ARTHUR WILLIAM TAYLOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2009-404-7339

ARTHUR WILLIAM TAYLOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2009-404-7339 13 April 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-7339UNDER the Judicature Amendment Act 1972 IN THE MATTER OF an Application for Judicial Review and Interim Relief BETWEEN ARTHUR WILLIAM TAYLOR Plaintiff AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant Hearing: On the Papers Appearances: Plaintiff in person V Casey for Defendant Judgment: 13 April 2010 at 12 noonJUDGMENT OF WILLIAMS J (On the Papers)This judgment was delivered by The Hon. Justice Hugh Williams on13 April 2010 at 12 noonpursuant to Rule 11.5 of the High Court Rules .. Registrar/Deputy RegistrarA. Alternative applications for the appointment of amicus curiae or Court- appointed expert is adjourned part-heard for parties' consideration of other strategies discussed in judgment. B. Telephone conference convened for 18 May 2010 at 9:00am ____________________________________________________________________Issue[1] The plaintiff, is an inmate of the East Division of Auckland Prison at Paremoremo. [2] He is the father of a daughter born on 12 June 2007. [3] A potted history of the position concerning Mr Taylor, his wife and his daughter over the period late 2006-September 2009 appears in the judgment of Heath J delivered in this matter on 8 March 2010. [4] From August 2008-15 September 2009 Mr Taylor had contact visits with his daughter at Paremoremo but the Prison manager ended those visits on 15 September for reasons briefly discussed by Heath J in the judgment mentioned. [5] These judicial review proceedings are brought by Mr Taylor to challenge the lawfulness of the manager's action. [6] Heath J, in the judgment mentioned, dismissed Mr Taylor's application for interim relief in the proceeding for the reasons he discussed, but expressed the view that the substantive hearing should be afforded "some" urgency. [7] During a telephone conference on 15 March 2010 Mr Taylor asked for the appointment of an amicus curiae to assist him in the proceedings. Ms Casey for the defendant objected to that application and accordingly it was required to be dealt with on formal application. [8] On 19 March 2010 Mr Taylor filed that formal application for an appointment of an amicus curiae to obtain evidence Mr Taylor requires for the substantive hearing of this claim from a criminologist, Dr Newbold, and an expert in child psychology. Alternatively, Mr Taylor has asked the Court to appoint an independent expert to report on such matters. He proposed that the costs of theamicus or expert be paid by the Ministry of Justice.[9] The applications were based on s 27 of the New Zealand Bill of Rights Act 1990, this Court's inherent jurisdiction and sub part 5 of part 9 of the High Court Rules dealing with the appointment of Court experts. [10] Corrections abided the decision of the Court concerning the amicusapplication and suggested this was not the appropriate case or time for the appointment of an expert. [11] The parties filed full submission and agreed that the applications could be determined on the papers.Evidence and Submissions[12] Corrections filed an affidavit by a solicitor employed by Corrections concerning the facilities available to Mr Taylor in Auckland Prison to conduct this (and his other) proceedings. He said Mr Taylor has been provided with a modified computer with word processing and printing facilities but with Mr Taylor's use being subject to a detailed agreement. It was designed to assist him in preparing and managing his cases but was balanced against public safety concerns and the security and good order of the prison. That agreement has been extended and applies equally to civil and criminal proceedings. [13] The computer is in a separate area for Mr Taylor's use for 2-2 ½ hours each morning and another half hour in the afternoon. He also has telephone access during those periods and the same rights as other prisoners to visitors and correspondence. Mr Taylor's approved free calling list includes his lawyer, Crown Law and the CYFS social worker and counsel for the child involved in his custody matters. It is suggested Mr Taylor has not presently asked for special arrangement to telephone his proposed expert witnesses, but such would be considered once details were furnished. [14] Mr Taylor has been offered access to legal research material under Corrections current policy but although he has been given copies of cases, he has refused to reimburse the Department for the costs of obtaining that material. Beyondthat material, the Department has offered to assist in arranging alternative means of obtaining it (for instance through his lawyer) and if Mr Taylor wishes to make a specific request for further material he can, as with other prisoners, apply. Mr Taylor has made a number of such applications but not ,as yet, in relation to the proposed experts. [15] Mr Taylor appears to have consulted Mr Tennet concerning this case – but not yet formally instructed him. A fax of 17 March 2010 said that if this Court declines his amicus application he "will have to reconsider obtaining counsel". [16] In his supporting memorandum Mr Taylor submitted that were these applications not to be granted his right of access to the Court on an important human rights issue would be rendered ineffectual and he would be denied equal access to justice. [17] He said that constraints on his communication and phone access have meant that he has had no meaningful discussion with Dr Newbold for over three months but Dr Newbold has written on maximum security prisons and is well versed in sociological factors pertaining to them. [18] He said that at the date of his memorandum he had been unable to contact an expert child psychologist and evidenced that difficulty by attaching an affidavit he made in proceedings declining to find that Corrections was under an obligation to provide him with unimpeded access to witnesses, legislation, case law and persons to assist his defence (Taylor v North Shore District Court, Department of Corrections and New Zealand Police1 ). [19] Similar issues of access to facilities were discussed by the Judge at length in that case. Whilst the decision focused on an accused's right under s 24(d) of the New Zealand Bill of Rights Act 1990 to adequate facilities to prepare a defence, it is helpful to note White J's following observations:1 Taylor v North Shore District Court, Department of Corrections and New Zealand Police HC Auckland CIV-2009-404-2350, 24 March 2010, White J.[84] But the difficulty with this approach is that it would mean that a self- represented accused who is in fact unable to meet the cost involved in obtaining adequate facilities to prepare and present his or her defence would be unable to have a fair trial without a legal aid lawyer. If an accused has a right to self-representation, then where it is established in the circumstances of a particular case that in order to receive a fair trial the accused does need access to facilities such as legal research materials and would be able to make use of them, but is unable to meet the cost involved, the Crown would in my view be required to meet the cost, to ensure that the accused was not impeded in the exercise of his or her right to self-representation. In order to implement the purpose of s 24(d), the obligation on the Crown to meet the cost involved in such a case would need to be implied. A violation of s 24(d) in such a case would not be an acceptable consequence of the decision of an accused to represent himself or herself. I emphasise that the question whether a particular self-represented accused will be entitled to such assistance from the Crown will need to be determined on the basis of the circumstances of the particular case and in the context of whether the right of the particular accused to a fair trial was likely to be impeded without that assistance. I agree with the submission for the Crown that s 24(d) does not create an unqualified right to comprehensive legal research materials at no cost to an accused. [85] In Mr Taylor's case the question whether he is in fact able to meet the cost involved in obtaining access to legal research materials is in dispute and, as already noted, is not able to be resolved in the context of this proceeding under the Declaratory Judgments Act. [86] It would also be premature to conclude that Mr Taylor's rights to have access to potential defence witnesses and other assistance for the purpose of preparing his defence to the criminal charges have or will be impeded to such an extent that he will be deprived of his right to a fair trial. The evidence to date on these issues is also disputed and there should be time before Mr Taylor's trial, which is not expected before March 2011, to ensure that his rights in this regard are met.[20] In his memorandum Mr Taylor made the point that his telephone access is both restricted in the numbers he can call and that the one pay phone he must use is in competition with other prisoners. Calls are expensive to persons other than the Ombudsmen, CYFS, other official functionaries and counsel. He makes the point that recording calls to counsel may breach legal professional privilege. He also makes the point that Corrections takes the view it is under no obligation under Reg 193 of the Corrections Regulations 2005 to make additional facilities available as that regulation relates only to criminal proceedings. [21] He said that to adequately brief Dr Newbold and obtain affidavit evidence would, Mr Taylor thinks, take between three and four hours over the telephone outside of the criminologist's lecture time, something which is unavailable andunaffordable during Mr Taylor's telephone access periods. He also said he would be unable to meet Dr Newbold's fees and disbursements. Similar considerations apply as regards an expert witness in child psychology. [22] All in all, Mr Taylor submitted that what he sought in this application was no more than is vouchsafed by s 27 (1)(3) of the New Zealand Bill of Rights Act 1990. [23] Accordingly, he submitted, the "Court has a positive duty to take such measures as may be necessary to protect its processes and ensure fairness and compliance with natural justice", that the Courts should be "especially alert to safeguarding the effective ability of a party to prosecute their case where, as here, the other party has the control over many of the facilities they need to do so". [24] He submitted the appointment of a Court expert would be an appropriate alternative should his amicus application fail. [25] For Corrections, Ms Casey relied on the Departmental affidavit as supporting her submission that the Department had gone as far as was reasonable in the circumstances to assist Mr Taylor and certainly as far as it was obligated so to do. She pointed to what she suggested was lack of evidence of Mr Taylor's impecuniosity stating that, should his financial position be such that he was entitled to legal aid, he should apply and, if not, should not be permitted to "sidestep" the legal aid system by the appointment of a amicus. [26] She pointed to appointments of amici being rare in criminal proceedings –R v Chatha 2 and White J's decision in the case previously discussed – and still rarer should that be the case in civil matters. [27] She pointed to what she submitted was a lack of evidence that Mr Taylor could not brief Dr Newbold or a child psychologist if special arrangements were sought. She suggested the Court might consider appointing counsel for Mr Taylor at a later stage of the proceedings.2 R v Chatha [2008] NZCA 547.[28] In relation to the Court expert application, Ms Casey again submitted there was an evidential dearth to support Mr Taylor's assertion he could not meet the cost of an expert and made the point that Court experts are normally appointed to resolve matters for the Court not as a means of funding one party's expert evidence. Under r 9.36(1), Mr Taylor's application was both misconceived and premature given the pleadings were not finalised. [29] Mr Taylor's responding and updated memorandum said that, since his earlier memorandum, he had been able to telephone Dr Newbold once. He was scornful of Ms Casey's submissions concerning his finances and submitted the Court would be unable to decide the case justly in the absence of the evidence he proposed to call. [30] He pointed to R v McFarland & Brooks3 as to the variable role that amicimight play, a submission on which he elaborated by reference to a number of other cases where amici had been appointed. [31] He concluded by submitting this case is an important one involving human rights issues concerning prisoners and children and thus had the potential to affect the large number of people.Discussion and Decision[32] At the present time – emphasising that phrase – it must initially be said that Mr Taylor's applications face at least the following significant hurdles: a) Whilst Mr Taylor has spoken with Dr Newbold, there is no indication on the file that Dr Newbold would be prepared to assist him or whether he feels that he has expert evidence which may be of assistance to the Court in deciding this case. b) Similarly, as yet, Mr Taylor has not even identified an expert child psychologist, still less named that person and ascertained whether3 R v McFarland & Brooks [2007] NZCA 449they, like Dr Newbold, are prepared to assist and believe they could give relevant evidence. c) There is no indication on the file as to the likely cost of an amicus or a Court expert, still less the likely cost of involving Dr Newbold or a child psychologist. d) Although the cases reviewed by Mr Taylor show that amici have been appointed on a number of occasions so as – putting it broadly – that the fairness of a trial to all participants can be preserved as far as possible, it remains the case that the basic role of an amicus is to assist the Court – not particularly to assist a litigant – and the basic role of a Court expert appointed under r 9.36(1) is to comply with the code of conduct for expert witnesses and "inquire into and report upon any question of fact or opinion not involving questions of law or of construction". That role is well removed from the somewhat partisan evidence Mr Taylor obviously expects Dr Newbold and the child psychologist to provide. (There are a number of other preconditions to the appointment of the Court expert, but they need not be considered at this stage). [33] Whilst it is not difficult to conceive of the possibility a Court trying Mr Taylor's substantive proceeding may derive relevant and useful evidence from Dr Newbold and a child psychologist, it remains a fundamental hurdle to Mr Taylor's applications that the roles of an amicus curiae or a Court expert are essentially non-partisan – and fundamentally Mr Taylor wishes to engage them to obtain evidence which basically will be to help his case, not to help the Court. [34] All those factors combined indicate that the appropriate course might well be to dismiss Mr Taylor's applications on the basis of the confusion of roles between what he wants and what assistance the Court is likely to get. The lack of particularity in what Mr Taylor proposes also make an appointment inappropriate or likely to be unhelpful in the resolution of these proceedings.[35] But that tentative view may turn out to be wrong. If at least an outline of the proposed evidence is detailed, the Court may find that of relevance and of assistance in deciding issues in the proceeding. Therefore, as did White J in the passage recited from Mr Taylor's other case, it would appear to be premature to conclude that Mr Taylor's rights to have access to potential witnesses and other assistance may result in the Court not having the benefit of evidence relevant to the issues pleaded. There is simply insufficient material on the file to reach a concluded view on that topic. [36] Two possible courses of action commend themselves as worth further inquiry. [37] The first is that Dr Newbold and a nominated child psychologist should be invited to submit to the Court and the parties a résumé of the evidence they believe they would be able to give which would be of assistance to the Court in resolving the issues, together with an estimate of the fees and disbursements likely to be incurred in that exercise. That might include the cost of spending sufficient time with Mr Taylor – either in person or on the telephone – to familiarise themselves with the issues and gain an impression of the degree to which they might assist. Since Heath J directed that this case be accorded "some urgency", those résumés should be filed and served within 28 days of delivery of this judgment. [38] The other possible line of action is that, in his latest memorandum, Mr Taylor said that, amongst the persons whom he can telephone apart from the prison pay phone, is Ms Cobcroft as counsel for his daughter. The Corrections affidavit said that Ms Cobcroft is counsel for the child in a custody case in which Mr Taylor must be involved. But the interests of Mr Taylor's daughter in this litigation would appear to be likely to parallel those of her father and the evidence of the criminological and psychological evidence Mr Taylor wishes to adduce would appear to be as relevant to his daughter's position as to Mr Taylor's. It is, of course, recognised that this case challenges the lawfulness of Corrections' actions in ending custodial visits between Mr Taylor and his daughter. But if, at the end of this case, Corrections' actions in ending those visits were to be held unlawful as far as Mr Taylor is concerned, itwould seem to follow they would almost certainly be unlawful as far as his daughter is concerned as well. [39] In those circumstances, consideration might usefully be given by the parties to the possibility of appointing counsel for the daughter in these proceedings, directing that counsel be served pursuant to s 10(2)(c) of the Judicature Amendment Act 1972, and making appropriate procedural or timetable directions. [40] Should that course be followed, it seems highly likely that Mr Taylor's daughter would be entitled to legal aid for her counsel and accordingly that counsel, if he or she considered it appropriate, could consider the benefit to his or her client of calling criminological and psychological evidence. They could seek legal aid funding for that course if it seemed best so to do. [41] Mr Taylor and Ms Casey are to advise their views on that possible course of action also within 28 days of delivery of this judgment. [42] In formal terms Mr Taylor's applications for appointment of an amicus curiae or a Court-appointed expert are adjourned part heard. They and the other issues discussed in this Judgment will be dealt with at a further telephone conference with Williams J to be convened on 18 May 2010 at 9:00 am. .................................................................HUGH WILLIAMS J.Solicitors: Crown Law, PO Box 2858, Wellington 6140Copy to: Arthur William Taylor, Auckland Prison, Private Bag 50-124, Albany, North Shore 0752Case Officer: Vasantha.Kalbagal@justice.govt.nzSchedulers: Corrina.Macdonald@justice.govt.nz / Michele.Marquet@justice.govt.nz