SMITH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2314

SMITH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2314 [13September 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-138[2019] NZHC 2314BETWEEN PHILLIP JOHN SMITHApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 26 June 2019Appearances: Applicant in Person (via AVL)J B Watson for the RespondentJudgment: 13 September 2019JUDGMENT OF CULL J[As to mode of appearance][1] Mr Smith is presently a serving prisoner. A journalist made a request to theDeputy Chief Executive of the Department of Corrections (Corrections) for aninterview with Mr Smith in prison. The request was declined. Mr Smith seeks tojudicially review this decision on the basis it was unlawful, unreasonable, breachedthe New Zealand Bill of Rights Act 1990, and failed to consider mandatoryconsiderations. Mr Smith will be representing himself. A substantive hearing date hasbeen set down for 23 September 2019.[2] The present application is concerned with whether Mr Smith should appear inperson or by audio-visual link (AVL) to argue his case before this Court. As a self-represented litigant, Mr Smith has indicated he wishes to appear in person and doesnot consent to AVL being used. He submits the Court should make an order unders 65(3) of the Corrections Act 2004 directing the manager of the prison to bring himto Court to appear in person. Corrections opposes this request for an order to produce,instead indicating this Court should make an order Mr Smith appear by AVL under s 7of the Courts (Remote Participation) Act 2010.Appearance[3] The Corrections Act 2004 governs prisoners' courtroom attendances. Section65(3) of that Act provides that a Court may make an order directing the manager ofthe relevant prison to ensure the prisoner can attend court. Section 65(2) provides forthe circumstances in which a s 65(3) order may be made. In this case, a s 65(3) ordermay be made if Mr Smith's attendance in court for judicial purposes is in the interestsof justice.1 If an order is made under s 65(3) that a prisoner is to attend in Court forjudicial purposes, the Judge must make an order, if it is a civil proceeding, for theprisoner to deposit a sum sufficient to pay the expenses for bringing the prisoner toand from the Court.2 "Expenses" is defined as "the prisoner's maintenance andcustody from the time the prisoner leaves the prison until the time he or she returns".3[4] The provisions dealing with AVL in civil proceedings are set out under theCourts (Remote Participation) Act 2010. Because they are of particular relevance tothis determination, I set out s 7, followed by s 5.7 Use of audio-visual links in civil proceedings(1) AVL may be used in a civil proceeding for the appearance of aparticipant in the proceeding if a judicial officer or Registrardetermines to allow its use for the appearance of that participant.(2) A judicial officer or Registrar may make a determination undersubsection (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 useof AVL for the appearance of the participant.1 Corrections Act 2004, s 65(2)(b).2 Section 65(4).3 Section 65(5).[5] The mandatory criteria for a determination under s 7(1) are contained in s 5:5 General criteria for allowing use of audio-visual linksA judicial officer or Registrar must consider the following criteriawhen he or she is making a determination under this Act whether ornot to allow the use of AVL for the appearance of any participant in aproceeding:(a) the nature of the proceeding:(b) the availability and quality of the technology that is to beused:(c) the potential impact of the use of the technology on theeffective maintenance of the rights of other parties to theproceeding, including–(i) the ability to assess the credibility of witnesses andthe reliability of evidence presented to the court; and(ii) the level of contact with other participants:(d) any other relevant matters.[6] Additional criteria for allowing use of AVL in criminal proceedings arecontained in s 6, but these have no relevance to the present proceedings.[7] A Judge is able to make a determination as to whether a participant will appearby AVL on its own motion or on application of "any participant".4 This Court hasinterpreted s 7(2)(b) and the meaning of the word "participant" in a number of cases.In some cases, a "participant" has been defined narrowly to mean a person applyingfor an order to appear by way of AVL in relation to his own participation in theproceeding.5 In another, where a prisoner agreed to appear at a strike-out hearing byAVL but withdrew his consent shortly beforehand, the hearing proceeded without theparticipant appearing in person.6 Each of those cases were determined on their specificfacts, while having regard to the differing approaches in the other authorities.74 Courts (Remote Participation) Act 2010, s 7(2).5 Taylor v Manager of Auckland Prison [2012] NZHC 1241 at [63]; Taylor v Attorney-General[2017] NZHC 2234 at [23].6 Harriman v Attorney-General [2015] NZHC 3196.7 Taylor v Attorney-General, above n 5, at [30].[8] As each side advocates for a different mode of hearing and no formalapplication for AVL has been, nor can be, made by Corrections, the most appropriateway to approach this issue is to assess whether it is in the interests of justice for MrSmith to attend Court in person, with reference to the s 5 criteria set out above.8The nature of the proceeding[9] Mr Smith submits the present proceedings involve important public law issues,including the right to the freedom of expression.9 Freedom of expression has beenrecognised as having "a very high value" attached to it.10[10] The substantive proceedings in this case involve the review of Corrections'decision to decline permission for a reporter to interview Mr Smith in prison. Similarissues have been raised in two separate decisions of this Court.[11] In Watson v Chief Executive of the Department of Corrections, Corrections'refusal to permit a journalist to conduct a face-to-face interview with Mr Watson washeld to be unreasonable and quashed, with a direction that it reconsider the applicationfor permission.11 Subsequently, Corrections allowed the journalist, Mr White, toattend a meeting as a facilitator between Mr Watson and Mr Hope, the father of thevictim. However, it did not permit Mr White to record the interview, nor write anarticle about it. Again, this Court held Corrections' refusal to be unreasonable, andquashed its decision.12 The issues, therefore, of a prisoner's right to free expressionand any justifiable fettering of that right has been canvassed in these two substantivejudicial review hearings.[12] Mr Smith's substantive hearing in this matter has been estimated by him to beone day and by Corrections to be half a day. This contrasts markedly with Taylor vAttorney-General where the Court held it was in the interests of justice for Mr Taylor8 Taylor v Attorney-General, above n 5.9 New Zealand Bill of Rights Act 1990, s 14.10 Jennings v Buchanan [2005] 2 NZLR 577 (PC) at [6].11 Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227, [2015] NZAR1049 at [69]–[70] and [77].12 Watson v Chief Executive of the Department of Corrections [2016] NZHC 1996, [2016] NZAR1264 at [51] and [55].to present his case in person.13 That case was described by Fitzgerald J as involvingan important public law issue, requiring examination and cross-examination of anumber of witnesses and making submissions over, potentially, three days.14[13] This matter is to proceed on the affidavit evidence filed. There is noexamination or cross-examination of witnesses. The substantive hearing will focus onthe legal issues arising from the claim and will be relatively straightforward as, indeed,this hearing was before me.[14] I consider the nature of the proceeding does not, on its face, favour Mr Smithappearing in person.The availability and quality of the AVL technology[15] Mr Smith contends that the matter is going to be a one-day hearing and will besubstantive. Although not in a judgment, he points to the minute of Fitzgerald J inTaylor v Attorney-General when she said:15[17] [T]he present fixture is a full day hearing and the hearing of thesubstantive application in this proceeding.[18] Finally, while I do not accept Mr Smith's position that there aresignificant issues with AVL, given AVL hearings of some duration regularlytake place in this Court with no technical or similar issues arising, they cancrop up from time-to-time. Accordingly, and primarily on the basis of theduration of this fixture, I consider the risk of potential technical issue [sic]weighs slightly in favour of Mr Smith's personal appearance.[16] Mr Smith submits the same issues arise in this case. Corrections submits thatthere are dedicated AVL rooms in the prison in which Mr Smith resides. Mr Smithhas, in fact, recently used these facilities to appear in a judicial review with notechnical issues.16[17] I do not consider the availability and quality of the AVL technology weighs infavour of Mr Smith appearing in person before the Court. AVL has been used recently13 Taylor v Attorney-General, above n 5, at [29].14 At [27].15 Taylor v Attorney-General HC Auckland CIV-2016-404-2269, 27 June 2018 (Minute).16 Smith v Attorney-General [2019] NZHC 835.by Mr Smith in a previous proceeding lasting a day with no technical issues.Corrections gave a further example where Mr Smith consented to a two-day judicialreview hearing by AVL last year, in which he successfully made out the review claims.The present hearing itself took half a day and again there were no technical issues.[18] In these circumstances, I am satisfied that the availability and quality of theAVL technology is sufficient and weighs in favour of its use.The impact of AVL on the rights of the parties[19] Mr Smith submits AVL will substantially impact his ability to engage in theproceedings. Specifically, he will not have immediate access to any documentshanded up by Corrections. He also argues that if a McKenzie Friend is appointed hewill be unable to confer with them during the hearing. Nor will he be able to confer,on his argument, with Corrections on material matters. He acknowledges that, as ofyet, no application to cross-examine has been made. In all, he submits these mattersare prejudicial to his fair hearing rights.17[20] Corrections submits that the proceedings are likely to be wholly legal andshort, lasting only one day. There are no issues relating to the examination ofwitnesses nor the assessment of evidence in relation to the same, which are likely toarise in these proceedings. The impact of AVL being used is, therefore, minimal.[21] As noted above, the substantive hearing is a judicial review proceedinginvolving legal argument only. In the previous cases where the Court has determinedan appearance in person was appropriate in the interests of justice to ensure that theplaintiffs were able to present their case adequately, they involved viva voce evidence,cross-examination of witnesses, and the possibility that the plaintiffs would beappearing from two separate AVL suites in one case.18 In the other, Mr Taylor wasrepresented by counsel but was present by AVL to observe what occurred, withsubstantial background noise presenting a distraction to the hearing.1917 New Zealand Bill of Rights Act 1990, s 27.18 Taylor v Attorney-General, above n 5, [27]–[28].19 Taylor v Manager of Auckland Prison, above n 5, at [57].[22] By way of contrast in this case, Mr Smith does not anticipate that any witnesseswill need to attend the hearing or be cross-examination and the quality of AVL, asexperienced in this hearing, does not engender concerns or require differentconsiderations for a fair and adequate opportunity for Mr Smith to present his case byAVL.[23] Each case must be determined on its facts and circumstances. I do not consideran AVL hearing in the context of this case, which requires legal submissions only, willpresent the same practical difficulties as a hearing with oral evidence. The issues arelegal ones, which have already been canvassed in previous decisions, and I amsatisfied that AVL will provide Mr Smith a fair opportunity to be heard.[24] For these reasons, I do not consider Mr Smith's proceedings will be unfairlyimpacted by the use of AVL in these proceedings.Other matters[25] Mr Smith does not consent to the use of AVL for his appearance.20 This raisestwo issues. First, Mr Smith argues that the Court will be compelling him to attend thehearing of this proceeding by AVL if the Court makes such a determination. Hesubmits this Court has questioned whether s 7 provides the courts with the jurisdictionto do so.21[26] Under s 7 of the Courts (Remote Participation) Act 2010, s 7(1) enables ajudicial officer or a Registrar to determine whether AVL may be used in a civilproceeding for the appearance of a participant in the proceeding. In this case, theparticipant is Mr Smith.22 Under s 7(2), a judicial officer or Registrar is empoweredto make a determination on the use of AVL in civil proceedings on the application ofany participant in the proceeding,23 or on its own motion.24 This enables the Court to20 Courts (Remote Participation) Act 2010, s 7(3)(b).21 See Taylor v Attorney-General, above n 5, at [24]–[25]; Taylor v Manager of Auckland Prison,above n 5, at [62]-[64].22 In Taylor v Manager of Auckland Prison, above n 5, at [63], "participant" was interpreted to meanthe party that wishes to appear by AVL. In that case, the application to compel another person toattend the hearing was rejected. In Taylor v Attorney-General, above n 5, "participant" was furtherconsidered at [23]–[24].23 Section 7(2)(b).24 Section 7(2)(a).direct attendance by AVL, which is consistent with the legislative framework in ss 5and 7 of the Act.[27] Second, the consent of the parties is specifically referred to in s 7(3)(b) as amatter to be taken into account in making a determination under s 7(1). Althoughconsent is a mandatory consideration to be taken into account, consent is not adeterminative factor. I consider ss 5 and 7 contemplate situations where the Courtmay, on its own motion, direct that AVL be used in certain proceedings even wherethe participant who is to appear by AVL does not consent. The Act envisages that theCourt retains the discretion in such situations to determine whether AVL is theappropriate method of appearance, taking into account the s 5 criteria, the s 7considerations, and what is in the overall interests of justice.[28] I have weighed the s 5 considerations and taken into account the respectiveparties' positions on consent. Mr Smith does not consent to AVL, but Correctionsdoes. Although Mr Smith's current security risk is assessed as low, there is still arequirement on Corrections to ensure officers are available to transport and secure MrSmith to and from Court, if his personal attendance is required. The overridingconsideration is that Mr Smith has a fair and reasonable opportunity to present hiscase. I am satisfied that his appearance by AVL for this particular hearing meets thatopportunity and the use of AVL in this case is in the interests of justice for both parties.Conclusion[29] I do not find that the interests of justice require Mr Smith to appear in personbefore the Court for the substantive hearing on this matter. I therefore make adetermination under s 7(2)(a) of the Courts (Remote Participation) Act 2010 that AVLmay be used in the hearing of this matter for the appearance of Mr Smith. In light ofthis finding, I do not need to address the costs of appearance.[30] I observe, as did Fitzgerald J in Taylor v Attorney-General,25 that thisconclusion does not mean that all judicial review proceedings of this nature should25 Taylor v Attorney-General, above n 5, at [30].occur by AVL rather than in person. This is a nuanced area, and each decision will befact-specific.Result[31] I decline to make an order under s 65(3) of the Corrections Act 2004. I directunder s 7(1) of the Courts (Remote Participation) Act 2010 that AVL may be used forthe appearance of Mr Smith in the substantive judicial review proceeding.Cull JSolicitors:Crown Law, Wellington for the Respondent