DUNSTAN v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2023] NZHC 3221

DUNSTAN v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2023] NZHC 3221 [17 November2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-002159[2023] NZHC 3221UNDER the New Zealand Bill of Rights Act 1990 andCorrections Act 2004BETWEEN TANYA FELICITY DUNSTANPlaintiffAND CHIEF EXECUTIVE, DEPARTMENT OFCORRECTIONSDefendantHearing: 30 October – 1 November 2023Appearances: Plaintiff in personSK Shaw and HT Reid for DefendantJudgment: 17 November 2023JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 17 November 2023 at 3 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Meredith Connell, Auckland.Copy to: PlaintiffThe case[1] Tanya Dunstan was remanded in custody on 29 December 2018 until3 January 2019. Ms Dunstan alleges aspects of her incarceration contravene s 9 of theNew Zealand Bill of Rights Act 1990, which protects against torture and cruel ordegrading treatment. Ms Dunstan seeks $1,277,000 in damages. She isself-represented.Background[2] The background is simple.[3] On Saturday, 29 December 2018, Mr Dunstan appeared in the New PlymouthDistrict Court on two charges of contravening a protection order and one of childabduction. The Court remanded Ms Dunstan in custody, and directed she be"brought back" on Thursday, 3 January 2019.1[4] Ms Dunstan was taken to the New Plymouth Remand Centre.2 The centre is asmall, custodial unit run by the Department of Corrections.3 Ms Dunstan arrived thereat 10.05 am.[5] All prisoners at the centre go through an induction process in which its rulesare explained. As part of this process, prisoners receive an induction pack, whichcontains a summary of the rules. Ms Dunstan acknowledges she was given this pack.[6] Another aspect of the induction process is a health assessment, conducted by anurse. Ms Dunstan had not been in custody before. Records describe her as "tearful".Consequently, Ms Dunstan was placed on 60-minute observations until the morningof 31 December 2018. This meant Ms Dunstan had to be checked by a Correctionsofficer every 60 minutes, including overnight.1 Warrant to detain Ms Dunstan (under s 168(4) of the Criminal Procedure Act 2011 and r 3.5 of theCriminal Procedure Rules 2012).2 The centre.3 The Department.[7] For the duration of her detention, Ms Dunstan was placed away from otherprisoners. Male and female prisoners may not mix, so Ms Dunstan was placed in acell by herself, away from male prisoners. The only other female prisoner did notarrive until 2 January 2019, and she was at risk of self-harm. That prisoner was placedin a special cell, on a different floor to Ms Dunstan.[8] Ms Dunstan was returned to the District Court, as required, on Thursday,3 January 2019. She was granted bail.[9] Ms Dunstan was collected from the court by Linda Smyth, a close friend, andMs Smyth's daughter, Rebecca Phillips. Ms Dunstan told them she had beenrepeatedly woken and not given appropriate food. Ms Dunstan also told Ms Phillipsshe had not been allowed to make telephone calls.The claim[10] We now move forward more than three years. On 10 October 2022,Ms Dunstan filed her claim in this Court.[11] On 15 March 2023, Associate Judge Gardiner directed Ms Dunstan file anamended claim to clarify its "legal basis":4I explained to Ms Dunstan that she needed to remove from the statementof claim any evidence, so that the claim is confined to the essential factsthat give rise to her claim. She should also remove the references to caselaw, which will form part of her legal submissions for the hearing. Sheneeds to identify the precise sections of the legislation, or other laws shesays the Department of Corrections breached when she was detainedbetween 28 December 2018 and 3 January 2019. She should only identifythe specific sections or laws she says were breached and eliminate others.Ms Dunstan needs to set out each alleged breach as an individual cause ofaction. So, for example, her first cause of action might be for breach ofs 77 of the Corrections Act 2004. Under that heading she will set out theessential facts that she claims establish that this section of this Act wasbreached. She will then state the relief she seeks in relation to that causeof action.4 Dunstan v Chief Executive, Department of Corrections [Minute] HC Auckland CIV-2022-404-002159, 15 March 2023 at [2]–[4].Drafting pleadings is difficult for anyone, and I encourage Ms Dunstan toapproach the Auckland Community Law Centre for assistance.[12] Ms Dunstan filed an amended claim the following day. It contains six causesof action, each with a corresponding "issue".5 I reproduce the six issues as theycontain the gist of Ms Dunstan's claim:Issue [1]: I was detained for 6 days in solitary confinement, repeatedly askedhow I was going to kill myself. I was tormented and tortured with food andsleep deprivation. All contact prevented and denied- including with anysolicitor or people to ask to be bailed at. In reviewing the notes made andprovided to me on 24 May 2022, I follow up with the intention of litigation toprotect myself and other victims of abuse and inhumane treatment. I neverreceived any written documentation about my segregation of total isolationfrom any contact with my family, friends, even written correspondence orother prisoners. This was in breach of my rights and liberties.Issue [2]: I was told I could not make calls as I had no credit on a calling card-when I asked to have my wallet to transfer this was declined- when peopleattempted to call me they were refused to be transferred and when they askedto put money on my calling card this was denied. The fact corrections havenow allegedly "not recorded" my inhumane treatment is of further concern.Issue [3]: My mail was read and thrown back at my feet days later being told"we don't mail out internationally." When I asked why I wasn't told so Icould mail it domestically to be sent on Sue said: "you're a smart woman, Ifigured you'd work it out- anyone no mail for the rest of the week". Mytorment with corrections officer "Sue" and her accomplices was inhumane andcruel. The fact corrections have now allegedly "not recorded" my inhumanetreatment is of further concern.Issue [4]: There is nothing from the notes of my day 3 assessment when themale nurse questioned the corrections officer about my sleep torture or foodbeing withheld. If no notes were made, that is in breach of my rights and inaccordance with standard health care outside of prison. Further- concealmentof evidence prejudicing me in proceeding arguably a criminal offense tomislead the courts and prevent a fair hearing. [s 116 Crimes Act 1961].Issue [5]: I was prevented my rights to visitors and the people who did call toask to speak to me / see me were refused- apparently corrections has "lost therecords" of these calls. I strongly suggest you locate these to avoid furtherlitigation of deliberately acting to pervert the course of justice.Issue [6]: The corrections department concealment of information, prejudicingme in proceedings and further compounding the emotional and psychologicaldamage inflicted on me preventing closure.5 The amended claim also contains a seventh cause of action and "issue", alleging van Bohemen Jwrongly delayed the trial. This contention could not sustain any cause of action (even if correct),and I say no more about it for this reason.[13] Ms Dunstan contends the conduct identified in each of these issues,individually or collectively, amounted to torture or cruel or degrading treatment incontravention of s 9 of the Bill of Rights Act. Ms Dunstan also contends the conductidentified in each issue involved a breach of the Corrections Act 2004, entitling privatelaw relief. Finally, Ms Dunstan alleges the Department owed her a duty of care whichit breached, and which is actionable by "a tort of negligence".6 As observed,Ms Dunstan seeks damages of $1,277,000.Trial[14] Trial took two and a half days.[15] Ms Dunstan testified, as did Linda Smyth and Rebecca Phillips.[16] The Department called four witnesses: Jack Saju, a nurse at the centre;Jennifer Rangiwananga, a former nurse at the centre; Shane Bennett, a Correctionsofficer; and Martainn Cuff, another Corrections officer.[17] Only Mr Cuff recalled Ms Dunstan. Mr Cuff was on duty on29 December 2018, when Ms Dunstan arrived. He recalled her as friendly but quiteemotional.Core contentions[18] The issues mentioned reduce to contentions that Ms Dunstan was:(a) In solitary confinement for six days.(b) Deprived of food.(c) Deprived of sleep.(d) Precluded visits.6 Amended statement of claim, para 12.(e) Prevented from sending mail.(f) Prevented from making telephone calls, including an initial call.[19] Ms Dunstan also contends the Department has concealed information abouther.[20] I consider each contention separately, then address what this means forMs Dunstan's claim.AnalysisWas Ms Dunstan in solitary confinement?[21] The concept of solitary confinement is simple enough, but absent a singledefinition.7 The core idea is that a prisoner is deprived of human contact for anunreasonable period, absent justification, or as a form of punishment.[22] Ms Dunstan contends her detention amounted to solitary confinement as shewas in a cell by herself, away from other prisoners, for six days.[23] As will be recalled from the background, this situation reflected circumstance.Ms Dunstan was the only female prisoner until 2 January 2019, and the other prisonerhad to be kept on a separate floor given risk of self-harm. Ms Dunstan also had to bekept apart from male prisoners. That she was is unremarkable.[24] Ms Dunstan accepted in cross-examination that she saw Corrections staff atleast four times each day: at breakfast, lunch, and dinner times, and when staffunlocked her cell so she could shower. Ms Dunstan also accepted there was a buttonin her cell which she could press to speak with staff.[25] On 29 December 2018, Ms Dunstan interacted with staff during the inductionprocess. On the same date, Ms Dunstan also had a health assessment with a nurse.7 See Attorney-General v Taunoa [2006[ 2 NZLR 457 from [190] and Tanoa v Attorney-General[2007] NZSC 70, [2008] 1 NZLR 429 from [184].Ms Dunstan also saw a nurse the next day. Until 9.47 am on 31 December 2018,Ms Dunstan was checked hourly.[26] I find Ms Dunstan was offered time in the yard given the following evidence:8Q. You also would have been offered yard time daily, is that right?A. As I saw it, there was nowhere to go. So, they would open my celland I had the space of the wing which was from the end wall whereI was up to the shower. I never went outside while I was there.Whether that was offered or not or in what capacity they imagined Iwould have access to this yard or how that would have taken place,it seemed humiliating, like they were taunting me with anopportunity of freedom that I simply did not have and, as accordingto them, had no access to because I was the only female prisoner ata male prison.THE COURT:Q. Just help me. Were you offered yard time?A. They opened the gate and said: "You can go out," and I said: "Wherewould I go?" At no stage was I inducted. I had no idea where yardtime was where the yard was or what that meant. I just knew that Ifelt vulnerable and threatened, primarily by the Corrections staff, andI wanted to minimise my contact with them as much as possible.[27] I do not doubt Ms Dunstan felt isolated and vulnerable. However, given thefeatures identified, I conclude she was not in solitary confinement irrespective of howthat concept is defined.Was Ms Dunstan deprived of food?[28] Section 72 of the Corrections Act 2004 provides:72 Diet(1) Every prisoner must be provided with a sufficient quantity ofwholesome food and drink based on the food and nutritional guidelinesfor the time being issued by the Ministry of Health, and drinking watermust be made available to every prisoner whenever he or she needs it.(2) As far as practicable in the circumstances, in providing food and drinkto prisoners, allowance must be made for the various religious, spiritual,and cultural needs of the prisoners.8 Notes of evidence, p 12, li 19 to p 13, li 2.(3) A medical officer or health centre manager may prescribe a particulardiet for a particular prisoner.[29] These requirements constitute minimum entitlements by s 69(1)(c) of the sameAct.[30] Ms Dunstan's amended claim is broad on this subject; it records she was"tortured with food ... deprivation". Ms Dunstan swore an affidavit on 7 October 2022in the same terms, albeit the affidavit appends an email sent by Ms Dunstan on31 May 2022 to the Ombudsman, in which she says, "security staff seemed annoyed Isaid I was lactose intolerant and refused to give me breakfast that wasn't weetbix andmilk which I couldn't drink/eat".[31] In cross-examination, Ms Dunstan said she told the nurse who conducted theinitial health assessment she was lactose intolerant, but she was not provided with adairy-free breakfast until either 31 December 2018 or 1 January 2019. It follows thepleaded allegation of "torture" by food deprivation has no correlation to whatMs Dunstan actually alleges: that she was not given a dairy-free breakfast on two orthree mornings. Furthermore, the evidence implies this occurred on one or twomornings only.[32] Ms Dunstan did not arrive on 29 December 2018 until 10.05 am—presumablyafter breakfast. Her records for that day are silent on the topic of lactose intolerance,unlike those for 30 December 2018, which refer to dairy products as causing herdiarrhoea. Food at the centre is delivered from Whanganui, so immediate correctionof the problem was not possible. On Ms Dunstan's evidence, the problem wascorrected either the next morning, or on the morning of 1 January 2019, throughprovision of "a Marmite sandwich or something".9 All of which means Ms Dunstanwas not given a suitable breakfast on one or two mornings—30 December and perhaps31 December 2018—albeit through no fault on the part of the Department.9 Notes of evidence, pp 24–25.[33] This leaves one matter here. Mr Cuff said "plenty of fruit" was available atbreakfast in any event. Ms Dunstan said fruit was not available to her, as she had"already been intimidated, harassed and as I saw it, threatened".[34] I do not accept this aspect of Ms Dunstan's evidence. It is not supported byany other evidence. Moreover, while Ms Dunstan told Ms Smyth and Ms Phillips thefood had not been appropriate, she did not tell either she had been intimidated,harassed, or threatened during her incarceration.Was Ms Dunstan deprived of sleep?[35] Ms Dunstan's amended claim is broad on this subject also; it records she was"tortured with ... sleep deprivation". Ms Dunstan's affidavit of 7 October 2022 is inthe same terms, albeit the email referred to earlier says:(a) "I was woken almost hourly with a torch in my face to wake me up".(b) "When I placed a mattress over the window to get sleep, I was wokenby being physically shaken".[36] In cross-examination, Ms Dunstan said (a) occurred on the nights of 29, 30 and31 December 2018 and (b) occurred on the night of 31 December 2018. Ms Dunstanalso said in cross-examination she complained of sleep deprivation to a male nurse on1 January 2019.[37] Ms Phillips said Ms Dunstan told her people kept checking her at night, shiningtorches in her face. Ms Smyth said Ms Dunstan told her she had been wokenrepeatedly.[38] Mr Cuff said staff: go through with a flashlight and shine it at the floor or ceiling inside thecell. We do not shine the flashlight straight on the prisoner, we just shine it atthe floor or the ceiling of the cell to ascertain they are in there and okay. Tocheck that they are okay, we have to ascertain they are breathing. If we cannotsee any movement from the prisoner, we shine the torch a bit closer in theirdirection to see if we can be sure that they are breathing and there is no signof self-harm or suicide.[39] Mr Cuff said if Ms Dunstan had placed a mattress against the door during theday, staff would have entered the cell and asked her to remove it. However, hadMs Dunstan placed a mattress against the door during the night, the position wouldhave been different:At night, we cannot enter the cell without permission from management. Thatis to keep staff safe, so that staff do not open the cell door at night and have ahiding prisoner escape. Opening a cell door at night has a procedure, and it isa big deal. It is taken so seriously, that opening the door without permissioncould result in staff losing their job.[40] Mr Cuff added if staff had entered Ms Dunstan's cell at night, that would berecorded in an incident report.[41] Mr Bennett gave similar testimony. He said entry to a cell at night required theapproval of a manager at Whanganui Prison, would be recorded in an incident report,and unauthorised night-time entry of a cell constituted "a sackable offence".[42] No record exists of any night-time entry to Ms Dunstan's cell; of a complaintof sleep deprivation on 1 January 2019; or of a consultation with nursing staff on thatdate. However, as observed, Ms Dunstan had assessments with nursing staff on 29 and30 December 2018. Associated records are silent about sleep. Mr Saju, a nurse, saidhad a complaint about sleep been made, he would have documented that and spokento a Corrections officer. Instead, Mr Saju recorded on 30 December 2018 thatMs Dunstan was "tearful at times due to the current situation and being separated fromher children". The hourly checks on Ms Dunstan ended the following morning.[43] I conclude that while Ms Dunstan was woken inadvertently by the hourlychecks on 29 and 30 December 2018, Corrections staff did not intentionally depriveher of sleep, or enter her cell at night and shake her awake. I treat the significance ofnight-time cell entry, the absence of a corresponding record, and the lack of need forthat to occur as meaning it did not. Rather, I find Ms Dunstan became sleep-deprivedduring her incarceration because of the nature and unfamiliarity of her environment;the hourly checks until the morning of 31 December 2018 (which were for herwelfare); and associated stress and anxiety.Was Ms Dunstan prevented visits?[44] Section 73(1) of the Corrections Act provides a prisoner is entitled to at leastone visitor each week.[45] Ms Dunstan is correct she was not allowed visitors at the centre. But this isbecause no visits are available at the centre, which is explained in the induction packand which Ms Dunstan had. Mr Cuff and Mr Bennett said had Ms Dunstan been incustody for more than six days, she would have been transferred to Arohata Prison tofacilitate in-person visits. Their evidence recognises the statutory entitlement tovisitors is weekly; Ms Dunstan was not in custody for a week.Was Ms Dunstan prevented from sending mail?[46] Section 76 of the Corrections Act provides a prisoner may send as much mailas they wish, subject to payment of postage as addressed by regulation. Regulation 83of the Corrections Regulations 2005 provides the prison must pay the postage of up tothree standard letters per week, per prisoner, within New Zealand, and may paypostage in excess of that.[47] Ms Dunstan said in evidence she wrote three letters, all to Australianaddressees. None were sent because of that fact. As will be apparent from theprovisions above, this response was available to the Department.[48] Ms Dunstan also said a staff member by the name of "Sue" threw her mail backat her and taunted her about it. For the reasons set out at [68] onward, it is unlikelythis occurred.Was Ms Dunstan prevented from making telephone calls, including an initial telephonecall?[49] Section 77(3) of the Corrections Act provides a prisoner is entitled to make atleast one outgoing telephone call each week of up to five minutes' duration.Section 77(6) provides a prisoner may be required to meet the cost of a telephone callor pay a fee.[50] Regulation 85 of the Corrections Regulations provides "unless the manager ofa prison thinks it is in the interests of the prisoner or some other person, no prisonermay receive any incoming telephone call". Regulation 87(4) provides a prisoner must,immediately after reception to a prison, be allowed one free telephone call withinNew Zealand to advise the prisoner's next of kin of their location.[51] Ms Dunstan testified she was prevented from making any telephone callsduring her incarceration. Ms Dunstan said she asked to phone her father in Australia,to phone the Australian Consulate (in New Zealand), and to access her mobile phoneto identify a New Zealand-based number to call.[52] Mr Cuff said:10... To have an initial phone call, the prisoner needs to provide us with a phonenumber to ring, and we then repeatedly try that phone number. We always doan initial phone call the day a prisoner comes in. That initial phone call wasusually used by a prisoner to ask others to drop off phone cards to NPRC as aone-off initial drop, as it would have just been explained to the prisoner as partof the induction that phone cards were the method for them to use to makeoutgoing phone calls.Ms Dunstan has said she requested a phone call with the Australian Consulate.I do not recall, from my interactions with Ms Dunstan, her making such arequest to me and I do not recall any staff mentioning to me that Ms Dunstanhad made such a request. That is something I would remember if she hadasked for it. Prisoners do have the right to ask for a phone call to theirconsulate and that is something we do provide, but it is an odd request andodd requests do stick with me, and we would have filed noted that request hadshe made it.Once a prisoner has told us the phone number to ring for their initial phonecall, we call a Corrections 0800 number and they check IOMS for protectionorders or any alerts preventing contact, and if there are no concerns then theycall the phone number and ask if that person wants to speak with the prisoner.If there is no answer, the call centre tries two or three times more before sayingthere is 'no answer' and they will file note that. We will keep trying over thecourse of the week until we get an answer. To then have that number availablefor the prisoner to make outgoing calls to, we then send the number toWhanganui Prison and the administration staff add it to the system and giveus a PIN number loaded with approved phone numbers, which we pass on tothe prisoner.I remember the initial phone call process being part of Ms Dunstan'sinduction, because I remember at the time there was something stopping herfrom being allowed to ring her children or partner. I recall the at-riskassessment being done, which involves going through a series of questions10 Brief of evidence dated 26 September 2023 at paras 3.30–3.33.about their mental health, and it is a big list of questions but after thathappened, I recall handing over to a colleague whose job it was to obtain theinitial phone call number from Ms Dunstan, run the required IOMS checksand call the call centre with the phone number. But I remember Ms Dunstanwas racking her brain for a phone number to ring. I recall that part of theinduction process, but I had no further part in Ms Dunstan's induction socannot recall which phone number she usually provided for her initial phonecall.[53] In cross-examination, Mr Cuff said another officer dealt with Ms Dunstan'sinitial phone call, as he left to deal with other duties. However, Mr Cuff said he didrecall Ms Dunstan trying to recollect a telephone number to call. Ms Dunstan askedMr Cuff if she would have been prevented from accessing her mobile phone to retrievea number. Mr Cuff said she would, as prisoners are not allowed to access anymobile phone, as these can and have been misused by prisoners.[54] Records contain no entry of an initial call by Ms Dunstan.[55] I find Ms Dunstan did not make an initial telephone call, or any other.This determination is consistent with the records. It is also consistent with all of theother evidence, including Ms Dunstan's and that given by Ms Phillips. However,I also find Ms Dunstan was not prevented from making calls as she alleges.Ms Dunstan's entitlement was confined to calls within New Zealand, and Ms Dunstanhad difficulty in recollecting a New Zealand-based number. It is likely she asked toaccess her phone to retrieve a number, and equally likely that request was refused onsecurity grounds, hence legitimately. Therein, I apprehend, lies the source ofMs Dunstan's frustration.[56] I am not persuaded Ms Dunstan asked to call the Australian Consulate, for thereasons identified by Mr Cuff; that he would have remembered such a request—anddocumented it. I accept Ms Dunstan believes she made such a request, but I considershe is mistaken. Calls to a consulate are afforded, and it is not obvious why such arequest would not be facilitated. To the extent Ms Dunstan alleges staff actedmaliciously toward her, I am not persuaded this is so. Ms Dunstan was unknown tostaff, a first-time prisoner, and described as "a polite individual". That she would bethe target of malicious behaviour is, in the circumstances, improbable.11 Thisobservation introduces some more general ones about the evidence.[57] Ms Dunstan argued I "must" accept all of her trial testimony because (a) shewas at the centre, and I was not and (b) the Department's witnesses addressed herevidence indirectly; three of the four witnesses did not even recall her.[58] I do not accept this submission for three reasons. First, as plaintiff, it isincumbent on Ms Dunstan to prove her case to the civil standard. Second, a case mustbe decided on the totality of the evidence, not just the plaintiff's. In this context, thatincludes the records placed in evidence, the systems and procedures described byCorrections staff, and obviously, the evidence of those staff. Third, I considerMs Dunstan has a tendency to exaggerate, wittingly or otherwise. An example is at[30], when an allegation of "torture" by food deprivation is no more than the absenceof a dairy-free breakfast on one or two occasions. Another is at [35], when anallegation of "torture" by sleep deprivation is quite removed from what occurred.Expressed more directly, I consider Ms Dunstan's testimony unreliable. I considerMs Dunstan has misinterpreted and misremembered what occurred during herincarceration, so that she now perceives malice and mistreatment when, in fact, therewas neither. This may be because the experience was novel, stressful, andfrightening—even discombobulating.Has the Department concealed information about Ms Dunstan?[59] No evidence exists to substantiate Ms Dunstan's contention the Departmenthas concealed information about her.[60] In her closing address, Ms Dunstan emphasised a single page of the centre'srecords for 1 January 2019 is missing. Ms Dunstan said that page would have shownshe complained of sleep deprivation on 1 January 2019. That, she said, was why thepage is "missing".11 For completeness, Ms Dunstan also said she was wrongly denied incoming calls to the centre.Regulation 85 addresses this complaint, as does the evidence from the staff, which was that noincoming calls for prisoners are permitted.[61] That a single page is missing does not necessarily imply anything sinister.After all, Ms Dunstan did not complain about her treatment until 2022, and the recordsgo back several years. Approached the other way, Ms Dunstan's incarceration at thecentre is documented, and that documentation is unremarkable.[62] Ms Dunstan also said it was significant that closed-circuit television footagefrom the centre is no longer available. This is because such footage is retained onlyfor one month, unless a timely request is made to save it.12 No such request was made.Summary[63] Mr Dunstan was not in solitary confinement or deprived of food or sleep.A suitable breakfast was not available once or twice, through no fault of theDepartment. Ms Dunstan became sleep deprived, again through no fault of theDepartment. Ms Dunstan was not wrongly denied visitors, as her entitlement to avisitor had not crystallised. Ms Dunstan was not prevented from sending mail ormaking telephone calls, as the Department was not obliged to facilitate mail or callsbeyond New Zealand. The Department has not concealed information aboutMs Dunstan.[64] All aspects of Ms Dunstan's claim fail on the facts. Consequently, no questionarises of torture; of cruel or degrading treatment; of a breach of statutory duty, of anyclaim in tort; or of consequential damage. I add this. Even if I had acceptedMs Dunstan's evidence as reliable (which I do not), doubt attaches to whether it couldsustain the pleaded claims given the very high threshold required for torture or cruelor degrading treatment;13 and the law in relation to the other claims.14[65] This leaves my reasons for trial rulings, which I said would accompany thejudgment.12 Affirmation of Tara Helm dated 25 September 2023.13 See Tanoa v Attorney-General, above n 7.14 For example, see Harriman v Attorney-General [2015] NZHC 3197.Trial rulings[66] On the first day of trial, I set aside three subpoenas issued at Ms Dunstan'srequest, one in relation to Jack Saju; a second in relation to Suzanne Steuart-Muirhead;and a third in relation to Paul Keegan.[67] I set aside the first as the Department had said it was calling Mr Saju as awitness, in response to Ms Dunstan wanting him called. I made my ruling conditionalon Mr Saju being called by the Department, which he was. Ms Dunstancross-examined Mr Saju.[68] I set aside the second and third subpoenas as I was satisfied neither proposedwitness had relevant evidence to offer. A little history is needed. On 2 October 2023,Ms Dunstan filed an application concerning subpoenas in relation to "Susan Bennett"and Paul Keegan. Ms Dunstan believed "Susan Bennett" was the "Sue" who hadthrown her mail back at her and taunted her. The application came before Fitzgerald Jas Duty Judge. The Department explained to the Judge that no one called "Sue"worked at the centre while Ms Dunstan was there.15 The Judge declined to make anyorder in relation to "Susan Bennett" for this reason.16 The Judge allowed a subpoenato issue (in the usual way) in relation to Mr Keegan but noted the Department mayseek to set it aside, which it later did.[69] Immediately before trial, Ms Dunstan obtained a subpoena forMs Steuart-Muirhead, on the basis she was "Sue". In response, Ms Steuart-Muirheadswore an affidavit17 in which she explained she had never worked at the centre; indeed,that she had never been there. I, therefore, set aside the subpoena on application bythe Department.[70] Paul Keegan is a lawyer in New Plymouth. Ms Dunstan wanted Mr Keegan totestify to demonstrate (a) she should not have been remanded in custody; and (b) thewarrant for her detention was invalid. Ms Dunstan said Mr Keegan could speak to15 Shane Bennett did, and he testified. Mr Bennett is, obviously, male.16 Fitzgerald J directed the Department to file an affidavit (or affirmation) confirming what she hadbeen told. An affirmation of Emily Totman was later filed in accordance with the direction.17 Dated 27 October 2023.both aspects. I set aside Mr Keegan's subpoena as Ms Dunstan's claim did not allegefalse or wrongful imprisonment; rather, it alleged mistreatment during imprisonment.Ms Dunstan also said Mr Keegan's potential testimony had "contextual relevance".That could not be correct as Mr Keegan was not at the centre and played no role inMs Dunstan's incarceration, beyond perhaps, being duty solicitor at theNew Plymouth District Court on 29 December 2018. I, therefore, also set aside thatsubpoena.[71] On day two of the trial, Ms Dunstan invited me to revisit my determination inrelation to Mr Keegan. Ms Dunstan also asked me to require the Department to callHelen Chitty as a witness. Ms Chitty was a Corrections officer at the centre whenMs Dunstan was there but had since left the Department. Ms Dunstan said Ms Chittymust be "Sue".[72] Ms Dunstan had, by then, alleged "Sue" was "Susan Bennett", thenMs Steuart-Muirhead. Ms Dunstan had also cross-examined the Department'switnesses about "Sue's" appearance according to this description: mid to late fifties,short, reasonably stocky, with short blonde or grey hair. No one recognised anyoneby that description. Ms Dunstan had also shown each of the witnesses an enlargedphotograph of "Sue", albeit wearing a mask, apparently taken from social media. Noone recognised the person shown in the photograph.[73] Against this background, I declined to require the Department to callHelen Chitty, even assuming such an order could be made. I also declined to draw anadverse inference in relation to Ms Chitty not being called by the Department.18 Eitherwould have been contrary to the interests of justice, as Ms Dunstan had not raised theissue of Ms Chitty's possible attendance until the weekend immediately before trial;Ms Chitty was no longer employed by the Department, "Sue" played a modest role inthe alleged events; and real doubt attached to whether "Sue" existed.18 Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731.[74] I also declined to:(a) Require the Department to answer Ms Dunstan's questions about theselection of its witnesses. Quite apart from the question of jurisdiction,that was a matter for the Department.(b) Revisit my determination in relation to Mr Keegan. Circumstances hadnot changed to permit that.Result[75] Ms Dunstan's claim is dismissed.Costs[76] If the Department seeks costs, it should file and serve a submission of no morethan eight pages on or before 2 February 2024; and Ms Dunstan should respond witha submission of not more than eight pages on or before 16 February 2024. I will thendetermine costs on the papers (as usually happens).Postscript[77] After the trial concluded, Ms Dunstan was banned (by another Judge) fromcommencing or continuing civil proceedings, absent permission from a Judge of thisCourt.19 I give Ms Dunstan permission to respond in relation to costs, if sought by theDepartment, in the manner identified at [76]...Downs J19 Re Dunstan [2023] NZHC 3176.