TOIA v AUCKLAND PRISON [2015] NZCA 624

TOIA v AUCKLAND PRISON [2015] NZCA 624 [18 December 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA292/2014[2015] NZCA 624BETWEEN PAKI TOIAAppellantAND PRISON MANAGER, AUCKLANDPRISONFirst RespondentDEPARTMENT OF CORRECTIONSSecond RespondentTHE ATTORNEY-GENERALThird RespondentHearing: 3 November 2015Court: Ellen France P, French and Winkelmann JJCounsel: C J Tennet for AppellantA M Powell and J Inkster for RespondentsJudgment: 18 December 2015 at 12.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Toia is a sentenced prisoner in Auckland Prison. He issued proceedings in the High Court at Auckland against the prison authorities and theAttorney-General, claiming the way he was treated in the maximum security wing of the prison between 2010 and 2012 breached his rights under the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).1 Mr Toia sought various remedies, including damages.[2] The claim was heard by Brewer J.2 The Judge found the prison authorities had committed two breaches of the Corrections Act 2004 and one breach of the Corrections Regulations 2005. The Judge also identified three other concerns he had about the way Mr Toia was treated but which, in his assessment, did not amount to actionable breaches.[3] In relation to the breaches the Judge did find proven, he held that neither s 9 nor s 23(5) of the Bill of Rights Act was engaged and that Mr Toia was not entitled to any monetary compensation. The Judge did, however, issue a declaration in respect of one of the three breaches he found established under the Corrections legislation.[4] Mr Toia now appeals that decision.Discussion[5] Mr Toia is classified as a maximum security prisoner and at all material times was held in the maximum security wing of Auckland Prison. His claim related to events that took place at the prison in two distinct periods of time. The two periods were:(a) 14 January 2010 – 25 January 2010, when Mr Toia was confined inthe wing's At Risk Unit.(b) 23 December 2010 – 10 February 2012, when Mr Toia was held in thewing's D Block.1 The statement of claim also pleaded three other causes of action in negligence, breach of statutory duty and breach of international conventions.2 Toia v Prison Manager, Auckland Prison [2014] NZHC 867.[6] The factual issues and the grounds of appeal relating to the two periods differ. It is therefore convenient to address each separately.The At Risk Unit[7] In 2009 and early 2010 Mr Toia was held in B Block in the maximum security wing. The fronts of the cells in the wing are open-grilled bars. Each cell has a lavatory and hand basin. Prisoners would hang a blanket over the front of the cell when they went to the toilet, in order to have privacy. This practice was tolerated by the prison officers.[8] Mr Toia, however, took to screening his cell front all of the time, not just when he wanted to use the lavatory. This was not allowed by the officers. Their duties included making regular checks on prisoners for the purpose of security and to ensure the health and safety of the prisoners. They could not do this for Mr Toia because they could not see him. The screening of the cell also exposed the officers to undue risk because it meant that, in order to check on him, they were required to enter the cell. This was particularly problematic at night when there were fewer staff on duty.[9] Numerous attempts were made to stop Mr Toia screening his cell but he was defiant and refused to remove the blanket.[10] On 14 January 2010 Mr Toia was moved to the At Risk Unit of the maximum security wing. The At Risk Unit was designed for prisoners assessed at risk of self harm. The unit comprised 10 cells, all with solid doors, an observation window, a monitoring camera and a call button. Eight of the cells in the At Risk Unit had lavatories and hand basins. The two cells that did not have those amenities were known as the Round Room and the Tie Down Room. Prisoners in these two rooms were provided with cardboard pans for excretion.[11] Prisoners in the At Risk Unit had to wear a one-piece garment and were not allowed cutlery. Meals were served through feeding slots in the door. In the absence of cutlery, the food provided was either finger food or to be eaten using a polystyrene cup shaped as a scoop.[12] Prisoners held in the At Risk Unit were allowed out of their cells daily for a shower and exercise, but only for an hour and only when sufficient officers were available.[13] When Mr Toia was moved to the At Risk Unit, none of the regular cells were available and he was put into the Round Room. He started to tip the contents of his excretion pans onto the floor outside his cell. He did this by pushing the wastethrough the food slot in the cell door, telling staff to "fuck off". In evidence hisexplanation for this conduct was that staff never opened the door to remove the toilet pans.[14] According to Mr Toia's evidence, after approximately 72 hours in the Round Room, he was returned to B Block where he resumed his practice of covering the cell front. The Judge appears to have accepted this evidence although it is not supported by the prison log. The log suggests Mr Toia remained throughout in the Round Room until 18 January 2010 when another prisoner came into the unit and needed the Round Room. Mr Toia was then moved to the Tie Down room. None ofthe respondents' witnesses mention a return to B Block in their evidence.[15] As at 18 January regular cells in the At Risk Unit were available. The Tie Down Room however is physically separate from the other cells and that was the reason prison management gave for putting him in that room. They said for health reasons they did not want him in close proximity to other prisoners because of his practice of dumping his excrement outside his cell. While in the Tie Down Room, Mr Toia continued to empty his excretion pans onto the floor outside his cell.[16] Mr Toia left the At Risk Unit on 25 January 2010, after being sentenced by a Visiting Justice to 10 days' detention in solitary confinement in another part of theprison for damaging property. After he had served his sentence, he was returned to B Block.[17] Mr Toia alleged his rights were breached when he was held in the At Risk Unit because:(a) it was a form of extra-judicial punishment;(b) he was unlawfully segregated;(c) he was locked up for 24 hours a day;(d) he had no access to a lavatory or washing facilities; and(e) his health was put at risk because he had to eat without cutlery and had no means of washing his hands.The High Court decision[18] Justice Brewer found that Mr Toia's transfer to the At Risk Unit was due to staff's genuine concerns about Mr Toia's safety and that it was not done as a punishment.3 The Judge also found that Mr Toia had not been locked up for 24 hours a day as claimed and that, although he did not have running water in his cell for washing his hands, he could have asked to be taken to an ablution block but deliberately chose not to ask.4 None of those findings has been challenged on appeal.[19] The Judge held that, although prison management had the legal authority to transfer Mr Toia to the At Risk Unit and confine him there for the purposes of better observing him, it did not have the authority to subject him to the Unit'snon-association regime.5 While in the At Risk Unit, Mr Toia lost the ability toassociate with other prisoners, which, in the Judge's assessment, amounted to defacto segregation.[20] The power to deny or restrict association with other prisoners is strictly regulated by ss 57‒60 of the Corrections Act. The provisions include proceduralsafeguards as to the imposition and continuance of any restrictions, including the3 Toia v Prison Manager, Auckland Prison, above n 2, at [50].4 At [68] and [71].5 At [63].issuing of notices and reviews. The Judge was satisfied Mr Toia had been segregated and without the benefit of the statutory safeguards.6[21] Having made those findings, the Judge then considered whether subjecting Mr Toia to the At Risk Unit regime amounted to a breach of his right under s 9 of the Bill of Rights Act not to be subjected to torture or cruel treatment. Justice Brewer held s 9 was not engaged.7 Nor, in the Judge's view, in the circumstances of thiscase did the confinement in the At Risk Unit amount to a breach of Mr Toia's rightunder s 23(5) of the Bill of Rights Act to be treated with humanity and respect for the inherent dignity of his person.8[22] The Judge did, however, have some concerns about the decision to place Mr Toia in the Tie Down Room when other regular cells were available, a decision that Brewer J described as "questionable".9 As he pointed out, if this decision was made because of concerns about the health of other prisoners due to Mr Toia tippingexcrement out the door, it seems "odd" to put him in a cell without a lavatory. TheJudge accepted the reason given by management was genuine but went on to say that if the incarceration had been longer than a few days, a better reason would have been needed to forestall a finding of extra-judicial punishment and/or a breach of s 23(5).[23] As to the appropriate remedy for the breach of the segregation provisions, the Judge considered a declaratory judgment was sufficient and that an award of monetary compensation was not warranted. He therefore made a declaration that applying the At Risk Unit regime of non-association with other prisoners to Mr Toia while he was confined there was a breach of s 57 of the Corrections Act.Grounds of appeal[24] Mr Toia's counsel, Mr Tennet, raised three main grounds of appeal in relationto the At Risk Unit claims. The first ground, namely that the Judge had been wrong to find s 9 of the Bill of Rights Act was not engaged, was abandoned during the course of the hearing.6 At [64].7 At [73].8 At [80]–[83].9 At [176(a)].[25] The second ground of appeal was that the Judge had been wrong to find the following did not amount to a breach of s 23(5) of the Bill of Rights Act warranting damages:(a) the de facto segregation; and(b) confinement in the Tie Down Room when cells with running water and a toilet were available.[26] The third ground of appeal was that, even if we were to find there had been no breaches of the Bill of Rights Act, a declaration was an inadequate remedy in relation to the breaches found by the Judge to have occurred. Damages were the only appropriate remedy.Our view[27] Section 23(5) of the Bill of Rights Act states:Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.[28] It was common ground that the approach to s 23(5) was as set out by the Supreme Court in Taunoa v Attorney-General:10(a) Section 23(5) is infringed by State conduct that is not outrageous or reprehensible, but still worthy of being marked as unacceptable in our society.11(b) The section affirms the obligation of the State to ensure humane treatment of those it has deprived of liberty.12(c) It captures conduct that lacks humanity but falls short of cruelty, conduct that is demeaning but not degrading and conduct that is clearly excessive in the circumstances but not grossly so.1310 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.11 At [170] per Blanchard J, [285] per Tipping J, and [339]–[340] per McGrath J.12 At [7] and [79]–[80] per Elias CJ, and [297] per Tipping J.[29] Mindful of those principles, we share Brewer J's concerns about the decisionto place Mr Toia in the Tie Down Room. However, on the evidence and for the same reasons relied upon by the Judge, we are satisfied that subjecting Mr Toia to the At Risk Unit regime (including non-association and lack of running water and lavatory) did not, in all the circumstances, amount to a breach of his right to be treated with humanity and respect for his inherent dignity.[30] Those reasons are as follows:(a) The context was that prison authorities were having to respond to a physically strong and aggressive prisoner who was obstructing them in the execution of core duties.(b) Moving Mr Toia to the At Risk Unit was not of itself unlawful (a finding not challenged on appeal).(c) Mr Toia's prisoner management plan remained in force (also a findingnot challenged on appeal).(d) Although his ability to associate with other prisoners was removed, it was never intended the transfer would be of long duration and it was not.(e) The excretion pan system plus access to hand washing facilities via a call button provided adequate, albeit minimal, sanitation standards, provided this was on a temporary basis.(f) It was Mr Toia's own conduct in tipping out his excrement thataggravated the situation.(g) Mr Toia did not suffer any harm as a result of being subjected to the At Risk Unit regime.13 At [177] per Blanchard J, and [340] per McGrath J.[31] Mr Tennet argued it should not take weeks of enduring the At Risk Unit conditions for a breach to be established. In his submission, hours should be all that is required. However, in our view, a close analysis of the evidence shows that the conditions were not as extreme as that argument assumes. In our view, the shortduration of Mr Toia's confinement in the At Risk Unit is highly relevant and, whencombined with the other factors listed above, militates against finding any breach or awarding compensation.[32] We are reinforced in that conclusion by the recent decision of the UK Supreme Court in Shahid v Scottish Ministers,14 decided after Brewer J issued his judgment in this case. In Shahid, the reason for the segregation of a prisoner (safety, not discipline) and the duration of the segregation were considered to be highly relevant in determining whether there was a breach of the European Convention on Human Rights. The lack of severe or permanent injury to health was also seen as relevant to the issue of whether a damages award was necessary to afford satisfaction.D Block[33] In December 2010 Mr Toia booby-trapped his cell door in B Block with a razor blade. This resulted in a prison officer injuring her finger.[34] Mr Toia was sentenced to segregation for this offence, which he served in D Block.[35] When the sentence was served, Mr Toia refused to return to B Block. He insisted on staying in D Block until 10 February 2012 when, by consent, he was transferred to another part of the prison. 15[36] Mr Toia made various allegations about the way he was treated in D Block during his 13-month cofinement there, including that:14 Shahid v Scottish Ministers [2015] UKSC 58.15 The transfer was facilitated by other prisoners who offered to take Mr Toia under their wing. Prison management gave evidence that since the transfer there had been an improvement in Mr Toia's behaviour. He was calmer and interacting better with fellow prisoners. However, he was said to be still uncooperative and abusive towards staff and was still covering his cell front virtually daily. he was locked in his cell for 23 and a half hours a day; he was denied toothpaste; he was required to remain on the landing outside his cell; he was denied privacy; he was provided with no opportunity for constructive use of time; the conditions were unhygienic; a visitor was unlawfully turned away; there was a failure to action complaints; prison staff removed and failed to account for his personal property; he was denied access to the Ombudsman; there was gender discrimination in the classification of prisoners for maximum security; he was denied litigation resources; he had no contact visits; he had no access to direct sunlight; he was confined with mentally unwell prisoners.The High Court decision[37] Justice Brewer found that the evidence supported only two of these allegations, namely the failure to provide a privacy screen, which the Judge said wasa breach of reg 67(2) of the Corrections Regulations, and the denial of access to theOmbudsman. In the Judge's assessment, the two complaints, whether viewedcollectively or individually, did not amount to a breach of the Bill of Rights Act.[38] As he had done in the case of the At Risk Unit claims, Mr Tennet abandoned a ground of appeal relating to s 9 of the Bill of Rights Act. Mr Tennet alsoabandoned a challenge to the Judge's finding that Mr Toia had not been discriminated against on the grounds of gender.[39] The main ground of appeal in relation to the D Block claims related to the Judge's treatment of the evidence of a Mr Taylor. In Mr Tennet's submission, if thatevidence had been accepted it would have led inexorably to a finding of a breach of s 23(5) of the Bill of Rights Act and an award of substantial compensation. Mr Tennet also argued that, even if Mr Taylor's evidence were to be disregarded, theJudge erred in not finding the conditions in D Block amounted to a breach of s 23(5) warranting compensation.The evidence of Mr Taylor[40] Like Mr Toia, Mr Taylor is a long-term maximum security prisoner. He has been detained in D Block almost continuously since 15 March 2010. Mr Taylor, whois an advocate for prisoners' rights, gave evidence in the High Court in support ofMr Toia's allegations of mistreatment in D Block.[41] During the course of his evidence, Mr Taylor asserted that the conditions in D Block experienced by Mr Toia were identical to those impugned by the Supreme Court in the 2007 Taunoa decision.16 In Taunoa, the Supreme Court found there had been serious breaches of prisoners' rights in D Block, warranting awards ofpublic law damages.[42] Mr Tennet submitted Mr Taylor was not challenged in cross-examination on this issue and that the Judge failed to address it. All the Judge said was that,although Mr Taylor was a "useful" witness, it became clear he had an agenda beyond16 Taunoa v Attorney-General, above n 10.Mr Toia's case, namely that he wanted to have a Taunoa-type investigation into the system of operation of D Block.17 The Judge went on to say that for the purposes ofthe proceeding the Court's focus had to be on Mr Toia's allegations and the evidencerelevant to them.[43] We agree that if the conditions at issue in this case were the same as those at issue in Taunoa, Mr Tennet's submission would have some force. However, it isdemonstrably clear that is not the case.[44] Taunoa concerned the operation of a special policy known as the Behaviour Management Regime. Specifically designed to punish and wear prisoners down, it included illegal and degrading strip searches, extended periods of unlawful segregation, and widespread breaches of minimum standards relating to such matters as ventilation, bedding and hygiene.[45] We agree with Mr Powell's submission that the prison conditions at issue inthis case are far removed not only in time, but also purpose, severity and duration from the Behaviour Management Regime. It follows that the approach taken by theJudge to Mr Taylor's evidence was correct. The Judge's task was to focus on theallegations made by Mr Toia and the evidence relevant to them.Primitive conditions in D Block[46] Mr Tennet submitted that even if the conditions experienced by Mr Toia in D Block were not the Behaviour Management Regime conditions in another guise, they were nonetheless primitive and actionable. Mr Tennet referred us to the following passage in the High Court decision, where Brewer J stated:18The conditions in D Block are primitive. I understand [Mr Toia's] concernsabout hygiene. I share the views expressed by Mr Taylor as to the utility of bare rooms for recreation. I doubt whether, overall, the spirit of the UN Minimum Standards for Treatment of Prisoners was being observed in D Block. I was not called upon by [Mr Toia], and had insufficient evidence, to determine whether the D Block conditions actually comply with the minimum standards and, if not, what that would mean in terms of domestic law.17 Toia v Prison Manager, Auckland Prison, above n 2, at [85].18 At [176(b)] (footnote omitted).[47] In Mr Tennet's submission, given these concerns there should have been afinding that conditions in D Block amounted to a breach of s 23(5) of the Bill of Rights Act.[48] As regards the utility of the recreation room, this related to Mr Toia'scomplaint that he was not provided with opportunity for constructive use of time.[49] Section 50 of the Corrections Act requires the chief executive to ensure that, as far as practicable, every prisoner is provided with an opportunity to make constructive use of his or her time in prison. As noted by Brewer J, it would be a clear breach of s 23(5) of the Bill of Rights Act were a prisoner forced to vegetate.19[50] However, the evidence established Mr Toia had opportunities to make constructive use of his time, but often preferred to stay in his cell. There were limited library services available to him, prisoners were entitled to their own stereos and television sets, there was access to a yard for exercise and recreation rooms, as well as opportunities to engage in rehabilitation programmes, which Mr Toia refused point blank to do.[51] One of the recreation rooms had some rudimentary exercise equipment,another was bare. In our view, to elevate the Judge's comment about a barerecreation room as grounds for a finding of breach of the Bill of Rights Act, which Mr Tennet sought to do (at least in written submissions), is untenable in light of all the evidence. The choices for prisoners in D Block were limited but, as found by the Judge, that was largely as a result of their maximum security status.[52] As regards hygiene, the specific complaint was that in D Block prison officers did not routinely use the food slots for distribution of food, but regularly placed the food tray on the floor of the cell. Mr Toia alleged this was unhygienic, particularly following floods in the wing caused by prisoners blocking hand basins or lavatories.19 At [105].[53] We found the Judge's treatment of this issue a little confusing. On the onehand, he suggests prison officers had got into the habit of placing food on the floor. On the other hand, he says prison staff took reasonable action to address complaints, and refers to a complaint made by Mr Toia about his breakfast being placed on the floor. The staff response was to give Mr Toia a replacement breakfast, the "action taken" box on the complaint form recording this was an isolated incident.[54] The Judge does not explain the apparent contradiction. However, having read the evidence ourselves, we consider the most likely explanation is that the practicechanged during the period of Mr Toia's stay in D Block. There was evidence that forpart of his stay in D Block, a prison mess man (a fellow prisoner) was in charge of distributing the food. The fellow prisoner was not allowed to access the food slide so used the bottom of the cell door. This practice changed when prison officers took over the task of distributing the food and the food slide was then used. It is likely that the complaint relates to the latter period which is why it was recorded as an isolated incident[55] It is clear from the evidence that during the period the food was being distributed by the fellow prisoner, the food itself never came in direct contact with the floor. It was always either on trays or in plastic bags. We accept that was not ideal, given the risk of cross-contamination when the tray or plastic bag was placed on another surface. However, we do not consider it was conduct that met the criteria set out in Taunoa amounting to a breach of s 23(5).Access to resources to prepare for civil litigation[56] Although Brewer J did not uphold Mr Toia's complaint about being deniedaccess to a computer for the purposes of preparing his claim, the Judge did say that in different circumstances it might have amounted to an actionable wrong.20 The Judge gave the example of complex proceedings where managing documents and producing meaningful submissions realistically requires a computer.20 Toia v Prison Manager, Auckland Prison, above n 2, at [167] and [176(c)].[57] This was the third of the matters identified by Brewer J as giving him some concern and which Mr Tennet argued should have resulted in the Judge finding an actionable breach of the Bill of Rights Act. We reject this submission.[58] The evidence established it was not in fact necessary for Mr Toia to have access to a computer and that he had been provided with writing materials sufficient to enable him to make his case. Further, although Mr Toia denied ever saying he lacked the necessary computer skills, he did not provide the Court with any details as to how he would have used a computer had he been given access to one.[59] In all those circumstances, we are satisfied the Judge was correct not to uphold the complaint.[60] We turn now to consider the two complaints the Judge did uphold and which on appeal Mr Tennet submitted should have been held to amount to breaches of s 23(5) of the Bill of Rights Act and which he submitted warranted damages.Denial of access to the Ombudsman[61] Through the prison complaints system, prisoners have the right to request assistance at any time from a corrections inspector or an Ombudsman.21 On 14 September 2011 Mr Toia gave prison staff a form, known as a PC01, in which he requested an interview with an Ombudsman. The main matter he wanted to discuss with the Ombudsman was the inadequacy of the resources he had been allowed for preparing his court case.[62] At about the same time, Mr Toia lodged another PC01, asking to see an inspector about unrelated complaints.[63] Unfortunately, there was a mix up with the result that prison staff referred the inspector to the complaint that was intended for the Ombudsman and failed to refer the inspector to the complaints that were intended for him. The different expectations of the inspector and Mr Toia were not discovered at the time of theinspector's visit to the prison. His interview with Mr Toia had to be terminated21 Corrections Act 2004, ss 151–160.because Mr Toia became enraged and abusive when denied a request to have a support person present. The inspector later wrote to Mr Toia saying he had investigated the litigation support complaint and decided the prison authorities had acted fairly and reasonably.[64] We agree with the Judge that on the evidence there was a breach of the complaints system, but it was a technical breach only. It was not deliberate and it did not prevent Mr Toia from contacting the Ombudsman once the mistake was realised, as Mr Toia did in fact do. In those circumstances, there was no breach of the Bill of Rights Act and no remedy was required.Lack of a privacy screen[65] As in B Block, the cell fronts in D Block are open-grilled. Under the Corrections Regulations, privacy screening must be present in existing cells so far as is practicable in the circumstances consistent with safe custodial management.22Justice Brewer held Mr Toia had proved he had no privacy screen. In the absence of any evidence it was not practicable for him to have one or that having one would not be consistent with safe custodial management, the lack of a privacy screen was contrary to the Corrections Regulations.23[66] As noted by Brewer J, in terms of s 23(5) of the Bill of Rights Act, respect fora prisoner's inherent dignity does require the prison authorities to grant whatreasonable privacy can be granted, particularly when a prisoner needs to use the toilet.24 However, the evidence established that, as in B Block, the authorities did permit prisoners, including Mr Toia, to screen the front of the cells when using the toilet, so long as the prisoner took the screen down afterwards.[67] In those circumstances, we agree with the Judge that the breach of the Corrections Regulations was a technical one and that there was no breach of the Bill of Rights Act. We also agree with Brewer J that Mr Toia was not entitled to screen22 This is the combined effect of reg 67(2) and Part C of Schedule 3.23 Toia v Prison Manager, Auckland Prison, above n 2, at [100].24 At [102].himself from the view of prison officers at all times. We are satisfied a declaration was effective redress for the breach of the Corrections Regulations.Outcome[68] In our view, on the evidence none of the grounds of appeal has any merit. We are satisfied appellate intervention is not justified and that, for the reasons articulated by the Judge, his findings were correct. For completeness, we record that in coming to that conclusion we have considered all the complaints both individually and on a collective basis.[69] In light of our conclusion that monetary compensation is not warranted, it is unnecessary for us to address issues raised in argument about the application of thePrisoners' and Victims' Claims Act 2005.[70] Finally, as regards costs, we note Mr Toia is legally aided and therefore make no award of costs.Solicitors:Francis J Handy, Wellington for AppellantCrown Law Office, Wellington for Respondents