IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-7339

UNDER	the Judicature Amendment Act 1972 and the Declaratory Judgments Act 1908

IN THE MATTER OF	an application for Judicial Review and
Interim Relief

BETWEEN	ARTHUR WILLIAM TAYLOR Plaintiff

AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing:	25 May 2010

Appearances: Plaintiff in Person
Victoria Casey and Greg Robins for Department of Corrections

Judgment:	1 June 2010 at 11:00am

JUDGMENT OF HUGH WILLIAMS J

This judgment was delivered by The Hon. Justice Hugh Williams on
1 June 2010 at 11:00am
pursuant to Rule 11.5 of the High Court Rules

……………………………………………..
Registrar/Deputy Registrar

A.  The plaintiff’s application for Counsel for his child to be appointed is declined.

B.  Timetable orders - as appearing in the judgment.

ARTHUR WILLIAM TAYLOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2009-404-7339  1 June 2010

Introduction

[1]       The plaintiff, Mr Taylor, is a serving prisoner, currently detained in Auckland Prison at Paremoremo.  He is also the father of a daughter, Siobhan, who was born on 12 June 2007.

[2]       Up until 15 September 2009 Siobhan visited Mr Taylor on a monthly basis for about an hour at a time in Auckland Prison.  However, on 12 October 2009 the manager at Auckland Prison terminated those visits.

[3]       This judicial review application was filed by Mr Taylor on 4 November 2009. In an amended claim dated 31 March 2010, but filed on 21 April 2010, in these judicial review proceedings Mr Taylor:

a)        Challenges the lawfulness of the “non-contact policy” for parent/child visits imposed by the respondent “on all prisoners detained at East Division Auckland Prison and on all CB classification prisoners detained by other prisoners in New Zealand”.

b)        Challenges the lawfulness of the decision of the manager of Auckland Prison  so  far  as  it  relates  to  visits  between  Mr Taylor  and  his daughter.

c)        Challenges whether the decision made by the manager took proper account of the United Nations Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and correctly applied the Corrections Regulations 2005.

d)        Challenges whether Corrections’ policy relating to the classification of male and female prisoners amounts to sexual discrimination.

e)        The actual grounds for review are, first a breach of natural justice, namely s 27 of the New Zealand Bill of Rights Act 1990;  secondly, that the cancellation of the agreement concerning Siobhan’s visits to Mr Taylor was unreasonable and that no reasonable decision maker would  have  made  it;     thirdly  that  the  decision  to  cancel  the arrangement was illegal or failed to take account of relevant considerations including provisions of NZBoRA, ICCPR, UNCORC and the United Nations Standard Minimum Rules for the Treatment of Prisoners   and   the   Corrections   Regulations;   and   fourthly   that Mr Taylor  had  a  legitimate  expectation  that  he  be  advised  of  the intention to cancel the arrangement and given an opportunity to comment on it.   Declarations under the Declaratory Judgments Act
1908 and New Zealand Bill of Rights Act 1990 are sought.

[4]       Partly because of Mr Taylor’s incarceration, partly because he sought interim relief and generally in order to ready the substantive case for hearing, a number of conferences have been held concerning the file.   It is unnecessary to account for them all save to note that Mr Taylor’s application for interim relief was dismissed by Heath J on 8 March 2010 for lack of jurisdiction, although the Judge did observe the “hearing should be afforded some urgency”.

[5]       More importantly for present purposes, on 19 March 2010 Mr Taylor applied for  the  Court  to  appoint  an  amicus  curiae  or  an  independent  expert  to  obtain evidence from a Dr Newbold, a criminologist, and an expert child psychologist. Further, on 14 April 2010 as a result of this Court’s judgment delivered on 13 April
2010 Mr Taylor applied for the Court to appoint counsel for Siobhan.

[6]     This judgment deals with the latter application:   the former remains undetermined although observations on it were contained in the Court’s Minute of
15 March 2010 and it has been the subject of comment at subsequent conferences. [7]	Two further matters warrant noting as part of this introduction.  They are:

a)        Mr Taylor attached to his memorandum of 14 May 2010 a four page brief of evidence from Dr Newbold.

b)        At the conference on 18 May 2010 Mr Taylor advised that CYFS had changed its stance and no longer opposed reinstatement of monthly visits  by  Siobhan.    Ms Casey  was  unaware  of  CYFS  change  of position at that stage but filed a memorandum dated 21 May 2010 saying that pending the hearing of an application by Mr Taylor to the Family Court “CYF will agree to monthly visits with Mr Taylor, and that those visits can take place under normal visiting conditions at the prison (i.e. on a Sunday, in the ordinary non-contact visits room)” and that “Corrections would allow these visits under expanded visiting conditions” with there being “no basis to approve an ongoing regular exception to standing visiting arrangements for Mr Taylor”.

[8]       Assuming monthly visits subject to those conditions will now be reinstated, Mr Taylor was, at the conference on 25 May 2010, asked to identify what was left “alive” in his judicial review proceeding.   He said he continued to challenge the visiting policy as it related to all prisoners, continued to challenge the lawfulness of the decision to terminate Siobhan’s visits to her father and the conditions under which they had and would occur, especially a condition requiring no contact between parent and child;  and would continue to challenge the security classification system as it related to maximum security prisons on the grounds of sexual discrimination.

Should counsel for the child be appointed?

[9]       The judgment of 13 April 2010 dealt with the facilities available to Mr Taylor in Auckland Prison to conduct this (and his other) proceedings, including modified computer access and  a printer and the area where he is able to use that equipment. The judgment also discussed the postal arrangements for Mr Taylor and his access to legal material and precedent cases.  Then, after discussing other matters not presently relevant, the Court continued:

d)         Although the cases reviewed by Mr Taylor show that amici have  been  appointed  on  a  number  of  occasions  so  as  – putting it broadly – that the fairness of a trial to all participants can be preserved as far as possible, it remains the case that the basic role of an amicus is to assist the Court
– not particularly to assist a litigant – and the basic role of a Court expert appointed under r 9.36(1) is to comply with the code of conduct for expert witnesses and “inquire into and report upon any question of fact or opinion not involving questions of law or of construction”.   That role is well removed from the somewhat partisan evidence Mr Taylor obviously expects Dr Newbold and the child psychologist to provide. …

[33]      Whilst it is not difficult to conceive of the possibility a Court trying Mr Taylor’s substantive proceeding may derive relevant and useful evidence from Dr Newbold and a child psychologist, it remains a fundamental hurdle to Mr Taylor’s applications that the roles of an amicus curiae or a Court expert are essentially non-partisan – and fundamentally Mr Taylor wishes to engage them to obtain evidence which basically will be to help his case, not to help the Court.

[34]      All those factors combined indicate that the appropriate course might well be to dismiss Mr Taylor’s applications on the basis of the confusion of roles between what he wants and what assistance the Court is likely to get. The  lack  of  particularity  in  what  Mr Taylor  proposes  also  make  an appointment inappropriate or likely to be unhelpful in the resolution of these proceedings.

[10]	The Court then observed:

[36]      Two  possible  courses  of  action  commend  themselves  as  worth further inquiry.

[37]      The first is that Dr Newbold and a nominated child psychologist should be invited to submit to the Court and the parties a résumé of the evidence they believe they would be able to give which would be of assistance to the Court in resolving the issues, together with an estimate of

the fees and disbursements likely to be incurred in that exercise.  That might include the cost of spending sufficient time with Mr Taylor – either in person or on the telephone – to familiarise themselves with the issues and gain an impression of the degree to which they might assist.  Since Heath J directed that this case be accorded “some urgency”, those résumés should be filed and served within 28 days of delivery of this judgment.

[38]      The other possible line of action is that, in his latest memorandum, Mr Taylor said that, amongst the persons whom he can telephone apart from the prison pay phone, is Ms Cobcroft as counsel for his daughter.   The Corrections affidavit said that Ms Cobcroft is counsel for the child in a custody case in which Mr Taylor must be involved.  But the interests of Mr Taylor’s daughter in this litigation would appear to be likely to parallel those of her father and the evidence of the criminological and psychological evidence Mr Taylor wishes to adduce would appear to be as relevant to his daughter’s position as to Mr Taylor’s.  It is, of course, recognised that this case challenges the lawfulness of Corrections’ actions in ending custodial visits between Mr Taylor and his daughter.  But if, at the end of this case, Corrections’ actions in ending those visits were to be held unlawful as far as Mr Taylor is concerned, it would seem to follow they would almost certainly be unlawful as far as his daughter is concerned as well.

[39]      In those circumstances, consideration might usefully be given by the parties to the possibility of appointing counsel for the daughter in these proceedings, directing that counsel be served pursuant to s 10(2)(c) of the Judicature Amendment Act 1972, and making appropriate procedural or timetable directions.

[40]      Should  that  course  be  followed,  it  seems  highly  likely  that  Mr Taylor’s daughter would be entitled to legal aid for her counsel and accordingly  that  counsel,  if  he  or  she  considered  it  appropriate,  could consider the benefit to his or her client of calling criminological and psychological evidence.  They could seek legal aid funding for that course if it seemed best so to do.

[41]      Mr Taylor and Ms Casey are to advise their views on that possible course of action also within 28 days of delivery of this judgment.

[11]     Mr Taylor’s applications for the appointment of an amicus curiae or Court appointed expert were adjourned part-heard.

[12]     As  mentioned,  since  that  judgment  was  delivered,  circumstances  have changed to a significant degree, not least by the pending reinstatement of Siobhan’s monthly visits to the applicant and by the statement furnished by Dr Newbold.

[13]     In addition, Ms Casey has filed memoranda expressing Corrections’ concerns at the indication counsel for the child might be appointed.  In particular, Corrections’ view is that Siobhan’s best interests do not parallel those of Mr Taylor because she is currently the subject of an order under s 78 of the Children, Young Persons and Their Families Act placing her in the custody of the Chief Executive of the Ministry of Social Development and, in addition, a declaration that she is a child in need of care and protection under s 67 has been made and upheld by this Court.  The Family Court   is   currently   considering   a   post-declaration   plan   under   s 128   despite Mr Taylor’s opposition.

[14]     Ms Casey advised CYFS is opposing an application for monthly visits by Mr Taylor based on a specialist psychologist’s report provided to the Family Court reporting on the effect of the previous visiting arrangements.   That, a Directions Minute of 26 February 2010 in the Family Court apparently says, identifies Siobhan was “having significant psychological issues”

[15]     Corrections therefore took the view not only that Siobhan’s interests in this proceeding did not parallel those of her father, but that Mr Taylor should not be permitted,  by  the  appointment  of  counsel  for  the  child,  to  adduce  evidence supporting his case which should more properly come from him or witnesses called by him.   Ms Casey made the point that Mr Taylor is entitled to instruct counsel – though he has consistently said he wishes to represent himself – and is entitled to legal aid.  Of importance, Ms Casey made the point that Siobhan’s interests in the judicial review may impact peripherally on that part of Mr Taylor’s claim which will deal with the lack of visits between September 2009-May 2010, but has little or no relevance to any other part of the claim, particularly those relating to the position of prisoners generally.

[16]     She submitted that Siobhan’s best interests are squarely before the Family

Court and should be dealt with in that specialist and experienced forum.

[17]     The  adducing  of  further  material,  including  the  further  memoranda  and further reflection on the case as it currently stands, has led the Court to the view that Siobhan’s  position  is  no  longer  at  the  heart  of  Mr Taylor’s  judicial  review proceedings and accordingly the appointment of counsel for the child is not appropriate.

[18]     Amongst the reasons are:

a)        She is too young to communicate her wishes to counsel for the child and thus to the Court, so is unable to express any view which may be relevant to the proceedings as they currently stand.

b)        While Siobhan may be thought to have an interest in the outcome of that aspect of the judicial review claim which may deal with future visits, the absence of visits between Mr Taylor and herself over the eight months to May 2010 is highly unlikely to be a prime focus of the claim once visits are reinstated.

c)        It must be acknowledged that one of the reasons for the suggestion that counsel might be appointed for Siobhan was so psychological evidence  might  be  adduced  by  that  counsel  more  easily  than  by Mr Taylor.    However,  there  are  psychological  reports  concerning Siobhan before the Family Court and there appears to be no reason why Mr Taylor could not exhibit those to his affidavits should he consider they provide relevant and helpful evidence on the judicial review.

d)        By  those  means  –  and  the  comments  that  follow  concerning Dr Newbold’s  evidence  –  all  the  evidence  which  Mr  Taylor  may consider is relevant to the judicial review will be before the Court at the substantive hearing.  Looked at another way, there is no reason to

conclude that, if counsel for Siobhan were to be appointed, there is evidence which might be adduced on her behalf beyond that which Mr Taylor  –  admittedly  with  some  difficulty  –  would  be  able  to adduce.

[19]     For  all  those  reasons,  Mr Taylor’s  application  for  the  Court  to  appoint counsel for his daughter is declined.

[20]     Turning  to  Dr Newbold’s  evidence,  again  there  seems  no  reason  why Mr Taylor could not exhibit Dr Newbold’s report to an affidavit or, preferably, have Dr Newbold swear a brief affidavit exhibiting his report.

[21]     That would ensure Dr Newbold’s report is in evidence, but the Court’s view is that distinctions need to be drawn between the provision by Dr Newbold of his evidence to date, the way in which that evidence may require modification as a result of further consultations between Mr Taylor and Dr Newbold and the way in which Dr Newbold’s evidence will be dealt with at the substantive hearing.

[22]     As to that last, recognising the inconvenience and cost in endeavouring to have Dr Newbold appear at the substantive hearing in person, it may well be the case that if Dr Newbold is to be cross-examined – unusual in judicial review cases - it could more readily be done by video link.

[23]     As to any further consultation between Mr Taylor and Dr Newbold so as to make the latter’s report more focused on the issues raised in this proceeding, that appears to be a matter for Mr Taylor to organise.  He is permitted a certain amount of telephone  contact  and  if  he  finds  that  inadequate  and  he  wishes  to  consult Dr Newbold  personally,  if  he  is  unable  to  fund  Dr Newbold’s  travel  expenses, accommodation and fee, that, he may have to accept is a consequence of his determination to represent himself.   Were he to apply for legal aid and instruct counsel,  it  is  likely  the  Legal  Services  Agency  would  fund  the  obtaining  of Dr Newbold’s evidence.  The fact that Mr Taylor does not wish to avail himself of that, may mean that he is unable to obtain more specific evidence from Dr Newbold

than is currently before the Court.  But the Court does not regard any of that as being in breach of Mr Taylor’s New Zealand Bill of Rights, especially those under s 27.

Other matters

[24]     There are a number of other matters which require to be noted.

[25]     Corrections had not at the date of the conference filed a statement of defence, but Ms Casey, leading counsel for the respondent, undertook to do so by 28 May
2010.

[26]     Mr Taylor has discussed issues of discovery, interrogatories and a notice to admit facts in his memoranda.

[27]     If pursued, it must be observed that interlocutory applications of that sort would be unusual in judicial review, but Mr Taylor is able to make the applications if he wishes and the Court will deal with them on their merits.

[28]     Mr Taylor’s application for the appointment of an amicus curiae remains undetermined.  If he wishes to pursue that - he has indicated he does despite earlier comments  –  the  first  step  is  to  ascertain  whether  the  parties  are  agreed  that application can be dealt with on the papers so far filed or whether further papers need to be filed and a formal hearing arranged.

[29]     Mr Taylor has indicated he intends to file two further affidavits.

[30]     The parties are agreed that the substantive hearing probably involves some cross-examination and will accordingly last for two days.

[31]     To progress this matter further, there will be a further telephone conference with Hugh Williams J on Wednesday 23 June 2010 at 9.00 a.m.

.................................................................
HUGH WILLIAMS J.

Solicitors:
Crown Law Office, PO Box 2858, Wellington (Victoria.casey@crownlaw.govt.nz)

Copy to:
Arthur William Taylor, Auckland Prison, Private Bag 50 124, Albany, North Shore city 0752

Case Officer: Vasantha.Kalbagal@justice.govt.nz