”.
[154] The most restrictive regime proposed involved “directed segregation, denied association”. Of the four regimes he put forward, it was the only one which involved complete denial of association under s 58(1)(a). Amongst activities it recorded “minimum entitlements”, “no access to computer” and “restrict all newspapers”.
[155] Mr Beales identified both risks with this approach and “mitigations”. The risks identified included the creation of “large amounts of litigations with associated costs to fight” and “possible risk of breach of PSOM/Prison regulations or rules”. He also noted as a risk that the regime was “unlikely to be supported in court under intense challenge”, along with the “reputational risk to the Department should we lose a challenge”. Mitigations identified included discussion of the approach with the Ombudsman and Inspectorate “to gain support”, and to “frontfoot the media” by explaining the “costs/risks created by Arthur Taylor”.
[156] Mr Beales also set out less restrictive regimes, which are recorded as including a “ban” on the Truth newspaper “as [the prison manager] considers it objectionable material and is a threat to the good order and security of this site”. They also record “all court appearances by Audio Visual Link only unless Order to Produce issued”.
[157] A subsequent email chain between Mr Beales and Mr Trevor Longmuir, an Inspector of Corrections, was also produced in evidence. This exchange occurred after Mr Taylor complained to Mr Longmuir that prison staff were withholding his
subscription to the Truth newspaper. In an email to Mr Longmuir of 22 June 2011, Mr Beales recorded:
I have been liaising with [National Office] as it is my intent to ban the Truth newspaper from this site as I believe much of the content to be a threat to the stability and security of this site.
[158] Mr Longmuir was unconvinced this was the right approach. He replied:
I’m a little surprised as to the reasons for banning the paper. While I agree it is a pretty scurrilous rag, it is probably not that much different from any other tabloid. If you could keep me informed of the final decision and [National Office’s] view on this matter it would be appreciated.
[159] As Ms Reeve’s emails had not been discovered prior to the trial and were not mentioned in Mr Beales’ brief of evidence, he was questioned both by Mr Taylor and myself about them. I asked Mr Beales why he had been required to look at the most restrictive regime of directed segregation before the contraband had been found in Mr Taylor’s cell. His answer was that Ms Reeve’s inquiry was “probably generated by the media interest ... in terms of the articles that she refers to”. I then asked him about the one of the segregation regimes he developed for National Office (described in his email as the “moderate regime”) and its reference to a ban on the Truth newspaper. The following exchange took place:
Q So was it that alternative that you floated that led to National Office saying you should do that or approving that you should do that? I'm just interested in the link [to banning the Truth newspaper] because it happened.
A I must be very clear that, you know, the decision to ban the paper was mine and mine alone. I consulted with people in National Office, such as Eric Fairbairn and others to check my thinking on it of course and to ensure that the decision I was taking would (a) stand up to security and be supported in the face of a challenge and I knew at the time as well that it was not something that you do lightly. However, you know, given the concerns which, you know, you’ve obviously picked up on from the National Office point of view, my concerns are ensuring the site was being operated safe and securely and all prisoners that we were looking after over there were being managed as best we can. I took the decision, I was not told to take that decision, I was not ordered to make that decision or influenced in any way, it was my decision and mine alone.
[160] During cross-examination by Mr Taylor, Mr Beales confirmed that one of Corrections’ concerns was its “reputational damage” arising from the news media coverage of Mr Taylor. But when it was put to him that the segregation decision may have been influenced by pressure from the National Office, Mr Beales replied:
No. As I said before, you know, the decisions I make when I was running the prison were mine and mine alone. I'm quite aware of what my authorities were at the time and I'm also quite able to push back on, you know, if I feel I'm being pressured to do something to raise that. I've never felt the need to do that. However, being the manager of the country’s only maximum security prison with some of the most notorious prisoners in the country you’re bound to get, you're bound to get increased attention and queries and questions from National Office on a range of issues all the time. It’s part of doing the job.
Consideration
[161] The email exchange with Ms Reeve, an official apparently involved in ministerial services based in Wellington, certainly raises a concern that Mr Beale’s initial decision to place Mr Taylor on directed segregation was influenced by external pressures or irrelevant considerations. The difficulty for Mr Taylor, however, is that he carries the burden of proof, and the evidence does not satisfy me that the segregation direction was the product of predetermination, was made for an improper purpose, or based on irrelevant considerations.
[162] To state the obvious, imprisonment involves significant restrictions on basic liberties. This includes the use of telephones to speak to people outside of a prison. Ordinarily, prisoners need to have callers approved by prison management before they make or receive calls from those individuals. There is an obvious public interest in these restrictions. They limit the ability of prisoners to contact victims of their offending or to facilitate criminal activity from inside prison. They also reflect the paramount consideration guiding the operation of the corrections system—the maintenance of public safety.123
[163] While in 2011 contraband cellphones were not an uncommon discovery in East Division of Auckland Prison, and might not routinely result in segregation, the risk posed by an individual prisoner is the most important factor.
123 Corrections Act, s 6(1)(a).
[164] Mr Taylor was serving a lengthy sentence for serious criminal offending. He was a maximum security prisoner, and a troubling feature of his last offending was the use of a contraband cellphone to commit drug dealing offences while in prison. The risk he presented while in possession of a cellphone was therefore obvious.
[165] While Ms Reeve’s email could at first blush suggest undue focus on Mr Taylor’s ability to garner the interest of national media, closer consideration reveals that underlying the Stuff article and her enquiries was Mr Taylor’s ability to communicate freely with journalists, apparently in breach of the Act and Regulations.124 Regulation 108 provides that no person is permitted to interview a prisoner for the purpose of obtaining information and publishing it without first obtaining the written approval of the chief executive. This requirement likely reflects the three concerns identified by reg 109: the interests of the prisoner, the need to protect the interests of other people (particularly victims), and maintaining the security and order of the prison.
[166] The article that prompted Ms Reeve’s email suggests Mr Taylor was communicating with a journalist in breach of the Regulations. Given Mr Taylor’s past offending using a cellphone from his prison cell, it is likely that Ms Reeve and other Corrections officials thought it possible (or even likely) that Mr Taylor was communicating by cellphone with the journalist. It also appears implicit in the email exchanges that there was a concern he was able to transmit electronic images of the prison. It is perhaps not surprising then that Ms Reeve’s email pre-dates the targeted search of Mr Taylor’s cell on 14 June and, more importantly, the discovery of a contraband cellphone.
[167] The finding of the cellphone, given Mr Taylor’s history of committing drug dealing offences from prison using one, was clearly a significant concern striking at the integrity of the prison system.
124 In particular, s 128(1)(d) of the Act makes it an offence against discipline for any prisoner who “without authority, communicates with any person ... outside the prison using a telephone or other electronic communication device”. Possession of a cellphone by a prisoner is also a separate criminal offence under s 141A.
[168] Mr Beales’ evidence was, quite clearly, that he made the decision to place Mr Taylor on directed segregation uninfluenced by pressure from National Office, and that the decision was a response to the contraband discovered in Mr Taylor’s cell. It was not suggested to Mr Beales that this evidence was untruthful. There is no evidential foundation on which I could be satisfied he had lied. Indeed, I found him a credible witness.
[169] I agree with the Ombudsman’s conclusion that the decision to place Mr Taylor on directed segregation for the security or good order of the prison appeared to be reasonable. It is clear that the decision was based on the discovery of contraband in Mr Taylor’s cell on 14 June 2011.
The balance of Mr Taylor’s challenges to the initial period of segregation
[170] Finally, Mr Taylor challenges the lawfulness of his first period on directed segregation on the basis of conclusions of the Ombudsman in her special investigation report. Her findings were that while the decision placing Mr Taylor on directed segregation was reasonable, there were deficiencies in the supporting paperwork.125 The principal concern was that:
It appears Mr Taylor was not given a copy of the report covering the reasons for the segregation, misconduct reports and other relevant documentation, M.01.03.Form.08, or M.01.03.Form.09 as required by M.01.03.Form.
[171] This reflected Mr Taylor’s handwritten note on the form recording the initial segregation decision that copies of accompanying papers said to be attached to the form had not been provided to him.
[172] Mr Taylor submitted that the Operations Manual required a copy of all documents related to a segregation direction to be given to the prisoner within one working day.126 This material was also required to contain a clear statement of the reasons for the restriction on association. He says these requirements were not merely technical. Unless a prisoner is given the reasons for their segregation, and in a timely
125 Ombudsman’s Report, above n 121, at 6.
126 Operations Manual, M.01.03.02 cl 2.
way, they are unable to effectively challenge the decision. It is a denial of natural justice.127
[173] This aspect of Mr Taylor’s claim fails on the facts. The evidence satisfies me that he did receive the supporting documentation required by the Operations Manual, and in any case he certainly did know the reason for his segregation. To that extent, I disagree with the finding of the Ombudsman, which appears to have been based on an incomplete documentary record provided to her, and without the benefit of the evidence I heard from Mr Taylor and Mr Kirifi.
[174] When initially cross-examined, Mr Taylor said the incident reports underpinning his segregation had not been provided to him. Later he conceded that they had been given to him, “but not within the [relevant] timeframe ... because I wasn’t given it until much later”.
[175] However, this overlooks his management plan, which Mr Taylor acknowledged receiving and signing on 15 June 2011 (the day of the segregation decision). The management plan records that it attached the relevant incident reports. I therefore conclude that Mr Taylor did receive the reports and with them the reasons for his directed segregation. Indeed, it seems the requirement to attach incident reports to both the management plan and the M.01.03.Form was an unnecessary redundancy.
[176] I also prefer the evidence of Mr Kirifi, who said that when providing the relevant documents to Mr Taylor he understood there was a requirement to communicate the reasons for the segregation, and to explain why the prisoner was being denied association with other prisoners. He said that he did so with Mr Taylor. It is unsurprising that when advising a prisoner of a decision to place them on directed segregation that the responsible senior officer might also take the time to explain the reasons for that outcome, or that a prisoner might ask for an explanation.
[177] These conclusions are also consistent with the fact that Mr Taylor was able to lodge a prisoner complaint form during the first period of directed segregation
127 Relying on the High Court’s decision in Taunoa v Attorney-General, above n 6, at [88] and [305].
suggesting he was aware of the nature of the contraband that had been located in his cell.128
[178] Finally, while the provision of reasons to a prisoner for a segregation direction in a timely manner is an important procedural safeguard that must be complied with, I would not have found the Ombudsman’s criticisms of Mr Taylor’s paperwork sufficient to support a breach of s 23(5) of the Bill of Rights.129 The issues identified by the Ombudsman are technical, relating to the accuracy and completeness of Mr Taylor’s “paperwork”. Despite her criticisms, Mr Taylor understood the reasons for his directed segregation and was able to exercise his rights of challenge promptly.
Third issue: subsequent segregation directions — 29 June 2011 to 7 September 2012
[179] The balance of Mr Taylor’s claim encompasses seven subsequent periods of segregation and the directions leading to them. Of the seven, the first four, covering the three months between 15 June and 15 September 2011, were made by the Prison Manager (and his delegates). The remaining three segregation decisions, each for a three-month period covering the period 15 September 2011 to 7 September 2012, were made by visiting justices under s 58(3)(d)(ii) of the Act. It follows that the most significant decisions Mr Taylor challenges are those made by independent statutory decision-makers rather than the Prison Manager or Corrections staff.
[180] In closing, Mr Taylor’s case rested on the general and specific findings contained in the Ombudsman’s Special Investigation Report, and in one respect on the findings of an Inspector of Corrections.
128 Mr Taylor’s complaint form dated 23 June 2011 recorded: “The reasons given for my being on directed segregation are that I was in possession of contraband. To date despite requests, I have been given no further information. I point out that there [are] many prisoners charged convicted of possession of contraband including the circumstances where danger to persons (possession of weapons), and facing serious outside charges who are not on directed segregation”. The implication is that Mr Taylor was aware that the contraband primarily consisted of a cellphone and tobacco, rather than weapons.
129 Ombudsman’s report, above n 121, at p 6. The Ombudsman identified four other “procedural deficiencies”, including what was said to be a failure to give Mr Taylor other relevant documentation relating to the reasons for his segregation, an extract from the Corrections Act and Regulations, and one part of one form was said not to have been completed. These matters individually and collectively do not in my view support a breach of s 23(5) of the Bill of Rights.
[181] The Ombudsman’s report was prepared by the Chief Ombudsman, Dame Beverley Wakem. She commenced an investigation in April 2012 having received complaints from Mr Taylor about his treatment. The report was issued on 24 January 2014, following an opportunity for Corrections to provide a response to a provisional version of her report. Broadly, the report is in three sections:
(a) The first is an analysis of the paperwork for each of the first six periods (of eight) of Mr Taylor’s directed segregation. The period covered is 15 June 2011 to 13 March 2012.
(b) The second is a discrete consideration of Mr Taylor’s relocation to the HCU, his management plans while there and general conditions of his cell.
(c) The final section sets out a detailed analysis of Mr Taylor’s daily entitlement to one hour of exercise out of his cell. The period covered by this section of the report is 1 October 2011 to 30 May 2012.
[182] The Ombudsman considered the provision of the necessary segregation paperwork to Mr Taylor before approval had been obtained from the relevant decision- maker was “a significant breach of process, and despite any valid reason which may have existed for extending the order, ... rendered the segregation which followed unreasonable and wrong”.130
[183] Mr Taylor’s management plans in some instances provided for the “very minimum of statutory entitlements”, such as recreation, phone calls and visits. 131 The primary issue with the initial management plan was the restriction on recreation time, and the initial requirement (remedied once raised by the Ombudsman in September 2011) requiring Mr Taylor to use his one hour for recreation to shower, clean his cell and for his allotted phone calls. The Ombudsman noted that Mr Taylor’s
behaviour deteriorated significantly during the first months of directed segregation, and questioned whether his limited recreation time exacerbated his behavioural difficulties.132
[184] The Ombudsman also considered that Mr Taylor’s “rights and entitlements listed on the management plan were restricted despite no risk being identified in relation to those areas”.133 It was considered that restrictions on entitlements while on directed segregation must be linked to an identified behaviour or risk, given that segregation is not a punishment but a management tool. The Ombudsman also considered that the management plans were not imposed:134
... in line with policy, nor in the context in which they were intended which was to manage a prisoners risk and assist in improving a prisoner’s behaviour so that they could return to the general population.” For these reasons it was also considered that the restrictions imposed by the management plans were unreasonable.
[185] During the lengthy periods he was subject to segregation directions, Mr Taylor was also charged “with many of the misconducts that occurred during the period of directed segregation”. As a result he was required to serve periods of cell confinement with loss of privileges. The Ombudsman was concerned that despite this, Mr Taylor was also subject to a directed segregation order and his minimum entitlements were restricted through the imposition of management plans.135
[186] In addition, Mr Taylor’s segregation involved a complete denial of association rather than restricted association. If a decision was made to deny rather than restrict association, “it would be expected reasons for this decision would be clearly documented, and the prisoner informed”. But in Mr Taylor’s case, “there are no documented reasons for the decision to deny him the ability to associate with other prisoners”.136 Further the lengthy period of time that he was denied association was also a concern.137
[187] In relation to the HCU, the Ombudsman principally identified concerns with the physical conditions and the suitability of the cell for housing a prisoner on directed segregation.138
The Inspectorate of Corrections’ report
[188] The Office of the Inspectorate of Corrections also undertook a separate investigation of Mr Taylor’s directed segregation.139 The Inspector appointed was Mr Niuia Aumua. Mr Aumua’s report covered the period 15 June 2011 to 30 September 2012. Many of the Inspectorate’s key findings are at odds with those of the Ombudsman. Likely as a result, the extent to which Mr Taylor relied on the Inspector’s report in closing was limited.
[189] Mr Aumua concluded that Corrections had been “partially” non-compliant with regs 55 and 56. He found that the health centre manager was only notified of Mr Taylor’s segregation on two occasions, contrary to the requirement in reg 55 that notification occur “reasonably promptly” where a prisoner is denied the opportunity to associate with other prisoners.140 Mr Aumua also found that the Prison Manager’s daily visits required under reg 56 “were not carried out every day”, and noted that there were no clear instructions or directions about how those daily visits were to be conducted, or the level of detail that was required in relation to records of the visits.141
[190] However, the Inspector made a number of other important findings, including:
(a) Mr Taylor’s initial period of directed segregation and its continuation was appropriate. This was due to his outbursts, contraband and dirty protests.142
(b) For a period of 17 days between 18 February and 5 March 2012, there were no records in the HCU logbook of Mr Taylor’s placement and
139 Niuia Aumua Inspectorate Review of the Management of Directed Segregated Prisoner Arthur William Taylor at Auckland Prison from 15 June 2011 – 30 September 2012 (Office of the Inspectorate | Department of Corrections, 13 November 2013) [Inspectorate’s report].
activities (the only record of his unlock time related to showering time in the separates area).143
(c) Mr Taylor was provided with his minimum entitlement to one hour of exercise time per day in accordance with s 70(1) of the Corrections Act. However, due to a lack of records, Mr Aumua was “unable to establish from the documents whether [Mr] Taylor had access to external exercise as referred to in s 70(2)”.144
(d) There was no requirement in the Act for a prisoner to be told the reasons why a denial of association had been chosen instead of restriction of association.145
(e) Mr Taylor had received his minimum entitlement for telephone calls.146
[191] The Inspector concluded his assessment of Mr Taylor’s overall management while on directed segregation in these terms:147
Over the twelve months review period, [Mr] Taylor had incurred approximately sixty (60) incident reports. The majority of these incidents related to damaging prison property, contraband found and extreme behaviour such as barricading himself in and ‘dirty protests’. During this time period [Mr] Taylor was also the subject of 55 disciplinary misconduct charges of which he was convicted of 37. A total of 15 misconduct charges were withdrawn/dismissed due to exceed timeframes, including 2 which were dismissed as the witness was not available. Only 2 misconducts were dismissed on the basis of the charge not being proven.
[192] Common themes and findings emerge from the Ombudsman’s consideration of the paperwork for the various segregation periods. My analysis proceeds on the basis of these themes rather than each segregation decision. Mr Taylor’s case is that
the seven subsequent segregation orders covered by the Ombudsman’s and the Inspector’s reports were unlawful as a result of some or all of the following flaws:148
(a) Mr Taylor’s management plans, and their impact on his entitlements, were not tailored or linked to the risks he presented to the security and good order of the prison.
(b) There was a lack of clear documentary evidence that Mr Taylor was advised of the reasons for each segregation direction, and received all relevant papers within one working day of the decision, as required under the Operations Manual.149 In some cases, it was unclear from the papers reviewed by the Ombudsman whether Mr Taylor had received the incident and misconduct reports supporting the segregation directions.
(c) A related process error was that on some occasions Mr Taylor was informed of a decision to extend his segregation before the decision had been “signed off” (in other words, he was advised of the result and provided with paperwork recording it before a decision had actually been made).
(d) In some cases, extensions of segregation were supported by reference to historical incidents or behaviour. This was a feature of the second period of segregation, where the Ombudsman noted “the supporting reasons for the extension to the segregation were events that had occurred prior to the initial segregation order being imposed”.
(e) Mr Taylor was sentenced to cell confinement with loss of privileges during periods when he was on directed segregation. It appears the Ombudsman was concerned about the apparent compounding effect of
148 As noted already, the defendant accepted that for the period June to September 2011, Mr Taylor’s management plans, and his minimum entitlements, unlawfully required him to use his daily hour of recreation time to shower, clean his cell and make his weekly phone call. As this error is admitted, I deal with it later in this section at [285]–[308] although it was a clear error identified by the Ombudsman.
149 Operations Manual, M.01.03.02 cl 2.
loss of entitlements in addition to punishment when the same conduct likely led to both segregation and misconduct offences.
(f) Mr Taylor was not provided with reasons in the papers he received for the decision to deny rather than restrict his association with other prisoners.
(g) On a number of occasions Corrections did not meet the requirements of regs 55 and 56, which require notification of segregation directions to the health centre manager, and daily visits by the Prison Manager or his delegate.
[193] I now turn to address each of these issues.
What risks did Mr Taylor present to the security and good order of the prison?
[194] As noted, one of the general findings of the Ombudsman was that “in many cases most, if not all, of Mr Taylor’s rights and entitlements listed on the management plan were restricted despite no risk being identified in relation to those areas”. In order to evaluate this conclusion, it is first necessary to identify the risks Mr Taylor presented to the security or good order of the prison before then assessing whether the management plans, and any restrictions, were tailored to those risks.
[195] Mr Taylor was cross-examined over a period of nine days, covering nine periods of directed segregation.150 The focus was Mr Taylor’s behaviour in the relevant periods, and its impact on the security or good order of the prison. A key point put to Mr Taylor was that his disruptive behaviour had a material impact on the Prison’s ability to deliver minimum entitlements to the other prisoners housed in D Block. In other words, his behaviour affected other prisoners, and was therefore a
150 The ninth period, which was due to commence on 7 September 2012, does not form part of Mr Taylor’s claim. That is because while the prison manager, Mr Beales, approved a further period of segregation on 31 August 2012, the order was revoked when reviewed by Visiting Justice Sage on 6 September 2012. Thereafter, the remaining periods of directed segregation (between 27 September and 26 November 2012) fell outside the period covered by the reports of the Inspectorate and Ombudsman, and were not pursued by Mr Taylor when he closed his case.
real risk to the good order and security of the prison, given prisoners held in D Block were commonly violent and had poor impulse control.
[196] While Mr Taylor mostly accepted the large number of individual incidents of misconduct recorded in contemporaneous prison records and put to him in cross- examination, he seldom acknowledged the degree to which his conduct affected the delivery of entitlements to other prisoners in D Block, or the risks it created for the safe management of the wing. He tended to minimise its seriousness and suggested his behaviour was justified as a lawful protest in the face of mistreatment.
[197] I generally found Mr Taylor to be unreliable when questioned about his own behaviour and conditions of detention. His explanation for events that painted him in an unflattering light would often evolve, on occasion to such an extent that it contradicted his initial account. Many of his claims were also clearly an exaggeration—for instance his original claim that he was denied “any access and contact” with other prisoners. To the extent Mr Taylor’s evidence is at odds with contemporaneous prison records, and the evidence of the defendant’s witnesses, I prefer the latter.
[198] I begin with an overview of Mr Taylor’s conduct that led to, and persisted during, the periods of directed segregation.
[199] Contemporaneous prison records indicate that during the second to sixth periods of segregation Mr Taylor made several threats of violence or was violent towards prison staff. For instance, on 11 July 2011 Mr Taylor was recorded by prison officers as saying that he “doesn’t care if he dies or staff dies”. The same day he was recorded by another officer in an incident report as having said, “I have nothing to lose so if I kill one of yous I don’t care”.
[200] On 7 August 2011 Mr Taylor was recorded as having smashed an electric razor on the ground and then spat at a Corrections officer. In cross-examination, Mr Taylor said he “spat in [the prison officer’s] direction” and denied this amounted to an assault.
[201] Similarly, on 27 August 2011, after flooding the landing several times in one day, Mr Taylor “threatened staff present that he was going to electrocute them”. When asked about this statement in cross-examination, Mr Taylor’s response was simply: “right”. He subsequently denied recollection of the incident.
[202] During the sixth period of segregation, on 16 December 2011, Mr Taylor was recorded in staff reports as having made the following threats:
He knows where we all live and can send people round to our houses and will make an example, he also stated it will be a rough Christmas ...
He then started yelling that this is going to be a rough Christmas, then broke a broom and jammed the lock. He then walked to the other grill and blocked the lock, cameras were covered ...
Taylor also stated: “I know where all you guys live and I will send people around to your houses” ...
It’s about time you start to get heard around here...you don’t think that I have people watching in prison, I know where you are living? ... I know where all of you guys live and I will send people around to your houses” ...
[203] During his seventh period of segregation, in February 2012, Mr Taylor was relocated to the Detention Unit to serve a sentence of cell confinement. He then threw a plate of food at an officer and shoved another.
[204] A theme of Mr Taylor’s conduct during his periods on directed segregation related to his consistent possession of contraband including cellphones. Over the course of his directed segregation, Mr Taylor was found in possession of cellphones on a surprising number of occasions. Given Mr Taylor had used a contraband cellphone to commit drug dealing offences from a cell in Auckland Prison in 2006, his ability to access these devices was a significant risk.
[205] In addition, Mr Taylor was regularly found in possession of objects that could be used as weapons. This included razors, T-bombs and on one occasion an 80 mm length of hacksaw blade. While he denied the hacksaw blade found in his office was his, Mr Taylor accepted that it “could be put to all sorts of uses, from stabbing staff and prisoners whatever”.
[206] He was also found to be in possession of tobacco and lighters. Given he was not a smoker, I infer that he was intending to supply that contraband to other prisoners. The apparent ease with which Mr Taylor obtained contraband, including items that could be used as weapons and cellphones, raises an obvious concern that he could supply those items to other prisoners. The risk was therefore not limited to Mr Taylor’s use of the contraband.
[207] Mr Taylor regularly flooded his cell during the relevant periods of directed segregation. Flooding one’s own cell would be of little value as a means of energising action on the part of prison staff. The object of Mr Taylor’s flooding was not to affect his own cell, but D Block generally. As noted, the design of the cells in D Block meant that flooding from one cell could not be contained within it. Water would migrate under the cell door onto the landing outside the cell and from there it would begin flooding adjacent cells. If left to run long enough, water would migrate to the opposite landing on the same floor. On some occasions the flooding was so bad that water travelled from the floor Mr Taylor was housed on down flights of stairs and would begin flooding the landings below.
[208] Flooding presented a health and safety risk both to prison staff and prisoners. A common theme of Mr Taylor’s incident reports involved possession of homemade T-bombs. T-bombs also created a risk of electrocution (accidental or otherwise) which, when combined with water on the floor, had a much greater geographical spread.
[209] Mr Taylor accepted, correctly, that when he flooded his cell it could flood several landings. However, while acknowledging that his conduct had the potential to affect Corrections’ ability to deliver minimum entitlements to other prisoners, Mr Taylor was reluctant to concede that it had, in fact, done so. The following brief exchange provides an indication of Mr Taylor’s attitude:
[210] There is little doubt that this form of behaviour, whether Mr Taylor considered it legitimate protest or not, had an impact on prison staff and other prisoners. That occurred because rather than ensuring prisoners were receiving their entitlements, staff were preoccupied with cleaning up Mr Taylor’s flooding. The point is illustrated by reference to three of many incidents, and the contemporaneous incident reports.
[211] The first occurred on 12 July 2011. A flooding incident caused by Mr Taylor was described by a prison officer in these terms:
On Tuesday 12th July 2011 I was rostered 8-5 RMM, at about 1300 hrs I was contacted by [Senior Corrections Officer] Tamihana Simon who informed me that prisoner AW TAYLOR had flooded not only his cell but the whole landing and the water was flowing downstairs.
This created a potentially dangerous situation should electricity be introduced into the mix. This also sever[e]ly impacted on the safe operation of the unit preventing other prisoners from receiving their entitlements including ablutions and recreation as well as new arrivals being placed in cells.
[212] Mr Taylor was relocated to the Detention Unit to allow staff to clean up the landing and attend to their operational duties. The incident report then records:
1530 Prisoner Taylor was visited in detention by RMM Phelan & RM Sweet AWOCA was used in an effort to de-escalate Taylor and to discourage him from flooding his cell he demanded to call his lawyer. RMM Phelan agreed to get back to Taylor on this and other points raised, despite this Taylor again flooded his detention cell. In view of Taylors continued disruptive, dangerous behaviour he remains in the detention block.
[213] When this incident report was put to Mr Taylor in cross-examination, he reluctantly accepted his decision to flood the landing had been disruptive to D Block:
Q ... the whole of D Block is essentially flooded, right? A Well not the whole of D Block, just those two landings.
Q Yes, so if you flooded the main staircase that would obviously create significant issues for movement throughout D Block?
A Could do, yeah.
Q And that’s as much recorded here as well, right? That’s the [result] of what we see here is that the flooding has really created an issue around managing D Block as a whole?
A Well the strange thing is Mr Wiseman, you just go and turn the water off don’t you and it stops it.
Q Yes, but Mr Taylor of course that doesn't mean that the water magically disappears does it, it still has to be cleaned up?
A Well it mostly just drains away as its flooding out but yeah, yeah, that's right. Yeah, there is still work to be done.
[214] As noted, a second example occurred on 27 August 2011. A prison officer’s incident report records:
At approximately 0800 hours on my arrival to Unit I noticed that Top West D block was flooded.
With the assistance of Landing Cleaner and use of wet Vacuum all the water was from the landing was cleaned.
Soon after it was noted that there was water and rubbish on the landing again in front of cell 25 occupied by Prisoner TAYLOR, Arthur William.
Unit staff cleared the water again and it was noticed by officer Burrows that Prisoner TAYLOR, Arthur William was the perpetrator.
I and other unit staff tried in vain to reason with Prisoner TAYLOR, Arthur William that he should stop flooding as staff has just cleaned the landing and other Prisoners are returning back after recreation time out.
Despite of various instructions by staff Prisoner TAYLOR, Arthur William continued with his non compliant behaviour and continuously threw water on the landing to obstruct staff in performing their duties.
Prisoner TAYLOR, Arthur William also threatened staff present that he is going electrocute next.
(emphasis added).
[215] Then, three days later, a prison officer working in D Block arrived to start delivering breakfast to the prisoners but found extensive flooding. He described the incident in these terms:
At approximately 0730 hours, I entered the block to start on the breakfasts and noticed that the Lower Landings were flooded. I went up to the Top Landing to discover that both of the Top Landings were completely flooded.
The Delta Recreation Rooms were also flooded out. This was obviously done overnight and has been a constant occur[re]nce for the past week or so.
3x prisoners from the Top West Landing in Delta have expressed their annoyance of these events and have all said that the perpetrator is prisoner TAYLOR, Arthur William.
(emphasis added).
[216] When this incident report was put to Mr Taylor in cross-examination, he was reluctant to concede he alone had caused such extensive flooding, but seemed to acknowledge that if others joined in that could have been because Mr Taylor had got the ball rolling:
Q So essentially this is another instance of when you’ve flooded almost the entirety of D Block.
A Now you’ve got to remember that by this stage a lot of the other prisoners were joining in, they’d flood the place out too.
Q Well it says here that: “The three prisoners from the top west landing have expressed their annoyance and the events and have all said that the perpetrator is Prisoner Taylor.”
A Well I don't believe that for a second, you know. Prisoners don't come out and say what goes on in prison.
Q But that’s what’s recorded on this incident report.
A I know what showing as appears to be recorded on there.
Q So I put to you Mr Taylor that you flooded the entirety of D Block here?
A No I can't specifically remember this. The whole of D Block is flooded, all right, it’s going to take more than one person, okay I’ll tell you that right now. Yeah, so there's got to be more involved. You can't possibly flood the whole of D Block. I mean you’ve got upstairs and downstairs.
Q And Mr Taylor and what they're saying is that the source of the water is upstairs and the water has come down from the stairs I imagine.
A Right. I mean there's four landings or six if you count the downstairs ones.
Q Yes, so it must have been quite a significant flood that you created.
A Well it appears to be a significant flood but I can't specifically remember this and I do know about this time other prisoners were joining in, you know. There was other prisoners joining in.
Q Did other prisoners frequently join in with you when you were flooding?
A At night they would, yeah.
Q So if you flooded your cell, that would set off a reaction where other prisoners were also flooding their cells?
A No, might’ve decided to, you know, just to do it all.
[217] In addition to flooding his cell and the landings with water, Mr Taylor also engaged in what is known colloquially as “dirty protests”. Dirty protests involve flooding using sewage.
[218] One example occurred on 2 April 2012, when Mr Taylor was back in D Block. He was recorded on CCTV mopping an area on a landing outside another prisoner’s cell. He was then observed throwing faeces and urine under the cell door. This episode appears to have resulted in Mr Taylor being removed from D Block and relocated back to the HCU.
Barricading and destruction of common property
[219] Mr Taylor was also inclined at times to barricade himself in common spaces such as the phone or recreation rooms. He would also destroy prison property located in common areas. In doing so he rendered property unusable by other prisoners until it was repaired, thus affecting other prisoners receiving their minimum entitlements. Again the form and effect of this behaviour on the unit is best illustrated by reference to some examples.
[220] On 2 September 2011, Mr Taylor is recorded as having jammed the D Block recreation room “by attempting to open a grill” and bending the key. The key had to be replaced.
[221] Another incident occurred on 18 November 2011. On this occasion Mr Taylor barricaded himself in the “phone shop” (a communal facility prisoners used to make their personal phone calls), and began destroying the room. Mr Kirifi (a witness in the trial), prepared an incident report in which he recorded that at 10.30 am he was alerted to an incident on the top landing, and on arrival he found Mr Taylor talking to other prison officers “in a very aggressive and agitated manner”. Mr Kirifi began speaking to Mr Taylor in order to “de-escalate the situation”. His report then records:
Prisoner Taylor was quite agitated and accused SCO Singh of denying him of his 5 minute phone call that he is entitled to. I explained to him that SCO Singh was doing his job and that he had to check everything out before he was placed in the phone shop to make his phone call. After a while prisoner Taylor eventually calmed down and requested to make [a] phone call to the office of the ombudsman. Arrangements were made to make this phone call from the office’s phone. At that point prisoner Taylor changed his mind and requested to use the phone shop first to make his five minute phone call. He was then taken to the phone shop. I informed him that he only had 5 minutes to make a call then we would come back to get him.
As I walked off I heard a loud bang, I turned around to see prisoner Taylor smashing the walls of the phone shop. I [started] talking to him again trying to calm him down but prisoner Taylor started barricading himself in the phone shop by jamming the inside grill of the phone shop. At one point he jammed the lock of the main door to the phone shop. He continued to smash the place up using the broken timber and a chair to jam the grill. I gave him a lawful order to come out of the phone shop but he refused.
The A team was called in. At this point prisoner Taylor activated the fire sprinkler and started flooding the landing. I continued negotiation with prisoner Taylor for quite sometime until he was ready to surrender. The lock was removed and the ACR team moved in and escorted prisoner Taylor to the pound.
[222] When cross-examined on this incident, Mr Taylor initially denied having any recollection of it. This was despite stating earlier in evidence that he remembered pushing a cabinet over in the phone shop. He later accepted that he did recall the incident.
[223] On another occasion, Mr Taylor was using the phone shop and smashed the telephone receiver rendering it unusable by other prisoners wanting to make their calls. The incident report records: “The phone is unable to be used now cutting all prisoners phone calls to nil”.
[224] On 16 December 2011, an incident report recorded Mr Taylor was found at about 9 am to have jammed the door lock to his landing using a broken broom handle, preventing staff from gaining access. He refused to remove the obstacle from the lock until he was provided with paperwork. The writer noticed that “prisoner Toia and prisoner Adamson were encouraging prisoner Taylor with this behaviour by cheering him on”. The report recorded:
At approximately 1320 hours I engaged with prisoner Taylor again asking him to check the other prisoners if they were alright as they were pushing their cell alarms but we were unable to get to them. Prisoner Taylor replied by saying that they were hungry and wanting their lunches.
The frequency of Mr Taylor’s misconduct
[225] These risks were compounded by the regularity with which Mr Taylor would engage in the relevant behaviours. The relentless nature of Mr Taylor’s misconduct is illustrated by two periods while he was on directed segregation.
[226] During the second period of segregation Mr Taylor is recorded as having been involved in eight incidents:
(a) On 1 July 2011, Mr Taylor is recorded as having used the prison phone system to make a call. He used another prisoner’s PIN number, called the other prisoner’s father and had the call redirected to other outside numbers. He had also been making calls to one of his own approved numbers and having that person redirect his calls to other numbers.
(b) On 2 July, Mr Taylor became angry that a nurse wanted to deliver his medication to him at 7.30 am rather than at lunchtime, as he wanted. After shouting at the nurse he flooded his cell, causing water to spill out onto the landing.
(c) On the same day Mr Taylor was recorded in an incident report as “winding up [Mr Graeme] Burton when on landing for exercise”. This incident also confirms that even though he was on directed segregation and therefore physically separated from the other prisoners on D Block, he was able to speak freely with those prisoners on his landing during
his unlock time.
(d) On 7 July, Mr Taylor was recorded as banging on his grill “and behaving belligerently over his demands”.
(e) As noted already, on 11 July, Mr Taylor was recorded as telling staff that if management continued to single him out “shit is going to hit the fan ... I have nothing to lose so if I kill one of yous I don’t care”.
(f) On the same day, 11 July, following a threat to flood his cell Mr Taylor did indeed flood his cell, as well as the east and west landings of his floor on D Block.
(g) On 12 July 2011, on his return to D Block from the separates area, Mr Taylor flooded the landing again. He accepted in cross-examination that he was flooding the unit fairly frequently at this stage.
(h) During the same period, Mr Taylor was also recorded as having made unauthorised phone calls from the prison.
[227] The third and fourth periods of segregation are also illustrative of the frequency of Mr Taylor’s behaviour and the risks that required management:
(a) On 7 August 2011, Mr Taylor smashed an electric razor on the ground and spat at a Corrections officer.
(b) On 9 August, he flooded his cell as a result of which the lights of the top west landing had to be left on for safety reasons. That no doubt affected the ability of other prisoners to sleep, a matter that Mr Taylor accepted in cross-examination.
(c) On 10 August 2011, Mr Taylor flooded his cell.
(d) On 11 August, Mr Taylor was recorded as being “loud as usual demanding and stretching time. Spent most of his time out on the
landing”.
(e) On 18 August, Mr Taylor flooded his cell again.
(f) On 19 August, Mr Taylor was recorded as trying to “instigate other prisoners to disrupt the routine in the unit”.
(g) On 20 August, Mr Taylor made 28 unauthorised calls, only 10 of which failed. On the same day, Mr Taylor threw jugs of water onto the landing from his cell.
(h) On 27 August 2011, Mr Taylor flooded his cell. Later the same day, he flooded the landing again, which required the use of a wet vacuum to clear. Once that was done, Mr Taylor flooded the landing again. He also threatened staff that he was “going to electrocute next”, and became aggressive when Corrections officers were trying to facilitate his phone calls.
(i) On 29 August, Mr Taylor flooded the landing again. Then, when given his unlock time, he demanded extra time for his legal calls.
(j) On 30 August 2011, Mr Taylor flooded the landing overnight causing three other prisoners to express their annoyance with him.
(k) During the same period, Mr Taylor refused to hang up the phone and move when ordered to do so. Mr Taylor had his call stopped at which point it was recorded that his behaviour escalated, and he started abusing the Unit Manager.
(l) On 2 September, Mr Taylor jammed the D Block recreation room. He bent the key in the lock, which required replacement, and would have affected other prisoners’ use of the recreation room.
(m) On 8 September, Mr Taylor flooded the landing again with “a large amount of water coming from the top west landing to the cross-
passage”.
(n) On 11 September, Mr Taylor was found throwing cups of water from his cell onto the landing. He had “made a dam to stop the water ingressing his cell”. The report recorded it was a significant hazard for one of the prisoners who only had one leg. Mr Taylor confirmed that was Mr Burton. The same day, a routine cell search revealed a T-bomb in Mr Taylor’s cell.
(o) Finally, on 13 September 2011, Mr Taylor flooded his cell again.
Were Mr Taylor’s management plans tailored to his risk?
[228] In light of all of this it cannot be doubted that Mr Taylor’s conduct was a significant problem within a maximum security facility. The risks prison staff were frequently required to manage included:
(a) threats of violence, including threats of electrocution, and actual violence directed at prison staff;
(b) the possession of contraband, including cellphones, T-bombs, wires and weapons (such as hacksaw and razor blades);
(c) misuse of the prison telephone system, involving making calls to unauthorised people and using deception to do so;
(d) barricading and destruction of prison property such as the phone shop, depriving other prisoners of the ability to make their phone calls or receive their minimum entitlements; and
(e) flooding of the landings and on occasion other floors within D Block. This again had a knock-on impact on the other prisoners and the delivery of minimum entitlements to them.
[229] I am satisfied that there was a rational and legitimate connection between these risks and the need to place Mr Taylor on directed segregation with denied association. First, Mr Taylor was able to regularly obtain contraband, including tobacco, cigarette lighters, weapons and cellphones. While Mr Taylor was at pains in evidence to suggest that the channel by which he obtained the cellphones was prison staff, he was not prepared to identify the officers responsible. On balance, I consider it is more probable Mr Taylor was able to source contraband cellphones from other prisoners. In any case, reducing the opportunity for contraband to be provided to Mr Taylor, or his opportunity to supply other prisoners, was a reasonable approach for prison management to take in the circumstances.
[230] Second, Mr Taylor’s threats of violence toward staff and aggressive behaviour, combined with his tendency to barricade himself in communal areas and destroy prison property when he became upset, made it appropriate for him to be managed in environments where other prisoners were not present. Managing Mr Taylor on his own both prevented other prisoners from being caught up unwillingly in his behaviour, and ensured that when he became threatening or destructive staff did not also need to manage threats posed by other prisoners at the same time. Given the evidence also indicates that Mr Taylor and fellow inmates would at times encourage each other to act out, it seems the risks presented by Mr Taylor to Corrections officers were heightened in the presence of other prisoners.151 Managing Mr Taylor individually when out of his cell significantly reduced the risk his behaviour posed to prison staff.
[231] Third, reducing Mr Taylor’s phone calls to the minimum entitlement reduced his opportunities to continue misusing the telephone system.
[232] However, directed segregation on D Block evidently did not mitigate the risk that Mr Taylor’s flooding posed. That risk could only be effectively managed by placing him in the HCU where the water to his cell could be easily switched off and any flooding would not affect other prisoners. But given the bleak nature of the conditions in the HCU—which Mr Taylor alleges amounted to cruel, degrading or disproportionately severe treatment—Corrections’ cautious use of the HCU worked in
his favour. Indeed, considering the disruption that his at times relentless flooding caused to the routine on D Block, the fact that prison management only resorted to housing Mr Taylor in the HCU on two occasions during the entire period of directed segregation indicates they were sensitive to his conditions and measured in their response. In any event, while there was no direct connection between denying his association with other prisoners and reducing the risk of flooding in particular, it is not a necessary pre-condition that directed segregation mitigate every risk. That would deprive directed segregation of its efficacy as a prison management tool.
[233] Furthermore, I am driven to reach a different view from the Ombudsman in relation to Mr Taylor’s management plans. It is true that Mr Taylor’s management plans ought to have reflected the risks and behaviours that directed segregation sought to both mitigate and improve. But in this case, Mr Taylor’s behaviours gave rise to a wide range of risks to himself, other prisoners and prison officers.
[234] The evidence indicates that Mr Taylor’s management plans largely mirrored his usual management in the already restrictive environment of D Block.152 The tailoring of the management plan and the conditions of directed segregation to reflect the identified risks is evident from the content of the management plans themselves. The following is taken from Mr Taylor’s plan for the first period of directed segregation:
|
Reason(s) for Management Plan
|
|
As per instructions by the Management Team.
|
|
Components of Management Plan
|
|||
|
Staff Ratio
|
3:1 staff ration for all movements
|
Mail (Section 76)
|
as per unit routine.
|
|
Bed & Bedding (Section 71)
|
Sufficient bedding for warmth, health and reasonable comfort
|
Exercise (Section 70)
|
Minimum of 1 hour per day - this includes Yard shower, phonecall and
cleaning cell. Or clean, shower & phone only 15 min if rec
time is declined.
Prisoner will only be
allowed to exercise in the designated recreation areas.
|
|
Meals (Section 72)
|
Meals to be eaten in cell
|
Telephone Calls (Section 77)
|
Minimum of 1 x 5 minute call per week, arranged through unit staff.
Legal calls to suit operational requirements.
|
152 Notably, Mr Taylor’s entitlement to phone calls was increased to two calls per week from the third segregation period onwards. This appears to have occurred without any obvious change or improvement in Mr Taylor’s behaviour.
|
Visitors (Section 73)
|
Sunday, 30 minute booth visit only available for approved visitors - to be
booked with unit staff. (30 minutes between 1415-1445hrs)
Extended booth visits with [Unit Manager] approval only.
|
Programmes (Section 78)
|
Approved programmes/courses, in cell only and with the approval of the
[Unit Manager] only.
|
|
Other Visitors
|
Special visits by arrangement with Unit Manager.
|
Recreation / TV
(Section 70)
|
TV/stereo permitted in cell.
|
|
Legal Advisors (Section 74)
|
Lawyers visits to be arranged with Unit staff and to be conducted in Delta
Block
secure interview room.
|
Inspect/ Ombud's
|
Calls as requested, subject to staff availability and operational
requirements
|
|
Health (Section 75)
|
Health needs met in Unit by health staff on request.
|
Cell Clean
|
Cleaning equipment provided in cell daily and cell is to be clean by the
prisoner on a daily basis. Cell inspection daily.
|
|
P119
|
To be submitted before lock up Sunday
|
Cell Search
|
To be searched once a week.
|
|
Target Behaviours
|
Intervention Actions
|
|
Aggressive, abusive and threatening behaviour towards staff.
|
Structured routine whilst on the Top West landing of D Block. All staff to
actively manage to encourage improvement in behaviour.
F/N to be updated
daily.
|
|
|
|
|
Key Risk Areas - Medication, Psych History, Staff Assaults, At
Risk, Gangs Actions Affiliation, etc
|
Intervention Actions
|
|
Weapon
|
Staff to mai[n]tain 3 : 1 ratio for all movements. All
staff to actively manage to encourage improvement in behaviour.
|
|
|
|
|
Security Issues - Escape History, Classification, IDU Status,
etc.
|
Intervention Actions
|
|
Risk of Escape, Drugs, Found with contrabands
|
Booth visits, Cell to be searched thoroughly as per plan.
|
|
|
|
|
Unresolved Issues - Complaints, Property Claim, Misconduct,
etc.
|
Intervention Actions
|
|
|
|
|
Reintegration Measures to Assist in Return to Mainstream
Population
|
|
CO/Unit staff to work with prisoner on a daily basis to encourage
improvement in behaviour. Monitor and record relevant details in F/N and
incident reports if necessary, during 30 day period, so an ongoing assessment of
this
prisoners internal risk can be maintained. Utilise services of social
worker, chaplain if appropriate. Prison Manager or delegate will visit
prisoner
regularly to discuss future placement and expectations re-behaviour. Any
change to management plan require the approval of Unit Manager
or PCO.
|
|
|
|
Any other Comments
|
|
If behaviour deteriorates further or shows no improvement consideration to
be given to applying for an extension of segregation period-discuss
with
Residential Manager. All staff need to be aware of the risk this prisoner poses
and caution needs to be exercised when dealing
with him.
|
[235] As this and the subsequent management plans recorded, target behaviours, intervention actions as well as reintegration measures were all identified. While brief documents, I am satisfied the plans were tailored to manage the risks that led to the
making of each segregation direction. The wide range of behaviours Mr Taylor was engaging in, and the determined way in which he did so, clearly required careful management. In managing those risks, the plans also reflected that Mr Taylor’s minimum entitlements were to be maintained, at least in all but one respect.153 And it is clear that the management plans were modified from to time to deal with specific behaviours that arose.
[236] Finally, Mr Taylor made a discrete claim that from the third segregation period, his management plans wrongly recorded that all of his outgoing mail, including legal mail, would be examined by the residential manager. The plans specifically recorded:
All mail in and out of the institution for this prisoner is to be examined by the residential manager-including ‘legal mail’ which is to be handled in accordance with PSOM C.01.03. Outgoing legal mail is to be examined before being sealed for posting.
(emphasis added).
[237] Mr Taylor alleged that the requirement to examine his legal mail was contrary to the Operations Manual, and otherwise an unlawful breach of solicitor-client privilege.
[238] This aspect of the management plans was considered by the Ombudsman. She noted that the plans were qualified by express reference to C.01.03 of the Operations Manual, and that “under this section, legal mail may only be examined if it appears to contain an unauthorized item, not as a matter of course”.
[239] Although not entirely clear, it seems her finding was simply that there was an element of ambiguity in the way the requirement to open Mr Taylor’s legal mail was recorded, but that the Operations Manual correctly recorded the position, and was to apply. Notably, the Ombudsman did not go on to record this issue as one requiring corrective action in the summary of her findings on the management plans.
153 As discussed below from [285], until 1 September 2011 the management plans unlawfully provided that Mr Taylor’s one hour of daily exercise was to include showering, cell cleaning and phone calls.
[240] Overall, while the choice of language in the management plans was inelegant, the plans correctly referenced the requirements of the Operations Manual. Regardless, Mr Taylor has not established that his legal mail was inappropriately opened or examined. Accordingly, his criticism of the management plan goes nowhere.
Did Mr Taylor understand the reasons for his directed segregation?
[241] Despite the Ombudsman’s criticism of the completeness of some of the segregation paperwork, I have reached the clear view that Mr Taylor at all times was aware of the reasons for the directed segregation decisions. I am also satisfied that he received relevant incident reports and other segregation papers required under the Operations Manual, and within (or before) the required timeframes. To the extent some records were unavailable, or were incomplete, by the time of trial, that is not evidence of a breach of the Operations Manual, Regulations or the Act. Nor does it sound in a breach of s 23(5) of the Bill of Rights.
[242] As noted, Mr Kirifi gave evidence that when providing the relevant papers to Mr Taylor he would take the time to explain why the orders had been made, and to review the management plans. Mr Taylor’s frequent complaints and requests for review of the segregation decisions by senior Corrections staff and the visiting justice indicate that he was not deprived of any of the protective mechanisms available to a segregated prisoner. The Ombudsman’s criticisms of the paperwork are process related and, while important, in the context of a Bill of Rights claim are technical in nature.
[243] In any case, I am respectfully unable to agree with her findings. As noted, the management plans prepared for Mr Taylor and provided to him for each segregation period invariably stipulated that the relevant incident reports were attached to the form. Mr Taylor in most instances acknowledged receipt of the management plan (and by implication the accompanying papers) by signing it.
[244] To the extent Mr Taylor claimed that the segregation decisions were made outside the s 58 timeframes, and then back-dated, there is no evidence to support the allegation and I reject it.
[245] Finally on this point, Mr Taylor often failed to put to the Corrections officers who gave evidence that he had not received the supporting papers and reasons, but when he did, he was faced with a clear rejection of the proposition. Given the findings that I make in this judgment with respect to Mr Taylor’s credibility, I have preferred both the existing contemporaneous prison documentary record, and the evidence of Corrections staff, to the extent that it is at odds with Mr Taylor’s evidence on this issue.
Timing of supply of paperwork to Mr Taylor?
[246] The Ombudsman found that on several occasions Mr Taylor was provided with segregation paperwork and advised that he was subject to a further period of segregation before the decision had been made by the appropriate manager. She described this as a “significant breach of process” that rendered the segregation which followed “unreasonable and wrong”.
[247] The implication inherent in this complaint is that the decisions to continue segregation were predetermined, or those ultimately responsible for making the decisions simply approved the forms prepared by Corrections staff in a “box ticking” exercise. The difficulty with this argument is that, in each instance, lawful decisions were made by the appropriate delegate (in one case a Visiting Justice), and were made within the required timeframe. There is no doubt that those decision makers believed (in my view on reasonable grounds) that Mr Taylor posed risks to the security and good order of the prison requiring continued segregation.
[248] Moreover, the purpose of the requirement to provide written reasons to a prisoner is to enable them to understand and challenge segregation decisions. Delivering the paperwork to Mr Taylor before the decision was made did not deprive him of the ability to bring a challenge. The complaint is merely temporal and, in my view, without merit. That is not to say that Corrections’ sequencing ought not follow best practice, as outlined in the Operations Manual. It is simply to say that it is a criticism which does not support a breach of s 23(5) of the Bill of Rights.
Was the second segregation decision only supported by historical incidents?
[249] The next issue is whether—as the Ombudsman found—the second segregation direction was based solely on conduct that was historical. Contrary to the finding of the Ombudsman, I am satisfied that the second segregation decision was supported by the discovery of misconduct during the preceding period of segregation.
[250] It is correct that the memorandum in support of the second period of segregation (for the period 29 June to 14 July 2011) referred to the four incidents between 30 March and 15 June that led to the first period of segregation. To that extent, it would seem wrong that those incidents could justify a further period of directed segregation (at least on their own). However, there are two difficulties with this view.
[251] First, the memorandum to Mr Beales as prison manager went on to record two important additional aspects of Mr Taylor’s conduct that had occurred during the initial period of segregation. The first was that Corrections intelligence staff had examined the unit staff telephone records. Their report indicated Mr Taylor had “duped staff into allowing him access to phone calls to people other than legal advisers. One call had actually gone through to a newspaper journalist”. The second incident occurred one week into the first period of directed segregation. This was the discovery of a hacksaw blade in the room set aside for Mr Taylor’s legal work. I therefore accept Corrections’ submission that the Ombudsman’s review incorrectly recorded, with respect to the second period of segregation, that Corrections staff had relied on incidents occurring exclusively prior to the initial segregation being imposed.
[252] The second reason I have reached a different view to the Ombudsman is that the issue on renewal of the initial segregation direction was whether the behaviours and risks that led to its making had been resolved by the time the extension was made. I am satisfied they had not.
Cell confinement as well as directed segregation?
[253] The Ombudsman found that Mr Taylor was subjected to both sentences of cell confinement and directed segregation for the same misconduct. This aspect of her general findings appears to arise from a double jeopardy concern: that the conduct
leading to directed segregation was also punished by misconduct charges and periods on cell detention.
[254] In my view, this aspect of Mr Taylor’s treatment does not give rise to illegality or a breach of s 23(5) of the Bill of Rights. There was no element of double punishment because directed segregation cannot be used punitively. Nor was it used in that way in Mr Taylor’s case. As noted, segregation is a prison management tool designed to manage risk. It is because of this distinction that prison misconduct may support both a period of cell detention and segregation from other prisoners.
No reasons for a decision to deny rather than restrict association?
[255] The next claimed illegality Mr Taylor advanced was based on the Ombudsman’s observation that where a decision has been made to deny, rather than restrict, a prisoner’s right to associate with other prisoners, “it would be expected that the reasons for this decision would be clearly documented, and the prisoner informed”.
[256] In relation to this aspect of Mr Taylor’s claim, he has not satisfied me that Corrections acted unlawfully, much less that there has been a breach of s 23(5).
[257] I prefer the view of the Inspector of Corrections, Mr Aumua, that the Act and Regulations do not require a written explanation for the decision to deny, rather than restrict, association. Section 58(1) does not require a prison manager to first consider whether a prisoner can be suitably managed by restricting their association with other prisoners before considering denied association. That is because restriction and denial are distinct management tools that serve different purposes. Restricted association is most likely to be appropriate where there are specific relationship risks between certain prisoners or groups of prisoners, but not others. By contrast, denied association is appropriate for prisoners whose behaviour creates a general risk to safety and good order. The two types of segregation are therefore directed to different forms of prisoner risk, and the choice between the two is not a sequential process but a binary decision. In any case, a restricted association direction would not have adequately addressed the risks Mr Taylor’s conduct presented, including possession of contraband and, perhaps more significantly, his risk to prison staff.
[258] When Mr Taylor squarely put to Mr Kirifi that “those boxes were just automatically being ticked as denied in relation to me”, Mr Kirifi rejected the suggestion, saying that each decision would be discussed and considered at a weekly management meeting before the forms were completed. Corrections staff therefore turned their minds to the appropriate form of segregation in Mr Taylor’s case.
[259] Finally, the opportunity to associate with other prisoners must also be considered within the management environment in which the issue arises. In D Block’s maximum security regime, at times most of the prisoners on a landing could be on directed segregation, and even those who were not could not be co-located indoors with more than three other prisoners. In those circumstances, Mr Taylor could not have a legally enforceable expectation of association with other prisoners.
Was there a breach of regs 55 and 56?
[260] It will be recalled that reg 55 requires the health centre manager of a prison to be notified reasonably promptly where a prisoner is denied association with others under a segregation direction. And reg 56 requires the Prison Manager or their delegate to visit every such prisoner at least once a day.
[261] It will also be recalled that Mr Aumua, an Inspector of Corrections, found that the defendant “partially did not comply with reg 55”, because there were only two occasions when the Custodial Services Manager had emailed the health centre manager to advise them of Mr Taylor’s segregation. In addition, the Inspectorate found there was no “clear instruction” by prison management about how authorised officers were to go about their daily visits required by reg 56, and that these visits did not occur every day.
[262] Regulations 55 and 56 are essential welfare protections for prisoners subject to directed segregation. A failure to observe the requirements of either could well sound in a failure to treat a prisoner humanely. It was a feature of the judgments in Taunoa that there had been a failure to comply with similar provisions under the Penal Institutions Act 1954.154 However, in this case I am satisfied that the omissions
154 Taunoa (SC), above n 5, at [59]–[62] per Elias CJ and [128] per Blanchard J.
identified by the Inspector were mistakes that did not in Mr Taylor’s case result in a breach of his right under s 23(5).
[263] It is clear that the purpose of regs 55 and 56 is to ensure adequate monitoring of the prisoner’s health and wellbeing by both health staff and prison management. In the present case, the evidence suggested that throughout Mr Taylor’s directed segregation he was visited by nurses in order to deliver his medication. Although the records are not such that it is possible to determine the frequency of such visits, they appear likely to have been regular, if not daily. During cross-examination, Mr Taylor accepted that during his time in the HCU he was receiving daily medication to manage his blood pressure. He claimed, however, that during his time in HCU he was never once visited by a medical staff member, and his medicines were provided by Corrections officers.
[264] However, Mr Sherlock gave evidence that there was a clear requirement, supported by the professional unions, for medicines to be dispensed by nurses directly to prisoners. I accept Mr Sherlock’s evidence, and I am satisfied that even in those periods when notification under reg 55 may not have been given, Mr Taylor continued to be visited regularly by nursing staff. There is no suggestion that despite these visits he suffered from any ill-health that was not detected. The aim of notification—to ensure Mr Taylor’s health was monitored—was in practice achieved. Further, it is clear Corrections modified its practice following the Inspectorate’s report to ensure systematic compliance with the notification requirement.155 For these reasons, any failure to comply with reg 55 in the present case was not sufficiently serious to support a breach of s 23(5) of the Bill of Rights.
[265] I am also satisfied that Mr Taylor was visited daily by a Principal Corrections Officer or the Prison Manager’s delegate. The error identified by the Inspectorate was not a failure to undertake visits per se but to undertake an individual “interview” with Mr Taylor and to accurately record the purpose of the visits. The Inspector found:
The Unit log for 2012 recorded a higher number of manager or delegate daily visits to see the directed segregated prisoners. However, this was not to individually interview prisoners such as Taylor. While the number of recorded
155 Inspectorate’s report, above n 139, at 6.
daily visits had increased since January 2012, the manager or delegate visits were not carried out daily and most of these visits had no notation to clearly confirm the visit under regulation 56 but just a signature.
[266] Once again, the evidence satisfies me that despite an imperfect documentary record, or occasions when the Manager may not have undertaken a personal interview, the underlying purpose of reg 56—daily checks on Mr Taylor’s welfare—was in substance carried out. Mr Taylor was checked every day and monitored closely by senior staff as the law required. There is no indication of any welfare issue arising during his segregation. Again, to the extent there may have been non-compliance at times with reg 56, I am not persuaded it approaches the level of seriousness necessary to establish a breach of s 23(5) of the Bill of Rights.
Were the segregation decisions otherwise fair and reasonable?
[267] Mr Taylor in closing suggested that, in reliance on an observation in the Ombudsman’s report, that he became frustrated with the continuing restrictions being placed on him. He said that this pressure created a situation where he was incurring “misconducts” and that these had a flow-on effect on his ability to reduce his security classification and seek parole. He also submitted that the management plans had obviously not assisted returning him to the general population but were instead aggravating the situation through the imposition of a punitive regime.
[268] Relying on s 6(1)(f)(ii) and (g) of the Act, Mr Taylor submitted that any prudent decision maker was required to ensure his fair treatment, and ensure that decisions about him were taken in a fair and reasonable way. He submitted, in effect, the decisions to continue his segregation became neither fair nor reasonable because his behaviour did not improve; rather, directed segregation exacerbated it.
[269] There is no doubt that Mr Taylor’s inappropriate behaviours continued for a long time. He described the situation as a war of attrition. However, I am not persuaded that persisting with directed segregation in the face of Mr Taylor’s challenging conduct rendered the further decisions unfair or unreasonable. It should be remembered that the significant majority of the time Mr Taylor spent on directed segregation was the result of decisions made by independent visiting justices. Those officers, based on the
evidence, were satisfied that it was necessary to continue Mr Taylor’s segregation to manage the ongoing risk he presented to the good order and security of the prison.
Overall conclusion on solitary confinement and the decisions to place Mr Taylor
[270] Mr Taylor has failed to make out any of his challenges to the lawfulness of the segregation decisions or his management plans.
PART 2: WAS THERE AN UNLAWFUL REDUCTION IN MR TAYLOR’S
CONDITIONS OF DETENTION ON DIRECTED SEGREGATION?
[271] The second aspect of Mr Taylor’s Bill of Rights claim in relation to his time on directed segregation focussed on his conditions of detention. First, he said that throughout the period 15 June 2011 until his segregation was revoked on 7 September 2012, the conditions of detention were “substantially inferior” to those applying to other maximum security prisoners. In particular, he argued that he was:
(a) often denied contact visits from private visitors;
(b) often denied exercise in the open air;
(c) often denied access to direct sunlight;
(d) denied provision of exercise or sports equipment;
(e) denied facilitation of constructive use of his time;
(f) denied access to rehabilitative treatment programmes.
(g) provided with insufficient unlock times and was locked in his cell for at least 20 hours a day;
(h) denied adequate eating utensils in that the cutlery supplied by Corrections was “flimsy plastic” that broke easily;
(i) provided with lukewarm meals and was often without food for 16 hours a day;
(j) not provided any means of refrigerating the milk rations he received resulting in the milk spoiling unless it was consumed quickly;
(k) access to TV, radio and books was only available to prisoners in D Block and the HCU who had the means to obtain them from their own monies or family; and
(l) not provided with his entitlement to the telephone.
[272] Further, Mr Taylor argued in closing that the “most significant deprivation” imposed on him was from 15 June 2011 until “about October 2011”, during which he was permitted only one hour out of his cell. He submitted this amounted to solitary confinement.
[273] Mr Taylor also argued that a key protection of a segregated prisoner’s conditions is reg 62(1), which provides:
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.
[274] He submitted that his conditions on directed segregation were reduced to the bare minimum of entitlements and were below those provided to ordinary prisoners on D Block in breach of reg 62.
[275] Finally, Mr Taylor alleged that the cumulative conditions of his detention in the old HCU—where he was housed during two separate periods totalling 46 days— amounted to breaches of ss 9 and 23(5) of the Bill of Rights.
[276] The issues I need to consider are:
(a) whether Mr Taylor was denied his minimum entitlement to exercise under s 70 of the Corrections Act while on directed segregation and, if so, the extent to which he was denied the entitlement;
(b) whether Mr Taylor’s conditions on directed segregation were worse than those of other maximum security prisoners in breach of reg 62;
(c) beyond this, whether any of Mr Taylor’s twelve specific claims about his conditions of detention—set out at [271] above—are made out;
(d) whether Mr Taylor’s conditions of detention while in the HCU amounted to cruel, degrading or disproportionately severe treatment in breach of s 9 of the Bill of Rights; and
(e) overall, whether Mr Taylor’s conditions of detention while on directed segregation constituted a breach of s 23(5) of the Bill of Rights.
The legal framework
[277] The Corrections Act and Regulations provide for minimum conditions in relation to both a prisoner’s accommodation—principally the physical requirements of a cell—and what are referred to as their “minimum entitlements”, which covers things such as prisoner visits, phone calls and recreation time.
Minimum conditions of detention
[278] The minimum entitlements that must be afforded to all prisoners are set out in ss 69 to 82B of the Act. Section 69 provides:
69 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.
[279] Prisoners may be denied their minimum entitlements, but that may only be for a period of time that is reasonable in the circumstances, and where one or more of the following conditions are also met:156
(a) there is an emergency in the prison;
(b) the security of the prison is threatened; or
(c) the health and safety of any person is threatened.
[280] A prisoner undergoing a penalty of cell confinement may be denied their minimum entitlements for access to private visitors, outward phone calls, rights of communication, and access to information and education.157 However, outside of an emergency or a threat to the security of the prison, the entitlement to daily physical exercise may be denied for not more than two consecutive days only if the prisoner has been temporarily released from custody, and “in the opinion of the manager it is not practicable to provide the entitlement during the times the prisoner is in the prison”.158 In short, there are very limited circumstances permitted by the Act where a prisoner may be lawfully denied their daily entitlement to exercise. This reflects the importance of the entitlement, which is the only statutory guarantee a prisoner has of time out of their cell. During the trial and in evidence the parties referred to the entitlement interchangeably as exercise or recreation time. I will do the same in this judgment.
[281] The content of each entitlement set out in s 69(1) is defined by ss 70–78. Not all the entitlements are in issue, but the following are:
(a) Exercise: s 70 requires a prisoner to be given at least one hour of physical exercise on a daily basis, which may be taken in the open air if weather permits.
(b) Food and diet: s 72(1) requires every prisoner to be provided with “a sufficient quantity of wholesome food and drink based on the food and nutritional guidelines for the time being issued by the Ministry of Health, and drinking water must be made available to every prisoner whenever he or she needs it”.
(c) Private visitors: s 73(1) provides that prisoners are entitled to one private visitor each week for a minimum duration of 30 minutes. This is subject to the Regulations, including reg 101(2) which provides that “conditions or restrictions” may be imposed on private visitors to ensure, among other things, the “security, good order or discipline of the prison”.
(d) Phone calls: s 77 requires the chief executive to ensure that every Corrections’ prison has telephone facilities for prisoners to make outgoing telephone calls.159 Every prisoner is entitled to make at least one outgoing telephone call of up to five minutes per week in addition to any call to an official agency or legal advisor.160 Regulation 86(1) requires the prison manager to ensure that a sentenced prisoner has:
(i) access to a telephone at all reasonable times for the purpose of communicating with their legal adviser about pending proceedings;
(ii) access to a telephone at all reasonable times if an inspector or an ombudsman asks for that prisoner to be able to contact him or her by telephone; and
(iii) reasonable access to a telephone at all reasonable times for the purpose of obtaining any type of legal advice or for any other purpose approved by the manager.
159 However, a prisoner may be required to meet the cost of those phone calls under s 77(4) of the Act, and may not receive any incoming phone calls unless the prison manager thinks it is in the interests of the prisoner or some other person under reg 85.
(e) Education: s 78 entitles prisoners to, among other things, access to further education that the prisoner manager considers will assist in their rehabilitation or reintegration into the community, or a reduction in their reoffending.
Physical requirements of Mr Taylor’s cells
[282] In addition to these basic entitlements, the Act and particularly the Regulations contain requirements in relation to the physical accommodation provided to prisoners. As counsel for the defendant submitted, these requirements are more nuanced than those relating to minimum entitlements. The Act and Regulations provide for different standards depending on whether the cell is in a new or old facility. This reflects the reality noted by Wylie J in Reekie v Attorney-General, that the former East Division was built in 1968, but the Act and Regulations came into force almost three decades later.161
[283] At the relevant times, reg 67(2) required that existing cells (such as Mr Taylor’s cell in D Block) contain the following mandatory items: artificial lighting, a bed, heating as appropriate for climatic conditions, natural lighting, fresh or conditioned air, and an automatic fire detector.162 In addition, cells were required to include “so far as practicable in the circumstances”: a desk with seating, a general power outlet, an intercom, alarm, or call button, a reflective surface (such as polished stainless steel) for personal grooming, privacy screening consistent with safe custodial management, running potable water, shelving, storage for authorised property, a toilet, and hand washing facilities.163
[284] In closing, Mr Taylor did not pursue some of the arguments he had raised in opening and his evidence about the physical conditions of his accommodation. Nevertheless, he cited a COTA report written by the Ombudsman following an unannounced visit to Auckland Prison in April 2012, and a report from the UN
161 Reekie v Attorney-General, above n 39, at [167]–[172].
162 Corrections Regulations, reg 67(2) and sch 3 pt B.
163 Regulation 67(2) and sch 3 pt C.
Subcommittee on Prevention of Torture following its visit to New Zealand in 2013.164 Collectively the reports provide a poor picture of the physical conditions.
First issue: was there a failure to deliver Mr Taylor’s minimum entitlement to recreation?
Recreation time between 15 June and 14 September 2011
[285] The defendant accepts that between 15 June and 1 September 2011, Mr Taylor’s management plans wrongly recorded that his minimum one-hour of recreation time each day was to include showering, cell cleaning and phone calls. This clearly did not conform with the requirements of s 70 of the Act. As the Ombudsman found, the minimum entitlement to an hour of recreation ought to have been provided without any requirement from Mr Taylor to use part of that time for personal hygiene, cleaning, or for phone calls.
[286] Corrections did not accept this error constituted a breach of s 23(5). Nor did it explicitly concede that Mr Taylor was not afforded his minimum entitlement to recreation time during this period. Rather, counsel drew the Court’s attention to gaps in the documentation, such as missing logbooks, and submitted that in light of Mr Taylor’s inconsistent evidence, where there was a conflict of evidence or an absence of records, the Court should prefer the evidence of the defendant’s witnesses. This evidence was that efforts were made to ensure that Mr Taylor received more than his minimum entitlements. In addition, the defendant drew attention to a substantial body of evidence indicating that Mr Taylor routinely declined to take recreation outside in the yard, preferring to use his unlock time on the landing or in the workshops.
[287] Despite the lack of access to the logbooks, I am satisfied that for the period 15 June to 1 September 2011 Mr Taylor was not consistently afforded his minimum entitlement to recreation. That conclusion is supported by three factors:
164 Beverley Wakem Report on an unannounced follow-up visit to Department of Corrections’ Auckland Men’s Prison under the Crimes of Torture Act 1989 (Office of the Ombudsman, 10 August 2011); and Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to New Zealand (28 July 2014).
(a) First, the management plans themselves, and their correction after the Ombudsman’s COTA inspection of Auckland Prison in September 2011.
(b) Second, the Ombudsman’s overall finding that:
The investigation was advised that due to the number of regimes operating in D Block most prisoners on directed segregation were provided with little more than 1 hour out of their cell each day. The management plan, as it was presented to Mr Taylor on 15 June 2011, including showering, cleaning and phone calls within the one hour recreation time was a breach of his minimum entitlements.
(emphasis added)
(c) Finally, the Ombudsman’s analysis of the logbooks for the subsequent eight-month period from 1 October 2011, which revealed that in some months Mr Taylor received substantially less recreation time than his minimum entitlement, even after the error in his management plans had been brought to Corrections’ attention.
[288] I reach this conclusion even though the Inspectorate came to a different one. Inspector Aumua found that “Auckland Prison complied with ... section 70 in that [Mr] Taylor was given a minimum one hours exercise per day”. However, apart from this conclusory statement, there is no analysis of the logbooks to indicate the basis for the finding. By contrast, the Ombudsman’s report contains a detailed summary of the logbook entries for Mr Taylor each month (albeit for a later period starting on 1 October 2011). Overall, given the level of detail in the Ombudsman’s report, on this issue I prefer the conclusion of the Ombudsman.
[289] It is also important to record that despite this finding, Mr Taylor must have received a significant proportion of his minimum entitlement to recreation. That is because the effect of the management plans was to reduce his one-hour minimum entitlement to include showering, cleaning and phone calls.
[290] It is not possible to determine with precision the extent to which the minimum entitlement may not in fact have been delivered during this period on the available
evidence. However, I do not accept Mr Taylor’s claim in closing submissions that during this period he “was only ... permitted one hour out of [his] cell”. The Ombudsman’s report made no such finding and does not support the allegation. The management plans did not stipulate Mr Taylor was not to have any more than an hour out of his cell. Instead, they correctly referred to recreation time as a “minimum” entitlement. And more fundamentally, Mr Taylor’s own evidence contradicted his submission. His evidence in chief—at least for the period when he was not held in the HCU—was that he was confined in his cell “for at least 20 hours a day”, and that he was “normally permitted to spend 2½ hours a day” working on his legal matters.
[291] In light of Mr Taylor’s tendency at times to exaggerate, and the opportunistic or inconsistent nature of some of his specific claims noted at [271], I am not able to accept his evidence about the conditions of detention in the absence of independent corroboration.165
[292] Overall, I am satisfied there was a failure to consistently deliver Mr Taylor’s minimum entitlement to recreation during this initial period of directed segregation. Given the Inspectorate’s finding that showers and cell-cleaning took on average 20 minutes, I will proceed on the basis that Mr Taylor’s daily entitlement to recreation time on some days was most likely reduced by up to a third. It is not possible to make any further findings given the evidence. I also accept that in all likelihood there were days when Mr Taylor chose not to take exercise, and days when he received his minimum entitlement or more.
Recreation time between 1 October 2011 and 30 May 2012
[293] As noted, the Ombudsman undertook a detailed analysis of the available logbooks and other records to determine the delivery of Mr Taylor’s minimum entitlement to recreation for the eight months between 1 October 2011 and 30 May 2012. This period also spanned the times when Mr Taylor was detained in the HCU or undertook sentences of detention in the separates area of the prison.
[294] The analysis is broken down into individual days. For each day it notes Mr Taylor’s recorded activities, the time spent on each activity, the total time he was out of his cell, and the total time for recreation. As an illustration, below is the Ombudsman’s analysis for the month of October 2011:
|
Date
|
Location
|
Activity
|
Time Spent on activity (minutes)
|
Total out of Cell (minutes)
|
Recreation Time
|
|
1/10/2011
|
D Block
|
Shower & Clean
|
28
|
|
|
|
|
|
Recreation
|
85
|
113
|
85
|
|
2/10/2011
|
D Block
|
Recreation
|
86
|
|
|
|
|
|
Shower & Clean
|
47
|
|
|
|
|
|
Visits
|
67
|
200
|
86
|
|
3/10/2011
|
D Block
|
Phone Calls
|
89
|
|
|
|
|
|
Computer Room
|
8
|
|
|
|
|
|
Shower & Clean
|
21
|
118
|
8
|
|
4/10/2011
|
D Block
|
Phone Calls
|
95
|
|
|
|
|
|
Computer Room
|
65
|
|
|
|
|
|
Shower & Clean
|
31
|
191
|
65
|
|
5/10/2011
|
D Block
|
Shower & Clean
|
60
|
|
|
|
|
|
Not stated
|
50
|
110
|
|
|
Time in Detention Centre 6–12 October 2011
|
|||||
|
13/10/2011
|
D Block
|
Phone Calls
|
50
|
|
|
|
|
|
Phone Shop
|
32
|
|
|
|
|
|
Recreation
|
69
|
151
|
69
|
|
14/10/2011
|
D Block
|
Phone Calls
|
45
|
|
|
|
|
|
Phone Shop
|
37
|
|
|
|
|
|
Shower & Clean
|
13
|
|
|
|
|
|
Workshop
|
30
|
125
|
67
|
|
15/10/2011
|
D Block
|
Shower & Clean
|
25
|
|
|
|
|
|
Recreation
|
70
|
95
|
70
|
|
16/10/2011
|
D Block
|
Shower & Clean
|
85
|
|
|
|
|
|
Recreation
|
72
|
157
|
72
|
|
17/10/2011
|
D Block
|
Workshop
|
70
|
|
|
|
|
|
Recreation
|
120
|
|
|
|
|
|
Phone Shop
|
25
|
215
|
215
|
|
18/10/2011
|
D Block
|
Shower & Clean
|
30
|
|
|
|
|
|
UM Interview
|
75
|
|
|
|
|
|
Phone Shop
|
5
|
|
|
|
|
|
Work Shop
|
50
|
160
|
55
|
|
19/10/2011
|
D Block
|
Recreation
|
30
|
|
|
|
|
|
Medical
|
5
|
|
|
|
|
|
Landing Time
|
20
|
|
|
|
|
|
Legal Calls
|
75
|
130
|
30
|
|
20/10/2011
|
D Block
|
Recreation
|
130
|
|
|
|
|
|
Shower & Clean
|
15
|
|
|
|
|
|
Legal Calls
|
80
|
225
|
130
|
|
21/10/2011
|
D Block
|
Workshop
|
22
|
|
|
|
|
|
Legal Calls
|
63
|
85
|
22
|
|
22/10/2011
|
D Block
|
Shower & Clean
|
26
|
|
|
|
|
|
Recreation
|
100
|
126
|
126
|
|
23/10/2011
|
D Block
|
Shower & Clean
|
25
|
|
|
|
|
|
Recreation
|
85
|
110
|
85
|
|
24/10/2011
|
D Block
|
Shower & Clean
|
30
|
|
|
|
|
|
Recreation
|
98
|
128
|
98
|
|
25/10/2011
|
D Block
|
VJ Hearing
|
45
|
|
|
|
|
|
Shower & Clean
|
62
|
|
|
|
|
|
Phone Shop
|
13
|
|
|
|
|
|
Legal Calls
|
42
|
162
|
13
|
|
26/10/2011
|
D Block
|
Phone Shop
|
55
|
|
|
|
|
|
Recreation
|
100
|
|
|
|
|
|
Shower & Clean
|
22
|
177
|
155
|
|
27/10/2011
|
D Block
|
Legal Calls
|
70
|
|
|
|
|
|
Recreation
|
115
|
|
|
|
|
|
Medical
|
30
|
|
|
|
|
|
Phone Shop
|
30
|
245
|
145
|
|
28/10/2011
|
D Block
|
Shower & Clean
|
40
|
|
|
|
|
|
Legal Calls
|
65
|
105
|
|
|
29/10/2011
|
D Block
|
Shower & Clean
|
25
|
|
|
|
|
|
Recreation
|
85
|
|
|
|
|
|
Work Shop
|
48
|
158
|
110
|
|
30/10/2011
|
D Block
|
Shower & Clean
|
20
|
|
|
|
|
|
Landing Time
|
31
|
|
|
|
|
|
Yards
|
35
|
86
|
66
|
|
31/10/2011
|
D Block
|
Legal Calls
|
60
|
|
|
|
|
|
Phone Shop
|
8
|
|
|
|
|
|
PCO Office
|
5
|
73
|
8
|
|
TOTALS
|
|
|
3445
|
3445
|
1780
|
[295] The Ombudsman also took a sensible view of what constituted recreation for Mr Taylor. In particular, time recorded in the unit diary as “recreation”, “work shop”, “phone shop” (where private outgoing calls were made), “landing” and “yards” were all included in the daily and monthly calculation of Mr Taylor’s entitlement to exercise.166
[296] The findings are a mixed bag for Mr Taylor. That is because while in some respects they support his claim that he did not receive his minimum entitlement to recreation every day, they also reveal his evidence that on “many days” he “was not unlocked at all” is plainly incorrect.
[297] Similarly, in relation to the periods Mr Taylor was detained in the HCU, his evidence was that he was “often ... detained in [his] cell 24 hours a day and denied the opportunity of showering, cleaning [his] cell or any exercise/recreation time whatsoever”. This evidence is also at odds with the logbook entries recorded in the Ombudsman’s report. Accordingly, I do not it accept it either.
166 Ombudsman’s report, above n 121, at 22.
[298] The report also noted that:167
In D Block prisoners have 6.5 hours per day available for recreation time and other activities, with the exception of Friday where prisoners have 3 hours available as they are locked down at 11.30am and remain locked for the remainder of the day.
[299] The report went on to acknowledge three other important facts. First, that for certain periods Mr Taylor was serving a sentence of detention and so was not held in D Block or the HCU. Accordingly, the time available for recreation during those periods was not included in the Ombudsman’s monthly calculations.
[300] Second, the logbooks for some periods of time could not be located. Accordingly, the report recorded that the findings in relation to Mr Taylor’s minimum entitlement to recreation time “should be considered in that context”.168
[301] Finally, the report also acknowledges occasions when Mr Taylor declined the opportunity to take exercise.169 This is consistent with the evidence I heard from Mr Sherlock and Mr Kirifi, that Mr Taylor would often prefer to use his unlock time working on his cases or going to the workshop. It also seemed to be a proposition Mr Taylor accepted.170
[302] The summary and analysis of the prison records contained in the Ombudsman’s report is the best evidence of the delivery of Mr Taylor’s entitlement to recreation during the period examined. Importantly, the report supports the following conclusions:
168 At 20. Notably, however, the daily tables analysing Mr Taylor’s logbook entries record specifically days when there were “no entries in logbook” or “no clear entries in logbook”. This suggests records for each day were available to the Ombudsman, but the daily record had not been completed by Corrections officers for the relevant day.
170 During Mr Taylor’s cross-examination of Mr Sherlock, Mr Sherlock gave the following evidence:
To the best of my knowledge I believe it was always offered to you but it would be fair to say Arthur, my belief is also that you weren’t – probably your propensity was more to use that time for phone calls and for working on various legal matters and cases. I think you
– my belief is that you enjoyed that more than working out physically up in the yard, so my understanding is that would have been offered to you but you chose to go to an area where you could use the phone and/or work on your legal paperwork, that would be my summation.
Mr Taylor’s response was: “yes that’s fair enough.”
(a) In some months, such as October 2011, Mr Taylor received substantially more than his minimum entitlement of one hour of exercise per day.
(b) In other months, and in particular November 2011, and February, March, April and May 2012, Mr Taylor received substantially less than his minimum entitlement. The extent of the identified deficiency ranged between five and a half hours in May 2012, to 14 and a half hours in February 2012.
(c) In each of the months analysed by the Ombudsman, Mr Taylor also received significantly more time out of his cell on other activities. The amount of additional time varied from month-to-month but certainly did not amount to six-and-a-half hours each day.
(d) Mr Taylor’s use of the yards appears to have been far more frequent for periods when he was detained in the HCU. When he was housed in D Block, the records contain very few references to the yard. This may be because when in D Block Mr Taylor preferred to use his recreation time in the phone shop, on the landing or in the workshops.
(e) On occasions, Mr Taylor declined to take his entitlement to exercise in favour of using the time for other activities. As I have noted, this was consistent with the evidence I heard from Mr Kirifi and Mr Sherlock.
(f) Overall, the records reviewed by the Ombudsman suggest that in aggregate Mr Taylor did not receive approximately 53 hours of recreation during the 243-day period analysed. That equates to a loss of approximately 22 per cent of Mr Taylor’s minimum entitlement to recreation over the period of directed segregation analysed by the Ombudsman.
[303] The Ombudsman’s analysis is thorough, and the monthly summaries contained in the report suggest that the days when no records were available were relatively few.
The activities recorded for each day also suggest there was a relatively high-level of detail recorded in the logbooks available to the Ombudsman. For that reason, I do not consider the errors in the Ombudsman’s report on other issues deprive the analysis of the logbooks of significance.
[304] The findings of the Ombudsman in relation to Mr Taylor’s daily recreation time places the evidential burden on Corrections to rebut its conclusions.171 However, no doubt due to the passage of time and the lack of the underlying documents, Corrections’ witnesses—in particular Mr Kirifi and the Prison Manager, Mr Sherlock—could not unequivocally assert they had delivered Mr Taylor’s minimum entitlement to recreation. Instead, Mr Kirifi gave evidence that they had “always tried to offer prisoners on segregation a lot more than the minimum entitlements” and that they “normally give one hour recreation time for all prisoners”.172 These qualified propositions are arguably consistent with the logbook records reviewed by the Ombudsman. In any case, the lack of Corrections’ records should not operate against Mr Taylor’s claim for lack of daily exercise time.
[305] There is one period, in particular, during which Mr Taylor is recorded as having had very little time out of his cell. The period is when he was in the HCU between 19 February and 8 March 2012.173 Unfortunately, Mr Taylor did not specifically address this period of his detention or the applicable conditions in his evidence or in cross-examination of the defendant’s witnesses. The Ombudsman’s analysis suggests that there were no entries in the logbook on four days. The entries for other days often record Mr Taylor only having very short periods of time out of his cell, and then only to shower. The reason for this appears to be contained in the Inspectorate report, which suggests during this period the only records that could be located were for Mr Taylor’s showering time in the separates area.174 On balance, I consider the records available to the Ombudsman were incomplete during this period, and do not accurately reflect Mr Taylor’s time out of his cell.
171 Wallace v Attorney-General, above n 52, at [104].
173 The evidence suggests that this period was particularly difficult for Mr Taylor. See below at [366]– [368].
174 There was no shower in the HCU, so Mr Taylor appears to have been taken to the separates area for showering. I infer from the Inspectorate and Ombudsman’s reports that the logbook for the separates area was available for their investigations, but not the logbooks for the HCU.
[306] Overall, on the basis of the Ombudsman’s report I conclude that there was a failure to provide Mr Taylor with his minimum entitlement to daily exercise in the order of 50 hours during the period covered. In arriving at this conclusion, unlike the Ombudsman, I have not taken into account those months when Mr Taylor received more than his daily minimum entitlement.175
[307] It is also an aggravating feature that the Ombudsman had already identified the error in relation to recreation time in Mr Taylor’s management plans for the first three periods of directed segregation. That said, I accept that prison officials endeavoured to ensure that prisoners received their minimum entitlements. I am also satisfied that their ability to do so was no doubt at times affected by the actions of the prisoners they were managing, including Mr Taylor. There is no credible evidence to suggest the failure to deliver the minimum entitlement was deliberate or part of a punishment regime. It seems more likely that the deficiency arose due to a combination of factors including:
(a) limits on resourcing, bearing in mind staff to prisoner ratios in D Block were generally at least 3:1;
(b) the need to manage Mr Taylor’s behaviour and its impact on the operation of the wing;
(c) the likelihood that a good number of other prisoners in D Block were also subject to segregation directions at relevant times and could not be in the same space as Mr Taylor;
(d) the need to manage Mr Taylor’s denied association status with the requirements of other prisoners to have access to their minimum entitlements and time out of their cells; and
175 In October and December 2011, Mr Taylor is recorded as having received 5.6 and 4.7 hours above the daily one hour of recreation time. The Ombudsman’s summary of entitlements for recreation deducted these figures from the total months where there was a failure to provide the minimum daily entitlement. Given the entitlement is a minimum rather than a maximum, I consider the appropriate approach is to simply focus on those months where insufficient recreation time has been recorded.
(e) Mr Taylors choice, on occasions, not to take his entitlement to recreation.
[308] I will return to consider what if any consequences flow from the failure to deliver Mr Taylor’s entitlement to recreation in the fourth part of this chapter.
The balance of Mr Taylor’s claim in relation to his recreation entitlement
[309] It will be remembered that the Ombudsman’s analysis of recreation time covered only eight of the 15 months Mr Taylor was on directed segregation. Except to the extent I have found for him in relation to recreation time, there is an absence of reliable evidence that would permit a finding in Mr Taylor’s favour. Mr Taylor’s claim beyond the period covered by the Ombudsman’s investigation must be dismissed.
Second issue: was there a breach of reg 62?
[310] Mr Taylor’s evidence was that Corrections ran a policy at Auckland Prison of reducing entitlements to the minimum statutory requirements when placing a prisoner on directed segregation. He claimed this default policy had the effect of breaching reg 62(1), which provided:
62 Treatment of segregated prisoners
[311] To succeed with this claim Mr Taylor must establish three elements:
(a) first, that his conditions on directed segregation were materially reduced. This requires a comparison of pre-and-post segregation conditions. Some precision is required given that a merely technical or minor difference will not reach the level of seriousness needed to support a breach of the Bill of Rights;
(b) second, that maintaining the pre-segregation conditions was practicable in the circumstances; and
(c) third, that maintaining pre-segregation conditions was not inconsistent with the purposes of the directed segregation.
[312] Mr Taylor failed to address any of these elements in evidence or submissions. First, he submitted, correctly in my view, that reg 62 requires a comparison of the conditions of detention he received with those that applied to others in D Block who were not on segregation. As he put it:
Effectively this requires a comparison with the conditions of detention imposed on the prisoner before segregation or that prevail in the same prison for someone who is not on segregation and is of the same classification. It is not minimum entitlements that are the proper comparator in ascertaining whether the conditions of detention are below what should be provided.
[313] Unfortunately, Mr Taylor did not then go on to provide that comparative analysis. Nor did he lay an evidential foundation for the comparison, either in his evidence-in-chief or in his cross-examination of the defendant’s witnesses. As a result, the degree to which his claim under reg 62 can be considered is highly constrained. That is especially so given Mr Taylor accepted in closing that ordinary conditions on D Block were already very restricted. He said:
The “ordinary” D Block conditions were already very restrictive. The only significant way they differed from segregation was in the hours of unlock and that up to 6 prisoners could associate together [in the yard].
[314] The Ombudsman’s report noted that “in D Block prisoners have 6.5 hours available per day available for recreation time and other activities, with the exception of Friday”. This does not appear to be a record of the time prisoners in D Block in fact spent out of their cells while not on directed segregation, but rather the hours during which prisoners could be unlocked. The report does not provide a clear basis for the comparative analysis required by reg 62 either.
[315] Given the population of maximum and high security prisoners in D Block, it might well be expected that their daily available unlock time would be less than six- and-a-half hours a day. Moreover, those on directed segregation could be expected to have less unlock time than they ordinarily would. That impression is confirmed by a
Human Rights Commission OPCAT report cited by Mr Taylor in his closing submissions, which, in relation to the period 1 July 2012 to 30 June 2013, recorded:176
The lack of appropriate management facilities at Auckland Prison means segregated prisoners are housed with non-segregated prisoners, including, on occasion, remand prisoners. This mixed regime, along with reduced unlock hours (8.30am to 11.30am and 1.30pm to 4.30pm) dramatically reduces the time out of cells for prisoners.
[316] Overall, the failure of Mr Taylor to provide the necessary evidence is fatal to this aspect of his case. He has failed to discharge the onus on him to establish a breach of reg 62 or s 23(5) of the Bill of Rights.
Third issue: are any of Mr Taylor’s specific claims made out?
[317] Mr Taylor identified 12 specific aspects of his treatment that he says, collectively, constituted a breach of s 23(5) of the Bill of Rights. Before considering each of these allegations it is necessary to make some general observations and findings.
[318] First, Mr Taylor’s evidence in support of each specific claim at times amounted to little more than an unsubstantiated assertion or conclusion. The point can be illustrated by two examples. In relation to his access to sunlight while on directed segregation, Mr Taylor’s evidence in chief was:
There was no access to direct sunlight. Maintenance of an adequate standard of health inherently, in my submission, requires access to sunlight.
[319] Similarly, in relation to exercise, the sum of Mr Taylor’s evidence was:
There was no exercise in the open air. The Act provides that there is a minimum one hour exercise in the open air should be available daily except in the circumstances specified in section 69(4) of the Act.
[320] This approach to proving the underlying facts essential to his claim was problematic. First, the absolute nature of the claims means that they were vulnerable to contradiction, which proved to be the case. Second, largely because of that, in
176 Monitoring Places of Detention: Annual report of activities under the Optional Protocol to the Convention Against Torture (OPCAT) 1 July 2012 to 30 June 2013 (Human Rights Commission, Auckland, 2013).
material respects the position Mr Taylor adopted on oath was by closing significantly more equivocal. To illustrate the point, Mr Taylor’s position in relation to access to direct sunlight and exercise outside became that he was “often denied access to access to direct sunlight” and “often denied exercise in the open air”. These departures from his evidence did little to assist the overall credibility of his claims.
[321] Other aspects of Mr Taylor’s original allegations about his accommodation were not pursued by the end of the trial. This included claims that there was inadequate ventilation in his cell or heating in winter, the absence of a privacy screen, and the size of his cell. The defendant’s evidence satisfies me that there is nothing in these claims, which may explain why Mr Taylor did not pursue them in closing. Some of the claims had also been considered and dismissed in Taunoa.
[322] Mr Taylor’s evidence was that while on directed segregation he had no contact visitation with private visitors. This meant that he was required to see visitors in a room where there was a transparent barrier separating Mr Taylor from his visitor. These were referred to in evidence as “booth” visits.
[323] The defendant accepted this was the case. Corrections’ evidence was that there was no contact visitation in East Division at all. The defendant’s position was that non- contact visits were consistent with the requirements of the Act and Regulations.177 A prison manager, under reg 101(2), is empowered to impose any condition or restrictions on visits necessary to ensure the security, good order or discipline of the prison. Mr Sherlock and Mr Kirifi gave evidence that the purpose of the “no contact” restriction was due to the risk posed by the prisoners in East Division. The prisoners had a “tendency to exploit opportunities to circumvent security”.
[324] I am satisfied that no-contact visits were a lawful and appropriate means of reducing risk to the security and good order of the prison. It was a requirement for all visits to any prisoner in East Division. And given the evidence relating to the relative ease with which Mr Taylor was able to obtain contraband, it is difficult to fault
177 In particular, s 73(1) and reg 101(2).
Corrections’ approach. Mr Taylor has not satisfied me that this requirement was unlawful, much less that it supports a breach of his right under s 23(5) of the Bill of Rights.
[325] The evidence satisfies me that Mr Taylor was given the opportunity to take exercise in the open air when he chose to. I do not accept his evidence that the yards were not operational for “months and months” from early 2012. The Ombudsman’s report records that the logbooks for January 2012 had Mr Taylor taking exercise in the yards on ten days between 2 and 12 January. There are also references to Mr Taylor taking exercise in the yards in February and March 2012. The pattern revealed is that when Mr Taylor was detained in the HCU, he was more likely to have recreation in the yards, but when in D Block, he spent his recreation time inside.
[326] The credibility of Mr Taylor’s evidence on this issue was also significantly undermined during cross-examination. These difficulties included reliance on a report of the Ombudsman relating to a period in 2014, and therefore outside the period of Mr Taylor’s directed segregation claim. The evidence also firmly established that Mr Taylor’s preference was for recreation time in the workshops, making phone calls or working on his cases, rather than taking exercise outside. It follows that Mr Taylor has not satisfied me that he was generally denied the opportunity to exercise in the open air.178
[327] As I have noted, Mr Taylor’s evidence-in-chief was that he had “no access to direct sunlight” while on directed segregation. However, by closing, his case was that he was “often denied access to direct sunlight”.
[328] I do not accept Mr Taylor’s submission, or his evidence. The cells on D Block had an open grill-front facing the landing, the opposite wall of which was lined with large windows spanning its length. In short, Mr Taylor’s open cell-front looked out
directly to windows permitting access to natural sunlight. And while Ronald Young J found in Taunoa that natural light levels in D Block cells were low, he did not find a breach of reg 58. Rather, the Court concluded that this condition “may need to be factored into an inmate’s other daily opportunities to experience natural light”.179
[329] Access to natural light was significantly better in the HCU cell, which had a large wall of windows facing out onto a yard. This element of Mr Taylor’s accommodation in the HCU does not support a claim under s 23(5).
No provision of exercise or sports equipment
[330] Mr Taylor did not claim that he had a legal entitlement to sports equipment. Even so, I accept the evidence of Mr Sherlock, Mr Kirifi and Mr Nui, that there were pull-up bars, dip bars and basketball hoops in the yards in D Block, and also pull-up bars in the recreation rooms. In addition, the nature of the equipment that could be provided was challenging, given the risk it might be damaged or used improperly. More fundamentally, I accept Mr Kirifi’s evidence that he does not remember Mr Taylor exercising. Instead, Mr Taylor spent most of his time on his legal matters.
[331] The limited provision of exercise equipment did not constitute a breach of legal requirements, or s 23(5) of the Bill of Rights.
Constructive use of time and access to TV, radio and books
[332] Section 50 of the Corrections Act requires the Chief Executive of the Department to ensure that, as far as practicable, every prisoner is provided with an opportunity to make constructive use of his or her time in prison. Mr Taylor’s evidence was that:
Apart from my self-directed time spent on prosecuting various legal matters, I was effectively warehoused and not allowed any activities or given access to facilities or programmes that would’ve allowed me to constructively use my time
[333] He also claimed that access to television, radio and books was only available to those prisoners who had the resources to obtain them from family and friends
179 Taunoa (HC), above n 6, at [101]–[106].
outside the prison. Further, for his entire detention in D Block and the HCU, there was a complete failure to provide, or a substantial and material derogation from, his legal entitlement to make constructive use of his time.
[334] Prisoners do not enjoy a minimum entitlement to State funded televisions or radios. Despite this, it is clear Mr Taylor had access to both of these things while in D Block and HCU. In addition, East Division also had a library where prisoners could obtain books.180 More importantly, it is also clear that Mr Taylor was given the opportunity for constructive use of his time, and that he made use of that opportunity. As Mr Kirifi explained, Mr Taylor preferred to “use the phone a lot” and work on his legal matters. As already noted, Mr Taylor had the exclusive use of a recreation room for his litigation, which became known as “Taylor’s office” by staff and other prisoners. Mr Kirifi’s recollection of Mr Taylor’s use of his time out of his cell was that he was either in the workshop, where the phones were located, or in his office.
[335] Mr Sherlock explained that “Taylor’s office” was for Mr Taylor’s private use on his cases. He was also given access to a computer, at least until he was found with USBs and hard drives with unauthorised material on them (when the computer was replaced with a typewriter). And while Mr Taylor maintained that he was not afforded constructive use of his time, he acknowledged in cross-examination that work on his numerous cases was a constructive use of his time:
Q Yes so you accept that [working on your cases] was constructive use of your time? All your various legal cases that you continue to conduct?
A Absolutely, it was, it’s my saviour.
[336] It is also clear that Mr Taylor was able to assist a number of other prisoners with their own proceedings, and to use his time reading and preparing for his litigation. Overall, I am satisfied Mr Taylor was afforded the opportunity and means for constructive use of his time, as required by s 50.
Access to rehabilitative programmes
[337] This aspect of Mr Taylor’s claim relates to s 52 of the Act, which provides that to the extent consistent with available resources and any prescribed requirements, rehabilitative programmes are to be provided to prisoners “who, in the opinion of the chief executive, will benefit from those programmes”. Mr Taylor’s evidence was that he was denied rehabilitative opportunities while on directed segregation. He put it this way:
During the whole of the time I was segregated I was not provided with or allowed access to any rehabilitative programmes or interventions that could effectively assist my rehabilitation and reintegration into the community upon my release.
[338] It is true that during the period of directed segregation Mr Taylor was not afforded access to rehabilitative programmes. But I am not satisfied this constituted a breach of s 52 of the Act, or s 23(5) of the Bill of Rights. I have reached this view for several reasons.
[339] The first is practical. It might be recalled that in 2011 Mr Taylor had outstanding criminal charges. These charges rendered him ineligible for parole at the time. It was not until Mr Taylor’s criminal appeal was resolved in late July 2012 that he could meaningfully engage in a rehabilitative programme. Mr Taylor accepted that as the position at the time when dealing with the Parole Board.
[340] Second, Mr Taylor’s maximum security classification at the time rendered him ineligible for group-based rehabilitative programmes. The principal programme identified by the Parole Board as essential to Mr Taylor’s rehabilitation was the STURP programme, which was an intensive group-based course only available to prisoners classified as low-medium or below. The combination of security classification and limits on participation in group activities was an obvious practical limitation on Mr Taylor’s access to rehabilitative programmes. The same constraints applied to all prisoners in D Block. And while there were individual rehabilitative options available to prisoners in maximum and high-security facilities, Corrections’ primary focus was on reducing a prisoner’s classification to enable participation in
group-based programmes. This reflects the reality of most rehabilitative courses, which commonly have an important social element.
[341] Finally, Mr Taylor’s behaviour during the period of his directed segregation leads me to conclude that he would not have been able or willing to meaningfully participate in a rehabilitative programme. Once these behavioural issues began to resolve themselves, he was able to engage in one-on-one sessions with a psychologist.
[342] For these reasons, Mr Taylor has not established a breach of s 52 over the period of his directed segregation. Nor does this argument support a breach of s 23(5) of the Bill of Rights.
[343] Mr Taylor’s evidence was that “for at least 20 hours a day” he was “confined in a cell that was essentially a windowless box”. When allowed out, he said he was only allowed in the workshops. The title “workshop” was a misnomer because, according to Mr Taylor, it was essentially just a larger version of his own cell with no distractive facilities or recreational amenities. He went on say in evidence:
Now, these are the days when I was unlocked of course. Many day[s] I was not unlocked at all and that meant I could not shower or clean myself ‘cos the
... the cells don't have showering facilities, so you can – you're required to do all of this in your unlock time, and you’ll see what the Ombudsman says about that. So I was not unlocked at all on many days. I could not shower or clean myself effectively as the rudimentary cleaning equipment was only provided during unlock time.
[344] For the reasons already given, I do not accept Mr Taylor’s claim that on many days he was not released from his cell. It is contradicted by the Ombudsman’s report, on which most of his claims under this chapter rely. Nor do I accept that he was denied access to showers or the ability to clean himself. The Ombudsman’s analysis shows that even on days when he is not recorded as having received an hour for recreation, Mr Taylor was routinely provided with time for showering and cleaning.
[345] Apart from the minimum entitlements prescribed in the Act, prisoners do not have a statutory expectation to a set amount of time out of their cells. While I accept that routinely confining a person in a cell for upwards of 20 hours a day may begin to
approach the threshold in s 23(5) of the Bill of Rights, in a maximum-security facility such as Auckland Prison’s East Division, unlock time for segregated prisoners might be quite different from that experienced by non-segregated prisoners or those with a lower security classification. However, even with an appreciation for the realities of managing a prisoner in a maximum security prison, there are periods in the Ombudsman’s analysis which are troubling. Sometimes for a period of days Mr Taylor is recorded as having less than two hours out of his cell in a day, and on some occasions less than one.
[346] Taken in combination with the failure to consistently provide Mr Taylor with recreation time, and the stringency of the conditions generally, I am concerned by the amount of time afforded to Mr Taylor out of his cell beyond his minimum exercise entitlement. I consider this is a factor relevant to the assessment of s 23(5). I reach this conclusion notwithstanding the possibility that the records available to the Ombudsman may have been incomplete in some respects, and that Mr Taylor’s own behaviour undoubtedly affected the ability of prison staff to provide him with more time out of his cell.
[347] Mr Taylor’s evidence was that meals were served on paper plates and eaten with flimsy plastic cutlery that broke easily. If it broke, according to Mr Taylor it was not replaced until the next meal. When this occurred, food had to be eaten by hand. In addition, Mr Taylor gave evidence that “very, very rarely” were meals served other than lukewarm, despite a requirement in the Operations Manual that hot meals must be served hot (and cold meals served cold). The evening meal was served at 3.45 pm each day. Moreover, no food or beverages were provided between the evening meal and breakfast at 8.15 am the following morning. It followed that prisoners, including Mr Taylor, had nothing to eat or drink (apart from water) for at least 16 hours a day.
[348] The defendants’ evidence did not take issue with much of Mr Taylor’s complaints in relation to the timing and temperature of the evening meal. Staff would begin delivering dinner at 3.45 pm as the day shift finished at 5 pm. It was also accepted that meals could be lukewarm by the time they reached some prisoners
because meal service occurred only after all prisoners were locked down in their cells, and took some time to complete. The central point in response by Corrections is that the timing and temperature of Mr Taylor’s evening meal did not constitute a breach of s 72(1) of the Act, which requires prisoners to receive “sufficient quantity of wholesome food and drink” based on guidelines issued by the Ministry of Health.181
[349] I accept the defendant’s submission. While the long period between the evening meal and breakfast, and the service of lukewarm meals, was not appropriate and may not have been consistent with the Operations Manual, it does not constitute a breach of s 72. Nor does it support Mr Taylor’s claim under s 23(5) of the Bill of Rights.
[350] I reach the same conclusion in relation to Mr Taylor’s complaint about the adequacy of the cutlery provided to him. In a maximum security environment, metal cutlery is a self-evident risk and no criticism can be made of Corrections’ decision not to supply it to prisoners. Ultimately, Mr Taylor’s complaint came down to the fact that in the rest of Auckland Prison, prisoners were supplied with “much firmer plastic”. I accept Mr Kirifi’s evidence, that when cutlery or eating utensils broke, staff would provide replacements. In addition, Mr Taylor accepted in cross-examination that he typically kept a stockpile of the plastic cutlery in his cell. Mr Taylor’s criticism of the cutlery compared to that available to other prisoners does not support a breach of s 23(5) of the Bill of Rights.
[351] Mr Taylor claimed that despite the “almost tropical heat” of Auckland in the summer, there was no means of refrigeration provided to him for his milk rations or other food. This meant that the milk ration provided with breakfast—required to last a full 24 hours—spoilt and became unusable during the day. To avoid this, Mr Taylor had to consume it quickly. In addition, Mr Taylor pointed to prison staff, who had refrigeration available to preserve milk they received for their own use.
181 The defendant also noted that more recently prisoners in the new maximum-security prison receive a supper in addition to dinner, and a “hot-box” system of food heating and delivery has been implemented to keep food warm until it is ready to be served to prisoners. While those changes are commendable, they tend to suggest that the regime that operated when Mr Taylor was in D Block was less than desirable.
[352] Prisoners do not have an entitlement to refrigerated products in either the Act or Regulations. Mr Sherlock’s evidence was that staff at Auckland Prison had tried to provide prisoners with access to refrigerators in the units, but most refrigerators were either destroyed or used as barricades by the prisoners. As a result, they were withdrawn. The exception was A Block, where Mr Taylor was briefly accommodated, where prisoners could have access to microwaves and fridges.
[353] I readily conclude that there has not been a breach of the Act, the Regulations, or the Bill of Rights, in relation to Mr Taylor’s lack of access to refrigeration for his milk ration.
[354] Mr Taylor’s evidence was that for the whole time of his detention in D Block and the HCU there was either a complete failure to provide, or a substantial and material derogation from, his legal entitlement to telephone access.
[355] The minimum entitlement to outgoing phone calls is one five-minute call a week.182 However, most of Mr Taylor’s management plans while on directed segregation provided that he was permitted to make two phone calls of five minutes’ duration—double the minimum entitlement.
[356] Mr Taylor’s management plans also record that in addition to his private calls, he was afforded the opportunity to make calls to legal representatives, and officials such as the Ombudsman’s office, and the office of the Inspectorate. Mr Taylor accepted in cross-examination that his phone calls continued to be facilitated by Corrections staff while he was on directed segregation, including calls to officials “as requested”.
[357] As Mr Neil Beales explained, the two-call limit was a response to the difficulties staff had encountered managing Mr Taylor’s phone calls. The reasons were set out in a letter of 12 July 2011 Mr Beales wrote to Mr Taylor, which explained that
Mr Taylor’s private calls had been restricted because he had used another prisoner’s PIN number and had his calls transferred to unauthorised phone numbers.
[358] Given the evidence, I am satisfied that Corrections provided Mr Taylor with more than his minimum entitlement. That is so even though Mr Taylor went to some lengths to breach the requirements for prisoner phone calls.
Fourth issue: did Mr Taylor’s conditions of detention in the HCU breach s 9 of the Bill of Rights?
[359] I now turn to consider a discrete element of Mr Taylor’s directed segregation claim which focuses on the periods that he was removed from his ordinary cell on D Block to a cell in the old HCU—a decommissioned unit that had been previously used to house at-risk prisoners. Mr Taylor was detained in the HCU for two 23-day periods. The first was from 21 December 2011 to 12 January 2012, and the second was between 18 February and 11 March 2012.183
[360] Mr Taylor alleges that the conditions of his detention in the HCU amounted to cruel, degrading or disproportionately severe treatment in breach of s 9 of the Bill of Rights. Once again, to the extent his claim was based on detention in the HCU, Mr Taylor relied exclusively on the findings of the Ombudsman.
The events leading up to and during Mr Taylor’s detention into the HCU
[361] Mr Taylor was first placed into the HCU immediately before the Christmas vacation period in December 2011. What follows is an overview of his conduct in the week leading up to his relocation:
(a) On 14 December 2011, Mr Taylor was given two days in the Detention Unit by a Visiting Justice after a search of his cell revealed a cellphone.
(b) On 16 December, after returning to D Block from the Detention Unit,
Mr Taylor jammed the locks to the landing grill and covered the cameras. The barricading (which lasted for several hours) prevented Corrections officers accessing the landing, and delayed the other prisoners on the block getting their lunches. Mr Taylor also threatened staff, and an incident information report recorded, “he knows where we all live and he can send people round to our houses and will make an example out of someone, he also stated it will be a rough Christmas”. In cross-examination Mr Taylor claimed this statement was not a threat but rather “I was alerting them, you know”. Later that day, Mr Taylor was moved back to the Detention Unit.
(c) On 19 December, Mr Taylor returned from the Detention Unit calling staff “assholes” and refusing to accept directions. He demanded one hour on the landing and reiterated that “Christmas week is going to be shit for staff... this Christmas break will be hell for all staff”. Mr Taylor then rolled milk cartons out of his cell with “milk spreading over the floor towards staff”. He was recorded as “smashing his cell door”, “throwing water out of his cell with urine in it”, and stating “it will be piss and shit next and will be at staff”. He demanded phone calls to CYFS, a lawyer and the Ombudsman, but was told he had to clean his cell first, which he refused to do. Mr Taylor also declined an offer to take time outside his cell.
(d) During this same period, Mr Taylor was regularly flooding the landing.
(e) On 20 December, Mr Taylor flooded the landing again, this time with sewage. This led to him being moved once again to the Detention Unit.
(f) On 21 December, Mr Taylor made a complaint that he did not get his minimum entitlement to exercise, cleaning and showering the previous day, and was being refused telephone contact with his lawyer, the Inspector and the Ombudsman. In the response section of the complaint form, a corrections staff member recorded Mr Taylor could not be provided his daily unlock time because he had barricaded himself in the
detention cell and refused to respond to officers.184 Neither was it possible to facilitate his legal calls, due to his dirty protests.185
[362] It was after this series of incidents that Mr Taylor was relocated to the HCU for the first time on 21 December 2011. A specific management plan was created for this. The HCU cells had the advantage that they would prevent Mr Taylor’s frequent water and dirty protests from adversely affecting the other prisoners in D Block, and the operation of the unit. While Mr Taylor had access to a sink and toilet, the water to the cell could be turned off quickly.
[363] In addition, while the HCU cells did not have power sockets, electricity was supplied to Mr Taylor’s cell by running a cord through the corridor so he could use his television and radio. The ceiling in the cell was also high, meaning the sprinkler heads could not be interfered with. That was important because Mr Taylor had fallen into a pattern of setting off the sprinklers in his cell (and the landing), as well as tampering with the smoke alarm.
[364] Mr Taylor remained in the HCU for 23 days until 13 January 2012. The day before he was moved out of the HCU, Mr Sherlock, emailed a group of senior Corrections officials explaining his decision to move Mr Taylor back to D Block:
We have managed Mr Taylor in the old HCU for three weeks now, with great success, this is a credit to the staff dealing with him on daily basis- considering most of the management team were on leave. We have no had only x1 (one) minor incident with him recorded in that time. No doubt this time has been a relief for both D Unit staff and the other D Unit prisoners who were severely adversely affected when he flooded landings (often with dirty protest), barricaded and generally upset the smooth running of the unit.
Please note after in-depth discussions with the [Residential Manager], I have decided to place Prisoner Taylor back into D unit to continue with his Directed Segregation.
Note that my intention is if he restarts his course of actions of barricading, dirty protest etc we will reassess early and consider placement back into the HCU area as an option.
184 The form noted: “efforts were made to ensure Prisoner Taylor gets his minimum entitlements, however, his behaviour will determine the success of achieving this daily”. In cross-examination, it was put to Mr Taylor that it would have been difficult to give him his entitlement to unlock time and showers if he refused to leave his cell. He did not respond.
185 However, it is recorded that Mr Sherlock facilitated phone calls to the Ombudsman and Inspector of Corrections when he came to relocate Mr Taylor to the HCU on 21 December 2011.
So please make necessary arrangements to move him tomorrow morning back to D Unit.
[365] Mr Taylor was returned to D Block the next day. A short time later, Mr Queree emailed the same group of Corrections staff:
Taylor has been back in D Unit for about 1 hour and he has already started flooding the landing. He was loud and abusive towards the PCO and so life goes on for the staff in D Unit. I acknowledge that we are behind dealing with his complaints etc but we are doing our best.
[366] Despite his behaviour on return to D Block, Mr Taylor’s second period in the HCU did not begin until a month later, on 18 February 2012. The following are reports of some of his conduct leading up to that date:
(a) On 1 February, Mr Taylor and other prisoners on D Block were placed in C Block so that refurbishment work could be undertaken in D Block. On 3 February, staff on C Block reported that Mr Taylor “carried on with his normal threats... would flood the landing if he didn’t get what he wanted”.
(b) On 8 February, Mr Taylor was moved to the Detention Unit to serve a 10-day sentence of cell confinement. While the reasons for this lengthy penalty are unclear, Mr Taylor takes no issue with any of the periods of cell confinement that were imposed on him.
(c) On 10 February, after he was unlocked in the morning to shower, Mr Taylor threw a plate of food at a prison officer. Mr Taylor then refused an order by another officer to hand over a broom he was holding and return to his cell. When the officer tried to take the broom off him, Mr Taylor shoved the officer in the chest and told him to “fuck off”. He is then recorded as trying to incite the other prisoners on the landing, and “shouting that he had just been assaulted”.
(d) On 12 February, an Inspector of Corrections, Mr David Morrison, visited Mr Taylor in the Detention Block. In an email to the Corrections National Office, he noted Mr Taylor had verbally abused a nurse, threw
his food onto the landing and refused to lock his cell when instructed to. Mr Morrison witnessed the latter incident, and described Mr Taylor as “behaving in a very aggressive and threatening manner when the staff unlocked him”. Mr Taylor refused the SCO’s instruction to return to his cell, and became increasingly aggressive when the SCO tried to use “trifling force” to move him, at the same time screaming at the other prisoners to witness what Mr Taylor claimed was an assault.
[367] Prison management decided that Mr Taylor’s disruptive and aggressive behaviour posed too much of a risk to staff and other prisoners on D Block and on 18 February 2012, following completion of his 10-day period in the Detention Unit, Mr Taylor was transferred directly to the HCU to continue his directed segregation.
[368] Corrections decided to place Mr Taylor in the HCU for six days and then revisit whether it remained appropriate to keep him there on a weekly basis. This need for weekly review was also reflected in his management plans. Despite weekly review, Mr Taylor’s behaviour was considered a sufficient risk to require continuing use of the HCU. Mr Taylor’s conduct led to the creation of a number of incident reports during his second period in the HCU:
(a) On 29 February 2012, officers entered Mr Taylor’s cell to conduct a targeted cell search. Mr Taylor was holding a Nokia cellphone with SIM card, which he tried to break when instructed to hand it over. Mr Taylor was removed and strip searched, during which time a cell search revealed a T-bomb and a cellphone charger.
(b) On 2 March, Mr Taylor tried to flood the cell after a request for a phone call was declined due to the routine Friday lockdown of East Division. This resulted in the power and water to the cell being turned off for a time.
(c) On 4 March, prison staff found a T-bomb in Mr Taylor’s cell. He was placed on a misconduct.
(d) On 11 March, prison officers entered Mr Taylor’s cell to conduct a cell search. Mr Taylor grabbed a cellphone that was on the table and tried to break it. He was then escorted from the cell and strip searched. A subsequent cell search revealed an electrical circuit, loose electric wiring, a Bluetooth earpiece, eight screws from the cell lighting, two cellphone charging attachments, and two homemade screw drivers. Mr Taylor was then removed from the HCU to the Detention Unit.
Summary of the Ombudsman’s findings in relation to the HCU
[369] The Ombudsman, correctly in my view, identified Mr Taylor’s placement in the HCU as an area of concern, and in particular, the suitability of the cells. The unit had previously been the at-risk unit but had been decommissioned in 2006. By 2011, it was being used for drug testing prisoners in East Division. There is no doubt that the HCU was a dispiriting facility and unlikely to be appropriate for housing even the most difficult prisoners for any length of time. Most likely it was these inadequacies that led to its decommissioning some years before Mr Taylor found himself there.186
[370] The Ombudsman found that in 2011 there were two large cells which prison management determined could be used to house difficult to manage prisoners on a short term basis. National Office recommended the recommissioning of those cells for use and approval was given by the chief executive of the Department.
[371] The HCU cells had windows on one wall which allowed for natural light and a view out into a disused internal courtyard area. However, at night the lights in the courtyard area were turned on, and this affected the ability of prisoners in the cells to sleep at night. To resolve this, paper or a similar material was used to cover the windows.
[372] The principal concern identified by the Ombudsman was the HCU’s lack of fitness for purpose. In particular, it was unsatisfactory to supply electricity to the cell by use of an extension cord and multibox. In addition, the cells were monitored by an
operating CCTV camera, which was inappropriate given Mr Taylor was not on observation for being at risk to himself and was entitled to some privacy. Overall, the Ombudsman concluded:
... the placement of Mr Taylor into the HCU, along with the restrictions imposed by the management plan, while mitigating the risk he may have presented to officers, was more akin to a punishment regime. Further it appears that his placement into the HCU had the effect of exacerbating his behaviour rather than improving it.
Were the conditions in the HCU in breach of ss 9 or 23(5)?
[373] It will be remembered that s 9 captures the most reprehensible treatment and is reserved for “truly egregious cases”.187 A breach of s 9 will involve conduct “which is to be utterly condemned as outrageous and unacceptable in any circumstances”.188 In addition, conduct breaching s 9 will usually involve an intention to harm or conscious and reckless indifference to the causing of harm, as well as significant physical or mental suffering.189
[374] While he was in the HCU Mr Taylor continued to:
(a) receive his minimum entitlements as he did while on segregation in D Block. The only failure to deliver a minimum entitlement I have found related to daily exercise;
(b) have access to privileges such as his television, radio, and books; and
(c) work on his various pieces of litigation.
[375] In addition, Mr Taylor’s own evidence was that even when placed in the HCU he was able to “counsel” Mr Adamson (a fellow prisoner who was at times also placed in an adjacent cell in the HCU), and he continued to assist other prisoners with their litigation. Mr Taylor was also regularly visited by his Principal Corrections Officer, Mr Kirifi, had regular interactions with Corrections custodial and medical staff, and
187 Taunoa (SC), above n 5, at [297] per Tipping J.
189 S v Attorney-General, above n 18, at [213].
received visits from the Ombudsman, the Inspectorate and the Visiting Justice on request. He also continued to have weekly private visits, monthly visits with his daughter, and his entitlement to personal phone calls was at most points above his minimum entitlement under the Act.
[376] There is no evidence to suggest Corrections officers acted with reckless indifference to causing harm, or that Mr Taylor suffered any form of adverse physical or mental effects as a result of his time in the HCU. Of note is an internal memorandum sent by PCO Kirifi to a range of senior Corrections officials on 24 February 2012, one week into Mr Taylor’s second period in the HCU. The recipients included Mr Queree, Mr Sherlock, Mr Beales, and Inspector Morrison. Mr Kirifi wrote:
This week has been a good [one] for Taylor he has been in a good mood, the staff have had no complaints about his behaviour. He has been compliant with his management plan requirements. During the PCO visits this week he is [sic] certainly appeared to be in good spirit[s] laughing and joking with the staff.
In the interview with the PCO this week he stated that he was happy to be in [the] old HCU as he is separated from the others. He said that he is able to concentrate to his paper work without the interruptions from the other prisoners. He went on to say that although he’s happy there he still does not agree with the restrictions on his management plan. Note though the management plan requirements and restrictions are the same as what he had in D Block before he left.
[377] When this memorandum was put to Mr Taylor in cross-examination, he denied that he would have said he was happy in the HCU because he was “never happy to be there” and “only a madman would be happy to be in those sort of conditions”. Overall, I prefer the memorandum—a contemporaneous document recording Mr Kirifi’s interactions with Mr Taylor that week—over the evidence of Mr Taylor. The memorandum was an internal report intended to be read by Mr Kirifi’s superiors. There is no apparent reason for Mr Kirifi to have been anything other than frank and accurate about the comments Mr Taylor’s made to him.
[378] Accordingly, I accept that Mr Taylor, at least for some periods, was content to be housed in the HCU. Although not determinative, his comments at the time are certainly not consistent with his claims at trial that his detention there amounted to cruel, degrading or disproportionately severe treatment.
[379] Further, I am unable to agree with the Ombudsman’s observation that Mr Taylor’s placement in the HCU “was more akin to a punishment regime”. The evidence I heard was not consistent with that description. The HCU’s use for relatively confined periods of time coincided directly with an increase in Mr Taylor’s disruptive behaviour and its impact on D Block as a whole. In other words, its use was a response to an increased risk to the security or good order of the prison. Mr Taylor had made it clear in December 2011 that he was intending to wage war against prison officers during their Christmas vacation period, when staffing levels would be reduced. The ability of prison management to accommodate Mr Taylor’s disruptive behaviour while on D Block was obviously constrained during this period. I infer Mr Taylor’s threats in relation to the holiday period were made because he also knew that to be the case.
[380] Then in February 2012, when the prison was trying to deal with the added complication of reshuffling prisoners within East Division in order for works to be undertaken in D Block, Mr Taylor was again causing disruption to his unit and impeding the prison’s ability to provide minimum entitlements to other prisoners. As Prison Inspector Morrison recorded a week before Mr Taylor’s second period in the HCU:
Reports from the staff in the Detention Block Taylor’s behaviour is the same as always, demanding to get his entitlements when he wants them done. When he doesn’t, he starts playing up. He has been reminded time after time that the staff are not denying him his entitlements but they have to have them done in times when it suits the unit routine to ensure all the other prisoners’ entitlements are done as well. He has no consideration of other prisoners.
[381] Although the Ombudsman criticised the method by which electricity was supplied to the cell, noting Mr Taylor’s proclivity for flooding, the provision of an extension cord and multibox to enable him to use his television indicates the prison was conscious of the need to detain Mr Taylor in the same conditions, so far as practicable in the circumstances, as if he were not segregated. The efforts to provide electricity to Mr Taylor’s cell despite the management difficulties he was posing at the time reinforces my view that the HCU was not intended to be a punishment.
[382] While the HCU cells would not ordinarily be appropriate for housing prisoners for any length of time if they were not at risk, their physical qualities were not materially different from those in D Block. Given the challenges Mr Taylor’s ongoing
behaviour presented to the security and good order of the prison, and the limitations on the physical resources available to Corrections staff to manage it, the use of the HCU for limited periods of time did not amount to a breach of s 9 of the Bill of Rights. I am also satisfied that the management plans, including the decision to move Mr Taylor from his cell in D Block into the HCU, were tailored to the risk the prison was endeavouring to manage. He continued to have access to his normal privileges, and largely continued to receive his minimum entitlements.190
[383] However, there were two aspects of the physical conditions in the HCU that warrant consideration in terms of s 23(5). First, there was a CCTV camera in Mr Taylor’s cell. While the prison manager, Mr Sherlock, gave evidence that his expectation was that the camera would not have been operational and, if it was, would not have been monitored (given Mr Taylor was not at risk), Mr Kasimilo Fulu, one of the officers who was responsible for Mr Taylor’s care while in HCU, confirmed that on “numerous” occasions Mr Taylor would cover the CCTV camera because he was “sick of being watched”. Mr Fulu confirmed that he was the only officer tall enough to reach up unaided to uncover the camera when this occurred. It seems obvious, then, that the camera was both working and being monitored despite Mr Sherlock’s expectations.
[384] Given Mr Taylor was not an at-risk prisoner, I am satisfied that the presence of a working CCTV camera in Mr Taylor’s cell was not consistent with his humane treatment. Imprisonment inevitably brings a profound loss of autonomy and privacy. Nevertheless, a general requirement for all cells is a privacy screen.191 This is a recognition that even in a prison environment, some element of personal privacy is fundamental. Placing Mr Taylor in a cell with a functioning camera so that he could be under the permanent gaze of prison officers constituted a serious departure from normal expectations of privacy even in D Block. I am reinforced in this conclusion by the availability of an apparently simple solution, namely turning the camera off.
[385] The second aspect of the HCU which was raised by Mr Taylor was light entering the cell at night disrupting his sleep. However, the evidence shows that Corrections solved this problem by covering the cell windows with either paper or— according to Mr Taylor—“brown clean sacks”. The coverings were still on the windows when they were photographed by the Ombudsman during an unannounced COTA inspection on 17 April 2012. Overall, this aspect does not support a breach of s 23(5).
Overall conclusion on Mr Taylor’s conditions of detention on directed segregation
[386] I have found that three aspects of Mr Taylor’s conditions are relevant to the assessment under s 23(5). First, he was deprived his daily entitlement to exercise over a period of months. Second, the amount of unlock time in light of the stringency of his conditions was at times concerning, even if on most days he received his minimum entitlement to recreation. Third, a functioning CCTV camera in the HCU was a significant intrusion into his expectation of privacy.
[387] Mr Taylor has not been successful in establishing that any of his other specific claims under this part constituted a failure to deliver a minimum entitlement or were inconsistent with his humane treatment. In material respects his evidence was at odds with the content and findings of the Ombudsman’s report, the contemporaneous prison records, and the evidence of Corrections’ witnesses. I did not find his evidence on his central claims credible.
[388] Further, while it was not really a feature of his case in closing, I find that the minimum requirements of accommodation contained in the Act and Regulations in relation to Mr Taylor’s cells were met. While the conditions of accommodation in Auckland Prison were unsatisfactory, there was no illegality that would support a breach of s 23(5). This finding is also consistent with the decisions of the courts at various levels in Taunoa.
[389] Overall, except to the extent I have found, I am not satisfied that the conditions of Mr Taylor’s detention throughout the period of directed segregation—in combination or separately—were inconsistent with s 23(5), or a breach of s 9 of the Bill of Rights.
PART 3: WAS THERE A BREACH OF MR TAYLOR’S RIGHT TO NATURAL JUSTICE?
[390] This aspect of Mr Taylor’s claim is relatively narrow. On 14 September 2011, Visiting Justice Greenbank made a decision extending Mr Taylor’s directed segregation for a further three months. Mr Taylor’s evidence-in-chief was that he had delivered to Corrections officers submissions and supporting material intended for the Visiting Justice which challenged the continuation of his segregation. Mr Taylor claimed that Corrections failed to forward his submissions by post to the Visiting Justice, with the result that the segregation decision was made without affording him an opportunity to be heard. Mr Taylor said the failure of Corrections staff to forward his submissions was contrary to Operations Manual policy, and breached his right to natural justice under s 27 of the Bill of Rights.192
[391] During Mr Taylor’s cross-examination, the exact circumstances of what unfolded took on a different complexion. There was no dispute that Mr Taylor’s original submission was returned to the prison as it had the wrong mailing address. Initially, Mr Taylor was inclined to suggest this error was that of Corrections staff, the implication being that it had been left to them to address the correspondence.
[392] However, Mr Taylor was then taken through a series of contemporaneous records, including an email and a series of prisoner complaint forms which had been generated at the time. The email was from the unit manager, Mr Tony Queree, following one of Mr Taylor’s complaints that his submissions had not been sent to the Visiting Justice in accordance with the Operations Manual. Mr Queree recorded the background in these terms:
In August [Mr Taylor] asked to see the VH with a view to having the VJ investigate (and, he hoped, overturn) his Dir Segs. Shelley Sage [one of the Visiting Justices] came here on 24 August 11 and carried out her investigation. She declined to see the prisoner. This upset him – he blamed us but of course this was her decision and nothing to do with us. He apparently wrote to her or prepared some ‘submission’ (perhaps these are the ones he refers to) and posted them to the VJ. The envelope was sealed and posted – none of my staff or I saw/read the contents so we don’t know what he sent out. In any case, the envelope was not correctly addressed and a few days later came back to us. It was returned to the prisoner. Unit staff assisted him by providing a correct address and the package was re-sent in the mail. I don’t have the exact dates
192 Operations Manual, M.01.03.10.(1) and M.01.03.11(1).
but this happened during the same week in Aug / first week in Sep. As I recall, Shelley Sage went on holiday in mid-Sep.
I believe Phil Greenbank [another Visiting Justice] came in on Sun 11 Sep to sign the extension papers. As I recall, we provided the usual documents and of course Taylor was provided with the usual copies.
[393] In addition, a prisoner complaint form dated 7 September 2011 recorded Mr Taylor’s complaint. His own words were: “I gave staff a sealed letter addressed to the VJ on 31-8-11”. The response of Prison staff, recorded on the complaint form, also confirmed it was Mr Taylor who had originally addressed the envelope.
[394] Confronted by this, Mr Taylor’s position in cross-examination changed. He conceded he had addressed the envelope, but blamed prison officers for failing to identify his error and correct it:
Q Yes, and Corrections said that you, in response to complaint, misaddressed the submissions?
A Okay, well as you know you’ve seen the instructions around my mail. All my mail must have been very carefully examined by people including Mr Queree. So when Mr Queree sees this letter to the VJ that’s supposedly got a mistaken address well why doesn't Mr Queree say: “Oh, send it back to Taylor it’s got a mistaken address on it so he can send it again properly?” No, he doesn't does he?
Q So, do you expect Corrections to audit all the addresses of your mail to ensure that they are correct ones?
A No, but they also were keeping a very, very close eye on my mail. Like checking out wherever it was going and all sorts of things. All right? It wasn’t like any ordinary prisoner’s mail.
Q So Mr Taylor I just want to be very clear about what you are actually saying here. Are you suggesting that a staff member of Corrections deliberately withheld your mail to the Visiting Justice to frustrate your ability to have your segregation revoked?
A Well, it wouldn't surprise me if it was just sheer incompetence, you know? I’ve known – yeah.
Q But Mr Taylor if there is any incompetence here it’s – and with respect
– your own in misaddressing the submissions?
A No, I don’t accept that. It was so important I can remember checking that address and finding out it was the North Shore District Court and that’s where it was going to the North Shore District Court. Now Tony Queree being his usual vicious self when he would have seen something sealed and addressed to the North Shore District Court he
wouldn’t have been able to help himself, he would have checked it out very thoroughly, okay, in case it related to him.
[395] There is no merit in this aspect of Mr Taylor’s claim. The contemporaneous records indicate Mr Taylor made a mistake when addressing his submission for the Visiting Justice. This resulted in the mail being returned to the prison. Prison staff then assisted Mr Taylor to correct the address and ensured it was posted within two days, as required by the Operations Manual. It was re-posted on 9 September 2011. The decision of the Visiting Justice to renew Mr Taylor’s period of directed segregation was made on 14 September 2011.There is no doubt that the submissions were correctly addressed and re-sent.
[396] Whether Mr Taylor’s submissions arrived before or after the decision was made is immaterial. That is because either way, I am satisfied the submissions were received by the Visiting Justice. They had the power, under s 58(3)(e) of the Act, to revoke the order at any time. This did not occur. Instead, the Visiting Justice’s review under s 58(3)(e) recorded:
Since [the] order was last extended on 14/8/11, Mr Taylor has continued to display unacceptable behaviour and in so doing has endangered the security & good order of the prison. He is alleged to have flooded his cell & landing a number of times since 14/8/11. He is also alleged to have threatened staff.
[397] The more fundamental problem for Mr Taylor, however, is that even if the submissions did not arrive before the 14 September 2011 decision, that is through no fault of Corrections or its staff. There was no breach of s 27 of the Bill of Rights accordingly.
PART 4: WAS THERE A BREACH OF MR TAYLOR’S RIGHT UNDER S 23(5) OF THE BILL OF RIGHTS?
Summary of the findings so far
[398] It is helpful to begin with a summary of my findings so far in relation to Mr Taylor’s claims dealt with in Part 1 and Part 2 of this judgment. I have concluded that:
(a) Mr Taylor’s conditions of detention and accommodation in the HCU did not constitute a breach of s 9 of the Bill of Rights.
(b) However, the absence of privacy due to a functioning security camera in his cell in the HCU was an aspect of Mr Taylor’s accommodation relevant to a potential breach of s 23(5).
(c) Mr Taylor did not receive his entitlement to an hour of recreation every day during the period of directed segregation under review:
(i) In relation to the period 15 June to 1 September 2011, I am unable to quantify with precision the extent to which the minimum entitlement was withheld. However, given the error was repeated in the first four management plans, I am satisfied it is more probable than not that this was not merely a technical or one-off failing.
(ii) In relation to the remaining period of directed segregation up to 30 May 2012, based on the Ombudsman’s report I am also satisfied that there was a failure to provide Mr Taylor’s entitlement to exercise. Again, it is not possible to quantify with scientific precision the extent of the default 10 years after the relevant events, but the Ombudsman’s report suggests it is likely to have been in the order of 50 hours. Expressed another way, this would equate to approximately 50 days without any daily
recreation entitlement at all—spread over an eight-month period.
(d) Mr Taylor’s unlock time, given the stringency of his conditions, is also a matter relevant to a consideration of s 23(5).
(e) Beyond these findings, none of Mr Taylor’s specific claims concerning the lawfulness of his segregation or his conditions of detention in my view support a breach of s 23(5)—whether considered individually or collectively. In all other respects I am satisfied that Mr Taylor’s treatment was consistent with the requirements of s 23(5). In large part, Mr Taylor’s complaints are process related or very technical. I am also satisfied that the decisions placing Mr Taylor on directed segregation were also lawfully made.
The key arguments and issues to be determined
[399] Overall, Mr Taylor’s claim was that cumulatively the “conditions of detention, treatment and time spent on directed segregation” amounted to a breach of s 23(5). Mr Taylor relied heavily on a comparison of his conditions with those of prisoners on the BMR in Taunoa. His essential thesis was that the conditions he experienced were virtually identical, or worse, and despite the strong admonishment by the Supreme Court the Department had done nothing to change its treatment of prisoners in Auckland Prison.193 It was this equivalence that amounted to aggravating circumstances going to damages.
[400] Mr Taylor’s prayer for relief in relation to his claim under s 23(5) sought aggravated damages of $250,000. However, in closing he did not provide a great deal of assistance in relation to this part of his claim. He made no submissions in relation to the quantum of damages sought.
193 Mr Taylor’s pleading alleged: “In determining the conditions of detention applied to the Plaintiff in the HCU and D Block, the Defendant in all material aspects failed to act in accordance with and heed the findings of the Courts in Taunoa.”
[401] In response, Corrections submits that Mr Taylor’s conditions of detention and physical accommodation were consistent with the Bill of Rights. In addition, there is no proper comparison between Mr Taylor’s detention and the conditions that applied to the prisoners on the BMR. Further, neither the denial of association, nor the duration of segregation as a whole, give rise to a breach of the Bill of Rights.
[402] Finally, the defendant also raised several affirmative defences, including a limitation defence. It was argued that to the extent Mr Taylor’s claim for damages amounts to a “money claim” under ss 11 and 12 of the Limitation Act 2010, there is a complete defence for any conduct prior to 5 October 2011. Indeed, in a pre-trial decision of 30 October 2019, Associate Judge Johnston recorded:194
Mr Taylor accepts that he is precluded from claiming monetary relief for events occurring prior to 5 October 2011. He told me he had included particulars concerning events prior to 5 October 2011 in his amended statement of claim by way of background because they provide relevant context to his claims in respect of events that occurred within the limitation period.
[403] Mr Taylor was right to make that concession because it is clear his claim for damages for conduct prior to 5 October 2011 is now time-barred. So to the extent I have found Mr Taylor was not accorded his minimum entitlement to recreation consistently throughout the period 15 June to 1 September 2011, he is no longer able to recover public law damages, but might still be entitled to a declaration.
[404] It follows that the issues I need to address are:
(a) Were Mr Taylor’s conditions of detention and accommodation comparable to those in Taunoa?
(b) Overall, based on my findings, has there been a breach of s 23(5) of the Bill of Rights, and how serious is any breach?
194 Taylor v Attorney-General [2019] NZHC 2767 at [9].
[405] As noted, Taunoa involved a regime of prisoner management designed to deal with disruptive prisoners.195 The behaviour management regime, or BMR, had no statutory foundation at all. If anything, it was inconsistent with the provision for both punishment (or cell confinement) and “administrative segregation” set out in the Penal Institutions Act 1953, the legislation applicable at the time. This led the Supreme Court to find the regime to be unlawful. It considered particularly concerning aspects of the BMR included unsatisfactory hygiene standards, inadequate opportunities to exercise, routine unlawful strip searches carried out without regard for privacy, and verbal abuse “sufficiently common to be concerning”. The Supreme Court considered the BMR amounted to a system that was deliberate, punitive and designed to send a message to prisoners about their place in the Corrections system.196
[406] In light of my findings, Mr Taylor’s argument that his conditions were the same or worse than those of the prisoners on the BMR must fail. While I have concluded that in certain specific respects Corrections failed to provide him with his minimum entitlements, overall his time on directed segregation does not come close to the experience of the prisoners in Taunoa. Nor do I accept that the conditions of Mr Taylor’s directed segregation, or the decision to place him under segregation orders, were punitive. As I have found, the decisions were lawfully made for the good order and security of the prison in light of the risks created by Mr Taylor’s persistent behaviour. He retained his privileges and continued —in the round—to receive his minimum entitlements.
[407] A comparison with the conditions of the prisoners in Taunoa also indicates that the seriousness of any breach of s 23(5) in Mr Taylor’s case is qualitatively different as well. I now turn to consider whether there has been a breach of s 23(5) and, if so, the relief that should follow.
196 Taunoa (SC), above n 5, at [47]–[48] per Elias CJ.
Breach of s 23(5) of the Bill of Rights?
[408] For the Attorney-General, Mr Kinsler and Mr Wiseman provided comprehensive submissions addressing in detail all of Mr Taylor’s claims, carefully dealing with each against the evidence and applicable legal tests.
[409] Given the findings I have made, which are largely in keeping with the defendant’s case, it is unnecessary to outline all of the defendant’s arguments in detail. Relevantly, Corrections makes the following points:
(a) A technical or isolated failure to provide a minimum entitlement will generally not be sufficient, of itself, to support a s 23(5) finding. Something more serious is usually required.
(b) As this Court recognised in Toia, whether a person deprived of their liberty is treated with inherent dignity of the person depends partly on context.197 Mr Taylor was at all times afforded dignity and humanity. He has adduced no evidence of suffering any physical or mental harm.
(c) Mr Taylor had exclusive use of a separate cell, known as “Taylor’s office” to work on his cases. He had more than his minimum entitlement to the telephone, had access to his TV, radio, entertainment and exercise equipment (albeit rudimentary given the security classification of prisoners in D Block).
(d) While the aging facility of the old East Division had “structural limitations”, Mr Taylor was nevertheless accommodated in cells which met the minimum requirements.
(e) While privacy screens were absent in D Block (and the HCU), prisoners were allowed to cover their cell-fronts when they wanted privacy. In Toia the Court found that the lack of privacy screens did not amount to a breach of s 23(5) accordingly.198
197 Toia v Attorney-General [2014] NZHC 867 at [76]–[77].
(f) Despite bringing these proceedings alleging that conditions of detention in D Block amounted to a breach of s 23(5), when Mr Taylor’s period of directed segregation ended, he elected to stay in D Block and declined to move to one of the progression units. Mr Taylor’s own evidence was that he was comfortable in D Block and preferred to remain there. This is inconsistent with his claim that the conditions on D Block amounted to a breach of s 23(5).
(g) Between 15 June 2011 and 30 September 2012 Mr Taylor had amassed approximately 60 incident reports and 37 misconduct convictions which primarily related to “extreme behaviour” such as barricading himself into spaces and flooding the landing (including dirty protests). The segregation directions were only a response to, and designed to manage, this behaviour.
(h) The duration of Mr Taylor’s directed segregation, when compared to the lengthy periods served by prisoners on the BMR, does not support a breach of the Bill of Rights.
[410] Where I differ from the defendant’s position is in relation to Mr Taylor’s minimum entitlement to exercise, the lack of privacy Mr Taylor experienced in the HCU, and his unlock time on some days while on directed segregation. The question is whether these matters are—individually or cumulatively—sufficient to amount to a failure to treat Mr Taylor with humanity and respect for the inherent dignity of the person.
[411] I have approached s 23(5) having regard to the principles identified in the introduction to this judgment.199 A contextual assessment must also have regard to the six factors identified there:
(a) the nature and severity of the treatment;
(b) the duration or frequency of the treatment (or loss minimum conditions);
(c) the nature and extent of the impact on the prisoner and any particular vulnerability they might have had (the third and fourth factors); and
(d) the purpose of the impugned treatment or condition and the prisoner’s own conduct (the fifth and sixth factors).
[412] When considering these matters, the Court cannot only focus on the degree to which an entitlement has been not been provided. The established illegality must be placed in the broader context of the overall conditions of detention which, even if lawful, may inform the significance of the failure to provide a minimum entitlement.
Nature and severity of the treatment
[413] In terms of the nature and severity of treatment, for a prisoner on directed segregation in a maximum security prison, with already significantly restricted conditions, recreation time is a critical minimum entitlement and touchstone of humane treatment. It represented a guaranteed minimum period Mr Taylor could expect to be released from his cell. I consider the minimum entitlement had heightened importance for Mr Taylor in the circumstances of directed segregation in D Block, and my assessment of s 23(5).
[414] An added consideration is that for the period 15 June to 1 September 2011, Corrections officers wrongly recorded in Mr Taylor’s management plans that his daily recreation entitlement was to be used for cell cleaning, showering and telephone calls. I have found that Mr Taylor was not provided with his minimum entitlement during this period, and it was only corrected when raised by the Ombudsman. It is an aggravating aspect of the subsequent periods of segregation that Corrections continued to fail to provide the entitlement.
[415] The failure to provide Mr Taylor with his minimum entitlement to exercise is further aggravated by the limited unlock hours he was afforded on a number of days while on directed segregation. This does not amount to a breach of minimum
entitlements but it exacerbated the impact and seriousness of the loss of recreation time.
[416] In relation to Mr Taylor’s segregation in the HCU cell, the operational CCTV camera represented a significant invasion into Mr Taylor’s expectation of privacy. The evidence suggests that staff would uncover the camera when he tried to throw things over it. The impact of the intrusion was no doubt amplified by the spartan nature of the HCU accommodation, the highly restrictive conditions of detention, and the reduced time Mr Taylor had out of the cell.
[417] These considerations clearly weigh in favour of a breach of s 23(5) of the Bill of Rights.
[418] Within the period of the Ombudsman’s detailed assessment of prison logbooks spanning the eight months between 1 October 2011 and 30 May 2012, it appears Mr Taylor was denied in the order of a total of 50 hours of recreation. Expressed another way, that is the equivalent of 50 days without any recreation entitlement at all, or 20 per cent of days within the period analysed. This measure is necessarily approximate; I accept there are likely to be days when Mr Taylor simply declined the entitlement and the records do not reflect that, or he was provided the entitlement but the record does not exist. But equally, the records reveal a clear and consistent deficiency over a period of months. This was not merely a technical, one-off failure to ensure the standards for prisoner treatment required by Parliament were met.
[419] Once again, this consideration points to a breach of s 23(5), but of a different nature and quality to that claimed by Mr Taylor.
[420] Mr Taylor’s s 23(5) claim was focussed (in part) on the entire duration he spent on directed segregation, which lasted for almost fifteen months. By any measure, that was a significant period of time. It is also clear that the length of time on directed segregation was due to the persistence of Mr Taylor’s disruptive behaviour and its impact on the management of D Block. The question remains, however, whether the
overall duration of segregation amounts to a breach of s 23(5) given the conditions Mr Taylor experienced.
[421] In Taunoa, it was the conditions of detention and the dehumanising elements of the BMR, in conjunction with the lengthy periods prisoners were subject to it, which cumulatively was found to breach s 23(5). 200 Similarly, in Vogel v Attorney-General, the Court of Appeal found that Mr Vogel’s unlawful cell confinement for six days in excess of the 15-day maximum period prescribed by the Corrections Act constituted a breach of s 23(5). In doing so, the Court emphasised that it was again the severity of the conditions, not simply the period by which the statutory maximum was exceeded, that was relevant.201
[422] International consideration of the duration of segregation as a factor relevant to breach of human rights instruments emphasise the same conclusion. In Ahmad v United Kingdom, the European Court of Human Rights concluded that the prohibition of contact with other prisoners for security, disciplinary or protective reasons “does not in itself amount to inhuman treatment or punishment” in terms of art 3 of the European Convention on Human Rights.202 The Court went on to observe that:203
Thus, whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005).
In applying these criteria, the Court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for Article 3 (see Madonia, cited above). The Court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely (see Ramirez Sanchez, cited above, §§ 136 and 145, where the applicant was held in solitary confinement for eight years and two months).
200 Taunoa (SC), above n 5, at [39].
201 Vogel v Attorney-General [2013] NZCA 545; [2014] NZAR 67 (CA) at [79].
202 Babar Ahmad v United Kingdom, above n 110, at [208].
[423] This approach firmly grounds the s 23(5) assessment in the legitimate state interest and proportionality tests applicable under the Bill of Rights.204 In the case of s 23(5), it may be more palatable to consider the existence of minimum requirements as informing the scope of the right, rather than consider the right as subject to reasonable limits under s 5. Regardless, the international jurisprudence recognises that assessment of a breach requires more than simply a consideration of the duration of the segregation conditions.205 An analysis balancing the duration with the nature of the conditions, and the purpose for which they are imposed, is required.
[424] A similar view was adopted by the Supreme Court of the United Kingdom in Shahid v Scottish Minister.206 Mr Shahid was placed on segregation for his own protection while in custody. The total period was 56 months (made up of two separate periods of 11 and 45 months respectively). The Supreme Court found that in relation to 14 of those months, the segregation directions had been unlawful because timeframes required under the relevant legislation had not been complied with. However, the Court declined to find a breach of art 3. It considered the cumulative conditions of the prisoner’s segregation were compatible with respect for his human dignity and “adequate to secure his health and well-being”, notwithstanding the duration of the segregation, and that his conditions could have been improved by making greater provision for purposeful activities or ensuring the procedural protections were more effective.207
[425] The overall period of Mr Taylor’s period on directed segregation was considerably shorter than the period of segregation in issue in Taunoa and Shahid. In addition, Mr Taylor continued, largely, to receive his minimum entitlements, and was housed in accommodation consistent with the requirements of the Act and
204 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1; and The New Zealand Bill of Rights: A Commentary, above n 199, at [6.10.2] and [6.10.3].
205 Paul Taylor A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights Committee’s Monitoring of ICCPR Rights (Cambridge University Press, 2020) at 193, 287 and 317, citing Vuolanne v Finland (1989) HRC 8, (1989) 96 ILR 649 at 311, and Brough v Australia CCPR/C/86/D/1184/2003, 17 March 2006; William Schabas UN International Covenant on Civil and Political Rights: Nowaks’ CCPR commentary (3rd ed, Norbert Paul Engel Verlag, Kehl, 2019) at 274; and Sarah Joseph and Melissa Castan The International Covenant on Civil and Political Rights: cases, materials and commentary (3rd ed, Oxford University Press, 2013) at [9.141], citing Kang v Republic of Korea (2003) 10 IHRR 932.
206 Shahid v Scottish Minister [2015] UKSC 58.
Regulations. He continued to receive his privileges. In contrast to Shahid and Taunoa, Mr Taylor’s segregation was subject to review, reconsideration and extension consistent with the requirements of the Act and Regulations. And as I have already found, the duration of Mr Taylor’s time subject to segregation directions was the result of his own behaviour. So the segregation directions continued to meet a legitimate purpose, namely to ensure the security and good order of the prison. It follows that I am not satisfied that the duration of directed segregation itself—even in the conditions Mr Taylor experienced—supports a breach of s 23(5) of the Bill of Rights.
Nature and extent of impact on Mr Taylor and any vulnerability he may have had
[426] As counsel for the defendant submitted, there is no evidence at all that the failure to provide Mr Taylor with his minimum entitlement to exercise, or indeed the questionable aspects of his accommodation in the HCU, had any adverse effect on Mr Taylor’s emotional or physical well-being.
[427] Indeed, as the defendant highlighted, Mr Taylor’s frank concession during his opening was that he was “robust” enough to withstand segregation. I have no doubt that is correct because Mr Taylor determinedly persisted in disruptive behaviours that, from his perspective at least, were a protest in response to what he considered to be unlawful treatment, including placing him on directed segregation.
[428] Overall, this consideration is neutral in the s 23(5) assessment. While the presence of harm or vulnerability will tend to be an aggravating factor, it does not follow that the absence of such features will point away from a breach.
Purpose of the treatment and Mr Taylor’s own conduct
[429] I am satisfied that the Corrections officers responsible for Mr Taylor’s care during his time on directed segregation endeavoured to ensure he continued to receive his minimum entitlements. While at times in submission and evidence Mr Taylor was inclined to suggest improper collateral motives were the reason for his directed segregation—such as preventing him assisting other prisoners assert their legal rights, or interfering with his litigation against the Department of Corrections—I have no hesitation rejecting those arguments.
[430] Overall, to the extent that Corrections staff failed to ensure Mr Taylor received his minimum entitlement to exercise, the failure was not deliberate or reckless. Limits on resourcing and the complex competing demands of other prisoners are the most likely cause. But an accidental breach of a right is still a breach of the right.208
[431] While contribution plays no role in the assessment of a breach of s 23(5) of the Bill of Rights, it is nevertheless important to recall that the duration of Mr Taylor’s time on directed segregation was the product of his own behaviour. That does not reduce the seriousness of the failure to provide him with an important requirement for daily recreation, but his own behaviour was a necessary precondition of the events that led to the problem.
[432] Given the focus here must be on the failure to deliver Mr Taylor’s minimum entitlement to recreation as the “treatment” in focus (rather than his directed segregation generally), I conclude that while accidental, there is no legitimate State purpose at play. This factor also points toward a breach of the right.
Overall conclusion on breach of s 23(5)
[433] Weighing the relevant considerations, I am satisfied that there has been a breach of s 23(5) of the Bill of Rights. The minimum entitlement to one hour of exercise per day was an essential component of Mr Taylor’s humane detention. It was made more important by the restrictive conditions that already existed on D Block. The failure to deliver his entitlement to exercise was not technical, fleeting, or trivial. It was a substantial failure over a lengthy period of time, and after the issue had already been identified by the Ombudsman.
[434] I am reinforced in this conclusion by the limited unlock time Mr Taylor appears to have had over a number of days while on directed segregation, and his loss of privacy as a result of an operating CCTV camera while in the HCU.
208 Pere v Attorney-General, above n 28, at [40].
PART 5: RELIEF
[435] The next question is what relief is appropriate in the circumstances? Any breach of s 23(5) by the State is a matter of grave concern. It is necessary to vindicate the right by making the following declarations:
(a) The Department of Corrections’ failure to provide Mr Taylor with his minimum entitlement to daily exercise while on directed segregation in 2011 and 2012 was a failure to treat him with humanity and with respect for the inherent dignity of the person contrary to s 23(5) of the Bill of Rights.
(b) The Department of Corrections’ decision to accommodate Mr Taylor in a cell with an operating and monitored CCTV camera while in the High Care Unit of Auckland Prison in 2011 and 2012 was also a failure to treat him with humanity and with respect for the inherent dignity of the person contrary to s 23(5) of the Bill of Rights.
[436] I do not consider the issue of unlock time supports a separate declaration. There was no breach of a minimum entitlement. Rather, it is a factor aggravating the failure to provide recreation time.
[437] Mr Taylor seeks, in addition to the above declarations, very substantial damages. However, he did not provide me with assistance in his closing on what an appropriate quantum might be, despite seeking $450,000 in public law damages.
[438] Here, beyond the limitation defence, the defendant pleads an affirmative defence, namely that compensation is not available by virtue of s 13(1)(b) of the Prisoners’ and Victims’ Claims Act 2005. The purpose of the Act is to “restrict and guide” the award of compensation to prisoners.209 Such awards are reserved for exceptional cases and used only used if and to the extent necessary to provide effective redress.
209 Prisoners’ and Victims’ Claims Act, ss 3(1) and 6(1).
[439] Section 13 of the Act prevents an award of compensation in the present case unless two elements are met. First, the Court must be satisfied Mr Taylor has made reasonable use of all internal and external complaints mechanisms available to him. Second, the Court must also be satisfied that another remedy, or a combination of remedies, cannot provide effective redress. In determining whether compensation is required to provide effective redress, and, if it is, the quantum, I must have regard to eight matters listed in s 14(2).
[440] Turning then to the first element of s 13, namely reasonable use of all internal and external complaint mechanisms, I am satisfied that Mr Taylor exhaustively explored every complaint avenue available to him while he was in prison. Indeed, his use of Auckland Prison’s internal complaint system was indefatigable. It appears that in addition to his use of the prisoner complaint system, Mr Taylor also promptly raised the issue of his minimum entitlements with the Ombudsman and Inspectorate, sparking investigations of their own.
[441] In relation to the second element, namely the adequacy of other remedies, having considered the eight factors in s 14(2), I am satisfied that another remedy, or combination of remedies, will not provide effective redress. In terms of each factor:
(a) Mr Taylor took all reasonable steps available to him have his minimum entitlements observed, through the various prisoner complaints mechanisms available to him, and the Ombudsman’s office. He did so within a reasonable time. It is aggravating that after the delivery of his minimum entitlement for exercise was identified in September 2011 as an issue, over the next eight-months a serious derogation from the entitlement occurred.
(b) The breach of the right was not deliberate or in bad faith. There was however a degree to which it persisted through the majority of Mr Taylor’s directed segregation (as revealed by the Ombudsman’s report). The breach is aggravated given the error identified by the Ombudsman in relation to Mr Taylor’s management plans prior to
1 September 2011. It is also aggravated by the limited unlock time Mr Taylor was provided with on a number of days.
(c) Mr Taylor’s own conduct extended the period on which he was subjected to directed segregation, but it was not the cause of Corrections’ failure to provide him with his minimum entitlement to recreation. If directed segregation is not to become a form of punishment, it is essential that Corrections maintains the delivery of minimum entitlements to segregated prisoners, as they are required to by law.
(d) Mr Taylor was deprived of some 50 hours (or 20 per cent) of his exercise entitlement over eight months, and his privacy was significantly curtailed for about one and a half months. There is no evidence he suffered any lasting physical or psychological harm.
(e) The right at stake is one of the most important in a free and democratic society. With it goes the need to emphasise the importance of, and to deter other breaches, of that right, by ensuring effective redress.
(f) The observance of fundamental human rights and minimum standards of detention for prisoners is critically important, especially given their vulnerability to State action or inaction. Serious breaches should be denounced.
(g) Declaratory relief is an essential element of vindication, and I have concluded that declarations should issue. But given the importance of the right and the material intrusion into it in Mr Taylor’s case, I do not consider that a declaration alone would provide effective redress in relation to s 13(1)(b).
(h) Finally, there are no other matters beyond those prescribed by s 14(2)(a)–(g) that I consider relevant to the assessment.
[442] Given these considerations, I conclude that a declaration alone is insufficient to constitute effective vindication of the right. However, I am far from satisfied that Mr Taylor is entitled to public law damages in the order of $450,000. He has not made out made out any of his pleaded aggravating circumstances. And I have found the breach was not deliberate or reckless.
[443] Calculation of the appropriate quantum of public law damages is not an exact science.210 As Blanchard J noted in Taunoa, an award of Bill of Rights damages does not perform the same economic or legal function as common law damages or equitable compensation.211 The award of public law damages is normally more to mark society’s disapproval of official conduct than to compensate any harm to the victim.212 It involves the goals of vindication of the right, deterrence and denunciation.213
[444] There is no set tariff to be applied, although parity with established awards in other cases is helpful to inform the exercise of the discretion. In this regard I have found a range of cases useful as guidance:
(a) In Putua v Attorney-General, Mr Putua was found to have been arbitrarily detained in prison for a period of 33 days.214 He effectively spent time in jail due to an administrative error over a warrant of commitment that wrongly recorded a cumulative rather than concurrent sentence of three-months’ imprisonment. Ellis J awarded Mr Putua
$11,000. Crudely applying a daily rate, Mr Putua received $333 for each day he was unlawfully imprisoned.
(b) In Smyth v Chief Executive of the Department of Corrections,215 Cull J awarded Mr Smyth just over $15,000 for the 55 days he was unnecessarily and unlawfully held in prison. A daily rate of approximately $273 appears to have been adopted, although that was
210 Taunoa (SC), above n 5, at [260] per Blanchard J.
212 At [259], and [368] per McGrath J. Cf [317]–[324] per Tipping J.
214 Putua v Attorney-General [2022] NZHC 2277.
inflation adjusted to reflect the detention occurred in 2007 and his claim was brought in 2018.
(c) In X v Attorney-General,216 Simon France J would have awarded X
$5,000 but for a finding that a declaration was a sufficiently effective remedy under the Prisoners’ and Victims’ Claims Act.217 The notional award was for a breach of s 23(5) arising from an unlawful requirement for X to sweep his gums using fingers affected by psoriasis after taking medication in prison. The assessment of quantum assumed the conduct might have occurred on 20 occasions before a timelier complaint would have brought an end to it. In arriving at the figure of $5,000, the Court appears to have accepted a submission that taking a starting point of
$1,000 for a strip search and discounting it by 70 per cent provided the necessary degree of calibration.218
(d) In Pere v Attorney-General,219 Cooke J considered the quantum of public law damages for a breach of s 23(5). Mr Pere had been accidentally shot in the back by Police during an arrest by the Armed Offenders Squad. He sustained serious injury. Parity with the more serious case of Falwasser v Attorney-General sounded in an award of
$20,000.220
(e) In Attorney-General v Udompun, the Court of Appeal found a “serious” breach of Mrs Udompun’s rights under s 23(5) arising from a failure to provide sanitary products to her at the police station.221 The breach was exacerbated by the failure to provide a shower, a change of clothes, food, and a means for Mrs Udompun to communicate her need for
216 X v Attorney-General [2022] NZHC 1531.
219 Pere v Attorney-General, above n 28, at [49]–[56].
220 Falwasser v Attorney-General, above n 38.
221 Attorney-General v Udompun, above n 40, at [175] and [198].
sanitary products.222 The majority set damages at $4,000.223 Hammond J, dissenting, would have awarded $10,000.224
(f) In Vogel v Attorney-General, the Court of Appeal found that Mr Vogel’s sentence from a Visiting Justice to 21 days spent in cell confinement was a breach of his s 23(5) rights, given that it exceeded the statutory maximum penalty of 15 days’ cell confinement.225 The Court would have awarded “a small amount of damages” to Mr Vogel for this breach but for its finding that s 13 of the Prisoners’ and Victims’ Claims Act prevented the Court from making any damages award.226
[445] Comparison with cases of arbitrary detention and serious injury indicate that the appropriate quantum of damages should be modest. That is also required by the finding that the breach was not deliberate, and that it did not result in any adverse physical or mental consequences for Mr Taylor. In arriving at the appropriate figure, I have also considered the defendant’s corrective actions in response to the issues raised by the Ombudsman and Inspectorate investigations (such as an absence of adequate record keeping, or errors in the Department’s record keeping), as well as the opening of the new maximum security facility at Auckland Prison. I have also considered Mr Taylor’s unexplained delay in pursuing this matter when he was regularly challenging other aspects of Corrections’ policy and conduct through the courts.
[446] Overall, I consider an award of $6,000 is necessary to provide effective redress. I have arrived at that figure by awarding $100 for each of the (approximately) 50 hours of exercise denied, and $1,000 for the loss of privacy due to CCTV surveillance while Mr Taylor was detained in the HCU. No discrete increase is warranted in relation to my consideration of unlock time. It is a factor I have taken into account in fixing the sum for loss of recreation time.
CHAPTER 2: FIRES
Chapter overview [447]
The fires [449]
Mr Taylor’s claims [457]
Negligence [468]
Was there a breach of s 23(5) of the Bill of Rights?
Law [473]
The alleged failings
Medical treatment [476]Fire safety education [481]
Extractor fans [484]
Maintenance of firefighting equipment [487]
Mattresses [490]
Psychological support [492]
Cell searches and rubbish [496]
Health and Safety in Employment Act [499]
Did Mr Taylor suffer any harm? [501]
Overall assessment under s
23(5) of the Bill of Rights [514]
Conclusion [517]
Chapter overview
[447] In 2011 and 2012, three fires occurred on the landing in D Block where Mr Taylor was housed. Mr Taylor alleges that the fires caused him to suffer smoke inhalation, physical discomfort, fear and emotional distress. He says that he was rendered unconscious on two occasions. Mr Taylor claims that acts or omissions of the Department of Correction breached a tortious duty to protect him from the fires, as well as s 23(5) of the Bill of Rights.
[448] In reply, the defendant says that Mr Taylor has failed to identify a particular tortfeasor and that this failure is a complete answer to his claim in negligence. In any case, it denies that its conduct amounted to a tortious breach of duty, or that Mr Taylor actually suffered the harm claimed. The defendant also says its conduct fell far short of the high threshold required to establish a breach of s 23(5).
The fires
[449] The factual narrative underpinning this aspect of Mr Taylor’s claims can be described briefly. While Mr Taylor was on directed segregation in D Block at Auckland Prison, there were three fires on the top west landing. All three fires were started deliberately by another prisoner, Mr Tony Adamson. On each occasion, Mr Taylor was locked in his cell.
[450] The first fire occurred on 28 June 2011 at about 11.30 pm directly outside Mr Adamson’s cell. Mr Adamson’s cell was on the same landing as Mr Taylor’s. The fire occurred at the very end of Mr Taylor’s first period of directed segregation and five days after he had been notified that his segregation would be extended until mid- July.
[451] Several Corrections staff attended the scene and extinguished the fire with a hose. They then opened the windows and set up an extractor fan to disperse the smoke from the landing. Next, the staff checked on all prisoners in the unit, including Mr Taylor, to confirm whether any required medical attention. None indicated they did, and no ambulance was called. Mr Taylor filed a formal complaint on 30 June 2011, two days after the fire, which recorded that the fire “resulted in a serious danger
to life”. He wrote, “I intend instructing counsel to bring an action against Corrections for negligence”. He also requested copies of all documents and videos relating to the fire under the Official Information Act.
[452] The second fire occurred one week later, on 5 July 2011 at about 11 pm. Again, several officers responded to the fire on the landing outside Mr Adamson’s cell and extinguished it with a hose. They opened the windows and used an extractor fan to disperse the smoke, then conducted a welfare check on the prisoners. This time, Mr Taylor had covered the front of his cell and could not be seen from the landing. As a result, Corrections Officer Robert Beaton called out to him. When he received no response, he unlocked Mr Taylor’s cell to check on him. Mr Taylor’s evidence is that he thinks he was rendered unconscious by the smoke and woke up when fresh air flooded into his cell as the door was opened. Mr Beaton’s evidence was that Mr Taylor was conscious and “presented as fine”. Mr Taylor was given two minutes on the landing to refresh his cell before being relocked. The Fire Service arrived at 11.35 pm, checked the situation, and departed at 11.40 pm. Corrections staff exited D Block at about midnight, leaving the extractor fan running. The following day, 6 July 2011, Mr Taylor filed a prisoner complaint form. It recorded:
Again, this fire seriously endangered my and other prisoners safety. The smoke was such it triggered the cell smoke detector in my cell. It has health and safety consequences.
[453] On 13 January 2012, Mr Taylor returned to D Block after his first period in the HCU. Three days later, on 16 January 2012, at about 10.15 pm, Mr Adamson once again lit a fire—the third and last relevant to this aspect of Mr Taylor’s claim.
[454] Staff responding to the fire arrived to find the top landings and cross passage filled with chest-height “thick black smoke”. There was no water pressure in the hose from the cross passage on the top landing, so the Corrections officers obtained a hose from the cross passage on the floor below and used it to extinguish the fire. Once that was done, the windows were opened, and an extractor fan was set up to disperse the smoke. Staff then undertook a welfare check of all the prisoners on the unit. Once again, Mr Taylor had covered the front of his cell and was not responding to verbal cues. Corrections Officer Kasimilo Fulu unlocked the cell and sighted Mr Taylor, who he said was in bed and appeared to be asleep. Mr Fulu says he did not wish to disturb
Mr Taylor’s sleep and left. Mr Taylor’s evidence was that he had been rendered unconscious as a result of smoke inhalation.
[455] On this occasion, central control had requested the Fire Service, which duly arrived along with police and an ambulance. The Fire Chief assessed the situation, confirmed one of the hoses had no water pressure and recommended getting it fixed. The ambulance staff assessed all staff involved in the incident and asked if any prisoners required medical treatment. It does not appear that any prisoners received medical assessment.
[456] The day after the third fire, 17 January 2012, Mr Taylor filed a complaint:
A serious fire occurred on the landing I am housed on last night (16-1-12). At some point I recall my cell door being opened and an officer saying something and leaving immediately. At no time did the officer or medical actually enter my cell and examine me. I believe that I may have been unconscious due to smoke inhalation - there was considerable smoke particles in my cell and up my nostrils. I recall feeling dizzy when coming around from what I thought was sleep when the officer opened my cell door. I also have suffered headaches on waking up this morning (which I do not normally have). I should have been examined by medical to check for the effects of smoke inhalation and smoke particulate exposure I note there is considerable smoke damage in the area my cell is located and the shower next door.
Mr Taylor’s claims
[457] Two claims arise from the fires. The first is in negligence. The second asserts a breach of s 23(5) of the Bill of Rights Act. Both claims are advanced on the basis that the defendant failed to take adequate steps to prevent Mr Adamson starting fires, and to mitigate the harmful effects of the fires on Mr Taylor.
[458] In relation to Mr Taylor’s claim in negligence, it is appropriate to trace its development during the course of the trial. In his amended statement of claim of 11 July 2019, Mr Taylor alleged that “the fires generated considerable smoke that entered [his] cell activating the smoke detector therein on each occasion”.227 He then pleaded that, due to his confinement, Corrections knew he was unable to protect himself from the effects of fires, including smoke inhalation. Further, the defendant
also had knowledge that Mr Adamson posed a risk of starting fires because he had started a fire on 22 March 2011 “in similar circumstances” and had, “on various occasions” prior to the three fires in question, communicated threats to staff that he would start a fire.
[459] It was therefore claimed that the defendant “should have foreseen the risk of [Mr Adamson] starting further fires that might endanger [Mr Taylor], prison staff, and other prisoners located in close proximity to him”. On this basis, Mr Taylor pleaded:
The Defendant failed to exercise due care and take all practicable steps to prevent the fires occurring and to mitigate the effect of them on the Plaintiff.
[460] Apart from this bald allegation, the statement of claim did not identify the nature of the duty alleged, or how it had been breached.
[461] As a direct consequence of each fire, and the defendant’s alleged failures, it was said Mr Taylor suffered “smoke inhalation, carbon monoxide poisoning, fear, physical discomfort and emotional distress”. In relation to the second and third fires, Mr Taylor also “suffered unconsciousness due to the smoke entering his cell depriving him of enough oxygen”.
[462] During the course of the trial I raised with Mr Taylor a concern that he had not adequately identified the scope or nature of the duty he claimed was owed by the defendant, or how it had been breached. I indicated that this was something he would need to address during the balance of the hearing and certainly in closing.
[463] No doubt in response, Mr Taylor’s written closing of 11 April 2022 particularised, for the first time, the conduct which he said amounted to negligence. Specifically, he alleged that the defendant had failed to:
(a) ensure smoke extraction fans were stored near Mr Adamson’s cell;
(b) ensure that firefighting equipment was maintained and kept in good condition (on account of the hose failing to deliver water during the third fire);
(c) replace prisoner mattresses with fire-resistant, non-toxic mattresses;
(d) implement a policy requiring staff to ensure that prisoners exposed to smoke were checked by medical staff (which was only corrected after a recommendation of the Ombudsman);
(e) arrange psychological help or support for Mr Adamson;
(f) increase and improve cell searches to ensure Mr Adamson did not possess the means to start fires (noting that lighters had been banned in prisons at this stage);
(g) arrange fire safety education, including seeking prisoners’ advice on “warnings and signs”; and
(h) keep rubbish in Mr Adamson’s cell to a minimum.
[464] Then, during closing argument, Mr Taylor’s case shifted materially once more. In an exchange with the bench it was put to Mr Taylor that, at least on the defendant’s view of the law, he was required to identify a particular servant or agent of the defendant that had been negligent, and for whom the defendant would be vicariously liable. Otherwise, the claim might fail under s 6(1) of the Crown Proceedings Act 1950. In response, Mr Taylor indicated that if an alleged tortfeasor had to be identified, it was the prison manager. I return to this point in more detail shortly.
[465] Mr Taylor’s second claim is that the defendant’s conduct in relation to the fires breached s 23(5) of the Bill of Rights Act. While a breach of s 23(5) was not pleaded in the amended statement of claim, Mr Taylor—again during the hearing—advised this was his key cause of action in relation to the fires. This change in the legal foundation for the claim was then reflected in Mr Taylor’s written closing of 11 April 2022, which alleged:
The Defendant’s conduct breached ss 23(5) and 9 of the NZBORA, as well as being negligent in failing, to protect me from the fires. The Defendant knew that Mr Adamson, had a history of starting fires, but failed to act with due care and skill to mitigate his risk.
[466] Although reference is made to s 9, Mr Taylor made clear during his oral closing that he only contends a breach of s 23(5) in relation to the fires. Essentially, his case is that the same alleged failures underpinning the negligence action, namely those set out at [463] above, amounted—either individually or collectively—to a breach of s 23(5). Mr Taylor also argued that the defendant failed to comply with ss 15 and 16 of the Health and Safety in Employment Act 1992, a breach he said was relevant to the s 23(5) analysis.228
[467] In response, the defendant says a breach of s 23(5) is simply not borne out by the facts.229 Rather, the evidence demonstrates the defendant appreciated the risk of fires, had processes in place to deal with them, provided regular training to staff, and ensured medical attention was available to prisoners who needed it—all of which showed appropriate care and concern for prisoner safety and was consistent with their humane treatment. Finally, the defendant notes that the first two fires occurred before 5 October 2011 and are accordingly outside the limitation period. Mr Taylor is now unable to pursue a money claim in relation to them.
Negligence
[468] I turn first to Mr Taylor’s claim in negligence. Crown liability in tort is circumscribed by the Crown Proceedings Act.230 At the time of the fires, the relevant provisions were ss 3(2)(b) and 6(1):
3 Claims enforceable by or against the Crown under this Act
...
228 Mr Taylor also argued that the defendant failed to comply with “his own risk mitigation policy in relation to such matters”, though he did not elaborate on this point and I was unable to consider it further.
229 Despite the late introduction of the Bill of Rights claim, the defendant raised no issue with it and provided a response in closing. No doubt Corrections did so because while Mr Taylor had not raised the issue in his pleadings, he had certainly put in issue Corrections’ response to the fires, and the defendant had addressed the issue comprehensively in evidence. So, although there may be a degree of unfairness to the defendant, no prejudice is evident. I therefore proceed on the basis of the claim as it was presented by Mr Taylor during the trial.
230 Attorney-General v Strathboss Kiwifruit Ltd [2020] NZCA 98, [2020] 3 NZLR 247 at [70].
...
(b) any wrong or injury for which the Crown is liable in tort under this Act or under any other Act which is binding on the Crown:
...
6 Liability of the Crown in tort
(a) in respect of torts committed by its servants or agents;
(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and
(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession, or control of property:
provided that no proceedings shall lie against the Crown by virtue of paragraph (a) in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.
[469] In Attorney-General v Strathboss Kiwifruit Ltd, the Court of Appeal confirmed that the effect of the proviso in s 6(1) is that the Crown’s liability in tort can only be vicarious; it cannot be direct.231 A plaintiff must therefore identify an individual Crown servant or agent within whom all elements of the tort coalesce. Only then can the Crown be held vicariously liable for that person’s tort under the Crown Proceedings Act.232 There is no such thing as “institutional” or “corporate” liability for the Crown. It is not possible to aggregate the actions or omissions of various staff and attribute them to, for instance, the Chief Executive of Corrections.233
[470] Mr Taylor’s case throughout the trial up until his closing was that there was negligence “by the defendant”, that is, the Attorney-General on behalf of the Chief Executive of Corrections. Neither his amended statement of claim nor his written
closings identified an individual said to have owed a specific duty that was breached, and for whom the Crown is vicariously liable.
[471] As I have noted, it was only following an exchange with the bench during his closing address that Mr Taylor nominated the relevant prison manager as the alleged tortfeasor.234 No real effort was made to address how each identified act or omission was the responsibility of the prison manager. Neither Mr Beales nor Mr Sherlock were cross-examined on the basis they were personally responsible for the alleged failings Mr Taylor advanced in closing.235
[472] Accordingly, there is no evidential foundation to support a duty of care of the broad nature alleged, let alone that it was owed by a particular servant or agent of the defendant. It follows that there is also no evidence of a breach of duty. I accept Corrections’ submission that Mr Taylor’s failure to identify an individual tortfeasor as required by s 6(1) of the Crown Proceedings Act is fatal to his claim. Accordingly, the third cause of action in negligence, to the extent it relates to the fires, must be dismissed.
Was there a breach of s 23(5) of the Bill of Rights?
[473] As I have noted, treatment will amount to a breach of s 23(5) of the Bill of Rights Act where it can be described as conduct which “lacks humanity”, “demeans the person” (but not to the extent it is degrading), or is “clearly excessive in the circumstances, but is not grossly so”.236
[474] As Ellis J held in S v Attorney-General, s 23(5) encapsulates a positive obligation on detaining authorities to protect detainees and keep them safe from
234 Mr Beales was the prison manager for the first two fires, and Mr Sherlock for the third.
235 For instance, Mr Taylor did not put to either Mr Beales or Mr Sherlock the alleged failings relating to increased searches of Mr Adamson’s cell, fire safety education, and clearing rubbish from Mr Adamson’s cell. To the extent that Mr Taylor did put the alleged failings to the prison managers, he obtained no meaningful concessions, and did not put to them that they were personally responsible for the relevant acts or omissions (as opposed, for instance, to some other member of Auckland Prison staff).
236 Taunoa (SC), above n 5, at [177] per Blanchard J, and [292], [296] and [297] per Tipping J.
harm.237 In the absence of actual illegality, that duty will only be breached where there is “an unacceptable and serious departure from the standard of care expected of a reasonable person in the position of the detaining authority”.238
[475] I now turn to consider Mr Taylor’s claims and the areas of disagreement between the parties. A preliminary observation is that Mr Taylor made no systematic attempt to put his case to the defendant’s witnesses or adduce evidence that might establish a failure by Corrections to treat him humanely in accordance with s 23(5) of the Bill of Rights Act.
[476] There is no dispute that the practice of Corrections staff was to check on prisoners following fires to see whether any required medical assistance, and that this practice was followed.239 Mr Taylor’s argument is that the defendant should have ensured that all prisoners exposed to smoke inhalation received an immediate medical assessment and, if necessary, treatment. He says this did not occur in relation to any of the three fires. He points to the fact that while some staff who were involved in extinguishing the fires received medical treatment, that did not reach to prisoners even though they were exposed to the smoke for a longer period.
[477] This same complaint was made to the Ombudsman by two prisoners, Mr Deliu and Mr Baker, following the third fire. On 20 May 2013, the Ombudsman wrote to Corrections expressing her view that prison staff acted unreasonably by not arranging medical treatment for the prisoners immediately after the 16 January 2012 fire. The Ombudsman recommended that Corrections review its emergency response procedures to ensure that the immediate health needs of any prisoners directly affected
237 S v Attorney-General, above n 18, at [241]. See also the earlier discussion above on s 23(5) and assessing a breach of where there is no minimum entitlement at [32]–[43].
239 The incident reports and the evidence for the defendant record that all the prisoners on the units were checked following the fires and asked whether they needed medical treatment. Mr Taylor accepts this happened to him, with the exception of the third fire, where he recalls an officer unlocking his cell, saying something he could not hear, and then leaving.
were assessed or examined as soon as practical by a suitably qualified health professional. Corrections accepted that recommendation.
[478] On 30 July 2013, Corrections reported back to the Ombudsman, explaining that it had reviewed and updated its emergency response policy, including first responder and incident control procedures. The first response guidance was updated to provide: “act fast to save life; ensure Medical is in attendance and are at the scene, account for all staff, prisoners and visitors and treat for injury”. Training was to be provided on the revised procedures, and first responder “flip charts” would be posted in all Corrections facilities.
[479] There is a distinction, in my view, between best operational practice when dealing with prison fires, and a failure to treat a prisoner with humanity and with respect for the inherent dignity of the person. While it may have been better for a nurse or doctor to have been on hand to assess and treat prisoners for any effects of the fire, I am satisfied that Corrections staff were primarily concerned with prisoner safety, and if needed would have obtained medical assistance.
[480] The short point here is that Mr Taylor did not need it. He was offered medical treatment following the first and second fires and refused it. He accepted during cross-examination that he did not think he needed it at the time. So, there is nothing in the complaint. In relation to the third fire, Mr Fulu clearly went to the effort of checking on Mr Taylor’s welfare and, finding him asleep, left him to continue to do so. Mr Fulu’s assessment that Mr Taylor was asleep (rather than unconscious due to smoke inhalation) would no doubt have been informed also by the fact that a nearby prisoner, Mr Toia, had also covered the front of his cell as Mr Taylor had done, and was awake and watching television when Mr Fulu checked on him. Mr Taylor’s own contemporaneous prisoner complaint form indicates that he was sufficiently conscious to recall a staff member had checked on him immediately after the fire. I therefore do not accept that he was rendered unconscious by the fire, or otherwise required medical treatment. Had he needed treatment, I have no doubt Mr Taylor would have made that known to prison staff at the time.
Fire safety education
[481] Mr Taylor’s closing submissions suggested that the defendant failed to provide adequate fire safety education and that it should have “sought prisoner’s [sic] advice on warnings and signs, [and] done check ins”. He did not elaborate on how better fire safety education could have been provided or how it might have avoided a breach of his s 23(5) right. Nor did he put that issue to the defendant’s witnesses.
[482] Moreover, Mr Taylor’s own evidence called into question the utility of seeking prisoners’ input on potential fire risks. For example, in cross-examination, he accepted he knew Mr Adamson was going to light the third fire but did not tell prison staff. When asked why, he gave two reasons. First, Mr Adamson regularly threatened to start fires, and often did not follow through. In other words, any “tip-off” to staff might have been unreliable. Second, Mr Taylor did not think the guards would do anything if he warned them. Given those responses, and the fact that fires were commonly used as a form of protest, or to cause a nuisance to the prison staff, it is difficult to see how greater education might have altered the occurrence of fires, much less how that would ensure Mr Taylor was treated with dignity and respect.
[483] The evidence for the defendant, which Mr Taylor did not challenge, was that fires were a genuine concern for prison management, there were clear fire response processes in place, and fire safety training was regularly provided to staff. The evidence also indicated that prison officers were first responders and that they were acutely aware that a failure to extinguish a fire could result in the deaths of men who could not escape their cells. The evidence indicated to me that prison staff acted bravely in handling dangerous circumstances and did so out of concern for their charges.
[484] The extractor fans were essentially large, powerful fans that were set up at the end of the landings following a fire and used to blow any lingering smoke out of the landing windows. Although the fans were used following each of the three fires, Mr Taylor says that they should have been stored closer to Mr Adamson’s cell—given his particular fire risk—so that they could be set up more quickly.
[485] There was mixed evidence about where the extractor fans were kept. Some witnesses suggested they were stored on D Block. Others thought they were kept in a storage cupboard outside the central control office. One witness said that the fans were often stored near the location of the last fire, which may (together with the significant period of time that has elapsed) explain the differing accounts. In any case, the evidence suggests that the furthest from D Block that the fans were stored on the nights of the fires would have been the central control office. The Court heard evidence that central control was about “100 yards” from the location of the fires and would require officers to traverse stairs and a sally port. Mr Fulu estimated that the fans would take “maybe another five minutes” to retrieve.
[486] The extractor fans were an important part of the defendant’s fire response policy once a fire had been put out. If there was a high risk of fire occurring in a certain place, it would make sense to store some of the fans nearby. However, it goes without saying that storing the fans in one location may impact the ability of staff to adequately respond to fires and smoke in other parts of the prison. The Court heard evidence that fires were common at Auckland Prison in 2011 and 2012, and not just on D Block. Given the limited evidence, and the need for staff to be able to respond to fires across the prison, I am unwilling to find that the decision to house the fans near the central control office was unreasonable. I am certainly not satisfied that the limited time it took to deploy the fans constituted a breach of Mr Taylor’s fundamental human rights.
Maintenance of firefighting equipment
[487] In his written closing, Mr Taylor alleged that the defendant failed “to ensure that firefighting equipment that might be required to quickly extinguish a fire started by Mr Adamson was maintained and kept in a good state of repair”. Evidently, this was a reference to a hose failing to work adequately during the third fire. As Mr Taylor submitted:
A fire hose failed to deliver any water during attempts to extinguish at least one fire. While another was bought into service, it is well known that time is critical when it comes to saving people exposed to smoke inhalation.
[488] There is no dispute that the hose on the top landing did not work on one particular occasion. As a result, some additional time was required to obtain a working
hose and that delayed the fire being extinguished (how much longer was not clear from the evidence). However, from the evidence I heard, this was an isolated incident. There is certainly no evidence of any systemic failure to maintain or inspect firefighting equipment. Moreover, in the case of the third fire, staff were able to locate a functioning hose nearby, extinguish the fire, and begin dispersing the smoke, all before the Fire Service arrived.
[489] I am not satisfied the failure of one hose on one occasion, when other operable hoses were available and used, constituted a failure to treat Mr Taylor with humanity and respect for his inherent dignity in breach of s 23(5).
[490] Mattresses are mandatory items that all prison cells are required to have.240 It appears Mr Adamson commonly used his mattress as fuel for fires. Mr Taylor says that the mattresses issued at that time were easily combustible, emitted “toxic fumes” and “dense, black smoke” when burned. As a result, the mattresses were replaced with fire-resistant types. This occurred sometime after the third fire, although there was little evidence about timing. The essence of Mr Taylor’s complaint is that the mattress replacement “should have been done sooner”.
[491] Again, Mr Taylor made no systematic attempt to put this issue to the defendant’s witnesses. While those witnesses generally accepted that the mattresses emitted toxic smoke, that fact is unremarkable. More importantly, there was no evidence to suggest unreasonable delay by Corrections obtaining replacement, fire- retardant mattresses. Once a less flammable mattress was available, steps were taken to acquire them as replacements. On its face, that does not support a finding that Corrections’ response to the issue lacked humanity in breach of Mr Taylor’s right under s 23(5).
240 Corrections Act, s 71; and Corrections Regulations, reg 57(1) and sch 2 pt A.
Psychological support
[492] Mr Taylor alleges that the defendant should have tried to mitigate the risk of Mr Adamson starting fires by ensuring Mr Adamson had psychological support.
[493] It seems clear that Mr Adamson had some mental health issues, and those issues were likely contributing to his behaviour in prison, including lighting fires. While he did not receive professional psychological treatment, that was no fault of the defendant. On 20 February 2012, one week after the third fire, the Residential Manager at Auckland Prison, Mr Tony Queree, emailed several senior members at the Wellington District Health Board requesting that Mr Adamson be accepted at the Mason Clinic for treatment. The Clinic provides forensic mental health services focusing, among other things, on the assessment, treatment and recovery of offenders with mental illness or intellectual disability. The email read:
Prisoner Adamson is on the waiting list to attend the Mason Clinic for assessment. I am becoming increasingly more concerned about his mental well-being (as much as a lay person can I guess) and I would be very grateful if this fellow could be taken into the Mason Clinic as soon as possible.
[494] However, the Mason Clinic did not accept Mr Adamson into its program. And, of course, requiring Mr Adamson to be treated or removed from D Block would have had an effect on his status and conditions of detention.
[495] The evidence satisfies me that Corrections staff responsibly identified an issue and sought to address it. There was nothing further, in my view, they could have done to have Mr Adamson treated outside the unit. Ultimately, the risk Mr Adamson posed to other prisoners was addressed by a period in the HCU with Mr Taylor. None of this, in my view, supports a finding that s 23(5) of the Bill of Rights was breached.
[496] Mr Taylor also says there was a failure to increase searches of Mr Adamson’s cell to ensure he was not in possession of the means to light fires. A related criticism is that the defendant failed to keep the rubbish in Mr Adamson’s cell to a minimum, giving him fuel for fires. However, Mr Taylor did not put either of these propositions to the defendant’s witnesses. As such, the Court is left with Mr Sherlock’s uncontested
evidence, which was that the prison appreciated the particular risk raised by Mr Adamson and took special measures to regularly search his cell to remove items that could be used to start fires. As Mr Beales explained, because Mr Adamson was already subject to the most secure conditions, no further measures could be taken to mitigate the risk he posed. He could not, for instance, be segregated permanently in the HCU, an at-risk cell, or the Detention Unit.
[497] Furthermore, in addition to replacing the old mattresses with flame-resistant types, Corrections took two other important steps in 2011 to reduce the risk of fires. First, the prisoner smoking ban came into effect on 1 July 2011, and lighters were prohibited thereafter. However, as Mr Sherlock noted, prisoners could “manipulate a light switch and start a fire from sparking the wires”. Given artificial lighting is a mandatory item that must be provided to prisoners, that particular risk is not one that can be easily reduced through increased cell searches. Second, the prison undertook a “cell hardening” project, which involved placing Perspex on the grills on the front of cells to stop prisoners pushing objects onto the landing, including mattresses, which could be used to start fires.
[498] Accordingly, I am satisfied Corrections took appropriate measures in response to the ability of Mr Adamson and others to start fires. Mr Taylor’s claims that the defendant should have done more are not made out.
Health and Safety in Employment Act
[499] Finally, Mr Taylor alleged a breach of ss 15 and 16 of the (now repealed) Health and Safety in Employment Act. Broadly speaking, those provisions imposed a duty on employers and workplace managers to “take all practicable steps” to prevent harm occurring to people in workplaces. While he did not clearly articulate the legal significance of the alleged breach, Mr Taylor seemed to argue that the duties imposed by ss 15 and 16 inform the scope of a separate tortious duty. Insofar as that was his argument, I do not accept it. That would conflate a quite different statutory duty with a tortious one.
[500] In addition, Mr Taylor suggested that a breach of a duty in the health and safety legislation is a relevant factor in assessing whether there has been a breach of s 23(5).
While I accept that might be correct in principle, I do not consider that the broad duties in ss 15 and 16 constitute a minimum condition of detention in this case. It follows that a breach of the statutory provisions would not, in itself, necessarily amount to a failure to treat Mr Taylor with humanity and with respect for his inherent dignity.241
Did Mr Taylor suffer any harm?
[501] Mr Taylor’s evidence was that as a result of smoke inhalation from the fires, he suffered carbon monoxide poisoning, fear, physical discomfort and emotional distress. He also claimed that he was rendered unconscious by the last two fires. For the reasons set out below, I have concluded that Mr Taylor did not suffer the effects he claimed. Had I found that he had suffered some adverse health effects, I would have found he was at least partly responsible.
[502] First, Mr Taylor’s conduct at the time of the fires was inconsistent with the physical and mental harm he claimed in evidence to have suffered. In relation to the first and second fires, Mr Taylor made no mention of smoke inhalation or unconsciousness to the prison staff who checked on him at the time. Nor did he take up their offers of medical treatment, accepting in cross-examination that he did not think he needed any. A file note of 29 June 2011, made by a Corrections officer following the first fire, recorded that Mr Taylor was “upset and a little annoyed over [the] fire in the block & breathing smoke in”.
[503] In addition, Mr Taylor’s formal complaints in relation to the fires did not suggest that he suffered any harm. The first complaint recorded that the fire “resulted in a serious danger to life” and noted that Mr Taylor intended to bring negligence proceedings against Corrections. In relation to the second fire, Mr Taylor complained that it “seriously endangered my and other prisoners safety” and “has health and safety consequences”.
[504] In relation to the third fire, Mr Taylor indicated that he might have been knocked out by the smoke, although his complaint was not categorical in this respect.
It stated: “I believe that I may have been unconscious due to smoke inhalation” and then “I recall feeling dizzy when coming around from what I thought was sleep when the officer opened my cell door”.
[505] There are other aspects of the evidence that cause me to doubt the credibility of Mr Taylor’s claims to have suffered physical and psychiatric harm as a result of the fires. In October 2011, several months after the second fire, Mr Taylor was found tampering with the smoke detector in his cell. On its face, that conduct is difficult to reconcile with his claim that being trapped in his cell during the fires, enduring smoke inhalation and being afraid he would be burnt to death, caused him mental suffering.
[506] Mr Taylor’s explanation for tampering with the smoke detector despite his fear of Mr Adamson’s fire-lighting was that the alarms “never went off” and “were not working”. This evidence was directly at odds with his own brief of evidence and amended statement of claim, both of which recorded that the three fires “generated considerable smoke that entered [his] cell and activat[ed] the smoke detector therein on each occasion”.242 When this inconsistency was pointed out to Mr Taylor, he said that he had made a mistake in his brief—a “typo”—because the fires “never activated the smoke alarm”. The change to Mr Taylor’s narrative, contradicting his evidence-in-chief, his own contemporaneous written complaint, and the accounts of multiple prison staff, is simply not credible.
[507] Additionally, Mr Taylor accepted that he knew in advance that at least one of the fires was going to occur but chose not to alert prison staff. Mr Beales provided a memorandum to the Ombudsman to assist her investigation into the third fire. It recorded that staff on the night had observed “all the cells on this landing had items like towels and toilet paper jammed into openings of cell fronts to stop smoke and water from entering each cell”. It also stated that “[Mr Adamson] told the staff he had informed all the prisoners of what he was going to do so they had time to block up”. When this was put to Mr Taylor in cross-examination, he accepted he knew the fire was going to happen, saying “yeah that’ll be right because sometimes you know we
knew [Mr Adamson] was really going to do it”.243 In light of this knowledge, Mr Taylor’s decision to mitigate the effects of smoke by covering his cell rather than alerting prison staff, for instance by activating the alarm button in his cell, is not consistent with his claim to have suffered unwanted harm.
[508] In relation to the second fire, Mr Taylor’s claim that he was rendered unconscious is inconsistent with the evidence of Mr Beaton, who spoke to him after the fire. Mr Beaton’s evidence was that Mr Taylor had covered the front of his cell with a sheet and was not responding to verbal cues. Mr Beaton unlocked the cell to check on Mr Taylor and found him to be alert and conscious. He gave Mr Taylor two minutes on the landing to allow his cell to ventilate. Mr Beaton said he remembered Mr Taylor “being annoyed at the fact that the fire had disturbed the night-time routine”. He said he had “no concerns for his well-being”, and that Mr Taylor was “certainly not unconscious” and “did not say anything to me about smoke inhalation”.
[509] In cross-examination, Mr Beaton said Mr Taylor was “lucid, talking and grumpy, not with me, but with Tony [Adamson]”. Importantly, these accounts are consistent with Mr Beaton’s contemporaneous incident report, which recorded that Mr Taylor “was unlocked, whom presented as fine, his cell was given two minutes to replenish air within, and relocked without incident”. Overall, I found Mr Beaton’s evidence to be clear, consistent with the contemporaneous record, and credible. I accept his evidence.
[510] In contrast, Mr Taylor’s account of the second fire was inconsistent and lacked credibility. In evidence he said, “all I remember is gasping for oxygen, wanting air and then not remembering anything till sometime later”. He said he probably regained consciousness “with all the fresh air coming through the door when [Mr Beaton] unlocked it”. When Mr Beaton’s evidence of his encounter with Mr Taylor was raised in cross-examination, Mr Taylor initially took no issue with it. However, he subsequently reversed his position, claiming to have recalled the event. Mr Taylor then denied having had a conversation on the landing, saying that Mr Beaton “just opened the door briefly, looked in and then slammed the door shut again and went onto the
next cell”. The change in Mr Taylor’s narrative, creating a direct inconsistency with Mr Beaton’s contemporaneous incident report, further undermined his credibility. Mr Taylor also failed to put his own account of events to Mr Beaton in cross-examination, as he was obliged to do.244 I draw an adverse inference from his failure to do so.
[511] In relation to the third fire, Mr Fulu was the staff member who checked on Mr Taylor. As noted, his evidence was that Mr Taylor and Mr Toia had both covered the doors of their cells with sheets and neither could be seen from the landing. Unable to get a response from Mr Toia, Mr Fulu unlocked his cell and found him lying in bed watching television. Mr Fulu then did the same for Mr Taylor, whom he said appeared to be asleep in bed. Mr Fulu said he had “no further concerns for his safety”. When asked in cross-examination if he approached Mr Taylor, he said, “No, no I didn’t want to disturb you. You were snoring your head off. I think you slept through the whole incident”. Mr Fulu’s evidence is consistent with his incident report on the night of the fire. I accept this evidence.
[512] Mr Taylor’s response of course is that he appeared to be sleeping because he had been rendered unconscious by the smoke. He appeared to suggest that he rapidly regained consciousness when his cell door was opened and oxygen flowed back in, and this explains his ability to recall a prison officer opening his cell door. However, important aspects of Mr Taylor’s evidence on the second and third fires were vague and inconsistent.245 More fundamentally, given the adverse credibility findings I have made in relation to the matters set out already, I am unable to accept Mr Taylor’s evidence about the effect of the third fire on him.
244 Under s 92 of the Evidence Act 2006, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters. If the duty is not met, the Judge may admit the contradictory evidence but adjust the weight to be given to it: Wallace v Attorney-General, above n 52, at [154]–[155], citing Browne v Dunn (1893) 6 R 67 (HL) at 70, R v Dewar [2008] NZCA 344 at [49], and Solomon v R [2019] NZCA 616.
245 In cross examination, Mr Taylor was unable to recall which fires had left him unconscious and asked to be taken to his brief to confirm the details. Further, while he gave an account of how he tried to protect himself from the smoke entering his cell, he could not recall whether that was for the second or third fire, or both. Finally, his evidence was equivocal. When asked whether he lost consciousness for the last two fires, he responded: “that’s what I think happened, yes”.
[513] For the foregoing reasons, I am not satisfied on the balance of probabilities that Mr Taylor suffered any of the physical or psychological effects he claimed. This conclusion is not fatal to his claim under s 23(5), but would be to his claim in negligence.
Overall assessment under s 23(5) of the Bill of Rights
[514] Prison staff were clearly aware of the danger posed by fires and smoke in a prison context. For each fire, staff followed the prison’s policy and their training. They extinguished the fire as quickly as possible, used fans to remove the smoke, and then checked on the prisoners’ wellbeing, offering medical assistance to any who needed it. There is no evidence of any systemic failure to adequately maintain firefighting equipment, but rather an isolated instance of an equipment failure.
[515] It is clear that Corrections staff were regularly required to respond to fires, and did so with the urgency and care that would be expected given the risk to prisoners. The prison clearly appreciated the particular risk posed by Mr Adamson and took appropriate steps to mitigate that risk. Following an investigation into the third fire, the Chief Ombudsman recommended that Corrections review its emergency response processes to ensure that prisoners’ health needs were suitably protected. Corrections duly accepted and implemented the recommendation.
[516] The threshold for finding a breach of s 23(5) of the Bill of Rights Act is a high one. Mr Taylor was required to establish “an unacceptable and serious departure” by Corrections from the expected standard of care. For the reasons set out already, I am satisfied he has not done so. Rather, I consider that Corrections’ conduct in relation to the fires was consistent with Mr Taylor’s right to be treated with humanity and with respect for the inherent dignity of the person.
Conclusion
[517] Mr Taylor’s claims in relation to the fires at Auckland Prison are dismissed.
CHAPTER 3: THE TRUTH NEWSPAPER BAN
Chapter overview [518]
The Truth newspaper ban [519]
Legal framework for prohibiting prisoner access to publications [536]
Parties’ submissions [543]
Was the Truth ban a breach of Mr Taylor’s freedom of expression? [548] Was there a failure to consider a mandatory consideration? [549] Did the newspaper pose a real risk to safety and good order in the prison? [553] Was the ban proportionate to the risks identified? [558]
Was the prohibition for an improper purpose? [563]
Conclusion and relief [565]
[518] In June 2011, the Truth newspaper was prohibited within the East Division of Auckland Prison. Mr Taylor says the paper did not pose any real risk to the prison and so the ban was an unreasonable limitation on his right to freedom of expression under s 14 of the Bill of Rights. The defendant says the ban was a justified limit on freedom of expression and lawful under the Corrections Act because the newspaper—which regularly contained inflammatory articles targeting some of D Block’s most violent, dangerous and unstable prisoners—created a real risk to the good order and safety of the prison. This chapter sets out the background leading to the decision to ban the Truth and assesses whether it constituted an unreasonable limitation on Mr Taylor’s freedom of expression.
[519] The Truth Weekender (formerly the New Zealand Truth) was a weekly tabloid newspaper published in New Zealand until it went out of print in 2013. In mid-2011, it seems prison management became concerned that the Truth was causing tension among inmates and posed a risk to the safety and security in the prison, particularly D Block. At this time, a total of about three or four prisoners in Auckland Prison had subscriptions to the newspaper, and only one of those—Mr Taylor—was on D Block.
[520] The Truth often featured articles that reported news and events relating to New Zealand prisons. Of particular concern to Auckland Prison were articles that focussed on individual inmates on D Block, often in unfavourable terms. For instance, several articles in April and May 2011 referred to a feud between Mr Taylor and George Baker, another convicted prisoner on D Block.246 Mr Baker is described as an “evil killer” and a “psychopath killer”. Mr Taylor is quoted as describing Mr Baker as “a piece of shit” and “the vilest piece of filth in all humanity ... a man even the worst Paremoremo inmates feel ashamed to share a prison with”. The Truth also turned the spotlight on
246 Stephen Cook “Showdown on D Block: Taylor’s jail face off with evil Baker” Truth Weekender (1 April 2011) at 1 and 4; Stephen Cook “Tag of War: Taylor faces prison rap over graffiti attack on evil Baker” Truth Weekender (22 April 2011) at 4; and “Petty jail feud escalates” Truth Weekender (6 May 2011) at 2.
fellow D Block prisoner Graeme Burton after a T-bomb was found in his cell.247 The articles, which traversed Mr Burton’s criminal history, both inside and outside prison, described him as a “deranged killer”. Given the evidence, I am satisfied that Mr Taylor was the source of the information published in the paper.
[521] The prison manager, Mr Beales, became worried that articles of this nature could endanger the safety and good order of the prison. I return below to Mr Beales’ assessment of the Truth newspaper—and the risks that he considered it presented.
[522] It appears Mr Taylor subscribed to the Truth sometime in late May 2011. However, several weeks went by and he did not receive any copies of the newspaper. He followed up with the Truth, which confirmed that copies had in fact been dispatched to him. Accordingly, on 10 June 2011, Mr Taylor filed a prisoner complaint form asking why he had not received his newspapers. The response from the Residential Manager was that two issues of the publication were being held in Mr Taylor’s property pending a decision on whether they could be issued to him.248
[523] Evident from this exchange is that Mr Taylor was not informed that his copies of the Truth were being withheld, nor was he given reasons for that decision. The Ombudsman subsequently recommended that Corrections require its staff to record in writing the fact that any item of prisoner mail had been withheld, and the advice given to the prisoner of that withholding.249
[524] Mr Taylor’s complaint regarding the Truth coincided with Ms Reeve’s emails to senior Corrections staff on 10 June 2011, which are referred to in detail above at [149]–[156]. Clearly, the Corrections National Office was concerned Mr Taylor was speaking to journalists, apparently in breach of the Act and Regulations:
How is Taylor talking with Steve Hopkins and Steve Cook (journalists)? Can you please check his pre approved phone numbers and trace them to check
247 Stephen Cook “Burton’s Storm in a Tea Cup: Killer on rap again after device found in cell” Truth Weekender (20 May 2011) at 1 and 2; and Stephen Cook “Pounded: Killer thrown into solitary over ‘bomb’ stunt” Truth Weekender (3 June 2011) at 6.
248 That note was recorded in the ‘Further action taken’ section of the complaint form and signed on 21 June 2011.
249 Letter from Beverley Wakem (Chief Ombudsman) to Ray Smith (Chief Executive of Department of Corrections) regarding Arthur Taylor’s complaints about the withholding of the Truth newspaper (8 February 2012).
calls are not being diverted or we have not been duped into approving a journalists phone number. Can you assure me again all his mail is monitored, including legal mail to ensure this is indeed legal mail. What intelligence do we have on how this prisoner is communicating directly with journalists? ...
[525] It will be recalled that in his email response to Ms Reeves on 13 June, Mr Beales set out a range of options for management regimes of varying restrictiveness that Mr Taylor could be placed on. One of the proposed restrictions was to ban the Truth newspaper on the basis that Mr Beales considered it “objectionable material” and “a threat to the good order and security of this site”.250
[526] On 22 June, almost two weeks after the complaint had been lodged, Prison Inspector Trevor Longmuir emailed Mr Beales about Mr Taylor’s complaint, noting that he could not see why the newspaper had been withheld. Mr Beales’ response was:
I have been liaising with [National Office] as it is my intent to ban the Truth newspaper from this site as I believe much of the content to be a threat to the stability and security of this site. I will be sending a Notice to Prisoners out today. I find the paper objectionable. It often is dangerously incorrect in the details, names staff, causes tension amongst prisoners and in my view inflames situations on the blocks. We know that Taylor uses it as his way to vent and embarrass the service, and the journalism is irresponsible at best.
[527] Later that day, 22 June 2011, Mr Beales issued the following notice to prisoners:
Effective immediately, the Truth Newspaper is prohibited and will no longer be permitted within the East Division of Auckland Prison.
[528] Mr Beales then informed Mr Longmuir that he had imposed the prohibition, noting that “[l]egal advice supports the decision”.
[529] Subsequently, Mr Taylor complained to the Ombudsman. After seeking further information from Corrections, the Ombudsman’s provisional view was that the decision to prohibit the Truth was not unreasonable or wrong in terms of the Ombudsman Act 1975. Mr Taylor disagreed with her view, and formally withdrew his
250 That condition was in relation to the suggested regime described as “Moderate Regime – Maximum Security Landing (Voluntary Segregation)” and can be contrasted with the more extreme regimes under which it was suggested that the prison would “Restrict all newspapers”.
complaint. In cross-examination, he explained that withdrawal was because he instead wished to pursue the issue in this proceeding.
[530] In the end, Mr Taylor was left with an annual subscription to the Truth newspaper which he could not use. Each week Mr Taylor’s copy would be placed in his personal storage for safekeeping. He says that eventually, following a request from the prison that he empty his storage, he reluctantly cancelled his subscription.
[531] Despite the ban, Mr Taylor appear to have continued providing stories that made their way into the publication.
[532] Aside from the correspondence with Ms Reeves and Mr Longmuir referred to above, there is no record detailing the process, reasons or considerations that led Mr Beales to ban the Truth newspaper. To that extent, I must rely on his evidence at the trial.
[533] Mr Beales’ said he was concerned about the effect that the paper might have on the welfare of the prisoners “targeted”, such and Mr Baker and Mr Burton. He was also worried that the paper could “incite tension and hostility between prisoners” which would threaten the good order and discipline of the prison. The paper would also put staff members at risk. Mr Beales noted that one issue recorded a prison source as saying that “[t]he screws thought [Mr Burton] was about to launch an attack on [Officer] Phelan ... which might not have been a bad thing”. He observed that the paper was sensationalising crime and some of the most dangerous and difficult prisoners held in the East Division, increasing the risk of reoffending and threatening prisoner rehabilitation efforts. These concerns led Mr Beales to the view that the ban was reasonably necessary in terms of s 43 of the Act.
[534] Mr Beales also sought legal advice before making the decision. He was careful to ensure the ban was “not wider than reasonably necessary to minimise the risks to security of the site”. He was also conscious that prisoners in the East Division could still access news from a range of other sources, including newspapers, radio and television.
[535] Against that background, I turn to the legal framework under which the decision was made.
Legal framework for prohibiting prisoner access to publications
[536] Section 14 of the New Zealand Bill of Rights Act provides:
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
[537] Under s 5, the right to freedom of expression may be subjected to limits that are reasonable, prescribed by law, and demonstrably justified in a free and democratic society.
[538] Under the Corrections Act, “authorised property” is property that prisoners may be issued with or allowed to keep, subject to any relevant conditions.251 The Chief Executive of Corrections is required to make rules declaring what items are authorised property.252 At all relevant times, newspapers were authorised property at Auckland Prison. After all, prisoners have a statutory entitlement to reasonable access to news.253
[539] However, the ability to receive and keep authorised property is not absolute. Section 43 of the Act provides a range of circumstances in which prisoners may be denied access to items. Typically, this will involve risks to personal safety or order and security in the prison. Relevantly, ss 43(2)(e) and (g)—the provisions Mr Beales purportedly relied on for the ban—permit a prison manager to refuse to issue an item of property to a prisoner if they have reasonable grounds to believe that the item is objectionable or may interfere with the effective management of the prison.
[540] In Taylor v Chief Executive of Department of Corrections, the Court of Appeal considered the balance between the right to freedom of expression in a prison context, and competing interests such as the safety, good order and security.254 In that case,
251 Corrections Act, ss 3(1) and 43(1).
254 Taylor (Media interview judgment), above n 70.
Mr Taylor successfully sought judicial review of a decision refusing a request by Television New Zealand to interview him in prison. The Court of Appeal held that the right to freedom of expression is the appropriate starting point in considering any request for an interview under reg 109 of the Corrections Act, and must be balanced against conflicting considerations, in particular, the two mandatory considerations provided in reg 109(1): the need to protect the interests of people other than the prisoner concerned and the need to maintain the security and order of the prison.255
[541] The Court of Appeal also considered whether a full proportionality analysis of the type adopted in Hansen is required in the review of administrative decisions such as those under reg 109(1).256 While accepting that the correct approach may vary depending on the context, the Court concluded that some form of proportionality assessment is required in the consideration of requests for interviews under reg 109.257 Relevant to that analysis are the requirements that any limiting measure must be rationally connected with its purpose and must impair the right to freedom of expression no more than is reasonably necessary to sufficiently achieve its purpose.258
[542] In Hudson v Attorney-General, Dobson J adopted the Court of Appeal’s approach to balancing and proportionality in relation to a decision made under s 43.259 There, his Honour upheld Corrections’ decision to withhold men’s magazines from a prisoner, Mr Hudson. I also consider the Court of Appeal’s approach in Taylor to be appropriate in relation to s 43 in this case. However, as will become clear, I arrive at a different conclusion to the one in Hudson.
Parties’ submissions
[543] Mr Taylor argues that the prohibition was an unjustified limitation on his right to freedom of expression, and in breach of ss 43 and 78 of the Corrections Act. First, Mr Taylor argues that in considering whether to exercise his discretion to refuse to
256 At [76]–[82], the Court of Appeal traversed a range of authority and academic commentary but ultimately found it unnecessary to answer the question.
257 At [83]–[84]. The more recent decision of the Supreme Court in Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551, also confirms that whether the Hansen test will be appropriate will depend on the context in which the issue falls for determination: see [46]–[57].
259 Hudson v Attorney-General [2020] NZHC 1608 at [36]–[37].
issue the Truth under s 43(2), Mr Beales was required to consider whether that was a justified limit on Mr Taylor’s freedom of expression. The failure to do so rendered the decision unlawful.
[544] Second, Mr Taylor argues that there was insufficient evidence to conclude the newspaper created a real risk to the good order or security of the prison. Thus, the threshold for an order under s 43(2) was not met. Instead, he contends the real purpose of the ban was (improperly) to prevent prisoners receiving information and opinions about events occurring at Auckland Prison; to keep unlawful, unreasonable and unfair practices and actions by Corrections out of the public eye; and to reduce reputational damage to the defendant.
[545] Third, even if there were reasonable grounds for concern about prison security, Mr Taylor argues that placing a blanket ban on the newspaper was excessive and disproportionate, and therefore unlawful. A more proportionate response, for example, would have been to remove any articles deemed to pose a threat to the prison and allow the remainder of the newspapers to be issued. Accordingly, the ban was also inconsistent with s 6(1)(g), which provides that orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, Corrections staff, and prisoners.
[546] In response, the defendant recognises that the decision to prohibit the Truth newspaper limited Mr Taylor’s freedom of expression but submits that the limit was reasonably justified in accordance with s 5 of the Bill of Rights Act. First, the limit was prescribed by law, namely ss 43(2)(e) and (g) of the Corrections Act. Second, the decision to ban the Truth was reasonable, considered, and informed by the Prison Manager’s particular knowledge and understanding of the prison environment. Mr Beales was motivated by his genuine concern that the newspaper was having an inflammatory effect in a volatile D Block. Third, the limit on the right was proportionate as it only targeted the publication considered to present the risk, the Truth newspaper, and the area where the risk was identified, the East Division of Auckland Prison.
[547] Corrections notes that the courts have typically been slow to interfere with these types of operational and administrative decisions.260 The defendant also points to the fact that the prohibition did not prevent Mr Taylor from communicating with the Truth or relaying important stories about the administration of prisons to the outside world.
Was the Truth ban a breach of Mr Taylor’s freedom of expression?
[548] I am satisfied that the prohibition was unlawful for two reasons. First there was a failure to take into account a mandatory consideration, namely the right to freedom of expression. Second, the blanket ban was disproportionate and, therefore, had no rational connection to the risks identified.
Was there a failure to consider a mandatory consideration?
[549] Just as the right in s 14 is a mandatory consideration when deciding requests for interviews of prisoners under reg 109,261 it must also be a mandatory consideration when deciding whether to withhold newspapers from them under s 43. Here, Mr Taylor’s right to freedom of expression was clearly engaged and should have been considered.
[550] Mr Beales’ evidence under cross-examination strongly suggested that his decision to ban the newspaper was based on the criteria in s 43. In cross-examination, the following exchange occurred:
Q Did you know about the section of the Bill of Rights that gives everyone the right to seek and impart information and opinions of any kind in any form, section 14 of the Bill of Rights?
A Yeah, that particular section wasn’t, you know, wasn’t right in front of me, but I do remember people having a discussion about it. The part of the legislation I was relying on of course was 43(2)(e) and 43(2)(g).
Q As we know, us that deal with prison legislation and that sort of thing on a regular basis it’s like a jigsaw isn’t it, you’ve got a bit here, a bit there, a bit there?
260 Citing Mitchell v Attorney-General [2021] NZHC 2946 at [63], and the other authorities referred to there. See also the cases cited above at 68.
261 Taylor (Media interview judgment), above n 70, at [84]: “It is common ground that, at the least, the right to freedom of expression is a mandatory consideration when requests for interviews are made under reg 109.”
A Yeah. Ultimately, my concern was if I had powers which I believed I did and the advice that I got was that they were available to me, under the Corrections Act, under 43(2)(e) or 43(2)(g) that was available to me to utilise.
Q Right, so essentially the Act under sections 43(2)(e) and (g), Corrections Act?
A Well that’s what gave me the authority to either consider something objectionable or consider whether the item may interfere with the effective management of the prison.
Q So, in relation to your decision, really, the only legislation you looked at was 43(2)(e) and (g)?
A Well, that’s my primary legislation as managing a prison is the Corrections Act.
[551] And when later asked if he had taken any legal advice on the ban, Mr Beales replied:
... the request I made to head office was whether I was able to ban the newspaper The Truth and I was told I was able to utilise the Corrections Act as we have discussed previously.
[552] The evidence does not satisfy me that Mr Beales gave explicit consideration to the right to freedom of expression when exercising his discretion under s 43 of the Corrections Act to ban the Truth. That constituted a failure to consider a mandatory consideration rendering the decision unlawful.
Did the newspaper pose a real risk to safety and good order in the prison?
[553] Mr Taylor’s second contention is that there was no evidential basis to conclude that the Truth posed a real risk to security, good order or safety justifying prohibition. He argued that Mr Beales’ assessment of the risk was unreasonable in administrative law terms.262 And in terms of the criteria in s 43, there were no reasonable grounds to conclude that the newspaper was objectionable or may have interfered with the effective management of the prison.
[554] Mr Taylor submitted that there was no documentary evidence, or evidence from Mr Beales, that the circulation of the Truth in the prison had caused any incidents
within East Division, nor any complaints in relation to it, including from those individuals who were singled out by certain articles. Mr Taylor urged the Court to draw the conclusion that there was simply no real danger arising from the newspaper. However, I am unable to accept that submission.
[555] Every risk is hypothetical until it materialises. It is the role of the prison manager to identify, assess and address those risks to the extent possible. D Block in particular housed some of the most violent and unpredictable prisoners in the country. In the circumstances, I am satisfied that Mr Beales’ assessment of the risk posed by some of the articles was reasonable.
[556] Some of the articles—like those described above at [520] which appeared to target certain inmates—clearly warranted consideration of a ban in East Division. Mr Beales’ evidence was that his staff had relayed their concerns that the Truth newspaper was causing tensions in D Block. He described Mr Baker as “highly volatile and unstable”, and “a very damaged individual” whose personality and behaviour could turn very quickly. Similarly, he characterised Mr Burton as a “dangerous individual”, who was not happy about the articles. When asked what he perceived the risk to be, Mr Beales explained:
Well when we have people of such a nature as you know only too well, people who are known to be violent, people who are known to be exceptionally violent and in some cases lethally violent, having articles in their vicinity which are in my view was targeting them, targeting them or representing them sometimes in ways which was I suppose in a very grandiose manner, very often not quite honest and quite truthful in the way they were being described or the incidents that were being described, that to me was a risk. I just can't allow people like that to be triggered and promoted to do something whether it be to a member of staff or to somebody else and had that have happened and somebody had said to me: “Why have I allowed those publications to continue?” I would've, I would've been remiss in my duties.
[557] Given the evidence, I am satisfied that the content of some of the Truth articles gave rise to real risks to safety and good order in the prison that justified a decision to ban them. Accordingly, there were also reasonable grounds under s 43(2)(g) for believing that some of the articles might have interfered with the effective management of the prison. That is so notwithstanding Mr Beales’ failure to have regard to s 14 of the Bill of Rights when making his decision.
Was the ban proportionate to the risks identified?
[558] The proportionality assessment requires the right to freedom of expression to be balanced against countervailing interests. In this case, those include the effective management, safety, good order, and security of the prison. As I have found, some of the articles could reasonably have been seen as posing a risk to these interests. Banning only those articles which reasonably gave rise to concern would have been a proportionate response. However, the prohibition was a blanket ban on the Truth without any regard to the content of individual editions of the newspaper.
[559] Clearly, the vast majority of information published in the Truth newspaper after the prohibition came into effect would not have risked the safety or good order of the prison. When asked whether several such articles contained “anything objectionable”, Mr Beales admitted he was unable to answer as he had not read them. I am confident that, had he done so, he would agree they posed no risk to the prison. The short point is that the blanket ban denied Mr Taylor receiving any of the information within every edition of the newspaper.
[560] Mr Beales’ evidence was that as prison manager he did not have the power to censor parts of the newspaper as Mr Taylor suggested. As a result, prohibitions create “collateral damage”:
You know, if you ban a book, you ban a book in its entirety. If you ban a newspaper, you ban it in its entirety.
[561] I acknowledge that Corrections may not have had the ability to censor parts of documents before issuing them to prisoners. I also acknowledge that the question of reviewing newspapers and other media for potentially harmful content raises a question about resource allocation. However, those factors must be viewed in the context of a decision which intruded on a fundamental right. Here, the risks identified in the newspaper appear to have only arisen in relation to a handful of articles and editions. The prohibition was clearly an overly broad response.
[562] Accordingly, I consider that the complete prohibition on the Truth newspaper was disproportionate to the risks identified, and intruded on the right to freedom of
expression far more than was reasonably necessary. The blanket ban was therefore an unjustified limitation on Mr Taylor’s right under s 14.
Was the prohibition for an improper purpose?
[563] Mr Taylor also asserted that the prohibition was made for a range of improper purposes, including to protect Corrections and its staff from reputational harm. On the material put before me, there is no basis to support such a finding.
[564] However, I note, as did the Ombudsman, that Mr Taylor should have been notified in writing that his property was being withheld and the reasons why. That is a requirement of natural justice and reflects the obligations in s 6(1)(f) of the Corrections Act.
Conclusion and relief
[565] For the foregoing reasons, I consider that the decision to prohibit the Truth newspaper in the East Division of Auckland Prison was an unjustified limit on Mr Taylor’s right to freedom of expression.
[566] I make a declaration to that effect.
[567] However, I am not satisfied that the intrusion into the right is of such seriousness that any further remedy is required to vindicate the right having regard to ss 13 and 14 of the Prisoners’ and Victims’ Claims Act 2005:
(a) The breach was not deliberate or in bad faith. While I have found that its implementation was disproportionate, I am satisfied that a number of editions of the paper were susceptible to the order on the basis of the security or good order of the prison.
(b) Mr Taylor did not provide evidence relating to the duration and impact of the ban, other than it affected an annual subscription. He continued to have access to news and information through other means.
(c) Mr Taylor’s particular interest in the Truth seems to have related to articles that were either based on his prison experiences or on information he had supplied to the journalist. Accordingly, it cannot be said that he was deprived of the opportunity to impart or receive information, at least to the extent the editions focussed on information Mr Taylor had imparted to a journalist.
(d) Overall, I consider that the declaration I have made is sufficient, in the circumstances, to emphasise the importance of the right to freedom of expression and to vindicate its breach.
CHAPTER 4: REHABILITATION AND PAROLE
Chapter overview [568]
Background [571]
Mr Taylor’s claim and Corrections’ response [591]
Legal framework governing prisoner rehabilitation [595]
Consideration
Was there a breach of s 52 of the Corrections Act? [599]
Was there a breach of s 23(5)
of the Bill of Rights? [608]
Was there a breach of s 22 of
the Bill of Rights? [609]
Are aspects of Mr
Taylor’s claim res judicata? [612]
Are Mr Taylor’s claims
properly pleaded? [618]
Conclusion [620]
Chapter overview
[568] It may be recalled that the lack of access to rehabilitative programmes formed part of Mr Taylor’s claim that the conditions of his detention on directed segregation amounted to a breach of s 23(5) of the Bill of Rights Act.263 In relation to that particular aspect of Mr Taylor’s claim, I concluded that he had not established a breach of s 52 of the Corrections Act, or s 23(5).
[569] This chapter deals with the same allegation but at a more general level and for a longer period. Mr Taylor alleges that the defendant breached s 52, in particular by failing to provide him with any rehabilitation opportunities while he was on D Block at Auckland Prison and by unlawfully removing him from the STURP programme in 2015. He says these failures left him unable to satisfy the Parole Board that he was suitable for parole and, in turn, unnecessarily lengthened the amount of time he was required to spend in prison. This, it is said, amounted to breaches of ss 22—the right to be free from arbitrary detention—and 23(5) of the Bill of Rights Act.
[570] Corrections argues that Mr Taylor’s claim should be dismissed due to what is said to be several fatal deficiencies in the pleadings. In any case, the defendant says that the claim fails on the facts because the obligation to provide Mr Taylor with rehabilitative programmes under s 52 was met.
Background
[571] Most of the events underpinning this aspect of Mr Taylor’s claim are comprehensively described in a series of judgments by Ellis J in 2015 and 2016.264 What follows is a summary.
[572] On 15 March 2010, Mr Taylor was classified as a maximum security prisoner and placed on D Block where he remained until 2 October 2014. As I have recounted, he spent a good proportion of that time on directed segregation and was, at various times, also detained in the HCU and the Detention Unit.
264 Taylor v Chief Executive of Department of Corrections [2015] NZHC 902; Taylor v Chief Executive of Department of Corrections [2015] NZHC 2196; and Taylor (STURP judgment), above n 70.
[573] On 12 September 2012, Mr Taylor became eligible for parole and his statutory release date was adjusted to 12 October 2022.
[574] From at least September 2012, the Parole Board had made it clear that Mr Taylor’s satisfactory completion of the Special Treatment Unit Rehabilitation Programme (STURP) was likely to be a precondition of parole.265 The STURP is a high intensity group-based programme specifically directed at reducing violence.
[575] Group-based rehabilitative programmes, including the STURP, operate in low security environments and are only available to prisoners with low-medium security classifications. Because Mr Taylor was classified as maximum or high security for his entire detention on D Block,266 he received no group-based rehabilitative treatment while he was there. Instead, Corrections’ primary focus was on reducing his security classification so that he could attend the STURP.
[576] Mr Taylor did however receive individual psychological treatment sessions from Departmental Psychologist, Dr Nick Wilson. These sessions began on 24 January 2014 and continued on a roughly fortnightly basis until 3 June 2015. Over that time he received a total of 27 treatment sessions. It follows that by October 2014 when he was taken off D Block, Mr Taylor had received one-on-one treatment for some nine months. These sessions were regarded by Corrections and the Parole Board as playing an important part in his rehabilitation.267
[577] Mr Taylor’s time on D Block ended on 2 October 2014 when he was forcibly removed and placed in B Block. On arrival at B Block Mr Taylor immediately flooded his new cell and activated the sprinkler system. He was then promptly relocated to the
265 Taylor (STURP judgment), above n 70, at [5]. A decision of the Parole Board following a hearing on 6 September 2012 recorded, at [4], that in 2009 a psychologist had recommended that Mr Taylor undertake the STURP programme. The decision records that “[Mr Taylor] is willing to do so and said he has always been willing to do so”. It went on to record that “[Mr Taylor] was pleased to learn today that he will be removed from directed protective custody and return to voluntary protective custody status this weekend. He asked us to re-confirm the need for him to undertake the STURP programme. Of course we do so.”
266 Mr Taylor’s security classification was reduced from maximum to high in August 2013, where it remained until February 2015 when it was reduced to low-medium. He successfully challenged an August 2014 security classification of high before Ellis J. However, by the time that decision was issued in September 2015, he had already been reclassified.
267 Taylor (STURP judgment), above n 70, at [8].
Special Needs Unit. On 22 October, following a discussion with PCO Phil Cullen, Mr Taylor was voluntarily moved to A Block. There, he continued receiving therapy sessions with Dr Wilson. Mr Taylor’s behaviour also appears to have improved.268
[578] By December 2014, prison management were preparing for a reduction in Mr Taylor’s security classification. Initially, the Prison Manager, Mr Sherlock, and Dr Wilson agreed that he should be transitioned through a “mainstream low medium unit at another prison”.
[579] In January 2015, Dr Wilson made inquiries into the various STURP courses available and formed the opinion that the program offered at the Karaka Unit at Waikeria Prison was the most suitable. Mr Taylor could be accommodated in the April, July or September 2015 intakes. As a result of discussions with the Principal Psychologist at the Karaka Unit, Dr Wilson changed his mind about the need for Mr Taylor to transition through a lower security unit, and instead recommended that he immediately transfer to Waikeria once eligible.269
[580] In February 2015, Mr Taylor was reclassified as low-medium and became eligible for the STURP. Then, on 23 June 2015, he was accepted for the September 2015 intake at Waikeria Prison.
[581] However, despite Dr Wilson’s clinical opinion outlined above, Mr Sherlock remained unshaken in his view that Mr Taylor should transition through a lower security unit before transferring to Waikeria Prison. He made transitioning through B Block at Auckland Prison a precondition of attending the STURP. Mr Taylor refused to move and, as a result, was removed from the September 2015 intake, just one week after being accepted into it.
[582] Mr Taylor successfully challenged the decision to remove him from the STURP programme. In a judgment dated 10 August 2016, Ellis J found that the decision was “principally motivated by a desire to make Mr Taylor accept direction at all costs”, which was an irrelevant consideration.270 Her Honour was critical of the
failure to take Dr Wilson’s opinion into account. She ordered that the Department make the decision afresh, in light of her judgments on the issue and updated advice on an appropriate pathway from a suitably qualified person.271
[583] Notably, in concluding, Ellis J observed:272
It is also impossible to ignore the fact that, despite the conclusion I have reached above Mr Taylor's choice to challenge that decision through the Courts has necessarily caused further delay. There is necessarily a sense that his victory in this case is a Pyrrhic one.
[584] That is because while awaiting the outcome in that litigation, Mr Taylor was offered a place on the STURP in July 2016 but declined to join. The reason for that was, as the Parole Board explained, “he did not want to compromise the outcome of the pending High Court decision”.273
[585] Surprisingly, following the release of Ellis J’s final decision, it appears Mr Taylor no longer wished to participate in the STURP. As he explained in his written closing:
Up until [my removal from the STURP] I was fully engaged with the pathway out of prison that Dr Nick Wilson and I had devised when I was in D Block. I became disillusioned and of [the] opinion I needed to focus on my legal work as the best rehabilitation pathway for me. That has proved to be the case with my being released from prison on 11 February 2019.
[586] Mr Taylor again declined an opportunity to participate in the February 2017 STURP intake so that he could obtain an independent psychiatric assessment to support his application for parole.274 Thereafter, he turned down or deferred all opportunities that arose to attend the STURP. That was despite Departmental Psychologist Sarah Bramhall recommending on 12 December 2016 that he complete the STURP,275 and the Parole Board’s continuing and strong support for that approach.
273 Application for parole: Arthur William Taylor, Decision of the New Zealand Parole Board, 9 November 2016 at [11].
274 However, the Parole Board noted in its decision of 7 March 2017 that Mr Taylor had told the Board he was not using the independent report he had obtained as “it contained numerous factual errors and could not be relied upon”.
275 Ms Bramhall assessed Mr Taylor as having a moderate risk of future violence and high risk of future general offending.
[587] It is clear from the evidence that Mr Taylor had significant anxiety about transferring out of Auckland Prison’s East Division. But at this point in time, he was a low-medium or low security prisoner being held in a maximum security facility. As a result, he could not access the one rehabilitative programme the Parole Board had clearly signalled he needed to complete. Managing the tension between these concerns, Corrections took several steps to encourage Mr Taylor to accept a transfer to Waikeria in order to complete the STURP. These steps included:
(a) providing meetings with Ms Bramhall to work through practical issues that could be treatment barriers;
(b) communicating Mr Taylor’s concerns to prison staff at Waikeria Prison, in particular regarding how his legal work could be accommodated;
(c) organising for Mr Taylor to meet with STURP staff at Waikeria by audio-visual link;
(d) facilitating an “override” so Mr Taylor could attend the STURP. An override is an approval by the manager of a rehabilitation programme that allows a prisoner to be accepted into the programme even if they would not usually be eligible due to their ‘static’ risk of re-offending score;276 and
(e) offering Mr Taylor opportunities to visit the Karaka Unit in person before the transfer (which he declined), and facilitating discussions with the Principal Psychologist at Waikeria, Dr King.
[588] Eventually, Mr Taylor was transferred to Waikeria Prison in December 2017 so that he could participate in the STURP. I deal with his allegations relating to the legality of the transfer in the next chapter.
276 A prisoner can be recommended for high intensity treatment if they are assessed as being at a high risk of re-offending, a score of 0.7 or higher. Although Mr Taylor’s risk score had fallen to 0.67 in 2016, Ms Bramhall submitted an override request on 23 May 2017 which was approved by Dr King at Waikeria on 16 June 2017.
[589] Once at Waikeria, however, Mr Taylor refused to attend the STURP. As he remained on voluntary segregation, he could not be accommodated in the Karaka Unit where the programme was delivered, and was instead placed in the Miro Unit. In March 2017, the Parole Board recorded that Mr Taylor did not think he needed to do the STURP programme because he was not a violent person, and he was concerned the course might interfere with his legal work.277 As a result, he never attended the programme despite being offered several opportunities to do so and having litigated in the High Court for the opportunity to do so.
[590] Mr Taylor was finally released on parole on 11 February 2019, having been in custody for more than 13 years.
Mr Taylor’s claim and Corrections’ response
[591] Although Mr Taylor’s case evolved significantly throughout the course of the trial, by closing it had crystalised into the following essential points:
(a) The defendant breached his duty under s 52 of the Corrections Act to provide Mr Taylor reasonable access to rehabilitative programmes:
(i) by failing to provide him with any rehabilitative programmes while he was in D Block or the HCU (between 15 March 2010 and 2 October 2014);
(ii) through the practice of prioritising lowering his security classification before providing him with rehabilitation; and
(iii) by unlawfully removing him from the September 2015 STURP that he was enrolled in.
(b) Given that undergoing rehabilitation was effectively a prerequisite for obtaining parole, the failure to provide rehabilitative opportunities prevented him from progressing toward release and delayed his
eventual release on parole by at least six years. It is reasonable to infer that the decision to remove him from the September 2015 STURP programme unnecessarily prolonged his imprisonment by “about 29 months”.
(c) The defendant’s failure to provide adequate rehabilitative programmes, and the resultant delay to Mr Taylor’s release on parole, amounted to arbitrary detention under s 22 of the Bill of Rights Act.
(d) The defendant’s failure to meet the minimum requirements for rehabilitation under s 52 is a relevant factor supporting a finding that that there was a breach of s 23(5) in Mr Taylor’s overall conditions of detention.
[592] In response to Mr Taylor’s allegations, Corrections raised three “preliminary points” which warranted the dismissal of Mr Taylor’s claims relating to rehabilitation:
(a) First, not only were Mr Taylor’s pleadings on these issues inadequate, he significantly expanded them over the course of the trial, leaving the defendant without a sufficient opportunity to respond. Corrections argues that it would be unfair and prejudicial to it for the Court to adjudicate on this aspect of the claim.
(b) Second, significant portions of the pleadings are res judicata, including Mr Taylor’s arguments regarding the decision to remove him from the September 2015 STURP intake and whether that decision prolonged his detention.
(c) Finally, it is now well settled that a failure to provide rehabilitation cannot amount to a breach of s 22 of the Bill of Rights. Mr Taylor’s claim under that provision is therefore untenable.
[593] In any event, Corrections submits that the claim must fail on the facts because the defendant offered Mr Taylor reasonable opportunities for rehabilitation consistent with its obligations under s 52.
[594] While the defendant raises an objection to the lack of adequate pleading and the prejudice it may have caused, given the defendant dealt with the claim on its merits, I consider it is appropriate to consider the substance of Mr Taylor’s claim. Accordingly, the following issues arise for determination:
(a) Did Corrections fail to meet its obligation to provide rehabilitative programmes under s 52 of the Corrections Act to Mr Taylor?
(b) If so, did that amount to a breach of s 23(5) of the Bill of Rights Act?
(c) Can a failure to provide rehabilitative opportunities amount to a breach of s 22 of the Bill of Rights Act? If so, was there a breach in this case? And is that issue res judicata?
(d) Do the deficiencies in Mr Taylor’s pleadings require this aspect of his claim to be dismissed entirely?
Legal framework governing prisoner rehabilitation
[595] Rehabilitative programmes are designed to reduce reoffending by facilitating the rehabilitation of prisoners sentenced to imprisonment and their reintegration into society.278 They include any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme. This reflects both one of the purposes of the corrections system, and a guiding principle of the Corrections Act.279
278 Corrections Act, s 3(1) definition of “rehabilitative programme”.
279 Section 5(1)(c) of the Corrections Act provides that a purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by assisting in the rehabilitation of offenders and their reintegration into the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions. Section 6(1)(h) provides that a guiding principle of the corrections system is that offenders must, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community.
[596] Section 52 of the Act then contains a qualified obligation in relation to the provision of rehabilitative programmes for prisoners. It says:
52 Rehabilitative programmes
The chief executive must ensure that, to the extent consistent with the resources available and any prescribed requirements or instructions issued under section 196, rehabilitative programmes are provided to those prisoners sentenced to imprisonment who, in the opinion of the chief executive, will benefit from those programmes.
[597] While initially expressed in mandatory terms, the obligation in s 52 is subject to the resources available, any prescribed requirements or instructions, and the subjective assessment (or “opinion”) of the chief executive as to whether a prisoner will benefit from the programme.280 Given the highly qualified nature of the duty, s 52 does not confer an absolute right to access rehabilitative treatment.281 Rather, it confers “a statutory power of decision, namely the power to decide whether to permit a particular prisoner to engage in a particular rehabilitative programme”.282 And as Doogue J has noted in Smith v Attorney-General, s 52 “makes clear that the provision of rehabilitative courses to a particular prisoner is within the discretion of the Chief Executive”.283 A prisoner’s entitlement is to have that discretion exercised reasonably.
[598] It follows that prisoners are not able to dictate the terms of their rehabilitation. This reality was recognised in McEwen v Spring Hill Corrections Facility, where the Court found that the relevant statutory provisions make clear “that no prisoner has a right to any particular form of activity to promote his or her rehabilitation or reintegration”.284
280 Taylor (STURP judgment), above n 70, at [55].
281 At [56]; and Smith v Attorney-General, above n 68, at [118] and [123].
283 Smith v Attorney-General, above n 68, at [120].
284 McEwen v Spring Hill Corrections Facility, above n 70, at [54].
Consideration
Was there a breach of s 52 of the Corrections Act?
[599] I have reached the clear view that Corrections provided Mr Taylor with reasonable opportunities to access rehabilitative programmes and acted consistently with its obligations under s 52 of the Corrections Act.
[600] First, Mr Taylor’s claim as pleaded and in opening was that he was denied any access to rehabilitative programmes for the duration of his time on D Block. This contention overlooks that for nine months—between 24 January and 2 October 2014—Mr Taylor received intensive one-on-one psychological counselling and assistance from Dr Wilson. Evidently, these sessions were instrumental in lowering Mr Taylor’s security classification, enabling him to be moved out of the maximum security wing. It is also clear that the Parole Board were impressed by the “insights” into his personality that Mr Taylor made through his appointments with Dr Wilson.285 So the claim Mr Taylor was denied any access to rehabilitation while on D Block is unsustainable.
[601] Second, the failure to provide Mr Taylor with group-based rehabilitation opportunities while he was on D Block (but not on directed segregation) cannot be criticised.286 The same practical barriers to rehabilitation that existed when he was on directed segregation existed for the entire time he was held in D Block.287 His security classification rendered him ineligible for group-based activities. Moreover, his conduct, and particularly while on directed segregation, indicates that he would have been unable to participate in group programmes even if they had been available.
[602] While Mr Taylor criticised Corrections’ practice of only providing group-based rehabilitation programmes to low-medium prisoners, there are good reasons for that
286 So, the periods from 15 March 2010 to 15 June 2011 and 7 September 2012 to 2 October 2014.
287 See the above discussion at [338]–[341].
approach.288 One is safety.289 High and maximum security prisoners will typically pose too great a risk in the low security environments in which STURP operates. Their rehabilitative needs must be balanced against the risk they pose to the safety of the prison community. Another reason is effectiveness. Prisoners nearing the end of their sentence are more likely to carry any gains made through rehabilitation programmes into the community and less likely to lose that progress while still in prison. Finally, there is the question of resourcing. Delivering rehabilitation options to maximum security prisoners with significant behavioural difficulties, is likely to require much greater resourcing. Conversely, prisoners who are both at the appropriate security classification and likely to benefit from group programmes maximises the benefits that can be derived from finite public resources. So, while it may be theoretically possible to provide group-rehabilitation opportunities to maximum and high security prisoners, that would come at the cost of access to rehabilitation for other prisoners.
[603] It follows that I am not satisfied that there was any failure to provide Mr Taylor with rehabilitative opportunities while he was on D Block. On the contrary, the evidence demonstrates that Corrections was conscious of its obligation and went to significant efforts to meet it.
[604] Turning to consider Mr Taylor’s removal from the September 2015 STURP, and the rehabilitation options available to him thereafter, I am again satisfied that the defendant met the requirements of s 52. Rather than a failure to make rehabilitative programmes available to Mr Taylor, I consider it was Mr Taylor’s conduct and choices were the cause of any delay to his early release on parole.
[605] First, Mr Taylor declined a placement on the STURP in July 2016 so that he could pursue his litigation in the High Court. That was his choice to make, but the consequences for parole after that date were the result of his decision.290
288 Mr Taylor described the practice as amounting to “simply warehousing prisoners because without access to programmes they would have little chance of convincing the parole board they were not an undue risk”.
289 Smith v Attorney-General, above n 68, at [27].
290 The only complaint Mr Taylor could have had was the delay between the September 2015 STURP and July 2016, when a new place was offered to him. After that date, it was Mr Taylor’s decisions to refuse to attend the rehabilitative programmes offered to him which was the cause of any delay to his release on parole.
[606] Second, Mr Taylor told the Parole Board in February 2018 that he had received “all the treatment he needs in custody” from Dr Wilson.291 So at that time at least Mr Taylor’s position was that he did not require any further access to rehabilitative programmes. That may explain why he refused to attend the STURP programme subsequently.
[607] Finally, Mr Taylor’s evidence was that he did not need to undergo the STURP because his legal work was the most appropriate rehabilitation pathway for him. Given that no prisoner has a right to any particular form of activity to promote his or her rehabilitation or reintegration, Mr Taylor’s position on his rehabilitative needs must be rejected. However, even if his claim was correct, Corrections went to significant lengths to support his work on litigation, including providing Mr Taylor with a dedicated office area, providing time to work on his cases, and providing him with a computer. It is hard then to see how Corrections failed Mr Taylor even on his own view of the world.
Was there a breach of s 23(5) of the Bill of Rights?
[608] I have found that Corrections was conscious of its obligation to assist Mr Taylor’s rehabilitation, and went to significant lengths to facilitate his participation in rehabilitative programmes in accordance with expert advice and the views of the Parole Board. Mr Taylor was provided with intensive one-on-one counselling with a psychologist for 15 months. Once his security classification had reduced, he was repeatedly offered placements on the STURP. I therefore have no hesitation in concluding that there was no breach of s 23(5) of the Bill of Rights Act.
Was there a breach of s 22 of the Bill of Rights?
[609] Corrections argues that Mr Taylor’s claim of arbitrary detention under s 22 of the Bill of Rights Act must fail because a failure to provide rehabilitative programmes cannot as a matter of law amount to arbitrary detention. I accept that submission.
[610] Before Ellis J, Mr Taylor claimed that the failure to provide him with timely access to the rehabilitative programmes rendered his detention arbitrary and unlawful.292 In that proceeding, he relied on several United Kingdom and European Court of Human Rights authorities in support of the proposition that a lawful detention may become arbitrary if a prisoner is not given the rehabilitative facilities to enable progress towards release. Ellis J engaged in a thorough analysis before rejecting that argument in the New Zealand context. As her Honour found:293
... the total length of Mr Taylor's sentence has been fixed by the sentencing Court. It is for this reason that, even if he is never granted parole and remains in prison for the whole of that sentence, his detention will not become arbitrary or unlawful.
[611] I agree with the Judge’s reasoning.294 Accordingly, Mr Taylor’s rehabilitation claim must fail to the extent it relies on a breach of s 22.
Are aspects of Mr Taylor’s claim res judicata?
[612] As a result, I also accept the Attorney’s submission that significant portions of Mr Taylor’s claim have already been finally determined by Ellis J and are res judicata. It is not open to him to relitigate those issues.
[613] First, Ellis J granted a remedy for the unlawful decision to remove Mr Taylor to B Block as a precondition to engagement with STURP. The relief granted was reconsideration of the decision. This Court has no jurisdiction to revisit that issue.
[614] Second, Mr Taylor argued before Ellis J that the decision to remove him from the 2015 STURP very likely prolonged his imprisonment, and invited the Court to craft an “effective remedy”. Her Honour declined to follow “any kind of speculative approach” toward relief, and in particular an earlier parole date. She said:295
... while Mr Taylor may well have successfully completed the September STURP programme by now (had matters taken a different turn in mid-2015) equally, however, he might not have.
292 Taylor (STURP judgment), above n 70, at [40].
294 See also Smith v Attorney-General [2020] NZHC 1848 at [108]–[117] per Doogue J.
295 Taylor (STURP judgment), above n 70, at [73].
[615] In the present case, Mr Taylor has again asked the Court to engage in exactly the same form of speculation:
If I had not been stopped from going on the STURP course in September 2015, I have no doubt that I would have successfully completed it by September 2016 and been in a very good position to convince the Parole Board I was no longer an undue risk.
It is reasonable to infer that the flawed decision to remove me from the STURP intake cost me about 29 months of my life in that I was imprisoned when I didn’t need to be.
[616] I am satisfied, therefore, that the issue of whether Mr Taylor’s removal from the 2015 STURP delayed his release on parole is res judicata. To the extent that is his case, I dismiss it.
[617] Finally, if I were required to, I would find that Mr Taylor is estopped under the rule in Henderson v Henderson from relitigating the decision to remove him from the STURP on the basis that it breached s 23(5).296
Are Mr Taylor’s claims properly pleaded?
[618] Lastly, Corrections argues that Mr Taylor’s rehabilitation claim should be dismissed in its entirety because it was not tied to a cause of action or remedy in Mr Taylor’s amended statement of claim. While Mr Taylor made factual assertions during the trial and in his closing submissions regarding the adequacy of the rehabilitative treatment he received, those assertions were not pleaded in his amended statement of claim. Finally, Corrections correctly pointed out that Mr Taylor mentioned s 22 of the Bill of Rights Act for the first time in his written closing. He did not raise the possibility of a claim under s 23(5) until his closing address, after the defendant had closed its case.
[619] These are not merely technical breaches and I accept that the way in which Mr Taylor pleaded and developed this aspect of his case created significant difficulties for the defendant. Ordinarily, such fundamental errors would likely not result in leave to amend the statement of claim. However, I would not find that these failings—on
their own—warrant dismissal of the claim. Corrections was able to respond to the claim commendably, and while there was undoubtedly a level of generalised prejudice, the defendant did not identify any specific difficulty in meeting Mr Taylor’s case. The issue is beside the point in any case, given the conclusions I have reached on the substance of Mr Taylor’s claim.
Conclusion
[620] Mr Taylor’s claim that the defendant failed to provide him with adequate rehabilitative opportunities in breach of s 52 of the Corrections Act and ss 22 and 23(5) of the Bill of Rights Act is not made out.
CHAPTER 5: TRANSFER TO WAIKERIA PRISON
Overview of Mr Taylor’s claim and the issues for determination [621]
Part 1: Was the decision to transfer Mr Taylor unlawful?
Legal framework controlling prisoner transfers [634] Was the decision made by the correct statutory decision maker? [639] Was the decision made for an improper purpose or irrational? [642] Was the transfer unlawful due to Mr Taylor’s risk level and voluntary segregation status? [656]
Did Mr Taylor’s unresolved application to transfer to Auckland South Correctional Facility render the transfer to Waikeria unlawful? [662] Was there a lack of notice of the transfer as required by s 55(1)? [667] Was there a breach of reg 44(2)? [674]
Conclusion [676]
Part 2: Was the manner of transfer a breach of the Bill of Rights?
Introduction and structure of this section of the judgment [678] Legal framework controlling use of force against prisoners [686] An overview of what occurred on the day of the transfer [691]
Factual findings [693]
Was Mr Taylor in fact unconscious? [709] No underlying health condition that explains unconsciousness [712] No identifiable use of force causing unconsciousness [717]
Mr Taylor’s previous malingering [725]
Duration of unconsciousness and remarkable recovery [729] Dr Jones’ evidence was convincing and supported malingering [734] Dr Freeman’s evidence was unconvincing [743] Evidence of 15 Corrections witnesses credible and preferable to
Mr Taylor’s [755]
Daily Blog post suggests Mr Taylor knew details of transfer he could
only know if conscious [761]
Remaining matters raised in evidence [765]
Tongue movements [766]
Blood glucose levels [770]
Irregular heartbeat [772]
Application of the Glasgow Coma Scale and the administration of pain [776]
Compressed vena cava, then seizure followed by post-ictal state, or
conversion disorder [780]
Has there been a breach of Mr Taylor’s right under s 23(5) of the Bill
of Rights? [785]
Overview of Mr Taylor’s claim and the issues for determination
[621] By 2017 Mr Taylor had been in A Block in the East Division of Auckland Prison for almost three years.297 His security classification had continued to decrease and he was 61 years old. It seems he was content with the routine of the unit and wished to continue his prolific work on cases and causes.
[622] It will be remembered that since at least 2012, the Parole Board had consistently observed that Mr Taylor’s prospects of obtaining early release on parole would likely depend on positive engagement in rehabilitation, and in particular the Special Treatment Unit Rehabilitation Programme (STURP). That programme was not available in Auckland Prison. So to engage in it, Mr Taylor would have to move.
[623] Mr Taylor had also brought judicial review proceedings against Corrections relating to the decision of Mr Sherlock, the Prison Manager at Auckland Prison, to require him to transition through B Block as a preliminary step before engaging in the September 2015 STURP. While Mr Taylor’s challenge to the lawfulness of the decision to transfer him from A to B Block was successful, Ellis J observed that it was a Pyrrhic victory because it came at the cost of delaying his entry into the STURP programme.298 I have found responsibility for that delay lay with Mr Taylor from September 2015.299
[624] The importance of the STURP to Mr Taylor’s prospects of parole was again reinforced by the Parole Board in March 2017. In its decision of 7 March, the Board declined Mr Taylor’s application for release, noting a psychologist’s assessment that he remained at moderate risk of future violent offending and at a high risk of general offending. The Board also observed that at the time of the hearing, Mr Taylor’s willingness to engage in the programme was “ambivalent”; he was concerned that transfer to the programme might affect his court work.300
298 Taylor (STURP judgment), above n 70, at [74].
300 Leading up to the March 2017 parole hearing, Mr Taylor had obtained his own psychologist’s risk assessment. However, he did not make it available to the Parole Board because he said it contained “certain factual errors”.
[625] By October 2017, Mr Taylor’s security classification was reduced further. As a result, he was a low security prisoner detained in a high-security setting. Given Mr Taylor’s history with Corrections and his particular needs, he met the threshold for consideration by Corrections as a “high and complex needs prisoner”. A panel of senior Corrections staff, including Auckland Prison’s director, began considering Mr Taylor’s transfer from Auckland Prison to Waikeria so that he could undertake the STURP programme. Given Mr Taylor’s anxiety and resistance to a move, further counselling and support from a psychologist, Ms Bramhall, was provided to him. Further engagement was also provided to Mr Taylor to address his concerns about the impact of a transfer on his ability to conduct his proceedings, and to familiarise him with the different environment he would be moving to.
[626] On 16 October 2017 the High and Complex Needs Panel recommended Mr Taylor’s transfer to Waikeria Prison. Ultimately, however, the decision to transfer a prisoner rested with the Prison Director, Mr Andrew Langley. Mr Langley gave evidence, unshaken in cross-examination, that he made the decision to transfer Mr Taylor, following the Panel’s recommendation.
[627] From October to December 2017, extensive arrangements were made to effect the transfer and prepare Mr Taylor for it. It is also clear that during this period, Mr Taylor was keen to deploy various strategies to prevent a move. Matters came to a head on 20 December 2017. While Mr Taylor had been advised in early November of the move, he had not been told the precise date it was to occur. Corrections considered doing so would compromise its ability to effect the transfer as Mr Taylor would likely take steps to prevent it, including barricading and physical resistance.
[628] A detailed operational order was prepared, setting out the various steps to be followed to carry out Mr Taylor’s transfer, including managing the risk that he might become upset and resist efforts to move him. Part of planning involved engaging a Site Emergency Response Team (or SERT) to facilitate the transfer. That team was briefed that they could use no more than minimal and necessary force if Mr Taylor was resistant.
[629] At 9.15 am on the day of transfer, while Mr Taylor was with Principal Corrections Officer (PCO) Phil Shead at the PCO’s office, Mr Taylor was advised he was to be transferred to Waikeria Prison that day. The SERT team arrived shortly after this. One of the SERT officers repeatedly advised Mr Taylor that he was being given a lawful order to accompany the SERT team to the Prison’s receiving office. Mr Taylor declined to do so. He repeatedly asserted that the decision to transfer him was unlawful, and that any effort to use force to move him would constitute an assault.
[630] After this exchange continued for a period, the SERT team moved to guide Mr Taylor out of the PCO’s office. Mr Taylor refused to move. Officers then undertook a “control and restraint” procedure, which ended with Mr Taylor lying on the ground, handcuffed.
[631] According to Mr Taylor, the use of force was unlawful and, importantly, rendered him unconscious. His case is that he only regained consciousness some six- and-a-half hours later, when he came-to in an at-risk observation cell at Waikeria Prison.
[632] Broadly, there are two issues to be determined:
(a) First, whether the decision to transfer Mr Taylor was unlawful. Here, Mr Taylor advances a range of arguments:
(i) the decision transferring him was not made by the Prison Director, but rather the High Needs Panel, which had no power to make the decision;
(ii) the decision was not made in accordance with s 54 of the Act, because it was made for an improper purpose, namely, to disrupt his proceedings against the Department of Corrections;
(iii) he was ineligible for the STURP programme because his risk rating (known as a “ROCROI”) was too low. In addition, he was
on voluntary segregation at the time, and segregated prisoners could not participate in STURP;
(iv) Mr Taylor had made an application for transfer to a residential unit at Auckland South Correctional Facility and, at the time of his transfer, his application had not been properly considered;
(v) he had not been given notice of the transfer in accordance with the requirements of s 55(1) of the Act; and
(vi) transfer to the Miro Unit at Waikeria breached reg 44(2), because he was a low security prisoner, and the Miro Unit did not have a low security regime.
(b) The second issue is whether the manner of Mr Taylor’s transfer, and in particular the use of force, constituted a breach of s 23(5) of the Bill of Rights.301 The central question is whether Mr Taylor was rendered unconscious by the actions of Corrections staff. This requires an evaluation of the credibility of Mr Taylor’s evidence, and conflicting expert evidence on that issue.
[633] I now turn to address these issues.
301 Mr Taylor’s closing submissions suggested the manner of transfer also constituted a breach of s 9 of the Bill of Rights. This, however, was inconsistent with his concession in closing that his s 9 claim was limited to the period when he was held in the HCU while on directed segregation. Given the view I have reached in relation to s 23(5), any claim under s 9 is unsustainable.
PART 1: WAS THE DECISION TO TRANSFER MR TAYLOR UNLAWFUL?
Legal framework controlling prisoner transfers
[634] Mr Taylor’s argument that his transfer was unlawful falls for consideration against the provisions of the Corrections Act governing the transfer of prisoners between prisons. The starting point is s 53. It provides that a prisoner may be transferred, on the direction of the chief executive, from any prison to any other prison in which he or she may be lawfully detained.
[635] Pursuant to s 54(1), a prisoner may be transferred for one or more of the following reasons:
(a) to assist in reducing the likelihood of reoffending by the prisoner:
(b) to assist in facilitating the—
(i) rehabilitation of the prisoner; or
(ii) reintegration of the prisoner into the community on his or her release:
(c) to place that prisoner in a prison closer to his or her family:
(d) to respond to the needs of that prisoner, as identified in the management plan:
...
(f) to implement a change in the security classification of that prisoner:
...
[636] In making a transfer decision, under s 54(4) the chief executive “must as far as is reasonably practicable” have regard to:
(a) the desirability of providing the least restrictive environment for the prisoner that is consistent with the maintenance of public safety and the safety of staff members and other prisoners; and
(b) the need to facilitate the rehabilitation and reintegration of the prisoner into the community, taking into account the availability and location of appropriate services and programmes that will contribute to the achievement of those objectives; and
(c) the desirability of ensuring that the prisoner is detained at a location as close as is practicable to his or her family.
[637] Finally, at the time of Mr Taylor’s transfer, reg 196 of the Corrections Regulations provided that a prisoner did not have a legitimate expectation of being accommodated in, or being provided with, the same or similar conditions during the whole term of their period of detention, or with “the same or similar programmes or opportunities”.
[638] It follows from this scheme that, provided the decision to transfer Mr Taylor was for one or more of the reasons in s 54(1) of the Act, and consideration was given to the requirements in subs 54(4), Mr Taylor was liable to be transferred away from Auckland Prison. He had no right to remain there. Moreover, given both his rehabilitative needs, and the disparity between his security classification by 2017 and the security classification of A Block, one can well understand why Corrections gave consideration to moving Mr Taylor to a lower security setting.
Was the decision made by the correct statutory decision maker?
[639] Mr Taylor argued that the decision to transfer him was made by the High and Complex Needs Panel, rather than the Chief Executive’s delegate, Mr Andrew Langley, who was the Prison Director at the time. Mr Taylor was unable to adduce any direct evidence to support his argument. He invited an inference that the Panel had effectively made the decision because the statutory decision-maker, Mr Langley, would be reluctant to exercise independent judgment.
[640] The difficulty with this inference is that it is at odds with Mr Langley’s evidence on the issue. During cross-examination, Mr Langley stated that he held the delegation as Prison Director to make the decision, and he made the decision, albeit he did so in consultation with the Regional Commissioner for Corrections and with the endorsement of the Panel. He said that if he disagreed with the Panel’s view he would have articulated his disagreement. He did not because he agreed with the recommendation it made.
[641] Overall, the evidence establishes that Mr Langley made the decision to transfer Mr Taylor to Waikeria Prison under s 53 of the Act. The fact he did so in keeping with the recommendation of the Panel does not alter that conclusion.
Was the decision made for an improper purpose or irrational?
[642] Mr Taylor next argued that the transfer decision was for the improper purpose of impeding or disrupting his court proceedings against Corrections. He also submitted the decision to “forcibly” remove him from Auckland Prison was not one that a reasonable decision-maker could have made. However, Mr Taylor again failed to provide any evidence beyond simple assertion to support these allegations.
[643] The contemporaneous documentary record provides the most reliable evidence. It confirms that the primary reason for Mr Taylor’s transfer to Waikeria Prison was, in keeping with s 54(1)(b), to assist Mr Taylor’s rehabilitation and reintegration into the community on release.
[644] Attendance at the STURP programme had been on Mr Taylor’s management plans since 2012. The pathway, accepted by Mr Taylor when the management plans were formulated, involved reduction of his security classification so that he could undertake the programme, which was provided in a low security setting. Psychologists—including Dr Wilson—had consistently recommended STURP for a number of years. They considered it a necessary step to reduce his risk of reoffending.
[645] Ms Bramhall’s psychological report, prepared for the Parole Board in December 2016, recommended transition out of the high-security setting in East Division together with engagement in STURP. Her recommendation was accepted by the Parole Board in its decision of 7 March 2017. The Board noted that Mr Taylor’s transfer out of the high-security setting, where he was at risk of institutionalisation, would be an important step on his rehabilitative journey:
...[Ms Bramhall’s recommendation for transfer out of a high-security setting] is considered important learning and development for Mr Taylor and should form part of his rehabilitative pathway, given there may be elements of institutionalisation at present. We agree. We note too that both psychological reports indicate that Mr Taylor will require one-to-one psychological assistance to aid any transition to STURP given his anxiety. Of course, whether Mr Taylor ultimately participates in the STURP programme is up to others including in particular Mr Taylor himself. Parole is declined.
[646] While Mr Taylor continued to express opposition to the STURP programme in the later part of 2017, he did not unequivocally say he would never engage in the
programme. On 7 December 2017, an email from the Auckland Residential Manager, Mr Solomon Nui, recorded that Mr Taylor had advised PCO Phil Shead that he would “give [his] word” that if he did not receive parole at a Parole Board hearing scheduled for February 2018, he would “go willingly” to Waikeria.302
[647] As noted, Corrections took steps both to assist Mr Taylor deal with his anxiety about the move, and to ensure he could continue his legal work at Waikeria. Corrections installed three computers and a printer in the Miro Unit, where Mr Taylor was detained after his transfer, and transferred 15 boxes of his legal documents. After some initial connectivity issues were resolved by Spark, the computers were available for Mr Taylor’s use between 9 am and 11 am for his litigation.303
[648] Miro Unit was for prisoners on voluntary segregation. Corrections hoped that Mr Taylor’s attitude to STURP might change after the transfer, and that he might sign- off voluntary segregation. That would permit his transfer to the mainstream Karaka Unit, where the STURP programme was run. And in that unit, Corrections had confirmed that there was also a computer facility available next to the unit which Mr Taylor could use.
[649] Given Mr Taylor’s at times equivocal position on the STURP programme, and the need to facilitate Mr Taylor’s rehabilitation and reintegration by spending time in a less structured environment, it was not unreasonable for Corrections staff to consider that if Mr Taylor was transferred and given time to settle into a new environment, that he might be willing and motivated to undertake the STURP programme.
[650] There is no foundation, in my view, to support Mr Taylor’s contention that his transfer was undertaken for an improper purpose. On the contrary, the evidence confirms that the decision was undertaken carefully, for a lawful purpose—his rehabilitation—and humanely. There is no evidence that the transfer had any adverse impact on his proceedings either, including his challenge to a strip search he was
302 The email also indicated that at the time Mr Taylor wanted to remain in Auckland Prison until the February 2018 parole hearing, and that “all his support people” were in Auckland.
303 It appears there may have been some delay before Mr Taylor was able to gain access to computers following his transfer. Mr Taylor’s evidence was that “it took about two months to arrange [computer access]” following his move.
subjected to in East Division on 21 October 2016. The proceeding involved a judicial review heard by Peters J in the High Court at Auckland between 19 and 21 March 2018, only three months after Mr Taylor’s transfer to Waikeria. Mr Taylor was ultimately successful.304
[651] This success is also consistent with the observations of the Parole Board in March 2018, that Mr Taylor had “settled well” at Waikeria, and “mixed well with the staff”. Despite this, Mr Taylor had not changed his attitude to engagement with the STURP programme. And despite Mr Taylor’s submission to the Board that he should be released on parole, the Board recorded that in order to gain its confidence Mr Taylor needed “to demonstrate change in a variety of situations over time”. The Board also noted that Mr Taylor had “fooled many people before”. While Mr Taylor maintained that his legal work was the only rehabilitation he needed, the Parole Board did not agree.
[652] Ms Jeanette Burns, the Northern Regional Commissioner of Corrections who was involved in the planning for Mr Taylor’s transfer to Waikeria, gave evidence that prisoners cannot determine their own rehabilitative pathway. They are unaware of the range of factors that inform good decisions, and it would make managing the provision of programmes “extremely difficult”. I agree.
[653] Ultimately, Mr Taylor’s transfer to Waikeria met his rehabilitative needs even if he chose not to engage in the STURP programme. He needed to learn to live in a less structured and supervised environment if he was to reintegrate into the community after such a lengthy period of incarceration in a high security environment.
[654] For the same reasons, I do not accept that the decision to transfer Mr Taylor was unreasonable (in the Wednesbury sense).
[655] This aspect of Mr Taylor’s claim also fails on the facts.
304 Taylor v Attorney-General [2018] NZHC 2557.
Was the transfer unlawful due to Mr Taylor’s risk level and voluntary segregation status?
[656] Mr Taylor argued that his ROCROI (a measure of a prisoner’s risk of reconviction and risk of imprisonment) was too low to be eligible for the STURP programme, and that his voluntary segregation also prevented it. It followed that the decision to transfer him to Waikeria on the pretext of undertaking the programme was itself unlawful.
[657] These claims were not pressed by Mr Taylor in closing and may be briefly disposed of. The short point is that neither Mr Taylor’s segregation status, nor his ROCROI, could render the decision to transfer him to Waikeria unlawful. Neither are requirements of the exercise of the power to transfer in s 53 of the Act.
[658] Corrections had accepted Mr Taylor was a suitable candidate to undertake the STURP programme, which had been recommended by departmental psychologists, and accepted by the Parole Board as an essential step. And as Mr Taylor accepted in cross-examination, a ROCROI score was only one consideration when determining eligibility for the programme. Indeed, his eligibility was confirmed by the approval of an “override” of the ROCROI requirement by the psychologist running the STURP at Waikeria.
[659] And while Mr Taylor’s voluntary segregation also prevented entry into the programme, it was entirely possible for Mr Taylor to be transferred into the Miro Unit and managed from there until the next STURP started.
[660] In essence, Mr Taylor’s case is that because he was unwilling to engage in the STURP programme (or, it seems, any other form of rehabilitation other than of his own choosing), Corrections was unable to lawfully transfer him out of Auckland Prison for the purpose of rehabilitation. However, as I have found, it is not appropriate or possible for prisoners to determine the method and location by which they are to undertake their rehabilitative pathway. That is an intensely resource driven equation informed by a range of factors and views. Parliament has made it clear it is for Corrections to make those fine assessments and act accordingly. It was then for Mr Taylor to decide whether to take the opportunity provided to him. His refusal to
take advantage of the STURP programme did not render the decision to transfer him to Waikeria unlawful, or prevent the transfer from being implemented.
[661] This aspect of Mr Taylor’s claim must also be dismissed.
Did Mr Taylor’s unresolved application to transfer to Auckland South
Correctional Facility render the transfer to Waikeria unlawful?
[662] Mr Taylor’s case was that he had applied in April 2017 to be transferred to Auckland South Correctional Facility (ASCF). He argued that request had not been considered or dealt with before the decision was made to transfer him to Waikeria, rendering the transfer decision unlawful.
[663] In support of this argument, Mr Taylor said in evidence that Mr Langley had received a letter from Mr Brian McDonald, the chairman of the Bond Trust, supporting Mr Taylor’s request for transfer to ASCF. However, Mr Langley’s evidence was that he had never received a letter from Mr McDonald. In fact, the evidence revealed that the communication from Mr McDonald was an email on 4 December 2017 to a Michelle Proctor, a Corrections psychologist who was interviewing Mr Taylor in the lead up to his Parole Board hearing in February 2018. The email recorded that rather than a transfer to Waikeria to undertake the STURP programme, the Bond Trust had instead “been focussing on Arthur’s transfer to ‘self-care’ at Wiri”. This was a reference to self-care units in a low-security prison setting at ASCF.
[664] This claim fails on the facts for two reasons. First, Mr Taylor had been in a maximum and high-security setting for a number of years. The self-care units at ASCF are designed for prisoners who have largely completed their rehabilitation and are a transitional setting before release on parole. However, Mr Taylor had not undertaken any rehabilitation other than the one-on-one sessions with Dr Wilson in 2014 and 2015. He had not completed the STURP programme, as the Parole Board required. The Operations Manual also set out eligibility criteria for self-care units, which Mr Taylor did not meet. So Mr Taylor was not suitable for the unstructured and unsupervised environment of the self-care units. This was explained to Mr Taylor before his move to Waikeria.
[665] Second, Mr Solomon Nui, the Residential Manager in East Division at the time of Mr Taylor’s request, gave evidence that ASCF had declined Mr Taylor’s request for transfer. In response to my questions, Mr Nui said that as ASCF was operated by a private company—SERCO—it ultimately made the decision whether to accept prisoners like Mr Taylor into its facility. Mr Nui thought ASCF would be liable for a “fine” under its operating contract with Corrections if Mr Taylor went on to re-offend, and he assumed this was the reason for rejecting Mr Taylor’s request.
[666] Given the evidence, it is clear Mr Taylor’s request for transfer had been considered, and declined. It gives rise to no element of illegality in relation to his transfer to Waikeria Prison.
Was there a lack of notice of the transfer as required by s 55(1)?
[667] Mr Taylor pleaded that he had not been given notice of the transfer as required by s 55(1), nor given a reasonable opportunity to inform his family of it. He did not pursue this allegation in closing but for completeness I will address it.
[668] Section 55(1) of the Corrections Act requires that a prisoner must be:
(a) informed of an impending transfer, and the destination, “at least 7 days in advance” of the transfer; and
(b) provided with a reasonable opportunity to inform their family before the transfer is made.
[669] However, these requirements do not apply if the prisoner is “expected to create a management difficulty before the transfer is made or as a result of the transfer”.305
[670] As noted, Mr Langley gave evidence about his decision to transfer Mr Taylor, and the steps taken to implement it. It is clear from his evidence that he carefully considered the question of whether notice should be given to Mr Taylor and, if so, the nature of that notice. Three options were considered. The first was to give Mr Taylor
305 Corrections Act, s 55(2)(a).
seven days’ notice of the transfer. The second was to advise him he was transferring but not advise him of the date of transfer. The third was not to tell Mr Taylor he was moving until the actual day of transfer. The reasons for the last option were that Mr Taylor had a history of barricading himself to prevent being moved and:
... a history of non-compliant behaviour and use of force, and also escape. For example, I was aware of a previous occasion when he was being moved from D Block to A Block in East Division and Mr Taylor had got wind of the transfer or been told about it, one way or another. He had then deliberately flooded his cell to prevent the move.
[671] Mr Langley’s evidence was that he preferred to tell Mr Taylor of the move but not the actual date of transfer. The reason for this was that it allowed Mr Taylor a reasonable opportunity to prepare for the transfer, so it would reduce the disruption to Mr Taylor’s various proceedings, but also reduce the opportunity for Mr Taylor to plan action to stop the transfer itself.
[672] It was clear from his evidence that Mr Taylor was advised of the transfer decision on 2 November 2017, by PCO Shead. It is also clear that part of the process of endeavouring to assist Mr Taylor accept that a transfer would occur was gentle repetition of this message by prison officers over time. It is evident that when prison officers reminded Mr Taylor of the pending transfer, they would report the discussions back to prison management. One such example is the email of 7 December 2017, noted above (at [646]), in which Mr Nui reported on a conversation that had taken place with Mr Taylor about his move to Waikeria.
[673] Mr Taylor was notified of the transfer at least seven days in advance. The notice requirements of s 55(1) were met, and this aspect of Mr Taylor’s claim must be dismissed. Given Mr Taylor’s response to previous efforts to move him, Corrections would have been justified in withholding any notice of the transfer under s 55(2)(a) of the Act. The fact Corrections nevertheless advised Mr Taylor of the pending transfer despite the management risks it created speaks to the ultimate aim, which was to encourage Mr Taylor to accept that the transfer was in his best interests, for the purpose of rehabilitation, and to reduce his anxiety about the move.
Was there a breach of reg 44(2)?
[674] A final claim, that arose while Mr Taylor was being cross-examined, was that the transfer decision was unlawful because it breached reg 44(2). That regulation provides that a prisoner who has been assigned a security classification must be managed “within a facility and regime that is consistent with [their] security classification”. Mr Taylor’s evidence was that he was a low security prisoner, but the Miro Unit at Waikeria did not have a low security regime.
[675] I have little difficulty dismissing this point. Later, during his cross- examination, Mr Taylor accepted that the Miro Unit was a “low security unit”. The other evidence clearly establishes that there was no breach of the Regulations. To the contrary, it is clear that Mr Taylor’s transfer out of the high security environment in A Block was consistent with the requirement in reg 44(2).
Conclusion
[676] I am satisfied that the decision to transfer Mr Taylor to Waikeria prison was made for a proper purpose, and otherwise lawful.
[677] Stepping back and assessing the transfer decision in its context, it is clear it cannot support Mr Taylor’s claim of a breach of s 23(5) of the Bill of Rights. Nevertheless, the remaining question is whether the manner in which the transfer was effected, while otherwise lawful, supports a breach.
PART 2: WAS THE MANNER OF TRANSFER A BREACH OF THE BILL OF
Introduction and structure of this section of the judgment
[678] An important element of Mr Taylor’s claim was that Corrections’ use of force to effect the transfer from Auckland Prison constituted a serious breach of s 23(5) of the Bill of Rights. He said that he did not offer any physical resistance to the SERT team, or act aggressively. Their use of force was therefore unjustified and amounted to an assault. Mr Taylor also gave evidence that he was rendered unconscious during a control and restraint procedure and remained so until after his arrival at Waikeria Prison.
[679] Aggravating the use of force was the failure of Corrections to undertake a competent medical assessment or provide Mr Taylor with necessary medical treatment. Mr Taylor described the medical attention he received as “woefully inadequate”.
[680] The evidence directed at this aspect of Mr Taylor’s claim occupied a disproportionate amount of the trial. In support of his claim, Mr Taylor relied on evidence from three sources:
(a) his own evidence, albeit he was unable to give any evidence about what occurred after he was rendered unconscious;
(b) video footage of the control and restraint procedure, and subsequent movement of Mr Taylor through Auckland Prison, captured by CCTV cameras and on-body cameras worn by Corrections officers; and
(c) expert evidence from a medical practitioner, Dr James Freeman. Dr Freeman gave evidence about the events captured on the video footage and the possible medical explanations for Mr Taylor’s state.
[681] In response, Corrections called 15 witnesses who were directly involved in the transfer process.306 This included the PCO, Mr Phil Shead, who was immediately responsible for Mr Taylor on A Block, six nurses who at various times during the day of the transfer had some involvement with Mr Taylor, most of the members of the SERT team initially responsible for the control and restraint procedure, and other officers who accompanied Mr Taylor in a van or dealt with Mr Taylor on his arrival at Waikeria Prison.
[682] In sharp contrast to Mr Taylor’s evidence, all 15 of the Corrections staff who witnessed various stages of the transfer gave evidence that they thought Mr Taylor was conscious but feigning unconsciousness, most likely as a form of passive resistance.
[683] In addition, Corrections called Dr Peter Jones, a specialist in emergency medicine with Auckland City Hospital and an associate professor of emergency medicine with the University of Auckland. Dr Jones also gave expert opinion evidence that Mr Taylor was malingering. This conclusion was based on his review of the video footage and Mr Taylor’s medical records.
[684] It follows that a central issue in relation to the transfer, apart from an assessment of the initial use of force, is the credibility of Mr Taylor’s evidence that he was rendered unconscious. Although a lot of evidence was called about that question, it is unnecessary to examine all of it in detail because the answer is relatively straight forward.
[685] In this section of the judgment I will first set out the provisions of the Corrections Act dealing with use of force by prison staff against prisoners and then provide a brief overview of the transfer and what occurred during the key aspects of the day. I will then turn to consider the following issues:
(a) whether the initial use of force was unlawful;
(b) whether Mr Taylor has established a causal link between the use of force and his claimed unconsciousness;
(c) whether Mr Taylor was in fact unconscious;
(d) whether there was a failure to adequately assess his medical condition and otherwise provide him with medical care; and
(e) in light of my findings on the previous questions, whether there has been a breach of s 23(5) of the Bill of Rights and if so the appropriate relief.
Legal framework controlling use of force against prisoners
[686] The Corrections Act carefully circumscribes the use of force against prisoners. First, s 40 requires every prisoner to “promptly” obey every lawful order given to them by an officer or staff member. And disobeying a lawful order of an officer or staff member is an offence against discipline pursuant to s 128(1) of the Act.
[687] Section 83 of the Act then defines the circumstances when force may be used by officers or staff members against prisoners. The relevant provision in this case is subs 83(1)(c)(ii), which provides:
83 Use of force
...
(c) in the case of an officer,—
...
(ii) in the case of active or passive resistance to a lawful order.
[688] Two important points are immediately evident from this. First, the prerequisite for use of force is not the existence of a lawful order in fact, but whether a corrections officer has “reasonable grounds for believing” force is reasonably necessary to meet resistance to such an order.307 In other words, provided the corrections officer has reasonable grounds for believing the prisoner has been given a lawful order, and is refusing to comply with it, the use of force will be justified.
[689] Second, provided this initial threshold is met, corrections officers may use reasonable force to overcome passive or active resistance to the order.308 This important provision was not addressed by Mr Taylor during his case or in closing.
[690] Having found that the decision to transfer Mr Taylor to Waikeria Prison was lawful, it follows that the directions by prison officers to Mr Taylor on the day of transfer to accompany them to the receiving office were also lawful orders. They also had reasonable grounds to believe that the use of force would be reasonably necessary in the event of active or passive resistance by Mr Taylor to their lawful orders.
An overview of what occurred on the day of the transfer
[691] Between approximately 9.15 am and 4 pm on 20 December 2017, Mr Taylor was transferred from Auckland Prison’s A Block to an at-risk cell in Waikeria Prison. The evidence revealed five stages of the transfer:
(a) First, Mr Taylor’s initial engagement with the SERT team inside PCO Shead’s office on A Block. It was during this period that Mr Taylor was
307 Unsurprisingly, Corrections officers may be directed to ensure compliance with lawful orders made by other officers. In those circumstances, what is required are reasonable grounds—an objective threshold—for the officer’s belief that the order is lawful and that physical force is reasonably necessary to ensure compliance with it.
308 Corrections officers may not use any more force than is reasonably necessary in the circumstances. Unlike s 48 of the Crimes Act 1961, it appears the circumstances that are applicable are those which are found to have objectively existed, rather than the circumstances as the officer believed them to be.
subject to the control and restraint procedure and alleges he was rendered unconscious.
(b) Second, Mr Taylor’s movement from the PCO’s office to the receiving office in East Division, the area through which all arriving and departing prisoners are processed. This phase is also largely captured on CCTV and on-body footage.
(c) Third, Mr Taylor’s transportation in a van to Waikeria Prison, accompanied by a nurse and five prison officers.
(d) Fourth, Mr Taylor’s arrival at the Waikeria receiving office, where he was checked by nurses and strip searched.
(e) Finally, Mr Taylor’s transfer to the at-risk unit at Waikeria, where all prisoners that are unconscious or unresponsive on arrival are placed for monitoring. It was in an at-risk cell at approximately 4 pm that Mr Taylor can be seen getting up and vigorously objecting to his conditions.
[692] Given Mr Taylor was apparently unconscious for virtually all five of these phases, it is unnecessary to set out in detail the evidence addressed to all of them. The primary focus of the parties’ cases was really on the first phase, because Mr Taylor claims that during this period he was subjected to an unlawful assault that rendered him unconsciousness.
Factual findings
[693] In keeping with the operational orders prepared by Corrections staff to manage Mr Taylor’s transfer, Auckland Prison’s Site Emergency Response Team (SERT) were briefed by the Unit Manager at approximately 8 am on 20 December 2017. The operational orders and the briefing given to the SERT team made express reference to s 83 of the Corrections Act, and said that staff were to use no more physical force than necessary “and limited to [the] minimum degree reasonable to resolve the situation”. The order also provided that in the case of passive resistance, staff were to use non-
threatening physical contact to “guide” Mr Taylor to the receiving office. In the case of active resistance, reasonable force was to be used to move Mr Taylor.
[694] From this point, on-body camera and CCTV footage provides a detailed, although at times narrowly focussed, record of Mr Taylor’s interactions with prison officers. They also capture the initial control and restraint procedures carried out in PCO Shead’s office.
[695] The video footage records that at approximately 9.15 am, Mr Taylor had already arrived at the PCO’s office and was in discussion with Mr Shead. Mr Shead and another Corrections officer, Mr Tamihana Simon, advised Mr Taylor that he was being transferred to Waikeria. The on-body camera footage, taken by the SERT team, indicates they had arrived shortly after this discussion had begun and were waiting outside in the corridor and doorway. For approximately a minute, Mr Taylor stood inside the PCO’s office out of view of the CCTV camera in the corridor.
[696] Mr Taylor can be heard clearly upset during this period. He repeatedly says in response to directions from one of the officers (most of which is inaudible but most likely to accompany him to the receiving office) that “this is fucken bullshit”.309 After repeating this a few times, Mr Taylor calms down and warns Corrections officers that their direction to move is an unlawful order, and touching him to effect the order would be an assault. He can be heard to say that he has considerable legal matters on at Auckland Prison and the transfer was “an attempt to disrupt” his work. He also said “there’s no possible reason why I should be going to Waikeria... there’s nothing down there for me... So I will not be agreeing to go there”. He then indicates he will not be accompanying the Corrections officers.
309 Mr Taylor’s audible upset at this point in the video is consistent with evidence of Corrections officers in the room who said that early on Mr Taylor threw down a “satchel” (more a pouch) that had been hanging around his neck. The satchel took on some initial significance in the trial because incident reports written by Corrections officers in the SERT team suggested Mr Taylor had ripped the satchel from around his neck and thrown it down aggressively at the start of the interaction, giving the officers cause to believe he was physically threatening. As it happened, the video clearly captures an object initially in Mr Taylor’s back pocket when he enters the PCO’s office which, by the time of the control and restraint procedure, is situated on top of a large stack of papers on a desk. This stack of papers appears to be the one Mr Taylor carried under his arm on entry to the office. The inference I draw is that Mr Taylor became upset at the news he was being transferred and slammed his stack of papers and pouch down on the PCO’s desk.
[697] This discussion goes on for some minutes. Corrections Officer Mr Inga Kokohu, who was in charge of the SERT team, repeatedly orders Mr Taylor to accompany him to the receiving office. The officer also explicitly tells Mr Taylor this is “a lawful order”. Mr Taylor repeats, forcefully, that it is an unlawful order and that any use of force would amount to an assault. He says the Corrections officers could be charged.
[698] At 9.21.21 am, Officer Kokohu tells Mr Taylor that it is “the last opportunity” to comply with his direction to accompany the officers to the receiving office. At 9.21.45 am the SERT team begin moving into the room. Matters quickly develop from there. A prison officer attempts to guide Mr Taylor towards the door—apparently using a hand on Mr Taylor’s back—but Mr Taylor steps back against a wall and begins raising his hands. As members of the SERT team attempt to take hold of Mr Taylor’s hands and upper arms, they say they are using “minimal force”. What could then be described as a low-key scuffle ensues as officers attempt to take hold of Mr Taylor’s arms and he seeks to resist their efforts by pulling his hands away.
[699] Within seconds he is gently lowered to the ground. While he is being lowered a low table can be heard moving. It is not clear from the video whether Mr Taylor has taken hold of the table or if it is simply in the way as he is brought under restraint and lowered toward the ground. He initially appears to be lowered onto his backside before coming to rest on his hands and knees.
[700] Officers then attempt to place Mr Taylor’s arms behind his back while lowering his upper body to the floor. During the initial efforts to apply handcuffs it appears that Mr Taylor forcefully resists their efforts. This leads Officer Kokohu to say, “Arthur, give me your hands”.
[701] While this is happening, at 9.22.29 am,310 Mr Taylor speaks to staff saying, “you are assaulting me man” and “you are touching me”. At 9.23.13 am, Mr Taylor can be heard saying clearly “do you know I’ve got high blood pressure and you’re aggravating it?”
310 According to the time recorded on an on-body camera worn by Officer Lavasima.
[702] Mr Taylor appears to be unresponsive and apparently unconscious very shortly after he is handcuffed. At 9.23.57 am Corrections officers begin trying to lift him from the ground, but he is apparently limp and will not support his own body weight.
[703] At no time prior to this point, when Mr Taylor is either unconscious or pretending to be, is there any indication of significant force, a blow or that Mr Taylor has hit his head during the process. Nor is there any indication that an officer has placed their full weight on Mr Taylor’s torso, or at any time placed a knee on his back or abdomen. Indeed, it appears highly unlikely that any such pressure could have been applied to Mr Taylor’s body because once he was lowered to the ground, officers were endeavouring to handcuff his hands behind his back, and that process was incompatible with placing any part of their bodies on Mr Taylor’s abdomen or back.
[704] Throughout the entire control and restraint procedure, until Mr Taylor is apparently unresponsive, the Corrections officers involved are calm, and there is no indication at all that they used anything other than the minimum force to overcome Mr Taylor’s physical and passive resistance to their initial attempts to guide him out of the PCO’s office.
[705] Overall, there is nothing in the video evidence which supports Mr Taylor’s allegation that the force used was excessive or inappropriate. On the contrary, it is commendable that the Corrections officers were able to deal with the situation in such a calm and careful manner.
[706] At 9.24.47 am Mr Kokohu can be heard asking another officer to “get the nurse” to check on Mr Taylor’s condition. While waiting for the nurse, Mr Taylor is apparently unconscious lying on the ground. Corrections officers continue speaking to him calmly explaining what is happening. At 9.27.25 am, Mr Taylor’s tongue can be seen rhythmically moving in and out of his mouth, an issue that became a focus of some of the expert evidence.
[707] At 9.29.07 am a nurse, Ms Jiang, arrives to assess Mr Taylor’s condition. She applies a device called an oximeter to check Mr Taylor’s oxygen level, and she endeavours to take a blood pressure reading (while Mr Taylor is handcuffed). Several
times, Ms Jiang can be seen and heard to tell Mr Taylor to “relax”.311 Having satisfied herself that Mr Taylor is healthy, Corrections officers then lift Mr Taylor’s unresponsive body up a flight of stairs before placing him gently on a gurney, and from there wheeling him to the receiving office, where he continues to be observed and checked by prison and medical staff.
[708] This is a truncated account of the process observed on the video footage, but it confirms the key points:
(a) Mr Taylor refused to follow a lawful order, namely the requirement to accompany prison officers to the receiving office in preparation for a transfer to Waikeria Prison.
(b) At no time did prison officers appear to use any more than the minimum of force required to overcome Mr Taylor’s resistance to their effort to move him to the receiving office.
(c) Nothing in the observable sequence indicated a cause for Mr Taylor’s apparent unconsciousness. In particular, there is no obvious application of weight or force to Mr Taylor’s back or abdomen. This is an important finding in terms of Mr Taylor’s medical expert’s theories about the biomechanical processes that might have rendered Mr Taylor unconscious for approximately six-and-a-half hours.
Was Mr Taylor in fact unconscious?
[709] The fundamental issue is whether Mr Taylor was in fact unconscious at any stage during the transfer process. Mr Taylor’s evidence is that he was. Fifteen witnesses for the defendant who observed Mr Taylor on the day, together with a specialist in emergency medicine who observed the video footage, all said that he was not. As Mr Taylor appeared to accept during cross-examination, his credibility is firmly pitted against that of the defendant’s witnesses.
[710] Despite the disproportionate time the issue occupied during the trial, the question comes down to an assessment of the credibility of Mr Taylor’s evidence. Having considered the evidence, I am satisfied by a clear margin that Mr Taylor was not unconscious, and instead pretended to be. There are eight features of the evidence that have led me to this conclusion:
(a) There is no evidence Mr Taylor suffered from an underlying health condition that might plausibly explain unconsciousness, or that would be consistent with his expert’s hypotheses.
(b) There is a lack of any specific application of force to Mr Taylor’s body that would cause unconsciousness.
(c) There is prior evidence of Mr Taylor feigning unconsciousness while in prison.
(d) The duration of his incapacity—six-and-a-half hours—followed by an immediate physical and mental recovery, which was captured on CCTV.
(e) Dr Jones’ careful analysis of the evidence, and medical science, which I accept, supports the conclusion that Mr Taylor was malingering.
(f) By contrast, Dr Freeman’s evidence was unconvincing, lacked independence and was highly speculative.
(g) Mr Taylor’s evidence is inconsistent with 15 Corrections witnesses who observed his movements on the day. Mr Taylor did not put to one of them that they had lied, seeking at most to suggest their memories might be wrong. Regardless, their evidence was credible and consistent with the video footage and Dr Jones’ analysis of what could be observed.
(h) Finally, Mr Taylor’s daily blog, published only two days after the transfer, contained details of what occurred. These details most likely
could only have been known to Mr Taylor if he had been conscious during the transfer.
[711] I now turn to address each of these points.
No underlying health condition that explains unconsciousness
[712] On behalf of Mr Taylor, Dr Freeman floated various medical theories that might explain Mr Taylor’s unconsciousness, but none of them appear to be supported by Mr Taylor’s medical records, to the extent they were available.
[713] One of Dr Freeman’s primary theories was the possibility of a seizure leading to Mr Taylor’s unconsciousness, or at least extending his unconsciousness. There is no medical evidence that Mr Taylor has suffered from seizures before, or since, the day of the transfer.
[714] Mr Taylor was on medication for high blood pressure at the time of his transfer to Waikeria Prison. Even so, there is nothing in the evidence that satisfies me either his blood pressure, or his medication for it, had any part in his apparent unconsciousness.
[715] Equally, while Dr Freeman criticised the failure of nursing staff to check Mr Taylor’s blood glucose, there was nothing in the medical history to suggest Mr Taylor has had issues with blood sugar levels that might suggest they had any role in his apparent unconsciousness.
[716] The lack of any credible evidence of medical conditions pre-dating or post- dating the transfer undermines Mr Taylor’s claim that he was unconscious, as well as Dr Freeman’s hypotheses.
No identifiable use of force causing unconsciousness
[717] Related to the last point, there is nothing in the video footage, or the evidence of Mr Taylor or Dr Freeman, revealing an application of force to Mr Taylor’s body
during the control and restraint that might provide an explanation for his unconsciousness.
[718] Perhaps reflecting the video evidence, Mr Taylor’s evidence-in-chief did not clearly describe any physical act during the restraint procedure that would establish a causal link to his unconsciousness. His brief of evidence economically recorded:
I objected to the transfer and advised the SERT that it was unlawful, and any use of force would amount to assault, as force could only be used in the event of resistance to a lawful order.
The SERT took no notice of what I said and advanced on me in a threatening manner. They then used force against me that resulted in me falling or collapsing to the concrete floor.
Very shortly thereafter, I lapsed into a state of unconsciousness. This was resultant from actions of the SERT.
[719] It was not until he gave evidence at trial that Mr Taylor attempted to clarify how his unconsciousness had been caused. Even then, Mr Taylor could only provide hearsay evidence, referring to advice he had received from his expert witness, Dr Freeman, and what he said he could see in the video footage. Mr Taylor’s evidence- in-chief was:
... They then used force against me that resulted in me falling or collapsing to the concrete floor. Very shortly thereafter, I lapsed into a state of unconsciousness and this would’ve not happened if I hadn’t been overpowered and forced to the floor by the [S]ERT.
I always wondered about this Sir, how could you be going unconscious unless you’d been strangled around the throat or something, but Dr Freeman has advised Ms Heal that you could be (inaudible...)
THE COURT:
Dr Freeman should probably give that evidence, anyway off you go.
MR TAYLOR:
Going to, he’s going to, Dr, sorry I shouldn’t have phrased that, Dr Freeman will be giving evidence, I understand, that you can be strangled across the chest, which is not very well-known, and they’d put considerable pressure or were leaning on me, I understand, from looking at the video, on my back, forcing my chest into the concrete floor, and that may have been enough to cause me to, lapse into unconsciousness or non-responsiveness or whatever they call it.
[720] It was not until Mr Taylor was cross-examined on his account of the control and restraint procedure in his recent autobiography that he asserted Corrections officers had kneeled on his back. In his book, Mr Taylor said:312
At that point, a group of officers grabbed my hands from behind me and threw me to the floor. The last thing I remember is someone kneeling on my back; then everything went black.
(emphasis added).
[721] It will be evident from my findings that this is not an accurate description of the video footage. Mr Taylor’s hands are not “grabbed from behind”. He was not thrown to the floor. There is no indication of a Corrections officer kneeling on Mr Taylor’s back before he becomes unresponsive.
[722] In cross-examination Mr Taylor accepted that, while he was able to complain about his high-blood pressure during the control and restraint process, he did not once complain that he could not breathe, or that someone was kneeling on his back. Nor was Mr Taylor able to identify where the knee was placed, but asserted that it could be seen “on the video”. Having reviewed the video, I have not been able to see an occasion when a Corrections officer supported their weight by kneeling on Mr Taylor’s back.
[723] The ambiguities in Mr Taylor’s evidence and his various theories on the mechanisms that might have led to his unconsciousness were summarised during his cross-examination in these terms:
Q Can I ask is the phrase “rendered unconscious” that you’ve selected for your brief and your statement of claim designed to capture multiple possibilities which could include being attacked, being assaulted, being thrown to the floor, being medicated, being drugged unconscious, having someone kneel into your back, is it the case that that phrase is designed to capture all of those possibilities Mr Taylor?
A Well it is what it is, it says – it means what it says. You know you could say all of the above, all of the above.
Q So –
[724] When Dr Freeman gave evidence, he also failed to clearly identify the particular force that had caused Mr Taylor’s apparent state of unconsciousness. While he opined that Mr Taylor was lifted by his arms and this might have the same effect on breathing as strappado—a form of torture involving lifting a person by their hands while they are bound behind their back—I do not accept the officers lifted Mr Taylor’s body weight solely by his arms, or that the manner of his movement after he was unconscious affected his breathing. Having observed the control and restraint procedure, no cause of Mr Taylor’s apparent unconsciousness is revealed.
Mr Taylor’s previous malingering
[725] In 2005, Mr Taylor was taken to hospital from Rimutaka Prison because he was pretending to be unconscious. By chance, Corrections Officer James Whakataka was part of the prison escort responsible for taking Mr Taylor to hospital on that occasion. He was also part of the group of officers who were present when Mr Taylor was subject to the control and restraint process in 2017. In relation to both episodes, Mr Whakataka gave evidence that he did not believe Mr Taylor was unconscious. He said that when he saw what Mr Taylor was doing in 2017, he thought he was doing the same thing he had seen him do in Rimutaka in 2005.
[726] Mr Whakataka’s evidence is supported by Mr Taylor’s 2005 hospital admission records. Those records indicate:
(a) On the day of Mr Taylor’s admission, 23 September 2005, he had been found with a cell phone and refused to hand it over to prison staff. Staff restrained Mr Taylor to take possession of it. He was again subjected to a restraint procedure later that day because he was “violent and uncooperative”.
(b) Mr Taylor was then put in a “solitary confinement” cell. While there, at
2.30 pm he was seen to hit his head repeatedly against a wall, and then “[fell] to the ground in a controlled fashion”. Having been placed
(at prison) in a recovery position, he was observed on CCTV to “roll in a controlled and deliberate fashion onto his stomach”.
(c) For four hours Mr Taylor remained in a foetal position and remained unresponsive when the ambulance was called.
(d) Ambulance crew and medical observations indicated that he had elevated blood pressure, but overall his cardiac results were recorded as “normal stats”. His airway was intact, his breathing and circulation were both normal.
(e) At 7.45 pm Mr Taylor was reviewed by a consultant at Wellington Hospital. She recorded that his eyes were closed but there were “small blinks in response to voice”. He held his eyes open when his lids were opened, he avoided looking at the doctor when his head was turned appropriately, and during a hand-drop test (which involves lifting the patient’s arm above their head or face and letting it go) Mr Taylor’s arm “gently falls to chest and patient moves arm away from face”. This is a common test to ascertain whether the individual is unconscious, or choosing not to respond.
(f) The consultant’s impression was that Mr Taylor was not suffering from locked-in syndrome, and was “actively mimicking illness”. She recorded that Mr Taylor was safe for transfer back to the prison.
[727] Mr Taylor resisted an application by the defendant for a discovery order relating to the hospital records for his 2005 hospital admission. Prior to the trial commencing I granted the defendant’s application.313 Mr Taylor’s resistance to the application rather supports a conclusion that he had feigned unconsciousness in 2005.
[728] The record of Mr Taylor’s behaviour in 2005 is remarkably similar to his observable behaviour on 20 December 2017. It reveals a tendency to feign unconsciousness in response to physical interventions by prison staff. It strongly
313 Taylor v Attorney General, above n 2.
points to a further episode of feigned unconsciousness in response to prison staff undertaking the restraint procedure in the present case.
Duration of unconsciousness and remarkable recovery
[729] Reminiscent of events in 2005 was the very lengthy period of Mr Taylor’s unresponsiveness in 2017. As noted, he was apparently unconscious for approximately six-and-a-half hours.
[730] Such a lengthy period of unconsciousness is not easy to explain. Indeed, Dr Freeman was compelled to suggest a complex series of possible interactions and biological processes beginning with compression of Mr Taylor’s abdomen cutting off blood supply through the vena cava (a large vein returning blood to the heart) possibly causing a form of seizure followed by a post-ictal state.314
[731] While I return to consider this explanation in greater detail, the CCTV footage at Waikeria Prison reveals Mr Taylor after he is placed in an at-risk cell. For the first half-hour or so Mr Taylor is lying on his back on the bed. There are a number of observable movements of his right arm and legs which are not consistent with unconsciousness. A blanket placed across his legs appears to have been moved off them and falls to the ground as a result of Mr Taylor’s leg movements. Within five minutes of that, Mr Taylor is very suddenly and animatedly on the move. Both his hands first move to his face, which he rubs (38 minutes and five seconds into the CCTV recording). Six seconds later he raises himself, apparently without any trouble, to a seated position on the bed with both feet touching the ground. He moves to the toilet and water basin and by 38 minutes and 24 seconds, he moves towards the door. He appears to have a drink of water at 38 minutes and 55 seconds. And by 39 minutes and 27 seconds he has apparently moved to the door to look through the cell window, and then throws the paper cup he had been drinking from the length of the cell. In short, he is not happy to be in a bare at-risk cell. From then on, his movements on the video footage, consistent with the other evidence I heard from attending prison staff, suggest he is agitated and demanding attention.
[732] Moreover, the on-body camera video of Mr Taylor’s interactions with Prison staff at Waikeria immediately after he becomes responsive indicate that he was aware that he had been moved to Waikeria, and was fully alert and in control of his actions. He continued his arguments from Auckland Prison about the legality of the transfer. As Dr Jones observed, during none of these discussions does Mr Taylor demonstrate any signs of symptoms consistent with a traumatic brain injury or a post-ictal state.
[733] For my part, the observable sequence is simply not consistent with a person who has been unconscious or in some other seizure-induced state for six-and-a-half hours. Rather, Mr Taylor’s immediate recovery, ease of movement, and cognitive clarity is consistent with a decision to stop “playing possum” (to use Dr Freeman’s expression), and to begin protesting his detention in an at-risk cell.
Dr Jones’ evidence was convincing and supported malingering
[734] Dr Jones is an associate professor of emergency medicine. He has been a specialist in emergency medicine for 21 years, during which time he has worked in emergency departments in a number of hospitals both in New Zealand and the United Kingdom. He has authored more than 100 publications in peer-reviewed literature, including research on causes of loss of consciousness.
[735] The doctor was provided with all the evidence relevant to the question of Mr Taylor’s unconsciousness, including approximately 13 hours of video footage of the sequence of Mr Taylor’s transfer to Waikeria, the briefs of evidence of Corrections officers and nurses who observed him on the day, and the briefs of evidence for Mr Taylor and Dr Freeman.
[736] In a careful analysis of all of the evidence, including the available medical records, Dr Jones ruled out as causes of loss of consciousness:
(a) traumatic brain injury;
(b) high blood pressure or a heart related issue;
(c) respiratory issues;
(d) low blood sugar;
(e) epilepsy (there being no history of seizures);
(f) infection; and
(g) focal neurological deficits or stroke.
[737] He then went on the consider the various mechanisms and theories suggested by Dr Freeman as consistent with a loss of consciousness, and rejected them all.315 He concluded:
As discussed above, I do not believe Mr Taylor’s presentation was consistent with a seizure. In my experience people recovering from seizures, especially prolonged seizures with loss of consciousness, do so slowly over a period of half an hour to many hours with a progressive increase in level of consciousness. Often they are confused and disorientated during this process. Mr Taylor became responsive very rapidly after appearing to not respond for the entire duration of the transfer and was immediately aware of his surroundings. This is not consistent with a post ictal state, especially following a seizure with impaired awareness for 7 hours.
[738] Overall, Dr Jones considered that the constellation of observable movements and aspects of the video footage supported a finding that Mr Taylor feigned unconsciousness. Dr Jones’ assessment was that Mr Taylor pretended to be unconscious because he did not wish to be transferred to Waikeria Prison. Mr Taylor’s unresponsiveness was most likely aimed at getting a formal medical assessment rather than being transferred to another prison. His careful analysis of the video footage was summarised in a schedule to his evidence, which I have reproduced as an Appendix to this judgment.
[739] Mr Taylor made only one real effort to challenge Dr Jones’ summary of video observations. Unfortunately for Mr Taylor, the exercise backfired. Dr Jones’ table recorded he could observe at 9.24.25 am:
315 Dr Jones rejected the possibility that Mr Taylor’s unresponsiveness was caused by cardiac arrythmia, vasovagal syncope (fainting), hypotension (low blood pressure), hypoxia (lack of oxygen), hypoglycaemia (low blood glucose), epilepsy, pseudo-seizures, inferior vena cava compression, or complex partial seizure, also known as focal impaired awareness seizure.
While [Mr Taylor] being lifted [apparently unconscious] vertically head is initially still then moves left to right 3 x rapidly (shakes) despite no obvious lateral force applied (CO has just asked him if he wants to come with us).
[740] This observation is significant as it is consistent with an episode in Nurse Yanyan Jiang’s evidence. She was the first attending nurse, and gave evidence that at one point she asked Mr Taylor a question and he shook his head, apparently in response.316
[741] When Mr Taylor took Dr Jones to the video footage noted in his schedule, it was possible with careful watching to observe precisely the rapid head movements described. As the doctor had explained, there were no observable external lateral forces being applied to Mr Taylor’s body that would cause his head to move that way. The inference Dr Jones drew was that Mr Taylor’s head moved in this way because he was not unconscious. And this movement was not isolated. As Dr Jones observed, his table of video observations identifies more than 50 occasions when Mr Taylor’s body can be seen moving in the video footage. Dr Jones’ view was that these movements were not consistent with a seizure.
[742] Overall, I found Dr Jones’ evidence careful, impartial, thoroughly informed by the evidence, and substantially helpful. I have no hesitation accepting his opinion, because it is also consistent with my own observations of Mr Taylor’s movements in the video footage, and the other evidence.
Dr Freeman’s evidence was unconvincing
[743] Corrections submitted that I should prefer Dr Jones’ evidence to that of Dr Freeman for four reasons:
(a) Dr Freeman was not provided with most of the relevant evidence before formulating his opinion;
(b) he was not familiar with the code of conduct for expert witnesses;
(c) he altered his report before giving evidence but his explanations for the alterations were vague and unsatisfactory; and
(d) he used personal anecdotes, Google searches undertaken while giving evidence, and irrelevant sources as frameworks for his opinions.
[744] While no doubt Dr Freeman was able to express an opinion on the central issue, and in doing so was genuinely endeavouring to assist the Court, I largely accept the defendant’s criticisms of his evidence.
[745] First, Mr Taylor took an unusual approach when he briefed Dr Freeman’s evidence. He made a point of not providing Dr Freeman with any of the statements of evidence because he did not want Dr Freeman “getting coloured by what he saw”. As a result, when Dr Freeman prepared his original report, he had not been provided with Mr Taylor’s own brief of evidence, all of the video files, or a complete set of Mr Taylor’s medical history. While further video footage was sent to Dr Freeman subsequently, he could not recall if he had watched it all, but doubted that he had.
[746] In fact, Dr Freeman was not provided with five relevant video files. When one of those videos was played to Dr Freeman in cross-examination, he said “I think this is the – this is an angle of the [inaudible] that I haven’t seen, around it, and I think it’s pretty relevant to the whole thing”. Dr Freeman was also not provided on-body camera footage of Mr Taylor’s conversation with staff at Waikeria at 4:08 pm, the first close- up footage in evidence of Mr Taylor shortly after he said he came-to at Waikeria.
[747] Dr Freeman was also unaware that no less than six nurses had examined Mr Taylor and checked his well-being during the course of the day, or that they had all concluded that Mr Taylor was malingering.
[748] Second, the first version of Dr Freeman’s report was prepared before he had received and read the code of conduct for expert witnesses contained in sch 4 of the High Court Rules. As a result, his briefs, contrary to the requirement of the Rules, failed to confirm that he had read the code or that he agreed to comply with it. While Dr Freeman had been provided with the code before giving evidence at trial, the
omission is important and affects the weight that can be placed on his evidence, given—as I will explain—Dr Freeman was not an independent witness.317
[749] Third, Dr Freeman altered his original report in material respects, but did not provide a clear or satisfactory explanation for the changes. The alterations are shown in the following section of Dr Freeman’s amended report of 9 November 2020, marked-up to show the alterations:
At 4.40-5.10 he is seen heavy breathing and slumped. The nurse is called. What, in your opinion has happened here?
Mr Taylor appears to have become unconscious, the (reversible) causes of which include a cardiac arrhythmia, vaso-vagal syncope, hypotension, hypoxia, hypoglycaemia, epilepsy and pseudo-seizures (putting it on).
It is not unreasonable to suggest that the combination of Mr
Taylor’s body habitus and the restraint applied may have
compromised his venous return, by compressing his vena cava,
leading to a loss of consciousness.
The events surrounding George Floyd's death while in the custody
of Minneapolis police speak to the risks associated with
“prolonged firm restraint”.
Comments?
These movements are small, short lived and, while not normal,
are unrepresentative of (for example) a tonic/clonic seizure.
They would fit with a partial focal seizure or an emergent
semi- conscious state.
[750] Although this reveals Dr Freeman had reconsidered his previous view that Mr Taylor’s body habitus and the restraint applied was a reasonable basis on which to suggest compression to Mr Taylor’s vena cava had led to a loss of consciousness, he did not explain when asked why he no longer considered he should express that view in his amended report. And while he removed reference to Mr George Floyd’s death from his amended report, he nevertheless went on to make the comparison again
317 Strictly speaking, as Dr Freeman’s briefs of evidence, or “report” failed to make reference to sch 4 to the Rules, it is only admissible by leave: see r 9.43(2)(a). As no issue was taken by the defendant with the grant of leave, and leave is in the interests of justice, I grant leave accordingly.
during cross-examination. That was unfortunate, as there is nothing comparable about the restraint procedure used on Mr Taylor.318
[751] That leads me to the fourth difficulty with Dr Freeman’s evidence. Dr Freeman’s approach to his medical opinion at times gave the impression of advocacy. The comparison with Mr Floyd’s death was an exaggeration of the seriousness of Mr Taylor’s treatment. As I have noted, there is no equivalence between the two. So too was his reference to strappado—a form of torture—as a description of the efforts by prison officers to lift and carry Mr Taylor to the receiving office.
[752] Dr Freeman was reluctant to make concessions when his opinion was tested. And he was inclined to articulate complex hypotheses of potential medical causes of unconsciousness on the basis that there was no evidence to exclude them. It would have been more helpful for Dr Freeman to have considered all the evidence, and assessed which of the two relevant possibilities were most likely: that Mr Taylor’s state was the result of a genuine medical condition, or that he was “putting it on”. He was unable to do so.
[753] Finally, these concerns take greater prominence given what I consider to be a lack of independence between Mr Taylor and his witness. Dr Freeman is thanked in the acknowledgments section of Mr Taylor’s recent book, Prison Break.319 And, Dr Freeman has what appears to be a mutual business interest with Ms Heal, who attended the hearing throughout as Mr Taylor’s assistant and at whose property Mr Taylor was residing. Dr Freeman confirmed he had a friendship and busines relationship with Ms Heal dating back to 2015. The businesses have a health-related focus, including the provision of medicines. These matters were only disclosed in cross-examination. They ought to have been proffered in Dr Freeman’s brief of evidence given his overriding duty to the Court.
[754] For these reasons, I prefer the evidence of Dr Jones to that of Dr Freeman.
318 A New York Times analysis of a video of Mr Floyd’s tragic death revealed Officer Chauvin kept his knee on Mr Floyd’s neck for at least eight minutes and 15 seconds. The officer did not remove his knee even after Mr Floyd lost consciousness: Evan Hill and others “How George Floyd Was Killed in Police Custody” (31 May 2020) The New York Times.
319 Prison Break, above n 312.
Evidence of 15 Corrections witnesses credible and preferable to Mr Taylor’s
[755] Fifteen Corrections staff who were directly involved in the process of transferring Mr Taylor to Waikeria prison all gave evidence that their observations of Mr Taylor led them to believe that he was conscious.
[756] It is unnecessary to elongate an already lengthy judgment by setting out their evidence in detail. It will suffice to say that Corrections staff dealing with Mr Taylor inside the first minutes of the day, through to those who dealt with him almost seven hours later in Waikeria’s at-risk unit, all observed movements and behaviours that they considered were inconsistent with unconsciousness. These movements included:
(a) controlling the weight of his head or other parts of his body;
(b) eye movements, including opening his eyes to “briefly peep”;
(c) tensing his arm when a nurse was endeavouring to take his blood pressure;
(d) Mr Nui saw Mr Taylor in the receiving office shifting himself to be more comfortable by moving his arm out from underneath his body and straightening his legs;
(e) Mr Glynan and Mr Low, officers in the transport van, both observed on several occasions Mr Taylor opening his eyes and looking around;
(f) Mr Burrow, whose shoulder Mr Taylor rested his head on while in the transport van, said he could feel Mr Taylor “raise his head, look around to see where he was, and then relax back into my shoulder again”; and
(g) Ms Herrick, a nurse at Waikeria, observed that Mr Taylor’s head remained “erect”, including when he was lifted into a wheelchair, and that his eyes were moving beneath his eyelids.
[757] Six of these 15 witnesses were qualified nurses. The evidence included health- centre staff at two prisons who undertook various tests to ascertain whether Mr Taylor was healthy, or whether he was feigning unconsciousness. All of them confirmed their clinical assessment that he was healthy, and not unconscious. They were all clear that had they genuinely considered Mr Taylor was unwell, they would have called an ambulance and had him transferred to a hospital. I accept their evidence.
[758] Importantly, Nurse Sheena Finlayson, the Clinical Team Leader at Waikeria Prison, observed Mr Taylor’s reaction to an arm drop test carried out by her colleague. Her evidence was that if “somebody was unconscious, that arm would flop down and they would hit themselves”. However, in Mr Taylor’s case: “Arthur’s was a controlled movement of his arm down. That was the opposite to what we would expect to see if somebody was unconscious.”
[759] It is simply not plausible to suggest all 15 of the defendant’s witnesses were lying or mistaken in their observations. Mr Taylor did not really challenge any of them, as he needed to, in order to invite me to prefer his evidence to theirs. The closest he came in cross-examination was to suggest to some of them that “memories fade” with time, a bland proposition that most witnesses accepted. But the real point he needed to explore was whether they were all, more likely than not, either lying, or wrongly remembering important aspects of Mr Taylor’s movements and reactions that led them to believe he was conscious. That contest did not occur.
[760] The number and credibility of the accounts given by the defendant’s witnesses, corroborated to a large extent by what can be seen on the video footage, lead me to the inevitable conclusion that Mr Taylor’s claim that he was rendered unconscious is untrue. Like many critical aspects of his evidence and his case, it contains significant exaggeration and embellishment.
Daily Blog post suggests Mr Taylor knew details of transfer he could only know if conscious
[761] At 6.45 pm on 22 December 2017, just two days after the transfer to Waikeria, Mr Taylor recorded an entry in the comment section of an online article by The Daily
Blog.320 Mr Taylor explained in cross-examination that while the comment is directly attributed to him on the internet, he would usually call his accountant, Mr Ian Alexander, who would then post to the site as Mr Taylor, using the first person. The entry said:
A reliable source told me later that after I became unconscious in the A Block’s office at Pare, they carried me down the stairs and out of the block to where medical was called. They couldn’t really do much because I was unconscious, and they couldn’t get proper readings, but my blood pressure was high, and then I was physically carried out while UNCONSCIOUS and strapped to a seat in the prison van with 6 prison officers and a nurse.
[762] When asked, Mr Taylor refused to disclose who the “reliable source” was, although he did say it was a Corrections officer.
[763] What is striking about the entry is the level of detail and accuracy concerning aspects of the transfer process. I do not accept Mr Taylor’s claim that he was told these details by a prison officer within two days of the transfer. That is simply not credible, given the events described in the entry were only witnessed by the Auckland Prison staff involved in the transfer, and Mr Taylor was in an at-risk cell in Waikeria Prison by the time he allegedly came-to. Instead, I consider he was aware of the details because he had been conscious throughout the day of the transfer.
[764] I am reinforced in that conclusion because on recovery in the at-risk unit in Waikeria Prison, Mr Taylor immediately knew where he was and was able to remonstrate with prison staff about what he considered was an unlawful transfer. It is also notable that aspects of the Daily Blog account of Mr Taylor’s treatment— including the SERT team “who burst into the computer room” and “choked” Mr Taylor into unconsciousness—were disavowed by Mr Taylor in cross-examination. He claimed these obvious exaggerations were the result of editorial over-enthusiasm or misunderstanding by Mr Alexander, or Mr Taylor’s partner. I consider they are more likely the result of Mr Taylor’s embellishment.
Remaining matters raised in evidence
[765] Before concluding, it is appropriate to touch on some remaining issues that became features of the expert evidence.
[766] The first is Mr Taylor’s tongue movements while he was apparently unconscious. Dr Freeman considered this feature of the evidence in particular supported the conclusion that Mr Taylor had been rendered unconscious during the control and restraint procedure.
[767] The video footage certainly shows Mr Taylor’s tongue protruding from his mouth just over a minute after becoming unresponsive. At 9.28.15 am and 9.28.33 am, a bovine-like tongue motion is observable. Having watched the video evidence, the movement is unusual. Importantly, however, Dr Jones considered the tongue movements were not specific for any particular condition, including Dr Freeman’s opinion that they were consistent with a partial focal seizure, or a semiconscious person recovering from anaesthetic or after a seizure.
[768] Of further importance was the evidence of Corrections Officer Aisea Fisiiahi, who was a member of the SERT team present during the control and restraint procedure. He observed Mr Taylor’s tongue movements, and noted that it was something he had seen other prisoners do. He said:
I have seen other prisoners go on like they are having a seizure like making sounds, moving their lips and tongue, and then when medical arrives they are all good.
[769] Overall I am satisfied, given my finding that Mr Taylor was not unconscious, that his tongue movements were part of his effort to feign a seizure, a practice which appears not to have been uncommon in Auckland Prison.
[770] The next issue that arose in the medical evidence was Mr Taylor’s blood glucose levels. Dr Freeman was highly critical that Mr Taylor’s blood sugar levels
were not checked initially by Nurse Jiang. When Mr Taylor’s blood sugars were tested on arrival at Waikeria Prison, they were found to be 9.6, just above the normal range of between 4 and 8. The result led Nurse Finlayson to conclude that the level indicated a high sugar intake at some stage, “maybe that day”.
[771] Ultimately the point goes nowhere because there is no evidence Mr Taylor was diabetic or suffered from low blood sugar levels. And as Nurse Jiang observed, Mr Taylor appeared to respond to verbal stimulus and was not unconscious.
[772] Further criticism of Nurse Jiang arose in relation to her use of a pulse oximeter, which is a small device placed on the finger of a patient which reveals both the heart rate and levels of oxygen in the blood. Nurse Jiang’s records at the time and the evidence indicate that Mr Taylor’s blood oxygen levels were normal, and as he was warm to the touch and pink in colour, she was satisfied that his breathing and heart were functioning normally. She had also heard Mr Taylor’s heartbeat when taking his blood pressure, and considered it too was normal. A similar observation—that Mr Taylor’s heartbeat seemed to be normal—was made by Cherryl Robertson, who was involved in assessing Mr Taylor on arrival at Waikeria Prison. She said that if Mr Taylor had presented with an irregular heartbeat, she would have completed an ECG and if there was any sign of atrial fibrillation, nursing staff would have called an ambulance.
[773] Where a point of greater moment arose was the agreement between the expert witnesses that the flashing light of the pulse oximeter visible in some of the video footage suggested Mr Taylor’s heartbeat was irregular while at Auckland Prison. Dr Freeman’s supposition was that the irregular heartbeat was likely atrial fibrillation, a potentially serious condition. Dr Jones, by contrast, opined that it was more likely that ventricular premature contractions, observable on all of Mr Taylor’s ECGs, were the cause of the irregular heartbeat. In short, Dr Jones considered it more likely Mr Taylor was having heart palpitations, an unpleasant but generally not uncommon or life-threatening event. Dr Jones also explained that if cardiac arrythmia has caused a loss of consciousness, that arises because the heart is not pumping effectively
meaning insufficient blood is getting to the brain. That would be evident in blood pressure readings, and pale, clammy and cold skin. Mr Taylor had normal or somewhat elevated blood pressure, and was warm and pink throughout the transfer.
[774] In addition, there is no medical evidence suggesting Mr Taylor suffered from an underlying heart condition, other than the one identified by Dr Jones.
[775] I accept Dr Jones’ evidence on this point. The apparent arrythmia was not serious, and did not cause Mr Taylor’s unconsciousness.
Application of the Glasgow Coma Scale and the administration of pain
[776] A further criticism Dr Freeman made of nursing staff, and in particular Nurse Jiang, was what he said was a failure to administer the Glasgow Coma Scale (GCS), including the administration of pain to test unconsciousness. The GCS involves a series of relatively simple observations and tests to ascertain a patient score. The score can then be used to ascertain varying levels of consciousness between fully conscious, and death.
[777] The point again does not assist Mr Taylor’s case, because even if it is taken at face value, it simply highlights what Dr Freeman suggested was a failure to obtain relevant information that would confirm whether Mr Taylor was genuinely unconscious, or simply faking it. As Mr Taylor carries the burden of proof, an absence of evidence one way or the other does not helpfully advance his case.
[778] Regardless, as Dr Jones noted, the GCS is only logically of use when medical staff have reason to believe they are dealing with someone who might be unconscious. Where their observations lead them to consider a patient is conscious, administering the GCS serves no good purpose. Moreover, the GCS is applied by clinicians almost intuitively as a method of structuring diagnoses in response to observation. Dr Jones noted that if by observation a medical practitioner concludes the subject is not unconscious, applying painful stimuli to them would be inappropriate. Moreover, he observed that it is not uncommon “for people that are really wanting to feign unconsciousness not to respond to the painful stimulus test”. That was of some moment because Mr Taylor’s 2005 hospital admission records indicate he did not
respond to the application of a pain test—“nil movement to pain in finger bed/supraorbital”—but did respond to other consciousness tests: “screws eyes to gentle touch of eyelids”.
[779] Dr Jones’ view, which I prefer, is that the arm drop test is a better test of whether a patient is feigning unconsciousness than the GCS. Of course, that test was applied at Waikeria Prison on Mr Taylor’s arrival, and it indicated Mr Taylor was conscious.
Compressed vena cava, then seizure followed by post-ictal state, or conversion disorder
[780] As noted, Dr Freeman’s report and evidence at trial raised a range of different possible medical conditions that might have caused Mr Taylor to have become unconscious. It was something of an omnibus approach.
[781] In response to questioning from the bench, Dr Freeman considered that the most plausible explanation for Mr Taylor’s unconsciousness involved compression of Mr Taylor’s vena cava leading to lowered blood pressure as a result of which Mr Taylor lost consciousness, followed by a seizure, followed by a sleepy post-ictal state, which commonly involves fatigue and drowsiness, or sleep, but a good level of consciousness when awake. Dr Freeman also opined that Todd paresis, a form of post- seizure temporary paralysis, might also account for the lengthy period of unresponsiveness.
[782] Dr Jones did not consider the evidence, including the video, supported any of these theories. First, there is no evidence of Mr Taylor having a history of seizures before, or since, the prison transfer. Second, Dr Jones considered Mr Taylor’s presentation in the PCO’s office was not consistent with a seizure as there were no abnormal movements, no limb jerking, no focal movement, and his eyes were closed. Dr Jones also considered Mr Taylor’s behaviour in the Waikeria at-risk unit was inconsistent with what he would expect to see of someone in a post-ictal state.
[783] Finally, Dr Freeman postulated that Mr Taylor’s response to the control and restraint procedure could have been the result of a conversion disorder resulting in a
catatonic state. Here the cause of the apparent unconsciousness is psychiatric shock rather than the result of a broader biomechanical process. Dr Jones’ evidence in response was that conditions such as shell-shock, PTSD and “freeze” responses are not associated with unconsciousness and in some cases are “characterised by very vivid recollection of what’s happening”. A freeze response is a life-preserving reaction when an individual is in extreme danger. It is not a cause of unconsciousness.
[784] Once again, I prefer the opinions of Dr Jones in relation to these issues, for the reasons already noted. At a fundamental level, Dr Freeman’s theories are undermined by the absence of any evidence of an application of force to Mr Taylor’s body consistent with unconsciousness. And the complex series of medical events described by the doctor simply defy common sense.
Has there been a breach of Mr Taylor’s right under s 23(5) of the Bill of Rights?
[785] In light of the findings above I consider that:
(a) The decision to transfer Mr Taylor to Waikeria Prison was lawful. It was not made for an improper purpose. In fact it was made in order to assist with Mr Taylor’s rehabilitation, and possible release on parole.
(b) There was nothing unlawful or excessive about the force used as a result of Mr Taylor’s active and passive resistance to compliance with a lawful order.
(c) Mr Taylor was not unconscious at any point (other than the possibility that he fell asleep quite naturally in the prison van on the way to Waikeria).
(d) Appropriate checks on his welfare and condition were undertaken at various steps during the transfer process. There was nothing inappropriate or deficient in the attention provided by Corrections’ medical staff. I find their treatment was consistent with s 75 of the Act, which requires prisoners receive medical treatment that is “reasonably necessary”.
[786] Accordingly, Mr Taylor’s claim fails entirely. In my view, the most candid insight into what occurred on the day of transfer was given by Mr Taylor himself during an answer to questions from the bench. As he said:
... [Corrections] knew I didn't want to go to Waikeria. They knew I would put up resistance to it. They knew from a previous thing which Mr Langley actually refers to there in B Block that it’s liable to lead to violence because they’re going to start to use, not from me, they’re going to attack me, right, so anything could happen. Obviously I’m not just going to lie there and let them beat, you know, I’m not going to go into what they do actually do, but yeah.
So he knew, at the very least, there’s likely to be a violent confrontation...
[787] Mr Taylor, for whatever reason, did not wish to transfer to Waikeria Prison or attend the STURP course, despite the Parole Board’s clear indication that was his best chance of early release on parole. Corrections earnestly endeavoured to provide Mr Taylor with the rehabilitation he needed to secure earlier release. Prison officers and psychologists endeavoured to persuade Mr Taylor that rehabilitation through the STURP course was in his best interests. Mr Taylor gave mixed responses at times. But ultimately, when the day came, Mr Taylor chose to use active and passive resistance in response to a lawful order. What occurred thereafter was a result of Mr Taylor’s refusal to comply in order to prevent the transfer going ahead. Corrections’ use of force to deal with Mr Taylor’s resistance was moderate, lawful, and entirely justified.
CHAPTER 6: STRIP SEARCHES AND MECHANICAL RESTRAINTS
Chapter overview [788]
Strip searches
What happened [791]
Legal framework for conducting strip searches [796] Did the strip searches breach Mr Taylor’s right under s 23(5)? [803] Remedy [816]
Use of mechanical restraints
What happened [825]
Did the use of mechanical restraints breach Mr Taylor’s right under s 23(5)? [828]
Conclusion and relief [834]
Chapter overview
[788] In early 2018, Mr Taylor was subjected to nine strip searches and, on one occasion, he was restrained using handcuffs during a transfer between prisons. He seeks declarations that the defendant breached his rights under ss 21 and 23(5) of the Bill of Rights Act,321 as well as public law damages.
[789] Corrections accepts the strip searches and use of mechanical restraints were unlawful. It also accepts that the strip searches were unreasonable in terms of s 21 and that some degree of compensation may be required. However, the defendant denies that either the searches or the use of handcuffs constituted breaches of s 23(5).
[790] Accordingly, the issues for consideration are whether there has been a breach of s 23(5), and the appropriate remedy.
Strip searches
[791] In early 2018, Mr Taylor was required to undergo nine strip searches by prison officers. Six of the searches were carried out between January and February 2018 by staff in the Miro Unit at Waikeria Prison before and after prisoner visitations.
[792] The other three strip searches occurred on 19, 20 and 21 March 2018, before Mr Taylor was transferred from Mount Eden Corrections Facility to the Auckland High Court. Ironically, he was travelling to Court to represent himself before Peters J in a civil claim against Corrections about an unlawful strip search of a large number of prisoners, in which he was ultimately successful.322 I return to that decision in more detail below.
[793] Mr Taylor filed formal complaints about the strip searches in issue in this case which resulted in investigations by the Prison Inspectorate. On 13 March 2018, the Principal Prison Inspector, Andy Fitzharris, wrote to Mr Taylor recording that
322 Taylor v Attorney-General, above n 304.
Corrections accepted the searches at Waikeria Prison were unreasonable. He advised that as a result of the complaint, the Prisoner Director “has reviewed the strip search policy for Waikeria Prison and a new policy is now in place”. Mr Fitzharris also noted:
Mr Cronje has apologised to you on behalf of the Department and you have accepted this apology.
Mr Ekins [a Prison Inspector] informs me that during the AVL you accepted the Department's apology and stated that this would be an end to the matter.
[794] On 13 June 2018, Mr Fitzharris wrote a further letter in relation to the complaints arising from Mr Taylor’s treatment by prison staff at Mount Eden. With regard to the three strip searches there, he said:
It is accepted that staff at MECF incorrectly interpreted Section 98 of the Corrections Act 2004 and the requirement to strip search you whilst being transferred from custody to court was not mandatory.
This issue has been addressed by the management team at MECF and all staff have received guidance on the correct interpretation of the strip search policy.
[795] On 4 September 2018, the Prison Director at Mount Eden, Mr Dennis Goodin, wrote a letter to Mr Taylor acknowledging and apologising for the wrongful strip searches and use of handcuffs by Mount Eden staff. He concluded:
I apologise if the attitude and practices of the officers was humiliating and demeaning for you. That should never occur when staff interact with prisoners. I suspect that in your circumstances, being anxious to “do things by the book”, the officers became more officious than efficient and effective. I am sorry if that was the case. Renewed instructions have been published since the incident reiterating the obligations and responsibilities of staff.
Legal framework for conducting strip searches
[796] Section 98 of the Corrections Act provides for scanner, rub-down, strip and x-ray searches. Strip searches are the most invasive form of search and require the prisoner to remove all their clothes and to follow instructions that will enable the officer to see all parts of their body.323
[797] Section 94 imposes requirements on how strip searches must be conducted. Strip searches may only be carried out by a person of the same sex as the person being
323 At [32]; and s 90 of the Corrections Act.
searched and must be conducted “with decency and sensitivity and in a manner that affords to the person being searched the greatest degree of privacy and dignity consistent with the purpose of the search”. They must be conducted in the presence of another officer or constable and must not be carried out in view of any person of a different sex to the person being searched, or another prisoner.
[798] Strip searches are either mandatory or discretionary. Mandatory strip searches are only required when a prisoner is first admitted to prison or transferred from another prison, and in specified circumstances for at-risk prisoners.324 In all other cases, the decision to conduct a strip search is discretionary. Under s 98(3), an officer may conduct a strip search:
(a) if they have reasonable grounds for believing that the prisoner has an unauthorised item and have obtained the manager’s approval;325 or
(b) in the situations listed in s 98(6) which include, relevantly, immediately before a prisoner is brought before a court, and immediately before or after a person visits a prisoner.326
[799] Importantly, s 98(5) provides that the discretionary power to conduct a strip search may only be exercised for the purpose of detecting any unauthorised item and if it is necessary in the circumstances for that purpose.327
[800] The Court of Appeal has explained that whether a search is “necessary in the circumstances” requires a “very fact-specific inquiry” which must involve consideration of whether a less invasive search, such as a scanner or rub-down search, would suffice.328 Further, any decision must be made in light of two fundamental principles guiding the corrections system: the need for the fair treatment of persons
324 Corrections Act, ss 98(7) and (7A).
325 Section 98(3). Although an officer need not obtain approval where the delay in doing so would endanger the health or safety of any person or prejudice the maintenance of security at the prison: s 98(4).
326 Section 98(6)(g), (h) and (i).
327 Section 98(5). In contrast, there is no such “necessary in the circumstances” requirement for the less intrusive scanner and rub-down searches which may be conducted at any time for the purpose of detecting any unauthorised item: s 98(1).
328 Forrest v Attorney-General [2012] NZCA 125, [2012] NZAR 798 at [14]–[15].
under control or supervision, and the need for decisions about those persons to be taken in a fair and reasonable way.329
[801] Mr Taylor alleges, and the defendant accepts, that it was the officers’ failure to consider whether each strip search was necessary in the circumstances that rendered the searches unlawful in terms of s 98 of the Corrections Act and unreasonable in terms of s 21 of the Bill of Rights.
[802] Against that background, I turn to consider the first issue: whether the searches were also a breach of s 23(5) of the Bill of Rights.
Did the strip searches breach Mr Taylor’s right under s 23(5)?
[803] A breach of the Corrections Act, including the requirements for conducting strip searches, or a breach of s 21 of the Bill of Rights, will not inevitably constitute a breach of s 23(5).330 As noted, determining whether a breach of s 23(5) has occurred requires a fact-specific evaluative exercise.331
[804] For example, in Forrest v Attorney-General, Mr Forest was subjected, along with other prisoners, to a single random strip search for the purpose of finding contraband.332 Chisholm J held that the strip search was a breach of s 21, but not of s 23(5).333 Mr Forrest did not appeal that finding to the Court of Appeal.334
[805] Likewise, in Taylor v Attorney-General, Peters J held that a one-off prison-wide strip search of 209 prisoners, for the purpose of finding weapons and contraband, was unlawful and in breach of s 21.335 However, her Honour held there was no breach of s 23(5), noting that it was a one-off and short-lived search, was otherwise conducted in
330 Taunoa (SC) above n 5, at [31] per Elias CJ, at [181] per Blanchard J, at [296] per Tipping J, at
[386] per Henry J.
331 See the general discussion of s 23(5) above at [34]–[38].
332 Forrest v Attorney-General HC Christchurch CIV-2009-409-2373, l November 2010 at [7].
335 Taylor v Attorney-General, above n 322, at [54] and [60].
accordance with the Act, and did not result in significant or ongoing harm to the plaintiffs .336
[806] A breach of s 23(5) was found in Reekie v Attorney-General, where a prisoner was routinely strip searched over a 15-month period without consideration of whether a strip search was necessary on each occasion.337 Wylie J found that the strip searches were not part of a deliberate policy to reduce Mr Reekie’s resistance, or to dehumanise him, and that some might well have been necessary in the circumstances. Nevertheless, his Honour concluded:338
... the necessity for a strip search should have been considered on an inmate by inmate basis and on each occasion. There is no evidence that staff considered the necessity of the searches or what alternatives might have been available.
On the balance of probabilities, I accept that the routine strip searching which occurred was unlawful, and in breach of Mr Reekie's rights under s 23(5) of the New Zealand Bill of Rights Act.
[807] Turning to the strip searches in issue, Mr Taylor argued that they were carried out pursuant to unlawful blanket strip search policies. He emphasised that Corrections’ repeated failure to comply with strip search requirements, despite numerous admonishments by the courts, is an aggravating factor that demonstrates its disregard for prisoners’ rights. As he put it, “Corrections seems incapable of learning from numerous prior cases where it has breached prisoner’s rights in the most fundamental way”. Such consistent failures, combined with the intrusive and demeaning nature of strip searches and the vulnerability of prisoners, indicate a lack of respect for the dignity of those subjected to the searches.
[808] In response, Corrections denies there were blanket strip search policies. Instead, once the failures to comply with strip search requirements were brought to Corrections’ attention, it apologised and provided additional training and guidance to staff.
337 Reekie v Attorney-General, above n 39, at [265]. The routine searches occurred while Mr Reekie was confined, at various times, in the High Care and Special Needs units at Auckland Prison and Auckland Central Remand Prison. Mr Reekie claimed he was strip searched between two and six times per day, even when he had been constantly with staff, or in a pre-searched area. Mr Reekie was at a significant risk of self-harm and the defendant’s evidence was that routine searches were considered necessary to prevent him from obtaining even the “most innocuous items”.
[809] In the present case, the strip searches might have been permissible under s 98(6) of the Corrections Act in that they were carried out immediately before and after Mr Taylor received visitors, and immediately before he left prison to attend court. The error was the failure to consider whether the searches were reasonably necessary in the circumstances, as required by s 98(5). I accept those failures rendered the searches in breach of s 21 of the Bill of Rights Act.
[810] While Mr Taylor alleged that Corrections had a nationwide policy of strip searching all prisoners in the situations referred to in s 98(6) without regard to whether that was reasonably necessary in the circumstances, there is no evidence to support the claim.339
[811] However, it is evident that there were fundamental misunderstandings about the requirements of the Corrections Act concerning strip searches among the staff at Waikeria and Auckland prisons. Those misunderstandings were not isolated given the consistency with which the strip searches occurred over a three-month period at two different institutions. I also agree with Mr Taylor that it is concerning that such basic failures have continued to persist despite longstanding guidance from the courts about the legal requirements.
[812] I accept Corrections’ submission that the searches were not carried out for an improper purpose, such as demeaning or degrading Mr Taylor. I also accept that Mr Taylor’s sole complaint concerns the failure to consider the necessity of the searches under s 98(5). I also accept that once the errors were brought to the prisons’ attention, Corrections accepted the searches were unlawful and apologised to Mr Taylor. It also reviewed and amended its strip search policies, and provided additional training and guidance to its staff.
[813] Despite these factors, the number and frequency of the searches point to a breach of s 23(5). This was not an isolated incident. The facts suggest the problem was more
339 Under cross-examination, Mr Watson, the Prisoner Director at Waikeria Prison denied that there was a policy of searching prisoners before visits, describing the problem as “a failure by those officers to follow the instructions that have been given”.
likely to be systemic than confined to one or two staff-members who lacked adequate training or who had made a one-off mistake.
[814] Strip searches are inherently demeaning. They involve a loss of privacy and dignity on the part of the individual. They are carried out under compulsion. While Parliament has authorised their use, it has also imposed constraints on the exercise of the power. It is appropriate that those exercising such powers do so strictly within the limits provided to them, and that they are adequately trained on the requirements of law.
[815] While the seriousness of the conduct is nothing like that encountered by Mr Reekie, I am satisfied that given nine unlawful searches were conducted over a three-month period involving the same prisoner, at two different institutions, the conduct is sufficient to constitute a failure to treat Mr Taylor with humanity and with respect for the inherent dignity of the person. To find otherwise would in my view trivialise the right in issue.
[816] Given this finding, the remaining issue is the appropriate remedies to vindicate the rights.
[817] A declaration is the appropriate starting point. There will be a declaration that nine strip-searches carried out on Mr Taylor unlawfully between January and March 2018 were contrary to his rights to be free from unreasonable search and to be treated with humanity and with respect for the inherent dignity of the person contrary to ss 21 and 23(5) of the New Zealand Bill of Rights Act.
[818] The more difficult question is whether any further remedy is necessary.
[819] The ability to award compensation to sentenced prisoners is constrained by the Prisoners’ and Victims’ Claims Act. A detailed analysis of the relevant provisions is unnecessary given the defendant accepts that compensation is likely appropriate in this case. In any event, I have considered the requirements in ss 13 and 14 of the Act and I am satisfied that Mr Taylor made reasonable use of the complaint mechanisms available
to him and that monetary compensation is necessary to provide effective redress for the strip searches.
[820] An earlier tariff case for unlawful strip searches was Forrest. There, the Court of Appeal awarded the plaintiff $600 for two unlawful strip searches that occurred on the same day.340
[821] In Taylor v Attorney-General, Peters J considered that an increased award of
$1,000 per plaintiff was necessary to vindicate the unlawful one-off search, saying:341
... “effective” redress requires an increase in the sum awarded, to bring home to the Department the importance of compliance with the legislation and of heeding what the Courts have now said regarding s 98 on several occasions.
[822] Mr Taylor submits that public law damages of more than $1,000 are required “to bring home to Corrections it can no longer remain indifferent to serious breaches of prisoners’ rights” and to account for inflation.
[823] Given the strip searches in question occurred before the release of Peters J’s decision in Taylor, I do not consider that a further increase in the tariff is warranted by this case. Nor do I consider that any adjustment for inflation is necessary. As the Court of Appeal noted in Gardiner, an arithmetical adjustment for inflation would lend “a false air of precision to the exercise and risk producing an end result that is too high when compared to subsequent cases”.342
[824] That said, I do not consider it is appropriate to view the breach as an arithmetical exercise limited to a breach of s 21. For the reasons above, I have found that the frequency of the searches is sufficient to breach Mr Taylor’s right under s 23(5). I consider that an award of $1,000 for each of the nine unlawful strip searches is appropriate to provide effective redress and vindicate the breaches of s 21. An uplift of
$3,000 is then required to reflect the cumulative impact of the illegality and additional breach of s 23(5). The total public law damages awarded is therefore $12,000. This
340 Forrest v Attorney-General, above n 328, at [41].
341 Taylor v Attorney-General, above n 304, at [93].
342 Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608 at [69].
award also acknowledges the steps taken by Corrections following the breach, including the apology to Mr Taylor and steps to change its policy and training.
Use of mechanical restraints
[825] Following the conclusion of the civil proceeding before Peters J in the Auckland High Court on 21 March 2018, Mr Taylor had to be transferred in a prison van from Mount Eden back to Waikeria Prison. Mr Taylor was placed in handcuffs for the journey, which took approximately three hours. This was so despite his protests that handcuffs should not have been used given his low security classification.
[826] Mr Taylor filed a complaint which led to an investigation by the Prison Inspectorate. Following that process, Corrections accepted that Mr Taylor should not have been placed in handcuffs given his security classification. The Operations Manual prohibits the use of mechanical restraints on minimum and low security prisoners travelling in single-cell vehicles.343
[827] Once again, the investigation prompted a review of the prison’s practices. In a letter of 13 June 2018, the Principal Inspector noted that Mr Goodin, the Director at Mount Eden, “has addressed this issue with the movement’s coordinator and all staff have been instructed to review each individual’s transportation schedule requirements on an individual basis”.
Did the use of mechanical restraints breach Mr Taylor’s right under s 23(5)?
[828] While Mr Taylor’s amended statement of claim made further allegations about the conditions of the transfer, by the time of closing, this aspect of his claim was confined to the use of handcuffs in breach of the requirements of the Operations Manual. Accordingly, the key issue is whether that conduct constituted inhumane treatment in breach of s 23(5).
[829] The reason handcuffs were used on Mr Taylor is evident from the form prepared by Corrections staff prior to the transfer titled ‘Instruction for Escorts for Inter Prison Transfer’. While the form recorded that Mr Taylor’s security classification was “low”, it also identified that he was an escape risk. The ‘active alerts’ section included that he “broke out of handcuffs during escort 05-10-05” and “presented firearms to staff while on escort”. As such, the form recorded that high security handcuffs should be applied to Mr Taylor for the entire route at all times and removed only for meal breaks and at arrival at the destination prison.
[830] The existence of an escape risk appears to be based on Mr Taylor’s escape attempt in 2005, more than 12 years earlier. In my view, that incident was historical and it was not appropriate to rely on it as the basis on which to apply manacles to Mr Taylor a decade later.
[831] As a result, Mr Taylor was unreasonably required to wear handcuffs during the transfer. That undoubtedly would have made the journey more uncomfortable for him. However, I am not satisfied that this was inhumane treatment.
[832] This was a one-off error. The Inspectorate investigated and found that it should not have occurred. Mr Goodin wrote to Mr Taylor to explain why the handcuffs had been used and acknowledged that a mistake had been made. He apologised and noted that “renewed instructions have been published since the incident reiterating the obligations and responsibilities of staff”. While under cross-examination by Mr Taylor, Mr Goodin reiterated his apology, for both the strip searches and the use of mechanical restraints. Mr Taylor accepted the sincerity of his apology and thanked him for it. He was right to do so as it clearly was a genuine apology.
[833] In my view, Corrections’ conduct and response to its mistake was consistent with its duty to treat Mr Taylor humanely and with respect for his inherent dignity. Accordingly, I consider the use of mechanical restraints on Mr Taylor was not a breach of s 23(5). Given that finding, there is no question of damages. And given the apology and the nature of the mistake, I do not consider a declaration is warranted.
Conclusion and relief
[834] For the foregoing reasons, I conclude that:
(a) the strip searches did not comply with the requirements in s 98 of the Corrections Act and were unlawful;
(b) the use of handcuffs during Mr Taylor’s transfer from Mount Eden Corrections Facility to Waikeria Prison was in breach of the Operations Manual given Mr Taylor’s security classification;
(c) the strip searches were unreasonable and in breach of s 21 of the New Zealand Bill of Rights Act. I make a declaration accordingly;
(d) collectively, they also amounted to a breach of s 23(5) of the New Zealand Bill of Rights. I make a declaration accordingly;
(e) compensation of $1,000 for each unlawful strip search is necessary to vindicate the breach of the s 21 right. Total damages of $12,000 are awarded to vindicate Mr Taylor’s rights under both ss 21 and 23(5); and
(f) the use of mechanical restraints did not amount to a breach of s 23(5) of the Bill of Rights.
CONCLUSION AND SUMMARY OF RESULTS
[835] In his statement of claim, and to a lesser extent in his closing, Mr Taylor sought to aggregate allegations from all six chapters to support the cause of action under s 23(5).
[836] An assessment of whether impugned conduct amounts to a failure to treat a claimant humanely requires a consideration of the treatment in its context. It is not generally appropriate to aggregate isolated aspects of detention over a long period to ascertain whether there has been a breach of the Bill of Rights. Such an approach focuses on matters that may be unconnected in time or circumstances, rather than the significance of the impugned treatment within its context. It risks overlooking other treatment consistent with the right. And without context it is not possible to determine whether the impugned conduct amounts to a breach of the s 23(5) right.
[837] Many of the allegations covered in the six chapters are remote from each other, separated by significant periods of time or different circumstances. Some arose in different prisons when Mr Taylor’s security classification, and the conditions of his detention, were very different. All were advanced as discrete claims—the chapters in this judgment—and defended as such. While the first three chapters concern claims that have some relationship to one another, there is no proper connection between them and the events with which chapters 4, 5 and 6 are concerned.
[838] It follows that I would not be prepared to bolster any of Mr Taylor’s unsuccessful s 23(5) claims by aggregating them. Regardless, in light of the findings in this judgment I would not have found that collectively they support a breach of the Bill of Rights.
Summary of result and orders
[839] In summary, I have found:
Chapter 1: Directed segregation and conditions of detention
[840] The Department of Corrections’ failure to provide Mr Taylor with his minimum entitlement to daily exercise while on directed segregation in 2011 and 2012 was a
failure to treat him with humanity and with respect for the inherent dignity of the person contrary to s 23(5) of the New Zealand Bill of Rights Act 1990.
[841] Accommodating Mr Taylor in a cell with an operating and monitored CCTV camera while in the High Care Unit of Auckland Prison for periods of time in 2011 and 2012 was also a failure to treat him with humanity and with respect for the inherent dignity of the person contrary to s 23(5) of the New Zealand Bill of Rights Act 1990.
[842] Declarations to that effect are now made.
[843] In order to provide effective redress, I also award damages of $6,000 to Mr Taylor. I make no order in relation to interest.
[844] Mr Taylor’s claim is dismissed.
Chapter 3: The Truth newspaper ban
[845] The decision to prohibit the Truth newspaper in the East Division of Auckland Prison was an unjustified limit on Mr Taylor’s right to freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990.
[846] A declaration to that effect is made.
[847] No further remedy is necessary to provide effective redress.
Chapter 4: Rehabilitation and parole
[848] Mr Taylor’s claim is dismissed.
Chapter 5: Transfer to Waikeria Prison
[849] Mr Taylor’s claim is dismissed.
Chapter 6: Strip searches and mechanical restraints
[850] I declare that subjecting Mr Taylor to nine strip searches while in the defendant’s custody between January and March 2018 amounted to a breach of ss 21 and 23(5) of the New Zealand Bill of Rights Act 1990.
[851] I award Mr Taylor damages of $12,000.
[852] The balance of Mr Taylor’s claims under this chapter are dismissed.
Costs
[853] Costs are reserved pending further consideration. While Mr Taylor has had a measure of success, in the context of the claims he made it is very limited. I have also found that critical aspects of his case were exaggerated or simply untrue. Mr Taylor is to file any memorandum in support of an application for costs within 15 working days. The defendant is to reply (whether seeking or opposing costs) 15 working days thereafter. Any reply from Mr Taylor is to be filed 10 working days thereafter.
[854] I will then determine costs on the papers, unless I consider a hearing necessary.
Isac J
Meredith Connell, Auckland for Defendant
Appendix
|
COR.002.00069 (OBC)
|
9:29:16
|
Fingers of right hand flex
|
|
COR.002.00069 (OBC)
|
9:30:08
|
Fingers of right hand flex
|
|
COR.002.00097 (OBC)
|
9:31:00
|
Left middle finger flexes then extends
|
|
COR.002.00097 (OBC)
|
9:31:04
|
Left middle finger touches thumb 3 x in succession rapidly
|
|
COR.002.00097 (OBC)
|
9:31:07
|
Right thumb extends
|
|
COR.002.00097 (OBC)
|
9:31:13
|
Left index finger extends
|
|
COR.002.00097 (OBC)
|
9:31:17
|
Left hand and index finger extends, left wrist extends
|
|
COR.002.00097 (OBC)
|
9:31:21
|
Left index finger extends
|
|
COR.002.00097 (OBC)
|
9:31:30
|
Left ring finger touches thumb 2-3 times in succession rapidly
|
|
COR.002.00097 (OBC)
|
9:31:37
|
Left thumb flexes
|
|
COR.002.00097 (OBC)
|
9:31:43
|
Fingers on left hand flex and extend
|
|
COR.002.00063 (OBC)
|
9:32:00
|
Nurse stops doing BP right elbow pointing to the ceiling being held
there
by CO holding his hand
|
|
COR.002.00097 (OBC)
|
9:32:25
|
Right ring finger touches thumb
|
|
COR.002.00097 (OBC)
|
9:33:39
|
Head is unsupported and held in position
|
|
COR.002.00064 (OBC)
|
9:33:49
|
His head is partially flexed but less so than I would expect if he
was
unconscious and being lifted in this position, unsupported
|
|
COR.002.00064 (OBC)
|
9:33:57
|
Head appears in line with his torso despite being unsupported and him
being lifted prone off the ground
|
|
COR.002.00064 (OBC)
|
9:34:05
|
CO ask for assistance to “control the head” which is done with
right arm,
unclear where it is placed. Mr Taylor’s head is still.
|
|
COR.002.00096 (OBC)
|
9:34:23
|
Head moves from right to left to right (as CO is talking to Mr Taylor
asking
him if he understands)
|
|
COR.002.00096 (OBC)
|
9:34:49
|
Solitary forceful expiration through pursed lips
|
|
COR.002.00096 (OBC)
|
9:36:28
|
3 soft snoring breaths, no paradoxical chest movement
|
|
COR.002.00096 (OBC)
|
9:36:45
|
Right little finger extends at PIPJ
|
|
COR.002.00096 (OBC)
|
9:37:14
|
Tongue protrudes (as CO addresses him by name and crouches by his
head)
|
|
COR.002.00096 (OBC)
|
9:37:22
|
Head moves from left to right to left to right - shaking (as CO is talking
to
Mr Taylor asking him if he is alright) then tongue back inside mouth
|
|
COR.002.00096 (OBC)
|
9:38:08
|
Tongue protrudes twice and head moves slightly to right
|
|
COR.002.00096 (OBC)
|
9:38:20
|
Head moves slight to left
|
|
COR.002.00096 (OBC)
|
9:38:37
|
Tongue protrudes
|
|
COR.002.00096 (OBC)
|
9:38:39
|
Upper lip moves slightly
|
|
COR.002.00096 (OBC)
|
9:38:54
|
Tongue retracts
|
|
COR.002.00096 (OBC)
|
9:38:56
|
Swallows
|
|
COR.002.00096 (OBC)
|
9:39:26
|
Head moves slightly then swallows twice
|
|
COR.002.00097 (OBC)
|
9:39:29
|
Torso moves right left right
|
|
COR.002.00096 (OBC)
|
9:42:37
|
Left index finger moves
|
|
COR.002.00096 (OBC)
|
9:42:57
|
Left index finger then other fingers of left hand extend then flex
|
|
COR.002.00096 (OBC)
|
9:45:36
|
3 noisy rapid breaths
|
|
COR.002.00064 (OBC)
|
9:45:38
|
3 noisy rapid breaths on arrival at holding cell
|
|
COR.002.00097 (OBC)
|
9:46:26
|
After handcuffs removed is prone on stretcher, right arm remains in
position until nurse moves it to side of stretcher, taking 2 goes.
|
|
COR.002.00064 (OBC)
|
9:46:41
|
After handcuffs removed is prone on stretcher, right thumb flexes
slightly
|
|
COR.002.00064 (OBC)
|
9:46:49
|
Right thumb flexes
|
|
COR.002.00064 (OBC)
|
9:46:52
|
Right thumb extends
|
|
COR.002.00096 (OBC)
|
9:47:50
|
Tongue is protruding
|
|
COR.002.00096 (OBC)
|
9:48:22
|
Right arm abducted at shoulder and flexed at elbow with hand in fist
on
ground, held in this position independently against gravity
|
|
COR.002.00096 (OBC)
|
9:48:34
|
Right wrist and elbow flex (as BP cuff applied)
|
|
COR.002.00096 (OBC)
|
9:48:56
|
Right hand fingers extend
|
|
COR.002.00097 (OBC)
|
9:48:56
|
Right hand fingers extend
|
|
COR.002.00096 (OBC)
|
9:49:14
|
Left thumb flexes
|
|
COR.002.00096 (OBC)
|
9:49:46
|
Left thumb extends
|
|
COR.002.00096 (OBC)
|
9:49:56
|
Left thumb extends
|
|
COR.002.00096 (OBC)
|
9:50:12
|
Ulnar deviation of right wrist. Right arm and elbow held off floor in
same
position as when BP being done
|
|
COR.002.00097 (OBC)
|
9:50:12
|
Right arm and elbow held off floor in same position as when BP being
done
|
|
COR.002.00097 (OBC)
|
9:50:21
|
Right elbow above wrist as nurse lifts wrist
|
|
COR.002.00097 (OBC)
|
9:50:48
|
Right hand moves forward slightly from position nurse left it in.
|
|
COR.002.00097 (OBC)
|
9:50:50
|
In the left lateral position with his right hand and wrist resting on
the
floor. Right arm and elbow are held off the floor in the same position the
nurse put them in to do his observations instead of flopping
to the ground as
they would if he was unconscious or asleep. This position is maintained
for 2 minutes and 52 seconds
|
|
COR.002.00096 (OBC)
|
9:51:03
|
Left index finger extends slowly over 10 seconds
|
|
COR.002.00097 (OBC)
|
9:51:03
|
Left index finger extends slowly over 10 seconds then flexes back
rapidly
|
|
COR.002.00096 (OBC)
|
9:51:24
|
Left index finger flexes
|
|
COR.002.00096 (OBC)
|
9:51:28
|
Swallows
|
|
COR.002.00096 (OBC)
|
9:51:44
|
Swallows, tongue protrudes further then retracts
|
|
COR.002.00097 (OBC)
|
9:51:48
|
Torso moves back and forth slightly 3 times, supported by his right arm
in
the position it was in after the nurse left
|
|
COR.002.00096 (OBC)
|
9:52:44
|
Right shoulder and head move, turning slightly right then back twice
|
|
COR.002.00097 (OBC)
|
9:52:45
|
Head and torso moves back and forth slightly, supported by his right
arm
in the position the nurse left it in
|
|
COR.002.00096 (OBC)
|
9:52:47
|
Left wrist extends
|
|
COR.002.00097 (OBC)
|
9:52:48
|
Left wrist deviates radially
|
|
COR.002.00096 (OBC)
|
9:52:48
|
Swallows and his eyelids close slightly more, torso slightly to the left,
left hand moves slightly, a noise like “uhhum”
is heard then rolls
slightly more
the right so that the left side of his mouth and nose are on his left
arm.
|
|
COR.002.00097 (OBC)
|
9:52:52
|
Head and torso flex 3 times, then rolls slightly further over to the right,
at
which point right elbow relaxes onto the floor
|
|
COR.002.00096 (OBC)
|
9:52:54
|
Fingers of his right hand extend slightly then a second later his right
index
finger extends a bit more
|
|
COR.002.00096 (OBC)
|
9:54:37
|
Right eyelid closes slightly
|
|
COR.002.00096 (OBC)
|
9:54:39
|
Torso moves left right left
|
|
COR.002.00097 (OBC)
|
9:54:39
|
Torso moves left right left. After CO shakes right shoulder then
stops,
neck flexes and extends twice (after the time shaking happened)
|
|
COR.002.00096 (OBC)
|
9:54:42
|
Swallows, tongue protrudes then retracts twice in 7 seconds
|
|
COR.002.00097 (OBC)
|
9:54:48
|
Right cheek moves
|
|
COR.002.00097 (OBC)
|
9:58:24
|
"mmm" noise and torso moves back and forth 5 times - stops when CO
puts a hand on his shoulder
|
|
COR.002.00097 (OBC)
|
9:58:40
|
Torso moves x 1
|
|
COR.002.00097 (OBC)
|
9:58:48
|
Torso rotates to right with a deep inspiration then expiration as
torso
moves back to the left
|
|
COR.002.00098 (OBC)
|
10:00:08
|
In left lateral position. Torso moves to the right then left several times
(5
times) over 10 seconds.
|
|
COR.002.00098 (OBC)
|
10:05:05
|
1 x deep breath and there is an inspiratory noise (while nurse doing
BP).
Right cheek can be seen moving
|
|
COR.002.00098 (OBC)
|
10:07:21
|
Right hand is palm down on the floor with elbow flexed (point of
elbow
pointing to the ceiling), unsupported
|
|
COR.002.00098 (OBC)
|
10!07!58
|
Torso moves twice rapidlv ‹o the right left right
left with abdomen
protruding rapidly
|
|
|
COR.002.00098 (OBC)
|
10!09!28
|
Right cheek is moving (angle means can’t see his face properly as
from
behind him and he is on his left side)
|
|
|
COR.002.00098 (OBC)
|
10!09!33
|
Torso and head moves right left right, his head flexes and he rolls
his
torso more to the right
|
|
|
COR.002.00098 (OBC)
|
10'09'37
|
Left hand moves slightly in radial deviation then returns to position
|
|
|
COR.002.00098 (OBC)
|
10!10!56
|
Torso and head turn to the right-left-right, his forearm and wrist
also
move. His head then moves independently of his torso turning slight v
left right left
|
|
|
COR.002.00098 (OBC)
|
10!11!28
|
Head starts moving slightly then turns more obviously to the
left-right-
left-right (twice back and forth) then three further less marked turns
left
right
|
|
|
COR.002.00098 (OBC)
|
10:12:34
|
CO asks Mr Taylor if he wants a drink. Head moves to the right then
the
left and a soft grunt is heard. Torso/head turn to the left more, another
soft grunt noise is heard. At the same time his left upper
eye-lid closes
tighter then relaxes remaining shut
|
|
|
COR.002.00098 (OBC)
|
10:20:55
Note som footage a 15!04!36
|
Mr Taylors arm is moved forward his wrist extends. At this time the
nurse
is moving her right hand from his forearm to behind his elbow, wrist moves
from flexion to extension as the nurse shifts her hand
position
* of the footage doesn’t have times. The minutes from the start of
the
e presented.
Sitting upright motionless in a chair. His head is not flexed forwards or
extended back. Rather it is turned slightly to the right.
|
|
|
|
|
||
|
COR.002.00102 (OBC)
|
|||
|
COR.002.00103 (OBC)
|
15!14!46
|
The CO pushes the wheelchair I ' •!v *° ward. Mr
Taylors head does not
change position.
|
|
|
COR.002.00103 (OBC)
|
15!20!28
|
As the chair is lifted head moves slightly
|
|
|
COR.002.00101
(CCTV)
|
1:45
|
Wheeled backwards into a room sitting up in a wheelchair, head
neutral
|
|
|
COR.002.00101
(CCTV)
|
1:54
|
Head position stays constant as wheeled around
|
|
|
COR.002.00103 (OBC)
|
15!21!55
|
Lifted onto bed in supine position
|
|
|
COR.002.00101
(CCTV)
|
2:46
|
Moved onto stretcher, head position stays constant: this corresponds
to
15:21:55 on COR.002.00103 (OBC)
|
|
|
COR.002.00101
(CCTV)
|
16!54
|
Moves right arm up over his chest then his head, so it is resting on
the
stretcher above his head
|
|
|
COR.002.00101
(CCTV)
|
19!32
|
Moves right hand to his face, then behind his head, then shuffles his
body
slightly before putting his right arm onto the stretcher parallel to his
body
|
|
|
COR.002.00101
(CCTV)
|
20!24
|
Shuffles over to left so right arm fully on stretcher
|
|
|
COR.002.00101
(CCTV)
|
21!31
|
Bends right knee and externally rotates right leg
|
|
|
COR.002.00101
(CCTV)
|
21!33
|
Bends right knee slightly more, dorsiflexes then plantar flexes right
foot
and externally rotates left leg slightly
|
|
|
COR.002.00101
(CCTV)
|
22!34
|
Turns to the left slightly and straightens right leg, externally rotates
and
abducts left leg
|
|
|
COR.002.00101
(CCTV)
|
29!02
|
Bends right knee and externally rotates right leg. Then abducts right
leg
and flexes left knee.
|
|
|
COR.002.00101
(CCTV)
|
35!16
|
Flexes then extends right knee
|
|
|
COR.002.00101
(CCTV)
|
38!05
|
Both hands up to his face then flexes head slightly before sitting
forward
and to the right swinging his legs off the bed then standing up and turning
to the left towards the wash basin
|
|
|
COR.002.00101
(CCTV)
|
38!32
|
Stumbles back sIight! v, catches balance
|
|
|
COR.002.00101
(CCTV)
|
38:42
|
Drinking from a cup
|
|
|
COR.002.00104 (OBC)
|
16!08!55
|
At the window of his cell telling the CO that he is an ordinary prisoner
and should not be in an at-risk unit. This indicates he knows
where he is.
Throughout the interaction Mr Tav is lucid and speaking n =•! v.
albeit in a raised voice and making demands of the CO. Mr Taylor
ignores the
CO’s attempts to give him dinner
|
|
|
COR.002.00107 (OBC)
|
16!41!01
|
Informs CO that ”you might be able to get awav with
this shit down here normally but you won’t while I’m
here"
|
|
|
COR.002.00107 (OBC)
|
16'42'06
|
CO informs Mr Taylor that he is in the at-risk unity as he was 'non
responsive in the RO’ Mr Taylor claims "if I hadn’t been
knocked
unconscious by the power of your sta** •• vbe I
wouldn’t have been”. He then goes on to ask to see the police
to lay a complaint
|
|
|
COR.002.00107 (OBC)
|
16:43:09
|
Says he wants to go back to ’Pare’ “because I wanna see
these screws
that knocked me unconscious...they’re gonna end up in court
mate”
|
|
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2022/3171.html
