MITCHELL v ATTORNEY-GENERAL [2023] NZCA 605

MITCHELL v ATTORNEY-GENERAL [2023] NZCA 605 [29 November 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA732/2021[2023] NZCA 605BETWEEN KERRYN MITCHELLAppellantAND ATTORNEY-GENERAL (ON BEHALF OFTHE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONS)RespondentHearing: 21 November 2022 (further submissions received 2 December2022)Court: Katz, Mander and Downs JJCounsel: Appellant in personD P Neild and V M Rea for RespondentJudgment: 29 November 2023 at 10.30 amJUDGMENT OF THE COURTA Leave to adduce further evidence is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] Ms Mitchell was sentenced to imprisonment for a term of two years and threemonths. The Corrections Act 2004 (the Act) requires that all prisoners serving a termof more than three months' imprisonment be assigned a security classification by theChief Executive of the Department of Corrections that reflects the level of risk posedby that prisoner while inside or outside prison.1 Corrections assigned Ms Mitchell asecurity classification of "low". Ms Mitchell applied to the High Court for judicialreview of that decision on the basis that Corrections had made a number of errors whenassigning her security classification. She submitted that she should have beenassigned a security classification of "minimum" rather than "low". Gendall Jdismissed the judicial review application.2 Ms Mitchell now appeals.[2] Following the High Court decision, Ms Mitchell's security classification wasreviewed twice by Corrections, at six-monthly intervals, as required by the Act.3Both reviews resulted in Ms Mitchell's "low" security classification being maintained.Ms Mitchell did not challenge those decisions. She was subsequently released intothe community on parole, although she is presumably no longer subject to any standardor special release conditions, given the lapse of time.[3] Corrections' view is that the issues raised by this appeal are now moot, and itwould therefore be appropriate for the Court to exercise its discretion to decline todetermine this appeal. Corrections further submitted that the appeal is unmeritoriousin any event, and the Judge's decision to dismiss Ms Mitchell's application for judicialreview was correct.Application for leave to adduce further evidence[4] Corrections applied for leave to adduce updating evidence on appeal.4The evidence sought to be adduced concerned the two reviews of Ms Mitchell'ssecurity classification which occurred after the High Court decision. The evidenceconsists of affidavits from Ms Trask and Mr Murphy, who were the approving officersfor the reviews of Ms Mitchell's security classification. As far as we are aware,Ms Mitchell does not oppose the application. In any event, we are satisfied that theevidence is fresh, credible and cogent,5 and grant leave to adduce it accordingly.1 Corrections Act 2004, s 47.2 Mitchell v Attorney-General [2021] NZHC 2946 [Judgment under appeal].3 Corrections Act, s 47(3).4 Court of Appeal (Civil) Rules 2005, r 45.5 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA)at 192; and Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006]NZSC 59, [2007] 2 NZLR 1 at [6].The process for assigning security classifications to prisoners[5] The statutory and administrative scheme for assigning security classificationsto prisoners has been considered in a number of previous cases.6 As the Judgeexplained in the judgment under appeal:7[7] The classification is intended to reflect the level of risk posed bythe prisoner while inside or outside prison (for example while on a release towork programme) including the risks that would pose to the public. This isalso to enable Corrections to appropriately manage prisoners within a prisonenvironment. That security classification of each prisoner must be undertakenand reviewed "in the prescribed manner".[8] The Act and the Corrections Regulations 2004 (the Regulations)provide some guidance as to the correct process. Further guidance iscontained in internal Corrections guidelines and other documents.[6] The security classification process was comprehensively summarised in thejudgment under appeal.8 For present purposes, we will focus on the key features ofthe scheme that are relevant to Ms Mitchell's appeal grounds.[7] The process for assigning and reviewing security classifications is set out invarious source documents including the Act, the Corrections Regulations 2005(the Regulations) and internal Corrections guidelines such as Prison OperationsManuals. There are five security classification levels: maximum, high, low-medium,low, and minimum. The Regulations state that prisoners should be assigned the lowestclassification at which they can "safely and securely be managed given the assessmentof the level of risk posed by a prisoner".9[8] An electronic points-based system (the IOMS), based on a range of internaland external risk factors, is used to provide a preliminary or indicative classification(Preliminary Score). This Preliminary Score can be manually overridden, however,and is not determinative of a prisoner's final security classification.6 See for example Gorges v Chief Executive of the Department of Corrections [2017] NZHC 2518;Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196; Genge v ChiefExecutive of the Department of Corrections [2018] NZHC 1302; Smith v Attorney-General [2017]NZHC 136, [2017] NZAR 331; and Bell v Chief Executive of the Department of Corrections[2021] NZHC 413.7 Judgment under appeal, above n 2 (footnotes omitted).8 See [7]–[24].9 Corrections Regulations 2005, reg 44(1).[9] A prisoner's security classification must be reviewed at least every six months,or if the prisoner's circumstances change significantly.10 A prisoner who is dissatisfiedwith their assigned classification is entitled to apply to the Chief Executive ofCorrections for a reconsideration, following which their classification will either beconfirmed or changed.11Ms Mitchell's security classifications[10] Ms Mitchell was held as a remand prisoner from 18 March 2020 until31 March 2021, when she was sentenced to two years and three months'imprisonment.[11] While Ms Mitchell was in prison on remand, nine incident reports werecompleted by prison staff regarding her behaviour.12 A description of each of thereported incidents, based on the evidence of Ms Roberts, the Senior Advisor to theRegional Commissioner of Corrections for the Lower North region, is set out in thejudgment under appeal.13 The Judge summarised the relevant evidence as follows:14Ms Roberts described Ms Mitchell's behaviour towards and her interactionswith prison staff and other prisoners as demonstrably negative and oftenaggressive given too that they included multiple allegations of abuse andthreats to staff, unlawful activating of the sprinkler system, property damage,abusing the prison intercom system, assaulting staff, smearing faeces on wallsand refusing to engage with health staff for a Covid-19 assessment.[12] Remand prisoners are not assigned a security classification. Ms Mitchell wastherefore first assigned a security classification following her sentencing. During hertime as a sentenced prisoner, Ms Mitchell had her security classification assessed onthree occasions. The relevant chronology is as follows:(a) First security classification. In May 2021 Ms Mitchell was assignedher first security classification. The ultimate classification was "low".There were three stages to the assignment of Ms Mitchell's firstclassification: the Preliminary Score, the Override Decision, and the10 Corrections Act, s 47(3)(b).11 Section 48(2); and Corrections Regulations, reg 51.12 Judgment under appeal, above n 2, at [27] and [43].13 At [27].14 At [43].Reconsideration Decision. Her Preliminary Score, generated bythe IOMS, suggested a security classification of "minimum". This wasmanually overridden to "low-medium" to take into accountMs Mitchell's conduct while she was a remand prisoner, based on theincident reports referred to above (the Override Decision). Ms Mitchellthen applied for an internal reconsideration of the Override Decision byCorrections. This application was determined by Ms Roberts, andresulted in her classification being reduced from "low-medium" to"low" (the Reconsideration Decision).(b) Judgment under appeal. Ms Mitchell applied for judicial review of theReconsideration Decision in the High Court, on the basis that herclassification should have been reduced to "minimum" ratherthan "low". Gendall J dismissed Ms Mitchell's application.15(c) Second security classification. In November 2021, the firstsix-monthly review of Ms Mitchell's security classification took place.This time, her Preliminary Score generated a recommended securityclassification of "low-medium". On 15 November 2021 that wasoverridden to "low", on the basis that Ms Mitchell could beappropriately managed at that level.(d) Third security classification. In May 2022 the second six-monthlyreview of Ms Mitchell's security classification took place. Again, herPreliminary Score generated a recommended security classification of"low-medium". That decision was again overridden to "low" on thebasis that Ms Mitchell could be appropriately managed at that level.(e) Release from prison. On 16 June 2022 Ms Mitchell was released fromprison on parole.15 Judgment under appeal, above n 2, at [69]–[71].The High Court decision[13] Ms Mitchell alleged various errors by Corrections in her judicial reviewproceeding. Although the arguments she advanced were wide-ranging, her keyargument appears to have been that her behaviour on remand was wrongly taken intoaccount in both the Override Decision and the Reconsideration Decision. Ms Mitchellsubmitted that her final security classification should have simply been that generatedby her Preliminary Score — "minimum".[14] The Judge dismissed Ms Mitchell's application for judicial review on thebasis that:(a) The Preliminary Score is "only a preliminary or indicative securityclassification". It "is not determinative of the ultimate outcome and canbe overridden when appropriate".16 This recognises that the inputs intothe Preliminary Score "may not capture all matters that are relevant tothe risk assessment of a particular prisoner".17(b) Prisoners do not have a legitimate expectation that no override will beapplied or that the Preliminary Score will be the final outcome of anysecurity classification decision.18(c) The relevant guidelines used by Corrections include specific factorswhich might provide the basis for a manual override, but those factorsare not in any way restrictive. Rather, the guidelines "provide a broaddiscretion to manually override a Preliminary Score so long as thatoverride is not based on a factor that has already been incorporated inthe initial assessment itself".1916 At [16].17 At [17], citing Smith v Attorney-General, above n 6, and Taylor v Chief Executive of theDepartment of Corrections, above n 6.18 At [19].19 At [35].(d) Convictions or formal misconduct charges are not required for abehavioural incident to be considered as relevant to a securityclassification decision.20(e) Here, Ms Mitchell's Preliminary Score failed to take into account herbehaviour while on remand. It was appropriate for such behaviour tobe considered, however, given that at least one incident was the subjectof police consideration at the time Ms Mitchell's judicial reviewapplication was heard and there was sufficient evidence of the otherincidents, which the Judge considered had involved "what might beseen as lower level violence by a prisoner in custody". The safety ofboth prison staff and other inmates is relevant to classificationquestions.21(f) Ms Mitchell's right to natural justice was appropriately addressedthrough the reconsideration process, which was partially successful andresulted in Ms Mitchell's classification being reduced from"low-medium" to "low".22[15] The Judge concluded that:[48] I accept that [the Reconsideration Decision] was a proper one in linewith the statutory and regulatory regime and the requirements for an overrideas set out in the Guidelines. [The Reconsideration Decision] as I see it wasone to assign to Ms Mitchell the lowest level of security classification at whichshe could be safely and securely managed given the level of risk she posed.In making [the Reconsideration Decision] Ms Roberts took into account allrelevant information readily available, she recorded her decision in writingand she provided this with reasons to Ms Mitchell on 13 May 2021.The incident reports which she had taken into account were not informationthat was previously considered during the automatic points-based calculationof Ms Mitchell's security classification and therefore no double countingoccurred here.20 At [44]–[46], citing Newton v Superintendent of Rimutaka Prison HC WellingtonCIV-2003-485-1778, 5 September 2003 at [35].21 At [37]–[38].22 At [41] and [52].Is the appeal moot?[16] Corrections submitted that the appeal is moot. As set out above, the firstsecurity classification was superseded by the second and third security classifications,both of which also resulted in a "low" security classification, following manualoverride decisions. Ms Mitchell did not seek reconsideration of either of thesubsequent security classification decisions. She was subsequently released on16 June 2022. Accordingly, even if Ms Mitchell were to succeed in reviewing the firstsecurity classification decision, that would not give rise to any practical consequences.[17] Ms Mitchell accepted that the first security classification is no longer operative.She submitted, however, that her appeal raises broader issues of more generalapplication, and that it is in the interests of justice for the appeal to be determined onits merits.[18] Proceedings will be "moot" or "academic" if there is no live dispute betweenthe parties or, as the Supreme Court put it in R v Gordon-Smith, "where the substratumof the litigation between the parties has gone and there is no matter remaining inactual controversy and requiring decision".23[19] Here, we accept that the appeal is moot, given that the first securityclassification is no longer in effect. That is not the end of the matter, however, as weexplain below.23 R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [14] (footnote omitted), quotingFinnigan v New Zealand Rugby Football Union Inc (No 3) [1985] 2 NZLR 190 (CA) at 199 perRichardson J. The Court also cited the principle referred to by Viscount Simon LC inSun Life Assurance Co of Canada v Jervis [1944] AC 111 (HL) at 114 that "it is an essentialquality of an appeal fit to be disposed of by this House that there should exist between the partiesa matter in actual controversy which the House undertakes to decide as a living issue".Should this Court determine the appeal, despite it being moot?Approach to moot appeals — legal principles[20] The Supreme Court observed in Gordon-Smith that mootness is not a matterthat deprives a court of jurisdiction to hear an appeal.24 Rather, the issue is one ofjudicial policy:25In general, appellate courts do not decide appeals where the decision will haveno practical effect on the rights of parties before the court, in relation to whathas been at issue between them in lower courts. But in circumstanceswarranting an exception to that policy, provided the court has jurisdiction, itmay exercise its discretion and hear an appeal on a moot question.The Court referred to three primary reasons for the appellate courts' "general policyof restraint in addressing moot questions", as identified by the Supreme Court ofCanada in Borowski v Canada (Attorney General):26 first, the importance of the adversarial nature of the appellate process in thedetermination of appeals, secondly, the need for economy in the use of limitedresources of the appellate courts and, thirdly, the responsibility of the courtsto show proper sensitivity to their role in our system of government.In general advisory opinions are not appropriate.[21] The Supreme Court noted in Baker v Hodder that for public law cases,questions of mootness "may be less compelling" when deciding whether to entertainan appeal. However, the court's discretion to hear a moot appeal is not limited topublic law cases.27 The Court commented that there is no "test" for the exercise of thediscretion but, in light of the "policy of restraint" described above, "a decision to heara moot appeal should be made only in exceptional circumstances".28 Exceptionalcircumstances could arise from the circumstances of the particular case (the Courtgave the example of serious procedural unfairness at first instance) or the broader24 R v Gordon-Smith, above n 23, at [16], citing R v Secretary of State for the Home Department,ex parte Salem [1999] 1 AC 450 (HL) at 456–457.25 At [16] (footnote omitted), citing Borowski v Canada (Attorney General) [1989] 1 SCR 342at 353.26 At [18], citing Borowski v Canada (Attorney General), above n 25, at 358–363. The Court alsoreferred to R v Smith [2004] 1 SCR 385.27 Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [33].28 At [32]–[33].public interest (the Court gave the example of an appeal which raises an importantlegal point).29[22] Ms Mitchell referred, by analogy, to the matters identified in the recentdecision of the Supreme Court in Ellis v R (Continuance).30 That case arose in asomewhat different context, involving consideration by the Supreme Court of thefactors relevant to determining whether to allow a criminal appeal to continuefollowing the death of the appellant. The Court considered that the overridingconsideration was whether continuation is in the interests of justice.31 The majoritywent on to identify a number of other, non-exhaustive factors which are relevant to theassessment.32 We accept that many of those factors have been previously identified asbeing relevant in a civil context or (if not expressly identified in previous civil cases)may nevertheless be relevant, by analogy.[23] With reference to the decisions we have referred to, we summarise the(non-exhaustive) factors that are potentially relevant to the exercise of our discretionas to whether to hear this appeal, despite it being moot, as follows:(a) The importance of the adversarial nature of the appellate process in thedetermination of appeals.33(b) The strength of the grounds of appeal.34(c) The need for economy in the use of limited resources of the appellatecourts.35 This may include consideration of whether the nature of the29 At [33].30 Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.31 At [48] and [57] per Glazebrook J, [152] per Winkelmann CJ, [233] per Williams J and [294] perO'Regan and Arnold JJ.32 At [57]–[58] and [144] per Glazebrook J and [278] and [292]–[293] per O'Regan and Arnold JJ.33 R v Gordon-Smith, above n 23, at [18] and [20]. The Supreme Court elaborated inR v Gordon-Smith that "having a stake in the outcome fosters full argument on the questions beforethe court"; and that "[t]he need for legal principles to be applied to particular facts is a valuablediscipline for the courts in determining those principles." See also Ellis v R, above n 30, at [57(a)]per Glazebrook J and [278] and [292] per O'Regan and Arnold JJ.34 Ellis v R, above n 30, at [57(b)] per Glazebrook J and [278] and [292] per O'Regan and Arnold JJ.35 R v Gordon-Smith, above n 23, at [18], citing Borowski v Canada (Attorney General), above n 25,at 358–363.order which could be made by the court justifies the expenditure oflimited judicial (or court) resources to resolve a moot appeal.36(d) Whether continuing the appeal "would go beyond the judicial functionof resolving concrete disputes and involve the court in free-standing,legislative-type pronouncements more properly left to the legislatureitself".37 Courts must "show proper sensitivity to their role in oursystem of government" and "[i]n general advisory opinions are notappropriate."38(e) Whether an appeal raises an issue of "significant public importancewhich is highly likely to come before the court again at some point".39It is relevant whether the issue is "otherwise evasive of appellatereview".40 It is also relevant whether the appeal raises "a systemic issuerelated to the administration of justice".41[24] The above factors are non-exhaustive. The extent to which these factors, orother additional factors, are engaged and the weight to be accorded to them will becase-specific. In the circumstances of this appeal, there is no concern that the appealwould not be determined in an appropriate adversarial context. Nor woulddetermining the appeal require the Court to go beyond its proper judicial function.The key relevant factors, in our view, are those set out at [23](b)], [23](c)] and [23](e)]above. Of those, we see the strength of the appeal, and whether it raises issues ofgeneral or public importance, as being the most critical factors bearing on the exerciseof our discretion in this case.The strength of the appeal[25] Ms Mitchell advanced numerous arguments on appeal. Some of them weredifficult to follow, others do not appear to have been advanced before the High Court36 Ellis v R, above n 30, at [57(f)] per Glazebrook J and [278] and [292] per O'Regan and Arnold JJ.37 At [57(g)] per Glazebrook J and [278] and [292] per O'Regan and Arnold JJ.38 R v Gordon-Smith, above n 23, at [18].39 At [24].40 Ellis v R, above n 30, at [57(e)(i)] per Glazebrook J and [278] and [292] per O'Regan andArnold JJ.41 At [57(e)(ii)] per Glazebrook J and [278] and [292] per O'Regan and Arnold JJ.or were or peripheral relevance. We therefore approach our assessment of the meritsof the appeal by focussing on the key steps in the Judge's reasoning process(as summarised at [14] above) and considering any alleged errors made by the Judgein relation to those matters.[26] First, the Judge found that the Preliminary Score is only a preliminary orindicative classification, and that prisoners do not have a legitimate expectation thatno override will be applied, or that the Preliminary Score will be the final outcome ofany security classification decision.42[27] It is not reasonably arguable, in our view, that this finding was in error.The Judge's reasoning is compelling. The initial exercise of allocating points throughIOMS is simply a tool to aid in the risk assessment process. It may not, however,capture all relevant risk factors in each case. The Judge's finding is principled, inaccordance with the statutory and administrative scheme, and consistent with previousdecisions including Smith v Attorney-General43 and Taylor v Chief Executive of theDepartment of Corrections.44 As Ellis J observed in Taylor:45It is tolerably clear that the override option exists precisely because filling outthe review form and applying the points system is intended largely to be amechanical (and therefore objective and consistent) exercise. The possibilityof an override recognises the reality that the guidelines and the form may notcapture all matters that are relevant to the risk assessment required by s 44 [ofthe Act] in relation to a particular prisoner. It contemplates that there may bea departure from policy but requires clear reasons for that to be given. Theguidelines also make it clear that there cannot be a departure from policy (anoverride) simply because an application of the points system does not resultin adequate weight being given to one of the matters expressly required to beconsidered.[28] We further note the subsequent overrides in Ms Mitchell's case, in respect ofthe two six-monthly classification reviews, reduced her security classification levelfrom the "low-medium" indicated by the Preliminary Score to "low". Perhaps notsurprisingly, Ms Mitchell has not sought to argue that she had a legitimate expectation42 Judgment under appeal, above n 2, at [19], [21] and [52].43 Smith v Attorney-General, above n 6.44 Taylor v Chief Executive of the Department of Corrections, above n 6.45 At [88] (footnote omitted). See also Smith v Attorney-General, above n 6, at [47].that she would be assigned the security classification that was generated by thePreliminary Score in relation to either of those decisions.[29] We also do not think it is reasonably arguable that the override involved a"double counting" of factors which were already factored into the Preliminary Score.We agree with the Judge that:46Here, behavioural incident reports were not included as part of the automatedmatrix of factors Ms Fili [the assessing officer] properly applied in carryingout the initial security classification using the IOMS form. This is preciselywhat led to [the recommending officer] Ms Reedy's override of Ms Mitchell'sPreliminary Score, given that it failed to take into account her conduct whileon remand, conduct which according to Ms Roberts was repeated andsignificantly troubling.[30] On the evidence before the Court, it is not reasonably arguable that theinformation in the behaviour incident reports was already incorporated into the IOMSautomated matrix of factors, and hence reflected in Ms Mitchell's Preliminary Score.It was therefore appropriate for this information, which is clearly relevant to assessingrisk, to be considered at the override stage, as the Judge found.47[31] The Judge was also correct, in our view, to find that convictions or formalmisconduct charges are not required for a behavioural incident to be considered asrelevant to a security classification decision.48 Any submission to the contraryoverlooks the fundamentally different nature of the prison disciplinary regime and thesecurity classification process. As Woolford J observed in Bell v Chief Executive ofthe Department of Corrections:49The misconduct regime and security classification decisions are separatematters. Charges of misconduct are subject to the prosecution and hearingregime specified in sch 7 of the Corrections Regulations. Misconduct mustbe proved beyond reasonable doubt. In contrast, security classificationdecisions are inherently about risk.46 Judgment under appeal, above n 2, at [37], and see also [48] in the context of the ReconsiderationDecision.47 At [37]–[39], and see also [48]–[51].48 See [38], [44]–[45] and [48].49 Bell v Chief Executive of the Department of Corrections, above n 6, at [77] (footnote omitted),citing Genge v Chief Executive of the Department of Corrections, above n 6, at [12].[32] Similarly, in Newton v Superintendent of Rimutaka Prison, which was referredto by the Judge in the judgment under appeal,50 Wild J considered an argument thatCorrections had erred by considering a prisoner's drug test results in a securityclassification decision, after disciplinary charges based on those results had beendismissed by a Visiting Justice for procedural reasons. Wild J observed that:51This argument equates the prison's essentially judicial inmates disciplinaryoffence process with the prison's day-to-day administration, includingdecisions on security classification Taken to its logical extreme, theargument would preclude the prison from taking any administrative actionunless and until appropriate disciplinary offences were proved against theinmate.[33] Ms Mitchell made several submissions to the general effect that her case wasdistinguishable from previous security classification cases and that the reasoning inthose cases did not therefore apply to her situation. These submissions were somewhatdifficult to follow at times. In addition, some of these arguments do not appear to havebeen advanced in the High Court. As a general observation, however, it does notappear to us that any of the differences relied on by Ms Mitchell would lead to adifferent outcome on appeal. For example, on the information before us, Ms Mitchellhas failed to establish that there is (or should be) a materially different approach toassessing the security classification of male and female prisoners. Other mattersreferred to by Ms Mitchell, including that her offending was less serious than that insome other cases, were considered when assessing the Preliminary Score.[34] In conclusion, we assess the strength of Ms Mitchell's appeal as weak. There isnothing to suggest that the security classification process in her case wentfundamentally awry, for any of the reasons she has advanced.Other relevant factors[35] We now turn to consider the other factors relevant to the exercise of ourdiscretion as to whether to determine this appeal, as summarised above, to the extentthey are engaged in this case.50 Judgment under appeal, above n 2, at [45].51 Newton v Superintendent of Rimutaka Prison, above n 20, at [35].[36] Of those factors, the most relevant is whether the appeal raises an issue of"significant public importance which is highly likely to come before the court againat some point".52 In our view it does not. The issues raised are largely fact-specificand, to the extent that issues of wider significance are raised, they largely relate toprinciples that have been considered in previous cases.[37] It necessarily follows that the need for economy in the use of the limitedresources of the appellate courts weighs against determination of the appeal.53 This isnot a case where the nature of the order which could be made by this Court wouldjustify the expenditure of limited judicial and court resources to resolve a mootappeal.54Conclusion[38] The security classification decision that is the subject of the appeal is nowmoot. It has since been superseded by two subsequent classification decisions(resulting in the same "low" security classification) that were not challenged, andMs Mitchell's release on probation. The grounds of appeal advanced by Ms Mitchellrelate to factual circumstances that no longer exist. For the reasons outlined above, itis our view that the merits of the appeal are weak. This is a factor that weighs heavilyagainst exercising the Court's discretion to determine a moot appeal. The Judge'sreasoning (as summarised at [14] above) is compelling. It is consistent with previouscase law and does not disclose any apparent error.[39] The statutory and administrative scheme for allocating a security classificationto prisoners has been comprehensively considered in several cases.55 Ms Mitchell'sappeal does not raise any new, and seriously arguable, issues of broader publicimportance relating to the implementation of the security classification process byCorrections. On the contrary, the issues raised by this appeal are largely fact-specificand limited to the circumstances of Ms Mitchell's case.52 R v Gordon-Smith, above n 23, at [24].53 At [18].54 Ellis v R, above n 30, at [57(f)] per Glazebrook J and [278] and [292] per O'Regan and Arnold JJ.55 See for example Gorges v Chief Executive of the Department of Corrections, above n 6; Taylor vChief Executive of the Department of Corrections, above n 6; Genge v Chief Executive of theDepartment of Corrections, above n 6; Smith v Attorney-General, above n 6; and Bell v ChiefExecutive of the Department of Corrections, above n 6.[40] For the reasons outlined, it is our view that the Court should not exercise itsdiscretion to hear the appeal.Result[41] Corrections' application for leave to adduce further evidence on appeal isgranted.[42] We are satisfied that the appeal is moot and that this is not a case wherethe Court should exercise its discretion to hear the appeal. The appeal is dismissedaccordingly.Solicitors:Luke Cunningham Clere, Wellington for Respondent