KUMAR v THE CHIEF EXECUTIVE, ARA POUTAMA AOTEAROA DEPARTMENT OF CORRECTIONS [2022] NZHC 3414

KUMAR v THE CHIEF EXECUTIVE, ARA POUTAMA AOTEAROA DEPARTMENT OF CORRECTIONS[2022] NZHC 3414 [14 December 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV 2021-419-000089[2022] NZHC 3414UNDER The Judicial Review Procedure Act 2016BETWEEN PRAVIN FIA HARI PRASAD KUMARApplicantAND THE CHIEF EXECUTIVE, ARAPOUTAMA AOTEAROA DEPARTMENTOF CORRECTIONSRespondentHearing: 30 November 2022Appearances: S Abdale for the Applicant(Applicant in person by VMR)U Keller for the RespondentJudgment: 14 December 2022JUDGMENT OF TAHANA JThis judgment was delivered by me on 14 December 2022 at 4.00pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Crown Law, WellingtonCrescent Chambers, HamiltonIntroduction[1] Mr Kumar is currently in custody in the Karaka unit at Waikeria prison.Mr Kumar claims that the Department of Corrections (Corrections):(a) breached his right to freedom of expression under s 14 of the NewZealand Bill of Rights Act 1990 (NZ Bill of Rights Act) by failing tosend some of his mail; and(b) withheld his mail in contravention of s 108 of the Corrections Act 2004(the Corrections Act).[2] Mr Kumar seeks an order that "outgoing mail be checked and sent/posted tothe intended recipients without delay [and] that outgoing mails don't get withheld byany of the Corrections' employees."[3] Corrections denies withholding mail except for two pieces which it says werewithheld in accordance with s 108 of the Corrections Act. Corrections say the orderssought are unwarranted, unenforceable and would amount to micro-management ofprisons.Factual background[4] There is a "Prisons Operations Manual" (the Manual) which prescribes theprocedures for prison mail. This includes a requirement that any withheld mail mustbe placed in the prisoner's property and the prisoner informed in writing in theprescribed form1.[5] Mr Kumar made a number of complaints that his mail had been arbitrarilywithheld by the prison.1 C.01.01.08 of the Manual.First complaint[6] On 27 November 2019, Mr Kumar complained that mail was being withheld.Corrections' response to the complaint is recorded in the complaint form:Had interview with Kumar and informed that all his mails have beenforwarded to CSM [Custodial System Manager] for VNR [Victim NotificationRegister] check and was suggested to go to Intel and Security, it is alsorecommended that all mail go to Wellington will be checked before sendingthem on.[7] The form then notes that a further interview was held with Mr Kumar abouthow his mail is processed and "he is happy about it" and the "situation is resolved andwill be closed."Second complaint[8] On 26 January 2020 Mr Kumar made a further complaint about mail beingwithheld. Mr Kumar was interviewed, and he provided a list of recipients who hadnot received his mail, which was forwarded to the Custodial System Manager (CSM).The complaint form then records that if any mail is withheld, Mr Kumar will beinformed. If he does not receive a letter, then the mail has not been withheld.Establishment of national register and unit register[9] In response to the above complaints, on 15 July 2020 Corrections set up aregister to record all of Mr Kumar's incoming and outgoing mail (the nationalregister). There is a further register for all prisoners at Waikeria prison which recordsall mail the prison withholds (the prison register).Third complaint[10] Mr Kumar made a third complaint on 7 January 2021 that mail sent between18 October and 16 December 2020 had been withheld. Mr Kumar provided a list ofthe addresses of the mail and this list was provided to the CSM.[11] On 11 January 2021, a register was established in the Karaka unit to recordMr Kumar's outgoing mail before the mail was sent to the CSM (the unit register).[12] Mr Kumar was interviewed again on 27 January 2021 and was informed thatfour pieces of mail which had been identified had been sent. Mr Kumar then raisedthe issue of a mail dated 6 January 2021 which had not been received by the addressee.That mail had not been recorded in the unit register. The complaint was closed andMr Kumar said he "would leave it at this stage."Fourth complaint[13] On 29 October 2021, Mr Kumar complained that addressees of his mail hadnot received the mail. He was informed that the unit records indicated the mail hadnot been withheld and the complaint was closed.[14] Mr Kumar was again interviewed and four pieces of mail were identified andconfirmed as having been sent out. One letter dated 6 January 2021 that Mr Kumarsaid was not sent was not recorded in the register. Mr Kumar was advised thecomplaint would be closed and he had the right to contact the Office of the Inspectorateif he was not happy with the result.Complaint to Inspectorate and Ombudsman[15] Mr Kumar subsequently complained to the Office of the Inspectorate and theOmbudsman about the alleged withholding of mail. Those complaints were notupheld.Withheld mail[16] Corrections acknowledges that it withheld two pieces of mail – one addressedto a Ms Vermont and the other addressed to the manager at Wordsworth.[17] On 16 July 2021 Mr Kumar sent a letter to a Ms Vermont. The prison withheldthe letter and informed Mr Kumar in a letter dated 21 July 2021 that it had beenwithheld pursuant to s 108(1)(d)(iii) of the Corrections Act, the reason being:Security Issue – you continue to request people not to notify the prison if theydon't want contact but to e-mail you direct.[18] Corrections say the letter to Ms Vermont was placed in Mr Kumar's propertyin accordance with the Manual at C.01.01.08.[19] On 13 January 2022, Mr Kumar requested that Corrections send the aboveletter to his barrister. Corrections has provided copies of the courier tracking website,which shows it was delivered on 15 January 2022 and signed for by "Steve".Mr Kumar's counsel says it was never received by her office.[20] Mr Kumar was notified on 20 April 2022 that a further letter to the manager atWordsworth was withheld. This notification records that:DescriptionYou are trying to use a 3rd party to pass the two cards to a women [sic]. Yourprevious two letters have been returned to you.Withholding groundSection 108(1)(a) – The other person at that address asked the manager to doso.[21] Mr De Wet Cronje provided affidavit evidence that the letter to Wordsworthwas referred to the prison director on 14 April 2022 by the National PrisonCommunications Team with the following comment:Prisoner is trying to use a 3rd party to pass a letter to a woman, there is noRequest for No contact alert on file but his two previous letters have beenreturned.[22] Mr De Wet Cronje says that the prison register of withheld and copied mailrecords that this withheld mail was sent to Mr Kumar's property.[23] Mr Kumar provided a copy of the register of his property as at 28 November2022. The letter is not recorded in that register.Affadavits[24] Affidavits were filed in support of Mr Kumar's application:•(a) by Mr Arthur Taylor who says he did not receive a letter dated17 January 2021 that Mr Kumar says he sent to him; and(b) by Ms Tyler-Rose Keatley, barrister which attaches two emails fromtwo persons who say that they had not received mail from Mr Kumar.(c) Corrections filed two affidavits of Mr De Wet Cronje in response toMr Kumar's claim.Statutory frameworkCorrections Act[25] Section 5 of the Corrections Act sets out the purpose of the corrections system,being to improve public safety and contribute to the maintenance of a just society by,amongst other things:(a) ensuring that the sentences are administered in a safe, secure, humaneand effective manner; and(b) providing for Corrections facilities to be operated in accordance withrules set out in the Corrections Act, regulations made under the Act, andbased upon the United Nations Standard Minimum Rules for theTreatment of Prisoners.2[26] Section 6 sets out the principles that guide the operations of the correctionssystem and which must be taken into account when exercising powers under the Act.The following principles are relevant to this case:(a) the maintenance of public safety is the paramount consideration indecisions about the management of persons under control orsupervision;3 and2 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson MandelaRules) GA Res 70/175 (2015).3 Correction Act 2004, s 6(1)(a).(b) contact between prisoners and their families must be encouraged andsupported, so far is reasonable and practicable and within the resourcesavailable and to the extent that contact is consistent with themaintenance of safety and security requirements.4[27] Section 6(2) expressly states that persons who exercise powers and dutiesunder the Corrections Act or any regulations must take into account the principles sofar as is practicable in the circumstances.[28] Section 69 expressly provides that a prisoner's minimum entitlements includeto send and receive mail as provided for in s 76. This entitlement is subject to ss 105and 108.[29] Section 108 sets out the grounds for withholding mail:108 Withholding mail(1) A prison manager may withhold mail between a prisoner andanother person if-(a) the prisoner or the other person asks the manager to do so;or(b) the other person is under 16 years, and his or her guardianasks the manager to do so; or(c) the other person is a prisoner, and neither prisoner has firstnotified the prison manager of his or her intention tocorrespond; or(d) the manager believes on reasonable grounds that thecorrespondence may, directly or indirectly,-(i) threaten or intimidate any person; or(ii) endanger the safety or welfare of any person; or(iii) pose a threat to the security of the prison; or(iv) promote or encourage the commission of anoffence, or involve, or facilitate the commission orpossible commission of, an offence; or(v) prejudice the maintenance of the law (including theprevention, detection, investigation, prosecution,4 Section 6(1)(i).and punishment of offences, and the right to a fairtrial); or(vi) breach an order or direction of any court (forexample, a direction given under section 168A (no-contact conditions if family violence offencedefendant remanded in custody) of the CriminalProcedure Act 2011) or constitute contempt ofcourt; or(vii) promote or encourage hostility towards any groupof persons on 1 or more of the grounds specified insection 21 of the Human Rights Act 1993.(2) If mail or an unauthorised item found in any mail is withheld, theprisoner to or from whom the mail was directed must be informedthat the mail or item, as the case may be, has been withheld, unlessit is to be forwarded to an enforcement officer.(3) This section is subject to sections 109 and 110.NZ Bill of Rights Act[30] Freedom of expression is a civil right enshrined at section 14 of the NZ Bill ofRights Act:Everyone has the right to freedom of expression, including thefreedom to seek, receive, and impart information and opinions ofany kind in any form.[31] Incarceration does not take away a prisoner's usual civil rights although theyare subject to limitations.5Did Corrections withhold any mail in breach of s 14 of the NZ Bill of Rights Act?[32] Mr Kumar alleges that Corrections has arbitrarily withheld mail because:(a) he has recorded all of the mail he asked to be sent out and some of thatmail is not recorded in the unit register as having been received; and(b) even where mail is recorded in the unit register, the addressee has notreceived it. Mr Kumar relies on the affidavits of Mr Taylor andMs Tyler-Rose Keatley as evidence of non-receipt of sent mail.5 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) at 120.[33] Mr Kumar also deposes that he did not receive mail that people say they sentto him.[34] Mr Kumar has the burden of proof in establishing that Corrections has actedarbitrarily and in breach of s 14 of the NZ Bill of Rights Act.6[35] The Manual and the general register, the unit register, and the prison registerdemonstrate the systems that Corrections has in place to monitor Mr Kumar's mail.Corrections submit that these systems show that mail is not arbitrarily withheld.[36] Mr Kumar relies on his own records as evidence that he has provided mail toprison staff and they have not recorded it in the unit register and therefore must havewithheld it. At the hearing, Mr Kumar gave evidence that he has put mail in the prisonmail box and then seen it in the office sitting on the desk waiting to be recorded in theunit register. This, he says, suggests mail is not being recorded and tracked.[37] Mr Kumar provided a list of mail he says was not sent. I have compared MrKumar's list against the unit register and the general register. Mr Kumar's list includessome letters that are recorded in the unit register as received but are not recorded inthe general register. For example, for 25 February 2021:(a) Mr Kumar says two letters on his own register were not sent, being aletter to a Ms Lee and a letter to a Ms Quince;(b) the unit register records five names including Ms Lee and Ms Quince;(c) the general register records for 26 February 2021 three names ofaddresses, one of whom is Ms Lee. There is no record of Ms Quinceor Mr Weir, another addressee recorded in the unit register for 25February 2021.[38] The above example supports Mr Kumar's submission that some letters are notbeing sent. The letters addressed to Ms Quince and Mr Weir, while recorded in the6 Commissioner of Inland Revenue v Chatfield and Co Ltd [2019] NZCA 73, at [28].unit register, are not recorded in the general register or the prison register. There is noexplanation for why the unit register records five addressees' names but then two ofthose names are not listed in the general register or in the prison register of withheldmail.[39] I do not consider that evidence from persons saying they have not receivedmail establishes that the mail was provided to Corrections to be sent or that Correctionsfailed to send it.[40] Corrections did not provide any explanation for the discrepancy between theunit register and the general register or an explanation as to why the letters do notappear on the prison register for withheld mail. I consider that Mr Kumar has thereforeestablished that Corrections acted arbitrarily in not sending those two mails therebyinfringing Mr Kumar's right to freedom of expression under s 14 of the NZ Bill ofRights Act.Did Corrections withhold mail in breach of s 108 of the Corrections Act?[41] The grounds on which a prison manager is authorised to withhold mail unders 108(1) of the Corrections Act include that:(a) the mail is between a person and another person and the other personasks the manager to withhold it;7 or(b) the manager believes on reasonable grounds that the correspondencemay directly or indirectly:(i) endanger the safety or welfare of any person;8 or(ii) pose a threat to the security of the prison.97 Corrections Act 2004, s 108(1)(a).8 Corrections Act 2004, s 108(1)(d)(ii).9 Corrections Act 2004, s 108(1)(d)(iii).[42] None of the withheld mail was provided in evidence. I can only rely on theevidence of Mr De Wet Cronje and Mr Kumar and the information contained in thedocuments provided in evidence to ascertain what the content of the mail may havebeen to justify the mail being withheld.Letter to Ms Vermont[43] Corrections, in the letter it provided to Mr Kumar, relied on s 108(1)(d)(iii) ofthe Corrections Act as the basis for withholding the mail to Ms Vermont. It said themail was a security issue as Mr Kumar asked the addressee to email him if she did notwant to receive mail, rather than notifying the prison.10[44] Mr Kumar says that the mail was not a threat to the security of the prisonbecause the prison email service is monitored. Mr Kumar was not therefore posingany risk to the security of the prison.[45] Corrections submitted that the security of the prison includes protection of itsprocedures. Those procedures have as a purpose protecting the welfare and safety ofthe public as reflected in s 6(1)(a) of the Corrections Act.[46] Mr De Wet Cronje explained that the mail procedures provide that people whodo not want contact with a prisoner are directed to contact Corrections directly. If thisoccurs, a "non-contact" alert is put on the prisoner's profile. By asking people tocontact him rather than the prison, Mr Kumar was attempting to bypass this procedure,thereby undermining protection of public safety.[47] The prison manager was entitled to withhold mail if they believe on reasonablegrounds that it may directly or indirectly endanger the safety or welfare of anyperson.11 While Corrections referred to s 108(1)(d)(iii), the more appropriate groundfor withholding the letter would have been s 108(1)(d)(ii) – potential danger to thesafety or welfare of any person. By asking the addressee to contact him and not theprison, Mr Kumar was attempting to get around the prison procedure that is designedto protect recipients of prison mail.10 See above at [17].11 Corrections Act, s 108(d)(ii).[48] Corrections did therefore have a lawful basis for withholding the mail unders 108(1)(d)(ii) of the Corrections Act.[49] Mr Kumar submits that Corrections failed to provide an opportunity to edit theletter to remove the offending passage. Corrections were not required under theCorrections Act or by the terms of the Manual to provide Mr Kumar with anopportunity to edit the letter. This is not a ground on which Corrections' conduct canbe said to be unlawful.[50] I also do not consider that the failure of Mr Kumar's counsel to receive theletter is relevant. Corrections are only responsible for sending mail and cannot be heldresponsible for the recipient's failure to receive it in circumstances where Correctionshas taken all reasonable steps to courier the letter. Further, the courier records indicatethe mail was delivered and a party has signed acknowledging receipt.Letter to Wordsworth[51] Corrections, in its letter to Mr Kumar, relied on s 108(1)(a) of the CorrectionsAct in withholding the letter sent to the manager at Wordsworth. Section 108(1)(a)states:A prison manager may withhold mail between a prisoner and another personif –(a) the prisoner or the other person asks the manager to do so;[52] Mr De Wet Cronje's evidence is that Corrections' records show that there wasno request for "no contact" on the file but Mr Kumar's two previous letters had beenreturned. The complaint form notes that Mr Kumar "is trying to use a 3rd party to passa letter to a woman." I have no reason to believe that this statement is incorrect.[53] Section 108(1)(a) allows mail to be withheld if the addressee has asked themanager to withhold the mail. There is no evidence of such a request and the fact oftwo letters being returned does not constitute a request to the prison manager not toreceive letters without something more. Letters can be returned for many reasons.[54] That Mr Kumar was trying to use a third party to pass mail to a woman wouldbe a basis for the prison manager to believe on reasonable grounds that this mayendanger the woman's safety or welfare where previous letters to the same person hadbeen returned. At the hearing, Mr Kumar acknowledged that he knew the woman hadworked at Wordsworth and this suggests he was trying to get the manager to providethe letter to the woman. Again, there is no evidence that the manager considered thisground under s 108(1)(d)(ii) but it would have been a basis for withholding the mail.[55] I do not therefore consider that Corrections has acted unlawfully inwithholding the mail to the manager of Wordsworth.Putting letter on Mr Kumar's property[56] Mr Kumar also claims that Corrections failed to put the Wordsworth letter onhis property after it was withheld. At the hearing, Mr Kumar provided a copy of theregister of his property which does not include the letter.[57] C.01.05.9 of the Manual provides that:9. If prisoner mail is withheld from being sent out by the prisoner it must beplaced in the prisoner's property, the prisoner informed in writing usingform [C.01.Form.03 Written advice to prisoner of withheld mail] and acopy of the form placed on the prisoner's file unless:a. it is to be forwarded to an enforcement officer, orb. where a minor adjustment to the letter content has been discussed andthe prisoner has change it in order for the letter to be sent out.[58] There is no requirement in the Corrections Act that withheld mail must beplaced on the property of the prisoner. This requirement appears to be a policyrequirement only. In the absence of any explanation from Corrections, the letter'sabsence from the register is contrary to this policy requirement.Relief[59] Mr Kumar seeks relief by way of an order that:all of the plaintiff's outgoing mails be checked and sent out / posted to theintended recipients without delay and that the outgoing mails don't getwithheld by any of the Corrections employee.[60] Corrections submit that the order is inappropriate as it would be akin to "micro-managing" the prison. In Mitchell v Attorney-General,12 this Court held thatcomplaints about the wrapping around newspapers delivered to the prisoner were sotrivial as to not be amenable to judicial review. The Court noted that allowing thisclaim to proceed to a judicial review would involve the Court "micro-managing theprisons" and trivialising the judicial review procedure.13[61] I agree that the scope of the order sought is too wide and would involve thisCourt micro-managing the prison. Rather, in the circumstances, I consider theappropriate relief is a declaration that two of Mr Kumar's letters sent on 25 February2021 were withheld unreasonably in breach of s 14 of the NZ Bill of Rights Act.______________________Tahana J12 Mitchell v Attorney-General [2013] NZHC 2836.13 At [35].