GREER v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2018] NZHC 813

GREER v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2018] NZHC 813 [26 April 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2017-485-873[2018] NZHC 813BETWEEN ALAN IVO GREERApplicantAND CHIEF EXECUTIVE OF DEPARTMENTOF CORRECTIONSRespondentHearing: 26 April 2018Counsel: Applicant in PersonD Harris for RespondentJudgment: 26 April 2018JUDGMENT OF SIMON FRANCE J[1] Mr Greer is a serving prisoner. Pursuant to a Departmental Drug and AlcoholTesting protocol, prisoners may be randomly selected for a drug test. This happenedwith Mr Greer three times in 2017, and on each occasion, he refused to submit to thetest.[2] Refusal is a disciplinary offence and Mr Greer was charged. The threeoccasions were subject to separate charges and were referred to Visiting Justices fordetermination. There appears to have been some confusion over whether they were tobe heard together or separately. Ultimately, there were two hearings disposing of thethree charges. Mr Greer was convicted.[3] A consequence of conviction, separate from any penalty imposed by theVisiting Justice, arises under the Drug Policy. The prisoner becomes subject to IDUstatus (identified drug user). This status has consequences on various aspects of aprisoner's life, but its impact is greater for those otherwise on lower securityclassifications. Mr Greer is assessed as a high security prisoner and so the practicaleffect of the status, for now, is various restrictions on visiting rights. The status runsfor a year from conviction. If there is more than one conviction, they run concurrentlyso the expiry date is 12 months after the latest conviction. Further, there are levels ofIDU status – one offence, two offences, or three or more offences. Each level attractsgreater restrictions. Mr Greer is IDU3.[4] Mr Greer has filed judicial review proceedings challenging his convictions. Inthe broadest terms, the challenges are to the random selection process, and to thehearing process followed in relation to his convictions. More particularly, Mr Greerbelieves that he is entered twice into the database (by virtue of having two prisoneridentification numbers). He accordingly submits he has been invalidly selected underthe Random Drug Policy (and inferentially that this means the request for him toundertake a drug test was unlawful).[5] The challenge to the hearing process has three components:(a) the three proceedings were to be heard together and were not, to hisdisadvantage;(b) the wrong evidence (being not the "best" evidence) was led about hisidentification numbers. This needs to be seen as a reasonablenesschallenge, it being claimed the evidence lacked sufficient evidentialvalue to establish he was lawfully selected for a test;(c) one of the two Visiting Judges wrongly declined to recuse himself.[6] This ruling addresses Mr Greer's application for a suspension of his IDU statuspending determination of his substantive proceeding. A fixture has been allocated for15 August.[7] The respondent opposes interim relief, primarily on the basis that the case isweak, and a stay would undermine the drug policy. It is noted:(a) the disadvantage in not having had the three charges heard together isnot clear, nor is it apparent why the point of itself invalidates any of thedecisions;(b) the Department led evidence about the identification numbers andneither visiting Justice thought Mr Greer's point raised a concern. (Itis accepted none of the rulings particularly address the point.)(c) Mr Greer can address the IDU status by agreeing to undertaking twodrug tests.[8] The application for suspension of the IDU status is granted. If Mr Greer'sproceedings succeed, then he will have invalidly been subject to restrictions, a factornot to be minimised in the context of prison. On the other hand, if he is unsuccessful,then the status goes back in place, and for the full period. The balance clearly favoursinterim relief.[9] As for the strength of the case, while there is apparent merit in the Department'sposition, the proceedings appear to be a genuine challenge. Mr Greer obviously hasissues with the random drug testing policy. He is serving an indeterminate sentenceand it is a policy likely to continue to affect him. As far as I can see, he has beenrandomly selected five times over the 2016–2017 period. I am unaware if that isstatistically to be expected or otherwise, but it is clearly a policy that impacts uponhim.[10] I am not prepared to hold at this point that there is obviously a lack of meritsuch as to decline interim relief. There is otherwise nothing that really tells againstrelief.[11] A concern is that there may be delay in the substantive proceedings, and noincentive for Mr Greer to advance matters. If the matter were to drag I accept thatcould undermine the policy. A timetable is in place. The interim relief is subject to arequirement that Mr Greer comply with that timetable. A failure to do so, withoutreasonable excuse, will provide a basis on which the respondent can seek to have theinterim relief revisited.___________________________Simon France J