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 21 July 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2009-404-7339CIV 2010-404-6985CIV 2011-404-3227BETWEEN ARTHUR WILLIAM TAYLORPlaintiffAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSDefendantHearing: 14 July 2011Appearances: Plaintiff in personV Casey and G Robins for defendantJudgment: 21 July 2011JUDGMENT OF ALLAN JIn accordance with r 11.5 I direct that the Registrar endorse this judgmentwith the delivery time of 3 pm on Thursday 21 July 2011Party:A W Taylor, Private Bag 50124, Albany 0752, Auckland: fax 094426794Solicitors:Crown Law, Wellington, victoria.casey@crownlaw.govt.nz[1] Mr Taylor is a maximum security prisoner held at Auckland Prison (Paremoremo). He has a long record of convictions for serious offending; most recently he was convicted and sentenced to seven years imprisonment for conspiracy to supply methamphetamine. The conviction relates to activities allegedly conducted by Mr Taylor while in Auckland Prison, involving the use of telephone and text message conversations. The conviction is currently under appeal.[2] Over time Mr Taylor has launched a range of civil proceedings, chiefly against the present defendant. They concern a variety of matters associated with the conduct of police and prison officers, and the terms and conditions under which he is held in custody. During the course of those proceedings it has been necessary for him, from time to time, to attend court in order to argue various interlocutory applications and to participate in substantive hearings. By choice, he is self- represented in all of the outstanding civil proceedings.[3] The defendant now applies for an order in each of the three present proceedings, directing that future appearances by the plaintiff be made by way of audio-visual link (AVL). The grounds upon which the application is based are:(a) that these are civil proceedings and so no issues of fair trial rights arise;(b) Mr Taylor is a maximum security prisoner at Auckland Prison, and transporting him to Court:(i) increases the risk of his access to contraband;(ii) presents opportunities for him to effect an escape from custody;(iii) involves considerable expense to the Department of Corrections and to the Police.[4] The application is made pursuant to ss 5 and 7 of the Courts (Remote Participation) Act 2010 (the Act). These sections respectively provide:5 General criteria for allowing use of audio-visual linksA judicial officer or Registrar must consider the following criteria when he or she is making a determination under this Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding:(a) the nature of the proceeding:(b) the availability and quality of the technology that is to be used:(c) the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—(i) the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and(ii) the level of contact with other participants:(d) any other relevant matters.7 Use of audio-visual links in civil proceedings(1) AVL may be used in a civil proceeding for the appearance of a participant in the proceeding if a judicial officer or Registrar determines to allow its use for the appearance of that participant.(2) A judicial officer or Registrar may make a determination under subsection (1)—(a) on his or her own motion; or(b) on the application of any participant in the proceeding.(3) A determination under subsection (1) must—(a) be made in accordance with the criteria in section 5; and(b) take into account whether or not the parties consent to the use of AVL for the appearance of the participant.[5] The application is supported by an affidavit by Mr S J Daly, Acting Assistant General Manager, Operations, in the Prison Services National Office. He says:5. Prisoner Taylor is a maximum security prisoner held at Auckland Prison (Paremoremo). Auckland Prison, East Division houses mostof New Zealand's male maximum security prisoners. One of the keyconcerns in managing this group of prisoners is controlling andeliminating their access to contraband, including items such as drugs, weapons and cell phones.6. There are significant concerns with Prisoner Taylor's access tocontraband, and he has an extensive record of disciplinary convictions in that regard.7. Prisoner Taylor was convicted and sentenced in May this year to seven years imprisonment for conviction of conspiracy to supply methamphetamine. That conviction relates to activities conducted by Prisoner Taylor while in Auckland Prison, and apparently conducted through the use of telephone and text message conversations.8. The department is concerned that transporting Prisoner Taylor to Court increases the opportunity for him to access contraband. The Court and transport facilities are necessarily not as secure as the maximum security prison, and scheduled trips out of the prison open the prospect of pre-arranged transfer of items.Escape risk9. Prisoner Taylor has seven convictions for escaping from custody. Most recently, he kidnapped two prison guards at apparent gun point. That escape occurred while Prisoner Taylor was being transported to a Family Court conference. The Department of Corrections regard Prisoner Taylor as a high escape risk.10. The transportation of prisoners to Court increases the opportunity for escape, as the external environment is not as secure as prison and the prisoner has increased access to members of the public and public spaces.11. I describe below the precautions the Department of Corrections undertakes for every court appearance for Prisoner Taylor.Cost of transport12. The cost of transporting Prisoner Taylor to court is substantial.13. For Prisoner Taylor's appearances on civil matters, the prisonassigns four staff members to accompany him for the duration of the day. The average shift – from the time Prisoner Taylor is removed from his cell until the time he is returned – is eight hours and can usually only be achieved by employing the staff members on overtime, as it is outside their normal duties at the prison. The payroll cost to the department for an eight hour shift for four staff is $1,020. That does not include incidental costs such as meals, or extended travel time due to traffic or other matters.[6] Mr Taylor disputes some of this evidence. In particular, he does not accept that his court appearances increase the risk of his access to contraband, nor does he accept that they present opportunities for him to effect an escape.[7] As to the first of these factors, there have been occasions in the past (including the recent past) upon which Mr Taylor has been found in possession of illicit material. I accept Mr Daly's evidence that out of prison journeys by Mr Taylor will tend to increase the risk of his access to contraband, although given the very stringent security arrangements that attend his court appearances, the risk is perhaps not very high.[8] Likewise, I accept that, at least in theory, Mr Taylor's court appearanceprovide an opportunity for him to effect an escape. Although again Mr Taylor says the practical possibility of an escape is very limited in the light of security arrangements, in the past there has been an occasion upon which Mr Taylor and associates were able to overpower guards and to make his escape for some hours. That was when he was travelling to a hearing in the Family Court in Wellington. So the risk of an escape is real and not imaginary.[9] Mr Taylor wished to cross-examine Mr Daly about some aspects of his affidavit. I ruled that cross-examination was unnecessary. Given Mr Taylor's history I am satisfied that the defendant's on-going security concerns are well founded.[10] Cost is in my view a less compelling factor. Mr Taylor says that the cost savings have been exaggerated in that, even if he participates in forthcoming hearings by AVL, several officers will need to be dedicated to the task of keeping him secure in any event. But I am satisfied that there will be some savings in time and costs if participation is undertaken by AVL.[11] I turn to the provisions of the Act. These are civil proceedings so s 7 applies.The Court's determination must accord with the criteria set out in s 5.1 I must also take into account whether or not the parties consent to the use of AVL for the appearance of the participant.2 On this last point, the defendant seeks an order, and there are no other parties.1 Courts (Remote Participation) Act 2010, s 7(3)(a).2 Courts (Remote Participation) Act 2010, s 7(3)(b).[12] Mr Taylor accepts that it would be sensible for him to participate in routine hearings by AVL but wishes to reserve his right to appear in person at more important hearings, including especially the substantive proceedings and any hearing at which oral evidence will be called. .[13] I turn to the s 5 factors. The nature of the proceedings does not require comment. There may be a need for oral evidence and cross-examination during the course of certain forthcoming hearings. Where that is the case there may be a need for separate consideration of the desirability of AVL.[14] As to available technology, it is common ground that Auckland Prison houses a dedicated room for the use of AVL which has been used recently for appearancesby other prisoners. The Court's experience has been that the technology there is satisfactory; there have been numerous recent occasions upon which prisoners have appeared by AVL.[15] The Court is also required to take into account the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding. The only other party in this case is the Department, which makes the application.[16] The Court is required under s 5(d) to take into account ―any other relevant matters. In my view it is important to safeguard Mr Taylor's entitlement properly to assess the credibility of witnesses and the reliability of evidence presented to the Court, where such evidence is given orally, or by way of cross-examination on affidavits. In those circumstances, there is a stronger case for arguing that Mr Taylor should be present in person. The case for a personal appearance will also tend to be stronger on the occasion of the hearing of a substantive proceeding, rather than an interlocutory application.[17] Although accepting that an AVL appearance is appropriate in routine matters, Mr Taylor maintains that he ought not to be put to the trouble of applying for a dispensation if an order for appearance by AVL is made. In other words, he argues that the defendant ought to apply on a case by case basis for his appearance by AVL.[18] I disagree. I consider that the defendant has made out a case for Mr Taylor'sappearance in these three civil proceedings by AVL, subject to his right to apply for an order that he appear in person on a given occasion. Mr Taylor is very experienced in the conduct of both criminal and civil litigation. A single page application would be sufficient to trigger his right to be heard on an application to vary a determination to allow the use of AVL generally, where the circumstances support a personal appearance.[19] I am satisfied that the application is well founded.[20] There will be an order in each of these proceedings that, unless the interests of justice or the particular circumstances require otherwise, Mr Taylor's futureappearances are to be made by audio visual link (AVL). Where the circumstances do require a personal appearance, Mr Taylor may apply for variation of this determination, pursuant to s 10(1) of the Act.C J Allan J