GENGE v THE VISITING JUSTICE AT CHRISTCHURCH MENʼS PRISON [2017] NZHC 35 [25 January 2017]

GENGE v THE VISITING JUSTICE AT CHRISTCHURCH MENʼS PRISON [2017] NZHC 35[25 January 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2016-409-000214[2017] NZHC 35BETWEEN RICHARD GENGEApplicantAND THE VISITING JUSTICE ATCHRISTCHURCH MENʼS PRISONRespondentAND ATTORNEY-GENERALSecond RespondentHearing: 16 November 2016Appearances: Applicant in personD Harris for Second RespondentJudgment: 25 January 2017JUDGMENT OF DUNNINGHAM J[1] These proceedings have their genesis in an exchange which took place between Mr Genge and a Department of Corrections officer while members of Mr Genge's family were visiting him in prison. Mr Genge claims that the actions ofthe officer give rise to a claim for compensation payable to his family members (damages and exemplary damages) because he breached statutory duties under various acts, acted unlawfully, and committed misfeasance in public office.[2] Mr Genge subsequently confronted the officer after the visit to voice his displeasure about the way the officer spoke to him. That led to a misconduct charge against Mr Genge. The Visiting Justice heard the charge and found against Mr Genge. Mr Genge also applies for judicial review of the Visiting Justice'sdecision in these proceedings and seeks:(a) a declaration that the decision was invalid; and(b) an order quashing the decision.[3] The issues are whether any of the claims are established and, if so, whether the relief Mr Genge seeks is available.What happened on 25 January 2015?[4] Mr Genge is an inmate at Christchurch Men's Prison, serving a life sentenceof imprisonment with a non parole period of 15 years. He is now 22 years into his sentence. Mr Genge has a young adult daughter, Cheana. In December 2014, he received the first visit from his daughter in 20 years. The visit went well and he said that he was looking forward to establishing a relationship with her. The next visit he had with her was when she came to visit him on 25 January 2015 along with herpartner and Mr Genge's mother. It is on this visit he said that the behaviour ofCorrections Officer Bunce was so aggressive and threatening that it spoiled the mood of the visit and his daughter declared she would not be visiting again due to theofficer's behaviour.[5] What occurred on that visit between Mr Genge and Officer Bunce was the subject of quite differing accounts. It is common ground that Mr Genge met with his family in the open air visiting courtyard in the prison, where there are some informal groups of seating. The prisoners are required to wear orange overalls during such visits and are not permitted to roll up the legs or arms of the overalls because of the risk that contraband may be concealed in the sleeves or legs of those garments. Notwithstanding that requirement, Mr Genge says that he, like other prisoners on the day, had rolled up his overalls because it was a particularly hot January day.[6] Mr Genge's narrative of what occurred from that point on is recorded in histhird amended statement of claim as follows:5. Officer Michael Bunce approached the Applicant's visitors and theApplicant in an aggressive manner and in a sharp threatening tone, told theApplicant to "roll down his overalls" to which the Applicant replied "ok". Officer Bunce then barked "hurry up" to which the Applicant replied "I'm doing it". Officer Bunce then yelled "NOW", to which the Applicant replied "I've done it".6. Because Mr Bunce was standing between the Applicant and hisdaughter, the Applicant's daughter felt threatened and intimidated as did the Applicant's mother and the Applicant's daughter's partner, as did the Applicant.8. The Applicant states Mr Bunce behaved in a way that was likely to provoke the Applicant which is contrary to section 84(1) of the Corrections Act 2004.9. The Applicant's visit became subdued and flat, and, the Applicant'sdaughter said she would not be visiting again, due to Officer Bunce'sbehaviour.[7] Mr Genge's mother's account is also that the officer "barged his body inbetween Richard and Cheana and started shouting about him taking down his trouserlegs".[8] Officer Bunce's affidavit evidence is, in contrast, that: I approached [Mr Genge] and spoke to him directly in a politeand professional manner telling him that he must comply with dress code and roll his legs and sleeves down. Prisoner Genge told me to"fuck off" in reply. His response was very direct and unfriendly. I could tell that he was not happy that I had asked him to comply with the dress code. I recall that Prisoner Genge did not make an attempt to roll down his overalls.7. I spoke to Prisoner Genge in a normal conversational tone and was standing near him when I spoke to him. I did not raise my voice at all when asking him to roll down his overalls. I do not know if anyone would have overheard our conversation. It is likely his visitors might have heard, however, I never spoke to them directly and I do not recall if they said anything or what their reaction was. Given the spacing between the seating where prisoners can meet with their visitors in the courtyard I do not think it is likely that any other prisoners of visitors in the courtyard at that time would have overheard the conversation, however, I cannot be sure.8. Despite Prisoner Genge not rolling down his overalls, given his response and sensing that he had not been happy with my request I did not want the situation to escalate. I, therefore, moved away from Prisoner Genge and his visitors. I knew that I had got my point across to Mr Genge and did not need to say anything further. I was also aware that there were members of the public present as well as other prisoners and that there was no need to say anything further to Prisoner Genge which might result in a confrontation.[9] This version of events was supported by the affidavit evidence of another Corrections Officer who observed the conversation through a door to the external visits courtyard. She did not hear what was said, but confirms the conversation was brief and that Officer Bunce spoke in a quiet and respectful way.[10] While it is somewhat unusual to have a claim which is based on a factual dispute proceed on affidavit evidence, this is likely because the claim was presented as an application for judicial review under the Judicature Amendment Act 1972. In any event, there was video footage available of what took place in the visiting area when the prison officer spoke to Mr Genge and his visitors, albeit with no soundtrack, and from this I was able to resolve the factual disputes sufficiently for the purposes of the claims being made in this hearing.[11] While Mr Genge complained that he did not think the video footage was from the closest, and therefore the best, camera angle, I was advised by counsel for the second respondent that the video footage provided was chosen because it gave the best perspective of the exchange between the officer and Mr Genge. I accept that the footage gave a clear view of Mr Genge and his family, and there was no suggestion that any relevant aspect of the exchange was obscured and would have been visible from some other angle.[12] The visual record of the exchange between Mr Genge and Officer Bunce was unremarkable. Approximately twelve seconds elapsed from the point when theofficer first approached Mr Genge's group to when he moved away again. Althoughthe video footage did not reveal what was said, as there was no soundtrack, there was no body language from the officer which suggested aggression or anger. He approached the group at a normal walking pace, and he appeared still and relaxed while he spoke to Mr Genge. He did not raise his hands or gesture or point while he was speaking, and, when the conversation ended, he simply turned and walked away from the group, again at an ordinary pace. It is clear from the video that Officer Bunce did not, as Mr Genge and his mother claimed, stand between Mr Genge and any of his visitors. He remained standing outside the circle of seats in which Mr Genge and his visitors were sitting throughout the brief exchange.[13] There was nothing in the body language of the group which suggested they took particular offence or surprise at what was said. Furthermore, and again contraryto Mr Genge's evidence, there was no visible reaction to the exchange from any ofthe adjacent groups, such as turning their heads to see what was going on.[14] In short, although the video footage could not eliminate the possibility that Officer Bunce spoke to Mr Genge in an abrupt and demanding tone, it did not support the other aspects of Mr Genge's and his mother's account of events. I find as a fact that Mr Genge's account of the exchange was not reliable. That said, it is clear that Mr Genge took offence to the instruction given by Officer Bunce, because it led to an exchange with prison staff in the strip search room afterwards and that, in turn, led to the misconduct charge against him.The incident in the strip search room[15] As part of the visitation process, once the prisoners' visitors have left, theprisoners are required to remove their overalls in the strip search room under the supervision of prison officers, before returning to their units.[16] Mr Genge acknowledges that in the strip search room he approached OfficerBunce "in a direct manner asking [him] if he was up to his job, if he knows how to deal with the public and how (sic) he act the way he did". At the same time twoother prisoners also engaged in verbal exchanges with prison officers over thetreatment of visitors. Mr Genge says he "continued to ask Officer Bunce if his attitude was acceptable until Officer Bunce apologised". His impression was that thematter was resolved and he says he was subsequently told he would not be charged. However, on 29 January 2015, he and two other prisoners were charged under s 128(1)(c) of the Corrections Act 2004 ("the Corrections Act") for behaving "in an offensive, threatening, abusive, or intimidating manner" to the prison officers in the strip search room.[17] Officer Bunce's evidence was that:15. On that day I was strip searching prisoners in the third booth, furthest away from the door through which prisoners enter the stripping area from the visits room. While I was strip searching another prisonerPrisoner Genge entered the stripping area and rather than waiting to be searched with the other prisoners, he came into the room and made a beeline directly for me. I was busy stripping another prisoner and did not know that prisoner Genge had come up behind me until he said something in my earalong the lines of "watch your back".16. Prisoner Genge started to abuse and threaten me again, saying that I had ruined his visit. He was angrier than when he first confronted me in the visits area, he was again ranting and raving and making threats about being able to smash me and telling me to watch my back. He was speaking to me very loudly and his conduct was very physically and verbally intimidating. Prisoner Genge was again very aggressive and threatening. I found his conduct to be very intimidating and took the threats he was making to me and Corrections Officers generally very seriously.17. Two other prisoners, Gary Isherwood and Tasi Selini also started to yell abuse and rant about their visits during this time. While Prisoner Gengewas being strip searched Prisoner Selini fired up and started to rant andrave about the way his visitors were treated. His behaviour was also abusiveand confronting19. During these confrontations I tried not to engage in an argument with Mr Genge and instead I tried to de-escalate the situation speaking to Mr Genge in a calm and professional manner. While his behaviour was threatening and intimidating I thought that I eventually managed to de-escalate the situation. I thought about pressing my alarm to call in other officers during the confrontation, but ultimately decided that the situation was being handled and that it was unnecessary to press the alarm.[18] Shortly after this, Officer Bunce filed a misconduct report in relation to the conduct of Mr Genge and the two other prisoners. It explained that, in addition toMr Genge's hostile and confrontational actions in the strip search room,Mr Isherwood, another prisoner, took the opportunity to voice in an aggressive manner his opinion that staff were disrespecting him, and a third prisoner, Mr Selini,"did become vocal about gatehouse staff and an issue at the gatehouse with his visitors". Mr Selini also made threats of physical violence, which were directed to Officer Bunce.[19] Again, there is video footage of the relevant events in the strip search room, but no soundtrack to assess the content or volume of the conversations. This footage was played at the hearing and Mr Genge identified for the Court the relevant prison officer and the other prisoners who were the subject of misconduct charges. The video showed Mr Genge going into the furthest cubicle shortly before Officer Bunce entered the room. Mr Genge came out of his cubicle and engaged in a discussion with Officer Bunce for well over a minute. He then returned to his cubicle but cameout again, and stood to the rear of Officer Bunce while Mr Selini was aggressively confronting the officer. He then moved to face the officer and, for a brief period both prisoners were confronting the officer. When Mr Selini left the room, Mr Genge continued to speak to Officer Bunce for a further two minutes, and, at one point, could be seen to jab his finger in the air to emphasise a point. While this was going on, the other officers present continued checking the prisoners as the prisoners were removing their overalls before releasing them to go back to their units. The officers did, however, look across to Mr Genge and Officer Bunce while the exchange was going on. At the end of the exchange, Officer Afitu, who was standing near Mr Genge, was given a friendly pat on the back by Mr Genge which was reciprocated.[20] The role of Mr Isherwood appeared minimal. He describes what happens as follows:The inmates were all on edge and very angry in the strip search room some inmates started confronting Mr Bunce, some were yelling, angry at what hadhappened, I said something like I don't want our families to be hurt, whathas happened is not right and outside procedures to keep inmates safe and our families not be intimidated! I went to corner of strip room as some inmates were angry at Mr Bunce about the way he had acted at visits and I remember Rick Genge and Mr Bunce shaking hands, some prisoners were still arguing, yelling at Mr Bunce.The charge against Mr Isherwood was, in the end, dismissed.[21] The third prisoner who was charged, Mr Selini, can clearly be seen in the foreground of the video footage. He appeared agitated, repeatedly walking forward to Officer Bunce as he was speaking to him and making vigorous hand gestures. He was the subject of separate misconduct charges and received a penalty of seven days cell confinement and 28 days loss of privileges.[22] Charges against Mr Genge and the other two prisoners were laid on 29 January 2015.11 While Mr Genge says the prisoners were "jointly charged" this is not correct. The threeprisoners were each charged in relation to their individual actions on the day. The charges were heard separately and different outcomes were reached in each case.The hearing of Mr Genge's misconduct charges[23] Mr Genge's misconduct charge was first called before a Hearing Adjudicatoron 4 February 2015. He pleaded not guilty to the charge on that date. Mr Robert Graham, a Corrections Officer and prosecutor at Christchurch Men'sPrison, explained in his affidavit that the matter had to be adjourned because Mr Genge could not provide the evidence he required at that time. The hearing of the charge was subsequently called before the Hearing Adjudicator on 12 February 2015, but was again adjourned, to be heard before a Visiting Justice.[24] Mr Graham's affidavit evidence went on to explain that the hearing of thecharge was transferred to the Visiting Justice because of the complexity of the proceeding and because the prosecution wanted to seek a higher penalty than the Hearing Adjudicator could give. The complexity which was said to arise here was that Mr Genge wanted to call a number of witnesses, including external witnesses, and also to raise complex issues in his defence.[25] Mr Genge's hearing eventually took place on 27 and 31 August 2015. The delay was explained by Mr Graham to be a combination of the backlog of cases to go to the Visiting Justice and also in order to allow Mr Genge sufficient time to prepare his evidence and witnesses for hearing. This included facilitating the attendance of his mother, Mrs Linda Genge, as a witness.[26] At the hearing before Visiting Justice Kellaway, the prosecution called Officer Bunce as its sole witness, while Mr Genge called himself, his mother, and three other Corrections Officers as witnesses. The same stripsearch room video footage as was presented at this hearing, was played during the hearing before the Visiting Justice.[27] The hearing was not concluded on 27 August 2015 because one of Mr Genge's witnesses, Officer Afitu, was not available to give evidence on that day.The hearing reconvened on 31 August 2015 with Officer Afitu giving his evidence. The prosecution and Mr Genge then each presented closing submissions.The decision of the Visiting Justice[28] At the conclusion of the hearing, the Visiting Justice gave her decision. She recited the conflicting evidence given by Mr Genge and Officer Bunce, and explained that Mr Genge considered that the exchange in the visitors yard warranted his confrontation with Officer Bunce in the strip search room. However, understandably, her decision focused on what actually occurred in the strip search room.[29] She commented that in the video Mr Genge was shown "heading in a deliberate manner across to where Corrections Officer Bunce was", and that he "remained in very close proximity to him and was waving his finger at Mr Bunce".She said that Mr Genge declared in his own words that he confronted Officer Buncein a "firm and assertive manner". Mr Genge also agreed that if he had beencomplying with the rules of the visits, this incident would not have occurred. Shenoted that Officer Afitu said Mr Genge's voice was raised, and he told Mr Genge tocalm down who then did. She said the video showed that Mr Genge remained in thearea where Mr Bunce was and "for much of the time in Mr Bunce's personal space pointing and waving his fingers in his face". She also observed that there was a lotof disruption by the other prisoners in the area at the time. She concluded thatOfficer Bunce "had every right to feel intimated and threatened", and thereforefound the charge proved.[30] While the officer conducting the prosecution sought the same penalty that Mr Selini received, being seven days confinement and 28 days loss of privileges, the Visiting Justice imposed a sentence of three days confinement and 14 days loss of privileges on Mr Genge.The issues raised by Mr Genge[31] Mr Genge raised numerous complaints about the hearing process. In brief these were:22 These are extracted from the third amended statements of claim filed which superseded the earlier, and slightly differently-framed statements of claim.(a) the matter was adjourned to the Visiting Justice without an opportunity being afforded to Mr Genge to be heard on that decision;(b) Mr Genge did not consent to the matter being adjourned from 12 February 2015;(c) the reason for referring the matter to a Visiting Justice was"cancelled" because in the end, he received a penalty which was "well within a sentence a Hearing Adjudicator can impose";(d) Mr Genge's right to appeal was unlawfully removed by the HearingAdjudicator referring the hearing to the Visiting Justice;(e) Mr Genge was given three different lists in response to his request for the prisoner visit list for 25 January 2015 and this hindered him in being able to call potential witnesses;(f) the Visiting Justice wrongly advised Mr Genge that he had to give evidence prior to calling a witness and, by compelling him to give evidence, his rights were breached;(g) Officer Bunce's evidence that Mr Genge was abusive and threatening to him, was not supported by the video footage;(h) Officer Bunce perjured himself in the hearing;(i) the Visiting Justice unreasonably accepted Mr Bunce's assertion thathe acted in a courteous manner before Mr Genge's visitors when thatwas inconsistent with the fact that several prisoners became aggressive towards Mr Bunce in the strip search room after the visit;(j) the Visiting Justice ignored Mr Genge's evidence and the evidence ofOfficer Afitu which supported Mr Genge;(k) the Visiting Justice spent time with corrections staff during the adjournments and attended lunch with prison staff on 27 August 2015, which gave rise to a reasonable apprehension of bias;(l) the Visiting Justice wrongly identified Mr Genge as the man waving his finger in the video of the strip search room when in fact, that was Mr Selini; and(m) the Visiting Justice was wrong to conclude that "two wrongs do not make a right" when Officer Bunce has statutory obligations to behaveappropriately towards Mr Genge.[32] All of these complaints lead into claims that the decision of the Visiting Justice should be set aside on the following grounds:(a) error of law;(b) unreasonableness;(c) bias;(d) breach of natural justice, including breaches of ss 25 and 27 of theNew Zealand Bill of Rights Act 1990 ("NZBORA").[33] I now turn to discuss each of the legal claims made by Mr Genge as best they can be discerned from the extensive narrative pleadings.Claim of misfeasance in public office[34] Mr Genge claims that the exchange Officer Bunce had with him in front of his visitors constituted misfeasance in public office. He says the Corrections Officer acted deliberately in breach of his legal obligations under the Corrections Act andunder the Department's Code of Conduct, in order to harm Mr Genge, and he has in fact suffered harm because his daughter refuses to come back to visit him.[35] The second respondent rejects these allegations, saying that the Officer acted lawfully in enforcing prison discipline, and that the evidence supports this having been done in a reasonable manner.[36] The elements of the tort of misfeasance in public office are as follows:3(a) the defendant must be a public officer;(b) the defendant must have acted deliberately and unlawfully in the exercise or purported exercise of his or her office;(c) the defendant must have acted with malice towards the plaintiff, or with knowledge or reckless indifference that his or her conduct was unlawful and was likely to injure the plaintiff;(d) the plaintiff must have suffered damage caused by the defendant'sactions.[37] As the second defendant acknowledges, and I accept, the definition of a public officer is broad enough to encompass a prison officer. A public officer is one"who is appointed to discharge a public duty, and receives compensation in whatevershape, from the Crown or otherwise,4 and who, in the discharge of that public duty,"owes duties to members of the public as to how the office shall be exercised".5Prison officers have been held to be included within this definition.6 However, on all the other elements I consider Mr Genge has failed to prove his case.[38] At its highest, all Mr Genge can demonstrate is that the officer spoke sternly to him and told him to roll down his overalls as was required by prison guidelines. There was nothing unlawful in that conduct, and the mere fact that Mr Genge took offence does not alter the position.3 Garrett v Attorney-General [1997] 2 NZLR 332 (CA).4 Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing 91 at 107 (Comm Pleas).5 Tampion v Anderson [1973] VR 715 (VSC) at 720.6 R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 (HL).[39] Given my findings as to what occurred, Mr Genge has also failed to demonstrate that Officer Bunce acted with the requisite bad faith or reckless indifference as to whether Mr Genge was injured. Looked at objectively, the act of instructing a prisoner to comply with prison regulations, whether delivered abruptly or not, could not reasonably be considered likely to cause injury to Mr Genge or his family. Mr Genge therefore can not demonstrate either an intention to harm or reckless indifference as to whether harm was caused.[40] The pleadings do not identify the injury to Mr Genge. However, the alleged injury can be inferred from Mr Genge's evidence where he said that he felt "instant dejection" because the mood of the visit changed, and that, as a consequence, his daughter did not wish to visit him in prison again.[41] However, the only claim made for damages is in respect of his family members. They, of course, are not parties to the proceedings nor, as Mr Genge suggested in supplementary submissions, is he authorised to sue on their behalf under r 4.24 of the High Court Rules.7 Even if I had found the elements of the tort established, I could not grant relief to persons who were not either claiming on their own behalf, or claiming through a representative who was authorised to act on their behalf by the Court.[42] This claim therefore fails.Breach of statutory duty[43] Mr Genge claims that Officer Bunce's behaviour in the visits yard breached various sections of the Corrections Act and the State Sector Act 1988 ("the StateSector Act"). He also claims there were breaches of the Corrections Regulations2005, the Department of Corrections Code of Conduct and the Prison Service Operations Manual, being subordinate legislation, and other guideline documents that he considers the Officer was required to comply with by virtue of these two Acts.7 I also accept the second respondent's submission that the loss suffered by these parties is neitherpleaded nor supported by evidence.[44] In particular, Mr Genge identifies the principle in s 6(1)(i) of the Corrections Act that contact between prisoners and families is to be encouraged and supported. He says that Officer Bunce failed to act in a way that achieved this principle, and so was in breach of this Act.[45] Not all the documents which Mr Genge says are breached are statutes. However, given that the thrust of his argument is the same, that a failure to comply with these Acts, regulations and guidelines is unlawful and should sound in damages, I consider them all under the same head.The legal principles[46] An action for breach of statutory duty can only succeed where the plaintiff has established that the duties are enforceable by a public law action, and that it was intended that the relief sought by the plaintiff would be available. As the seconddefendant's submissions point out, there is clear authority that breach of the dutiesset out in the Corrections Act, and its predecessor, do not give rise to a private law cause of action.[47] In Harriman v Attorney-General,8 Simon France J had to consider a claim by Mr Harriman for, among other things, failure to perform statutory duties under the Parole Act 2002 and Corrections Act. After traversing the general legal principles as to when a Court would recognise that statutory duties would give rise to enforceable rights, he went on to discuss the specific Acts. Pertinently, he concluded that the Corrections Act was not intended to create duties on which an affected person might sue, in addition to any existing remedies available in law, saying:9 The present Act makes more explicit the public purposes of the Act in addition to the purpose of regulating the management and treatment of prisoners during their sentence. Whilst the Act recognises that a primary way to achieve these goals is through a system that treats prisoners humanely and fairly, and keeps them safe, there is nevertheless that strong focus on public safety. This public aspect is traditionally viewed as telling against the idea that the Corrections Act intended to create private law causes of action.8 Harriman v Attorney-General [2015] NZHC 3197.9 Harriman v Attorney-General, above n 8, at [37]-[38].[38] Again it can be noted that the Corrections Act contains specific methods of redress – the creation of inspectors of Corrections, the rights of inspection accorded to various people and the appointment of visiting Justices. There are also provisions for contacting legal advisers and receiving visits from them, and the entitlement to outgoing calls is in addition to the right to call official agencies (which include bodies such as the Ombudsman). Further, existing rights of access to Courts are not curtailed.[48] The Judge therefore concluded that "there is no capacity to sue for a breachof statutory duty in relation to any of the breaches of the Corrections Act claimed byMr Harriman".10[49] It logically follows, therefore, that regulations made under powers in the Act, and codes of conduct and other guideline documents adopted to assist inachievement of the Act's purposes, also do not give rise to an enforceable claim for damages when they are breached. Equally, references to the State Sector Act, which were relied on to reinforce the requirement to comply with duties in the Corrections Act or with documents created to assist with fulfilling that Act's intentions, can takethe matter no further.[50] Accordingly, the balance of Mr Genge's claims in relation to the courtyardincident, which rely on breaches of this Act and of the regulations and guidance documents developed under it, cannot give rise to a claim of damages.[51] That does not deny Mr Genge rights of redress if he is treated unlawfully, through the Corrections Act complaints procedures, or by referring the matter to other official agencies for investigation. He can also avail himself of the Courts in a sufficiently serious case, for example, where the wrong amounts to criminal offending, or is a breach of the NZBORA.[52] However, even if the Corrections Act gave rise to a right to compensation for its breach, I do not consider that a breach of that legislation has been established on the facts. I have found that the officer in question gave a lawful direction to a prisoner requiring him to roll down his overalls in compliance with prison guidelines. Even if delivered in a curt or abrupt tone of voice (which is the view of10 At [39].the facts I have reached which is most favourable to Mr Genge), that would notamount to a breach of the Corrections Act or of the Department's Code of Conductor the Prison Service Operations Manual. To hold such an action unlawful, and giving rise to a right to compensatory payment, would be to make the system of prison discipline inoperable.[53] Accordingly, the claims for damages for breach of statutory duty, or for damages under any analogous tortious claim, are dismissed.Misconduct proceedings under the Corrections Act[54] Before examining Mr Genge's various complaints about the way the hearingproceeded before the Visiting Justice, it is necessary to give some explanation of the statutory framework in which the decision was made.[55] Mr Genge was charged and convicted under s 128(1)(c) of the Corrections Act. This section is found in subpart 5 of the Act which deals with offences against discipline and specifies the procedure by which they are heard and determined. That part of the Act provides a two tier structure of prison discipline, with first instance hearings being dealt with by prison Hearing Adjudicators, with rights of appeal to independent Visiting Justices.11 The standard of proof in all disciplinary hearings is beyond reasonable doubt.12[56] Section 133(5) allows the Hearing Adjudicator to, at any time before making a decision on whether the charge is proved, refer the case to a Visiting Justice for hearing and determination. The Hearing Adjudicator can do this only if he or she considers:13(a) that the conduct that is alleged to constitute the offence may warrant a higher penalty than can be imposed by the Adjudicator; or11 Corrections Act 2004, ss 133 and 136.12 Corrections Regulations 2005, sch 7, cl 33.13 Section 134(2).(b) that because of the complexity of the issues likely to arise, it would be appropriate for the case to be referred to a Visiting Justice; or(c) both.[57] A Hearing Adjudicator is limited as to the penalties he or she can impose, with an upper limit of no more than seven days cell confinement or forfeiture of earnings and no more than 28 days loss of privileges.14 However, in cases other than appeals, Visiting Justices may impose greater penalties than Hearing Adjudicators,being up to 15 days cell confinement and up to three months' loss of privilegesand/or earnings.[58] A decision of a Visiting Justice may only be challenged by way of an application for judicial review.[59] The distinction between the statutory prison discipline system, and the criminal justice system, was the subject of discussion in Drew v Attorney-General,15albeit in the context of the former Penal Institutions Act 1954. In explaining the system, McGrath J said:[85] The Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system. It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly communityliving[86] At the heart of the statutory scheme for prison discipline is the policy that is shared with many countries that responsibility for dealing with misconduct by prisoners should, in general, form part of the governmental function of prison management. In this context the Act contemplates that the principal burden of disciplinary adjudication should fall on those responsible for the operation of the prison. That is achieved by providing under the Act a two tier disciplinary process. At the first level the prison disciplinary system is administered by senior officers in the prison, with the aim that the great majority of incidents will be dealt with at this level in a fair, timely and effective manner consistent with the need to maintain order. An important safeguard for prisoners who become subject to the process at this level is a right of appeal against any finding by the superintendent that a complaint concerning an offence against discipline has been proved and against thepenalties that may consequently be imposed14 Section 133(3).15 Drew v Attorney-General [2002] 1 NZLR 58 (CA).[60] In the same judgment McGrath J went on to distinguish the key differences between the prison disciplinary process and the prosecution of a criminal offence proper. In particular he noted:(a) the level of penalty that may be imposed for a disciplinary offence is far lower than that available in respect of a criminal offence for similar or the same conduct;(b) a prison disciplinary offence does not form part of a criminal conviction history as does a criminal offence; and(c) the prison disciplinary offence system operates in a more inquisitorial manner than the adversarial general criminal justice system.[61] As the second defendant submitted, the disciplinary scheme in the Corrections Act is intended to operate swiftly and comparatively informally, with charges laid within seven days of the alleged offence and with most charges determined by a Hearing Adjudicator who is routinely present at each prison. Penalties are imposed immediately after finding an offence proved and take effect from that date.16[62] Disciplinary proceedings are required to be conducted in accordance with the procedures set out in schedule 7 to the Corrections Regulations 2005 ("the Regulations"). When laying a disciplinary charge against the prisoner, the prisonofficer must give the prisoner a written notice which includes:17(a) a description of the incident or circumstances giving rise to the alleged offence; and(b) a statement of the provision in which the prisoner was charged.16 Corrections Act 2004, ss 133, 147 and 140.17 Corrections Regulations 2005, sch 7, cl 6.[63] The prisoner must also reasonably promptly be given specified information regarding the disciplinary process.18[64] A prisoner must be given "sufficient time" and have a "proper opportunity" toprepare his or her defence.19 To enable a prisoner to prepare his or her defence, the manager of the prison must:20(a) ensure the prisoner is provided with paper and writing materials if the prisoner asks for those; and(b) as far as practicable, facilitate contact between the prisoner and any adviser or assistant helping the prisoner prepare their defence (other than another prisoner).[65] While there are time limits for progressing a charge to hearing before a Hearing Adjudicator, (failing which the prisoner can apply for dismissal of the charge), 21 the same limitations do not apply when the charge is referred to a Visiting Justice. Any prisoner charged with an offence against discipline is, when appearing before a Visiting Justice, entitled to call witnesses on his or her behalf and to cross- examine these witnesses.22[66] The Visiting Justice may examine any witness at his or her discretion.23 A hearing may proceed notwithstanding that a requested witness is not present as the Visiting Justice only has the ability to adjourn a hearing where "satisfied that a material witness" is unavailable.24Mr Genge's claims in relation to the Visiting Justice hearing[67] As set out in paragraph [31] above, Mr Genge makes multiple accusations of error or unreasonableness regarding the way in which his misconduct charge was18 Clause 8.19 Clauses 9 and 41(a).20 Clause 19.21 Clause 8(a).22 Corrections Act 2004, s 137(2) and Corrections Regulations 2005, sch 7, cls 32(b) and (c).23 Corrections Act 2004, s 137(1).24 Clause 41(b).dealt with, often claiming that the same event or action gave rise to multiple grounds of review. The factual allegations themselves fall into a range of categories. These are:(a) allegations relating to decisions made, or actions taken in the lead up to the hearing;(b) allegations relating to the conduct of the hearing itself including whether the Visiting Justice should have been disqualified from hearing the case because of an appearance of bias; and(c) allegations relating to the merits of the decision arrived at.[68] In the circumstances, I propose to consider each allegation raised in these three categories and then consider whether any of the various grounds of review relating to it are made out.Procedural issues arising prior to hearing[69] Mr Genge raises three main points which relate to actions or decisions taken before the hearing in August 2015, in support of his challenge to the VisitingJustice's decision. These are:(a) the lawfulness of referring of the proceeding to the Visiting Justice;(b) the decision to adjourn the proceedings without, he says, his consent or input;(c) the failure to provide an accurate list of persons present in thecourtyard on the visitors' day.Was it lawful to refer the proceeding to the Visiting Justice?[70] Mr Genge complains that his "right to appeal was unlawfully removed by the Hearing Adjudicator, by referring the hearing to the Visiting Justice". Thiscomplaint can be disposed of swiftly. The ability to refer the matter directly to theVisiting Justice is expressly provided for by the legislation.25 It is anticipated that in those circumstances, there will be no further right of appeal, although there will remain rights of review to this Court.26[71] The second challenge to the decision to refer the matter to the Visiting Justice essentially claims there was no jurisdiction to do so because the grounds in s 134(2)(b) of the Corrections Act were, in his words, "cancelled" because:(a) the prosecution only called one witness and therefore the case was not complex; and(b) the penalty actually given was within the Hearing Adjudicator'sjurisdiction and so the matter was no longer within the VisitingJustice's jurisdiction.[72] These submissions miss the point, which is that the exercise of the discretion to refer the matter to the Visiting Justice must be assessed at the time that decision was made. Both then, and at the hearing, the prosecution was seeking a penalty which was higher than could be imposed by the Hearing Adjudicator. It is irrelevant what penalty is actually imposed. Indeed, if Mr Genge were right, it would mean the Visiting Justice could never impose a penalty that fell within the HearingAdjudicator's jurisdiction which would, of course, unreasonably fetter the Visiting Justice's ability to sentence in accordance with his or her findings on culpability.[73] Equally, the decision to refer the matter to the Visiting Justice because of its complexity is a matter of judgment, and must take into account not just the prosecution case, but the likely issues to be raised by the prisoner defending the charge. The fact that Mr Genge was planning to call both external and internal witnesses (and so that the hearing was likely to occupy a day or more), was sufficient justification on its own to determine the matter was complex and refer it to the Visiting Justice.25 Corrections Act 2004, s 134.26 Seemingly no statutory appeal rights, except of course, judicial review etc.Did the decisions to adjourn the proceedings affect their validity?[74] Equally I am satisfied that the adjournments which were granted had no effect on the validity of the decision. While there is an obligation under theRegulations to hear charges "reasonably promptly", that is moderated by therequirement that the prisoner be given sufficient time to prepare his or her defence. Adjournments can be sought by either the prosecutor or the prisoner, and it is obligatory to adjourn the disciplinary hearing if the person holding it is satisfied that the prisoner has not had an opportunity to prepare his or her defence or to have a material witness available.27 While there is the ability to adjourn a disciplinary hearing if all parties consent to the adjournment,28 that is not the only circumstancein which an adjournment can be granted, and so Mr Genge's consent was notrequired.[75] I am satisfied that in all circumstances, and having regard to the evidence of Mr Graham, the adjournments were granted for legitimate reasons and did not unreasonably delay progressing the matter to hearing. They were largely to ensure a fair hearing for Mr Genge, because witnesses he wanted to call would not otherwise have been available.[76] For all these reasons there was no legal impediment to the case being heard before the Visiting Justice and these grounds of review fail.Did the provision of inconsistent visitor lists to Mr Genge prior to the hearing affect the hearing and therefore the validity of the decision?[77] One of Mr Genge's complaints was that he sought a list of prisoners whowere present at the visiting session of 25 January 2015 but he had three such lists provided to him during February 2015, and in each case they were slightly different. The first list originally listed 19 prisoners. That was reduced to 18 in the second list, and 14 in the third list.[78] Mr Genge claims that there is an obligation on prison staff to assist him in preparing his defence, as the information form provided to prisoners charged with a27 Schedule 7, cl 41.28 Schedule 7, cl 42.disciplinary offence says "if there is any information that you require from the prisonto assist you to prepare for your case you should ask the manager of your unit forthis as soon as possible". By providing inaccurate lists, he says Corrections staff were in breach of this obligation.[79] The second defendant points out that schedule 7 of the Regulations does not require the prisoner to be provided with full disclosure of their prison file or the IOMS (Information Offender Management System) database in order to prepare their defence. Corrections staff are only required to give full information about the charge and the evidence to be relied on for that.[80] Whether or not they were required to provide the list requested, Corrections staff did assist Mr Genge in this way and provided repeatedly more refined lists, presumably until the Department was satisfied it was accurate. There was no evidence that Mr Genge was disadvantaged by being unable to call a relevant witness and, indeed, he called several witnesses at his hearing.[81] This ground of review also fails.Breach of natural justice?[82] Mr Genge asserts that, in breach of natural justice and his rights under s 25(d) of the NZBORA, the Visiting Justice compelled him to give evidence. This relates to an exchange during the hearing on 27 August where the Visiting Justice told Mr Genge that it was "now your opportunity to take the stand and give your evidence to the Court". When he suggested that he wanted to call his witnesses first,she said no, that he needed to give his evidence first. He then said that he would not be giving evidence but, rather, would be making a lengthy closing statement. Whenthe Visiting Justice queried that, saying "so you are not going to give any evidence asto what happened on that day", he replied "okay I'll give you some evidence, don't want any trouble". However, that exchange was followed by Mr Graham, the prosecutor, saying to Mr Genge that "it's up to you". The Visiting Justice also addedthat if Mr Genge gave evidence of what happened on that day she would have a better understanding of what the situation was.[83] I am satisfied from reviewing this exchange that the Visiting Justice had expected Mr Genge to be giving evidence himself, because he was bringing otherwitnesses to attest to what happened in both the visitor's courtyard and the stripsearch room, and because there was a dispute as to what had happened and what had motivated it. However, Mr Genge was also told that it was up to him whether he gave evidence and he knew he was not compelled to do so. I consider his choice to do so was therefore voluntary, but it was also logical given he was calling evidence to contradict the prosecution witnesses.[84] This ground of review is therefore dismissed.Was the process of the hearing fair?Bias[85] Mr Genge alleged bias on the part of the Visiting Justice. The basis of this allegation was that, during adjournments, he was ushered outside to the holding cell while the prosecutor remained in the Courtroom, with the Visiting Justice. He also claimed the Visiting Justice attended a luncheon held in her honour because she wasretiring at the prison and this "gives rise to reasonable expectations of bias". Finallyhe claimed that, because the Visiting Justice had served at the prison for more than10 years, it was reasonable to assume a "casual relationship" between the Visiting Justice and the prosecuting officer. Again, he claimed this gave rise to a "reasonable apprehension of bias".[86] Mr Genge then went further and claimed that she put undue weight on the evidence of the Corrections Officers, and not on his evidence and that of his witnesses, which he again said showed her bias.[87] The second defendant denies these allegations. Mr Graham's evidence alsoexplained the circumstances in which lunch was provided to the Visiting Justice, saying:As a common courtesy to the Visiting Justice and other staff to reflect the fact that the location and nature of prisons means that it is not always easy or possible to access lunch facilities and it enables the Visiting Justice and other staff involved in the proceedings to have lunch quickly (they usually last 20to 30 minutes) so everyone can get back to the hearings. Understandably, he records that when prosecution staff do sit with the Visiting Justice "any matter before the Court is never discussed".[88] The leading New Zealand decision on apparent bias is the Supreme Court'sdecision in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2).29 In that case, subject to qualifications relating to waiver or necessity, the Supreme Court said that a Judge should be disqualified:30If a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.[89] In its earlier decision in Saxmere,31 the Supreme Court explained that:32The fair minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge's decision.[90] As a logical corollary, the Supreme Court went on to say:33The matter is not to be tested by reference to the views of the particularlitigant who has made the allegation of bias and is endeavouring to influence a result or overturn a decision and is therefore the least objective observer of all.[91] Here, the grounds for alleging bias are the opportunities the Visiting Justice had to speak with prison prosecution staff in a more informal setting, particularly during the hearing. I am satisfied that that, on its own, could not lead a fair minded lay observer to consider that the Judge would not be independent in his or her decision making.[92] The professional relationships established between prison prosecution staff and the Visiting Justice are analogous to those between the bar and the judiciary, where it is expected that there will be social connections between the two that do not29 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122 [2010] 1 NZLR 76.30 At [4], citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [6].31 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 72, [2010] 1 NZLR 35. The Supreme Court departed from this decision, but its discussion of the law stands.32 At [5].33 At [10].impinge on the Judge's ability to carry out his or her judicial functions. Thejudiciary, at whatever level, are understood by the fair minded lay observer, to be able to put to one side the social connections they may have with counsel or, in this case, prison prosecutors, and focus on the evidence being brought by the parties to the proceedings themselves.[93] I am satisfied that the opportunities which arose for prison prosecution staff to socialise with the Visiting Justice could not, without more, give rise to a reasonable apprehension of bias.[94] This ground of review also fails.Challenges to the decision[95] The majority of Mr Genge's complaints are about the reasonableness of the decision itself. However, many of Mr Genge's submissions cross the dividing linebetween issues which are the proper concern of judicial review and those which can be considered in an appeal where the substantive merits of the decision are explored. As has often been said, the proper concern of judicial review is with the decision making process, not the decision itself.34 Thus where the findings of the Visiting Justice were reasonably open to her on the evidence, this Court will not disturb the decision in an application for judicial review.[96] In this application I can deal with Mr Genge's assertions that the decision wasunreasonable but only where there is such a glaring shortcoming in the reasoning process that it calls into question the decision reached. As was said in Dempster v Registrar-General of Land, the decision must be one that "no sensible decisionmakeracting with due appreciation of his or her responsibilities could have arrived at".3534 Fraser v State Services Commission [1984] 1 NZLR 116.35 Dempster v Registrar-General of Land [1997] 2 NZLR 609 at 620.Was the decision unreasonable?[97] Mr Genge's pleadings are punctuated with assertions that the decision wasunreasonable because the Visiting Justice ignored or put too little weight on some evidence and relied on other, incorrect, evidence.[98] The essence of Mr Genge's case was that he was provoked by theunprofessional and discourteous conduct of Officer Bunce in the visits yard, and his admission that he confronted Officer Bunce in an assertive manner in the strip search room should be understood in that context. He therefore considered it was unreasonable for the Visiting Justice to have come to the decision that he was guilty of the misconduct charge.[99] In support of his claim that the decision was unreasonable, he says that Mr Bunce either overstated his evidence, or gave incorrect evidence about what occurred in the visits yard and in the strip search room. He says because the officers did not react to the exchange he had with Officer Bunce in the strip search room, it could not have been as threatening and aggressive a confrontation as Officer Buncedescribes. In addition, he says that Officer Afitu's evidence was that Officer Bunce and Mr Genge "were talking" and that, once he said "that's it", Mr Genge's voicelowered and that was the only point of intervention by staff in the exchange. Mr Genge also says that Officer Bunce must be lying about the exchange in the visits yard, because if he was courteous, the prisoners would not have turned on him in the strip search room. Finally, he says the Visiting Justice describes him as "waving his finger at Mr Bunce" and he says that demonstrates she has confused him withMr Selini who was in the foreground and waved his finger at Officer Bunce in his confrontation with him.[100] The last claim can be addressed readily by reference to the video footage. While it is correct that Mr Selini aggressively pointed his finger at Officer Bunce during his exchange with him, Mr Genge can also be seen waving his finger at the officer during the conversation he had with Officer Bunce after Mr Selini left. The Visiting Justice did not err in this factual finding nor did she confuse the actions of the two prisoners.[101] The balance of Mr Genge's concerns really come down to his view of themerits of the decision, and, I am satisfied there are no grounds for this Court to set aside the decision.[102] First, it is apparent from the transcript of the Visiting Justice's decision that Mr Genge's evidence was considered fully. In her summing up, she refers toMr Genge's evidence and to the evidence of his witnesses, being his mother and Officers Grant and Afitu.[103] More importantly, Mr Genge appears to be under the mistaken view that whathappened in the visitor's courtyard would alleviate him from responsibility for hissubsequent conduct in the strip search room. While it may be relevant, particularly to issues such as penalty, it did not alter the fact that the Visiting Justice had to consider the charge against Mr Genge regarding his conduct in the strip search room and determine whether that charge was made out.[104] Based on a combination of Mr Genge's evidence of how he spoke toOfficer Bunce, the video footage evidence, and the evidence of Officer Bunce and Officer Afitu, the Visiting Justice found that Officer Bunce had every right to feelintimidated and threatened by Mr Genge's behaviour. She therefore reached theconclusion that the charge was proved. This conclusion was reasonably open to the Visiting Justice on the evidence before her, and I see no reason to set aside her decision.Outcome[105] For all these reasons, Mr Genge's application for judicial review of the Visiting Justice's decision is dismissed, and his claims for damages and associatedrelief are rejected.[106] The question of costs is reserved. If costs are sought, a memorandum should be filed within 20 working days of receipt of this decision by the second defendant and any memorandum in response in a further 10 working days.Solicitors:Crown Law, Wellington