SMITH v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2472

SMITH v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2472 [30September 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-000138[2019] NZHC 2472UNDER The Judicial Review Procedure Act 2016 andthe New Zealand Bill of Rights Act 1990IN THE MATTER OF An application for Judicial ReviewBETWEEN PHILLIP JOHN SMITHApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 23 September 2019Counsel: Applicant in Person (via AVL)G M Taylor for the RespondentJudgment: 30 September 2019JUDGMENT OF DOOGUE JBackground[1] Phillip Smith was sentenced to life imprisonment on 6 August 1996 formurder, sexual offending, aggravated burglary and kidnapping offences. Mr Smithbecame eligible for parole on 30 March 2009. He appeared before the New ZealandParole Board on 31 March 2009 and parole was declined. His most recent appearancebefore the Parole Board was on 17 May 2019 where parole was again declined. Whileon temporary release from prison in November 2014, Mr Smith escaped toSouth America and is currently pursuing legal challenges relating to his repatriationand the convictions that followed for escaping and breaching the Passports Act 1992.[2] Harrison Christian is a journalist with Fairfax Media (Fairfax). On6 November 2017, Mr Christian sought the approval of the Chief Executive of theDepartment of Corrections (Corrections) to interview Mr Smith in relation to theconditions of his detention.1 In particular, he wanted to interview Mr Smith about his"legal claim that his human rights are being breached by keeping him in the highsecurity wing of the prison".[3] On 24 May 2018, Corrections declined Mr Christian's interview request. On11 July 2018, Mr Smith filed an application for judicial review of Correction'sdecision. On 4 October 2018, the proceedings settled on the basis that Correctionswould reconsider the decision.[4] When Mr Christian's request was reconsidered in late 2018, the scope of therequested interview had expanded further, and included:2(a) Mr Smith's offending, focusing on remorse and acceptance ofresponsibility;(b) Mr Smith's escape to South America in November 2014, including thereasons for his decision to escape and a particular focus on hisacknowledgement of wrongfulness and consequences it had for others;(c) Mr Smith's treatment by Corrections following his 2014 escape toSouth America, with a particular focus on decisions which had beenheld to be unlawful by the Courts or by the Office of the Ombudsman,with a theme of forgiveness for that decision making further balancedby recognising positive things Corrections has done and is doing;(d) Mr Smith's views on the importance of human rights considerations inthe management of offenders and the normalisation of prisons as a moreeffective means of meeting the objectives of successfully rehabilitating1 The decision is required to be made by the Chief Executive of the Department of Corrections orhis delegates. For convenience in this judgment I have referred simply to Corrections.2 These topics were proposed by Mr Smith in his submissions to Corrections dated15 October 2018.and reintegrating offenders and the paramount consideration of publicsafety;(e) the investigation being conducted by the United Nations, the highestappellate courts of the Republic of Brazil and the New ZealandCourt of Appeal, into the alleged unlawful conduct of the New Zealandand Brazilian authorities in November 2014 and the implications ofthose investigations (miscarriage of justice allegations in relation to hisconvictions for escape and breaches of the Passports Act 1992); and(f) Mr Smith's present circumstances, parole and plans moving forward.[5] Importantly, Mr Christian also requested that a photographer from Fairfax bepresent at the interview and that the interview be recorded by written notes, a recordingdevice and camera(s) for photographs and video content. It was proposed that anyinterview would be run in Fairfax newspapers and on the Stuff website. It was alsoproposed that any article would include written quotes attributed to Mr Smith,photographs of him and video clips.[6] Mr Christian's request was again declined by Corrections on 21 February 2019("the 21 February 2019 decision") and Mr Smith seeks judicial review of that decision.Mr Richard Waggott, the Deputy Chief Executive of Corrections, was the relevantdecision maker in this case and his decision is contained in a letter to Mr Christian,dated 21 February 2019. Mr Waggott first set out the relevant law followed by howhis decision was reached in light of the relevant considerations. He stated:Relevant ConsiderationsI am satisfied that Mr Smith understands the nature and purpose of yourproposed interview, including the photographic and video elements. I am alsosatisfied that Mr Smith understands the possible consequences of his beingpublished and/or broadcasted on the Stuff website.With respect to the need to protect the interests of people other than theprisoner concerned, the victims of Mr Smith's offending had been contactedfor their views after you made your request. The responses we received reflectstrong opposition to your request. I have placed great weight on the victim'sviews, and the need to protect their interests.With respect to the need to maintain the security and order of the prison, Iconsider that the security and order at Rimutaka Prison would not be greatlyaffected by the interview. However, there is a concern that the interview andsubsequent publication will raise Mr Smith's profile, as prisoners have accessto newspapers, television news and may be provided with printed articles fromthe internet. Additional media attention in these circumstances, particularlygiven the content of what Mr Smith will talk about, potentially increases therisk to Mr Smith's personal safety (and hence the risk of disorderly behaviourin the prison).In my view, these considerations point against the granting of your request. Ihave considered the relevant right under s 14 of NZBORA, and while this isimportant I consider it is outweighed by the factors noted in the precedingparagraphs.ConditionsI have considered therefore whether conditions could be imposed that wouldameliorate the concerns outlined in this letter. In my view, the answer to thatquestion is no. The condition I have considered is one that would require anyarticle following the interview to be totally anonymised so that Mr Smith'svictims cannot identify him as the subject of or contributor to the publication.This condition would also prohibit photos or videos of Mr SmithHowever, I do not think the condition of anonymity would be effective, asMr Smith's victims would be likely to be able to identify Mr Smith from thearticle even if anonymised, as they are aware of the interview request.Further, the risk with the condition is that the Department cannot control whatmight ultimately be published as a result of the interview. Moreover, thecondition relating to the content of what can be reported also means that thepurpose of the interview and topics covered would be very different from theone that you initially proposed, and the expanded list of topics provided byMr Smith (which you supported) which is centred on his experience andpersonal views.[7] Mr Smith says that in coming to the 21 February 2019 decision, Correctionsfailed to take into account relevant mandatory considerations. He also says that the21 February 2019 decision was both an unreasonable and disproportionate limitationon his right to freedom of expression under s 14 of the New Zealand Bill of Rights Act1990 (NZBORA).3The statutory power at issue[8] Mr Waggott's decision was made pursuant to regs 108 and 109 of theCorrections Regulations 2005 (the Regulations). Regulation 108 relevantly provides:3 Section 14 states that everyone has the right to freedom of expression, including the freedom toseek, receive, and impart information and opinions of any kind in any form.108 Restrictions on interviews and recordings(1) Without first obtaining the written approval of both the chiefexecutive and the prisoner concerned, no person may—(a) interview a prisoner, for the purpose of—(i) obtaining information and publishing or broadcastingit; or(ii) publishing or broadcasting a transcript or descriptionof the interview; or(b) make a sound recording of a prisoner, or an interview with aprisoner, for the purpose of—(i) broadcasting it; or(ii) publishing a transcript of it; or(c) make or take a film, photograph, videotape, or other visualrecording of a prisoner, for the purpose of publishing orbroadcasting it....[9] Determinations under reg 108 are made with reference to reg 109, whichprovides:109 Approvals(1) The chief executive must, in deciding whether to give approval underregulation 108, have regard to the need to—(a) protect the interests of people other than the prisonerconcerned; and(b) maintain the security and order of the prison concerned.(2) The chief executive must not give that approval unless satisfied thatthe prisoner understands—(a) the nature and purpose of the filming, interviewing,photographing, recording, or videotaping concerned; and(b) the possible consequences to the prisoner and other people ofthe publication or broadcasting of the film, interview,photograph, recording, transcript, or videotape concerned.(3) The chief executive may give that approval subject to any conditionsreasonably necessary to—(a) protect the interests of any person other than the prisoner; or(b) maintain the security and order of the prison.(4) Subclause (1) is subject to subclause (2).[10] Thus if a journalist wishes to interview a prisoner, make a sound recording ofan interview with a prisoner, or make or take pictures or footage recordings of aprisoner for the purposes of publication or broadcasting, the journalist must first obtainthe written approval of both Corrections and the prisoner concerned.4 The requirementfor written approval applies to interviews conducted by telephone or electronicmessage in addition to interviews in person.5 Mr Christian therefore needed approvalto make an audio and/or visual recording of any visit with Mr Smith for the purposesof the proposed interview.[11] As the power to grant an approval arises from regulations made under theCorrections Act 2004 (the Act), that power must also be exercised in accordance withthe relevant purposes and principles of the Act.6 The purpose of the Act is to improvepublic safety and contribute to the maintenance of a just society by, amongst otherthings, ensuring that sentences are administered in a safe, secure, humane and effectivemanner.7 In relation to the principles, the requirement to take into account the relevantprinciples is made express by s 6(2). The relevant principles in Mr Smith's particularcircumstances are:8(a) In decisions about the management of persons under the control orsupervision of Corrections, the maintenance of public safety is theparamount consideration.(b) In decisions relating to the management of persons under the control orsupervision of Corrections, victims' interests must be considered.4 Regulation 108(2). The requirement for written approval applies to an interview conducted bytelephone or electronic message as well as an interview in person. See reg 108(4)(b).5 Regulation 108(4)(b).6 Corrections Act 2004, ss 5 and 6.7 Section 5.8 Section 6(1)(a), (b), (f)(ii) and (g). See also Taylor v Chief Executive of the Department ofCorrections [2015] NZCA 477, [2015] NZAR 1648 at [31] [Taylor].(c) The corrections system must ensure the fair treatment of persons underthe control or supervision of Corrections by ensuring that decisionsmade about these persons are made in a fair and reasonable way.(d) Sentences must not be administered more restrictively than isreasonably necessary to ensure the maintenance of the law and safetyof the public, Corrections staff, and persons under the control orsupervision of Corrections.A balancing approach9[12] The correct approach when exercising the statutory power to decide whetherto grant a request to interview a prisoner is to take the right to freedom of expressionenshrined in s 14 of the NZBORA as the starting point. Corrections is then requiredto balance against that right any conflicting considerations, in particular the need toprotect the interests of people other than the prisoner concerned and the need tomaintain the security and order of the prison.10 In undertaking this balancing exercise,Corrections must also have regard to the purposes and principles of the Act.Corrections must also "ensure that any reasons given for declining the interview arerationally connected to the objectives of safety and good order".11 For presentpurposes it is not necessary to decide if Corrections is required to carry out aproportionality analysis.12Grounds of review[13] Mr Smith seeks judicial review of Corrections' refusal to grant Mr Christian'sinterview request on the following grounds:(a) The 21 February 2019 decision was unlawful on the groundsCorrections failed to take into account implied mandatory relevantconsiderations.9 This was the approach adopted in Taylor, above n 8, at [72].10 These being the two mandatory considerations referred to in reg 109(1).11 Taylor, above n 8, at [86].12 At [83]–[85].(b) The 21 February 2019 decision was unlawful on the grounds ofunreasonableness.(c) The 21 February 2019 decision constituted a disproportionatelimitation on Mr Smith's freedom of expression under s 14 of theNZBORA.Failure to consider relevant considerations[14] Mr Smith submits Corrections failed to take into consideration the following"implied mandatory factors", which he says impact on the weight that couldreasonably be given to the effect of an interview on his victims:(a) the length of time that has passed since his murder conviction;(b) the fact he became eligible for parole in March 2009;(c) the fact the victim of his offending who is likely to be most affected bythe interview now lives in Australia;(d) the punitive views of his victims; and(e) the fact his victims have participated in interviews about his offending.[15] The starting point for this ground of judicial review is the wording in thestatutory power in question.13[16] Regulation 109(1) requires the decision-maker to have regard to twomandatory factors: the need to protect the interests of people other than the prisonerconcerned and the need to maintain the security and order of the prison. There are noother factors expressly listed. As already noted, in exercising the discretion underreg 109, the mandatory factors must be balanced against the prisoner's right tofreedom of expression. As such, that right (and any encroachment upon it) is also amandatory relevant consideration.1413 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 183.14 Taylor, above n 8, at [84].[17] In order to guide his decision-making process, Mr Waggott used a standardform prepared by Corrections entitled "Request for Permission to Interview aPrisoner". That form, which is prepared by officials for the benefit of the ultimatedecision-maker, explains the background to the request, the nature of the request andthe relevant statutory powers invoked. It then goes on to outline the three mandatoryrelevant considerations discussed above. For present purposes, it is Mr Waggott'sconsideration of the need to protect Mr Smith's victims' interests that is the focus ofthis ground of review.[18] In respect of the consideration of the need to protect the interests of peopleother than the prisoner concerned, the standard form provided the following:19 Is the interviewexpected to have anegative impact onthe offender'sregistered victims, orany other victims?What impact is itlikely to have?Consideration should begiven to whether concernsof victims are legitimateand reasonable and howthe Department couldallay those concerns.Yes. Phillip Smith has an extensive criminal historydating to 1990, which include (sic) presenting afirearm at a person, assault, offensive/disturbing useof a telephone, theft, fraud, driving offences,kidnapping, breaking and entering, indecent assaulton boy under 12, indecent act on boy 12-16, unlawfulsexual connection and murder. He is subject to victimnotification processes.Mr Smith's registered victims continue to be severelyaffected by his actions. (See, for example,https://www.stuff.co.nz/national/crime/98495749/the-only-human-right-he-should-have-is-to-breathe-victims-sister-on-killer-phillip-smith.)More information is provided in section 20.20 Have the offender'svictims beencontacted in regardsto the request? If not,why?Mr Smith has [redacted] registered victims. Theywere approached in relation to the original request on6 November 2017 for an interview.[Redacted]Due to the severe impact that is evident, theregistered victims were not re-consulted on thereconsideration (which includes an expandedintended scope of interview, which would includeMr Smith's offending). Their views are assessed asbeing unlikely to change.As one victim said in the newspaper article referredto above, every time Mr Smith is in the news itbrings all the grief back and all the horriblememories.21 What, if any, impactcould the interviewhave on otherprisoners?For example, is theinterview likely to causedisruption in the unit oradversely affect the day today management of otherprisoners?The Prison Director has advised that Mr Smith wouldbe taken out of his unit for the interview to takeplace, and that it would occur in the Intervention andSupport Unit. She notes that the interview andsubsequent publication will raise the profile of theprisoner as prisoners have access to newspapers,television news and may be provided with printedarticles from the internet. Prisoners still have a highlevel of resentment towards Mr Smith following hisescape to Brazil which greatly affected the temporaryrelease process, with threats having been madeagainst him. Additional media attention in thesecircumstances potentially increases the risk toMr Smith's personal safety (and hence the risk todisorderly behaviour in the prison).In addition to the fact of an interview, other prisonersmay take umbrage at Mr Smith giving views on howdecisions about prisoners should be made, and howrehabilitation and reintegration can be achieved, thusincreasing this risk.22 What, if any, impactcould the interviewhave on prison staff?The Prison Director has advised that given the profileof the prisoner, [redacted].23 Are there any otherpeople whoseinterests could beaffected by theproposed interview?No other people are identified as being potentiallyimpacted.24 Are there anyconditions that couldbe imposed whichwould avoid thedescribed effects onother people?(regulation 109(3))It is unlikely that any such condition that could beimposed would avoid the described effects on otherpeople. A condition that might be considered is onerequiring any subsequent article to be totallyanonymised, so that Mr Smith's victims cannotidentify him as the subject of or contributor to thepublication. This would also prohibit photos orvideos of Mr Smith, and would require Mr Christianto anonymise Mr Smith's name and remove anyidentifying particulars from the article that mightcause a victim to identify him as the interviewee (i.e.the circumstances of his escape to Brazil). However,the risk with this condition is the Department cannotcontrol what a journalist might choose to publish, itcan only restrict access to the prison and prisoners.You would need to rely on a signed undertaking fromMr Christian to comply with such conditions, and theDepartment would have little recourse if such anundertaking was breached. Restricting the content ofwhat could be reported also means the purpose andnature of the interview and topics covered would bevery different to the one Mr Christian and Mr Smithhave proposed, which is centered (sic) on Mr Smith'sexperience and personal views.Additionally Mr Smith's victims are likely to be ableto identify Mr Smith from the article even ifanonymised, as they are already aware of theinterview request. Note that the topic outlined above"views on the importance of human rightsconsiderations in managing prisoners, and ideas forthe successful rehabilitation and reintegration ofoffenders" could be the subject of interview andthereafter reported on in a sufficiently anonymisedway, as it is a more general topic. It would be up toMr Christian whether he still wishes an interview togo ahead on that basis.Other conditions (i.e. an interview by telephone only)would not shield victims from the adverseconsequences of publication of an interview orarticle.[19] It was in light of this information that Mr Waggott "placed great weight on thevictim's views, and the need to protect their interests".[20] In my view, the first two factors raised by Mr Smith at [14] above cannot becharacterised as "implied mandatory factors". Victims' trauma does not necessarilyabate with either effluxion of time nor distance from the offender.[21] Mr Smith relies on the fact the Court of Appeal in Taylor v Chief Executive ofthe Department of Corrections considered only minimal weight should be placed onpotential harm to the prison officers (who were victims of Mr Taylor's offending) froma televised interview some eight years after he had confronted them with a firearm.15However, the Court went on to expressly state Mr Taylor's case was in a "totallydifferent category" from one in which a prisoner's victims had been subjected toserious physical violence or sexual violation.16 Mr Smith's offending is such a case.15 Taylor, above n 8, at [102].16 At [103].[22] Furthermore, the fact Mr Smith became eligible for parole in March 2009 isirrelevant in respect of Corrections' mandatory considerations under reg 109. He isstill subject to a sentence of life imprisonment. Until such a time as the Parole Boarddecides otherwise, he will be subject to Corrections' supervision and control.[23] Insofar as the remaining three identified factors raised by Mr Smith at [14]above impact on the weight that could reasonably be given to the effect of an interviewon Mr Smith's victims, I am satisfied they were taken into account by Mr Waggott, orare implicit in his decision. Mr Waggott was aware of who Mr Smith's registeredvictims are, contacted them, and was provided with the views of one of those victims.Whether that victim's views were particularly punitive, and therefore what weightshould be placed on those views, was, at least in respect of this ground of review, amatter for him. Similarly, the weight that should be placed on the fact some ofMr Smith's victims had previously commented on his offending was a matter forMr Waggott. On this latter point, I simply note that this Court does not have sufficientinformation before it to identify how those comments were adduced. In contrast,Mr Waggott had the clear views of one of Mr Smith's victims on which he could basehis decision.[24] Accordingly, I am satisfied Corrections did not fail to take into account anyrelevant mandatory consideration in coming to its 21 February 2019 decision.Unreasonableness[25] Mr Smith submits Corrections' attempt to control the mode of hiscommunication with Mr Christian (to confine it to written correspondence as opposedto a face-to-face, recorded interview) was unreasonable. Ms Taylor for Correctionssubmits that it was reasonable for Corrections to conclude that a face-to-face interview,accompanied by photos and/or a video recording, would have a different impact onvictims than a story based solely on written correspondence with Mr Smith.Legal principles[26] The lawfulness of a decision can be challenged where it is unreasonable in anadministrative law sense. Examples of unreasonable decisions in this context includewhere a decision-maker had more than one option but the decision reached wasunsupported by a reasoned justification,17 or where the decision was sodisproportionate in its weighing of competing factors that the outcome wasunreasonable.18 As such, conclusions that are unsupported by the evidence or are notrationally connected to the evidence are unreasonable in administrative law terms.19Intensity of review[27] As a preliminary matter, I turn to the issue of the intensity of review as set outin Watson v Chief Executive of the Department of Corrections.20 In that case,Mr Watson successfully obtained judicial review of a decision by Correctionsdeclining his application to be interviewed by a journalist. Mr Watson had beenconvicted of the murder of two teenagers and sentenced to life imprisonment with aminimum period of imprisonment of 17 years. He had exhausted all his appeal rightsand his application for the Royal Prerogative of Mercy had been rejected. Theinterview was sought because the journalist wished to write an article on Mr Watson'scase and to investigate his claim that he was a victim of a miscarriage of justice[28] Dunningham J found that the intensity of review depends on the subject matter,and the range of rational decisions available to the decision-maker depends upon thecircumstances of the case.21 In the prison context, Dunningham J also distinguishedbetween the mandatory considerations in reg 109 as follows:[48] To summarise, in the prison context, I accept it is appropriate to accordweight to the Chief Executive's assessment of what is required to ensure thesecurity and good order of the prison. I also accept that a prisoner's right tofreedom of expression is necessarily limited, both because that is inherent inthe punishment imposed, and for reasons related to the effectiveadministration of the prison.[49] However, the courts have regularly recognised that the right to expressconcerns about an alleged miscarriage of justice is a legitimate exception tothose restrictions and there is both an individual, and a public, interest infacilitating a prisoner's ability to ventilate these issues where that can be donein a responsible and considered way. In this area, the Chief Executive is not17 See C v Medical Council of New Zealand [2013] NZHC 825, [2013] NZAR 712.18 See Shaw v Attorney-General (No 2) [2003] NZAR 216 (HC).19 Taylor, above n 8, at [101].20 Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227 [Watson (No 1)].21 At [32]–[33], citing R (Daly) v Secretary of State for the Home Department [2001] UKHL 26,(2001) 2 AC 532 at [28] per Lord Steyn; and Pham v Secretary of State for the Home Department(Open Society Justice Initiative Intervening) [2015] UKSC 19, [2015] 1 WLR 1591.in any better position than the courts to judge how concerns about the interestsof the victims should be weighed against the protection of the right affirmedin s 14 of NZBORA.Mr Waggott's affidavit[29] Mr Waggott provided the Court with an affidavit dated 7 June 2019. In it, heprovided some context for his 21 February 2019 decision and the factors he took intoaccount in coming to that decision. Unsurprisingly, he explained that he consideredthe three mandatory considerations outlined on the standard form used by Correctionsfor requests to interview a prisoner. In respect of the interests of people other than theprisoner concerned, Mr Waggott stated the following:15. The severe impact this interview would have on at least one of thevictims was clear from both the response and the comments in theolder article, which reflected the impact that media coverage ofMr Smith has had in the past. I also considered the request for photosand/or video to accompany the article would lift the level of visibilityand exposure, which would exacerbate the impact.16. I placed a large amount of weight on the victim's views, and the needto protect all of their interests.[30] Ordinarily in judicial review proceedings, the Court must come to itsdetermination on the basis of the material before the decision-maker at the time of thedecision.22 If context or explanatory reasons are provided by way of affidavit after thefact, it must normally be shown that the context or explanatory reasons werecontemporaneous with the decision itself. If that cannot be shown, the Court will givelittle weight to such evidence.23[31] The policy behind this general principle is self-evident. As the Court said inTaylor, "the decision-maker must refrain from descending into ex post factojustification in an attempt to improve on the original decision."24 Otherwise, anaffidavit prepared after a decision may seek to bolster the original decision rather than22 Taylor, above n 8, at [33], citing Roussel Uclaf Australia Pty Ltd v Pharmaceutical ManagementAgency Ltd [1997] 1 NZLR 650 (CA) at 658; Discount Brands Ltd v Northcote Mainstreet Inc[2004] 3 NZLR 619 (CA) at [46]; and Palmerston North City Council v Drury [2007] NZCA 521,[2008] NZRMA 90 at [62]–[63].23 At [33], citing Commissioner of Inland Revenue v Canterbury Frozen Meat Co Ltd [1994] 2 NZLR681 (CA) at 691.24 At [33], citing Manukau City Council v Ports of Auckland Ltd [2000] 1 NZLR 1 (PC) at 10; andMackenzie District Council v Electricity Corp of New Zealand [1992] 3 NZLR 41 (CA) at 48.reflect the actual views of, and process taken by, the decision-maker at the time thedecision was made.[32] There is nothing on the face of the decision itself addressing the additionalimpact on the victims of photos and/or video footage of an interview betweenMr Smith and Mr Christian. Nor is there anything in the standard Corrections formused to brief Mr Waggott on Mr Christian's interview request that suggestsMr Waggott considered that any photos and/or video footage of the interviewaccompanying any subsequent article would lift the level of visibility and exposure ofMr Smith and thereby exacerbate the impact of publication on his victims.Accordingly, there is no evidence before the Court that this factor influenced hisultimate decision to refuse Mr Christian's interview request. This considerationappears, as Mr Smith says, "after the fact". I therefore cannot accept this explanationas being operative at the time Mr Waggott made his decision and must put it to oneside.[33] In order to determine whether Mr Waggott's decision was unreasonable, it isnecessary to look more closely at Mr Christian's request. As outlined at [4] above,Mr Christian sought to interview Mr Smith on six discreet matters. Only the firstmatter — Mr Smith's offending — directly related to his victims and their families.The other topics related to his November 2014 escape to South America (including analleged miscarriage of justice arising from his repatriation, and his treatment in prisonsince then), the importance of human rights considerations in the management ofoffenders, and his current circumstances and plans going forward.[34] It is clear from the 21 February 2019 decision that Mr Waggott was influencedby two factors: the impact on Mr Smith's victims and the risk to Mr Smith's personalsafety (and therefore the risk of disorderly behaviour in the prison). Mr Waggott didnot consider that any conditions would ameliorate his concerns. In particular,anonymisation was not possible given the uniqueness of Mr Smith's offending and thepurpose of the interview; his victims would be able to identify him regardless. Inaddition, Corrections could not control the content of what would ultimately bepublished. It was on this basis that Mr Waggott declined Mr Christian's request.[35] Two aspects of the standard Corrections form used to brief Mr Waggott aretherefore relevant to the question of unreasonableness. First, Mr Waggott was advisedthat regardless of the mode of interview, Mr Smith's victims would likely benegatively impacted by any resulting article:Other conditions (i.e. an interview by telephone only) would not shield victimsfrom the adverse consequences of publication of an interview or article.[36] Second, he was advised that if the interview request were declined, Mr Smithhad other ways to express his opinion:Mr Smith is also able to write to reporters and express his opinion about thetopics he proposes to cover in the interview, if he wishes - subject to securityissues and knowingly false allegations against officers.[37] Mr Waggott was therefore aware of the fact that any publicity given toMr Smith would likely cause some distress to his victims and their families. This harmwould not result solely from the publication of photos or video footage of theinterview. Mr Smith would still be able to communicate with Mr Christian in writingand discuss his offending and his victims. This could then be published using olderphotos or videos of Mr Smith.[38] Mr Smith submits that this case is similar to Watson where Corrections denieda journalist's request for a face-to-face interview but stated that Mr Watson couldnevertheless convey to the journalist what would have been discussed in such aninterview in written form. Dunningham J stated:[65] In this case, there is no justification articulated for limitingMr Watson's contact with the media to written communication for the purposeof preparing an article, rather than a direct interview. Both may result in anarticle which could cause the victims distress if it challenges the reliability ofMr Watson's conviction or reiterates Mr Watson's denial of the offending.Nowhere does the Chief Executive identify why a face-to-face interview(which is Mr White's preferred method of hearing Mr Watson's side of thestory), is more harmful to the victims than an article inconveniently stitchedtogether through a protracted series of written communications.[39] Corrections submit that Watson is distinguishable on the basis that in that case,the cause of harm was the continued denial of offending whereas in Mr Smith's case,the cause of harm is said to be the exposure of Mr Smith in the media. If I do notconsider Watson distinguishable, Corrections submit that it should not be followed inthis case as it is reasonable for a decision-maker to conclude media publication of aninterview is likely to have a greater impact on victims than publication of writtencorrespondence.[40] I do not agree. Because I reject Mr Waggott's affidavit evidence on the basisI do not consider his stated reasons to have been operative at the time of his decision,I am of the view that the same implications in Watson apply here. This is becausepublication of an article about Mr Smith was inevitable. This is evidenced by the factMr Christian's initial interview request did not include a request for photos/videofootage meaning that Mr Christian was content for any resulting article to be basedsolely on a written record of the interview. Any resulting article could still have beenaccompanied by file photos or older video footage and may have garnered significantpublicity in its own right. No doubt it would have also caused Mr Smith's victimssome level of distress; the same outcome as if video footage of the interview wouldhave been published.[41] In addition, I note that the second reason for Corrections refusingMr Christian's request is similarly unsupported by the evidence. The risk toMr Smith's personal safety (and therefore the risk of disorderly behaviour in theprison) was linked to publicity being given to Mr Smith's views. Because publicitywould result from any article regardless of how Mr Smith's views are conveyed toMr Christian, Corrections' decision to decline a face-to-face interview on this groundwas irrational.[42] Therefore, it is my view that the two primary reasons given to declineMr Christian's interview request (the interests of Mr Smith's victims and the risk tohis personal safety) were not rationally connected to the evidence before Mr Waggottat the time the 21 February 2019 decision was made. Accordingly, Mr Waggott'sdecision is unreasonable in administrative law terms.Disproportionality[43] Mr Smith's third ground of judicial review alleges that Mr Waggott's refusalto grant Mr Christian's interview request was a disproportionate limitation onMr Smith's right to freedom of expression.[44] Having found that Corrections' decision was unreasonable, I strictly need notdetermine whether the refusal was a disproportionate limitation on Mr Smith's rightto freedom of expression. This is because in Taylor, the Court of Appeal noted that itis not clear whether a full proportionality analysis is required for discretionaryadministrative decisions.25 However, the Court went on to say:26It is unnecessary for us to determine whether the approach to administrativedecision-making under the Bill of Rights should always embrace a fullproportionality analysis of the type adopted in Hansen. But we are attractedto the view that s 5 of the Bill of Rights requires at least some form ofproportionality analysis in the consideration of requests for interviews underreg 109.[45] In light of this guidance and given the interconnectedness between the groundsof unreasonableness and disproportionality, I address this ground of review below.Legal principles[46] Ordinarily when considering, under s 5 of the NZBORA, whether legislationimposes a reasonable limit on a right guaranteed by that Act, a proportionality test isrequired.27 Much has been written on this test and I need not repeat it here. It sufficesto say that in Hansen v R, a majority of the Supreme Court adopted the proportionalitytest established by the Supreme Court of Canada in R v Oakes28 and R v Chaulk:29 anylimit on a guaranteed right should impair the right as little as possible and the meanschosen to achieve the objective of the impugned provision must be rationallyconnected to that objective.30[47] Further, in Attorney-General v Smith, the Court of Appeal endorsed theprinciple that the value of a person's "expression" is relevant to whether limitationson it can be demonstrably justified under s 5 of the NZBORA.31 The Court endorsedthe House of Lords' view in Campbell v MGN Ltd that "there are undoubtedly different25 Taylor, above n 8, at [80]–[83].26 At [84].27 At [76].28 R v Oakes [1986] 1 SCR 103 (SCC).29 R v Chaulk [1990] 3 SCR 1303 (SCC).30 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [64] per Blanchard J, at [120]–[124] perTipping J, at [203]–[205] per McGrath J and at [272] per Anderson J.31 Attorney-General v Smith [2018] NZCA 24, [2018] 2 NZLR 899 at [38]. See also Taylor, aboven 8, at [70].types of speech...some of which are more deserving of protection in a democraticsociety than others."32 Some types of speech will be outweighed by virtue of thedeprivation of their liberty inherent in a sentence of imprisonment.33[48] In Taylor, the Court of Appeal outlined the proportionality test in respect of reg109 of the Regulations as follows:[85] Where, as here, there is a range of options for interviewing prisonersand the decision-maker has the ability to impose conditions on any form ofinterview granted, the decision-maker is obliged to consider whether theobjectives reflected in the mandatory considerations in reg 109(1) could bemet by granting an interview in a format that sufficiently addresses andmitigates the identified risks to safety and good order. That approach isconsistent with minimising any impairment of the right to freedom ofexpression.Analysis[49] It is necessary to weigh the "value" of the types of speech proposed inMr Christian's interview request. There are varying levels of public interest attachedto each of the topics on which Mr Christian proposed to interview Mr Smith. This wasoutlined by Corrections officials in the standard form used to brief Mr Waggott, whichstated:37 Is there a particularpublic interest in theproposed interviewtopic/purpose? Whatis the level of thepublic interest?There is some public interest in the proposed interviewtopics, insofar as they raise issues relating toprisoners' human rights, their treatment andconditions of detention, and ways of rehabilitating andreintegrating offenders — both generally andspecifically in relation to Mr Smith. The level ofpublic interest in Mr Smith's particular speech is notassessed to be high, because the general issues areraised and ventilated on a not infrequent basis, andbecause Mr Smith's particular treatment and caseshave already been widely covered.There is no genuine public interest in Mr Smith'srecounting of his offending and his escape, and hispresent circumstances and plans moving forward. Thefact he is a well-known prisoner does not elevate thesematters into matters of public interest.32 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 at [148].33 Watson v Chief Executive of the Department of Corrections (No 2) [2016] NZHC 1996 at [40][Watson (No 2)], citing R v Secretary of State for the Home Department (ex parte Simms) [2000]2 AC 115, [1999] 3 WLR 328 at 112; and Television New Zealand v Attorney General (2004) 8HRNZ 45 (CA).There is a public interest in airing potentialmiscarriages of justice and ensuring they do not occur.This is addressed in section 38.[50] Further, in respect of the potential miscarriage of justice, officials notifiedMr Waggott that the alleged miscarriage of justice arising from Mr Smith'srepatriation is currently before the Court of Appeal and the courts in Brazil, as well asthe subject of a United Nations investigation.[51] Mr Smith submits that the public interest in the proposed interview topics ishigh for the following reasons:(a) there has been repeated public criticism of him by his victims for notshowing remorse for his offending;(b) his escape to South America resulted in a Government Inquiry and thelevel of public debate was high;(c) his successes in the courts in respect of various human rights claimsdemonstrate there is a legitimate interest in debating the treatment ofprisoners; and(d) it is in the public's interests that potential miscarriages of justice bebrought to light.[52] Mr Smith submits that these public interest considerations outweigh theinterests of his victims such that his right to freedom of expression under s 14 of theNZBORA should prevail.[53] Corrections sensibly acknowledges that there may be some public interest inthe topics Mr Christian initially proposed when he first approached Corrections on 6November 2017: prisoners' rights and Mr Smith's treatment following his escape toSouth America and subsequent repatriation to New Zealand. There is undoubtedlypublic interest in knowing how prisoners are managed and treated, particularlybecause the vast majority of prisoners will eventually be reintegrated into thecommunity.[54] As for the remaining interview topics, Corrections submits there is low publicinterest and that airing them would not advance any public debate on a matter of publicimportance. I agree. Mr Smith's offending and escape to South America have bothpreviously attracted considerable publicity and generated public debate. However,they are not topics in respect of which there is new information that would have asimilar effect. I therefore consider the public interest in these topics to be low.[55] Further, I consider there to be no public interest whatsoever in Mr Smith'scurrent circumstances and his plans going forward. This is an entirely private matter.[56] As for Mr Smith's miscarriage of justice claims, Mr Smith's circumstances canbe distinguished from those in Watson where Mr Watson had exhausted his avenuesof appeal but still maintained that a miscarriage of justice had occurred. Investigativejournalism was therefore necessary to assist Mr Watson in proving his case.34Mr Smith's conviction appeal is still being considered by the courts and thus he hasnot yet exhausted his appeal rights. He does not require Mr Christian's assistance todraw public attention to his claims.[57] Overall, there were aspects of Mr Christian's interview request to which therewas attached a high level of public interest, and others which did not. It was necessaryfor Mr Waggott to consider the proposed interview topics individually rather than as apackage, particularly because of the differing "values" of speech each topic attracted.In light of this assessment, I do not consider Mr Waggott's complete refusal to grantMr Christian's interview request to be proportionate to Mr Smith's right to freedomof expression.[58] As already discussed, Mr Waggott considered that he could not impose anyconditions on Mr Christian's interview request that would allay his concerns.Accordingly, he considered a complete ban on an interview to be a justified andproportionate limitation on Mr Smith's right to freedom of expression. In my view, itwas possible to impose conditions on any interview between Mr Christian andMr Smith to limit any potential adverse impact on Mr Smith's victims.34 Mallon J noted the importance of investigative journalism in this respect in Watson (No 2), aboven 33, at [25].[59] While I accept that Mr Smith's victims may be caused distress by seeingMr Smith in the media, that factor, in and of itself, is not sufficient to completelydisplace Mr Smith's right to freedom of expression. Nor is it determinative ofCorrections' approach to applying reg 109 of the Regulations. If it were, reg 109would effectively trump s 14 of the NZBORA.[60] Nevertheless, limiting a prisoner's right to freedom of expression may bejustified where publicity of that prisoner's views is highly likely, and the prisonerwishes to speak solely about his or her victims and offending. Therefore, a conditionthat Mr Smith refrain from discussing his offending and his victims would haveconstituted a reasonable limitation on Mr Smith's right to freedom of expression.35 Aswould have a condition limiting the interview to the topics in Mr Christian's originalrequest. I note that this was specifically suggested by officials in their briefing toMr Waggott.[61] It would have also been a reasonable limitation, had Corrections properlyarticulated the basis on which it distinguished between the effect of an articleincorporating photos and video content and one based solely on writtencorrespondence, for Mr Christian to have been permitted to take a sound recording ofthe interview for the purposes of having an accurate record on which to write an article,but not for the purposes of publication.[62] For these reasons, I consider Mr Waggott's refusal to grant Mr Christian'sinterview request was a disproportionate limitation on Mr Smith's right to freedom ofexpression.35 The High Court of England and Wales found this to be a reasonable limitation in R (BBC) vSecretary of State for Justice [2012] EWHC 13 (Admin), [2013] 1 WLR 964. By refusing to grantan interview request without having considered less restrictive alternatives to achieve his objectiveof protecting victims, the Minister's decision breached the principle of proportionality.Appropriate relief[63] In Mr Smith's statement of claim, he seeks the following relief:(a) a declaration that the 21 February 2019 decision breached s 14 of theNZBORA;(b) a declaration that the 21 February 2019 decision failed to take intoconsideration implied mandatory relevancies;(c) an order quashing the 21 February 2019 decision and remitting it backto Corrections for reconsideration;(d) any other declaration the Court sees fit; and(e) costs, or where costs cannot be ordered, reasonable disbursements.[64] When judicial review is granted the usual remedy is to quash the decision andrefer it back to the decision-maker for reconsideration in light of the Court's decision.A declaration is a discretionary remedy. Quite apart from the fact I did not find thatCorrections failed to consider any implied mandatory relevancies, I am not satisfied adeclaration is necessary in these circumstances. This judgment recognises Mr Smith'srights and Corrections can be expected to adhere to it.Result[65] Corrections' 21 February 2019 decision declining Mr Christian's request tointerview Mr Smith is quashed. Corrections is directed to reconsider the decision inlight of this judgment.[66] Mr Smith did not establish jurisdiction nor particularise his claim fordisbursements. He has 21 days to file a memorandum addressing these matters.Corrections will have a further 21 days within which to reply. This matter will thenbe dealt with on the papers._________________________Doogue JSolicitors:Crown Law Office, Wellington