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Taunoa v Attorney General [2006] NZSCTrans 18 (9 August 2006)

Last Updated: 13 July 2012






Hearing 9 and 10 August 2006

Coram Elias CJ Blanchard J Tipping J McGrath J Henry J

Counsel T Ellis, D La Hood and AC Wills for Appellants

C Gwyn, D J Boldt and B Keith for Respondent



Ellis May it please Your Honours Ellis, La Hood and Miss Wills

Elias CJ Thank you Mr Ellis, Mr La Hood, Miss Wills.

Gwyn May it please Your Honours Miss Gwyn, I’m here with Mr Boldt and Mr


Elias CJ Thank you Miss Gwyn, Mr Boldt and Mr Keith. Yes Mr Ellis.

Ellis Inaudible...This is an important case as must be obvious from the fact that not only do the Crown’s principal law officers but we’ve had retrospective legislation involved as a result of this case. I’d like to make

a comparison with the Badminton Horse Trial. Back in 2000 there was a complaint and another one in 2001 about conditions. The complaint to the prison went to Judge Buckton; Judge Buckton referred it to the Ombudsman; the Ombudsman spent eight or so months investigating it and said I can’t really resolve it, it’s a matter for the Court - that’s 2001. In 2003 a different lawyer, the one on the current team gets instructions to bring a case and he decides to take some action in the District Court; applies for some legal aid and it’s granted. Mr Robinson, the second appellant, decides he doesn’t want that gentleman and asks me to do it. Legal Aid in their grace say that ‘yes you could do this but we would prefer, let’s call him Mr T approach, we will give you a grant of $500 of legal aid to get this matter resolved’. It didn’t really

Elias CJ What’s the point? Ellis The delay.

Elias CJ The delay, oh right, thank you.

Ellis In the context because there’s people listening and we don’t know the ‘ins and outs’ of this

Elias CJ So this is the length of the submission that this matter has been around since 2001?

Ellis 2000, yes, and eventually in 2004 we get off the starting post in the High Court, around we go, it’s almost a clear round, we get round and there’s no fences knocked over, just a few time delays, 20 3.5, so we get a breach of time penalties s.20 3.5. Go the Court of Appeal for round 2. We also get a clear round only this time it’s a little bit faster and we’ve only got 9 penalty points for breach of s.9, and one of the Judges of the five says ‘ooh maybe we should increase the prize money’ but the other four Judges don’t agree so it stands. Also in 2005 and 2006 the organisers of the race decide retrospectively

Elias CJ Mr Ellis, Mr Ellis, this isn’t a game and we don’t see it as a race. Ellis Well it’s an analogy Ma’am.

Elias CJ Alright but it’s an offensive analogy Mr Ellis. Ellis I don‘t think it’s offensive at all Ma’am.

Elias CJ Well I would have thought it was offensive to your clients.

Ellis No it isn’t. There’s a complaint lodged about the rules being changed after the race is finished, there’s another fence put in that you’ve got to jump over after the race is finished – the Prisoners and Victims Compensation Act, complaint to judiciary and judiciary consider whether the game’s been rigged, and that’s not a fair game, no you can’t discuss that. Well as I put in my written submissions the state of human rights in respect of New Zealand prisoners hasn’t advanced beyond 1993 Zimbabwe. At least the Judges there had the courage to stand up to the Government and say this is wrong and that’s what one comes here for today and it is not offensive to make an analogy.

Elias CJ With Zimbabwe?

Ellis With anywhere. We have a culture of impunity brought about alas by probably the only other case where compensation has been awarded for more than one person - the Mangaroa case - where compensation was awarded after High Court proceedings were issued and some negotiations. The Attorney-General on behalf of the Government made an apology to the four people suing and then next day that apology was sabotaged by the Minister of Justice saying ‘these people are scumbags, I won’t give them anything’ and the Cabinet got involved and that culture of prisoners as scumbags unfortunately entered into the New Zealand psyche which has unfortunately been taken up by Parliament itself saying that these prisoners’ right should be retrospectively reduced. Anyway I’m going to address my yellow submissions now. Before I do that I’ve handed you up volume 8. It doesn’t have a great deal in it to challenge anybody but I’ll just briefly mention what it is so you’ve got the context of it. If you look at the index to that volume it’s got (a), (b) and (c’s) to make it easier to follow down the side, blue cover, (a) to (j).

Elias CJ I’m sorry blue cover 8.

Ellis Blue cover 8, it’s got (a) to (j) on the tabs to make it easier to find. (a) to (f) are various of the appellant’s submissions in the Courts below to rebut material in the Crown submissions. There’s some additional materials there from the CPT standards – Committee for the Prevention of Torture. At (h) there’s some various historic Prison Acts showing the amount of time allowed in solitary and medical conditions. So going back to the United Kingdom Act of 1877, our own Act of 1882, instructions for Medical Officers from the Home Office of 1888, the New South Wales Piracy Act, the Prisons Act 1908, an Irish Act of 1840, culminating in the European Prison Rules, the 2002 reprint, which is really a copy of, for present purposes, the standard minimum rules. There’s two new communications from the Human Rights Committee which supports the proposition about investigations and burden of proof and in my detailed submissions whilst I’ve general comments of the Human Rights

Committee, jurisprudence from the European Court and the inter- American Court, there’s no views of the Human Rights Committee but these two views from March 2006 say the same as all the other jurisprudence but they are now the jurisprudence of the Human Rights Committee, and then I’ve extracted, which I forgot to do

Elias CJ That’s at (i) is it? Ellis (I) and (j).

Elias CJ (I) and (j), yes, thank you.

Ellis As I was saying I will take you to them in due course. In (k) there’s the Human Rights Manual in the administration of Justice which hopefully you’ve all got or seen – there’s certainly one in the library. This is a UN publication - a manual on human rights for Judges, prosecutors and lawyers. It’s 2003, but it is useful and I enclose much of chapter 15 in relation to at (k) Protection and Redress for Human Rights there and would particularly draw your attention to page 779 of that. There’s a little indented bit in italics there with the bold words ‘the legal obligation comprise the duties to prevent, investigate, prosecute, punish or redress’ so I’m trying to take the global approach there. And then last but not least, it’s not on the index I’m afraid because I only found it yesterday afternoon, but stapled to the back is a part of a report from the Committee Against Torture in respect of Hong Kong. As you will see at the top there it’s dated18 July 2006, so it’s very recent and page 39, that’s the first page after the cover there, tells you that investigations follow receipt on the same day. Investigations are certified under international management standards, IS9001 and it takes full account of the United Nations standard rules. The treatment of prisoners and the Complaints Committee either confirms or directs something else and the Committees are chaired by a civilian, the prison Chaplain and soforth. It ensures transparency; there’s a two-tier mechanism so you can have it re-examined and any further appeals go to the Commissioner and then they can go to the judiciary.

Elias CJ Sorry, but who’s minimum handling standards are these? Ellis This is Hong Kong.

Elias CJ Oh I see, thank you.

Ellis Hong Kong, Hong Kong standards and this is an illustration of a proper investigative system. A prompt and effect system new day, not six years later. Right, so taking you to my yellow submissions the principle of the prohibition of inhumane treatment has now in my submission reached a peremptory norm or jus cogens rule of international law so it’s at the

highest status of international law and I suppose after the Court of Appeal decision one looked at it and thought well okay are we going to go any further or are we not going to go any further and it’s been a long haul and they sort of looked at it and that very same day the decision of the House of Lords in A v Secretary of State came out which in my submission was poles apart from the approach that the Court of Appeal’s taken which spurned on this appeal but it did importantly perhaps for the first time engage in an analysis in a superior Court of the detailed provisions of the Convention against Torture which one had been trying to engage in in the High Court and the Court of Appeal but without a great deal of success, but Their Lordships of course managed to articulate the proposition much more firmly than I could and that is a very useful case, and I’ve put extracts from it later on and as you will see we’ve been moved on to an analysis that we didn’t do previously of the jurisprudence of the inter- American Court of Human Rights because it’s difficult to translate from the Spanish if you don’t speak Spanish but fortunately my junior does so we’ve been able to include some of the jurisprudence from there which is added and this has been a basis for the formulation together with (a) the Secretary of State for that first paragraph. But unlike the Mangaroa case we’ve had no apology in respect of what’s happened in this case and the battleground seems to have become compensation. Well as you have gathered from the overall submissions, compensation is only one aspect of it and it is not enough. And Lord Cooke there dissenting and Justice Henry being in the majority there said ‘self-evidently every human being has a natural right not to be subjected to inhuman treatment, a right inherent in the concept of civilisation and that recognition needs to be enforced in New Zealand and the public abhorrence, or a part of the public’s abhorrence to the rights accorded to prisoners, needs to be put firmly in its place’. Now turning the page, whatever violation is an issue a Court will not fulfil its function without a careful examination of the facts in each and a global assessment of the treatment in question. And Lord Cooke refers to the austerity of tabulated legalism which I take up by suggesting that both the approach in the lower Courts have been that, and not a proper and full global assessment of human rights. And then one asks where has our civilisation evolved to from the famous American conceptualisation of this, the evolving standards of decency that mark the progress of a maturing society, there at para.5 and then I give one of perhaps two examples, or maybe three of a proper investigation – there the English Justice Keith in last month’s Zahid Mubarek enquiry quotes from Churchill ‘societies are judged by the way they treat their prisoners and if more resources are needed to ensure that our prisons are truly representative of the civilised society which we aspire to be, nothing less will do’. And that must be about 80 years old that statement, and it needs to be applied with some dignity in New Zealand but where have we evolved? Well His Honour Justice Keith considers the virtual prison and the disconnection between reality and what’s actually happening and that’s

I think a reflection almost of what the Ombudsman in his investigation into the prison system in 2005 found the reality of what was being reported in the Department’s annual report and what the staff thought was different and I need to pause for a moment and actually mention this Ombudsman’s report which mentions several times in my submissions just to get the context of what it is not rather than what it is. So the three Ombudsmen made a report to the House in December of last year entitled

‘Ombudsmen’s Investigations on the Department of Correction in Relation to the Detention and Treatment of Prisoners’ and on page 5 of it he says

‘this report is not a philosophical analysis or critique of the prison system legislation or policy, rather it takes into account how we found the functional operations of New Zealand prisons. We have taken the legislative prison’s governing systems given whilst noting the United Nations standard minimum rule’, and his terms of reference included having regard to three things – the prison riot in 1998 at Auckland prison, the prison in question; the establishment of the Goon squad in Canterbury in 1999 and 2000 and as he puts it the Ombudsman’s investigations about the establishment of the BMR.

Elias CJ Excuse me, what are you taking from the report? I just want to know where the submission is heading.

Ellis The submission is explaining this report is not an investigation in the terms that one’s describing an investigation.

Elias CJ And that you’re seeking here, yes? Ellis And we seek an investigation.

Elias CJ Alright, well

Ellis He says, and I’ve got one last line to read of it and then you would grasp it I think - ‘It is not intended to reassess particular individual historic complaints or allegations but to investigate current practices and procedures in relation to the detention and treatment of inmates’ – so his report cannot be, if it is suggested by my learned friend, as an investigation, it’s no such thing, it’s an investigation of prison conditions in 2005, not 200 but it’s a valuable addition. And Lord Steyne I think perhaps captured, perhaps the public perception of this in his Higgs statement set out at the top of page 6 in para.7. ‘One cause may be

Elias CJ Mr Ellis we have of course read through all of this so if there are additional points you wish us to take from them or matters of emphasis of course feel free to do so, but we have read this material with some attention.

Ellis I’m pleased that’s happened and I am skipping bits as you will have gathered but I think this is an important one. I don’t think I’ve yet read an entire paragraph at all and I don’t propose to. Anyway one cause may be awareness on Judges of certain public attitude. Most people would find a day spent in conditions which these men have endured distressing and degrading yet it’s not uncommon for persons invited to consider whether such treatment is acceptable for others to remark that after all they are murderers and Mr Taunoa is of course a murderer. In Human Rights law its elementary but that doesn’t matter and that’s what this case is all about. The Council of Europe says the same thing and then going back to Lord Steyne I have set out the paragraphs about Zimbabwe which obviously Your Honour has read from our little exchange earlier and I don’t for one moment renege on them, I say that that is the situation. Our Courts have not yet reached the standard of the bravery of the Chief Justice of Zimbabwe who did in this case and I appeal to you to reach that standard and not approach the case in the way that it has been in the Court’s below which has been an approach of tabulated legalism. And I give as an example for that the exercise propositions in Justice Young’s judgment at the bottom of page 7 there ‘if they wanted a yard, they’re just to exercise outside. They were locked up 22 or 23 hours a day’, and at para.120 on top of page 8 there ‘Mr Taunoa in his 761 days on the Behavioural Management Regime had 21 yards, i.e. he was allowed outside for exercise on 21 days. Mr Robinson had 29 yards in a year’. Well then I postulate at para.12 how can it be that 21 hours of outside exercise in two years for Taunoa or 29 hours in one year for Mr Robinson merely rates as a breach of a regulation or is inadequate and not a fundamental denial of human rights, and this appeal if a full grant had been make would have tackled that attitude and impunity on the failure for anybody to be brought to justice. Whilst there are five appellants before the Court there’s some

200 who also suffered the same sort of thing that they did, 40 plus await proceedings in the High Court. We shouldn’t have to go through all this again, we should have an investigation, and we shouldn’t clog up the Court system with multiple repeats of this. Para.17, an urgent call from the United Nations Committee against Torture established under the Convention has called for an investigation. That’s at the top of page 10. I’ll just put this in context, every supposedly three years there’s a periodic report, some of them are delayed as this one was, probably through no fault of New Zealand, there was probably just a backlog, and every nation who’s a signatory is required to report on its compliance with the Convention Against Torture. It did so and probably for the first time there was a series of shadow reports from non-Government organisations, including one from Civil Liberties and Margaret Bedgood who many of you may know’, she was there on behalf of Amnesty National Council of Civil Liberties and so on, and the third one Mr Zaoui, yes, and the Committee being aware of and having before it as is obvious from the High Court decision in Taunoa nevertheless said carry out an inquiry, so

the High Court decision is not an inquiry. The Ombudsman’s decision is not an inquiry. There has been no inquiry and the simple solution to most of what I’ve got to say is to order an inquiry and made sure that it happens, i.e. supervisors, and require that they report back within 12 months or whatever. So we’ve already had that international concern expressed and of course there has still been no inquiry because that was 2004 and we’re now two years further on. So on that basis starting at para.22 ‘immediate judgment is sought on the basis that there has been no inquiry and in the absence of any inquiry there must be a presumption that the State has committed the wrong alleged and we set out there an extract from the Spanish of the Garcia & Peru decision of the 6 April Inter-American Court of Human Rights. There is a presumption that the State is responsible for the torture of cruel, inhuman or degrading treatment alleged by a person who has been placed in the custody of State agencies. If the authorities have not carried out serious investigations on the acts of those who appear to be responsible for such acts’. Well there has been no investigation despite repeated requests for it.

Elias CJ Well that was the subject of your application for amendment to the pleadings so the Courts below treated it as not a matter that was before them.

Ellis Well that may have been how it started in the High Court but when we got to the Court of Appeal my principal attack was to say well never mind whether the pleadings are amended or not, it is a part of s.9 and that was my principal submission so I think that’s wrong Ma’am to say the Courts, I think you could say the High Court took that proposition because certainly I hadn’t appreciated at the time the jurisprudence that seemed to eventuate in this decade from the European Court on it, but

Elias CJ Then your complaint about the Court of Appeal buys back into your argument that they should have decided this under s.9?

Ellis Yes.

Elias CJ Yes, and it’s only if you cross that hurdle we’re into what remedies should be provided.

Ellis Well that’s one way of postulating it. I wouldn’t have said that, I would have said even if one didn’t go past s.23(5), we’ve still got to have an investigation because the Convention Against Torture articles 12 and 13 require it as does the practice of States internationally.

Elias CJ And yet that wasn’t relief that you sought in the proceedings originally and your application for amendment to the pleadings – I’m just trying to

understand the sequence – your application for amendment to the pleadings was not accepted?

Ellis Yes that is correct. Yes in my blue volume 1

Elias CJ Yes I have it in front of me.

Ellis The sequence of events I want to get to is at tab 14 but while I’m here we’ll do the earlier ones. At tab 10 there’s Mr Robinson’s complaint of the night of the 9 October 2000. At tab 11 there’s importantly the visiting Justice, Judge Buckton, whose

Elias CJ Oh sorry I was looking at the case on appeal volume 1. It’s your authorities is it?

Ellis Blue 1 Ma’am, yes sorry. Elias CJ Is it tab 10 and tab 11?

Ellis Yes tab 10 was Mr Robinson’s initial complaint and tab 11 is moving it along and it’s a little easier to follow because it’s short. His complaint to Judge Buckton moves it to the Ombudsman and my submission would be the only person who could lawfully carry out an independent and impartial inquiry would have been a Judge as visiting justice because he has power to summons and soforth. But anyway he didn’t do it. He passed it to the Ombudsman who then said no, no, I’ve looked at this as a matter of statutory interpretation but the Courts have got to go further, so nobody’s actually treating it as a complaint about the conditions. It’s become a matter of Mr Taunoa, tab 12, saying he’s going on hunger strike because of this and this actually now invokes the world’s torture poor and unusual, not that one has to, even without an invocation of those words, it’s the duty of the State to investigate.

Elias CJ Now I understand that these complaints have been made and requests make for investigation and I understand your submission that the matter has never been investigated, I’m asking you rather about the Court constituted proceedings and I’m asking you whether my impression is correct that in your initial statement of claim, or the claim you went to trial on, you didn’t seek an inquiry that was the subject of the amendment to the pleading which was turned down?

Ellis Well yes I did say when I started this that I was going to get to para.14, which was addressing that but I wanted to get the sequence because you said you were trying to understand the chronology.

Elias CJ Yes, I see, thank you.

Ellis I’ve nearly got to 14 which will address you and then at tab 13 we’ve got the Ombudsmen’s decision which is readily easy to be seen is an exercise in statutory interpretation and he says on the second page of that down the bottom ‘the Ombudsman’s jurisdiction doesn’t extend to making precise judgments of law’. Well he could have of course sought a declaration under this Act but we’ll get to that if we have to. So then we get to Your Honour’s direct question in tab 14. Now this is in relation to these proceedings, so in the middle of 2003

Elias CJ Sorry when were the proceedings first instituted?

Ellis We’ll find that out, but it was long before this, it was 2002 I think. Elias CJ Yes, alright that’s all I need to know, yes thank you.

Tipping J It’s CP133/02.

Ellis 02, yes that sounds right so I think I’m right in saying at this time in 2003 it was sat down for hearing in whenever it was, August, September, I can’t remember when it was but anyway I was overseas and I came back for this and I gave this to Mr France who was counsel at the time and asked for an investigation and set it out in detail in a long letter. So an investigation was sought. I followed that up a month later on the 12 May quoting the United Nations Human Rights Committee general comment 30 also in support of that so this is now a covenant breach as well as a convention breach. Regrettably as you’ll see at tab 16 the letter got lost and Mr France quite properly apologised for that and I didn’t make any point of him losing it because what I was complaining about was systemic delays. I mean anybody can lose a letter. It was systemic delays that were the problem not that. But what I did object to was the Attorney’s letter at tab

16 and this is of course the context to the amendment, so six months before I had asked for an investigation I advised Mr France that I would be opening on this and the Attorney says at tab

Elias CJ Sorry where does it say that you’re opening on it?

Ellis You’ll have to take my assurance that that’s what I told him. I can give you a copy of my opening if you like.

Elias CJ No, no, in its terms, we don’t need any more material. Ellis We don’t need any more material.

Elias CJ In its terms it’s a letter asking the Crown to undertake an investigation and that’s the way it’s responded to by the Attorney who mentions the Ombudsman’s investigation which you say wasn’t an investigation.

Ellis Well yes, but it’s the 9 October when she responds and she says ‘I understand that you advised your letters were never forwarded to me so the Government was unaware of them’, which I say a first year law student would know is untrue, a counsel’s got them in proceedings, she’s got them, she cannot pretend she hasn’t got them but by then it’s too late because the proceedings were going to start on I think it was the 13th or

14th, I can’t remember, but a few days later anyway. So within that context I sought an amendment but it subsequently occurred to me that it didn’t need an amendment and whilst it didn’t get an amendment I nevertheless advanced propositions that we should have had an investigation and we didn’t have one and in terms of the Court of Appeal case that was the principal ground in advance, and it’s now advanced here again in much stronger terms than it was in the Courts below so hopefully that explains the contents of that.

Elias CJ You just said then that you didn’t require you thought an amendment to your pleadings. Is that because you say if a finding of breach of s.9 had been found you would not have been precluded from absence of pleadings from seeking a direction that the Crown undertake an investigation. Is that the point that you make there?

Ellis Not really, the proposition I think is that, um I have to find the convention, I think it’s in 47, I can’t remember, hold on, yes it is it’s at tab 47 of my blue propositions. So in respect

Elias CJ Sorry what volume is it? Ellis Volume 5 Ma’am.

Elias CJ Thank you.

Ellis So that’s the Convention against Torture and if you’d look at articles 12 and 13 there’s an obligation on the State to have an investigation so regardless of whether I have asked for it or not I say it should have happened and so I was really saying that because of the jurisprudence which I’ll refer to later in my submissions as Assenov and somebody else in Bulgaria – the two Bulgarian cases – where it’s not in article 3 of the European Convention that you need an investigation, it’s more or less in words of our s.9 that the European Court have said ‘if you don’t have an investigation it renders the rights preventing torture nugatory that the same must apply for s.9, so as a matter of law there should have been an investigation. You don’t need to make a complaint but there have been

numerous complaints so the State have a duty to investigate and they’ve consistently failed to investigate and even now the Committee Against Torture itself has said have an investigation into the events that led up to the High Court case in Taunoa and then we won’t have another 200 of these to do. So on the basis of the jurisprudence and the article 3 jurisprudence in particular which imply that my approach in the Court of Appeal was well you must have one because we are signatories to the Convention against Torture so it’s not implicit it’s explicit that we must have it and it must follow that it’s within s.9, but given Your Honour’s question about am I saying if I don’t reach the threshold of s.9, it hadn’t occurred to me that I wouldn’t, but to cover the field regardless of whether at s.23(5) whether it’s section anything. There is an absolute State obligation to investigate.

Elias CJ If you can’t

Ellis Because the failure to investigate is a breach of Elias CJ If you come within the Torture Convention. Ellis Yes.

Elias CJ Yes, thank you, and you say that s.23(5) breach necessarily comes within the Convention?

Ellis Yes of course it does, yes because this one looks at Article 16 that we’re talking about - other forms of cruel inhuman degrading treatment or punishment. Article 16 says ‘in particular the obligation contained in Articles 10, 11, 12 and 13 apply, so regardless of whether it’s torture or anything less than torture it requires an investigation, so a failure to have an investigation must itself be a breach of s.9 or 23(5) as well as the Convention and whether they’re pleaded or not, it’s not a pleading point it’s a matter of substantive law and it’s a matter of significant law, I mean the Convention against Torture is not as if we’re talking about a Convention about apples, I mean this is a matter of fundamental human rights. And there were numerous pleadings as Mr La Hood reminds of breaches of s.9 and 23(5), and there was clearly an attempt to get the Attorney-General to investigate as well which didn’t happen due to unfortunate error. Anyway I’m back to page 11 of my submissions, so I would now amend that at para.24 to say that ‘the absence of investigation means a breach of jus cogens and a breach of other international and domestic obligations and where it says s.9 I would say s.9 and 23(5). But even if it wasn’t a breach of those it’s a breach of jus cogens and a customary international law on the common law, it’s a breach of absolutely everything. And then the Assenov quote that I referred to you just a moment ago is set out there at footnote 17.

Elias CJ Excuse me, does your submission entail saying that whenever there is a breach of s.9 or 23(5) a Court hearing a claim has no option but to grant, or to require an investigation, it can’t simply deal with the matter within the terms of the litigation, is that what you’re saying?

Ellis No, not as firmly as that. What I’m saying is that if it is possible and I don’t concede that it is, if it’s possible to waive that right and decide you want to do a Court case alone I don’t know whether you could waive a public right such as that – well let’s imagine you could – then fine, but there is a juridical duty on all the Judges to ensure that there is an investigation. That is why we actually have the Convention against Torture to ensure that this happens. Those are the principal enforcement provisions of that Treaty and to ignore it as the European Court says at the bottom of the page there ‘if this was not the case the general legal prohibition against torture and inhumane and degrading treatment will be ineffective in practice. It would be possible for the agents of the State to abuse their rights of those they control with virtual impunity’, so the entire Human Rights Courts and Tribunals of the world are in unison in saying that, so that yes if somebody comes to Court having said I want an investigation and they haven’t had one then the Court is duty-bound under the domestic legislation, the international covenant, the convention, jus cojens and everything else I’ve said to ensure that there’s an investigation and putting that in its context Ma’am the optional protocol to the

Elias CJ Well you can certainly go to the UN Human Rights Committee with that submission if that’s what you were taking us to the optional protocol for.

Ellis No I was just going to explain the optional protocol and it’s a fact of domestic procedure because we’re almost there, because the optional protocol I think I said in here, I can’t remember, there were 18

Elias CJ Yes you quoted from the President of the Court of Appeal there in an extra-judicial speech I think it was wasn’t it?

Ellis No, no, I see, we’re on the wrong optional protocol Ma’am. You’re on the optional protocol to the covenant; I’m on the optional protocol to the Convention Against Torture.

Elias CJ I see, yes.

Ellis There is legislation before the House that’s been through the Select Committee stage and it’s waiting for a report back that we adopt the optional protocol and that means that following the practice of the European Committee for the Prevention against Torture, they’ve adopted their protocol, an International Sub-committee of the Committee Against

Torture will come to New Zealand at regular intervals and will investigate conditions of detention in mental hospitals, detention centres, prisons, police stations and soforth and measure us up against the international standards and part of the protocol requires a mirror image type proposition set up with a national preventative mechanism so the Government will need to set up national preventative mechanisms, one or more, which people like Mr Taunoa will make a complaint or go to that independent national preventative mechanism and be investigated, so it shouldn’t come to the Courts first because the proposition for these things as set out in the UN principles, the Istanbul protocol is to collect the evidence that you can go to the Court with so the Courts shouldn’t be troubled at first instance, there should be like the Arbour inquiry we had, the Zahid Mubarek inquiry, we should be having those first and then the litigation comes later, and that system is almost in place in New Zealand, not quite because of the legislation, but the protocol, I think I said in here, that protocol had 18 signatures and it needed 20 to be brought into place. It has now got 20 so that optional protocol is in force so as soon as our legislation is passed we will be signed up to that and hopefully the problems that have arisen here won’t happen again in a year or two but what’s got to happen is correction of the errors that have occurred here Ma’am.

Elias CJ Yes, but in the meantime If you’re right that the breach of s.9 and the breach of s.23(5) required an investigation and if the Courts don’t provide that as a remedy then you have the ability to go to the UN Human Rights Committee under that botch in the protocol as of now and take the complaint that there hasn’t been an investigation.

Ellis Well yes that’s quite correct. One’s got the option to go to the Committee Against Torture or the Human Rights Committee. We’ve already been to the Committee Against Torture informally and said look there’s been no investigation and that Committee has already said to the Government of New Zealand, hold an inquiry and turn to the top of page 10 of my submission ‘carrying out an inquiry into the events that led to the decision of the High Court in Taunoa.[et al] case. So Committee would suggest that you take extreme recognition of that and do something about it. If you want to say the Courts of New Zealand are going to turn their nose up at Committee Against Torture then it’s a sad day for human rights in New Zealand and indeed I would repeat my submission about Zimbabwe Ma’am. I mean it can’t be clearer than that. The Committee have already said it and the Canadians had the Arbour inquiry, the British we had that one, there’s nothing startling in this. Right as I put at 28 the remedy is in the States hands, and the real problem I suppose about the absence of the investigation is of course that you can’t collect the evidence and what they say to us is ‘oh excuse me you came along and said these people have been psychologically tortured and you haven’t succeeded on this’. Well of course you haven’t succeeded because the evidence that supports that

proposition if any is in the State’s hands and by refusing to have an investigation you’re unable to advance your claim so they get it both ways, they don’t have an investigation and you’re unable to prove your case and that’s really not on and I suppose I said

Elias CJ And that’s why you don’t engage with the Crown to any extent in their cross-appeal because you say you’re entitled to an investigation of the facts.

Ellis Yes because I think if we put it like this Ma’am in my opening to I said even if you don’t believe a word of what my clients say which was effectively pretty much the case, we’re still going to win the case because the paper work and the indisputable facts speak for themselves but if we actually had an early investigation we could have gone further but we’ve lost before we’ve started because of the absence of an investigation, so the level of compensation that we’re entitled to is a lesser one than we would have hopefully been entitled to if we’d had the proper investigation as required by domestic and international law, so what’s the point of arguing about what the level is, I mean we’ve got our hands tied behind our back and we’re blindfolded so we don’t as you correctly say, don’t really engage in that argument because it’s not a level playing field. So I’ve probably dealt with commenting but I see Your Honour at para.36 we’ve got two optional protocols, I’m sorry I’d forgotten. I’m on para.39 now. There has been some legislative change brought about not by, as the Crown say, there being wonderful and introducing legislation to minority parties but some lobbying brought about the changes, but things have significantly improved, and then we have at para.40 there’s supposed to be all-parties support which you’ll appreciate was rare in this day and age for an independent prison inspectorate and that’s I understand being researched in the Justice Department, so things may hopefully improve. And then at para.41 touching on the non-engagement issue, reparations have been meagre in that there’s still no apology, no Prison Complaints Authority and any compensation is now frozen by operation of law by this retrospective piece of legislation so after we’ve finished the horse jumping they put another fence up. So can I turn to leave consideration and I think there was some suggestions that the goal post had moved on the question of Mr Taunoa’s disciplinary offences which I vigorously dispute. This has always been an issue of some significant concern because it goes to the heart of how the BMR was operated, so in my late edition, volume 8, blue

8, 1(A), (a) to (k).

Elias CJ I’m sorry I missed the reference, what is it?

Ellis Blue volume 8, in the tabs which are (a) to (k). At tab (a) there is an extract from the written opening in the High Court. In para.68 there ‘how the gross inhumanity of a Judge imposing ten days solitary for possession

of a cigarette when already in long term solitary can be justified when possession of a plastic knife received seven days and the standard internal disciplinary punishment for cannabis, a criminal offence, is three days confinement, three days loss of remission, 14 days loss of privileges, remains to be seen’ so it was certainly raised at the earlier stage and at tab (e) in that bundle, para.178, ‘His Honour was wrong to conclude possession of a cigarette etc’ and then it sets out on the next page the body of principles and whether you can use the evidence in any event which is of course now strengthened by the AN Secretary of State argument and, well there’s four pages of it, so it was clearly an issue in the Court of Appeal, it very clearly was and I’d repeat that here to isolate it out and say no you can’t have leave on it because regrettably we didn’t have an opportunity for oral submissions when we might have been able to articulate it a little fuller. I can see

Elias CJ But he must be right mustn’t he Mr Ellis that the Court wasn’t dealing with, there is an appeal process in terms of the actual discipline proceedings. Really what you were arguing about in this case is the whole regime and whether the restrictions it imposed, including the no cigarettes restriction, breach section 23(5) and section 9.

Ellis Yes but there was a specific pleading wanting certiorari quashing this.

There was a judicial review of this which the Courts say no there wasn’t and it’s

Elias CJ So was that what you just took us to? I didn’t appreciate the significance of that. Where in the pleadings is there a claim for quashing the outcome of the disciplinary proceedings?

Ellis Case volume 1, tab 4, page 45 which is set out in my submissions at para.18. Well let’s shift on a bit and it will be obvious.

Elias CJ Oh I see, (e), the punishment imposed were unlawful.

Ellis Yes, the declaration that punishments imposed for disciplinary offences were unlawful and an order of certiorari quashing.

Elias CJ Yes Thank you.

Ellis And just going back a little if I may to my 16, what I’m saying is there should be a totality approach and a hard look approach at 17, and then I take you to the detail of this Ma’am at para.55. If superintendents impose three days for possession of a cigarette and lighter and Judges 10 days, it’s become a norm and Simon France as he was advised by the Courts that this form of cellular confinement was used hundreds if not thousands of times a year and if one reads the statement of defence it’s clear that Mr

Taunoa whilst he was in his behavioural management regime, manages to get 56 days of cellular confinement, solitary confinement, for various charges for 56 days. In my submission it is a norm and it is deeply disturbing that it’s used so much and if its got the approval of the Judges at the District Court level well it’s not surprising that the Department set up a regime like they do and that was why it was so important, and I’ve set out at para.61 there, the paragraph that we’ve just been to in the pleadings, and I then set out an analysis from, I’ve never really had to quote Graham Taylor before, I have on this occasion and say that it’s sheer pedantry to say this isn’t a judicial review and then I say at para.65, and I wanted to add a little to that, that what it really is, is three simple legal questions. Can you impose a sentence on somebody who is unlawfully held in a BMR regime for breaking a rule in that unlawful regime and I wanted to add a subset to that because if you can keep your finger on page 19 and also move to the Crimes Act which is in tab 3 which I can’t find, tab 3 of what, volume 1, I’ve lost volume 1 somewhere1

Elias CJ Tab 3 is the Penal Institutions Regulations I think isn’t it. Ellis Well the Crimes Act, my memory fails.

Tipping J Tab 3, volume 1, Crimes Act 1961, s.17? Elias CJ Oh I’ve got the wrong one.

Ellis Yes that’s right Sir, thank you. Tipping J So which volume?

Ellis Volume 1, sorry, yes volume 1, tab 3 which was part and parcel of the argument about solitary as well but it’s a nice way to illustrate it. It’s not very long. ‘No offender shall be sentenced to solitary confinement. Nothing shall be construed to limit or to alter the provisions of the Penal Institution Act in respect of offences against discipline’. Well it cannot be an offence against discipline to breach the rule regarding smoking a cigarette in a regime that is unlawful when if you were in the ordinary D Block in maximum security you’d be allowed to smoke, so you’ll be

Elias CJ Well that’s really why I said that your complaint is that as part of the system they weren’t allowed to smoke and that’s one of the circumstances which goes to your overall submission is this is breach of s.23(5) and s.9.

Ellis Well my submission is far more than that Ma’am. My submission is that it has become a norm for District Court Judges to impose cellular confinement, solitary confinement for minor offences which creates an atmosphere where there’s behavioural management regime fostered, and it

is wrong and it is implicit in why the regime can’t, it’s not just a breach of s.9, I mean it is offensive.

Elias CJ Well that’s why you’re seeking judicial review as well but sorry I’m just trying to un-package some of the distinct legal issues here and it occurs to me that even if you’re right and the Court was properly seized of judicial review and a claim that sentences should be quashed, wouldn’t we be in the territory that it might be open to the Court if they looked at the matter to conclude that that is discretionary relief, the sentences have been served, there was the opportunity for appeal not taken within, or judicial review of the particular decisions and that relief should be declined?

Ellis Well that’s a theoretical possibility but if you’re detained in a regime like you were, if you complained worse things happened to you. I mean that proposition Ma’am has an air of total unreality if I might use Lord Hoffmann’s words

Elias CJ That’s fine, I’m happy with the answer. I just wanted to make sure that that’s the sort of legal issues that would have to be canvassed.

Ellis Well the only right was a judicial review and as Mr Taunoa as we saw couldn’t even get the answer to what he was doing in the BMR regime without the help of the Ombudsman for eight months, his chances of getting a judicial review are like flying to Mars, and it was an issue in both the Courts and what it effectively amounts to in my submission Ma’am is if you don’t deal with it, it is a denial of the only right of access that Mr Taunoa had and it’s not just because he’s got 10 days because of the cigarette, it’s the symbolism of it that is important. It sends a message that this sort of thing shouldn’t happen. It creates an atmosphere and it’s vitally important and you won’t take this as threatening, but I found this particular issue extraordinarily offensive and I will take this wherever it needs to go because this is a winner and I will be very sad if this Court didn’t address that issue, very sad indeed. I mean a civilian smoker gets

$1,000 fine, not 10 days in solitary; it’s got to be disproportionately severe. Right perhaps we could move on to page 22, that’s the failure to hold a prompt and independent inquiry and as Your Honours will hopefully have grasped by now what I’m saying is something like the Elbore?? inquiry or the Zahid Mubarek inquiry is what one is talking about and what could have happened and I think what should have happen and what didn’t happen is Judge Buckton, who was a visiting Justice, he had power under s.10.3 of the Penal Institution Act as it was then to hold an investigation but I must be frank we have a stalled judicial review that’s been going on for two years about the right to an independent and impartial inquiry and whether the District Court have got resources for it, so that’s a matter of substantive judicial review somewhere else but it may find its way here in due course, but it’s probably going to be when the new

optional protocol of the Convention Against Torture comes into place, it’s going to be overtaken by events so there’s going to be some historic claims under that but not hopefully any future claims. Anyway I’ve taken you already to tabs 10, 11 and 12. You’ve seen those documents, the original complaint from Mr Taunoa, the Ombudsman and soforth, we’ve been through that.

Elias CJ I’m sorry to interrupt again but can I just ask if you have a finding of breach of s.23(5), you are arguing on the material before the Court that the Court should have found breach of s.9 in respect of the five not just the one, what facts relating to these cases need investigation?

Ellis The entirety of the facts, because what we had was

Elias CJ But what do you mean by that? I need to know that.

Ellis Well there’s more than five people involved in this. I suppose if we take the, was it Justice Gallon who did the Lake Alice inquiry, somebody holding an inquiry and obtaining details from multiple complainants is in a much better position to arrive at what happened than somebody who is investigating four or five because the patterns of behaviour, the allegations against various officers and soforth are going to become a lot more credible and detailed when you’ve got a proper investigation.

Elias CJ But how will that help the actual appellants here?

Ellis Well there was a limit on the amount of evidence that was able to be called and the amount of department employees who were called to give evidence, I mean there was obviously selective calling of those and there would be for any litigants. If you’ve got the entire lot you may be able to find that there was significant additional breaches too and they may be entitled to further remedy.

Elias CJ But affecting these appellants. Ellis Yes these appellants.

Elias CJ Breaches that they haven’t put forward themselves?

Ellis There will be additional facts that haven’t come to light as yet. The principles of the investigation, I’ve talked to the UN principles, are to collect the evidence and try and get at the truth. It is not a litigation process.

Elias CJ Yes I understand that.

Ellis Yes and that’s where we are. This is, well I’m not saying

Elias CJ But we are in a litigation process and we have these five appellants and we’re dealing with the case on the basis of pleadings that they have put forward. I’m just trying to understand why their case would be advanced by an investigation.

Ellis Well it would be advanced for the reasons that I put that there will be the collection of additional evidence both from other prisoners from other prison officers and it would be giving effect to New Zealand’s international and national obligations and that is not something that may be ignored. The Committee Against Torture have called for an investigation and it is in my submission your duty to ensure that one happens because otherwise it renders the protection given by the Convention Against Torture, the International Covenant and the Bill of Rights meaningless if there is a complaint and it is not investigated. It may have been that Mr Taunoa and others, if there had been prompt investigation, could have moved up the scale of s.9 to one of the others because evidence is fresh and is readily available. I mean what were those books that disappeared, the

Blanchard J Scroll.

Ellis Scroll books, the Scroll books vanished. I mean there was all sorts of possibilities that could be done and of course there is the matter of resources. If a High Court Judge is conducting an inquiry for 200 people, presumably it’s going to be a resource. I mean there was a limit

Elias CJ Sorry is the answer really Mr Ellis that you don’t know what might have come to light and you don’t know how it might have affected the claims brought by these appellants.

Ellis Well that’s one of the answers. Certainly I’m not a mind reader, no, I can’t but I can make a reasonable inference that there will be more, because I compare that with the Lake Alice inquiry, and see what comes out of that compared to just putting five and what you’ve got here of course is Justice Young saying here’s Mr Taunoa who’s a psychopathic liar, but we’re still managing to win. Well if we’ve got 200 people and we’ve got somebody the investigator doesn’t think is a psychopathic liar, the credibility and the availability of the evidence change, so credibility issues would change too, if 40 people say the same thing happened rather than two. So there’s all sorts of nuances as to what might happen but of course Ma’am I can’t speculate. And Mr Robinson for instance, he had five years in solitary in various prisons up and down the country including his one year in the BMR, so we’ve got another four years that really didn’t

get investigated because we didn’t have an investigation, so he’s got real problems that could have been resolved. Anyway.

Elias CJ Well Mr Ellis shall we take the morning adjournment now. Ellis Oh yes, certainly Ma’am.

Elias CJ Thank you.

Adjourned 11.29am


Elias CJ Thank you.

Ellis Now Ma’am I’d like to return to the question that you asked me before about why we need to have an investigation because I don’t think I did my best and there are many reasons and I’m going to take you to the principles on the effective investigation of torture so I’m going to be asking you to look at volume 5 of my blue bundles in a moment but I want you to predicate that by saying besides the availability of a great of additional witnesses, if one had an investigation, there’s also the issue of really why the BMR was set up and who did it and so far the organisers of the regime have been protected from scrutiny and there is a right of the public to know besides the appellants and we haven’t had the chief executive, he was shielded from scrutiny, we haven’t had the Minister. There is much more to uncover than the, I wouldn’t say the tip of the iceberg, but maybe we’ve got half of the iceberg. Now if we look at the optional protocol in tab 49, this is the torture optional protocol, just to see what the new national preventative mechanisms are doing which is at part 4 starting with article 17 and in particular article 19, there are examinations and there are recommendations to improve and one must not forget the conceptualisation of human rights, particularly in this area, is to prevent reoccurrence and if one can understand what’s happened, it goes into the history, it doesn’t happen again. It’s not just my clients’ rights it’s the entire prison population of tomorrow and the public’s right to know what was going on, so there is an international scheme to investigate as we see. Now if we turn over to tab, oh tab 51 is the principles although there’s actually a better copy of them in tab 52 because I see the edges disappear so if we look at tab 52 it might be easier. Tab 52 is called the Istanbul protocol and that like the manual for Judges that I referred to you earlier, which is professional training series No. 9, this is No. 8

Elias CJ What’s the status of this do you say, domestic law?

Ellis This is a guide to how to properly investigate. It’s been approved by both CAT on several occasions as to how to do it, so it is a professional guide put out by the United Nations on how you should go about investigating. It’s not mandatory but it’s a guide that has been drawn up by a significant number of international experts which you will see from page Roman iii, the status of the participants which included the Committee Against Torture itself, so there was a huge number of legal, medical and rehabilitative organisations that set this up and I say has been referred to with approval by CAT as to how to go about it, and at chapter 3 of the manual at page 17, there’s the legal investigation torture which sets out the principles or there’s a fuller version of the principles standing alone at page 59 in annexe 1, but the purpose of an investigation is to establish the facts with a view to identifying those responsible and facilitating their prosecution and to obtain redress. Well we have not yet found out who is responsible despite two years of litigation and if one turns to page 45 where there is the guidance about the psychological evidence of torture at para.234, two thirds of the way down, for example the psychological consequences of a mock execution are not the same as those due to a sexual assault in solitary confinement and isolation and are not likely to produce the same effect as physical acts of torture. Well nobody is ever going to succeed in my submission in showing that there have been psychological torture unless you’ve got the full raft of psychological and psychiatric evidence that is available and seeing as there is another, or let’s say another 190 people who are in this, their complaints are still to be heard, there’s been no investigation of those and if you make a finding that there has to be an investigation then we won’t have another 195 of these in the Court system. And we need the resources and part and parcel of the inquiry is to have the necessary budgetary resources. It’s impossible for single litigants to obtain these. It’s a struggle to get legal aid at the best of times. As I said initially we got $500. So you actually need the resources to be able to get an effective investigation and if we look at paragraph, sorry, page 59, the principles there and at para.1 clarification of the facts for the individuals and their families. Identifications of measures to prevent recurrence; facilitation of prosecution disciplinary sanctions. Who’s being disciplined because of this?

McGrath J Sorry, what page are you at at the moment? Ellis Sorry, 59 Sir.

McGrath J Thank you.

Ellis Annexe 1, Principles on the effective investigation and I was looking at para.1.

McGrath J Thank you.

Ellis At (c), I was on disciplinary sanctions. Who’s been disciplined – nobody.

At para.2 promptly and effectively investigated and para.3 as I’ve just said the investigative authority shall have the power and obligation to obtain all the information, all the necessary budgetary and technical resources for investigation. And medical experts at page 6, sorry, principle 6(b)3 physical and psychological examination and I suppose the reality of it was, well I know the reality of it was that the State was unaware of the existence of this protocol, had to be provided with it, the Ombudsman had to be provided with it, the Attorney-General had to be provided with it. Well we simply don’t measure up on the international scale as knowing how to do it and returning to my submissions at page 24, in my footnote

45 I have indicated there where the Committee Against Torture has approved these protocols in the Mexico report which is in tab 68 and in the Turkey report which is in tab 69, so they’re sighted with approval by the Committee who were participants in drawing them up. I don’t suppose it’s hardly surprisingly so. Right so returning then to my page 24, it’s my proposition which I don’t think I’ve articulated well or even articulated. I’m saying the Court must not only order an inquiry but it must police it and that might sound a startling proposition but hopefully it won’t be when I find the right piece of paper. I refer you to footnote 702 in my thesis which is volume 7 and I apologise for sighting myself, but needs must when I think Mr Butler and Mr Shaw did. That’s at page 203 and this is referring to the attacks on the United States totality approach in litigation. Footnote 702 shows the forty States were under Court order or consent degree covering aspects of their operation. So prison systems in

40 States of the United States are under supervision so it is not startling to suggest

Elias CJ Is this an application of the structural injunction approach, developed post- Brown and that sort of

Ellis Well if I knew what that meant I could answer you.

Elias CJ Well it’s just the Court making orders and ensuring that they’re complied with and so maintaining a supervisory position. It’s not so special to this sort of case and it’s been consistently rejected in, or at least when I’ve tried to argue for it, in the Commonwealth jurisdiction, it’s fallen rather on stony ears so the House of Lords and the Privy Council haven’t picked it up and certainly our Courts haven’t picked up the suggestions.

Ellis Well there’s always room to advance in human rights jurisprudence. Elias CJ Yes, no I understand that.

Ellis And 40 of the United States are under order and that’s a suitable precedent and it’s an effective remedy isn’t it, if you call for an inquiry and there isn’t one, what happens? So that’s my proposition. It’s not just enough to say there’s a breach of s.9. In my submission you have a juridical duty to ensure there is an inquiry.

Elias CJ What’s the source of that juridical duty?

Ellis S.9 of the Bill of Rights, articles 12 and 13 of the Convention Against

Torture, customary international law, jus cogens, common law

Elias CJ What in the common law?

Ellis The right to ensure justice. Isn’t it the elementary right of the common law that one has access to justice?

Elias CJ So the Courts have a roving supervisory jurisdiction?

Ellis A roving, hasn’t that always been the role of a High Court Judge to ensure that rights are protected and they have an inherent duty to ensure that constitutional rights are protected. There’s nothing

Elias CJ Well except it’s based on an adversarial process and matters being brought before the Court for determination. You seem to be suggesting something much broader.

Ellis Yes I am suggesting something much broader because I’m saying that in my first paragraph of my submission that this reaches the highest levels of international law and I’ve cited in my para. – I’m not quite sure where I’ve cited it, in Bellow and Columbia but there’s a mandatory right to have judicial guarantees and what I’m saying to you is that here the Committee Against Torture have called for an investigation; the Government has done nothing about it – either the Committee Against Torture and its application in s.9 has some meaning in New Zealand, well let’s just throw away the Committee Against Torture, because if there is no investigation and the Court doesn’t ensure that it happens then those rights are rendered nugatory as Assenov and Bulgaria said. I mean it’s a very serious matter when the Government takes no action in respect of a recommendation to investigate former United Nations Committee of this standing.

Henry J Mr Ellis what are the terms of the order you are seeking from this Court in that respect?

Ellis The terms would be as set out at the top of page 10 in the Committee

Against Torture – my page 10 – carrying out an inquiry into the events

that led to the decision of the High Court and report back as they did in respect of the other recommendations, report back within 12 months.

Henry J Report back to the Court?

Ellis Yes, my learned friend says there’s an order of man da mus, I suppose that does have the same effect, doesn’t it?

Henry J I’m not quite sure how that would be carried out in those terms without identifying the precise terms of the inquiry and the powers.

Ellis No I think I’ll stick with the carry out an inquiry into the events. Blanchard J What does the Court do if there’s no response to that?

Henry J I’m sorry, I might have misunderstood, I thought you were inviting the

Court to undertake the inquiry. Ellis Oh no, no.

Henry J Just to order someone to undertake it? Elias CJ And supervise it?

Ellis I was expecting an order addressed to the Attorney-General to do it, the first respondent to do it and to report back just to see that something is happening.

Elias CJ Well it would be, it would be in form of declaration wouldn’t it?

Ellis Well I’m open to persuasion on anything. I’m not an expert on the terms of these things. The spirit of what I’m trying to do is to ensure that this happens. How you construct it I wouldn’t pretend to have the expertise in but

Blanchard J Well you’re the one who’s asking for it Mr Ellis.

Ellis Yes, yes, yes, but you’re the Judges of the Supreme Court and you’re the ones who’ve got the juridical duty and this is a first isn’t it

Elias CJ That’s what we’re exploring really, what is the juridical duty and what the outcome that you’re seeking is.

Ellis Well I’m not avoiding that, I just wanted to answer a prior question. Now what would happen if it didn’t happen, well that’s unthinkable that the

Attorney would not carry out an order or declaration of this Court and presumably if it didn’t they would be brought back to explain why plus

Blanchard J But wouldn’t that quite possibly involve the Court then having to get into an investigation of whether the Attorney, assuming the Attorney’s the appropriate person, had adequately performed in terms of what the Court had directed?

Ellis Well it may do but that’s why

Blanchard J It could get very complicated.

Ellis Well one supposes that’s why 40 of the United States jurisdictions are under some form of injunctive requirement to policing their prison systems. It might do but is it not an proportionate response to the Government’s entire failure for six years to have an inquiry under one of the principal Human Rights Conventions of the world. Maybe it required a positive and bold response from this Court. I’m looking for the spirit of this to be obeyed not looking for supervisory aspects of this Court and if a declaration would suffice then let us have a declaration.

Tipping J I’d like some help upon the difference between a mandatory order and an order declaring the Crown or whoever to be in default.

Ellis Well I think we need both, that’s what I’m saying, we need

Tipping J But I think the default proposition is a good deal more conventional than a mandatory order directed to the Crown. Now if you want us to consider that one I think you’ve got to do a little bit more laying of a foundation.

Elias CJ There’s Mof course and that line of cases, because it had been thought that Ministers of the Crown couldn’t be subject to direction from the Courts.

Ellis M and the Home Office”?

Elias CJ Yes, by the House of Lords. So you’re into that sort of territory aren’t you?

Ellis Yes, but just to answer Justice Tipping, yes my principal articulation, in fact my only articulation, was I wanted a declaration that there was a breach of s.9 but as one read and absorbed more, particularly the South American jurisprudence, it became obvious that one needed to do more than that so that’s why I’ve moved to and ensured that this happens and they did take him out to Paris didn’t they overnight, yes and I think they brought him back didn’t they?

Elias CJ No he went. He went to Algeria or wherever.

Ellis Or wherever it was, but I’m not trying to construct a constitutional impasse, I’m trying to have a genuine response to a major breach of human rights and I suppose you could adjourn the case, you could make some orders, adjourn the case for 12 months and see if anything’s happened couldn’t we, and we could come back and we’d all say right that’s fine let’s get away.

Elias CJ But on one view of course you’ve got your investigation in train through the UN Committee. They’ve asked for an investigation; it might be that it’s entirely appropriate for the Crown to wait to respond to that request until this litigation is concluded. In fact it might be improper of the Crown to hold an inquiry while this litigation is continuing because it’s a bit specific, it’s into the circumstances surrounding this case, so it may be this matter is not played out but won’t be played out in the domestic Courts.

Ellis Well it would be sad if there’s a finding before the UN Committee Against Torture on the reflection on New Zealand’s standing in the world to have an adverse finding.

Elias CJ But you’re effectively asking us to make a declaration that the Government should comply with the request given by the Committee Against Torture?

Ellis Yes I am effectively doing that because the Government have signed and ratified the Convention Against Torture

Elias CJ Yes but what I’m putting to you is perhaps the Government can’t respond to that while this litigation is going on.

Ellis Well with respect Ma’am I think that is wrong. There is the entire jurisprudential base of these investigations is we need to have an investigation and the, I suppose the failure to have an investigation is going to be a breach of the appropriate International Convention in its own right and ultimately there’ll be a finding of that, but that’s hardly an effective remedy when what you actually want is an investigation and I think the Committee was aware, well I’m sure they were because I told them, that there was another 200 to come and it’s not as simple as to say well there’s just five or six and in any event when you’ve given your judgment there is no further excuse for the Government to get on with an inquiry is there?

Tipping J Mr Ellis wasn’t the response of the Attorney-General when the letter was finally brought to her attention that she would await the outcome of the proceedings before determining what course the Government would follow so that really coincides with what Chief Justice has just been putting to you. Now is that in your submission an inappropriate response by the Attorney-General?

Ellis Extremely inappropriate and she was

Tipping J Could you explain why?

Ellis Yes certainly, she was forced into a corner because the application for the inquiry, the formal inquiry, was made in April and May of 2003 in tab whatever, 14 or 15 of my, oh we’ve been to that, my letter to Simon France?

Tipping J Yes.

Ellis But the State’s duty arises in 2000 when there’s the first letter of complaint. Now by the time the Attorney became aware there had been a formal request for an inquiry and was in a position to respond, it was days before the High Court hearing, so she’s really put into a corner and if there had been a timely response earlier that year then we might have got somewhere, but the problem is that the Government have never set in place a proper system for investigation in accordance with Article 12 of the Convention and they’re only now, when they’re going to sign up to the optional protocol, going to do it so we’ve had this complete hole where there haven’t been any investigations and it’s quite clear that the Court proceedings are not a substitute for a proper investigation. The idea is to get the proper investigation so that you’ve got the evidentiary base to bring your Court proceedings and then you’re too late at that stage. And the proposition, I think I’m right in saying, yes the Crown have never actually said they will hold an inquiry have they or did the Attorney say that to assess how best to address your concern? There’s never been a commitment to have an inquiry despite the calling from the Committee, and I mean do we really want another, I mean I’ve got 40 of them waiting in the High Court, do we really want another one? Do we really want another one? How long is it going to take to litigate 40 of these people?

Elias CJ The problem is the handle Mr Ellis. Normally the Court would expect, in fact I think probably inevitably the Court would expect a finding of breach which prompts the need for investigation. If the remedies for these particular appellants are provided in the proceedings then it’s difficult to see that the fact that an investigation hasn’t been undertaken is a matter of existing breach which would justify some sort of declaration and it might be that the Court would be justified in reminding the Attorney that there is

this call for further investigation. That there are other people who it is said are similarly effected and that Court process may not be the best way of dealing with them but it’s hard to see that we could really provide any formal response in the way that you’re suggesting.

Ellis Well Ma’am it may be hard but then I suggest you look hard in an attempt to find a remedy that is acceptable to us all because in this conceptualisation of human rights, if I could just ask you for a moment to look at page 39 of my submission’s 1 paragraph to explain where I’m trying to go, at para.146, the Trinidad and Tobago case, where interestingly in that case the inter-American Court near enough told off the individual Judge who’d made the decision at first instance which is unheard of because obviously you only ever tell off the State but they obviously got annoyed here, but what one is saying here is that the right to rehabilitation is an additional mean to provide remedy so I got a letter from somebody this week who said ‘I was in D Block for five years and I’ve been out for eight minutes a day’. Now I don’t know if it’s true or not, but if it is true or even if half of its true the rehabilitative effects of these 200 people are important and that’s never been factored into it. So far we’ve got some compensation and a declaration but nobody’s thought of the rehabilitation and that is part and parcel of an effective remedy of human rights and you can’t get the right remedy unless you have the investigation because you don’t know what you’re supposed to be asking for. And that’s really it, I mean the focus has been solely on compensation and I must be fair to Justice Hammond, who in the Court of Appeal, attempted to take me to task by saying ‘why didn’t you come up with some alternative remedies apart from this’ and my retort to that was ‘well why don’t you ask them, because they’ve got the purse-strings and are capable of coming up with the remedies’, and I think Justice Young if you mentioned anything international after our eight weeks he got a little impatient with us and it was just impractical to go down that route, but I don’t think that

Elias CJ You see you’re really advancing to us an argument on behalf of people who aren’t before the Court and it may not in fact be in the interests of the clients you are representing today to make this argument because it may be effectively an argument to look to monetary compensation was premature.

Ellis Well let’s take that in two bites. It clearly would have been better if my clients had available to them a wider range of remedies than they did have, but in the absence of the investigation there’s not much that can be done about that and presumably

Elias CJ What other remedies Mr Ellis could they have wanted; they’re not subject to this regime any more.

Ellis Psychological rehabilitation services. I mean Mr Robinson, he speaks six times as fast as I do and can never stop because probably he’s been so isolated for a number of years. I mean the man’s got problems and I mean we don’t see this.

Tipping J Did he ask for rehabilitative services by way of a remedy? Ellis We did have a discussion about it

Tipping J Did he ask for those services as a remedy of the Court?

Ellis There was no request made to the High Court. Justice Hammond, as I said, wanted to explore the issue and said both sides ought to be exploring the issue and from his time in Canada he was surprised that we weren’t but anyway we weren’t but we are now aren’t we, we are now saying that there are a range of remedies. With a better understanding of Human Rights law in this field we’re better able to address what is right and our position for compensation is as you know, we’ll just leave that alone, the Courts below are in a better situation to address than you are, I accept that it is a possibility that you say that I’m trying to advance remedy for others. No I’m trying to advance the law and in trying to advance that I must focus on my five clients but I don’t live in a vacuum, there are these others out there as well and I’m just drawing those to your attention and say well perhaps we can do better next time. I don’t think there is anything necessarily wrong for that but if I’ve overstepped the mark on behalf of potential clients I apologise to my potential, my actual clients on this, but I certainly have no intention of doing so. Right, where are we? And I would refer back on page 24 - I’m just now referring to a note I’ve made here. The cross appellants’ submissions at para.8 say “the Courts’ first priority is to fashion a remedy that identifies and curtails the breach’. So the proposition of prevention is important and we don’t seem to have got to that. We’re on page 26 where I’ve already addressed the questions of the principles 1 and 2 of the effective investigation but I would re- emphasise that the Arbour inquiry by Madam Justice Arbour into events in the Women’s prison in Kingston, that was the sought of inquiry that meets the definition of inquiry and that sought of inquiry that I imagined and at page 27, para.101 the Human Rights Committee in its jurisprudence under the covenant in respect of articles 7 and 10(1), article 7 being the equivalent of s.9 and 10(1) being the equivalent of 23(5) says complaints must be investigated promptly to make clear remedy effective and in my new bundle 8 which you got this morning, besides the general comments of the Committee, we’ve now got their individual views in respect of jurisprudence so if we look at tab (i) of volume 8, I don’t seem to have the volume with the highlights on but never mind it was para.9 I’m sure. The consideration of the merits of the, so at 9.4 there we’ve got the burden of

proof; at para.9.8 we’ve got the reference to the general comments on article 7; at 9.12 we’ve got

Elias CJ This is a duty to investigate for the purposes of the Committee’s processes?

Ellis Yes that’s correct. But at 9.12 it says ‘we refer to our general comment 31 on the nature of the general leave and obligation placed on State parties. A failure by the State party to investigate to investigate violations could in itself lead to a separate breach of the covenant’. So there was a violation of Article 2 there. But yes I agree there but it is my proposition that that jurisprudence, if you read the jurisprudence of both the Human Rights Committee, CAT, the European Court, the inter-American Court of Human Rights, then that should be the position in domestic law as well and that jurisprudence is there to guide you because how can it be any different? And at para.104 of my submissions the our Court has not been going long but we’ve got Zaoui which is an example of affirming, promoting and protecting human rights but there’s little else in this Court’s jurisprudence, particularly in the realm of prisoners’ rights and that is the juridical duty on the Court from the Bill of Rights to affirm, protect and promote and the Bill of Rights seems to have fallen into a sort of black hole in this respect. And at para.107 we see the jurisprudence of the Committee Against Torture that a delay of 15 months is unreasonably long so we’re well and truly in advance of 15 months and then Assenov and Krastanov in the implication in Articles of the European Convention requires by implication that there should be an official investigation. Should be capable of leading to the identification and punishment of those responsible and as I say it’s not implicit, it’s explicit, and at 110 their latest decision that I could find in Mikheyev v Russia 2006, “ in cases of suspicious death or ill treatment given the fundamental importance of the rights protected by Article 2 and 3 – Article 2 is the death one. Article 13 requires a thorough and infective investigation capable of leading to the identification and punishment of those responsible”, and likewise the inter-American Court of Human Rights at para.112, whenever there’s been a human rights violation the State has a duty to investigate the facts and punish those responsible and then the Velasquez case, I’m probably not pronouncing that right, also to publicly disseminate the results of such investigation, and that does seem to have been missing in all this. Where is the public’s right to know what’s going on, and that’s reinforced in the Argentinean case, ‘the results of the investigation must be publicly decimated’ and if I can move on from that, may I? In terms of the burden of proof the Peru case – I’ve already read that to you earlier in the day. The European Courts says the same thing in the Turkey case there. So at

120 I say it is immediately clear that the interest of New Zealand to carry out an investigation, given that it automatically assumes responsibility for human rights violations unless it does. And that must be the case mustn’t

it because otherwise how else would we ever get an investigation. The State just says ‘I’m not going to do it’ so that is not and can never be a good faith implementation of a national or international obligation. They just refuse to do it. So impunity – the State’s failure to investigate renders the obligation ineffective and it allows the State to abuse the rights of those under their controls with clear impunity. I once again invoke the entire lot of jus cogens down to the New Zealand Bill of Rights Act but in common law don’t repeat that all the time and general comment 31 over the page of the Human Rights Committee which is the latest general comment in 2004 where the investigations referred to of the violations state the parties must ensure those responsible are brought to justice as with failure to investigate, failure to bring to justice, perpetrators of such violation could give rise to a separate breach of the covenant. The problem of impunity is a matter of sustained concern for the Committee. It may well be important contributing the other one in the reoccurrence of violation, so we’re back again to prevention. And then we’ve had recent reports of the Human Rights Committee in respect of Slovenia, Syria, Pakistan and Thailand and I’ve set out one from Slovenia, “The State party should take appropriate measures to prevent and punish, prosecute, grant effective remedies including compensation: and the reports from those other countries are similar and as I say at 127, “Does the Government wish to appear alongside such nations with similar comments and recommendations?”. The European Court jurisprudence, the 2004

Turkey case on such an investigation should be capable of leaving the identification and punishment of those otherwise the general legal prohibition of torture and inhumane and degrading treatment would despite it’s fundamental importance be ineffective, be possible in some cases for agents of the State to abuse that under their control of virtual impunity. Same sort of thing in the inter-American Court in Peru avoid and combat impunity. The State has an obligation to combat impunity by all means available and in para.132, in the 2002 case, the obligation to combat impunity through all legal means at its disposal. A State that does not punish human rights violations would further not be complying with its duty to guarantee free and full exercise of the rights of persons under its jurisdiction, and I think that was the common law sort of advancement that the jurisprudence of the inter-American Court seems to be in front of everybody else and we’ve now got access to Courts being jus cogens there and are very very much in the forefront of human rights legislation and it’s not something that any Court in New Zealand has yet come to grips with.

Elias CJ Mr Ellis we have read through all this. It’s very usefully set out there and it’s very helpful to have all this material collected but unless you’re really emphasising things I wonder whether it would be possible for you to move breaches of s.9 and s.27 which you really need to look very closely at. Make any points of emphasis you want to before then

Ellis Certainly, I’ll hurry up if that’s what you mean, yes. Elias CJ Yes.

Ellis You have a right to effective remedy compensation, page 37. Well I don’t quite know where we’re going with my proposition as the Prisoners and Victims Claims Act has compounded the failure to tackle impunity but it’s also precluded the ability to have an effective remedy because Parliament has changed the playing field after we’d won and done that retrospectively and the proposition that I’ve advanced elsewhere is that matters of breach of access to the Court and it’s a fundamental breach of rights so I’m not sure where we’re going at all with that, if we’re going anywhere, but if we’re not going anyway with it here, and we’re obviously going with it somewhere else, but it is my duty to put it to you because I’ve obviously got to exhaust my client’s domestic remedies and if you don’t want to deal with it that’s sad, very sad in human rights jurisprudence

Tipping J What do you want us to deal with it by doing? Ellis A declaration of inconsistency.

Elias CJ One on which we don’t have the benefit of first instance decision.

Ellis Well that’s an impossibility in the way this litigation is going through. We won in the High Court, while I was on my feet in the Court of Appeal it was being litigated and the matter was raised and it was raised more orally than written, but it was even in my written submission when I can find it in volume 8, tab f, para.209 ‘the Government’s response to public interest included the Prisoners and Victims Bill’ and I did actually ask the Court, although I don’t know whether they thought I was being serious, that I wanted them to double the compensation for the potential decrease that may come about

Tipping J What’s the point of any compensation at all if it gets diverted away from your clients by operation of law?

Ellis Well that’s why I was suggesting that the amount should have been increased, because obviously at the time we weren’t aware of the full content of the legislation because it was going through urgency as I was speaking.

Tipping J Yes but speaking as of now Mr Ellis, I mean you say it’s an effective remedy, we might as well cancel it, an ineffective remedy, we might as well cancel it.

Elias CJ It doesn’t apply to these appellants though does it?

Ellis Yes it does. Elias CJ Sorry?

Ellis Yes it does.

Elias CJ It does, in what sense?

Ellis There’s, the Bill applies in respect of two sets of people. One, everybody who makes a fresh claim, and they’ve got to go through additional corridors and I’ll ignore them and then these appellants, as soon as you’ve made your decision the money that has been awarded under this judgment is required to be sent to the Secretary of Justice where it’s frozen in a special trust fund and then the provisions of their prior victims can then make a claim on them, but the Judge making that decision in the Special Victims Tribunal, the new victim, as it were, gets legal aid, it’s an ex parte hearing at which Mr Taunoa may only go with special leave effectively. The whole thing’s stacked against them.

Elias CJ Sorry, what sections are you referring to. I haven’t looked at it. I should have and I’m sorry. It doesn’t matter I’ll find it.

Ellis I don’t know.

Tipping J Have we got it in the papers there? Ellis Have we?

Tipping J I don’t know.

Ellis I don’t think we have.

Tipping J But on the hypothesis that your clients aren’t going to see a cent of this money right into this legislation, why are we arguing about quantum, why don’t we just simply look elsewhere for a remedy?

Ellis Well surely the proper approach would be to say if the judgment of the High Court is going to be reduced by some new operation of law you should put them back in the position that they would have been

Tipping J But doubling it is not going to give anything to them is it?

Ellis Well they should be in the position where the judgement that they obtained from the High Court is not diluted, I don’t know.

Tipping J Yes that sounds all very splendid in theory, but if whatever is awarded to them, big, large or middle size, it is going to go into this special fund and they’re not going to see a penny of it, what’s the point of the argument about quantum, other than in the most theoretical of senses?

Ellis Well the remedy that they’ve sought before you is a declaration of inconsistency. It is possible that Parliament will repeal its legislation. It is possible when that complaint goes either to the Human Rights Committee or the Committee against Torture they will ask the Government to repeal it and they’ll get their money back. It’s simply a timing issue isn’t it but as Justice suggests we’re not going to look at it

Tipping J Well except on that hypothesis it’s not going to mean anything to your clients how much the award is.

Ellis Well we’re in the realm of speculation aren’t we

Tipping J I said, except on that hypothesis that somehow or other this legislation is repealed or amended.

Elias CJ Well I suppose there may not be victims who make claims, so it’s going to operate

Ellis Yes, Mr Tofts apparently has property offences so there’s not much he’s going to probably lose. Mr Taunoa’s victim’s family certainly told the Select Committee they would have to seriously consider whether they would make a claim on blood money, I mean who knows.

Tipping J Does the legislation provide for the money to go back to the victims if

there is no, or to the extent it’s not exhausted by other claims. Ellis Yes it’s frozen for six months and the balance goes back. Tipping J Right, I follow, yes well that does make a difference.

Ellis Yes.

Tipping J I’m sorry, I didn’t appreciate that point. Ellis Well there was no reason why you should.

Tipping J I thought it was both diverting and confiscatory but in fact it’s only diverting, it has the capacity to come back in whole or in part.

Ellis Yes but the Limitations Act is suspended for the other victims so they can claim, I mean who knows

Tipping J Well that’s a fair point.

Ellis I don’t know what happens but my approach to compensation is you leave it alone because it’s going to get complicated, because if they take a cent, well even if they don’t take a cent, it’s going to be challenged elsewhere, even if you don’t deal with it, because I mean it is an obnoxious piece of legislation that offends against numerous human rights principles.

Henry J Could you just identify for me please the provision which this legislation infringes or is inconsistent with?

Ellis Yes, it infringes against Article 26 of the Covenant in that it’s discriminatory. It’s discriminatory on two basis’s that it relates to prisoners rather than anybody else and it only relates to prisoners making a claim between 2005 and 2007 and/or the Taunoa people, so it’s only got a limited time span too so it’s doubly discriminatory, because it’s got a sunset clause - I think it’s the 1 July 2007, so only some prisoners, and it offends against the proposition contained in general comment 31 that a remedy should include compensation and that remedial proposition is endorsed by the inter-American Court and the European Court and CAT and the Human Rights Committee – all of the international Courts or Tribunals say that an integral part of your restitution is compensation and this is taking that away and it is alien to the entire conceptualisation that there is an effective remedy for people who suffered a violation of human rights, which is why I’ve put in for you in relatively simple terms I think this manual at tab k in volume 8, which is a useful proposition which goes on for 20 pages. Now that’s a simple proposition of how the international community looks at it.

Elias CJ What is your domestic portal though, because I think you really need to address us on that?

Ellis Section 9 and 23(5) of the Bill of Rights Act and your jurisprudence in respect to Baigent and in effect to remedy.

Blanchard J It’s the lack of the effect of remedy. Ellis Yes, yes.

Elias CJ Which is really why, although I think that the international material is very helpful it is really background and it’s why I invite you to move to s.9 and s.27 as well because that’s a major part, 23(5) as well.

Ellis Well I though I had but I sort of got diverted.

Elias CJ Well it is all fascinating stuff. Ellis Yes alright, so page 45?

Elias CJ Yes, thank you.

Ellis Well I’ve set out there Madam Justice Arbour’s approach to what should have been happening and I mean it’s interesting to note that both Scotland, New South Wales, Western Australia, Canada, I mean this isn’t something, this sort of regime that we have isn’t something completely new. It had been found faulty in other places around the world. We never got to understand how it got set up here because nobody took any notice of that but the original proposition was that it was psychological torture, but as I say that was doomed to fail because you can never find any evidence those years later. The discussion there in the Court of Appeal sets out the four arguments that are in indented para.184 which I’m coming to shortly and then we’ve got the threshold test at Puli’uvea at page 47 at the foot and we seem to be at some odds with the Crown as to whether this is the correct test or not but if you compare s.9 with s.23(5) why is it that there’s a sort of high threshold test for s.9 but not a high threshold test for s.23(5) because s.23(5) applies to people in detention, so there’s different standards for people who are in detention and people who aren’t in detention. Well that cannot be right. As a matter of principle everybody must be treated equally and it is inherent in the words of s.9 that you’ve got to reach whatever level that it is. I mean disproportionately severe conjures up disproportionally so why do we have to react my para.185

Elias CJ Isn’t this just an application of the general principle that if you’re making heavy allegations the standard of proof has to be commensurate with the seriousness of the allegation? Does it really go any further than that?

Ellis Yes, well only in this sense that in this individual circumstance because of the absence of an investigation the onus is on them to disprove it rather than the other way around which we never got to, so there is an additional gloss in the individual case before us and we’ve got the Scottish

Elias CJ You might, you might also develop as part of that, maybe you are already saying that somebody who is in possession of the system that the onus against them need not be as high.

Ellis Yes yes that’s what I was saying and I’m also saying that the Scottish case in para.192, the Napier and the Scottish Ministers, where the Scottish Court of Appeal said in the last paragraph above s.193 ‘the appropriate standard of proof is the ordinary standard of proof applicable to civil cases in Scotland and why should it be any different here, I mean if we raise the Bill of Rights point and it gets over its prima facie basis then they’ve got

to disprove it and the fact that we’ve had so few cases on the Bill of Rights is because with respect the Courts have made it so difficult and you must take a liberal view to the interpretation of the Bill of Rights. Right that was quick wasn’t it. Okay I’ll get one more bit in before lunch. Do you have a clock in here?

Elias CJ In the front of you I think. Ellis Is it?

Elias CJ Isn’t it on the bench, I think there is one. Oh it’s gone missing. Somebody wanted it.

Ellis It’s alright I’ve got a watch, there’s usually a clock in the Courtroom. Mr La Hood reminds me that if s.23(5) is really your lower threshold then people outside prison have less protection than people inside prison which is somewhat startling, is the difference between s.23(5) and s.9. Anyway I’d like to move on to solitary and my learned friends in their submission at para.44 of the respondents’ submissions say ‘the appellants’ submissions obscure the fact that there is no uniform definition of solitary’. Well it doesn’t look very obscure to me to suggest up front in the first passage of my submissions that Sir Nigel Rodley makes it plain why that definition is unacceptable, because obviously if you say solitary confinement is 22 hours and then they’ll lock you up for 21 hour and 59 minutes, I mean it’s not just possible, and the unfortunate case in my para.205 of Rohde v Denmark in a recent case from the European Court where it was common knowledge that solitary entails a mental health risk. If we look in the footnote of what solitary meant in that case – it was 8 square meters, a bed, table lamp etc, he could use the fitness room– I’m over the page in (b) he could use the fitness room, occupy himself with hobbies, painting, borrow books, buy books in the shop, newspapers, receive tuition

Elias CJ Is this in part just in response to the Crown submission or is it something you need to develop?

Ellis It’s the primary proposition about what solitary is so yes I do, but I’ll finish this and we’ll have lunch.

Elias CJ Yes.

Ellis It won’t take long.

Elias CJ Well I must say subject to what Crown might say, I would have thought this was solitary but

Ellis Well they say it isn’t.

Elias CJ Yes I know which is why I’m suggesting that may be you don’t need to develop it at great length now but might come back to it.

Ellis Well it was only going to take me another 20 seconds and it would be a good place to finish for lunch so if you’d indulge me I’ll just finish it. So he had visits from the applicant’s family, sometimes five at a time but then it got limited to two. In (d) he’s questioned by police officers, he’s brought before the Court on a number of occasions. He has contact with police, counsel, Judge and public prosecutors. He has 50 lessons in English and French for approximately one hour a week. He saw a welfare officer 12 times, a physiotherapist 32 times, a doctor 27 times, a nurse 43 times and then the Court says in these circumstances the period of solitary confinement in itself lasting less than a year did not amount to a breach of Article 3, whereas in our circumstances the provisions of the ability to contact other people was severely limited and it clearly is solitary and just to finish there the inter-American in the Argentinean case at para.207 also says solitary must be exceptional as it causes psychological disturbances and it endangers strict observance of the due legal process and that is right and Mr La Hood will do the due legal process. That would be a good time to have lunch Ma’am.

Elias CJ Yes, thank you. We will resume again at 2.15pm.

Adjourned 1.00pm

Court resumed 2.18pm

Elias CJ Mr Ellis

Ellis Ma’am I’ll try not to be much longer. There are two matters that I reflected on over lunch which I will deal with briefly. I hope not to take more than half an hour to finish what I’m going to do. The two matters were the question that Justice Henry asked about the Prisoners and Victims Compensation Act and your domestic leg of it and I forgot to mention the common law of course and if I could refer you to Kumar and the Minister of Education, the Court of Appeal Justice Richardson said referring to the fundamental principle of equal treatment under the law and equal protection of the law for every person which has long been recognised as the essential pillar of the rule of law and Justice Thomas in Quilter and the Attorney-General at page 540 saying ‘discrimination in all its forms is odious, it is hurtful to those discriminated against and harmful to the health and the body politic and as such it should be repugnant in a free and

democratic society’. There are in other words no reasonable limits prescribed by law which could be demonstrably justified in a free and democratic society - discrimination and democracy are inherently antithetical. So I just add that common law, and in the second point in respect of the investigation I had forgotten in respect of the discussion about what sort of declaration or remedy and I had put in the casebook and had meant to refer to it but I’m afraid amid so much I forgot. At tab 18 of my bundle 1, The House of Lords decision in ex parte Amin which was Their Lordships’ decision relating to the Zahid Mubarek Inquiry which I referred to I think on my first or second page of my submissions. The one that the English Justice Keith had done and this was the way the inquiry came about, so if I could just ask you to briefly have a look at two pages of that judgment, so that’s volume 1, tab 18 at para.14 and the context of it

‘shortly after the death of the deceased solicitors were asking for an independent public inquiry. The Minister did not agree’ and then in para.15

Elias CJ There was a claim against the Home Secretary though wasn’t there?

Ellis Yes I think that’s right. Home Department, yes that’s correct. But the legal principle there in para.15 ‘he upheld ruling that refusal to hold an inquiry would be a breach of Article 2 of the Convention. An independent public investigation with a family legal representative provided with the relevant material and the ability to cross-examine the principal witnesses must be held to satisfy the Article 2 obligations’ and then at para.32, I’m sorry I haven’t got the right

Elias CJ This was under a statutory obligation to hold an inquest wasn’t it? Ellis Yes, this was a judicial review of the failing to hold the inquiry. Elias CJ Yes, but there was a statutory obligation to hold an inquiry.

Ellis I think that must be right otherwise we wouldn’t have had the judicial review would we?

Elias CJ Yes.

Ellis There’s a page that’s got a page 6 up the top in the second set if you can find it. It’s a major task to get all these things if you’re a sole practitioner before you. It took three of us the whole day and I apologise we haven’t got the right one and I should actually have thanked Mr Keith for his assistance in doing the case on appeal. We simply couldn’t have done it otherwise, so thank you Mr Keith. Anyway at page 6, para.32, Mr Crow was right to insist the European Court has not supplied a single model investigation to be applied in all cases, a measure of flexibility in selecting the means of conducting the investigation. Justice Hooper applied these

standards, the Court of Appeal did not – it diluted them. So flexibility is the key so obviously when you asked me what the right answer is, it’s hard to say when I’ve never had one before. Anyway that was all I needed to add to add to

Elias CJ It did seem to me when I read this, it’s now coming back, that this was almost the high-water mark of the

Ellis I beg your pardon.

Elias CJ This was almost the high-water mark of the domestic case law.

Ellis Yes I think that would be fair to say and our domestic case law hasn’t developed and hopefully this will be a high-water mark.

Elias CJ It may be an entirely different case however. Ellis Well it would be nice to finish here Ma’am.

Elias CJ No, no I’m talking about the fact that this was the failure of the Coroner

Ellis Yes, we’ve got a case - one of those will come to you in a couple of years I’m sure. So I’m now back on page 56 of my submissions and we’ve done s.17 of the Crimes Act. I seem to think you were following where I was going with that and at para.210 there I’m saying a short term segregation is a Moonen consistent reading of that section, solitary confinement is not. At para.216 I say that the arguments in the Court below, and I presented a raft of authorities from CAT and the CPT and the Human Rights Authorities but nobody seemed in the least bit interested. I don’t know why I bothered to do a thesis really – I don’t know if anybody even read it, but anyway I felt it was important to help advance the law but there is a wealth of overseas case law and it isn’t sufficient just to say what is the domestic law. The international law does help guide it but none of those authorities referred to the standard common law authorities if we can put them like that with Sandery and South Australia, which I hope Your Honours have read.

Elias CJ I must confess I haven’t read it.

Ellis Alright, well perhaps we could have a brief look at it then. It’s, where would it be

Elias CJ I wasn’t inviting you to take us to it if you could encapsulate it.

Ellis It sounded like you were, yes. Well we can just look at the headnote can’t we and that’s para.22 in my blue volume 1. He was a particularly, how

should I call it, unpleasant prisoner who caused endless amounts of trouble but nevertheless the Court said in granting a, I think it was a declaration, granting a declaration that solitary confinement had been abolished and we got this proposition that you couldn’t have akin to solitary confinement conditions which this plainly was and the proposition that I was trying to advance in the High Court and the Court of Appeal was ‘well let’s not get too hung up on solitary confinement per se. If it’s akin to solitary confinement which is the proposition here, he was assigned to a holding cell separate from the accommodation of other prisoners and subsequently to a segregation cell and he got a declaration to the effect that he couldn’t be held in those forms because the statutory provision in South Australia had abolished solitary confinement and this was a solitary confinement akin proposition and on a simple analysis at s.17 of the Crimes Act the same proposition should apply here. That was in essence that case. There was the Arbour, Madam Justice Arbour’s report which is set out, the recommendations, the relevant ones, are set out in para. 226 of my submission

Elias CJ But presumably there wasn’t anything equivalent to s.7(1)(a), that’s why this decision was decided as it was? That’s why they were able to say that the legislative purpose in s.36 meant that there was no authority for the prison officers to use their general administrative powers to segregate prisoners.

Ellis I don’t know that that’s correct Ma’am, I can’t answer you off the top of my head.

Elias CJ Well I think it says in the headnote that there was no authority for it.

Ellis Yes but there’s, somewhere in my thesis I’ve got the equivalent regulations in all of the Australian States and whether or not you could do it, I’d have to come back to you with the answer for that, I can’t remember off the top of my head. But certainly I suppose the argument didn’t really advance when 7(1)(a) says you have the power to segregate and what really never got touched upon was the maximum use of that power rather than the minimum because you could be restricted say from associating with everybody but 20 people, so if you had a modern system of administration for high risk prisoners what happens is that you’re segregated in a unit with other prisoners – your not in solitary and your given extra gym facilities and extra conditions because of the mantle conditions that go with it and there’s never really been a satisfactory analysis of that. There’s no minimal impairment of your right, it was always the maximum, so you isolated to the maximum amount permissible by s.7(1)(a), never anything less. But the, I’m on page 59 still, in the Scottish case in Peterhead Prison prisoners in G Hall were held in what amounted to solitary confinement and that was described as inhumane by

the Committee for Prevention Against Torture and the same thing for the Waite Unit in para.219 at Feltham which I think is in Surrey somewhere. And at para.233 Professor Barrett who was an expert witness on systems, what he found was curious that nobody had ever considered anything that happened elsewhere and that’s one of the reasons as I say the investigation is important, because there has been no consideration of who set it up and why in any meaningful sense. We have the general manager, public prisons, who didn’t know he’d actually been to the conference in Australia that seemed to have set up some Australian and New Zealand rules about it, it seemed to be a surprise to him.

Elias CJ Can someone just quickly tell me where I find s.7(1)(a) in the bundles? Ellis Yes, tab 2 of our bundle, no we don’t, but we should have it in there. No,

it must be in the Crown bundle. It’s in both of the judgments. Elias CJ Well it’s alright I’ll pick it out of the judgments, thank you.

Ellis It should have been there because it says s.7 Ma’am but it’s not. I’m sorry about that. Oh it’s in tab 3 of the Crown’s bundle.

Elias CJ Thank you. Yes carry on, sorry.

Ellis So the point I was trying to make there Ma’am at 7 is, he made in the discharge of his responsibility for the general administration the institution give directions for the opportunity for the inmate to associate with other inmates be restricted or denied for a period, but what we actually got is the maximum restriction and the maximum denial and he was restricted from associating with everybody for the maximum period rather than ‘will you come and associate with the main body of the prison for a week’? It never had a Bill of Rights friendly approach. And Madam Justice Arbour in her detailed inquiry, a model of an inquiry, I set out her recommendations at para.226 and her proposition is you should only have a three day maximum than 30 days and if it approached 60 days you should think again. And that made a lot of sense. You shouldn’t just use it because you don’t know how to deal with difficult prisoners, and that’s a remarkably thorough and invaluable proposition and in the American case in para.228 in Madrid and Gomez there’s plenty of propositions about the effects of solitary confinement of which segregation is a variant and I suppose that is what at the very beginning threw me off when I was trying to actually do my research and why I actually left the country to do it. I couldn’t actually find anything meaningful but when you learn that the language is concealed it’s not called solitary, it’s called administrative segregation, or super max or administrative segregation, you find a whole wealth of material that opens up because prison administrators never call it solitary, it’s always got some other label. So those were the principal cases and at

footnote 114 Ma’am there’s a little analysis of Madrid and Gomez for you instead of reading thousands of pages. And then turning to page 64 the nub of the argument about s.9 given the judgment there set out of Justice Young with the wealth of problems that he found in the regime, one asks, just looking at the 276(iv) for instance, cell hygiene and mental health; no adequate checks; exercise conditions were inadequate outside; exercise; natural light; strip searches and all the way down. If you take the entire set of what he says in all of those paragraphs, how is it that they’re saying this is only a breach of s.23(5). It’s hard to find such a finding of so many breaches when you can get European Court cases which only deal with one or two and we’ve got oh I don’t know, 15 to 20. At para.240 there’s an explanation of the difference between the European context and ours from Article 3 which is set out in the paragraph above ‘Nobody shall be subjected to torture or inhumane or degrading treatment or punishment’. They don’t have the word ‘cruel’ which we do of course in ours and in the footnote 120 there there’s an explanation that ‘inhumane treatment can be equated with cruel and unusual in that context. And in Mathew and the Netherlands at 241, page 67 there’s the traditional conceptualisation of what standard you have to get in the European Court and this is a very recent case of, it’s either 2005 or 2006, I can’t recall. 2006, yes, and in the last paragraph of that lengthy passage on page 69 indented to 217 ‘There has been a violation of Article 3, kept in solitary confinement seven months in a cell that didn’t have adequate protection’ and my comment there that ‘where’s the similar human rights analysis in this case’? It’s just a breach of 23(5) or alternatively breach of regulations. Then moving on to strip searches, if we break it down, ‘strip searches were conducted in breach of the Act, they were routine and lacked privacy’, Compare this with Van Der Ven where there’s a weekly strip-search and at para.63 there

‘the Court concludes the combination of routine and other stringent measures as a breach of Article 3 and in this, not this Court anymore sorry, Everitt, the Court of Appeal judgment, five Judges, in Everitt where there was only one strip-search at the police station and we got a declaration of breach of s.21 and my learned friends try and play down the strip-search proposition in their submissions, and they actually rely on, they rely on a passage saying that there was in the context of drugs or weapons but that’s wrong because that was the passage relating to a strip-search at Rimutaka Prison on the second leg of this hearing which was the administrative segregation which we haven’t appealed.

Elias CJ Yes I was going to ask you about that. Where did the concept of administrative segregation under s.7(1)(a) come from and is it not any longer in contention? Is it accepted that administrative, i.e. non-penal segregation under s.7(1)(a) is lawful?

Ellis I think that was probably why I wrote my thesis, no certainly wouldn’t accept that it was lawful.

Elias CJ But you haven’t appealed that?

Ellis We haven’t appealed that because there were significant legislative amendments which now restrict administrative segregation by the prison to three months and then a visiting Justice has to deal with it but no it certainly isn’t accepted, no, but

Elias CJ It’s not live before us? Ellis It’s not live before you? Elias CJ No, thank you.

Ellis No, and where did it come from. Well if we’d had an inquiry we might have found out Ma’am.

Elias CJ No, I meant the concept of administrative segregation. How did that pop up – was that used just in argument to differentiate penal use of this regime from segregation?

Ellis Well If I understand you rightly, and I’m not sure that I do, the English Prison Act managed to segregate people for good order and security of the prison and they called it segregation and we tended to copy the English because they’ve got 1952 Acts and we’ve got the 1954 Acts, so it came in in passing by copying the English so that you could be segregated administratively for good order and discipline purposes, so

Elias CJ I just don’t see any reference to administrative purposes

Ellis Well no, that was just a label that was put on that. Elias CJ I see.

Ellis Because it’s one of these, in my submission it’s a disguise for solitary confinement. You give it another name and then nobody understands what you’re talking about, but the logic that I was trying to apply is if a Judge can only sentence you to 15 days disciplinary cellular confinement, how is it that you can have a scheme where administratively you can be detained for years without having natural justice or due process rights or anything else. It’s just remarkable bearing in mind the Human Rights Committee saying you should only use this in cases of urgent necessity.

Elias CJ But it’s not live before us? Ellis No.

Elias CJ Thank you.

Ellis But what is alive is the strip searches and at page 22 of the respondents’ submissions they say Ven and Lorse included an anal inspection. Further unlike the absence of ‘anything untoward’ in those cases, the searches were conducted in the context of discovery of weapons, drugs and other contraband, and they refer you to a footnote in the evidence about Mr Kidman, one of the appellants, which relates to his evidence about Rimutaka where administrative segregation was under challenge, does not relate to this BMR proposition and in any event there would have been weekly or similar strip-searches in this case because every time you left the landing you were strip-searched in the landing and anal inspection, well as with Mr Everitt, the standard of inspection is you squat so that anything that is concealed in your person falls out, so whether it’s a visual anal inspection there’s certainly the intention to see that you haven’t got anything anully concealed, so it’s certainly degrading and this happened routinely and whenever you left the landing and occasionally, but not all the time, when your cell was searched, and as Justice Young found, it was routine. And Mr La Hood reminds me there was never any contraband found during a strip-search on any of ours. I suppose Mr Taunoa’s cigarette lighter was found in his cell not on his person, so despite being strip-searched endless times we don’t get, so why did Mr Everitt who had one strip-search manage just to get a declaration, but these who get, let’s call it one a week, for simplicity, why don’t we get one. It doesn’t seem to be a fair and just upholding in the breaches of human rights and it’s not too much to ask the Court to grant a declaration. Right, medical visits and like. It is pretty straightforward. 258 is the crux of that issue. Medical Officers are supposed to be the guardians of this process but if they don’t carry out their task the whole system falls down and in my latest bundle, volume 8, I put in in tab (h) some of the history of this. See this isn’t just some mysterious invention, so looking at the first page of that the Prison Act of 1877, this is volume 8, tab (h). We’ve got one month solitary but we shouldn’t have that more than one week at a time and then we’ve got the Prison Department Home Office instructions of 1888, I’m afraid I couldn’t find any such instructions for New Zealand but one would have assumed we would follow similar practice. ‘The surgeons will certify that you’re fit to undergo such punishment’ and then we’ve got the New South Wales Prisons Act for 1908, the Irish Act of 1840, remembering Ireland was of course part of Great Britain at the time, called the United Kingdom or whatever. The surgeon there had to certify and the Irish Prison Rules of

1925 and 1947 medical certificates unless the medical officer certified and the European Prison Rules – as my learned friends say the CPT don’t say that you’ve got to have this regular inspection, and that’s quite right, but the European Prison Rules which really are a copy of the standard minimum rules, they do say the medical officers shall visit prisoners daily.

Unless anybody wants me to I don’t really intend to engage in a debate on the standard minimum rules because it seems to me that the HRC at page

74 there in respect of Thailand last year, State parties should bring the rules up to the UN standard minimum rules. The Democratic Republic of Congo this year should end practices that are contrary to the minimum rules. The Ombudsman in his report in 2005 says that they’re now included in s.5 of the Corrections Act on page 75 providing for correction facilities to be operated in accordance with rules set out in this Act and regulations and if one considers Europe and the jurisprudence of the European Court which refers to these with some regularity now, if one thinks of it as from Vladivostok to Reykjavik. I’ve forgotten how many countries it is, but it’s well over 30. So 30 countries recognise that the Human Rights Committee whatever its status is they’ve got to be given some consideration and it would be a nice esoterical debate as to whether it’s part of customary international law or not but whilst I’d like to engage in that I don’t expect anybody else would. And I refer for example to Keenan on para.276. Keenan and the UK. Although the segregation unit was visited each day by a doctor, the prison chaplain and the prison governor, and what did we get, we didn’t get any of these people visiting them each day so we really just have appallingly poor standard by international practice. Mental health checks beginning on page 78. My learned friends do say that the Judge in the Court of first instance said the health check were in accordance with community standards but we really didn’t have any real debate or argument or evidence of this and we didn’t get into the issue in any meaningful way of mental health checks as opposed to others and as will be obvious from the additional paperwork that I put to you there, the Ombudsman at para.280 tells us that 89.4% of prisoners have a current substance abuse or dependence, and a third of those had a range of other mental disorders and nearly 60% have a major personality disorder. And there’s a particular need in prisons for mental health care and the mental health in its briefing paper to the incoming Minister at para.281 says ‘there is resulting pressure on forensic mental health services, demand for secondary care and a range of negative effects arising from poor quality mental health care because there’s little clarity about the division, effectively there’s little primary or secondary mental health care in prisons. So there’s a black hole for mental health care in prisons and turning the page there it appears that neither Corrections nor Health are funded for primary health care. Opportunities for Ministerial input may arise’. Well it’s astonishing that given we’ve got such an enormous mental health problem, including ones of my clients, that there’s no provision for this in the prison so it is submitted in 284 that the systemic failure should be of sufficient concern to give a breach of s.9 in respect of everybody because that’s a major funding and who is worse than a prisoner in terms of needing their rights protected well in my submission it must be a prisoner with mental health problems or

alternatively somebody with mental health problems out in the community. They are the most vulnerable in society and yet we are doing nothing to protect them.

Tipping J What is the significance in the reference to primary mental? Is that in contra-distinction to some other aspect of mental health Mr Ellis?

Ellis Yes, primary as I understand it would mean like your primary health source, normally your GP, so it’s going to be in this context. Your psychiatrist or your psychologist and then further specialist services will be

Tipping J For the first level so to speak? Ellis Yes, first level.

Tipping J Yes.

Ellis Then secondary care would be at the mental hospital. And in, I mean I did engage in this I guess in the High Court, Livingstone and Owen the book on prison law in its third edition in 2004, that’s got a whole new chapter on health care in prisons and it notes that some of the European cases which say ‘you should have three psychiatrists and two psychologists in a prison the size of Auckland and we’ve got one psychiatrist who share between Mt Eden and Auckland prison, who comes around whatever, you know it is a very low standard but that will be for another day, though it is a significant worry. Right, so that takes me to my conclusion before Mr La Hood. Well there’s an atmosphere of impunity and a failure to investigate abuses. And I’ll just read a little passage from 289 and 291 and sit down. ‘Lord Steyne was right when he said it is not uncommon for persons invited to consider whether such treatment is acceptable for others to remark they were murderers. Possibly while no Judge would articulate any contrary premise, there may be at least subconscious influences in that direction’. And Lord Hewart in 1925 said ‘the State may sometimes be compelled to be stern, it must not be cruel, it cannot afford to be indifferent’, and with respect your Honours neither can you and I look forward to the judgment on this in due course.

Elias J Thank you Mr Ellis. Yes Mr La Hood.

La Hood Now the first part of my submissions look at in the same way the Court of Appeal did the various factors under the s.27 issue before the Court. There were three ways the Court of Appeal broke it down and they’re set out at para.2. I’d just like to make it clear in relation to (c) the non-compliance with the statutory requirements that they’re not advanced in this Court other than to the extent that those breaches were in relation to the

superintendent and medical visits. So it is really just (a) and (b) that Your Honours have for you and I apologise if the submissions haven’t made that clear, so what I intend doing is dealing with those more explicitly under those two heads and at para.3 I’ve just summarised in essence what the proposition is in relation to both those points. And in relation to the first, which is the failure to allow an ex post facto hearing of the decision to put an inmate into PMR. The essence of the submission is that the Court of Appeal accepted Justice Young’s finding that in essence this was a regime which required a disciplinary hearing because it was effectively a penalty regime and that’s one of the reasons why it breached legislation and the Court of Appeal went so far as to say that it was not expressly stated but it must have been implicit that such was a breach of s.27. So that’s the essence of the submission on point (a) and I’ll give more detail to that now. In relation to the way I’ve put it in my submissions for the appellant at para.4 is fairly simplistic I accept and because of that and how I can see the Crown are going to now respond to that I will have to as part of my submission deal with the Crown’s response. So in the Court of Appeal’s judgment at para.231 they do say, and this is the case on appeal, the page is 242 onwards, that Justice Young found that segregation on BMR with the resulting loss of conditions which applied to non-BMR prisoners, required Corrections to follow the disciplinary process of the PIA or the regulations and this required notification of the allegation and the right to a fair trial by an impartial Tribunal. He found that Corrections had failed to do this which, although not expressly stated, would have amounted to a breach of s.27 of the Bill of Rights. And then the Court of Appeal go on to deal with non-BMR prisoners which is not before Your Honours, so the proposition is having reached those findings and having before them then an appeal against the failure to make a declaration of the breach it is a matter of logic having found that it must have been a breach of s.27, the declaration to that effect should have issued. In fact both in the High Court and Court of Appeal judgments there is no analysis of why declarations didn’t issue. I accept that it may be a question of residual discretion but that doesn’t seem to have been addressed and in my submission the declaration the declaration should have issue given that it was a substantive and substantial failure and protection that was breached. Now the Crown response to that which I need to deal with I think in my submissions.

Elias CJ Sorry, given I think that you said that it was this, sorry you just said given that it was a substantial breach of what?

La Hood Natural justice, s.27.

Elias CJ Oh so it’s s.27, that’s right. Yes I was just trying to work out whether you were going back into the statutory regime but you were going straight to s.27?

La Hood Yes, because it’s without doubt a breach of the statutory regime given the findings of the Court and I need to I think just address that aspect of it in order to deal with the Crown’s response and to put to rest in my submission any suggestion that this wasn’t a penalty regime because that in effect is the Crown’s response and the Crown says in their submissions the only flaw in the argument is that this was not a penalty regime. Well my submission is that that is contrary to the findings of both the Courts below and what the Crown is doing is confusing the motive for the regime with the effect of the regime, so what the Crown should be saying in my submission is that this was not meant to be a penalty regime. Self- evidently in my submission from the findings of the Courts below it was in fact a penalty or punishment regime and that can be seen not only from the para.231 I’ve just quoted but firstly from para.73 of the Court of Appeal’s decision which is a case on appeal 198

Tipping J Was this because the drop in conditions if you like made it penal however one intended it to operate?

La Hood Absolutely Sir, yes. So that’s made clear in my submission from these two paragraphs of the Court of Appeal’s judgment. First of all para.73 at page

198 and in that paragraph Justice O’Regan for the Court deals with the submissions outlined at the start of para.72 that it was inappropriate to describe removal of non-essential items as punishment and the Court in 73 rejects that submission and says where the conditions in which an inmate are held are substantially reduced in the circumstances where the inmate is confined to the cell for 22 or 23 hours a day, the Judge’s conclusion that this was unlawful in the absence of a proper misconduct process being conducted and a withdrawal of privileges being found to be an inappropriate punishment is unsurprising. And again at para.189 of the judgment, the Court of Appeal, at page 230 of the case

Elias CJ Sorry page 1

La Hood 230

Elias CJ Yes.

La Hood Paragraph 189 and this is a contention that was made by the appellants whereby there may have been some confusion but Justice O’Regan said the other aspect of this ground of cross-appeal was the contention by Mr Ellis that Justice Ronald Young was wrong to conclude that detention in BMR was not a punishment. We are puzzled by this contention at least in so far as it relates to BMR. The Judge’s conclusion in those paragraphs was that the reduction in conditions inherent in the BMR was unlawful because reduction in conditions was not permitted in relation to the

segregation under s.7. In other words the Judge said that the reduction in conditions had a punitive aspect to it which was the very reason it was in breach of regulation 155, so those two paragraphs as well as 241 make it clear in my submission that the Court of Appeal has found it was a penalty of punishment imposed without due process. Another aspect of this which was in various parts of the evidence including some correspondence between head office and the prison where terms were used such as punitive, but perhaps the most telling piece of evidence as to what was intended by the regime is contained in Mr Ellis’s thesis at page 72. That’s the pink volume Your Honours. What is contained on that page

Elias CJ Sorry what page is it, I missed it? La Hood Oh sorry, 72.

Elias CJ Yes thank you.

La Hood What this document is is the induction sheet that was given to at least Mr Robinson and Mr Taunoa, what was given to some of the others wasn’t very clear, but you’ll see from the highlighted or the bold part, this is what the inmates in the cells were told ‘as in life on the outside where a single big mistake often results in imprisonment, your coming here is the price you pay for stuffing up in prison.

Tipping J This is the ipsissima verba if I may be allowed the expression – these are the very words of the notice?

La Hood Yes, yes.

Elias CJ Don’t we have it as evidence.

La Hood Yes, unfortunately because of the extensive volumes of documentary evidence they haven’t been provided to the Court on appeal, to this Court. We have all the transcript of the evidence but not all the documentary evidence because there was another I think 12

Tipping J I’m just curious that this is a somewhat unconventional place to find it. La Hood Yes.

Elias CJ I think we need Miss Gwyn’s confirmation at some stage that this is what went to all the prisoners.

La Hood I can provide the Court with the reference. I have it here as to the volume and page number if you’ll just give me a moment.

Elias CJ There’s no need for it now, that’s fine. La Hood The document was also

Elias CJ It’s in the record in the Court of Appeal. If you just provide the reference that will be fine.

La Hood Yes it’s the green bundle from the Court. So that in my submission is just one piece of evidence towards those findings in the Court of Appeal which just gives some flavour to why these findings were made. So in my submission the appellants’ confused motive with intention. There may have been more than one purpose and the motives may have been commendable but the fact remains that they were unlawfully subjected to a penalty regime without a hearing.

Elias CJ I’m a little exercised as to why whether it’s a penalty regime is key to application of s.27, because s.27 is expressed in very broad terms and if you have an authority in charge of inmates in a position of power in respect of them, I would have thought on the fact of s.27 it’s capable of applying in any event.

La Hood Yes well I’m slightly perplexed by it as well but I suppose I’m responding to the respondents’ submission in this regard. In my submission it’s not crucial to a finding of s.27 that it was a penalty regime but I suppose that the respondents are saying that if it wasn’t a penalty regime and the intention was to only segregate them for good order and discipline, in other words that’s where we come into difficulty between what in fact done and what was intended to be done but their submission as I understand it is that this was intended not to be a penalty regime but was for good order and discipline and s.7(1)(a) does apply and the Court of Appeal in Bennett have said that a right to a

Elias CJ Oh yes Bennett, Bennett is the difficulty, yes.

La Hood The Court of Appeal in Bennett has said that if it’s for good order and discipline reasons which is not a matter we’re appealing here, if it’s for good order and discipline reasons alone then you are entitled to not hold a hearing. All that is required is giving them reasons for the detention and allowing them to have access to legal advice.

Elias CJ And is it accepted that that happened here, the people were given reasons and had an opportunity to obtain legal advice?

La Hood It’s not a matter that is on appeal before Your Honours if I can put it that way. It’s a difficult question to answer, it depended on the individual and whether it was satisfactory reasons is another matter, but that was all part

of the s.23(5) breach as well, because Justice Young, you will see him making his findings under the s.23(5) breach refuting detail to the inadequacy of the reasons and the process by which people were informed of their placement on BMR, so that concerned him greatly on the evidence but it wasn’t the matter that was argued expressly in terms of s.27 or has been appealed on that basis.

Elias CJ Right, well it’s just that s.27, I wouldn’t have thought is predicated on provision of a hearing because natural justice takes its content from circumstances.

La Hood Yes, but I think that’s where the Crown and I part company because they say you can still characterise this as good order and discipline segregation which then means there’s no right to a hearing. My submission is that on the factual findings as contained in the paragraphs I’ve just taken Your Honours to, that self-evidently that it was more than just a good order and discipline segregation in which case as the Court of Appeal found there should have been a hearing in the form of or akin to a visiting justice hearing pursuant to the Act. It becomes slightly confusing I do accept because

Elias CJ I’m just trying to isolate really what is an issue and what isn’t an issue.

Segregation for good order and discipline as constituting a s.27 breach is not before us, is that right?

La Hood No it’s not Your Honour. Elias CJ Right, thank you.

La Hood Thank you. The only rider to that is in terms of the second part of the submissions I haven’t come to yet as to superintendent and medical visits because that applies equally to both the BMR segregation and to an administrative segregation. In this case you only had before you a BMR segregation so it need not trouble you in terms of a non-BMR segregation. But dealing with my point (a), no it’s not before you.

Elias CJ Thank you.

La Hood So the Crown in my submission by saying that the motive was laudable have confused as I said, motive and intention. That sort of argument wouldn’t hold must muster in a criminal Court for example – I’ve just had occasion to look at Adams in this regard – looking at things such as mental elements Adams says ‘looking at mens rea this latter term, or guilty mind is the term, can however be misleading for as a general rule it is not essential that an accused knew that the conduct was illegal or immoral and the fact that the accused’s motives were innocent or even laudable will

usually provide no defence’. It then goes on ‘knowledge of illegality or immorality of motive is not required, generally it will suffice at the accused intended or was reckless as to the conduct in question’. So in short motive is irrelevant to my submission. Ignorance of the law is no excuse; laudable motives were no defence and whether or not there was any bad faith just applying the basic Sharhed propositions a lack of bad faith is neutral.

Elias CJ Except perhaps as to damages.

La Hood Except perhaps as to damages, yes. So then just dealing with the other submission of the respondents, and this is where matters do become more complex, because I’ve made reference by analogy to the European Courts’ decisions and the almost recent decision being Izar and Connors in relation to prison disciplinary proceedings and the fact that they withheld following that decision in the Greenfield decision to constitute criminal proceedings for the purpose of Article 6 of the European Convention which would then of course invoke our equivalence under the Bill of Rights sections such as ss.23 and 25. In my submission that’s a point of confusion that need not trouble Your Honours because our s.27 doesn’t have an international equivalent as you’ll see from the Butlers commentary on this which is at tab 74 of the final volume of the appellants bundle. We’re not dealing with an article 6 equivalent here so it need not be categorised as a criminal proceeding for a s.27 breach to be found

Elias CJ Nor need it be adjudicative in character on your submission.

La Hood In my submission it is adjudicative in character. But I develop that point really in relation to point (b) in further details but the submission in relation to the point (a) is that the Crown point to cases when their bundle from tabs I think it’s 32 onwards such as Greenfield and I simply invoke them by analogy to show that in England and Europe that the prison disciplinary proceedings are seen to be serious matters and in some occasions they seem to require full trial rights, especially it seems if there is an increase in the incarceration pass the release date which I accept is not an issue here, and the Crown says well they’re not applicable and I accept that the Court need not determine whether they’re applicable or not but they help inform the decision in this case as to how other jurisdictions see the seriousness of disciplinary proceedings, so in summary in relation to ground (a) I could take you to those cases in more detail but I’m not sure of the extent to which the Court would be assisted by that. For example

Tipping J Could I just ask for one point of clarification? It seems to me from what you’ve said so far that the sole point at issue is that the Court of Appeal in

effect said that this was a breach of s.27 but it didn’t actually formerly declare that, is that the compass of this issue?

La Hood It is Sir and the only answer the Crown has to that is well the reason is because it wasn’t a penalty and I think I’ve answered that, and I say that perhaps it wasn’t meant to be a penalty but it certainly was in fact a penalty. And other than that there’s all sorts of in my submission potentially complicated factors that need not be gone into because our s.27 doesn’t have an international equivalent as to whether this is a criminal- type proceeding or not.

Elias CJ I don’t understand quite the emphasis on the ex post facto hearing, is that what you said, yes ex post facto hearing or subsequent review. What impediment was there for the prisoners themselves to challenge what happened to them and

La Hood There simply wasn’t a mechanism of challenge.

Elias CJ And you say there should have been a mechanism of challenge?

La Hood We say given the findings of the Committee regime there should have been a hearing for a visiting justice and that’s exactly what Justice Young said to determine whether, because in each individual case they

Elias CJ But that’s not ex post facto, that’s really the point that I’m raising.

La Hood Well that label perhaps isn’t that helpful. That’s the way that the Court of Appeal and Justice Young have labelled it but I suppose what they’re saying is you could always segregate on an urgent necessity basis much akin to bail if there’s some serious problem and then have a hearing to determine whether there’s a guilt for a punishment because what Justice Young has found is that if you are going to punish people then you must have a hearing, and even if it’s punishment in prison, to determine the guilt. That never happened here. What they had is incident reports. Reports from managers going to people who decided on BMR; they would look at the reports without any hearing from the inmate and determine whether they thought there was enough there. So no ability to cross- examine any of the evidence on which they were placed in the BMR.

Elias CJ So that’s the fact that no hearing was conducted before they were admitted to the regime but you would accept that urgent administrative segregation could have preceded that determination.

La Hood Within the statutory requirements, yes, provided it fitted the statutory requirements, yes. And in most cases it did. For example Mr Tofts and Mr Kidman were held in Rimutaka Prison for many months before they

were taken to the BMR and Mr Taunoa I think for many months as well. Those were challenges to their length but certainly

Tipping J Your case in short is that they were punished without a right to be heard? La Hood Yes, that’s it.

Tipping J It’s no more or less complicated than that as I understand it.

La Hood No it’s not Sir, that’s it, and there should have been a declaration to that effect and the source for that declaration is s.27. And so in short my submission is that s.27 annexed the common law right to natural justice, at least that right and arguably if you read the Butler commentary more than that but at least that right to natural justice. The Crown accepts that where there’s a criminal aspect the common law right to natural justice applies and therefore s.27 is engaged in my submission.

Henry J Does this complaint apply to both s.7 and s.7(1)(a) segregation?

La Hood It did in the Courts below but it’s not in this Court - that’s not an issue because the BMR inmates were found not to have been lawfully segregated under those sections.

Henry J So it’s really under s.7 is it?

La Hood Only with the BMR segregations that were purported to be under s.7 but they were in fact not under s.7. Had they been under s.7, or they had been lawfully under s.7, then this argument wouldn’t be made, no. Now unless I can clarify anything further on that

Elias CJ Well what do you say about s.7 and s7(1)(a)? Do you say that s.7(1)(a) is the power to segregate for urgent need for a limited period or do you say that the BMR regime could have been adopted under that?

La Hood Well I would say the former and not the latter but I think Justice Young essentially found that perhaps the BMR regime could have been formulated under s.7(1)(a) lawfully if certain things had been done that weren’t done.

Elias CJ And that has not been appealed?

La Hood No because it doesn’t directly impact upon any client because they all had declarations that it was unlawful and in breach of s.23(5) and the BMR has been closed down so it was essentially moot before this Court but it certainly was argued in the lower Courts when Mr Allison detailed that even if you use the statutory, even if you follow closely the statutory

requirements of s.7 and get 14 days approval and only renew it upon the head office’s approval, the chief executive, after three months, that continuously doing that in a BMR regime was unlawful per se but Justice Young had no reason to make that finding and it’s not now appealed because the appellants were essentially successful without the need for it. So it’s not before Your Honours if that makes the point clear. So then dealing with the second issue under s.27 which perhaps can’t be summarised quite so succinctly, this is in relations to the breach of the requirements under the regulations for superintendent visits, daily visits and medical officers visits in accordance with the regulations and there was a clear finding from Justice Young and it seems he was disturbed by this that such visits were a form of intended independent check and review on the inmates day-to-day placement and to ensure an outward review of complaint and review of the daily segregation, and Justice Young went so far as to categorise this as an important right. None of those factual findings were challenged in the Court of Appeal but the Court of Appeal accepted the submission from the Crown and this is in judgment at para.239, page 245, that neither the superintendent nor the medical officers had adjudicative function in relation to the segregation of an inmate to which s.27(1) could relate. Now that is not accepted as being correct and that’s the basis of the appeal against that finding.

Elias CJ Yes.

La Hood The submission is that s.27(1) was engaged by that important right being denied and I just develop. What the Court of Appeal, the full Court has now said twice, both in this case and in Bennett is that segregation of prisoners is a matter for which (a) you have judicial review, which in my submission makes it on the face of it a judicative nature and a matter for which s.27 applies – I’ve just taken you through that. So effectively the Court of Appeal is saying whilst it applies at some point it ceases to apply at the point of superintendent’s visit.

Tipping J Are you saying in effect that they have the power to make a determination as to whether the person should stay in that condition? Is that the way you relate it to the words of s.(27)(1)?

La Hood Yes it is Sir, because the superintendent you will note is in fact the very person who makes the initial order for segregation and head office after the 14 days is in fact reviewing the superintendent’s decision, not imposing it as at first instance decision-making. So the superintendent

Blanchard J Does a medical officer have the power to order release or simply to recommend release?

La Hood I accept that the argument’s slightly more difficult for medical officers because they’re not the ultimate decision maker but if one accepts that the medical officer’s recommendation would have had an impact upon the continued segregation, which in my submission is clear from the findings, because they were directed to recommend whether it’s suitable for continued placement, then that also engages s.27, because it impacts upon the continued segregation.

Blanchard J But a breach of natural justice would presumably be by the superintendent rather than the medical officers even in that case.

La Hood Well the breach of s.27 could in fact in my submission be per se because of a lack of a visit, whether you sheet it home to the superintendent

Blanchard J But who’s breach is it, that I want to know?

La Hood Well the superintendent would be sued I suppose.

Tipping J But how could the medical officer have the power to make a determination other than influence a determination?

La Hood Yes I accept that the remedy would have to be against the superintendent but the medical officer’s breach of the regulation could found a breach of s.27 upon a proceeding where the superintendent is sued, is my submission.

Elias CJ Well why would you go out of s.27 on that? La Hood Sorry Ma’am, I’m not sure

Elias CJ Well I just don’t why you invoke the medical officer in that.

La Hood Well I suppose the question I thought was being asked of me was could the medical officer’s breach of the regulation, the failure to do what he was meant to do, found a breach and in my submission it could, yes.

Elias CJ A natural justice breach?

La Hood Yes if the medical officer had a function which related to the continuation of the segregation. Let’s look at it in my submission, it’s accepted now by the Court of Appeal, and there’s no appeal against it as I understand, that s.27’s engaged by segregation

Tipping J By the decision to put into segregation?

La Hood Yes, but is part of the procedural fairness and looking at it in much the same way as a judicial review, it’s part of the procedural fairness that’s required for segregation, an insurance that it is reviewed and it continues for no longer than it should. That any important right of review means that that’s been done in accordance with the requirements and in my submission as a matter of basic procedural that the decision-maker complies with their obligation to review it on a daily basis must be part of the procedural fairness tied up in the segregation.

Elias CJ Well not necessarily because they’re not, I mean s.27 isn’t described by the regulations and the legislation which defines what various officers must do.

La Hood No I accept that per se it may not be but because of the way that it is in my submission rightly been categorised by Justice Young as an important intended right of review and check that on a daily basis segregation is appropriate. Because of those findings, not just as a regulation that’s required to be met but an important right of review and check that that then elevates it to a s.27.

Elias CJ I would have thought you got there much more directly through the superintendent, because I would have thought that the superintendent can put them in, the superintendent can take them out. There’s a continuing responsibility on the superintendent and I would have thought you’d get there on s.27 just focusing on his powers.

La Hood I wasn’t, I hope I wasn’t suggesting I was resigning from that. Elias CJ No.

La Hood No, that is my primary submission.

Tipping J But I would have thought the best place for you where this point about lack of medical check up bites is that it could contribute to the significance or weight of the breach under 23(5) or s.9.

Blanchard J It seems to me it’s really artificial to try and bring it within s.27 because you’re almost arguing on the basis of a hearing that was supposed to take place, that didn’t take place and alleging a breach of the procedure at the hearing that never took place. Aren’t you better to go directly to s.9 or

23(5) and say as my brother Tipping says, this is an additional factor in relation to the alleged breaches of those sections. I find this rather illusory. I can see where you are coming from in the argument about the beginning of the process, the beginning of the segregation, if I can call it that, but as for this business of daily visits etc, I find that rather weak in relation to s.27.

La Hood In my submission I have to accept that the argument’s stronger for the superintendent than the medical officer for the obvious reason that the superintendent is the decision-maker, but as to whether it can inform the breach of sections 9

Blanchard J I don’t really see that it makes a lot of difference at the end of the day. If it’s something that shouldn’t have happened, there should be remedy for it, whatever remedy is appropriate. It doesn’t much matter which hedge you put it under and to try to get it under 27 as well doesn’t really improve things.

La Hood I suppose there’s two issues to that. As it applies to the superintendent in my submission if it is put under s.27 it does improve things because then it becomes a matter that will be looked at on judicial review if there’s an important right of review and check by superintendent on a daily basis that’s not been conducted. As to the medical officers I take your point Your Honour. As to the medical officers of course that has already informed Justice Young’s decision on the breach of s.

Elias CJ But forget for a moment Justice Young said, what’s the power or the obligation that you’re relying on in respect of the medical officer, is that

La Hood It’s the regulations

Elias CJ 149. No it’s not 149 because that

La Hood Regulation 63 provides

Elias CJ I don’t think we’ve got it.

Tipping J This is a Penal Institution Regulations 2000. Elias CJ Yes.

Tipping J 2000.

La Hood There’s two regulations from what Justice Young makes his finding that there should have been medical visits is my understanding

Elias CJ Is it set out in his judgment?

La Hood It will be Your Honour yes, if I can just find it.

Tipping J My screen says these have been revoked but presumably they’ve been replaced by

La Hood They’ve been replaced by the Penal Institution’s Act 2004.

Tipping J I’m just priding myself on actually having got them up here and then I see they are revoked.

La Hood Yes they are revoked. Para.198 which was at the case in appeal, tab 9, you will see that first of all. My submissions make reference to paras.188 through to paras.201 of the judgment which start at the case on appeal on page 119 where Justice Young sets out the relevant regulations including

149 and concludes at para.198.

Blanchard J Well if there’s a breach of regulation 149 going on you can get judicial review as a remedy in relation of that quite directly without having to clamber through natural justice.

Elias CJ Although one 127, I mean s.27 of course also encapsulates your right to judicial review so you’re into s. 127 as well.

Blanchard J Yes, but we were talking in terms of natural justice but I accept what you say.

La Hood Yes, there’s also regulation 63 which makes reference to a medical officer of an institution must ensure that special attention is paid to an inmate who is confined to an isolation cell and Justice Young refers to that in para.198 and especially at the end regulation 63(2) where you’ll see on top of page

120 of the case he sets it out in full.

Tipping J An isolation cell, that’s what your people were La Hood Yes there was much argument about that but Tipping J But it’s been found.

La Hood Yes.

Tipping J Well they didn’t even tell them, they didn’t even tell the Doctors that these people had been

La Hood Because they thought they weren’t in isolation.

Tipping J Well exactly but the simple fact is that Doctors can hardly be criticised, I

know you’re not really, but your just saying it just didn’t happen.

La Hood Yes that’s right, yes. So I do accept that there are other remedies beside a breach of s.27 but just because there are other possible remedies available doesn’t mean that this can’t also be a breach of s.27.

Elias CJ But there are obligations imposed on the medical officer but there’s no determination that the medical officer on the regulations you’ve taken us too so far has to make.

La Hood No I accept that.

Elias CJ Yes, so therefore s.27(1) doesn’t really seem to springboard off the obligations of the medical officers?

La Hood Other than I rely on the way that Justice Young has formulated in para.198 of the judgment.

Tipping J But how could he say or how could anyone say there’s a breach of s.27 by the medical people if they have no power to make a determination which you’ve acknowledged. I think we’re just chasing our tail here on a point that’s very very trivial in the context of this whole case.

La Hood Well I’m happy to move on. I said my prime argument is in relation to the superintendent and

Tipping J I mean the medical aspect of it is very significant in my view in relation to the other parts of the case but frankly this I think it’s becoming far too esoteric.

La Hood What I rely on is the way that Justice Young has formulated it in para.198 as seeing these as an important right that was essentially

Tipping J But he didn’t bother to tell us what right. I mean I don’t mean that pejoratively but

La Hood Well the right of independent check and review. Tipping J Yes, it is important, it’s very important.

Elias CJ We it was in effect precluded by the determination of the superintendent.

That’s what really stopped there being medical checks as envisaged by the regulations.

La Hood Yes I accept that Your Honour.

Elias CJ I’m also not quite clear, I’m sorry, that regulation 149 since I’ve got it in front of me was there breach found of regulation 149(1) and (2)? Were those found or not?

La Hood I don’t think there’s been any finding on that but it was certainly argued but it’s not really

Elias CJ Well I would have thought if you were into natural justice those absolutely key.

La Hood There was some argument about, I’m not sure whether this case or in Bennett now that I think about it at what entails the, or what’s encapsulated by the right of being told what the reason is and Corrections thought it was just simply giving him a bit of paper saying that this s.7(1)(a) good order and discipline and we submitted that it was slightly more than that but it’s not a matter that’s troubled any of the Courts below and they were effectively told in the way the induction sheet that we’ve already gone to sets out – you’re in BMR because of your poor behaviour. We did submit in the Courts below that wasn’t sufficient but Justice Young found essentially that in these particular cases that the Bennett requirements were complied with.

Elias CJ And the secretary wasn’t notified but there’s findings on that, is that right?

Subsection 6.

La Hood I’m not sure that much argument focused on subsection 6.

Elias CJ I would have thought that regulation 149 was a principle natural justice swingboard which is why I was keen to understand what happened in relation

La Hood It is but I think it just became too complicated. Essentially Justice Young accept that they were told in a general way that they were on BMR because of their bad behaviour and that really became slightly less important than was s.7(1)(a) complied with, was regulation 155 complied with, were the superintendents visiting as they should be, not to mention all the other concerns about the conditions about the detention, so it sort of became sidelined as an issue.

Elias CJ Thank you.

La Hood Para.191 of the judgment in the High Court Mr Ellis refers me to. Elias CJ Sorry what paragraph?

La Hood 191. It’s a case on appeal page 119. There’s common ground between the parties that the medical officer for Auckland Prison was not notified of BMR admissions. I’ve already concluded that inmates in BMR were isolation, and again that was because of the misinterpretation of the regulations as to isolation cells essentially. But the importance of a s.27 breach in my submission and given this was to held to be an important right is twofold, not just a judicial review of lies from it but also declaration as to a breach for fundamental right

Henry J Can you just help me out on that. What is the fundamental right which was breached in this respect?

La Hood The right to natural justice which is encapsulated

Henry J But be more particular.

La Hood In this particular case the right to know that the superintendent was checking you on a daily basis to make sure that you are still appropriately segregated.

Henry J The right to know he was

La Hood The right to have the superintendent check on you as required by the legislation to ensure that you are properly segregated. To ensure that your segregation lasts no longer as is necessary, which it was categorised as an important right. I’m relying on the right categorised as an important right by Justice Young which is that the superintendent had to check on you daily to make sure that you were appropriately segregated and for example in Mr Rimene’s which is one appellant who is not before you, there was a

Henry J I can understand that that’s a breach of the regulations and his obligations but I’m not quite clear how it constitutes a breach of natural justice.

La Hood Well because the superintendent is the person who has segregated you because the Court of Appeal has said in Bennett, the full Court and this case that s.27 applies to the segregation and if the decision

Henry J Can you help me as to how it applies apart from perhaps the decision to segregate but this goes beyond that in your ground (b) and (c) it’s talking about the periodic visits.

La Hood Yes my submission is that if it’s accepted that s.27’s engaged, the segregation decision engages natural justice, that the important right of review of that segregation is encompassed within the procedural fairness requirements of s.27, because the decision-maker is required to visit you and check that your segregation should continue.

Tipping J Is it inherent that you say the superintendent has a day-to-day obligation to continue to monitor the segregation and that implies a right to hear from you as to why you shouldn’t be continued in segregation?

La Hood Yes it’s more than that. Justice Young accepts that this was an important opportunity

Tipping J Like my brother Henry I’m trying to sort of get a clear view. The right to be heard, is it the right to be heard as to whether you should continue in segregation?

La Hood Yes. Tipping J Yes.

Elias CJ Well, and to know of the reasons why you’re continuation in segregation is necessary because there is an obligation to keep that matter under review.

La Hood Yes. If I can just use Justice Young’s words myself

Henry J Just to help me finally on that point, I don’t want to pursue it any more than is necessary, but we’re concerned with s.27(1) aren’t we?

La Hood Yes we are Your Honour. I’m just trying to find Justice Young’s use of the term ‘important right’

Henry J The observance of the principles of natural justice by any public authority which has power to make a determination in respect of rights, obligations or interests.

La Hood Yes and the superintendent in this case did have the power. Henry J What are the determinations which you say are an issue here? La Hood The decision to segregate.

Henry J Sorry?

La Hood The decision to segregate. Henry J That’s the initial decision?

La Hood Yes and the decision to continue the segregation. Para.195.

Henry J And how often does the superintendent have to make the decision to continue?

La Hood Daily.

Henry J Each day. That’s under regulation?

La Hood Regulation 149. Paragraph 195 of Justice Young’s decision case on appeal page 119. ‘There is no evidence there was any such visits to any inmate’.

Henry J I’m not talking about a visit, I’m talking about a determination to continue. La Hood Yes if I can just continue that’s covered in my submission by the

paragraph. ‘The exceptions seem to be the occasional visit by unit manager, Mr Sweet, who would walk down the landing on some mornings. This provided an opportunity for an inmate to make contact and if required inmate complaint. On BMR this protection of a superintendent was not given to the attendees on a regular basis’.

Henry J Well I’m still having difficulty with identifying the determination which the superintendent makes daily as opposed to having an opportunity for the inmate to question him. What is the determination?

La Hood As to whether segregation should continue.

Henry J Is this an obligation on the superintendent each day to determine whether or not the segregation should continue?

La Hood We could put it this way, if there was a visit and an inmate was to ask whether he should be still segregated, yes.

Henry J Well that’s an opportunity to query why he is segregated. La Hood Well whether it’s put that way or

Henry J I’m still looking for the determination he makes day-by-day,

La Hood I accept I need not put it as strongly as an obligation daily to make a determination but it’s an opportunity to be heard as to that determination which is covered also by s.27. Justice Young is finding here that this is an important right that was denied inmates to be

Elias CJ Don’t you have to say that the determination has to be implied from regulation 149 and that it encompasses continual review on a daily basis of the suitability of the inmate to continue on that regime?

La Hood Yes it could be put that way or it could simply be that the determination as to segregation and part of natural justice – this is the way I’ve put it in my submissions – part of the natural justice in relation to that determination is procedural fairness and procedural fairness in relation to a segregation decision includes a right to be heard on a daily basis by the superintendent; an opportunity to be heard; that’s what natural justice requires. The question is whether the determination is the initial one to segregate or the daily one where it need not matter in my submission because even if the only determination is the initial decision to segregate, is it part of the determination, that procedural fairness or natural justice requires an opportunity to be heard daily in accordance with the important right. And if it is then

Blanchard J The breach is really failing to make a determination each day rather than making a determination but not doing it in accordance with natural justice.

La Hood Well failing to provide an opportunity

Blanchard J I mean it’s far worse if he doesn’t make a determination than if he does make a determination but does it in a faulty way, so this argument actually weakens your case rather than strengthening it.

Tipping J Perhaps it’s implicit and this is only trying to help you Mr La Hood that he makes a determination against the inmate. I think that’s probably a bit strained and I think my brother’s on to a point but that really could be the only answer couldn’t it, that’s it inherent if he does nothing because of the circumstances he’s making it against the inmate without him being heard.

La Hood If the natural justice right to be heard is not given then there must be a determination against them if it’s continued.

Tipping J But frankly why we are getting hung up with this particular case where as the real gravaman of it is the character of the treatment that they got.

La Hood Yes well that’s why my submission’s a few pages at the end. Tipping J A very very good point Mr La Hood.

La Hood Yes, I’ve probably taken up enough of the Court’s time quite frankly.

Elias CJ Can you just let me know, is there a finding in relation to 149(6) – confinement of an inmate in and isolation cell for more than two weeks and the grounds, because that also is indicative of some legislatively prescribed process that one would have thought that that really meant every two weeks not just after the first two weeks.

La Hood That’s never really been to any extent engaged in in the Court below, I think probably because everyone focused on the s.7(1)(a) review period which was the 14 days followed by the three months for the continuation of segregation under 7(1)(a), which of course is the primary statutory provision.

Elias CJ But I must say, I know it’s not engaged in this appeal because of the course it’s taken but I have some real difficulties with the application of s.7(1)(a) in this context and I would have thought that regulation 149(6), particularly its mentioning of the grounds and its envisaging that grounds will be articulated every two weeks, then one would have thought that should be passed on to the prisoners.

La Hood I think in relation to that point Your Honour that because the Court of Appeal’s decision in Bennett the full Court, where in that case there was an argument about what constituted sufficient grounds and the Court didn’t really want to engage in it but all that happened there was they were given a piece of paper saying you are segregated under s.7(1)(a) for good order and discipline.

Tipping J But this 149 is part of the law, never mind how the parties are approaching this. I think speaking for myself I think it has to be addressed. It’s part of the law that it seems they didn’t observe.

Elias CJ Well we probably don’t have even any findings of fact as to whether it was observed or not.

Tipping J I think there are by implication findings that would constitute clear breaches of some of those provisions in 149.

La Hood Yes, I think they’d have to be accepted by the Crown, I don’t know it’s up to the Crown, but given that everything else was a breach of 149 because they had misinterpreted what an isolation cell was, it must follow as a matter of logic that s.149(6) was also breached, but where that takes the appellants in terms of remedies other than declaration of a breach of

149(6) is another issue.

Tipping J It’s not so much remedy per se it’s flavouring for the general character of what went on here and they seemed to be, well I’ll say no more because we haven’t heard the Crown.

La Hood Well in my submission it may be something that everybody’s missed. Tipping J But if this is a case about people in isolation or segregation, why one

doesn’t go to the very regulations dealing with that subject I don’t know.

La Hood Well there was extensive argument in 149 but perhaps 149(6) wasn’t focused upon for whatever reason but in my submission the superintendent’s daily visit was as important, more important than, and categorised rightly as an important right of review, that engaged s.27. And unless Your Honours have any further questions I don’t think perhaps I will advance matters any further than that.

Elias CJ Well thank you Mr La Hood. How are we going with time?

Ellis If I could just give you the one thing I told you I would give you, the section in the South Australian Act, we finish then and they can start. So at my thesis which is volume 7, pink, page 162, this is an analysis of Sandery and in the footnote on the next page Olsson J examines the South Australian power how to segregate prisoners vested in the responsible

........ powers have been delegated to the permanent head, the legislation permitted segregation only in very specific cases, the more restrictive forms were only allowed in few situations which had stringent controls footnote 551 and then sets out the Correctional Services Act 1982 South Australia. S.36 allowed a permanent head to segregate prisoners in the interest of the proper administration of justice when an offence was investigated; ss.2 exercisable only once over a single incident not exceeding 30 days. Subsection 3, separate prisoners without harassment or injury or for the prisoners’ welfare, all of which were limited to seven days and revocable by the permanent head but extendable to a month with a Visiting Tribunal’s approval. So there was statutory as there is in our situation but the argument was that it was akin to solitary and therefore it shouldn’t be allowed which is my s.17 of the Crimes Act.

Elias CJ Yes thank you.

Ellis The prisoners got nothing, they didn’t get their three monthly review to the head office, they got nothing, they got no paper work at all so they couldn’t have got anything from 149(6). They received no paper work about the segregations at all so I suppose

Tipping J Other than that first document about them stuffing up.

Ellis Yes and they got little ticks – how are you doing, b,b,c,d. You had a (b) you know like your school report but you had no idea and you couldn’t challenge it and you went up and down like snakes and ladders from one phase to another. Anyway thank you Your Honours.

Elias CJ Yes thank you Mr Ellis, than you Mr La Hood. Ms Gywn are we on track?

Gwyn It’s difficult to say Your Honour. I propose to

Elias CJ This is counsel’s assessment of time as I understand it, two days.

Gwyn Yes Your Honour, I will deal relatively briefly with some of the matters that my learned friend Mr Ellis raised in terms of the ambit of what’s been considered by the Court. There are various matters that where there’s a question of whether leave was granted or not so my submissions on those aspects will be quite brief and then I will deal with the s.9 argument. Mr Keith will address the s.27 argument that Mr La Hood has just put to the Court and then Mr Boldt will deal with the cross-appeal in relation to compensation. So it will be relatively tight Your Honour but I think we can do it in two days.

Elias CJ Alright, well we will be in some real difficulty if it’s not concluded tomorrow so if you bear that in mind that it was counsel’s assessment of time and perhaps if the argument could be focused. Thank you. We’ll stick to the normal starting time tomorrow.

Adjourned 4.06pm

10 August 2006 Continuation of hearing


Ellis I have just one housekeeping matter I was supposed to tell you. My thesis, page 72, is where am I stuffing up is in the agreed bundle page 109(3) and page 371.1.

Elias CJ Thank you.

Ellis Thank you Ma’am. Elias CJ Yes Miss Gwyn.

Gwyn Thank you Your Honour. The background to the introduction of the Behaviour Management Regime is canvassed fully in both the High Court and the Court of Appeal judgments and it’s summarised at para. 2 of the respondents’ written submissions and I will just touch briefly on the background to the regime. It was developed as a means of managing dangerous and disruptive maximum security prisoners introduced following the Auckland Prison riots in 1988 and a significant feature is that those persons subject to the regime were in most cases convicted of

offences within the prison regime so it depended not on the nature of the offences for which they were originally imprisoned, and as para.2 sets out, D Block, prior to the introduction of the regime, had become a disruptive and dangerous place for both inmates and prison officers and that was the background to the introduction of this regime. There was a great deal of documentary and oral evidence before the High Court as to the genesis of the Behaviour Management Regime – its institution; what it involved and who was involved in its conception and implementation and this s a point that was touched on by my learned friend Mr Ellis yesterday. That evidence included oral evidence from Mr Phil McCarthy the general manager of public prisons who had direct allegations from the chief executive of Corrections for the purposes of this regime. Notwithstanding the motivation and intention behind the scheme His Honour Justice Ronald Young did hold that the BMR conditions breached s.23(5) of the Bill of Rights Act, essentially for three reasons. The first of those were the fact that the programme breached s.7(1)(a) of the Penal Institution’s Act; the second that it breached Regulation 155(3) of the Penal Institutions Regulations, both of which he described as serious failures, and the third the combination of particular conditions arising under BMR. And I note that in respect of that third reason the Judge emphasised in several portions of his judgment, and this was also picked up in the Court of Appeal judgment, that in arriving at his finding that conditions of BMR breached s.23(5) of the Bill of Rights Act, he considered the scheme overall. He noted at para.276 of the High Court judgment by themselves none of the individual factors he considered may be sufficient. Collectively they overcome the threshold of serious failure and that’s a point about the totality of the conditions that I will come back to Your Honours. Of course the Court of Appeal went further than His Honour Justice Young did and found that the placement of Mr Tofts on BMR was disproportionately severe treatment in terms of s.9. As the High Court noted at para.277, unlawful and difficult behaviour by prisoners can never justify unlawful conduct by their jailers. That has been and is accepted by the respondents without hesitation. The findings of illegality were taken very seriously by the Department. It had prior to this case responded to the Ombudsman’s suggestion about s.7(1)(a) of the Penal Institutions Act. It made changes to the BMR programme before the judgment and it responded to His Honour’s judgment as one would expect by immediately suspending BMR. Legislative change followed advanced with reference to the identified failings of the BMR and that resulted in the Corrections Act 2004, particular section 57 to 61. Such illegalities and failures to meet acceptable standards that have occurred in this case are as the Crown has said in the Courts below sincerely regretted. Against that background it’s important to note what BMR was not and the first point to make there is that at all times BMR complied with minimum legislative standards. The nature of the BMR regime is set out at para.3 of the written submissions. In finding that the BMR conditions were in breach of Regulation 155(3) of

the Penal Institution Regulations which relates to an inmate in an isolation cell on a s.7(1)(a) ground and the requirement that that inmate must be confined under the same conditions as if he were in his usual accommodation. In relation to that finding the Court of Appeal found that conditions in BMR fell below those ordinarily employed by maximum security inmates, not that they fell below the statutory minimum. The second point to note is that while the Crown accepts the inadequacies of BMR it was not a regime where the inmates were

Elias CJ I’m sorry, can you just pause because I am troubled about the compliance with the legislation. I know it may not be before us but it may be that you can correct my impression. I do doubt that it complied with s.7(1)(a) which seems to me clearly to contemplate short-term measures and I certainly query whether it complied with Regulation 149, and of course those legislative provisions have to be construed in a context which includes section, is it, 31 of the Crimes Act.

Gwyn Your Honour is correct that there was indeed a finding of breach of Regulation 149. My point Your Honour is merely that the breaches identified did not amount to a finding that the basic minimum conditions of detention were breached but rather that conditions that would have been enjoyed by the inmates had they been in their usual accommodation in maximum security, the conditions they enjoyed were less than those conditions.

Elias CJ But I’m concerned about the whole question of solitary confinement. Gwyn That is a point that I will come back to in some detail Your Honour Elias CJ Alright, thank you.

Gwyn And hopefully answer your questions there. The second point I wish to

Elias CJ Sorry, and the basic minimum conditions were established in terms of practice were they rather than as prescribed?

Gwyn No Your Honour they’re set out in the Act. Regulation 42 Your Honour, minimum entitlements.

Elias CJ Oh yes, thank you. So you say there was no finding of breach of

Regulation 42 as such?

Gwyn That’s right Your Honour. The second point I wanted to make about the system is that it was not a regime where the inmates were unaware of the reasons for being placed on the programme and this was a point that came up in discussion with Your Honours yesterday and this is clear from

para.307 of the High Court judgment, sub.para.12, sub.para.307(12) of the High Court judgment and His Honour there said ‘I have considered how natural justice principles apply to Mr Taunoa and other inmates detention on BMR. I have concluded while there was an inadequate process for dealing with admission to BMR and some inadequacy in providing access to legal advice. These were typically technical rather than substantive failures. All inmates I am sure were aware of the conduct that resulted in their admission to BMR’.

Elias CJ But no written advice was given to identify it?

Gwyn That’s correct Your Honour, he does go on to say that. The third point I wanted to make, and this is a point I will come back to in more detail, is in relation to the solitary confinement question. This wasn’t a regime where the inmates were consigned to literal solitary confinement. The inmates were not held incommunicado there

Elias CJ Because they could show up between cells?

Gwyn Well more than that Your Honour. Certainly their physical association with other inmates out of their cells was restricted to be limited unlock hours but they weren’t cut off from daily contact with others. They had consistent contact with prison staff and they could communicate with other inmates on the wing from their cells.

Elias CJ By shouting? I’m just trying to understand what you’re saying there.

Gwyn By talking Your Honour as I understand it and I can when I come back to this point take you to the evidence that it wasn’t necessary that they shout - they could readily communicate from cell to cell.

Tipping J Are you saying that this confinement was not literally solitary?

Gwyn In part Your Honour, although when I develop this point I do want to pick up on the analysis that both His Honour Justice Young and the Court of Appeal made which is that in many ways the definitional issue is unhelpful. What it really requires is to look at the particular circumstances of the case and I will take Your Honours to there.

McGrath J I appreciate that the international authorities use solitary in different ways and I understand you to say that we’ve got to look at the particular conditions here, but I think just for my part I’d appreciate at some stage an indication of where all the evidence is that relates to the particular conditions in terms of what Mr Ellis is saying with solitary confinement, because I think we may have to read that, but just one question for the moment; when you say that prisoners could communicate are you saying

that they could communicate with their neighbours, or those near in their vicinity on a basis whereby they could see them as they spoke to them?

Gwyn Not as I understand it Sir, not during the hours in which they were locked in their cells. The fourth point to make about the nature of the regime is that this wasn’t a regime where there was, as was suggested yesterday, an inability to make complaints and to have those complaints dealt with without fear of adverse consequences. There were a number of mechanisms of complaint open to BMR inmates and those mechanisms were repeatedly utilised and one illustration of that is found in relation to Mr Taunoa in the case on appeal volume 5 at page 884 and following. At the bottom of that page starting at line 36 this is cross-examination of Mr Taunoa and the question is ‘You made an incredible number of complaints during your second period of BMR right’ and Mr Taunoa says ‘more so than my first time I think’. ‘Second time round you made a very large number of complaints to the Ombudsman, correct’? ‘Yes’. ‘The inspector’, that’s the prison inspector ‘? ‘Yes’. ‘To your lawyers’?

‘Exactly’. ‘To the Department of Corrections’? ‘That’s right’. ‘The Howard League for Penal Reform’? ‘Exactly’. And you even had one personal visit from the Associate Minister of Corrections’? ‘That’s correct’. ‘So there was nothing about your second time on BMR that wasn’t any way concealed from outside scrutiny was there’? ‘That was concealed from outside scrutiny’? ‘There were lots of people outside the prison system who knew what was going on, right’? ‘Yes because we raised our concerns to their attention’. And then there are further passages on pages 887, 888 at line 24. ‘And to be fair on that point the 0800 numbers for the Ombudsman and inspector are right by the telephone in the unit’? ‘Indeed they are’. And then on page 889 at line 11 ‘You accepted yesterday that you did make dozens of complaints to the Ombudsman and the inspector’? ‘Yes several dozens would be accurate’. And then at line 22 ‘All these issues have been dealt with in the past both internally and by independent agencies, ie Ombudsman’s office etc’. So it’s clear particularly from Mr Taunoa’s evidence, but it wasn’t limited to Mr Taunoa, that there were many avenues of complaint open to the BMR inmates and that those avenues were utilised. I want to turn now briefly to address Mr Ellis’s submissions in relation to the request for reconsideration of the grounds on which leave was granted. The appellants’ seek reconsideration of the Court’s decision as to leave on some questions and also set to raise issues which were not raised in the application for leave. Some not raised previously in the proceeding and in my submission the appellants have not said, or not said clearly, why the Court should reconsider this leave decision. The Crown’s response to this invitation is set out in the respondents’ written submissions at paras.8 and

13 to 19 and in essence that response is that this is not one of those extraordinary cases where the Court ought to reconsider the basis on which leave is granted and some principles on which the Supreme Court of

Canada exercises that discretion is set out but that if the Court is minded to reconsider the grounds of appeal, that the hearing of any points additional to those in which leave was granted be adjourned to enable a full and proper response. I will however touch briefly on the question of an investigation. This is the claim that the Crown failed to investigate what is said to have been credible allegations of torture or ill treatment. In my submission this remains essentially a question of an amendment to the pleadings which was sought by the appellants and which was denied by both the High Court and the Court of Appeal and the question was dealt with squarely by the Court of Appeal at para.245 of its judgment. Mr Ellis suggested that if no inquiry were to be directed by this Court then the New Zealand legal system would be affording the New Zealand Government the opportunity to commit human rights breaches with impunity. He said that the High Court did not even allow an amendment to the pleadings to incorporate a complaint in relation to a lack of investigation. However as already stated the decision of the High Court expressly states that it is open to the respondents to file further proceedings if they wish to pursue these allegations against the appellants. Mr Ellis also suggested that a declaration for breach of s.9 of the Bill of Rights should be made because no inquiry has been held, even without any amendments to the pleadings. It is not open to Court to do so in the present circumstances. The refusal of leave to amend the pleadings was at least in part because the appellants had signalled the need to respond to the allegations by evidence. Since the allegations were not pursued as a result of the Judge’s ruling the evidence is not before the Court. And then at 247, the last sentence ‘The Court cannot make a finding of unlawfulness in relation to a matter which is not properly before it in circumstances where potentially relevant evidence to the contrary is not for it’. So there was an invitation at both High Court and Court of Appeal level for the point in essence to be pursued in another way and in fact

Elias CJ What’s the evidence that you would want to have called? Is it evidence that you did undertake investigations, because as I understand the appellant’s argument, they’re simply saying that a declaration or a direction that there should be an investigation as part of the relief that the Court should have considered which is hardly an additional ground of attack?

Gwyn What the Crown, perhaps I could answer Your Honour’s question somewhat indirectly. what the Crown says, and this is a point recognised by Your Honour yesterday, is that this question properly awaits the completion of this proceeding. There’s no question of bad faith or delay on the part of the Crown. As Your Honour suggested it might even be improper if an inquiry were to proceed at this point. The Attorney-General has said, the then Attorney-General, ‘I’ll await the outcome of the proceeding’ and this indeed is consistent with what was said in relation to

the Convention Against Torture. I have a passage from, which I can hand out, this is a passage from the record of the Committee Against Torture which was referred to in part by my learned friend yesterday and at page 6 of that report, para.32 Mr, I’m not sure of the pronunciation, Mr Mavrommatis who was the country Rapporteur on the Committee said at

32 that he hoped there would be an official investigation into the Taunoa case as soon as the legal proceedings were completed. So that possibility is recognised by the Committee itself that there’s a need to complete this proceeding and at that point the questions will arise of whether the allegations made by and on behalf of the appellants in fact engage the obligation to investigate under the Convention Against Torture. Whether this proceeding itself with

Elias CJ Does that, sorry, does that turn on whether s.9 is engaged effectively? Gwyn Or whether Article 16 of the Convention Against Torture encompasses

s.23(5) as well as s.9.

Tipping J Does that have a reasonable grounds criteria?

Gwyn There has to be a credible allegation Sir and what Article 16 refers to is acts of cruel, inhuman or degrading treatment or punishment, so the question is whether there is a credible allegation which engages that obligation and that in turn has raised a question of whether it’s engaged by s.23(5) or only by the higher threshold of s.9.

Elias CJ Is your contention that the Court couldn’t determine that Article 16 is engaged?

Gwyn Well perhaps at this point I can come back to Your Honour’s other question about evidence would be necessary. What the Court of Appeal recorded the defendants as saying was that it would be entitled and compelled in the circumstances to gather relevant evidence, including extensive evidence regarding the training of prison officers and other public officials and how complaints of torture are investigated in New Zealand and would need evidence of the complaints process within prisons, including prison inspectors, visiting Justices and other internal inquiry processes. So it’s that kind of evidence that would need to be before the Court to enable a consideration then of whether or to what extent this litigation or any other process such as the Ombudsman’s investigation has satisfied already the obligation to inquire and investigate.

Elias CJ Well I understand that you say that a finding that the Crown is in breach of an obligation to investigate may be premature and there may be evidence you would want to call on that, but is there any impediment if the Court finds that s.23(5) is breached or s.9 is breached in its indication that the

matters should be investigated, further investigated, in other words treating it as question of relief.

Gwyn I think there is a question as I’ve mentioned in relation to s.23(5) whether a breach of s.23(5) is sufficient to engage the obligation under s.16 of CAT. I accept that it would be engaged if this Court found a breach of s.9.

Elias CJ It’s not quite the same thing though because what I’m putting to you is not that the Court finds a breach of Article 16 that there has been a failure to investigate, but simply that the Court accepts a submission put to us that to require or to make a declaration that an investigation should now follow is part of the arsenal of relief available to the Court. What is your position on that?

Gwyn I think there is an issue in relation to s.23(5). I accept Your Honour is not saying that there would be a finding of breach but my submission is that there can be no obligation to investigate, that Article 16 isn’t broad enough to impose an obligation to investigate in relation to a s.23(5) breach. In relation to a s.9 breach I accept that such a recommendation would be within, certainly within the ability of the Court.

Elias CJ But suppose we simply decided, or the Courts were to decide that there was a breach of s.23(5) as has been held here, what’s your position on whether it would be open to the Court in providing a remedy to say that there should be an investigation of the position of all of those held on BMR?

Gwyn The terms of any such investigation would in my submission necessarily need to be set by the executive and the difficulty is that none of these issues have been considered. The factors that go to the necessity for or the nature of an investigation have been considered at first instance, so Your Honours would be making that decision and recommendation without the benefit of

Elias CJ Well what considerations could enter into that? I mean there are a number of inmates whose cases are not before the Court. What’s the Crown’s position on that, that they’ll have to litigate?

Gwyn There is indeed litigation on foot Your Honour relating to other inmates, BMR inmates, or alleged BMR inmates.

Elias CJ Well is the Crown’s position that those will just have to take their course? Gwyn In part Your Honour it does depend on what this Court finds, because that

in a sense will answer the question about what is left to investigate. It still

leaves the question of what has not been investigated or inquired into as a result of this extensive proceeding.

Tipping J I wonder Mr Gwyn if we could just have a look while we’ve got this point in front of us, at the inter-relationship between Article 16 and Article 12, because at risk of being accused of tabulated legalism

Elias CJ What volume?

Tipping J I’ll get that out of the way before anyone finds it necessary to say.

Volume 5 of the bundle of authorities of the appellant, because Article 16 contains a reference back to Articles 10, 11, 12 and 13 and of course the substitution of cruel, inhuman or degrading treatment or punishment or torture. So in effect the head article is article 12

Elias CJ Sorry, what page number? Tipping J Page 4 out of 12.

Elias CJ In tab?

Tipping J Tab 47. And what Article 12 says is that ‘Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe’. That was my coded reference earlier Miss Gwyn which I’m afraid was too oblique for you to pick up. Now this is relevant both to breach insofar as we get into it and I don’t think this is on the range of matters for which leave has been granted but of course it was ventilated, but it’s also perhaps, and I raise it in this context particularly, perhaps relevant to remedy and what I am suggesting is that whatever remedial order was made would seem to me to require it to be consistent if it’s to be made at all with Article 12 and I’m just drawing attention to the fact that I think this conjunction if you like is in play in this debate - I’m not necessarily forecasting how it’s in play but we can’t just look at this on the bland terms of Article 16.

Gwyn I agree Your Honour and it’s exactly the respondents’ submission that there must be a credible allegation and in part that will be dealt with by the findings of this Court.

Tipping J But if a competent authority, which presumably the Courts are, although the State hasn’t ensured that we do it, but in a sense at least part of the investigation as I would have thought being carried out by this Court, or the Courts generally, and whether it’s necessary to have yet more investigation, surely must be a debatable point.

Gwyn That’s exactly my submission Sir, that the obligation may well be satisfied by this litigation process and/or other processes that have occurred, such as the Ombudsman’s investigation.

Tipping J I haven’t a view on this point at the moment, but it just seems to me that we’ve got to look at this Article and indeed the convention as a whole rather than just picking out, and I’m not suggesting you are Mr Gwyn, but just picking out convenient bits of it.

Gwyn I don’t disagree with Your Honour that those Articles must be read together – Articles 12, 13, 14 and 16.

Tipping J Well I’m reflecting particularly on the proposition that Mr Ellis says, well up until the Attorney-General got seized of it that there’s some default, well that’s strictly not before us on the grounds as I understand it, but leaving that aside for the moment the Attorney got seized of it she in effect saying well let’s see what the Courts do and then we’ll decide whether we need to do any more. Well with great respect I can’t see much wrong with that.

Gwyn Indeed Sir, the very question of whether the BMR regime amounted to the requisite treatment for the purposes of s.9 is a question that’s before this Court – a decision needs to be made on that and then there’s a platform for a decision as to whether Articles 12 and 13 are engaged.

Tipping J And the duty, if one’s going to look at it in terms of duty in relation to the

Article 12, arises only if there’s been a s.9 breach. Gwyn Yes, a reasonable ground to believe, yes.

Tipping J Well a reasonable ground to believe there’s been a s.9 breach. Gwyn Yes Sir.

Tipping J A s.23(5) breach might be relevant but ultimately the duty only bites if there’s a 9 breach as I read it.

Gwyn That is the submission I made earlier Sir, yes.

Elias CJ My point is different. It is that we’re dealing here principally as a domestic Court with the Bill of Right Act under which there is an obligation to provide an effective remedy. The Courts have indicated in Baigent’s case that we have to think about the appropriate response. What’s been put to us by the appellants is that there are some 200 other people similarly placed but while accepting that a finding of breach may be premature, my question for you is, is there an indication that the State

should investigate others similarly placed so that it doesn’t have to be litigated, is that a remedy that you say we shouldn’t grant if we come to the view that there’s been breach of the Bill of Rights Act? I’m not concerned about whether it’s implementing the Convention on Torture, although that’s part of the background circumstances, I’m talking about a remedy for the Bill of Rights Act breach.

Gwyn I would say Your Honour that the Court’s focus must be on an effective remedy for any breach it finds in respect of the parties before the Court.

Elias CJ Right, that’s what I was wondering whether that was your position. McGrath J Ms Gwyn can I just ask you, while we’ve got Article 16 in front of us, I’ve

been looking at s.16(2) which says ‘the provisions of the Torture Convention without prejudice to the provisions of other international instruments’, is it reasonable to assume that the reference there to

‘inhuman’ in the context of cruel, inhuman or degrading treatment, is bringing aboard the covenant in relation to the provision that’s become s.23(5)? In other words Article 9 would explain cruel or degrading treatment in that passage, but s.23(5) is taken aboard by inhuman treatment.

Gwyn The wording in Article 16(2) directly reflects the wording of Article 7 of the International Covenant on Civil and Political Rights, which says no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, so it’s picking up Article 7 rather than Article 10 which is the equivalent of s.23(5).

McGrath J We have however got two provisions that deal with the duty to treat everyone deprived of liberty with humanity in s.23(5).

Gwyn Article 7, both Articles 7 and 10 do have those, that feature too Sir so I think there is a deliberate distinction between the provisions and Article 16 picks up on Article 7 rather than Article 10.

McGrath J So you’re position is that Article 16(2) is confined to Article 7 of the

Covenant in this reference? Gwyn Yes Sir.

McGrath J Thank you.

Gwyn I’ll turn now to the substantive matters on which the appeal has been advanced and to which the respondents reply and I will deal with the alleged breach of s.9 and Mr Keith will then deal with the s.27 point. The respondents submissions in respect of s.9 are set out starting at para.25 of

the written submissions and they begin with an analysis of the relationship between s.23(5) and s.9. Both the High Court and the Court of Appeal relied on extensive international jurisprudence and academic commentary in finding that s.23(5) and s.9 imposed graduated standards in relation to the conditions and treatment of prisoners. In para.31 of the submissions I refer to a passage from Professor Nowak in his leading commentary and this is at tab 36, volume 2 of the respondents’ bundle of authorities at page

245. The first paragraph at the top of that page where Professor Nowak says ‘inhuman treatment within the meaning of Article 10 evidences a lower intensity of disregard for human dignity and that within the meaning of Article 7’. And then the next tab, tab 37 is an extract from an article by Professor Moller in which he analyses recent decisions of the Human Rights Committee and he sets out at page 667, the second paragraph there, his analysis of the differences in a factual sense between those cases that might lead to a violation of Article 10 and those that might lead to a violation of Article 7.

Tipping Is there any conjunction overseas that we have in 23(5) between inhuman and inherent dignity of a person – is that the standard conjunction or is it our own unique

Gwyn Article 10, ss.1 of the International Covenant on Civil and Political Rights is the equivalent of our Article to s.23(5) Sir, so

Tipping J And it has that conjunction?

Gwyn It has – all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Tipping J Thank you.

Gwyn So the comparison that’s made in these commentaries between Article

10(1) of the ICCPR, that’s the equivalent to s.23(5) and the comparison is with Article 7 of the ICCPR, which is in substantial terms the equivalent of s.9 of the Bill of Rights Act.

Tipping J Thank you.

Gwyn And in both of these commentaries and the cases that I will take Court to demonstrate is that these provisions are seen as imposing a gradation in terms of treatment and severity of treatment.

Henry J Can you just help me on one aspect Miss Gwyn please, in relation to our s.9 what was the origin of the provision relating to disproportionate treatment ? It doesn’t occur in all the other equivalent provisions does it?

Gwyn No it doesn’t Your Honour. It’s not in Article 7 and it’s not in Article 3 of the European Convention on Human Rights either. The White paper in relation to the Bill of Rights noted that the s.9 provision as a whole could be traced to the longstanding prohibition against cruel and unusual punishment and it commented ‘the reference to disproportionately severe treatment or punishment is intended to ensure not only that the Courts can review any type or mode or description or punishment or treatment on the ground that it is per se cruel and degrading, but that they can also review the appropriateness of any treatment or punishment in particular circumstances. So it’s seen as introducing back to

Henry J Yes I had a little difficulty with it because one’s not sure what it is to be proportioned to and one could argue that any appeal against sentence if it’s found to be severe infringes s.9.

Gwyn I think those words Sir are intended to introduce a contextual element of whether a particular penalty or treatment in the relevant circumstances including the characteristics of the effected person, whether it reaches the threshold, so I think it does introduce that contextual element.

Henry J Or they’ll be looking at extremes such as providing for life imprisonment for stealing a chicken or something like that.

Gwyn Yes Sir.

Henry J Just the ordinary concept of the penalty being too severe wouldn’t seem to be within the ambit of s.9.

Gwyn There may be a case Sir I recall I can come back to it, but I think there is one of the European Court cases which in a sense demonstrates the point that Your Honour’s making and it does relate to the particular circumstances and the particular vulnerability of the individual concerned in relation to the sentence.

Tipping J It must take its colour mustn’t it from its own context with the concepts with which it’s linked, it must give it the colour that will help to eliminate you know how it should be applied.

Gwyn Yes Sir,

Tipping J I mean it’s what you might call outrageous rather than just too long.

Gwyn The case I was thinking of Sir is a Canadian case, Wiles, which is in the materials, no it’s not in the materials, but I can hand up a copy and this is a case concerned with s.12 of the Canadian Charter and what the Court says is ‘treatment or punishment which is disproportionate or merely excessive

is not cruel and unusual, the treatment or punishment must be so excessive as to outrage standards of decency. The Court must be satisfied that the punishment imposed is grossly disproportionate for the offender such that Canadians would find the punishment or intolerable’.

Elias CJ That’s defining cruel, is it? Tipping J No, it’s defining disproportionate. Gwyn It’s defining

Elias CJ It didn’t sound as if it was. Gwyn Disproportionate.

Elias CJ Oh right.

Gwyn The Court must first determine whether the treatment or punishment is grossly disproportionate for the individual offender having regard to all contextual factors. Relevant factors may include the gravity of the offence, the personal characteristics of the offender, the particular circumstances of the case, the actual effect of the treatment or punishment on the individual, relevant penalogical goals in sentencing principles.

Elias CJ What’s the provision of the charter? Blanchard J 12

Elias CJ Yes but what does it say?

Gwyn It’s s.12. I don’t have the wording here.

Elias CJ Does it use the language of disproportionate treatment? Gwyn No it doesn’t directly Your Honour, it is

Elias CJ Then it sounds to me from what you’ve read out that this is a case about cruel treatment and they are saying that if it’s disproportionate that’s not enough to constitute cruelty.

Tipping J You may be right.

Elias CJ I’m sure that’s what it sounds like.

Tipping J It’s in para.1 of the judgment the relevant words. The right not to be subjected to any cruel and unusual treatment or punishment guaranteed by s.12.

Gwyn It is relevant in the sense Sir that it is part of the line of authority that was considered, or that relates to the threshold set out in Puli’uvea which is challenged by the appellants and this is dealt with at para.38 of the written submissions and in reaching the decision in Puli’uvea that the Court did refer to settled authority of the Supreme Court of Canada and the US Supreme Court.

McGrath J And the New Zealand decision of R and P the first Justice Williams which has a discussion of both the Canadian and the United States Supreme Court cases on this.

Gwyn Yes indeed Sir and that’s where this line of authority becomes relevant in setting that standard in relation to s.9, the threshold that was set by Puli’uvea

Elias CJ Sorry, which paragraph of your submissions are you referring to just now? Gwyn It’s at para.38 Your Honour.

Elias 38, sorry.

Gwyn Refers there to the R and P that His Honour Justice McGrath mentioned and then the various Canadian and United States authority at footnote 61 and 62.

McGrath J R and P’s perhaps an illustrative case because it’s dealing with the punishment of imprisonment on a person who is mentally retarded and at what stage that becomes disproportionately severe.

Gwyn Yes Sir it was, and I’m not sure whether that case is in the bundle. McGrath J It is, it’s in the appellants’ authorities, volume 1, tab 7 on page 43.

Gwyn Yes Sir the case was about, as the Court said, whether imprisonment was appropriate for an offender with his particular disability, which was that he was somewhat mentally retarded, therefore potentially prone to attempt suicide and/or to be attacked by his fellow prisoners and so the question there was whether imprisonment would in the particular circumstances of his case be disproportionately severe. And as the Court noted there punishment which isn’t in itself cruel or unusual may be disproportionately severe in the particular circumstances of the case.

Elias CJ Which seems to be consistent with the extract you read us from the White


Gwyn Yes, yes Your Honour.

Elias CJ So that it’s a wider concept than Article 7? Section 9 is wider than Article


Gwyn It certainly has those additional words but in my submission those words take their flavour from the context.

Elias CJ Well that isn’t really what the White paper said and it’s not really what RVP is saying is it? It’s saying you measure it according to the circumstances of the case. It’s certainly saying that it’s looking at something different from the requirements of perhaps purpose and intent but it has the same concept of there being a relative standard of severity I suppose is the best I can put it.

Henry J I must say I have some trouble with that formulation in R and P at 423.

The Judge seems to be saying particular punishment is not cruel or unusual but it is so because it’s particularly severe in the circumstances. So it’s not cruel and severe but it is cruel and severe and if it can be described as such because of the particular circumstances then it becomes cruel and unusual. There seems to be a contradiction in terms. One must always look at the particular circumstances of the case and not look at it in a vacuum.

Gwyn The response to that is that it’s not cruel in, it’s not cruel in the sense of requiring an intention to harm or a particular purpose behind the treatment, so in that sense it’s not literally cruel in the context that it reaches the same kind of threshold of severity is perhaps the best I can put it.

Henry J I’m sorry, I’ve digressed you from my submissions.

Gwyn My learned friend Mr Keith has just reminded me that the distinction in relation to that provision is between the first part of s.9 and the disproportionately severe wording is of course reflected in the Court of Appeal finding, in this case in respect of Mr Tofts, who was found to be a particularly vulnerable individual and the finding there was disproportionately severe, it was not a finding of cruel or degrading treatment but specifically of disproportionately severe treatment. Para.34 of, sorry para.33 of the written submissions which refer to a number of cases, particularly the Human Rights Committee’ decisions under the International Covenant on Civil and Political Rights where the Committee has frequently considered the requirements of Article 10(1), the equivalent to 23(5) in relation to prison conditions and this jurisprudence is helpful because the New Zealand cases on s.23(5) who have really with the

exception of this case been limited to findings about particular incidents rather than about general conditions of detention, so there are a large number of Human Rights Committee cases that look specifically at conditions of detention and consider the application of Articles 10(1) and 7 and without taking Your Honours in details to those cases, it’s clear that in analysing the conditions of detention in each of those cases, the Court does see a gradation of conditions and a difference in threshold between Articles 10 and 7. So in some cases the Committee finds a violation of only Article 10, that is s.23(5) and in others they find that the conditions reach a higher threshold and are in addition or alternatively a breach of Article 7, that is s.9, and perhaps if I can just indicate in relation to those cases where they are found in the respondents’ bundle Compos and Peru is at tab 12 of the respondents

Blanchard J You’ve already noted that on the footnote.

Gwyn Oh you’re right Sir and the same is true of the others Sir, that’s noted in the footnotes so that the Court can find them.

Tipping J There don’t seem to be many Article 7 cases here, they’re mainly Article

10. Is that sort of symptomatic in the observation that it takes a lot to get to Article 7. Is that the sort of general flavour of this?

Gwyn I think that’s right Sir, and I think that’s reflected in the extract from Professor Moller which is set out at para.32 of the submissions where he says ‘Bad prison conditions such as overcrowded infested cells, lack of light, ventilation of bedding, etc, led to a finding of a violation of Article

10(1) – added cruelty or brutality by the police guards or wardens such as beatings will normally but not always lead to a finding of a violation of Article 7 as well’. So that is certainly the flavour of the cases and when one looks at the particular facts of those cases set out at s.33 what they indicate are consistent with what Professor Moller says. In Compos and Peru, which is one case where there is a finding that both Articles 7 and 10 are breached, it’s the particularly bad conditions that go to a breach of Article 7, so being held incommunicado in an unheated, unlit cell for nine months was a violation of Article 10 but Article 7 was also engaged in respect of his confinement in a case in front of journalists being totally isolated from his family for a year and be in solitary in 2 x 2 meter cell with 10 minutes of sunlight each day, so in a sense that’s a very clear illustration of the gradation that’s reflected in the findings in these cases.

Elias CJ I know that the Bill of Rights Act was enacted to give effect to the ICCPR, but is there any authority on whether in interpreting the provisions of domestic legislation, the standards expected are the minimum standards accepted as a matter of international law? Is there any case that considers that?

Gwyn I’m not sure Your Honour but as Mr Keith reminds me Your Honour I can’t think of a particular authority but the Court of Appeal has certainly on a regular basis referred to pronouncements of the Human Rights Committee as relevant to consideration of

Elias CJ Oh yes I understand that, and I understand that they probably provide minimum standard, but one would have thought that a country like New Zealand might expect higher standard than Peru for example. Anyway it was just a thought I had as to the use of this material interpreting our domestic

Gwyn Your Honour is right in the sense that I think the Committee has said that what is the appropriate standard will to some extent depend on the nature of the country in which the case arises, but as Your Honour will see, the cases that are listed at para.33, do come from a range of jurisdictions.

Elias CJ Yes.

Gwyn The other point that becomes apparent from the cases is that cruel treatment is never found to be justified on the basis of economic grounds so to that extent the jurisdiction which the case arises isn’t relevant Your Honour.

Tipping J Is it as blunt as this Mr Gwyn that you can expect to have to put up with more cruelty in some countries than others, I mean it just doesn’t feel very satisfactory to me.

Gwyn No Your Honour and that’s the point I think that arises from the Committee’s findings that economic conditions don’t justify cruel treatment, so while the standard in relation to the other limbs will be considered in context, including the nature of the jurisdiction and economic conditions that cruel treatment could never be justified on that basis, because it does have that additional element of purpose and intent and so on. So my submission based on those authorities is that in New Zealand too there is a hierarchy of standards created by s.23(5) and 9 and the High Court and the Court of Appeal found having regard to this authority that the conditions of BMR breached the threshold imposed by s.23(5) and that’s not challenged but did not breach the significantly higher test imposed by s.9 and my submission that that threshold is significantly a higher threshold in terms of the Puli’uvea test is consistent with international precedent and is the correct test here and one additional point that I’d make in that regard is that in arriving at his finding that the conditions of BMR did breach s.23(5), His Honour Justice Young emphasised that he was considering BMR overall. At para.276 of the judgment His Honour said ‘I’m satisfied that in considering BMR overall

it was in breach of 23(5) New Zealand Bill of Rights Act’ and then several lines down ‘I highlight the combination of factors which have convinced me by themselves none may be sufficient. Collectively they overcome the threshold of serious failure the New Zealand Bill of Rights Act is consumed with’. And that finding that it was the accumulation of conditions rather than any one aspect of BMR that breached s.23(5) is also reflected in the Court of Appeal judgment at paras.80 through to 82 where the Court notes that it was an overall assessment of BMR on which the findings were made. I want to turn now to three specific aspects of BMR that have been raised by the appellants and the first of those is the question of solitary confinement. The appellants allege that solitary confinement per se is in breach of s.9 of the Bill of Rights Act as cruel, degrading or disproportionately severe treatment or punishment, and in my submission there are a number of flaws in that approach. The first is the question that Your Honour The Chief Justice raised earlier which is the question about the definition of solitary confinement - how is it to be defined? This is addressed in part at para.44 of the written submissions where I note that there is no uniform definition of solitary and at 47 where I note that the concerns of the Human Rights Committee appear to relate to complete or near complete isolation rather than lesser forms of restricted association and references by the Human Rights Committee to solitary confinement as a harsh penalty with serious psychological consequences. His Honour Justice Young noted the definition as including significant sensory deprivation which was a definition favoured by Professor Barrett, the appellants’ own expert.

McGrath J So that’s referring to the type of solitary that leaves you disorientated is it, as to time and place, matters of that kind?

Gwyn Yes Sir and more broadly aspects of psychological deprivation.

McGrath J I’m just really trying to clarify what the term sensory deprivation is getting at.

Gwyn I’ll see if I can find that passage. That’s at para.314 of His Honour’s judgment. ‘Others define solitary confinement as including significant sensory deprivation of light, sound, diet and intellectual stimulation. This approach to the definition of solitary confinement is the one favoured by Professor Barrett. Indeed Professor Barrett himself accepted that the definitions varied so widely that generalisations were unhelpful’. A number of the cases refer to this point. One of them McCann which is a case referred to by the appellants at tab 23, it’s a Canadian case and the Court there makes the point at page 369. First it says at the top of page

369 ‘there can be no question of the need for administrative dissociation in a maximum security penal institution for the maintenance of good order and discipline in the institution as authorised. The evidence in this case

has clearly established that at least some of the plaintiffs are dangerous and unpredictable; others have shown a propensity for escape and escape attempts, thus dissociation is clearly necessary however solitary and dissociation are not synonymous’. So the first point really is that there is a question about what is solitary confinement. There are a range of sates that have at various times been described as solitary confinement which range from the kind of dissociation that’s referred to in McCann and distinguished to the sensory deprivation that His Honour Justice Young referred to. The second point is that a submission that any form of solitary confinement is in breach of s.9 of the Bill of Rights Act can’t be maintained and there’s the passage I’ve just read from McCann which says there can be no question of the need for administrative dissociation. There is a reference

Elias CJ Where does that expression come from ‘administrative’, and what’s it contrasted with? That’s simply not as a matter of judicial sentence is it, it’s just as a matter of administration, so it’s not contrasted with anything else that’s relevant here.

Gwyn No Your Honour it’s, perhaps that passage talks about, at 369, where it talks about the maintenance of good order and discipline, so it’s administrative in that sense.

Tipping J Is it contrasted with penal? In other words you can segregate them if you like for good order and discipline reasons, but you can also segregate them for penal reasons, that’s rather what I thought they might be stating.

Elias CJ Well it’s the same thing, you can’t administratively impose a penalty

Gwyn And it might also capture the situation Your Honour mentions which is as a matter of sentence.

Elias CJ Yes, yes.

Gwyn The Rohde case which is referred to by the appellants at volume 3, tab 37, a Danish case, also makes the point that, and this is at para.93, the very beginning of 93 that solitary confinement in itself is not in breach of Article 3 – this is Article 3 of the European Convention. No-one should be subjected to torture or to inhuman or degrading treatment or punishment and the Lorse case which is also cited by the appellants and is – I’ll find the reference to that but it’s quoted actually in the Court of Appeal judgment at para.142, it’s Lorse and the Netherlands, again a Human Rights Committee case, para.141, ‘the European Court of Human Rights consider that the regime to which Mr Lorse was subjected, which involved segregation, limited time out of the cell, limited exercise time, limited visits as well as a strip searching regime etc. The Court said that the

removal of a prisoner from association with other prisoners for security, disciplinary or protective reasons did not in itself amount to inhuman treatment or degrading punishment’ and then at 142 it sets out the finding of the Court ‘although the Court concludes that the combination of routine strip searching with other stringent security measures in the – I’ll find a reference to the case Your Honour but what the case says is that the removal of the prisoner from association did not in itself amount to inhuman punishment. What it depended on was an assessment of the extent to which Mr Lorse was personally affected, so the relevant finding was that solitary confinement in itself is not in breach of Article 3, and then the Article from Professor Nowak that I’ve already referred to at tab


Elias CJ Sorry what volume is that again? Gwyn That’s the respondent’s volume 2. Elias CJ Thank you.

Gwyn It’s at page 245 in the Nowak Article, the second paragraph where he’s discussing the difference between Article 10 and Article 7 illustrated by reference to solitary confinement and he says ‘although the case law depends on the particular circumstances of every individual case, some general conclusions can be drawn. Short-term solitary confinement in particular if applied to highly dangerous persons in pre-trial detention might be justified does not amount to a violation of Article 10. After a few months strong indication that totalisation from the outside world violates Article 10. Prolonged solitary confinement, i.e. more than one year, amounts to inhuman treatment’, so it’s clear from that discussion that solitary confinement per se is not seen as being in breach of s.9. It depends on the circumstances, the duration and so on’.

Elias CJ He contrasts that with the case you’ve cited to us, Campos and Peru, indicating some disagreement with that case.

Gwyn I think the Campos and Peru case was one where there are a number of breaches, some of which were found to infringe

Elias CJ The cage display? Gwyn Yes.

Blanchard J What he does seem to be saying is though that there is more chance of a breach being found depending upon how long a situation which could be described as solitary confinement goes on. The flavour I take from this is that slightly more extreme forms of solitary confinement might not breach

at least Article 3 if they don’t continue for all that long, but the longer things go on the more likely it is that there will be found to be a breach and perhaps a breach of Article 3 rather than Article 10. Would that be fair? Article 7 rather than Article 10.

Gwyn It’s certainly correct that he regards the duration of the detention as a relevant factor but it’s only one of the factors. You’ll note Your Honour he talks about in contrast total isolation with other forms, he talks about incommunicado detention, so it’s a combination of the particular nature of the “solitary confinement” and the duration. I don’t think one factor such as duration is determinative and that’s certainly illustrated by some of the cases listed at para.33 of the submissions where being held in solitary confinement in some cases for reasonably long periods was a breach of Article 10 only.

Elias CJ Does any of the cases consider not a specific response to an individual prisoner but a regime as we have here and does that make any difference?

Gwyn I can’t refer Your Honour off hand to a case that does that, although certainly there are some of them which are referred to in the submissions where a number of prisoners are held in particular conditions and

Elias CJ In bad circumstances, yes.

Gwyn Yes, and for example the case involving Deidrick and Jamaica involving condemned prisoners so the conditions of a number of prisoners are considered

Elias CJ It’s just that this is a case of some deliberation and to the extent that intent is relevant and it may be necessary for you to deal with

McGrath J Your para.34 deals with restricted prison regimes, doesn’t it? So in your submissions it’s para.34 after discussing the earlier cases. You move on to a series of cases that deal with restrictive prison regimes.

Gwyn Yes, yes Sir, although I think the consideration of the case was focussed on the individual but you’re right Sir, they were in a sense regimes in a way that one would describe BMR.

Elias CJ Well dreadful conditions applying to all prisoners

Gwyn Or as in the case of Kang and the Republic of Korea where it was a system of confinement for a particular purpose, which is

Elias CJ Yes, as arguably this is, that is our case.

McGrath J The Cabal case is looking at the practices isn’t it, general practices? Gwyn Yes, yes Sir.

Elias CJ Well, would it be convenient to take the adjournment now. Adjourned 11.31am

Resumed 11.50am

Ellis Ma’am with the Crown consent I interpose here. I speak on behalf of both parties. We seek a further day because we’re concerned that the Crown’s not going to be able to reply properly and that there is a cross-appeal and they won’t have a fair opportunity to present and neither will we have one to reply. We apologise, all of us, for mis-estimating.

Elias CJ Well let’s carry on and let’s see how we go because there are huge difficulties ahead of us. It’s not possible for us to sit tomorrow and unless, well I don’t know, I’d have to make inquiries, so can we

Ellis Well we’re not suggesting you sit tomorrow, at a convenient time we have extra day.

Elias CJ Well let’s see how we go but we’ll bear that in mind Mr Ellis. Ellis Well okay Ma’am but

Elias CJ I know, you’re predicting we will need it and that may well be right. Ellis We just don’t want to be rushed to be fair to everybody.

Blanchard J I think the difficulty would be that we mightn’t be able to do it until


Ellis Well the cross-appeal is separate. It’s best that it’s done well than it’s rushed.

Elias CJ Well we agree with that. Yes Ms Gwyn.

Gwyn Thank you Your Honour. In relation to my submission on solitary confinement, the conclusion that can be drawn from the jurisprudence is that whether solitary confinement however one defines it is in breach of s.9 of the Bill of Rights Act depends on an analysis of the particular case and this approach is particularly exemplified in the McCann case at tab 23 of the appellants’ bundle where the Court analysed whether a detention regime amounted to cruel and unusual treatment or punishment in terms of the Canadian Bill of Rights, the Canadian Charter, by considering first the

personal background and history of the plaintiffs, second the evidence about conditions in the particular unit where the plaintiffs were confined and third the evidence as to the effect of the confinement on the plaintiffs. And in this case, or rather what that case and what the other cases that the submissions address make clear is that a key factor in that analysis of the particular conditions will be the potential for psychological damage. Much of the case is focused on this issue including the comments that I’ve already referred to – the serious psychological consequences and His Honour Justice Young’s reference to solitary including significant sensory deprivation. The nature of the quote ‘solitary confinement’ in this case was in my submission of a different order from the sort of regimes where a breach has been found. As the Court of Appeal reflected at para.205 of its judgment, the last three sentences of para.205, ‘in fact neither BMR nor administrative segregation as applied to the respondents denied all association between inmates as the table at para.12 shows’ and that paragraph that Your Honours will have seen in both judgments is ‘the table that sets out the various phases of BMR and the particular aspects of the regime at each of the phases. Segregated inmates were kept in cells on a same landing which permitted at least real contact between them’, and in addition to that point the Court notes that there was a possibility of communication between the cells as the table at 12 shows there was also provision for visits and other than in the two week initial phase, association with other prisoners. So this was not a regime where inmates were cut off from daily contact with others or in a sense deprived of sensory stimulation in which that the cases where a breach is found characterised the confinement. Then perhaps the nature of the conditions in this regime can be seen by looking at the photographs that I understand the Court has. A volume of photographs of D Block.

Elias CJ Did these come in separately? Gwyn Yes they did Your Honour, yes.

Gwyn They are a series of photographs Your Honour of D Block and of particular relevance to this point, perhaps if I start at photograph 8, which is the inside view of an individual cell and then tab 14 which is the lower east landing in cells 13 to 24 and it illustrates the proximity of the cells and

Elias CJ I thought they weren’t permitted radios and televisions so – oh this is post- BMR is it, yes?

Gwyn And it depended on which phase of the regime the inmate was in. Elias CJ So which one are you showing us?

Gwyn Photograph 14, which shows a number of cells fronting on to the landing and at footnote 71 of the respondents’ submissions there’s a quote from Senior Corrections Officer Tawwhose unchallenged evidence on this point was ‘inmates spent most of their day talking to one another between cells. Staff would not intervene unless someone was being disruptive. At night there was no one to intervene as landings were patrolled only once an hour’. So this confinement under BMR was not of a nature which was likely to or did in fact lead to serious psychological consequences for the inmates as the Court of Appeal found or reflected the judgment of Justice Young. This is at para.200 of the Court of Appeal judgment. In the present case the Judge found that ‘with the exception of Mr Tofts the conditions in which the respondents were held was not deleterious to their mental health and it is apparent that that conditions were not as draconian as in the present case’. This is comparing this case with the McCann case and there were three particular authorities relied on by the appellants on this point. The Sandery case which was considered by both the High Court and the Court of Appeal, of which the Court of Appeal said ‘well this has limited or no relevance to the BMR regime. What the Sandery case was, was an exercise in interpreting the relevant South Australian legislation’ and it makes the point that the McCann case is distinguishable on its facts from this case as was Madrid and Gomez, whereas the Court notes there was extreme isolation and environmental deprivation which distinguishes it from this case. The one or two points that I wish to address in relations to the s.9 question are strip searches and medical visits and very briefly to the extent that I haven’t already dealt with it, the comparison with other prison conditions cases. The question of strip searches is covered at paras.52 to 59 of the written submissions and the respondents have acknowledged that many of the strip searches did not comply with s.21(k)(4) of the Penal Institutions Act. That finding of non- compliance resulted, together with other factors, in the finding for breach of s.23(5) so that aspect of the conditions has in a sense been vindicated by the High Court finding. Nevertheless the appellants seek an additional finding that there was a breach of s.9 and in doing so they particularly rely on two cases – the Van der Ven case and the parallel decision of Lorse, and in my submission there are significant differences between those cases and the present case. In particular as the Court noted in those cases, there were serious difficulties experienced by the prisoner, nothing untoward was ever found as a result of the strip searches and the searches were particularly intrusive. As I note in the written submissions in this case there was no evidence of any such serious difficulties by the particular inmates involved. The searches were not as intrusive and as the cases note strip searches may be a necessary measure when dealing with dangerous inmates. These were inmates where strip searches, when conducted in accordance with the legislation, were an appropriate response. There had been evidence before the High Court of dangerous implements being found in cell searches. These inmates had, for example Mr Taunoa had

been convicted of assaulting fellow inmate; Mr Robinson had committed a serious assault on another inmate

Elias CJ There was evidence do you say of weapons being found in cells while they were on BMR?

Gwyn Yes, dangerous implements being found and of course in cell searches, not strip searches.

McGrath J I would appreciate as I said with solitary confinement, I would appreciate some evidential references there because the impression I had got was that no contraband had been found because when these people moved out of their cells they had three officers with them and the impression I got was that there was really no purpose for the search in terms of results if you like.

Gwyn The point I make Sir about dangerous implements, I don’t want to confuse the Court, that was as a result of cell searches, that was not a result of strip searches.

McGrath J Yes.

Blanchard J But during BMR? Gwyn Yes Sir.

McGrath J I think that’s quite important.

Gwyn We will provide those references Your Honour. As part of those eventual references it may be helpful too if we provide the Court references to the number of strip searches that were conducted so Your Honours can see during the relevant period how frequent such searches were and on which ground a search was conducted.

Elias CJ When do findings of fact on that? It was whenever they went out wasn’t it?

Gwyn Well the legislation provides for strip searches in various circumstances Your Honours so it may be possible, I can’t provide it right now, but it may be possible to provide you with references which show that in terms of s.21(k) whether a search was on the basis of reasonable grounds for believing that the inmate had an unauthorised item in their possession or whether it was for example under s.21(k)(4)(e), sorry 21(k)(4)(i) or (j) which authorises a search before any person visits an inmate and immediately after a person has visited an inmate. So there were various grounds set out in the legislation on which a search might be conducted

Elias CJ Well there might have been but I thought that it was part of the regime that there would be, is it in that schedule?

McGrath J I think the real problem is with the routine searches which were not justified by s.21(k), at para.123 of the Court of Appeal judgment.

Gwyn Yes Your Honour I accept that but what I’m suggesting is that it may be helpful for the Court if we provide references to the evidence which show how many of those searches there were in relation to each of the inmates and over what period and perhaps also how many other searches there were that were conducted in relation to the other grounds allowed for in s.21(k). Just to give Your Honours a feel for how many searches we are talking about over what period – what was the extent of the strip searches?

Elias CJ I thought they were searched whenever they left their cells? Gwyn No, no that’s not correct Your Honour

Elias CJ Oh I’m sorry, I must have got that impression from the judgments.

Ellis I’m sorry, we would object to putting in evidence that wasn’t before either of the other Courts

McGrath J We’re not asking for evidence, we’re asking for references to evidence on the records before the Court.

Gwyn And that’s what I propose to do Sir is to provide you with the references to the notes of evidence of the case on appeal.

Tipping J Do you have any findings of fact as opposed to just references and evidence on the part of somebody. I mean we can’t just simply pick and choose or can we?

Gwyn There is certainly the finding of fact that His Honour Justice McGrath has referred to.

McGrath J It’s at para.123 of the Court of Appeal judgment. For example there’s a finding that officers in charge of BMR inmates, if not invariably, then typically strip searched prisoners after booth visits.

Tipping J That’s the sort of thing rather than just isolated references to the evidence which I would have thought that we should be concentrating on Miss Gwyn.

Gwyn I think the evidential references can be, if you like Sir, tagged to those findings. Perhaps the difficulty with that passage from the judgment is

that it doesn’t give Your Honours an indication of, for example in a six month period, how many times did this occur.

Tipping J Well the Court of Appeal as I recall it said that this was their primary concern if you like. This got close to being in the s.9 territory but in their judgment not quite. Now that’s fine but if we’re going to start sort of retrying the point.

McGrath J I think we need, if it was myself, I would feel I needed some context in which to put these findings of fact into.

Tipping J I would have thought that Justice Ronald Young’s judgment would be the primary place to find, because he found the primary facts. The Court of Appeal was just sort of summarising their impression from those

Elias CJ Well they said there was no reason to take issue with the conclusion. Tipping J Yes, but I have, well you know I’m speaking purely for myself, I have an

anxiety about being given a whole heap of evidential references and then being sort of asked to draw sort of independent conclusions largely factual from the references supplied. Surely your point is that you say that the evidence, and Mr Ellis hasn’t really tried to do that vis a vis lifting it if you like to s.9. what is sauce for the goose I would have thought has to be etc. I’m not trying to be difficult but I just think Mr Ellis is entitled to know for what precise purpose we are being asked to use these evidentiary references.

Gwyn The appellants Your Honour have sought to elevate if you like the finding of both the High Court and the Court of Appeal on this point to say that no, it goes beyond a s.23(5) breach and reaches the s.9 threshold so my intention is no more than to, if it’s helpful for the Court, to identify the passages in the evidence where this issue was raised. If it’s not helpful for the Court then I won’t do so, but I’m not Sir suggesting that the Court be invited to draw its own factual conclusions. Simply to have clearly indicated the evidence that was before the High Court on this issue, on the basis of which it reached a conclusion that strip searching along with the other factors so the conditions of BMR in total amounted to a breach of s.23(5).

Tipping J That satisfies me thank you.

Gwyn I’m not sure if there’s anything else I can assist Court with on that point.

In relation to medical visits, this is raised as a third and specific ground under s.9, that there were no daily medical visits to those on BMR and this is covered at paras.60 to 77 of the written submissions.

McGrath J Can I just perhaps interrupt you and ask you this, do you accept the Court of Appeal’s finding that this area came close to a breach of s.9?

Gwyn No Your Honour on the basis that as His Honour Justice Young found and as the Court of Appeal elsewhere in its judgment reiterated, the 23(5) breach finding was based on the totality of the conditions. His Honour Justice Young said ‘no one condition perhaps would have resulted in a

23(5) breach, but taking all of those things together with the breach of the Act and the Regs in total amounted to a s.23(5) breach so in my submission it’s difficult to then say ‘we’ll take our one element of that and say that in itself attains the higher s.9 threshold.

Elias CJ Or may be just that element in the mix takes it over the s.9 threshold is the case you have to meet, not that it’s just one element, but it moves it across.

Gwyn Yes I accept that but my response in essence would be the same, that when one looks at the totality it doesn’t take it over that threshold established by the jurisprudence.

McGrath J But you prefer Justice Young’s formulation?

Gwyn I do Sir. The medical visits point is covered as I say at paras.60 to 77 and I won’t take the Court through those submissions in detail given the shortness of time. The respondents don’t take issue with the fact that Corrections staff didn’t comply with Regulation 149(4) which requires that a medical officer is informed when prisoners are placed in isolation cells. The difficulty arose as my learned friend Mr La Hood noted yesterday is that there was a misunderstanding or a misapprehension by Correction staff as to what was an isolation cell, which led to this difficulty, but the failure to comply with Regulation 149(4) did mean that the respondents in turn failed to comply with Regulation 63(2) which says '‘ medical officer of an institution must ensure that special attention is paid to an inmate who's confined to an isolation cell, and this formed part of the finding of a breach of s.23(5) and in relation to Mr Tofts the finding under s.9. But the significant point is that both the High Court and the Court of Appeal did note that the appellants received regular and prompt medical attention as needed. The High Court deals with medical treatment generally at paras.169 to 173. At para.173 His Honour Justice Young said ‘on the face of it, inmates received attentive medical care at least to the standard present in the general community’, and then at 204 His Honour said ‘once an inmate asked for or was identified as needing psychiatric assistance, I am satisfied all was done as could reasonably be expected’. So while there is no issue that Regulation 149(4) was breached, in my submission those broad findings about the standard of medical treatment generally and mental health care in particular are relevant. The appellants plead specifically a breach of Rule 32 of the United Nations Standard Minimum

Rules and again that’s dealt with in the written submissions under three headings. First the question of whether the minimum rules are a rule of customary law; secondly if so were they breached here and thirdly, did that amount to a breach of s.9? So I won’t go through those submissions unless the Court has particular questions. And then finally the written submissions address the appellants what’s in a sense presented as a separate ground by comparison with other prison condition cases this regime amounted to a breach of s.9 and the appellants rely here on a number of cases, some of which I’ve already referred to, which were extensively canvassed in the High Court and Court of Appeal – the Sandery case, the McCann case, Madrid and Gomez and the Arbour report, which the Court of Appeal said at 201 ‘does not provide particular assistance to the Court in determining the section 9 issue’. ‘Madrid and Gomez, the Court of Appeal said at para.203, provides no support for the respondent’s contention that there was a breach of s.9 in the present case’. And McCann where the Court of Appeal said at 200 that ‘that case cannot be read as a general authority for the proposition that any regime involving solitary confinement is cruel and unusual treatment or punishment’. So my general submission in relation to s.9 is that the high threshold imposed by Puli’uvea is the appropriate threshold and when one looks at, particularly the decisions of the European Court, which consider the application of Articles 10 and/or 7 that that provides for adopting a high threshold and for adopting a differentiated approach between s.23(5) and s.10 and that the facts of this case, whether one takes them accumulatively as His Honour Justice Young did or singles out the particular issues, but on the facts of this case that threshold required by s.9 is not attained.

Elias CJ So when you say a high threshold are you actually seeking to apply so excessive as to outrage standards of decency, is that the threshold you say that has to be passed, or would you calm down a bit?

Gwyn In relation to disproportionately severe? Elias CJ Yes.

Gwyn Yes I think that is the appropriate Your Honour. And as I emphasised

Elias CJ And what, sorry,

Gwyn That involves a consideration of, it really involves the exercise that the McCann case sets out so clearly, the consideration of the particular individuals, the particular regime in which they were held, and the effects on them of that regime.

Elias CJ Thank you.

Tipping J Can I just ask one further thing, is it inherent in the distinction which you are seeking to draw and obviously must be drawn between s.23(5) and s.9 that one would expect in the s.9 case, not necessarily but normally defined quite a severe actual impact?

Gwyn Yes I think that’s right Sir and that’s particularly relevant when one looks at the cases that focus on solitary confinement. It’s partly the nature of the confinement but also the psychological effects on the inmates of that confinement.

Elias CJ Sorry, the McCann case, where is it? Gwyn It’s in the appellants

Ellis Blue volume 2, tab 23.

Elias CJ Thank you. It’s a very old case. Can you just identify for me the passage that you say is the right test in that case?

Gwyn What I say Your Honour is that it’s useful as an example of the appropriate approach which is summarised at page 344 under the heading (A). Cruel and Unusual Treatment or punishment where the Court said ‘I propose to summarise the evidence under three sub-headings – personal background and history of the plaintiffs – evidence concerning the conditions in the SCU – the evidence as to the effect of confinement’ and then later in the judgment it’s under those headings that the analysis is conducted. So although it’s an old case I think it’s still a good example

Elias CJ And it’s not on disproportionately severe, but you say disproportionately severe as to be treated in the same way.

Gwyn The claim was for declarations that confinement constituted cruel and unusual punishment contrary to 2(b) of the Canadian Bill of Right. I say it’s the appropriate test and it’s effectively the test

Elias CJ It got there by dictionary definition. It’s that sort of assessment, this case. Gwyn Many of the cases dealing with solitary confinement do start with an

attempt to define what it means and I think Elias CJ No this is on unusual, cruel and unusual. Gwyn Sorry Your Honour.

Elias CJ The cruel and unusual aspect. Alright, and there’s no other authority on the tests that you particularly want to draw our attention to?

Gwyn I think all of the authorities set out in the written submissions in effect illustrate the different tests applied in relation to Article 10 and Article 7 and they show that gradation and the different threshold as do the Nowak and Moller articles. I think McCann is simply a particular example, I think the case as a whole demonstrates it.

Elias CJ Any further questions, no, thank you Ms Gwyn. Yes Mr Keith,

Keith Your Honour if it please the Court, I would like, like Mr La Hood said yesterday this is very much the issue at the end of the submissions and I think there are three pages to his number yesterday I’ll try to be extremely brief, particularly in light of Your Honours helpful comments yesterday on this point. I will also if Your Honours wish address the questions that were raised about compliance with regulation 149 which I think was of interest to several of Your Honours yesterday afternoon. Turning specifically to s.27(1), the right to natural justice as protected and affirmed in the Bill of Rights Act, I very much agree with the comments that Mr La Hood and members of the Court made yesterday that this is on one level not only an ancillary issue but also an issue of limited significance in the context of the wider case, and in particular given that it relates to the BMR regime, a practice that is no longer in train, that the specific issue is of no significance more widely than as an element of the Court’s overall findings in relation to the regime and Mr La Hood has asked me to clarify in relation to his written submission which refers to the possibility of damages for breach of natural justice that he was not pursuing that issue before this Court and there is no question on that point. The wider question that I will address though is Mr La Hood’s suggestion, or the appellants suggestion of a right to a hearing arising in relation to BMR placement. This goes beyond, and is distinct from the procedural protection identified in Bennett is appropriate for administrative segregation decisions, that is to be informed or aware of the reasons for the segregation and to have the opportunity to seek legal advice and assistance to challenge segregation by way of judicial review. It was not an oral hearing right; it was not a review mechanism. The appellants here appear to be saying that whether generally, and I note some of the submissions refer to administrative segregation, I don’t think that issue is before the Court, but at least in the case of the BMR placement with it’s further elements a hearing right was in fact required. That proceeds from comments in the Courts below that BMR placement was in one sense effectively a disciplinary penalty and that was imposed without any of the procedures that applied to disciplinary penalties. The respondent’s submission that so far as that gives rise to anything it’s an inept analysis in natural justice terms. I think Your Honour Justice Blanchard yesterday said that there was some incongruity about criticising a hearing that never took place, of a charge that was never laid or words to that effect. This was

unlawful that finding of unlawfulness, particularly the reduction in conditions of segregated prisoners was in breach of the regulations. That breach, particularly Regulation 155(3) was an important finding in the Courts below findings of breach of s.23(5). To find or to try to present the issue of illegality in terms of a breach of procedural fairness is in the respondents’ submissions inept. I have dealt in the written submission reasonably briefly with the proposition that this was in fact a de facto penalty. The appellants have referred to criminal analogies, of criminal law analogies that intention does not matter, that it is the substance of what was suffered that matters. That’s not really a submission that I could accept. The point is that when looking at the kind of measure that is taken, intention matters very much. The characterisation of the administrative act matters very much in determining what procedural protection applies. As Your Honours were discussing with my learned leader, the distinction between penal segregation pursuant to a disciplinary process and administrative segregation is one illustration of that distinction. I’ve included some reference to European Court of Human Rights, or European Convention decisions in the UK and the European Court which really illustrate that. The appellants say several times in their submissions that prison disciplinary proceedings are criminal by nature, citing the European Court of Human Rights’ decision in Ezeh and the consequent House of Lords decision in Greenfield, but what those decisions do, and the Tangney decision that is referred to in para.87 of the judgment, in footnote

131, is apply a reasonably sophisticated test to determine whether a particular imposition measure decision is criminal. I can take Your Honours through that but the simple point is it is very much of wide contextual analysis of the purpose of the measure, the way in which it is categorised, as well as the nature of the consequences and I note particularly that in Ezeh the European Court decision cited in Greenfield which I’ve referred, the penalty was loss of remission, extension of time served in prison. That is very strongly an indicator of a criminal-type penalty. It was something that a number of Your Honours addressed in the Court of Appeal in Drew as well. That criminal penalty is no longer in place, the criminal-type penalty, and it’s certainly not an issue here. What was an issue here was segregation together with the withdrawal of privileges. That was unlawful, it did not require a hearing process.

Elias CJ Mr Keith can you just tell me the reference to the findings in the High Court that these segregated people knew of the reasons for the segregation and had the opportunity to seek legal assistance?

Keith Yes Ma’am.

Elias CJ Because you accept that in the absence of that there would have been a breach of s.27(1)?

Keith I’d accept there would be a breach of natural justice if there was an interesting argument as to whether those two rights are co-extensive, but it’s not to be addressed today, but yes certainly that would have been a breach of natural justice. In the judgment of the High Court in the case on appeal at 134, sub-paragraph 12 His Honour Justice Young summarised his natural justice findings

Tipping J Sorry what was the reference?

Keith Sorry, 134 of volume 1 of the case on appeal. Sub-paragraph 12. Elias CJ Para.134

Keith No, no, page 134 of the case. Oh it’s para.307 of the judgment of the High


Elias CJ Thank you.

Keith And half-way down page 454 of that High Court judgment there is a summary and His Honour says that ‘there was an inadequate process for dealing with admissions, some inadequacy in providing access to legal advice, these were typically technical rather than substantive failures. All inmates I am sure were aware of the conduct that resulted in their admission to BMR’ and His Honour went on to say that clear written advice should have been given but wasn’t. Inmates were not denied rights to consult lawyers nor however did Corrections facilitate access’ and then went on to reject the contention that an opportunity to be heard should be given. Following the Court of Appeal’s decision in Bennett which I can take Your Honours to if that would assist - it’s in tab 6 of the respondents bundle, so that’s tab 6, very near to the end at page 636. Tab 6 in the dark purple respondents bundle Sir.

McGrath J Sorry what number is it again?

Keith Sorry, it’s in tab 6 in volume one of the respondents bundle.

Elias CJ Is this where relatively technical appears in Justice Young’s judgment also.

Keith Justice Young was relatively technical in His Honour’s view. And the relevant passages in Bennett are at pages 636 to 637. Now paragraphs 80 onwards deal with the non-voluntary issue in that case and the requirements of natural justice in that context and then para.81 is the material finding. So the requirement there in natural justice terms is expressed as having two components. One is that the prisoner must be aware of the reasons for the segregation. There is a discussion in relation

to a separate point above as to whether written reasons are acquired and how full those reasons must be but here the finding was that provided the prisoner had sufficient information as to the reasons for segregation and had

Elias CJ Well here they were told they were told that they’d stuffed up. Wasn’t that it?

Keith We also have a finding by the High Court that all of the appellants were aware of the reasons for their transfer to BMR. They knew the conduct that had resulted in this transfer. So they got a written form, or some of them got a written form, which was inelegantly worded and we have

Tipping J Well I don’t know, it’s addressed to a certain audience Mr Keith. Keith Well perhaps in a different environment.

Elias CJ I just wonder about formal process and its value, particularly for people who are deprived of liberty. It may not be sufficient to say oh of course they know that they behaved and that’s why they’re here.

Keith No I think His Honour’s finding has to be taken as rather more specific than that.

Blanchard J Presumably there was some evidence other than just those forms about what they knew or didn’t know.

Keith There was evidence of explanations that were given either orally or in writing there was evidence of the kind of thing that prisoners in this position were told. There is in the record for example with Mr Robinson and Mr Taunoa extensive correspondence about the reasons for their placement and I think in Mr Robinson’s case a very long interview with prison management.

Elias CJ It’s a shame we’ve only got a conclusion in the judgment.

Keith Well I think one has to take that conclusion as it stands. They were well aware of the reasons. And particularly I mean it’s peculiar to these or to take particular issue with these appellants. The trigger point I suppose for their placement on BMR in some cases, I think in Mr Robinson’s case, there was a long history of disruptive behaviour - it culminated in a point of which his transfer occurred. With Mr Tofts and Mr Kidman there was an attempted hostage taking by them for which they also faced criminal charges of which they were convicted. That immediately preceded their BMR placement with Mr Taunoa similarly, I don’t have the details to hand, but there were particular incidents or series of incidents that were

known to them, that were made plain to them. I’m conscious of Your Honour’s comment about formal procedure, but it is a question of fitting the procedural protection to the measure. Now if these had been criminal penalties and as I say in the case of Tofts and Kidman, there were also criminal, literally criminal charges, not prison disciplinary matters but criminal charges. There are procedural protections that apply there. In a different context of a different kind of decision the procedural protections are different and that is really where the appellants contention that a hearing after the fact they accept that urgency requires and that’s a respsonsible submission, but to require a hearing in this context is inept. The comparison with a disciplinary hearing where there was no charge it was quite distinct from any criminal or disciplinary matter goes beyond what is reasonably required.

Tipping J That has to be your key point doesn’t it? Keith Yes.

Tipping J Yes, I mean it’s the long and short of that the point that if it were disciplinary then there would be problems, but it wasn’t.

Keith Yes Sir. And There were parallel disciplinary measures or criminal measures as in the case of these two appellants. And extending that and picking up on a point that several of Your Honours raised with my friend Mr La Hood yesterday, there is a difficulty in behaving as though a disciplinary charge ought to have been brought, determined and penalty imposed. When none of that was done it was simply a well-intentioned but unlawful measure of segregation and the illegality was in the reduction of conditions and in the case of part of the detention of two appellants – Mr Taunoa and Mr Robinson – there was no compliance either with the segregation power but that again was found in the Courts below and forms part of their findings. So the two are distinct in that sense.

Elias CJ Well we’re probably not concerned with it but is there any response on the basis that the regulations themselves don’t seem to authorise long-term solitary confinement. You said the only illegality was in the reduction of conditions, that’s the only found illegality.

Keith In relation to two of the appellants there were other incidental or ancillary issues and some of them reasonably serious, but the key findings for the Courts below were the breach of regulation155(3) which prohibits the reduction of privileges under segregation unless formally subject to penalty. So that is one breach. The other breach which applies to two of the appellants for part of their time in BMR is in relation to s.7(1)(a).

Elias CJ Yes.

Keith Because Corrections again did not consider that this involved segregation or that segregation power. That was corrected as of September 2001, so in relation to the later stages of Mr Taunoa and Mr Robinson, 7(1)(a) authorisation was given for the other appellants. 7(1)(a) authorisation was given from the outset. As to whether the provision in question authorises long-term segregation, as Your Honour notes that’s not strictly before the Court. The provision does envisage segregation authorised for three- month periods by national office, either on good order and discipline grounds or on protective segregation grounds

Elias CJ And subject to review

Keith And subject to review and that three-monthly national office authorisation is the review. There is also of course the rush of the prisoner concerned either to seek review proceedings against their continued segregation as in the Bennett case or to pursue one of the complaint mechanisms available to them – Ombudsman, Inspectorate, direct intercession with the Superintendent or Head Office or whatever.

Elias CJ That regime constitutes it might be thought a legislative assessment of what natural justice requires. It wasn’t afforded to these

Keith The review.

Elias CJ Yes, the review, because although it’s being put on the basis of an ex post facto hearing, underlying that really is the opportunity to be heard on whether they should remain in those circumstances.

Keith Yes but I’m not sure of the distinction between the opportunity to be heard and a hearing. To do anything more than to have a right of making representation seeking legal advice, making complaints, making representations is to be done and that is a form of being heard but to do more than that – I think the appellants have in mind something more formal and that’s the proposition we’re not accepting here.

Elias CJ I’m just bothered because of a mistaken view of the law some important procedural safeguard’s built into segregation weren’t observed and I feel uncomfortable that there is in fact a natural justice point in there.

Keith So far as the s.7(1)(a) breach is concerned, and that does apply to part of the case and some of the appellants and not to others, that breach encompasses a number of ills that is not. Undoubtedly the review by head office, the re-authorisation is significant in that way but the fact is this segregation for a reasonably long period in Mr Taunoa’s case was unlawful and that was a central important finding in the Court’s below.

That was one of the three factors that led the Courts below to find a breach of s.23(5). I think it comes back to the proposition that it is a very limited perspective to look solely at the natural justice question when the question is actually unlawfulness in the wider sense.

Tipping J You’re really saying that the finding of unlawfulness subsumes in practical terms any natural justice connotations for all practical purposes anyway?

Keith So far as it’s a narrow fnding of illegality it is not a finding of breach of natural justice. For any practical purpose though and as taken into account, yes, any sort of more general or attendant concern over natural justice is subsumed as Your Honour says.

Tipping J Well is it again with the risk of sounding tedious, is it really this that they didn’t give them the right of review because unlawfully they didn’t think they had to?

Keith In relation to the non-7(1)(a) people, yes. The review is again not a hearing right.

Elias CJ But they didn’t provide anything equivalent under the regime they established?

Keith That’s a difficult question to answer Your Honour and I’m not trying to be obstructive. The Corrections department as we’ve said did not believe that this programme, and we make no excuses for it, was not segregation because it was a programme, because it had this phased re-introduction of association with others and so on. And the Courts below have looked at that and there was not much contention from us that that was anything other than unlawful. There was within the regime a progressive and an ongoing assessment of whether the prisoners placed on it should be moved up a phase or in some rare cases, down a phase, and then once having completed the phases then moved off. There were also indications though and it did happen to two of these but not for this reason, that people were removed from BMR out of the phase sequence, so in that sense there was consideration given by those running the programme on an ongoing basis to whether a given prisoner should remain in the programme or at the particular stage of the programme so there was that reassessment. That is no substitute and we don’t contend that it is. For the three monthly national office supervision which was brought in from September 2001

Elias CJ But was is sufficient to comply with the requirements of s.27?

Keith Well as I say Your Honour the question is prior to that. On one level one could say there are these avenues of complaint and challenge, there is also this ongoing process of assessment. These appellants, or at least some of

them, did make representations, did say that they should be removed and so on and those representations were in the evidence. Whether it is in this pre-September 2001 phase abreach of natural justice would depend upon all of those things but the readier findings simply that it was unlawful. It was in breach of s.7(1)(a). I’m sorry to complicate the issue

Elias CJ If it had been, I’m sorry to detain you on this but it bothers me. If segregation had been undertaken in a lawful manner they would have had better access to procedural review than they have ended up having, so yes it’s unlawful the regime that’s been imposed on them, but it was also deficient in terms of what the legislature considered was required for procedural fairness for those under the lawful regime.

Keith The procedural fairness Your Honour is a difficult way to put it. The requirement in s.7 was for the head office of the Corrections Department, I think it’s the Chief Executive or secretary provision, to review, and that is not a hearing right, it is to make an assessment independent of the particular institution every three months at least and the head office can also revoke, or the secretary can also revoke segregation directions. So

Elias CJ What about the provision that the regulation was at 49, was it 49? Keith 149.

Elias CJ 149.

Keith Yes, I’ve got a hand up of those provisions. I’ve given Your Honours Regs. 147 through 157 of the 2000 Regulations. That is so as to get an overall feel of the isolation cells provisions. As Your Honours will have apprehended the term ‘isolation cell’ under the Regulations as then enforced encompassed a very wide range of limits on association and even as later amended it still covered everything from cell confinement penalty you will see in Regulation 147(2) mental health or self-harm concerns and there’s a provision in 147(e) for short-term segregation and then in 147(f) there’s a reference to s.7(1)(a), so that is clearly what we are concerned with. It is however possible and I just make this point and it may or may not be helpful, it’s possible for someone to be segregated but not in an isolation cell. For example, involuntarily segregated prisoners segregated at their own request for their own safety are often in safe units of prisons along with other similarly segregated prisoners. The reason I mentioned that is just in passing you will see at footnote of 101 of our written submission the term ‘isolation cell’ in the regulations was to find as being, this is at page 22, footnote 101, I quoted that the then definition of isolation cell taken that literally that could cover voluntarily segregated inmates in a safe unit. The regulation was later amended, particularly because of that over breadth. It’s nothing more than a drafting and I’m not

making that submission to excuse the non-compliance which I’ll get to with 149 but it does give some of the context in terms of the Department of Corrections misunderstanding - it was not a blatant misunderstanding if that’s a useful term.

Elias CJ We’ll take the adjournment now. I’ll confer with my colleagues that subject to what we might come back to after lunch I think we probably won’t complete, in which case and subject to what they may say, I would expect to complete this appeal and then see how far we get with the next, but we’ll also make enquiries about when we can resume. Thank you.

Adjourned 1pm

Court resumed 2.18pm

Elias CJ Thank you.

Keith Thank you Your Honours. I think when we adjourned I was pretty much up to the end of what I had to say about the s.27 point. I’ve dealt very briefly in the written submissions with the question of superintendent visits and medical officers supervision and I’ll move on to that unless Your Honours have anything further on natural justice generally. The simple point in relation to the two kinds of visits or visits and supervision are that the natural justice obligations attached to the decision to segregate consistent with the Court below, my submission is that those people, the medical officers, this is para.88 onwards, did not have an adjudicative function. They were not making a decision and while that daily contact is important and I don’t downplay it and I’ll come to Regulation 149 the failure to have those visits but these are avenues of complaint as among a number of others. They are not fresh decisions or fresh determinations of rights and interests. One can cast it in terms of compliance with these complaint and oversight mechanisms but as with the earlier submission, to cast that in terms of a hearing seems inept in my submission.

Tipping J But Mr Keith if the Court of Appeal in the passage you cite in para.89

Keith Yes.

Tipping J Would it have been a little more precise for them to have said in relation to the continued segregation of an inmate because I would have some difficulty accepting the superintendent didn’t have some determinative or adjudicative role in relation to putting them in there.

Keith I think the superintendent has a power first to put people in and then a corresponding duty to ensure that that segregation is not continued past when is reasonably necessary and the superintendent and also the national office both have the power to revoke a segregation direction.

Tipping J But can we take it in steps? Keith Yes.

Tipping J We’re here talking about after they’ve been put into segregation aren’t we?

This is the point we’ve logically reached? Keith Yes.

Tipping J And I can understand the medical officers not having any adjudicative role but I’m just a little troubled about the statement that there was no adjudicative or – it substituted adjudicative for determination or determinative in the section. I don’t know whether that’s a point of significance.

Keith I think it may have two connotations in it. Whether both were intended I don’t know, but one is of course though the superintendent has an ongoing duty but I think to cast the visits as part of an ongoing decision-making process pushes it too far. The other and just in terms of that word

‘adjudicative’ may go looking to the words of s.27 and looking for determination of rights or interests by a tribunal or other public authority. When the superintendent makes the segregation decision they are making a determination to cast their ongoing duty in adjudicative or determinative terms, particularly in hearing-type terms it seems difficult.

Tipping J But why is the Court using the expression ‘adjudicative function’ rather than ‘determinative function’? I mean this may seem pedantic, but is there some subtle jurisprudence here that I’m unaware of?

Keith It may be, and as Mr La Hood’s submissions note, there were questions in the Court below about whether there is a difference between natural justice and the terms of s.27(1). That’s not something that either party is pursuing and I wonder whether that adjudicative word is taken from some of that case law

Elias CJ Well if so it’s not case law that immediately strikes one as right in terms of s.27(1).

Keith Whether one cast’s it is terms of the language of s.27 or the notion of natural justice as a wider principle, I think the real emphasis in the passage is simply that the superintendent has a function in relation to inmates who

are segregated and that function is prescribed but I think in answer to His Honour Justice Tipping’s question that the distinction between determinative and adjudicative may be to do with that case law but it’s not really relevant to the point. The point is I think in the passage for present purposes is to differentiate between decision-making functions in a more formal sense and on-going functions.

Tipping J Well without wishing to be a fairly small horse in the total compass, but I

just wondered if you think in terms of adjudication for the purposes of

27(1) I wonder whether you’re derailing yourself slightly because a determination I would have thought would not necessarily encompass what would ordinarily regard as an adjudication.

Keith I think that may well be, well that’s undoubtedly correct.

Tipping J So there isn’t some subtle jurisprudence here that I’m unaware of, it might be just an awkward use of language?

Keith I think if the distinction has a meaning it is drawing on the cases to which Mr La Hood has referred that there may be some level or some character of administrative decision that does not fit the language of s.27(1) and that’s the Chisholm case which I think is Your Honour’s decision.

Elias CJ Well it could only be those cases where a public authority isn’t making determinations in respect of rights, obligations or interests protected or recognised by law.

Keith Yes. Elias CJ Yes.

Keith But the comment in the Chisholm case was that the term ‘public authority’ may take some meaning from the word ‘tribunal’ in the same provision and that the phrase ‘rights, obligations or interests recognised or protected’ has a narrower meaning than the range of interests to which common law natural justice attach. Well Ma’am it might help to explain two things. One is there have been these indications in s.27 and related cases, the other and there is some references on the previous page to some of the UK decisions under the European Convention of Human Rights and particularly Article 6, that the determination of rights and interests, or civil rights and obligations, rather in that context has been given a narrower meaning than the range of interests that might be protected by common law natural justice. I don’t think much turns on the point today but there is some basis for saying that your fundamental human right has been affirmed by s.27 and the common law right are not co-extensive simply because the comparative human rights instruments in Article 14 in the

ICCPR, Article 6 and the ECHR have been given this different meaning and that is illustrated I think on the page before the reference as to whether the European Article 6 right, the fair hearing, the fair trial right which applies to civil as well as criminal matters is engaged by measures such as loss of privileges and there it has been held by both the European Courts and the UK Courts that prison privileges are not a civil right or obligation. So that may illustrate and I think we’ve got a long way from the point, but that does illustrate the potential difference and scope. I don’t know whether the adjudicative word is drawing on that but I think the real difference is it could for present purposes be substituted for the word

‘determinative’ in that the superintendent of the Court of Appeal says there’s not, or his or her delegate is not making a determination by the act of visiting

Tipping J By the act of not visiting

Keith By the act of not visiting in this case, but even if the superintendent or delegate were then it’s still not a determination of that point.

Tipping J It may be a failure to address the need to make a determination but it is not a determination as such where we probably don’t want to get to subtle.

Keith I don’t think so Sir. As I said in the written submissions these values were unlawful and to cast them still further as natural justice doesn’t seem to add a great deal. That is not to say that monitoring mechanisms are not important. The last passage of the written submissions, unless Your Honours have any further questions on medical and superintendent visits - I think Your Honours indicated yesterday that you didn’t regard the medical officers as having any determinative function in any case so I’ll move on. The non-compliance with statutory requirements point Mr La Hood indicated he is not now pursuing so Your Honours need not address paras.92 and 93. That just leaves a couple of outstanding points. One was I think Your Honour the Chief Justice and Justice Tipping indicated concern over Regulation 149. I handed up the regulations before the break. I just want to go through the terms of that if it would assist. I’m happy not to if you don’t want me to. I think I’d outlined that the background of the failure, the misunderstanding of the term ‘isolation cell’. Just looking particularly at Regulation 149, the first three requirements relate to notification and while none of 149 was complied with formally because there was no recognition this was an isolation cell, the purpose of 149(1), (2) and (3) was, or the substance was. These prisoners were given notification. Regulation 149(4) is accepted and it’s found in the Courts below that there was not notification of the superintendent or medical officer and in 149(5) similarly there was not any visit. I would say though about 149(4) the superintendent being notified of confinement in an isolation cell. The superintendent in fact decided and

authorised the placement of prisoners in the BMR programme, so, so far as that regulation is directed at ensuring that the superintendent of the institution is aware of what is going on and that must be its purpose that that was done, or that purpose was achieved. Again none of this excuses the failure but it does demonstrate that in part it was a failure without a substantive consequence.

Elias CJ It’s interesting that under 147(e) the superintendent can confine in an isolation cell for security an order of the institution which is really the basis on which these people were isolated and that’s described here as the temporary removal ground.

Keith I think Ma’am that has to be read in light of s.7(1)(a) and regulation

147(f). There is a distinction being drawn between temporary removal which as I understand it is only an immediate measure and 149(f) which attracts engages

Elias CJ Under s.7(1)(a) Keith Yes.

Elias CJ Which in its own terms doesn’t seem to countenance segregation to the extent that occurred here.

Keith It didn’t countenance and it’s accepted it did not countenance segregation with loss of privileges and that was a key finding.

Elias CJ And it had to be reviewed after three months and so on.

Keith And so far as that did not happen up until September 2001, that was a breach of 7(1)(a)

Elias CJ Yes.

Keith So far as after that time was concerned so the balance of the first two appellants time in BMR and the others there was s.7(1)(a) authorisation and three monthly reviews, so that

Elias CJ Well I still have a question as to the proper application of s.7(1)(a) but it’s not before us so we should not probably address it.

Keith Thank you Ma’am. And last just finishing off 149(6) the secretary being notified, that again is co-extensive with the breach of s.7(1)(a) up until September 2001 and with subject to Your Honour the Chief Justice’s reservations after that time. Section 7(1)(b) of the Penal Institutions Act requires notification of the secretary by the prison staff whenever

segregation occurs, so again 149(6), although not complied with literally, would have been complied with in substance from September 2001 the secretary was advised.

Elias CJ I promise not to ask a further question but s.7(1)(a) envisages segregation for a period

Keith Yes Ma’am.

Elias CJ What is the period that these people were segregated for?

Keith The period that the section envisages is an initial 14 day period and then up to three months and that is reviewed every three months and where s.7(1)(a) was complied with as from September 2001 the period authorised would have been up to three months and if people had come off BMR before that through the review process I have outlined then the segregation would be brought to an end at that point anyway. But the three months periodically reviewed period is what is in question. As to being able this provision authorising something for a longer period well the reference to review every three months does suggest it and while the question of whether segregation is justified in any individual cases concerned, it is on this basis that for example voluntary segregation, or segregation for protection of safety, whether voluntary or involuntary is maintained sometimes for many years, so the power does go that far. It will require justification and the involvement of the secretary beyond 14 days is intended and did provide an independent check. I think that really concludes what I have to say about natural justice. There were just some practical matters. Your Honours had asked for evidential references on characteristics of the regime and a couple of other matters. The basic characteristics is in the High Court judgment at para.10, page 100 of the first volume of the case on appeal and that sets out the, so that’s page 100, para.10. That sets out the basic characteristics and entitlements through the phases. But that’s a rather schematic representation of at least the formal attributes of the regime. So Your Honours will see that the length of time out of cell is fixed for each successive phase; entitlements to various things were restricted and then reinstated and so on. I just ask the Court whether we can probably provide more detailed evidential references to the day-to-day running of the regime, we’d be happy to provide that after today if that would be alright.

McGrath J Yes of course – that’s what I was asking for, yes. Keith So the sort of day-to-day aspects.

McGrath J Just really to direct me at least towards the passages of evidence that’s all

I’m wanting. Day-to-day or policy matters or whatever.

Keith Yes Sir. The second point that was raised was in relation to cell searchers.

Once again with time we may be able to chase up more detailed references but in relation to Mr Taunoa there were a number of offences that were raised by him as issues. The disciplinary offences mentioned yesterday by Mr Ellis which involved contraband in his cell. But again we can look to see what there is on specific findings.

McGrath J I’m very happy to have it after today.

Keith Alright, and the third, I understood Your Honours in discussion with Miss Gwyn to be saying that it wouldn’t really be appropriate to provide detailed information on the numbers and searches and soforth, Of strip searches that were conducted there was a record of those before the Court in the form of a register of searches but as my learned friends will point out that was not considered in great detail. It would be asking the Court to assess primary documentary evidence probably for the first time. There is

Elias CJ On the other hand they relied, the High Court relied on the register.

Keith His Honour Justice Young did point to pages of it. I think the objection that might be taken is while that is plain and we certainly do not dispute for example that searches as His Honour found with the justification given as routine or where reasonable grounds were specified as the search but the reasonable grounds weren’t spelled out. Sometimes they were but more often I suspect they were not. But I think the concern might be that as to number of searches, that is not tested evidence I suppose. The Judge at first instance did have this before him, did look at it but we don’t have for example a witness who says that every search was entered or that entry is true and correct. So we could provide the number but they would be subject to that caveat. What we can provide which was the subject of cross-examination and soforth, officers’ descriptions in the evidence of when searches were conducted and so on.

Elias CJ Yes well that’s perhaps even more controversial than an uncontraverted register, but I don’t think we need any of that.

McGrath J No, I think if I am correct Miss Gwyn was rather suggesting this material might come through and it wasn’t that so much but I was wanting really evidence more that would be assisting of whether there was a basis of a search having a purpose – the practice of searches having a purpose, and routine searches.

Keith Well we do have the strip searches or the others or both. McGrath J The strip searches.

Keith Right,

McGrath J And as I understood it the answer that was given to that was that there was evidence indicating that contraband was found in cells.

Keith Yes Sir.

McGrath J Well I would appreciate just some direction just to those passages of evidence.

Keith Yes Sir, by all means, we do have the convictions of Mr Taunoa for contraband in the cells.

McGrath J In the BMR cells.

Keith In the BMR, yes. Yes the disciplinary penalties that the appellants complain of were during BMR and were for findings of contraband articles, so we have at least that. We will certainly after the hearing look through the record just for any further references but we do have those at least.

McGrath J Right, thank you.

Keith Unless Your Honours have any further questions and unless there were any other points of evidence, we try to keep note of them all, but we may have missed one? Thank you Your Honours.

Elias CJ No thank you Mr Keith. Yes Mr Ellis.

Ellis I had intended to put that document in the submission Your Honours but as we only got legal aid this week I couldn’t. I don’t want to address you on it unless there’s a reply other than to say that Miss Gwyn pointed out to me in para.8 down the bottom ‘given the psychological’ because that was written before the High Court hearing, the date, so it was the 8th October, so it was written before we had the hearing, so that was a legitimate proposition to put at the time, of course that wasn’t found. But anyway it does illustrate I think some of the difficulties that this case has had in that, and it does in a sense go to the investigation point because if there hadn’t been an investigation and one knew what psychological difficulties of one’s clients were, how one approaches the case would have been different, so for instance when Justice Tipping asked ‘what remedy did you ask for’, it’s not as simple as that for the reasons set out at the bottom of the page. It was a little bit tricky but anyway I don’t need to address that but there’s some regulation that required me to tell the Court we have legal aid, so I’ve done that.

Elias CJ Thank you.

Ellis Right now I think in terms of the document in my volume 7, the pink one, my thesis, that document that said that mistakes and stuff-ups, perhaps I can confess to a stuff-up, because I think if I had simply labelled this thesis as perhaps I should have, the principal legal submissions advanced to the High Court, then it has a different connotation because that’s what it was. Those were my principal submissions which I just went through and supplemented with some others so in this reply I’m going to refer to some of these things because it’s easier to find them here than it is elsewhere in response to some of Miss Gwyn’s replies, and I’d like to start off with the question that the Chief Justice posed both to me and to Miss Gwyn and that was in relation to administrative segregation and what it was, that it did seem to be causing some difficulty. So if one could

Elias CJ Is it non-judicially imposed or non-penalty segregation?

Ellis Well it’s set out at page 155 and in an Australian article by Mathew or Malcolm Groves – can’t remember what his first name was – well anyway the pink volume, 155. So this is in the context of Australia, but I think it’s relevant to other

Tipping J Will you just forgive me Mr Ellis, I don’t have the right volume. Could you identify again for me please.

Ellis Pink, volume 7. Tipping J How is it labelled? Ellis I think it’s

Henry J Pink, volume 7.

Ellis I think it’s probably the only pink one.

Tipping J Oh it’s deemed to be an authority this thesis is it?

Ellis Well it was my submission, yes, if you’re gracious enough to say that, that’s fine.

Tipping J That’s alright, forgive me Mr Ellis. Blanchard J We don’t have to ask whether you’re dead?

Ellis You probably ascertained the answer to that Your Honour, but may be one would wish I was but I’m still here.

Tipping J And the page? Ellis 155.

Tipping J Thank you.

Ellis The differences between administrative and disciplinary segregation are according to Groves based on statutory power and in practice disciplinary segregation follows due process, whilst administrative segregation is enforceable without proof of an offence. Another difference is the time limits and I suppose that’s its simple formulation really. I can give you the article if you want it but I don’t suppose anybody’s going to read it but I think that sums it up. And then secondly while we’re there Your Honour The Chief Justice asked how long were these people in BMR for? So if you turn to page 173 where there’s a useful little table there, it was in the context of comparing with McCann the Canadian case which Your Honour managed to say was old. Well it may have been old but if was found to be cruel and unusual punishment and it was a systems case because you also asked are any cases involved in the system and there is a lot of them and I’ll get to them. But in this context you are comparing the two for obvious purposes, so in the Canadian case we had the numbers that Mr McCann who had 1471 days and Mr Taunoa who’s got two years one day (731 days) and Mr Robinson one year 27 days. The box on the right, the time in solitary in addition were in other regimes which aren’t the subject of appeal in other prisons normally, so like Mr Gunbie spent three months in Rimutaka before he was transferred to the BMR programme, so it wasn’t really accumulative. But not all of them were necessarily accumulative; like Mr Robinson’s all over the place. Another three years, right, but anyway. Now returning to where my learned friend the Acting Solicitor- General started, in her paragraph two of her submissions she said this was a regime for maximum security prisoners. Well it wasn’t and Mr Robinson was transferred from Wanganui and the only place you could have maximum security at the time would have been Auckland, so people were transferred and put into maximum security and then bunged in the BMR immediately, so it was actually being used as a collection point for what the department thought of difficult and disruptive prisoners nation- wide. Yes Mr La Hood refers me to page 75 of the High Court judgment, para.75, which is self-explanatory about the confusion

Elias CJ I’m sorry what paragraph? Ellis 75 Ma’am.

Elias CJ Thank you.

Ellis Then my learned friend made two comments during her address to you about incommunicado communication. Now I think it’s just essential on a philosophical level to ascertain that there’s never been an allegation of incommunicado detention – that is far worse than solitary, that in the international jurisprudence can lead to disappearances, death and physical torture. There’s never been an allegation about that at all so anything relating to incommunicado detention is irrelevant. The complaints system, my learned friend took you to volume 5 and went through around about pages 888 and said how many complaints were made. Well what she didn’t tell you of course was that Mr Taunoa, who wanted the written reasons for why he was detained; I mean it took him eight months to get that from the Ombudsman. You can make lots of low level complaints but the Ombudsman took a long time to come up with any more serious complaints and that’s in the evidence at 135(3) to 136(4) and I think one would find it in our tabs actually, just how long it took. We’ve been to tabs around about 12 and 13, how long the Ombudsman took just by looking at the dates of what was going on. And the Ombudsman of course said as you will be well aware that ‘I’ve looked at s.7(1)(a), I’ve made a recommendation that it be altered but beyond that it’s a matter for the Courts’ and those were matters that the Select Committee that decided to recommend unanimously setting up a Prison Complaints Authority said, the Ombudsman and the prison inspector are going to deal with low-level complaints but something more serious needs to be dealt with with something with more weight and I suppose the simple example of that is the Phillip Field, Noel Ingram one, if you haven’t got power to ask the right questions you don’t get the right answers and none of the Ombudsman, prison inspectors can require these matters. And then my learned friend took you to the question of what she called ‘evidence in relation to the investigatory complaint, and in my submission what the Acting Solicitor was conflate the application before Justice Young for amendment to the pleadings. What the amendment to the pleading sought was a breach of Articles, 10, 11, 12 and 13 of the Convention. And the Convention is, it’s in my blue volume 5 and I think it’s about 50. 47. So what was being sought before His Honour Justice Young was to amend the pleadings to attack 10, 11, 12 and 13, the State’s failure there. Well I must concede that an investigation in Articles 10 and 11 would require a considerable amount of evidence but as for Article 12, well it’s a pretty simple matter, was there an investigation or wasn’t there. So it’s conflating what occurred. And then Your Honour the Chief Justice enquired about the other litigants and the, if nobody minds if I call her the Solicitor, it’s simpler, the Solicitor said there was some 40-odd I think, well there’s either 42 or 44, I can’t remember. There’s two lots of proceedings in the High Court. I filed 20 or 22 and then another 20 and then the extra ones that have been received I haven’t filed. So there’s 40-

odd people who are formally litigating but it’s suspended pending the hearing in this Court and then there’s anything up to 150 people who haven’t got any litigation before them, so there is some merit in not spending the rest of my life trying to litigate on behalf of people who were held in the BMR and one would like to move on to other things, as I’m sure the Courts would because if one can imagine the amount of Court resources that would be taken it would be significant and then I would say her comment in relation to the Ombudsman and whether his was an investigation, well the requirement of Article 12 is for a prompt investigation, not for an investigation if the 2005 one’s meant to be an investigation, it’s got to be prompt and the one in 2000/2001 only related to a statutory interpretation of s.7 so there has been no investigation. And the discussion that occurred principally with Justice Tipping in relation to the meaning of Article 16 of the Convention needs to be expanded to, in my submission, the correct jurisprudential approach. And the simplest way I think of putting that is to refer, we are going to need to refer both the covenant and also the body of principles but we’ll take it at one step at a time so the principles which are at about 50 something. So the body of principles for persons in detention is at tab 50

Tipping J Of what book?

Ellis Of blue 2, the one just following on from volume 5, sorry, the one following on from the convention which you had in front of you a moment ago.

Tipping J No I put them back every time I finish with them.

Ellis Well you’re very efficient. Please keep it for a moment or two. Tipping J Volume 6 is it?

Ellis Volume 5 Sir and Professor Moller, who’s the author that Mr Keith referred to in his tab with a recent article, he refers to the body of principles and the standard minimum laws and other such things as the UN Bylaw, which is a new one on me but anyway that’s his proposition. But if one looks at principle 6

Elias CJ Sorry, what page are we at now?

Ellis Tab 50, the first page. Principle 6 – take it from me that at the end punishment that’s an aristerisk.

Tipping J An aristerisk? Ellis Asterisk, yes.

Tipping J Sounds like Mrs Mallaprop.

Ellis Well may be it’s a ghoul or something, yes. And if you look at the last page of the tab that’s what it’s referring to, at the very bottom footnote. And the footnote reads as you would expect ‘the term cruel, inhuman or degrading treatment or punishment should be interpreted so as to give the widest possible protection against abuse’. And that is the correct approach in looking at this. And in addition to the convention, of course there’s a mirror

Elias CJ It doesn’t seem very wide because it’s talking about a pretty extreme form there isn’t it. This is the deprivation of senses so that people are unaware of place and passing of time.

Ellis No, that’s including the holding of, it’s a general principle first and then it’s inclusive proposition next. But it’s not a startling proposition that one must read a human rights instrument in the liberal terms is it, I mean it’s hardly

Elias CJ Well my point was that the example given is something quite extreme.

Ellis Well no, that only says including, that’s not excluding anything is it? If you read the first bit it only says including so the widest possible protection against abuses, not abuse singular, it clearly has that feeling

Elias CJ Well if you want an expansive definition your inclusion is normally something not at the extreme. This is at the extreme. Well, anyway, I understand.

Ellis Well you understand my point, and in the covenant, because the two international treaties we’ve signed, the Convention Against Torture is reflected in the international covenant too as you’ve been discussing, it’s Article 7 and Article 10(1) that have the same effect as what we have in here. And then in general comment 31 of the Human Rights Committee, which I referred you to in my principal submissions, and just so that we’ve got the context - hopefully tab 56 is still before Justice Tipping?

Tipping J Yes I’ve restrained myself from being tidy.

Ellis Right, and just to remind Your Honours that what the general comments are – they are the views of the Human Rights Committee distilled from its jurisprudence and its concluding comments as to what it considers its authoritative views on the interpretation of particular articles, so there was sort of grand practice modes if we could have such a thing and if one would turn if you could to page 4 of that general comment and I would

have to read passages from 13, 14 and 15. Article 2, para.2, requires the State to take the necessary step to give effect to the covenant rights and the domestic orders. In the middle Article 2 allows a State party to pursue this in accordance with its own domestic constitutional structure and does not require covenant but be directly applicable in the Courts by incorporation international law. 14. The requirement under Article 2, para.2 is to take steps to give effect to the covenant right is unqualified and of immediate effect. The failure to comply cannot be justified by reference to political, social, cultural or economic considerations within the State and I’ll return to the argument about economic considerations later. But of course we’ve ratified that in 1989 so we’re having a little trouble giving immediate effect. In Article 15, which is the crux of this, second sentence, ‘the committee attaches importance to State parties establishing appropriate judicial and administrative mechanisms redressing claims of violations under domestic law. The committee notes that the enjoyment of the right to recognise under the covenant can be effectively assured by the judiciary in many different ways, including direct applicability, applications of comparative or constitutional or other provisions of law under the Bill of Rights, or the interpretative effect of a covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation. To investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies and their national human rights institutions and I’ve taken you there before to the optional protocol on the Torture Convention which is not putting that proposition into place, so any breach of the covenant, be it Article 7 or Article 10(1), s.9 or s.23(5) are required to be investigated immediately, so it’s not restricted to s.9 or s.23(5) or section anything. One requires a credible allegation and there can’t be any doubt having had findings of the High Court and the Court of Appeal that the allegations made were credible. And then my learned friends, I’ve forgotten which one it was but anyway somebody mentioned Professor Moller at tab 37 of the respondents bundle, number 2, which is sort of purplish and a passage from that was set out in their submissions, at para.32 but I want to take you to the fuller passage, including the first sentence, so if we could turn to page 677

Blanchard J Sorry, which tab?

Ellis 37 of volume 2, respondents’ bundle.

McGrath J And this is what’s referred to in the respondents’ submissions at para.32 in a more abbreviated way is it?

Ellis Yes that’s correct Sir.

Blanchard J Are you sure you don’t mean volume 3?

Ellis Well do I, I might. No I don’t, I mean volume 2. Tipping J This is Professor Moller?

Ellis Yes, right, so tab 37 Your Honour at page 677 at the top of the page on the right-hand side. And then the first indented paragraph. ‘In the text above case samples have been cited to illustrate how the committee has attempted to distinguish between violations of Article 7 and violations of Article 10(1). This has been a bumpy road at times but in the end one must draw the conclusion that notwithstanding some inconsistencies’ and then the Crown start ‘bad conditions apply’ and then following on with the next paragraph ‘When finding a violation of Article 10(1) the Human Rights Committee invariably employs the language ‘inhuman treatment’ or ‘inhuman conditions’ which in fact and in law would point to a violation of Article 7. To the reader of the case law it’s difficult to understand that inhuman treatment sometimes amounts to a violation of Article 7, sometimes of 7 and 10(1) together and sometimes only. Perhaps a different choice of words such as inhumane treatment would be less confusing. Similarly it may be difficult to understand the beatings of inmates sometimes amount to a violation of 7, sometimes 7 and (10(1), even in severer beatings sometimes amount to a breach of Article 10(1) only. Further light can only be shed on these issues in the Committee’s case law. And then we finally note the bylaws. So in simple terms the jurisprudence of the Human Rights Committee is a complete mess in relation to whether it’s Article 7 or Article 10(1) and I can take you to, but I’m not going to unless anybody asks, I’ve got a much fuller analysis of any number of authors who’ve heavily criticised the jurisprudence and say well it’s about time the Human Rights Committee made up its mind and gave some guidance, so you really don’t know whether it’s 7 or 10. But the one thing I think is very clear from all this jurisprudence is everybody avoids saying as best they can it’s torture or it’s inhumane; they just say it’s a breach of Article 7, or a breach of s.9 if you like but don’t get into the analysis because it’s too difficult. Anyway, right well that takes me to McCann and Canada which I’m fond of, so I’m going back to my thesis, at page 170 for a simple analysis of it.

Elias CJ Where do we find McCann itself?

Ellis In one of my blue bundles – tab 23 of the blue volume, volume 2, which we can, I suppose we might have to now, but I want to just remind the Court also that, I mean the context of this case which as the Chief Justice rightly said was old, is an analysis of cruel and unusual punishment, so if you went back to my page 170 you will see that that’s where it comes in and we’re talking about our equivalent of the 1688 Bill of Rights and the American jurisprudence of cruel and unusual punishment is far more

advanced than the Anglo world, and of course that case which you will see, oh no I mustn’t jump too fast. It’s in the context the Federal Court there assesses it in connection with the death penalty. Well it wasn’t a death penalty case and the South African Constitutional Court in the seminal case there set out on page 171 where the President goes into the context of capital punishment being cruel, inhuman and degrading and there’s a proportionality argument which is about the nearest we get to disproportionality anywhere else, but then the Federal Court Canadian Judge in the middle of page 172 describes the cells there and I put on my page 173, which we’ve already looked at, the periods of detention for those held in that regime compared to those held in ours, which okay is 30 years later, but one thing I should flag up front is from my recollection of the case, there were guns involved being pointed at prisoners which of course there aren’t here so that does put it into a different category but in terms of the conditions and what was happening there, some of the period is remarkably similar to what we’ve got in our era, and of course the Court does find that that regime of solitary confinement was cruel and unusual punishment, so I would with respect Ma’am say it’s not easy to dismiss as an old case. It’s a valuable case in understanding the jurisprudence that relates to this somewhat tricky issue.

Tipping J Do we get help from the United States jurisprudence, and if so is there a single important case to which you wish to refer?

Ellis Madrid and Gomez.

Tipping J And you’re about to mention that are you? Madrid and Gomez.

Ellis I’m about to mention it on the next page of my notes, yes, tab 25, it’s just following from, so there’s McCann followed by the Arbour inquiry and then there’s Madrid and Gomez. It’s a long case.

McGrath J No one’s referring to more than the recommendations in the Arbour

inquiry are they? Ellis No.

McGrath J And that’s all we have before us?

Ellis Yes it’s readily available on the internet.

McGrath J Yes I noticed there was an internet reference. But that’s all you really feel we need to look at?

Ellis It’s enormous. Well it’s like the Woolf Inquiry I suppose too. I mean I’ve got a little extract of it but it’s two volumes you know and you read things

forever, so I just had to make a rational judgment that you can’t read everything. I’m going to address a question from Justice Tipping here. My United States analysis starts on page 182 of the thesis and the Pelican Bay analysis is at page 198 to 203.

Tipping J Thank you. So it’s 182 to 203.

Ellis Yes Sir, and I did neglect to mention in McCann – it’s only one line, you needn’t go to it, on page 357 when Dr Corner, a Psychologist, is giving evidence he says ‘exercise under the sky’, his comment was that even condemned men get to walk in the yard and well you know what my submission is on that.

Tipping J Sorry, where is the discussion in your thesis at what you say is the leading case in Madrid and Gomez Mr Ellis?

Ellis 198 to 200 and something. Pelican Bay case, Madrid and Gomez, have you found it Sir?

Tipping J Yes I’m just getting to 198 and I see Madrid and Gomez thank you.

Ellis Yes and that goes on to 203. Now I’m getting a bit out of sequence here but as we are there the Chief Justice’s questions was to the Solicitor, are there any not systemic cases but, not individual cases, I’ve forgotten what you said

Henry J Regime.

Ellis Regime cases, thank you Sir, and the answer to that is McCann, to the extent that you can there was the Arbour inquiry, there’s Petershead and Feltham in principal submissions from the CPT – they’re the Scottish and the English reports of the CPT on the regimes and solitary confinement. There’s also just a footnote I’ve got here but I’m sure we could find it if we need to, the New South Wales Ombudsman’s inquiry which resulted in the closing down of the New South Wales similar scheme in, I think it was

1992, but it might have been 1982. Oh there’s the Naval inquiry I suppose as well isn’t there. The Royal Commission into Prisons in New South Wales. Report of the Ombudsman, New South Wales Deputy Ombudsman 1992 and of course there’s the Woolf inquiry, Lord Woolf’s inquiry into prison disturbances which are relevant to it of 1995 and there’s Madrid and Gomez and there’s also the Western Australian Casuarina reference that I made during my principal submissions, so there’s lots of them. This isn’t a one-off event around the world. As I said they’ve got a bit out of sequence here. In page.75 in my thesis there there’s the comment from McGoldrick about Article 7 and 10(1) which says ‘even within its limited scope the HRC’s analysis has been rather

sparse, cautious and unhelpful. Professor Joseph at page 78, is the leading text on the Covenant which you’re probably familiar with and she says on page 78 ‘the HRC has unfortunately not been totally clear in defining the line between breaches of Article 7 and breaches of Article 10’, and Livingstone notes while the prohibition is clear, the content of the prohibition is not, and Livingstone is the author of Owen Livingstone, the Leading Text Book on Prison Law in the United Kingdom. He was unfortunately one of my examiners – I say unfortunate in that after I’d put my thesis in he vanished off the coast of Antrim and was never seen again and whether it was suicide or not I don’t know but I’m sure my thesis wasn’t that bad that it drove him to that - well I hope not anyway. But he was a brilliant man and a sad loss. And finally there’s Bernard at 79. Bernard is similarly critical and Nowak at 81 which my learned friend cited a different passage from Nowak but there’s a passage there cited at

81. And then the comment regarding some economic considerations I suppose I have a citation called “Khatri on the State of Bihar which I can give you a citation if you want it but it’s a Supreme Court of India case, citings from American jurisprudence which simply says this ‘the State may have its financial constraints and its priorities and expenditure but as pointed out by the Court in Ramand Malcolm 377 Federal Supplement

995, the law does not permit any Government to deprive its citizens of constitutional right on a plea of poverty and to quote the words of Justice Blackman in Jackman and Bishop, ‘humane consideration is a constitutional requirement and are not in this day to be measured by dollar consideration’.

Henry J Mr Ellis has that got any relevance to our inquiry?

Ellis Yes, it doesn’t matter whether you can’t afford to fix the windows, or you can’t afford to let people in the yard

Henry J But is that an issue here? I don’t understand the State to have been saying that in any way we’ll these things were naughty but we couldn’t do anything about them because we couldn’t afford to.

Ellis It’s certainly what was said in the Courts below. There were resource constraints and it came up in the question that Justice Tipping was asking but it’s probably best left for an attack on what is now in the Corrections Act, which says we’ll provide items as resources permit and whether that’s capable of

Henry J It just didn’t seem to be a factor which is relevant to any of the inquiries we are concerned with.

Ellis Well I was responding to a question that Justice Tipping asked, so anyway.

Tipping J I do apologise for that.

Ellis Please don’t apologise because actually it’s an enormously tricky and important human rights issue.

Tipping J Like by brother Henry I think it must have been an inadvertent or unconscious excursion on my part. I don’t think by brother was unconscious. I didn’t think it had much to do with anything either.

Ellis Yes it was the context of can you be tortured more in poorer countries –

did you expect better or less conditions. Well

Tipping J Oh, that was a general sort of

Ellis Well this is a general reply. Right, I’m trying to be thorough. Right, so now we’ve done McCann, ah yes sorry Justice Blackmun’s passage is at

199 of my thesis. I was looking at some other thing that came up on the search facility. I had forgotten it was in there. Administrative segregation we’ve dealt with. Then my learned friends referred to the passage from Professor Nowak in tab 36 and Miss Gwyn addressed you relation to solitary confinement in the per se was that a breach of s.9, and as I saw it the central proposition really was this that any solitary beyond the judicially allowed 15 days in the Penal Institutions Act is prima facie breach because why can you impose administratively more solitary than you can impose judicially given the jurisprudence of the Human Rights Committee that you should only impose it in cases of urgent necessity. So how is it that administrative segregation in its widest meaning can go on for a year or two years when Parliament only authorises Judges to impose it or visiting Justices for 15 days and the discussion that the Solicitor had with Your Honours about Rhode and Denmark and I took you through the details of his detention yesterday, well if one can categorise it in the sort of hotel system, that’s a solitary one star as is two or three stars and

Elias CJ I think you made that point in your opening submissions, the written ones. Ellis Yes, and then my learned friends at para.50 of their submissions refer to

Evans and Morgan and their footnote 85 ‘Preventing Torture – a Study of the European Convention’ – it’s one of the bundles, but that’s dated, that’s a 1998 proposition and in my thesis at 126 onwards to 129 there’s a discussion with their later book “Combating Torture in Europe” and the essence of it is that what has happened is that the CPT have moved away from the difficult classifications that we’ve had to renew one in their mind which I don’t know that it makes much improvement, we now have in their conceptualisation torture, sever ill-treatment or ill-treatment and they seem to use phraseology which then only gets us to the problem doesn’t it

of when does ill-treatment become severe ill-treatment, but that’s the way they’re moving it in their 2001 book and I mean certainly Mr France

McGrath J What was the page reference you gave us?

Ellis That’s at page 126 to 128 Sir, the approach of the Committee for the Prevention of Torture and quoting Morgan and Evans multiple paragraphs there. And then the investigation. Mr La Hood reminded me that in his submissions to the Court of Appeal that there was some late evidence which is vitally important to the proposition of why one needs an investigation and this was our submissions in support of the Krofts appeal, because they were appealing, were they, yes that’s right, anyway what he said was this at para.1 of his submissions ‘the appellants have disclosed important evidence after the High Court judgment and less than two months prior to this appeal under cover of a letter dated 5 April (see draft report to G Carr, Regional Manager Auckland Prison) this is a draft preliminary

Elias CJ Sorry, what’s this directed at? Ellis Investigation.

Elias CJ What aspect of

Ellis Why you need one.

Elias CJ And what matter of reply is this being addressed to?

Ellis Well that we don’t need one and we leave it till the end and hope the

Attorney-General does something. Elias CJ I see, thanks.

Ellis This is a preliminary investigation report completed by one of the appellants, the superintendent of Auckland Prison. It relates to an incidence involving excessive control and restraint is sought on a BMR inmate. Two of the officers involved in Taunoa’s excessive control and restraint allegations were found to have excessively unjustified, controlled and restrained another inmate during the incident. Evidence contained in the non-discovered preliminary report could have been powerful evidence to assist the respondent’s case had it been available at trial. In particular the report refers to and attaches a statement from Senior Corrections Officer Tony Caramin who stated he had witnessed assaults by Officer Meuller on three other occasions, including Taunoa just a few months ago.

Elias CJ Sorry, just pause again. These are submissions to the Court of Appeal in the case on appeal and was the evidence admitted?

Ellis It was certainly attached to, and I don’t think it was objected to. They provided it to us and it wasn’t a matter of going back and re-visiting it, I mean what we were simply saying is we didn’t have it and it could be read for the purposes of this point. But the point I’m making here is that if you had an investigation rather than a Court case – see they briefed the witness but didn’t give it to us, which is perfectly proper for them to do in a civil proceeding but if you have an investigation we would have this evidence and also the evidence of one of the other officers who gave evidence and came forward that she’d admitted an excessive use of force and she was criticised for her failure to report it. So the way an investigation goes as opposed to a Court case is significantly different and what you can expect to get is different because officers come forward and say you know this happened, so that’s a very powerful reason, explanatory reason for why one needs an investigation. Strip searches – yes I think the simple point there is to say (speaks with Mr La Hood) apparently the principal pages of evidence on this matter are between 1640 and 1653, case on appeal.

Henry J Does that mean that one of the purposes of the investigation you are seeking is to revisit these individual claims?

Ellis The purposes of the investigation is to find all the matters that I referred you to in principles of the Principles of Effective Investigation. If evidence has not been obtained in this case, it may be relevant to revisit it.

Henry J Is that one of the purposes of the request for an inquiry?

Ellis It was more aimed at ensuring that justice was done. If that’s a purpose then so be it and everybody else, all the other 200, don’t have to go through this process, but certainly if further evidence came forward from other prison officers and the truth is obtained, that is one of the purposes of the investigation and that is the UN principles that we search for the truth, yes.

Henry J So it would enable you to revisit these claims and it’s to provide information for pending claims – those two are the purposes.

Ellis Revisit these claims or to ensure that those who were responsible for the plan are disciplined or brought to justice or what have you to prevent reoccurrences and to ensure that every body else, I wouldn’t concentrate, I mean I think the practicalities of revisiting this

Henry J I was asking you whether those were two of the purposes behind it but not the only purposes.

Ellis Well they may be but I wouldn’t put undue weight on them. It’s not

Henry Well it just seemed to me that the passage you’re just quoting was directed to that very purpose and nothing else.

Ellis No, it’s directed to the purpose of explaining why an investigation is useful. I’m not, I hope I’m not, going to go down the track, I mean it’s just too difficult to go down the track of reopening everything, but there may be matters that haven’t been dealt with that can be dealt with. It’s not a matter of second-guessing, well that certainly isn’t the intention, it’s a matter of trying to move on in a sort of truth and reconciliation type of way and to ensure that the public knows what happens. And my learned friend says that it does show that litigation is not the first choice of forum and that’s right, so I mean please don’t attribute some ulterior motive to reopen things. That’s not where I’m going at all. That would be unjust Sir. Medical visits, yes, I think I wanted to take you to the regulations that apply to this because I’ve certainly felt very strongly about this particular issue and in the early days of this case we were suing the medical officers in the second or third amended statement of claim when Mr France said

‘look there’s 68 medical officers, I thought oh, a bit tricky, and it all got indemnity insurers and he agreed the medical officers didn’t get the paper work so he said okay you agree that we’ve flagged the medical officers for current purposes, but to suggest that they didn’t know what was going on flies in the face of reality, because they were busy going around, I think it was twice a week, giving out antibiotics or whatever people wanted, you know, foot cream, and they see the people in the cells and if you’re in there for a year you can hardly not know that they’re in there so it’s a nelsonian not knowing. And let us look at the regulations that relate to this. The simplest way of looking at them I’m afraid is at the back of my thesis is the appropriate ones annexed one another. So if we look at page

Elias CJ Do we have them as well, because I’ve been looking at the regulations in another volume. Do we have them as well as in your thesis?

Ellis No we don’t, I don’t think we do, we might do but that’s not all of them.

I’ve got hopefully in appendix 2 at page 251 the appropriate regulations and I apologise if they are somewhere else but on page 253 at the bottom we’ve got duties of medical officers and at the top of page 254 – a medical officers must take all practical steps to maintain the physical and mental standards of inmates to a satisfactory standard – (j) advise the superintendent of any health and safety issues affecting any inmate, classes of inmates, and they’re obviously a class in BMR. Certain inmates at risk or seriously ill ...3.45.26 ?? Regulation 63, a medical officer of the institution must promptly notify the superintendent in writing with any

recommendation if he has reason to believe that the prisoner should be transferred or

Tipping J Is the absence of medical attention, if I can call it that for short, relevant to the breach of s.9?

Ellis Yes.

Tipping J That’s where we’re at is it?

Ellis Particularly the one here on 255(2) A medical officer of an institution must ensure that special attention is paid to an inmate who is confined to an isolation cell. Well if you neglect to do that there must be some consequences and the entire purpose of these as I put in my new volume 8, which I handed up to you yesterday on the history of it back to 1840, they are guardians to ensure that people are physically and mentally able to sustain this sort of treatment. So they’re not told; they turned a blind eye to people being in there but they’re supposed to pay special attention to them and there has to be a consequence of that. They’re not making a determination; they’re not paying special attention to them –‘must ensure special attention’ – so that is a clear breach – ‘must ensure special attention’.

McGrath J Mr Ellis I’m just trying to consider how we relate that to a finding by both Courts below I think; certainly in the High Court that the medical attention inmates on BMR received was at least to the standard of members of the general community.

Ellis Well yes, that’s the general standard. I think that’s regulation, I can’t remember, that’s regulation 5 or something but this is the special standard. They may have got what was required of the general community but they require special attention which they don’t get.

Tipping J Is there any evidence that apart from Mr Tofts that there was any particular harm or damage that could be sheeted home to this failure of special attention as opposed to giving them generally okay medical treatment?

Ellis Well

Tipping J Because as I understood the Crown submissions it was in part that no harm came of it putting it very very bluntly.

Ellis Well I think the evidence as far as I can recall it related to foot creams and eczemas and shaving rashes and that sort of thing. I’m more concerned with the psychological effect of being in there.

Tipping J I’m not interested in your appreciation, I’m interested in the evidence and was there a finding.

Ellis No, I’m interested in the logical conclusion to it and a proper inference that can be drawn

Tipping J No finding of any special harm?

Ellis Well impossible, no investigation – an impossibility.

Henry J Mr Ellis can I ask you if there was no such regulation, specific regulation requiring this, do you say s.9 would still have been a breach because there was no such visits?

Ellis I would say that regardless of there being a regulation or not, the international dimension of this the standard minimum rules requires it, historically it’s been required. It’s certainly international best practice if it’s not customary international law so in the absence of this regulation I would say that it still needed to be required and it would still be a breach of s.9, yes Sir.

Henry J Thank you.

Ellis My learned friend refers me to para.198 of Justice Young’s decision

Tipping J 198? Ellis 198.

Tipping J Because I’ve just been looking at it for this very purpose.

Ellis You’re in advance of this again. The issues arising can be put as the question, ‘Did Corrections for any reasons believe that the inmates considered for BMR might suffer from an aggravated mental illness. I’ve already observed their failure to comply with Regulation 48. This was a serious admission. It severely limited medical officers’ ability to carry out their task in accordance with 60, 63, 64 and 66’. And that’s where I’m going because if the guardians don’t do their job there must be some consequence to it. It’s a very serious admission. Anyway I don’t probably need to take you to the rest of them do I? There’s 149(4)(2) which is at my page 256 but I won’t go through this. Ma’am in the interests of time in the lower Courts Mr La Hood was allowed to reply to these matters and he will be quicker than I am because he knows

Elias CJ Well it’s not the usual

Ellis I understand that but we were given that right in the Courts below and just so that we can finish

Elias CJ Right that’s fine.

Tipping J But that’s the end of you Mr Ellis is it?

Ellis Yes it will be unless there are any questions. Tipping J I didn’t put that as well as I might have Mr Ellis.

Ellis Yes I’m sorry I should have said do you have any questions. Elias CJ No, thank you.

Ellis Well it’s been a long haul to get here and I’m grateful for the opportunity of being heard.

Elias CJ Thank you Mr Ellis.

Ellis Even if not on everything. Thank you.

La Hood Yes, may it please Your Honours, the case that’s just been handed up, I’m not sure if the Court will find it of much value given that it’s the High Court judgment on an application for leave to appeal to the Court of Appeal, but it did receive some media publicity just last week and it’s a s.9 case so it may be of some use and Justice Cooper does analyse s.9 in terms of the degradation, as it’s been termed in this Court, of the various components or disjunctive parts of s.9

Tipping J What’s this got to do with natural justice?

La Hood That’s why I was trying to explain to Mr Ellis that perhaps I wasn’t the best person to reply on this bit. This is really Mr Ellis’s part and that’s why I was shaking my head with distaste, but this one’s really the end of Mr Ellis’s part, but

Ellis I’m sorry I just

Tipping J No well he’s signed off so

Elias CJ Carry on, it’s been promised that you’ll be fast.

La Hood I don’t need to add anymore than that. I think it’s just a matter for Your

Honours to read and I wasn’t going to say anymore than that.

Elias CJ Thank you.

La Hood And if it is of any interest to you but that’s just to complete the New Zealand s.9 cases so Your Honours have I hope all those cases before you now. In relation to Mr Keith I wasn’t going to say much at all except that a matter that occurred to me during his submissions and the exchanges is the focus on the wording of the section itself which perhaps going back to very first principles is that at s.27(1) every person has the right to the observance of the principles of natural justice by any tribunal or other public authority and I think everyone’s agreed that this initial segregation decision fits that wording, including the superintendent’s decision to initially segregate. But then it goes on ‘which has the power to make a determination’, so in this case the Crown conceded unless I’m mistaken orally by Mr Keith that the superintendent both had the power and the obligation to make sure that a segregation didn’t continue for any longer than was required in the circumstances. So a daily visit from the superintendent included both a power to remove and revoke the segregation and an obligation to do so, so it not only fits the wider principle of a power but includes within the regulation an obligation and in my submission using that very concession that there is that obligation, then how could it be said that it’s not part of that right to natural justice to have that

Henry J Could you help me by identifying the particular breach?

La Hood The breach was the failure of the superintendent to go and visit the inmate which he had an obligation to do and a power at the same time as well as an obligation to remove the inmate from the segregation should it no longer be necessary. So the duty was

Henry J I’m sorry I don’t quite follow what the natural justice point is? I

understand that the, you say there was the obligation and the power but La Hood The question is whether natural justice is engaged and if it is engaged Henry J Let’s assume it’s engaged, how was it not applied

La Hood Because that as Justice Young found, that review afforded an opportunity to be heard, which is a very basic principle.

Henry J That’s what I’m trying to identify. It’s the opportunity to be heard? La Hood Yes.

Tipping J On a non-existent visit

La Hood Yes. Will I didn’t want to go into that in any more detail but that applies equally to the non-existent disciplinary proceeding, but it would be remarkable in my submission to excuse a breach by simply saying ‘right it can’t have been breach because they forgot about it’. Effectively that

Henry J Well it’s equivalent to saying there’s a right to be heard on a disciplinary process which was never invoked.

La Hood That’s exactly my point, yes. Henry J I have trouble with that

La Hood But it should have been invoked because what they did in fact do was impose a penalty, so effectively the Crown says the motives were good, they conflate intention with motive. There can be no doubt using the criminal analogy that the motive may have been commendable but the intention was to remove their privileges. That’s not in dispute. The fact the motive may have been a good one is irrelevant in my submission. They did remove the privileges; that was a punishment, in fact ignorance of the law is no excuse for that and to say that we can excuse the breach of the right because of the ignorance of the Crown is in my submission a remarkable proposition. And the same applies in my submission to the superintendent visits where if it’s accepted as I just submitted that the superintendent as the Crown has now conceded had both the power and the obligation to ensure that the segregation remained in place only so long as was necessary.

Henry J Well again, wasn’t the lack of an opportunity to be heard on that that you were complaining about?

La Hood In relation to the superintendent visits? Yes Sir. Which was a finding of

Justice Young.

Henry J So how often was the superintendent required to visit? La Hood Daily Sir.

Henry J So on each daily visit the inmate was entitled to be heard as to whether or not he should continue to be there.

La Hood Provided an opportunity to be heard. That’s the finding of Justice Young.

It was an important right. That’s not just my proposition, that’s the point

I’m making Sir.

Henry J Well did Justice Young find there was an obligation to provide him with an opportunity to be heard on each day?

La Hood I took you yesterday to the actual wording. If I can take you to the finding again I’m happy to do that Sir.

Henry J It doesn’t sound very realistic to me that’s all.

La Hood Well I’m simply using Justice Young’s judgment, paras.194 and 195 of the judgment and I won’t read it out.

Tipping J I think the Judge was saying that the right was to receive a visit, he wasn’t saying that there was a right to be heard.

La Hood Well the Judge does say

Tipping J It would seem to me to be that you can’t be heard when the person’s who supposed to be hearing you isn’t there. Sorry I don’t mean to sound facetious Mr La Hood it’s just a complete contradiction

La Hood That must be right

Tipping J It’s all very well to hammer Justice Young saying it was an important right when you’ve got to identify what the right he was talking about is.

La Hood Yes, in my submission he does say that was, this is his wording ‘it ensures a complaint outlet independent of the’ – this is para.194, the last part, after saying it’s an important independent check ‘it ensures a complaint outlet independent of the inmates’ immediate jailers’. This was an important right, or this will be an important right, the complaint outlet. Mr Ellis says I shouldn’t be in here obviously, self-evidently.

Henry J Well have I got it right then this involves the inmate being deprived of a daily opportunity to complain of continued segregation.

La Hood Yes Sir.

Henry J Is that the effect of the submission? La Hood Yes Sir, yes.

Henry J Thank you.

La Hood And Mr Ellis points out and I think rightly that this also has to be looked at in the context of given the finding that this was a penalty regime in fact if not in motive, that if it had been a penalty regime properly imposed the maximum period, in other words in both intent and motive, the maximum time that anyone could have spent under the Act for a penalty regime

would have been 15 days which puts it in some context in my submission. The minimum of course as Your Honours know in this case was nine months. Those are our submissions unless Your Honours have any questions.

Elias CJ No questions thank you Mr La Hood. Well we need to ascertain when we can resume to hear the cross-appeal. It’s looking as though it will have to be in November and in particular, although Justice Henry is going to have to check the position, it looks as though it will be in the week of the 7th November but I will get the registrar to confirm that with you. Are there any problems with that Miss Gwyn.

Gwyn No Your Honour but being realistic the way things have proceeded and bearing in mind the scope of the cross-appeal I am wondering whether two days might be a more realistic

Elias CJ I’ve suggested to the registrar that we should have two days. Gwyn Thank you Your Honour.

Elias CJ Yes Mr Ellis.

Ellis We do have one minor problem which hopefully we can overcome. Mr La Hood, I’m very grateful to him that this is his penultimate day at the defence bar. He’s joining the dark side next week and there’s some

Elias CJ All the best people do at some stage. You’ll have to come out later. La Hood Much to my shame.

Ellis I don’t think I’m going to so I’m not obviously one of the best. I think the ex-Solicitor-General might know that you can’t appear if you work for the Crown in a case against them, and as he knows the evidence inside out and if it is a rule of law we’re stuffed, if it’s just a rule of practice – what I’m proposing to do, the Solicitor’s going to look it us, is if it is a rule of law were would ask that he be allowed to appear as if he was an English solicitor and sit there and not robed and he can

Elias CJ Well I think that’s something that you need to resolve amongst yourselves.

I don’t think we’d get involved in that. If it comes to that of course he can sit in the Court.

Ellis Yes well you’ll be aware why he’s not sitting there if it is.

Elias CJ Yes, thank you. Well I hope that he will be allowed to. Now the only question is we have completed the appeal and it may be that we will be in

a position to progress that. There’s no impediment to that is there that anyone can see? They’re quite distinct, yes, good thank. Alright, thank you. Thank you counsel for your huge assistance and for all the material. We’ll take time to consider our decision.

Ellis As Your Honours please.

Court adjourned 4.06pm

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