IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE	
CIV-2021-454-043
[2022] NZHC 599	

BETWEEN	DAVID STANLEY TRANTER
Applicant	
AND	CHIEF EXECUTIVE OFFICER MANAWATU PRISON
First Respondent	
AND	W R BENSEMANN
Second Respondent	

Hearing:	On the papers	
Appearances:	Self-represented Applicant
B D Vanderkolk for the First Respondent	
Judgment:	29 March 2022	

JUDGMENT OF COOKE J

[1]	In these proceedings Mr Tranter, who is an inmate at Manawatu Prison, seeks judicial review of two decisions made by the respondents relating to the terms of his incarceration. First, on or about 24 May 2021 Mr Tranter was dismissed from his employment as a “messman” at the prison. There is a dispute relating to the reason as to why he was dismissed from this position. Second, on 3 June 2021 the Visiting Justice, who is the second respondent, upheld on appeal Mr Tranter’s conviction for an offence against s 128(1)(a) of the Corrections Act 2004 (the Act). The relevant offence involved a failure to comply with prison rules relating to the taking of medication – in particular that he had failed to swallow pills he had been administered. He was ultimately sentenced to five days confinement (effectively solitary confinement) and 28 days of postponement of privileges.

TRANTER v CHIEF EXECUTIVE OFFICER MANAWATU PRISON [2022] NZHC 599 [29 March 2022]

[2]	Mr Tranter represented himself in this judicial review and the parties agreed that it would be determined on the basis of the written materials that each had filed. The second defendant abides by the decision of the Court.

[3]	In addressing the claims advanced by Mr Tranter in his document it seems to me that there are two primary grounds of challenge, namely:

(a)	that his removal from employment as a messman was a punishment for his alleged wrongdoing in failing to swallow his pills, and that the subsequent formal punishment was an unlawful second punishment in conflict with his right in s 26 of the New Zealand Bill of Rights Act 1990; and

(b)	that the Visiting Judge acted unlawfully in failing to allow Mr Tranter legal representation at the hearing before him, and that the conviction and sentence was unjustified.

First ground of challenge

[4]	Mr Tranter contends that his dismissal as a messman was a punishment for the alleged misconduct in relation to his medication, and accordingly the subsequent formal penalty imposed was unlawful. In essence, Mr Tranter submits this constituted double jeopardy under s 26 of the New Zealand Bill of Rights Act 1990 as he alleges he was punished for the same offence twice.

[5]	Mr Vanderkolk argued that employment decisions of this kind are not reviewable. Prisoner employment is generally governed by s 66 of the Act. The Act and regulations are silent as to what sort of conduct may result in dismissal. Section 66(1)(a) gives the prison manager discretion in relation to prisoners’ employment.1 This should be exercised in accordance with the principles of the Act.2

1	Corrections Act 2004, s 66(1)(a); every prisoner may, while in custody, be employed in any work that is directed or provided by the prison manager.
2	See s 6(2): persons who exercise powers and duties under the Act must take into account principles set out in s 6(1) that are applicable (if any), so far as is practicable in the circumstances.

[6]	In Smith v Attorney-General a prisoner challenged the decision to terminate his employment as a leading messman in a maximum security block. Edwards J found that the applicant faced a number of significant hurdles in persuading the Court that the decision was amenable to review, including because:3
The statutory context makes it clear that decisions around prisoner employment are made as part of the day to day operations of a prison and the general management of prisoners. Courts have traditionally been reluctant to interfere with operational decisions of prison management, particularly where the impugned decision does not impinge on a prisoner’s minimum entitlements. Prison based employment is not listed as one of a prisoner’s minimum entitlements in s 69 of the Act.

[7]	Here there is a dispute on the facts concerning the reason why Mr Tranter was dismissed. He says he was dismissed because of the alleged misconduct. The evidence of Corrections is that he was dismissed for ongoing misconduct in relation to his employment, including the theft of food and warnings in relation to the theft of food. Mr Tranter has subsequently filed supplementary submissions where he reiterates that he has suffered double jeopardy and alleges that he was told he was being dismissed because of his behaviour in the medical room.

[8]	I accept that there was a history of suggested shortcomings in Mr Tranter’s performance of his functions as messman, and for that reason I see no basis upon which the Court would properly interfere with the employment decisions by way of judicial review. I do not accept that this employment decision was a punishment for the alleged misconduct in relation to his medication. As Mr Vanderkolk argued, this decision was made before Mr Tranter was even charged with the office concerning his medication. The alleged medication offence was a separate matter that was dealt with by way of formal charges. In any event it may not have been improper for the prison authorities to take into account the further allegation when making the employment related decisions. These are the kinds of assessments prison authorities can be expected to make in their overall management of the prison. They are not the kind of decisions that are appropriately challenged by way of judicial review. More directly I do not accept Mr Tranter’s contention that the termination of his role was a punishment that renders the subsequent formal punishment unlawful.

3	Smith v Attorney-General [2016] NZHC 1145 at [28] (footnote excluded).

Second ground of challenge

[9]	Mr Tranter contends that the Visiting Justice acted unlawfully in refusing his request for legal representation at the hearing before him. The hearing was an appeal against Mr Tranter’s conviction for an offence in relation to the taking of medication and the penalty imposed.

[10]	Section 135 of the Corrections Act provides:

135	Applications for legal representation

(1)	If a prisoner requests permission to be legally represented at the hearing of a charge alleging an offence against discipline, the request must be considered and determined by—

(a)	a hearing adjudicator; or

(b)	if the case has been referred to a Visiting Justice under section 134, a Visiting Justice.

(2)	In determining whether to grant permission to a prisoner to be legally represented, the hearing adjudicator or Visiting Justice must have regard to—

(a)	the seriousness of the conduct that is alleged to constitute the offence and the magnitude of the penalty that is likely to be imposed:

(b)	the complexity of the issues that are likely to arise at the hearing (including, without limitation, points of law):

(c)	any procedural difficulties likely to be encountered (for example, the need to cross-examine witnesses):

(d)	the capacity of the prisoner concerned to present his or her case effectively:

(e)	the need for reasonable speed generally in decision-making required for the determination of charges relating to offences against discipline:

(f)	the need to ensure that hearings of those charges are conducted fairly as between—

(i)	different prisoners:

(ii)	the complainant and the defendant:

(g)	any other matter that the adjudicator considers relevant.

(3)	If a request under subsection (1) is considered by a hearing adjudicator and the adjudicator permits the prisoner to be legally represented at the hearing, the adjudicator must refer the case to a Visiting Justice for hearing and determination in accordance with section 137.

(4)	If the hearing adjudicator does not permit the prisoner to be legally represented, that hearing adjudicator or another hearing adjudicator must hear and determine the case in accordance with section 133, unless it is referred to a Visiting Justice under section 134.

(5)	A hearing adjudicator or Visiting Justice must provide the prisoner and the prison manager with a summary in writing of his or her reasons for the decision to permit or, as the case may require, not to permit the prisoner to be legally represented.

[11]	Here there is a complication in that Mr Tranter does not appear to have made a request for legal representation before the hearing adjudicator who initially upheld the charges against him and imposed a penalty. So the case is not within s 135(1)(a). Neither was the case referred to a Visiting Justice under s 134 such that s 135(1)(b) applied. Section 134 allows the transfer of charges if they involve higher penalty, or greater complexity, or both.4 The hearing before the Visiting Justice occurred by way of appeal under s 136. Under s 136 a Visiting Justice must hear the appeal, including if necessary by rehearing the whole case. Legal representation at that hearing is not expressly addressed by s 135. But it seems to me that s 135(2) applies by analogy to an appeal hearing before a Visiting Justice irrespective of whether legal representation was sought before the adjudicator.

[12]	A number of cases have considered the question of whether legal representation should be required for such hearings. In Drew v Attorney-General the Court of Appeal said:5
The ability of an inmate to put forward an adequate defence to a disciplinary charge, especially one attracting the higher level of penalties able to be imposed by a Visiting Justice, is also of relevance. An inmate of mature years and of average intellectual ability (i.e. average for the general population) can ordinarily be expected to cope with the task of defending himself against a charge when the facts are relatively straightforward (for example, where the decision will turn on a choice between two versions of an incident) and no question of legal interpretation or point of evidence arises. Most cases are likely to be of this kind.

4	Corrections Act 2004, s 134(2).
5	Drew v Attorney-General [2002] 1 NZLR 58 at [50].

[13]	The significance or seriousness of the charges is not the only consideration, as the factors in s 135 suggest. For example in Obiaga v The Visiting Justice at Auckland Prison Brewer J found that though the charges involved in that case were not complex, the defence the appellant was trying to put forward was not simple.6 His Honour observed that a Visiting Justice “can ensure fairness by assisting a prisoner to address the important issues through explanation and through focused questions”.7 Such assistance was not provided in that case, and the prisoner had English as a second language. The Court held that he was “not afforded a real opportunity to state his case to the best of his ability”.8

[14]	In the present case the transcript shows that Mr Tranter requested legal representation and that he indicated that he was confused about matters. The consideration of the charge by the adjudicator had only taken place the previous day so he had limited time to prepare. Mr Tranter is also of more advanced age. But notwithstanding those factors I accept the Visiting Justice did not make an unlawful decision in declining Mr Tranter’s request. The charges here were not serious, and apparently straightforward. It was said that Mr Tranter had failed to swallow the pills he had been administered when he had been required to, and had sought to conceal them in his mouth. This was a comparatively minor charge turning on a relatively straightforward factual matter which the prisoner himself could have been expected to deal with without the assistance of legal representation.

[15]	For these reasons I do not accept Mr Tranter’s second main argument.

[16]	But when charges are brought against a prisoner without legal representation it is necessary for the adjudicator or Visiting Justice to ensure the elements of the charge are properly proved. Here the relevant charge was under s 128(1)(a) which provides:

128	Offences by prisoner

(1)	Every prisoner (whether inside or outside a prison) commits an offence against discipline who—

6	Obiaga v The Visiting Justice at Auckland Prison & Anor [2018] NZHC 3095 at [28].
7	At [32].
8	At [33].

(a)	disobeys any lawful order of an officer or a staff member, or disobeys or fails to comply with any regulation made under this Act or any rule of the prison made under section 33:

…

[17]	The relevant requirement here was alleged to be one established by a rule of the prison issued under s 33. Section 33 allows prison managers, if authorised, to make rules that they consider appropriate for the management of the prison and for the conduct and safe custody of the prisoners.9 Under the local rules of Manawatu Prison established under s 33 the following rule was established:

Prisoners are NOT allowed to:

…

•	Divert their medication. When receiving controlled medication prisoner must follow all instructions from custodial or nursing staff and show the nurse that they have swallowed the medication to the satisfaction of nursing staff as per the poster at Medical.

…

[18]	This rule does not require a prisoner to swallow medication that is administered. Rather it requires a prisoner to follow instructions and then show that the medication is swallowed.

[19]	The evidence against Mr Tranter came from Corrections Officer Gary Roberts, who was asked:

Q.   And could you please tell us the events that took place with this prison in regards to his medication?

A. Yes, at approximately 0840 I was assisting morning medications when David Tranter came in to take his medication he took a white pill first, then he took his two green and white pills. He was asked by a nurse for a mouth check, meaning that it’s an implication that the medication has gone down. He said it had. We said “No, mouth check”, I think I said it “mouth check”. He said: “It’s gone”, “mouth check”, he opened his mouth up, he had his tongue protruding. I said: “No lower your tongue, David. I’ve got to see in your mouth”. When we finally could gain sight into his mouth I saw up on the top left side of his mouth a green and white pill. “No, the pill is still there, David. Take your pill.” After much he did take the pill.

9	Corrections Act 2004, s 33(1).

Q.	And would you consider this diverting medication”

A. Yes.  If we had not continually insisted even though he stated he had taken the pills he would have left the room and the medication would not have been consumed.

[20]	Mr Tranter had a slightly more complicated description of events when he gave evidence. But materially he said that he had not deliberately failed to take the pills, that they had got stuck in his false teeth, and that he had subsequently swallowed them when he was told to.

[21]	On the basis of this evidence the Visiting Justice held that the offence had been established because of the prison officer’s evidence that  he had seen the pills in    Mr Tranter’s mouth when conducting the mouth examination, and this did not appear to be disputed in Mr Tranter’s evidence.

[22]	As indicated, in the absence of legal representation a Visiting Justice and an adjudicator need to be sure that the charge is proved. The essence of the offence here is that Mr Tranter failed to follow instructions. The relevant requirements in the Prison Rules are to follow all instructions from custodial or nursing staff, and to show the nurse that they have swallowed the pills to the nurse’s satisfaction. There was no evidence that Mr Tranter was initially instructed to swallow his pills. That may have been the implication of him being given them, but there is no evidence of a formal instruction to the effect. Mr Tranter was then ordered to show that he had swallowed them. He does not appear to have initially opened his mouth in a satisfactory way but did ultimately reveal that all the pills had not been swallowed. When he was then instructed to swallow the pills he did so.

[23]	Based on that evidence, apart from an initial failure to open his mouth properly Mr Tranter did what he was told. He showed that he had not swallowed the pills when directed to open his mouth, and duly swallowed the pills when instructed. The findings of the Visiting Justice were not based on a failure to properly open his mouth on a mouth check, but an alleged failure to obey instructions when not swallowing the pills in the first place. But there is no evidence of such an instruction, and there is no such requirement in the rule itself established under s 33.

[24]	The requirement to prove the elements of offending are important even for prison offending of this kind. The relevant offence under s 128 was one of disobeying a rule of the prison established under s 33. A failure to follow an instruction needed to be proved. I do not accept an offence was proved here.

[25]	Given the comparatively minor nature of the charge, and that Mr Tranter has served any penalty he may be sentenced to, I uphold his claim for judicial review and quash the conviction and direct that there is no need for the charges to be reheard.

[26]	For these reasons I do not need to address the question of the penalty imposed by the Visiting Justice, although I note the submissions from Mr Vanderkolk acknowledging that the penalty imposed did not take into account the personal circumstances of Mr Tranter as required.

Cooke J

Solicitors:
BVA Law, Palmerston North for the First Respondent