TAYLOR v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 902

TAYLOR v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 902 [1 May 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-3127[2015] NZHC 902UNDER the Judicature Amendment Act 1972, Part30 of the High Court Rules, theDeclaratory Judgments Act 1908 and thecommon lawIN THE MATTER OF an action for judicial review, anddeclarationsBETWEEN ARTHUR WILLIAM TAYLORApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 15 April 2015Appearances: Applicant in personA M Powell for the RespondentJudgment: 1 May 2015JUDGMENT OF ELLIS JThis judgment was delivered by me on 1May 2015 at 4.00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Counsel/Solicitors:A M Powell, Crown Law, WellingtonCopies to:The Applicant[1] Every prisoner serving a sentence of three months' imprisonment or more isrequired to be assigned a security classification. That classification is intended to reflect the level of risk posed by that prisoner both inside and outside prison, including the risk of escape and the risk that escape would pose to the public.1 The different security classifications are administratively rather than statutorily defined. At present, there are five: maximum, high, low-medium, low and minimum.2[2] The assignment of a particular classification to a particular prisoner is determined by reference to a system devised within the Corrections Department which assigns a value to a number of matters that are relevant to risk assessment.This enables total risk "scores" to be obtained which are regarded as indicative (butnot determinative) of the final security classification. Thus, a cumulative score ofover 33 indicates a "maximum" security classification, a score of between 19 and 32indicates a "high" classification and so on.[3] The security classification given to a particular prisoner has a direct effect onthe way in which that prisoner's sentence is administered, including where he or sheis to be housed and the conditions of his or her incarceration.[4] No doubt for that reason, all security classifications are required to be reviewed every six months and in the event of a change of circumstances.3 And s 48 of the Corrections Act 2004 (the Act) confers on prisoners a right to apply for reconsideration of the classification that is assigned to them. That right may, however, only be exercised once in each six month period.[5] Regulation 52 of the Corrections Regulations 2005 governs the way such a reconsideration is to occur. It provides:Any person undertaking the assignment, review, or reconsideration of a prisoner's security classification must –(a) be given access to the prisoner's file kept by the department; and1 Corrections Act 2004, s 47(1).2 These five classifications are set as part of instructions issued by the Chief Executive pursuant to s 196 of the Act.3 Section 47(3)(b).(b) take into account any relevant information in any form that is readily available to the person; and(c) record in writing the person's recommendation or decision and the reasons for it.[6] Mr Taylor is a serving prisoner. His statutory release date is 12 October 2022. Following an escape from custody and his conviction for drug offendingcommitted while he was incarcerated, he was classified as a "maximum" securityprisoner in March 2010. This classification resulted in Mr Taylor being housed in Auckland (East) Prison, in Delta Unit. As I understand it, Auckland (East) Prison is the only maximum security facility for male prisoners in the country.[7] In August 2013, following an application for reconsideration of thisclassification, Mr Taylor was reclassified as "high". This reclassification meant that he was eligible to be moved from Auckland (East) Prison.[8] But the prison authorities are of the view that it is important that prisoners who are to be moved out of Delta Unit into a less secure facility are first transitioned through another Unit located at Auckland (East) known as Bravo Unit. Bravo Unit also houses maximum security prisoners, but with fewer restrictions than Delta Unit.[9] For a number of reasons, Mr Taylor did not wish to transition through Bravo Unit and maintained that he should be moved immediately to another prison. He refused to move to Bravo Unit voluntarily and while at some point he was forcibly taken there, his stay was apparently brief.[10] Although his statutory release date is some seven years away, Mr Taylor is now eligible for parole. Following an application for parole by Mr Taylor midway through last year, the Parole Board issued a decision dated 14 August 2014 in which it stated:We also support [Mr Taylor's] reclassification to low/medium so that he canparticipate in the STURP4 programme, and expect that process to befacilitated by the Corrections Department 4 STURP is the acronym for Special Treatment Unit Rehabilitation Programme.[11] One of the reasons given by Mr Taylor for not wanting to transition through Bravo Unit was because of this indication that he would not be favourably considered for parole until he had participated in the STURP programme. As isevident from the Parole Board's decision, that programme is only offered at low- medium security facilities.[12] On 25 August 2014 the six-monthly review of Mr Taylor's securityclassification was completed. An application of the points system to Mr Taylor hadyielded a total of 19 points as a result of which his classification remained at "high".One point less (namely a total of 18 points) would, on its face, have resulted in a change to "low-medium" classification.5 Mr Taylor sought to have that review decision reconsidered under s 48 of the Act.[13] Mr Taylor's contentions about the errors in the review process were acceptedand led to an initial reduction in security points from 19 to 16, placing him within the"low-medium" security band. At the same time, however, the assessment of Mr Taylor's "Motivation to Achieve Offender Plan Activities" was changed from "good" to "poor", which resulted in his total points rising to 22. His existing securityclassification of "high" was therefore confirmed.6[14] The principal reason given for changing the assessment of his "Motivation to Achieve Offender Plan Activities" was Mr Taylor's resistance to moving to BravoUnit.[15] In November 2014 Mr Taylor filed these proceedings seeking a judicial review of the reconsideration decision.[16] In February this year, Mr Taylor's security classification was again reviewed(six months having passed since the August review) with the result that it was downgraded to "low-medium". Although it has been suggested that this decision hasrendered these proceedings moot, Mr Taylor disputes this because, he says, the delay5 I say "on its face" because the guidelines permit an outcome based on points alone to be overridden.6 Because s 48 permits only one application for reconsideration within a six month period it appears not to have been open to Mr Taylor to challenge this new basis for the classification decision.in reclassifying him has necessarily delayed his entry into the STURP programme (for which there is a waiting list) and thereby prejudiced his chance of parole. The substantive hearing of his application for judicial review is to occur on 15 May 2015.[17] In advance of that hearing, Mr Taylor has made an application to cross- examine Ms Jeanette Burns, who is the Regional Commissioner responsible for the Northern Region of the Corrections Estate. It is that application to which this decision relates.[18] Ms Burns has filed two affidavits in relation to the matters raised by Mr Taylor. She has deposed that it was she who made the impugned (reconsideration) decision.[19] The grounds advanced by Mr Taylor in support of his application to cross- examine can be summarised as follows:(a) there is a conflict between his own evidence and that of Ms Burns; and(b) there is reason to doubt that Ms Burns actually made the decision under review; and(c) on the assumption that she did make the decision, there is reason to question what information she actually took into account; and(d) Ms Burns has failed to address or answer certain matters raised in the statement of claim.[20] The application is opposed.Relevant law[21] It was not in dispute that cross-examination is the exception rather than the norm in judicial review cases and that it will only be permitted where the justice of the case requires it.[22] Mr Taylor referred me to the Court of Appeal's judgment in Wilson v White7and, in particular, the dicta at [15]-[17] and [25] of that decision. Again, there is no dispute that those passages are applicable in the present case. Reference was alsomade to other cases in which leave has been granted, such as Wild J's decision inEdwards v Toime (No 1),8 Asher J's decision in Huang Xiao Qiong v Minister of Immigration9 and Duffy J's decision in Whakatane District Council v Bay of Plenty Regional Council.10 I was referred, as well, to the Court of Appeal's expression ofregret about the absence of cross-examination at first instance in Stratford Racing Club v Adlam.11[23] But Mr Powell submitted that, to the extent there had previously been room for argument that such decisions indicated a more liberal (pro-cross-examination) strand of authority, that room has been closed by the Court of Appeal in Geary v the Psychologists Board.12 There, the Court said:[20] Arguably there is some ambiguity among the authorities in the expression of both the precise test for granting leave to cross-examine in judicial review proceedings and the status of the leave requirement. InRoussel Uclaf, for example, Richardson P characterised the leave requirement as a desirable judicial practice, whereas in this Court's recentPowerco decision, the leave requirement was expressed as a "principle".[21] However, we agree with Mr Gollin that, despite differences of expression, the authorities are fundamentally harmonious. The authorities have a substantive core approach and apparently different characterisations of the leave requirement are really no more than linguistic nuances.[24] Then, the Court went on:[22] Judicial review is part of the High Court's supervisory jurisdiction and fact-finding is not a central activity. If cross-examination was permitted as of right, there would be a risk of unwarranted dalliance into factual assessments by the Courts. The avoidance of that kind of exercise is the core of the presumption against cross-examination in judicial review proceedings, and recognised in the relevant authorities. The rule of practice is a commonsense response to the nature of the litigation.7 Wilson v White [2005] 1 NZLR 189 (CA).8 Edwards v Toime (No 1) [2005] NZAR 140 (HC).9 Huang Xiao Qiong v Minister of Immigration HC Auckland CIV 2005-404-5202, 24 July 2006.10 Whakatane District Council v Bay of Plenty Regional Council (2008) 19 PRNZ 91(HC).11 Stratford Racing Club v Adlam [2008] NZAR 329 (CA).12 Geary v the Psychologists Board [2009] NZCA 13, [2009] NZAR 338; leave to appeal refused inGeary v the Psychologists Board [2009] NZSC 67,(2009) PRNZ 415.[23] Cross-examination is properly constrained by a leave requirement. The criteria for leave - necessity and the requirements of justice - are not unduly onerous. If a party can point with sufficient particularity to a basis upon which cross-examination is necessitated by the shape of the case, then leave will be granted. We find no justification for a wholesale reconsideration of the policy approach which has evolved.[25] Mr Powell also referred me to the Court of Appeal's earlier decision inCommerce Commission v Powerco Ltd where the Court said that permitting cross-examination on the ground that it will "assist" the Court is to apply too low athreshold and reaffirmed that the correct analysis was one that is founded, instead, on"necessity".13Analysis[26] While I tend to agree with Mr Taylor that it might be interesting, and possibly even helpful, to hear from Ms Burns I do not consider that the high threshold for permitting cross-examination is crossed here, for the reasons that follow.[27] First, it cannot be said that there is a meaningful "conflict of evidence"between Ms Burns and Mr Taylor. While Mr Taylor may well not accept what Ms Burns says, there is no evidentiary inconsistency between them for the simple reason that no deponent has given evidence that contradicts what she says. Mr Taylor wasnot, of course, part of, or present at, Ms Burns' decision-making process and so cannot, himself, give such evidence. It is thus a quite different situation from one in which (for example) two witnesses give diametrically opposed evidence about the same event.[28] As I understood it, Mr Taylor's real concern in this respect was that one aspect of Ms Burns's affidavit appears to conflict with the (limited) documentary record of the reconsideration process.14 Put simply, there is an email communication from another Corrections staff member, Ms Raewyn Abbott, that suggests that it was she, not Ms Burns, who was to make the reconsideration decision. And although Ms13 Commerce Commission v Powerco Ltd CA 123/06 9 November 2006.14 This is effectively the second point advanced by Mr Taylor in support of his application to cross- examination.Burns says that, in any event, Ms Abbott also held the delegation necessary to make the decision, Mr Taylor also disputes that.15[29] It has been said that:Cross-examination may be appropriate where the applicant alleges that a precedent fact to the making of a decision did not exist.16[30] Mr Taylor said, and I tend to accept, that the identity and authority of the decision-maker is a "precedent fact" to the making of the impugned decision. I alsotend to agree that aspects of Ms Burns' affidavits do give rise to some question- marks in this respect.[31] First, her reference to the fact that Ms Abbott in fact held the relevant delegation arguably suggests that she herself has doubts about who made the decision (otherwise, why mention it?).[32] Secondly, the language used to describe what she did is, on occasion,ambiguous. For example in her first affidavit she simply says that she "was responsible" for the reconsideration decision. It is not until her second affidavit thatsays more clearly that she "made" it.[33] Thirdly, at a number of points in her affidavits Ms Burns also uses the word"would" to describe habitual, rather than actual, past behaviour. This, from her firstaffidavit:I have regular meetings and telephone calls with Mr Sherlock about a range of subjects and in many of those conversations around this time I would havediscussed Mr Taylor's situation.[34] And this, from her second:The information would have been passed to me during one of our regular discussions. We would have talked about it but I did not keep any record of the conversation. 15 The copy of the delegation which is annexed to Ms Burns' affidavit is, arguably, ambiguous in this respect.16 Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 657-658, quoting from de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed).[35] On the critical issues, however, Ms Burns eventually rectifies matters bysaying "I did it" or "I do remember". But the phraseology that precedes it isnonetheless curious.[36] In the end, while I accept that Mr Taylor would like to ask Ms Burns (and probably Ms Abbott) some questions about such evidence, it seems to me that there would be little to be gained by it. It is highly unlikely that Ms Burns would depart from what she has already said, even under the most piercing cross-examination. Moreover, it is open to Mr Taylor to submit either that Ms Abbott was in reality the decision-maker or that there was confusion about who the real decision-maker was, on the basis of the material before the Court. And my preliminary view is that this is not, in any event, his best point. Accordingly I can see no real prejudice to him in not permitting cross-examination on this issue.[37] Another point on which Mr Taylor does not accept Ms Burns' evidence is in relation to her evidence that she had discussions with the Prison Manager, MrSherlock, about Mr Taylor's application for reconsideration. Mr Taylor asserts that there was no such discussion. Unlike his position in relation to Ms Abbott, however, there does not appear to be any documentary or other support for that contention.[38] In the absence of any such an evidentiary basis any cross-examination on theissue would necessarily be of the "did/didn't" variety which is most unlikely toadvance matters. It is no doubt for that reason that the Court has previously made it clear that a bare claim of disbelief by a plaintiff of apparently credible evidence does not suffice to meet the threshold for leave to cross-examine.17[39] Nor am I able to see any real advantage to Mr Taylor from being permitted to cross-examine based on his third ground (see [19](c) above). As Mr Powell accepted, Mr Taylor and the Court are entitled to proceed on the basis that the evidence of the decision-maker will fully rehearse those matters that were taken into account by her. To the extent that Ms Burns does not refer to a particular matter as informing her decision, there is an inference to be drawn that she did not in fact consider it.17 Huang Xiao Qiong v Minister of Immigration, above n 8 at [13].[40] Accordingly, if there is a matter that Mr Taylor says was relevant to the reconsideration decision which Ms Burns does not mention in her evidence (such asthe Parole Board's recommendation, or the paper file) then (subject to the Courtagreeing with him about relevance) he is better off proceeding on the basis of her untested affidavit. If permitted to cross-examine Ms Burns, he will either simply obtain confirmation from her that she did not take that factor into account (which is the submission he could make in any event) or he will elicit new evidence that isunhelpful to him. Again, therefore, neither the interests of justice nor Mr Taylor'sinterests (to the extent the two are different) will be advanced by granting the application on this ground.[41] The same point can be made in relation to the fourth ground summarised above. In short, if Ms Burns has failed to address matters that are raised in thestatement of claim then (subject, again, to the Court's own assessment of theirimportance and relevance) that is more likely to work in Mr Taylor's favour, thanagainst him. A submission that an inference can be drawn from the failure by the respondent to explain or answer a particular allegation is more powerful than a submission based on a specific rejection of the allegation elicited under cross- examination.[42] For all the reasons I have given, I do not consider that cross-examination of Ms Burns is necessary or required by the interests of justice. The application is dismissed accordingly.[43] Mr Powell sought costs in the event the application was declined. A memorandum is therefore to be submitted within five working days. Mr Taylor shall then have five working days to respond.____________________Rebecca Ellis J