IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2024-409-000322
[2025] NZHC 1349	

UNDER	the Judicial Review Procedure Act 2016	
IN THE MATTER OF	an application for review	
BETWEEN	DWAYNE DOUGLAS KEATS
Applicant	
AND	ATTORNEY-GENERAL
First Respondent	
AND	THE VISITING JUSTICE AT ROLLESTON PRISON
Second Respondent	

Hearing:	17 February 2025	
Appearances:	Applicant in person (via AVL)
D P Neild for First Respondent (via AVL)	
Judgment:	27 May 2025	

JUDGMENT OF PRESTON J

This judgment was delivered by me on 27 May 2025 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date……………

KEATS v ATTORNEY-GENERAL [2025] NZHC 1349 [27 May 2025]

Introduction

[1]	Mr Keats is a serving prisoner at Rolleston Prison. He was charged with, and subsequently pleaded guilty to, an offence against prison discipline: disfiguring prison property, having painted a benchtop without permission.1 Pending the disciplinary hearing Mr Keats was stood down from his employment in the unit.

[2]	The adjudicator imposed a penalty of seven days’ loss of privileges and ordered Mr Keats to pay $25 in reparation. On appeal, the Visiting Justice quashed the loss of privileges but doubled the order for reparation.

[3]	Mr Keats applies to this Court for judicial review. He claims that the disciplinary charge was not laid “promptly” as required under the Corrections Act 2004 (the Act) and that he was not given sufficient time to prepare his defence or access legal advice.

[4]	But his principal complaint arises from the employment stand down. Mr Keats argues this amounted to punishment in breach of the Act, the Corrections Regulations 2005 (Regulations) or the Prison Operations Manual (POM), the New Zealand Bill of Rights Act 1990 (NZBORA) and various international instruments. He also asserts that Corrections has discriminated against him by differential treatment of other prisoners in respect of alleged misconduct,2 and that an officer spoke to him in a manner likely to provoke a prisoner in breach of s 84(1) of the Corrections Act 2004.3

[5]	The first respondent, opposing, argues there has been no breach of Mr Keats’ rights and although loss of employment was a consequence of Mr Keats’ misconduct charge, it was not a punishment. In that aspect the claim is not justiciable; it engages precisely the kind of operational decision which the senior courts have recognised is

1	Corrections Act 2004, s 128(1)(h) [offence against discipline].
2	Said to be in breach of the NZBORA; the Crimes of Torture Act 1989, the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, the Human Rights Act 1993; and the United Nations Covenant on Civil and Political Rights.
3	Mr Keats’ evidence is that a named officer on 26 July 2024 commented to Mr Keats that “it” (which I infer to be a reference to re-employment of other prisoners during the time in which   Mr Keats remains not further employed in the unit) is [Mr Keats’ fault] for bringing the matter to a judicial review. The allegation is denied by that officer.

not amenable to judicial review. Other claims are not sustainable on the facts and nor is relief available as sought.

[6]	The second respondent abides.

Factual background: the disciplinary charge

[7]	The evidence establishes the following chronology of events.

25 March 2024: Mr Keats paints a bench

[8]	At approximately 1.15 pm on 25 March 2024 a corrections officer noticed that a wooden benchtop in a cell in Mr Keats’ Kowhai Unit had been painted grey. When Mr Keats was spoken to he admitted painting the bench with his hobbies paint.4 Senior Corrections Officer (SCO) Beevor told Mr Keats he would be charged with disfiguring prisoner property, a disciplinary offence under s 128(1)(h) of the Act.

[9]	The same day Mr Keats was stood down from his employment, consistent with the terms of all prisoner employment. SCO Beevor began the documentation to raise a misconduct charge in the Department of Corrections’ Integrated Offender Management System (IOMS). This triggered the process of review of the charge and circumstances by a corrections prosecutor.

28 March 2024: a disciplinary charge is laid

[10]	On 28 March 2024 the prosecutor Ms Rutherford approved the misconduct charge and SCO Frater served Mr Keats the formal documentation required under the Act: a misconduct report including the charge provision and the notice to prisoners charged with a disciplinary offence (Notice).5

[11]	The following day was Good Friday, with Easter Monday falling on 1 April 2024.

4	Mr Keats says he painted the bench as it was covered with graffiti and, at the hearing, further said that it was covered with drawings of parts of the female anatomy.
5	Corrections Regulations 2005, sch 7 cls 5–8.

Adjudication hearing: 2 April 2024

[12]	On the morning of 2 April 2024 Mr Keats was advised that his charge would be heard that morning, at approximately 9.30 am.

[13]	Residential Manager Mr Shuker was the hearing adjudicator. At the hearing, Mr Keats pleaded guilty. Ms Rutherford does not recall that Mr Keats asked for the hearing to be adjourned, or for legal representation, although the Notice included advice, among other matters, that he may apply during the hearing for an adjournment “if you have not had enough time to prepare your defence”. Ms Rutherford deposed that had Mr Keats “stated he was ill-prepared we would have adjourned the case as we have with other misconducts in the past”. The record of hearing contains a field in which the adjudicator is to indicate whether a request for legal representation is made. The adjudicator circled the box marked “no”.

[14]	The adjudicator noted that Mr Keats explained the bench was already disfigured and sought the charge be dismissed as it had not been laid promptly. He complained that he had lost his job and requested that his access to his television be excluded from any loss of privileges imposed, because that was his entertainment.

[15]	The adjudicator convicted Mr Keats. He imposed a loss of privileges for seven days and a penalty of $25 reparation.

[16]	The same day, Mr Keats appealed, as is his right under s 136 of the Act.

Appeal: 26 April 2024

[17]	On 26 April 2024 the Visiting Justice dismissed Mr Keats’ appeal against conviction but allowed the appeal as to sentence. In substitution he ordered a penalty of $50 in reparation and no loss of privileges. As the conviction had been upheld,  Mr Keats’ employment was terminated in accordance with the terms of the prison employment contract.6

6	Mr Keats was initially stood down on full pay for the period until the conclusion of the charge and appeal process, when he was formally terminated due to the finding of misconduct. Following this he remained without employment in the Unit until he commenced a further employment role he was offered in September 2024.

The issues for determination

[18]	The application for review raises three principal issues for determination:

(a)	was Mr Keats charged promptly as required under the Regulations?

(b)	was there sufficient time for Mr Keats to prepare his defence and to contact a legal adviser?

(c)	was the decision to terminate Mr Keats’ employment open to Corrections?

[19]	I will consider also whether there is any other justiciable issue arising from further allegations Mr Keats raises, of:

(a)	conflict of interest;

(b)	alleged provocative action or language of corrections officers; or

(c)	breach of his rights not to be subjected to torture and cruel treatment, and to be free from discrimination.

Was the charge laid promptly?

[20]	The framework for the conduct of disciplinary proceedings concerning prisoners is contained in Schedule 7 of the Regulations.7

[21]	Mr Keats relies on the requirement in cl 5 of sch 7 which relevantly provides that a disciplinary charge be laid “promptly” after a staff member becomes aware of the act or omission alleged to constitute the offence.

[22]	Mr Keats does not dispute that the painted table was discovered on 25 March and acknowledges he was told the same day that he would be charged, although disputes whether that occurred within minutes of an officer first noticing, or an hour

7	See also Part 11 of the Regulations, which addresses discipline and order; cl 152 prescribing that disciplinary proceedings must be conducted in accordance with Schedule 7.

or so later.  SCO Beevor deposed that his memory of the timing is that he advised  Mr Keats of the fact he would be charged approximately one hour after SCO Beevor first sighted the painted table in the cell in Kowhai Unit when another officer drew his attention to it. SCO Beevor also explained he sought the advice of a senior officer before advising Mr Keats of the intention to charge. I consider that account is reliable as supported by the timings recorded in a broadly contemporaneous incident report SCO Beevor produced, which he created at 2.38 pm and in which he noted the incident occurred at 1.30 pm.

[23]	Regardless, Mr Keats submits there has been a breach of the Regulations as he should have been notified by a corrections officer “at the first instant of seeing the offence”.

[24]	However, this is neither realistic or tenable given the terms of sch 7, in particular cls 6-8 and 10, which relevantly provide:

6	A charge in respect of a disciplinary offence is laid when a staff member gives the prisoner who is the subject of the charge a written notice that includes the following:

(a)	a description of the incident or circumstances giving rise to the alleged offence:

(b)	a statement of the provision under which the prisoner is charged.

Prisoner to be given other information

7	A prisoner who is charged with a disciplinary offence must be given, in a separate document from the notice referred to in clause 6, a written notice that includes the information specified in clause 8 either—

(a)	at the same time as the charge is laid; or

(b)	reasonably promptly after the charge is laid.

8	The information referred to in clause 7 is a statement that,—

(a)	if the charge was not laid within 7 days after the date on which a staff member became aware of the act or omission alleged to constitute a disciplinary offence,  the  prisoner  may  apply under clause 10 for the charge to be dismissed; and

…

Charges may be dismissed in certain cases

10 A prisoner charged with a disciplinary offence may apply  to  an  inspector for the charge to be dismissed if the charge was not laid within 7 days after the date on which a staff member became aware of the act or omission alleged to constitute that offence.

…

[25]	SCO Beevor commenced the procedure giving rise to the misconduct charge by commencing an incident report, the document as noted which was inputted at
2.38 pm on 25 March. That officer also took the second step, to raise a misconduct report in Corrections’ Integrated Offender Management System (IOMS) later that afternoon.

[26]	That step automatically notifies a prosecutor, who is required to review the information before preparing and issuing a formal charge. The prosecutor who undertook this responsibility in Mr Keats’ case, Ms Rutherford, deposed to the significant volume of charges and associated work for which she is responsible, noting she could have up to 74 hearings in a month and in most months there may be between 40-50 hearings. For each one, she is responsible for laying charges, acting at the adjudicative hearings and preparing administrative documentation in IOMS. She received the notification on 26 March, and completed this process in Mr Keats’ case on 28 March.

[27]	I note there is a further conflict of evidence between Mr Keats and the first respondent, on the question of when on 28 March he was served with the charging documents.

[28]	SCO Frater said she served the paperwork on Mr Keats within approximately half an hour of receipt at 11.36 am on 28 March of the documentation from the prosecutor with request for service.

[29]	Mr Keats pleaded that SCO Frater handed him the charge document at approximately 2.20 pm that afternoon. Subsequently, Mr Keats disputed the timeline on 28 March. In written submissions, he observed that the acknowledgment form he signed does not bear any time upon it and stated that it was “in the afternoon prior to

final lock up at 18.15 pm” when he received this document. In oral submissions at the hearing Mr Keats further asserted the documentation was provided to him at 6.00 pm that evening.   I will return to this issue as relevant also on the issue of whether      Mr Keats was afforded sufficient time to contact his legal adviser. It suffices for now to note that Mr Keats’ various assertions are not correct: SCO Frater adduced a copy of her email sent to the prosecutor confirming service had been effected. The email attached copies of the acknowledgment form Mr Keats had signed. The email was sent at 12.13 pm on 28 March 2024.

[30]	Mr Neild notes the charging process was completed three days after discovery of the misconduct. He submits this timeline falls well within the requirement to lay a disciplinary charge promptly, as that word is used in context of the scheme in the Regulations.

[31]	I agree, and note further that time period does not approach the threshold in  cl 10 of sch 7 which permits a prisoner to apply for dismissal of a charge if not laid within seven days.

[32]	This ground for review fails.

Did Mr Keats have sufficient time to prepare his defence and to obtain legal advice?

[33]	Next, Mr Keats claims that Corrections staff failed to give him sufficient time to prepare his defence and that he did not have time to consult a lawyer.

[34]	The Regulations provide that every charge in respect of a disciplinary offence must be heard reasonably promptly, but the prisoner must be given sufficient time to enable the prisoner to prepare his or her defence.8 Clause 21 of sch 7 provides a prisoner may contact his or her legal advisor for the purpose of assisting with the preparation of his or her defence.

8	Corrections Regulations 2005, sch 7 cl 9.

[35]	This ground must be assessed in context of the nature of the charge, chronology of events and the information before me considered as a whole.

Was Mr Keats afforded sufficient time to prepare his defence?

[36]	The charge was straightforward; as the responding senior officer at the time foreshadowed, the allegation was that he disfigured prison property by painting the bench, an act which Mr Keats immediately accepted responsibility for when queried. The disciplinary hearing was held on 2 April, five days after the charge documents were served on Mr Keats and eight days after he was told he would be charged. In these circumstances I accept, as Mr Nield submits, five days was more than sufficient time to prepare a defence notwithstanding that period included the Easter statutory holidays, particularly as there was no factual dispute. As noted, Mr Keats acknowledged he had painted the table and at the hearing pleaded guilty.

[37]	The record of the hearing adjudicator is  instructive.  As  noted  it  records  Mr Keats explained that the bench was already disfigured. At the hearing before me, Mr Keats emphasised the nature of what he says were sexualised defacements by which previous prisoners had already disfigured the bench.

[38]	It is clear also from the record that Mr Keats raised the procedural point— seeking that the charge should be dismissed as it had not been laid promptly. That was declined as Mr Shuker confirmed the charge had been laid within the seven-day period required under the Regulations. Mr Shuker explained the notes after his abbreviation “OPs”9 show a record of the discussion Mr Keats also had about the privileges he may lose if a penalty was to be imposed. Mr Keats raised the concern—consistent with Mr Keats’ principal complaint before me—at the loss of his employment. This was rejected by Mr Shuker who recorded in his note that this had “nothing to do with [the] penalty”. The notes also reflect, as Mr Keats explains, that he sought to retain his television access as his entertainment but this was declined and the hearing adjudicator imposed seven days’ loss of privileges.

9	Mr Keats confirms he understands ‘OPs’ as “off privileges”.

[39]	In summary, it is clear that Mr Keats articulated an argument inviting the dismissal of the charge and an explanation in mitigation after entering his guilty plea, and pleaded his case regarding the penalty of loss of privileges before the adjudicator. Further, Mr Keats has not given evidence as to what he would have done differently, had he had more time to prepare. Weighing all these matters and in the absence of any evidence as to what he would have done differently had he had more time to prepare, I am satisfied Mr Keats was given sufficient time to prepare his defence before the hearing.

[40]	Mr Keats then had a further three and a half weeks to prepare for the hearing before the visiting justice. Plainly this was more than sufficient time to prepare for the appeal.

Was Mr Keats provided sufficient time to obtain legal advice?

[41]	The Regulations provide that a prisoner may contact his or her legal adviser for the purpose of assisting with the preparation of his or her defence.10 Mr Keats says he was not given sufficient time in which to do so and that this left him with no option but to plead guilty and try to explain the matter at hand, which explanation was rejected by the adjudicator.

[42]	It is necessary to assess this claim against the evidence as a whole.

[43]	When served with the misconduct report, Mr Keats was also served with the Notice to prisoners  charged  with  a  disciplinary  offence.  The  notice  explained Mr Keats’ entitlements, including to contact his lawyer to assist him in preparing his defence and to apply to have legal representation at the hearing, and to apply to the person holding the disciplinary hearing before or during the hearing for an adjournment if he had not had enough time to prepare his defence. Mr Keats signed an acknowledgement that he had had the opportunity to read the misconduct report and the notice and/or had had their content explained to him.

10	Corrections Regulations 2005, sch 7 cl 21.

[44]	Mr Keats’ complaint on this aspect was first set out in his amended statement of claim. He there says:

When I was given the charge papers on the 28th of March, I was given no time in which to prepare any case of defence, as staff could not facilitate a call, and the forthcoming weekend (29th March to the 1st of April) being Easter weekend.

On the 2nd of April I attended a disciplinary hearing at approximately 9.30 am.

I had not been given any time in which to consult a lawyer, (as is my right under the Misconduct Offences) and I could not receive any instructions from a lawyer as to how I could conduct any form of defence as the lawyer I rung was attending to other matters.

[45]	As I will return to, Mr Keats did not plead that he sought an adjournment before the adjudicator (or before the visiting justice) to seek legal advice.

[46]	Mr Keats has variously contended that he was served the charge documents on 28 March “at approximately 2.20 pm”, sometime “in the afternoon prior to final lock up at 18.15 pm”, and, in oral submissions at the hearing at 6.00 pm that evening. I am satisfied that Mr Keats was served no later than by 12.11 pm on 28 March, the time when SCO Frater scanned the countersigned copies of the charging documents into the system before emailing them two minutes later, to the prosecutor.

[47]	Mr Keats claims that he was denied by staff the opportunity to make a call to a lawyer on 28 March but also refers to a call to a lawyer, which he implies was unsatisfactory as the lawyer he called was “attending to other matters”, although he does not state when this call is said to have been made. Further, as the passage noted at [44] above indicates, Mr Keats did not plead that he sought an adjournment before the adjudicator. But in further written submissions and again at the hearing, Mr Keats claimed that he did so but the request was denied by the adjudicator.

[48]	In contrast, on the evidence for the first  respondent  there is  no  record  of Mr Keats attempting to contact a lawyer prior to the 2 April hearing, or requesting an adjournment at the hearing to seek legal representation.

[49]	SCO Beevor deposed that staff will generally facilitate a call to a lawyer for a prisoner upon request if they are able to do so, or they may ask the prisoner to come back later in the day and make the call then. The officer acknowledges it is not always possible to make a call when requested, for example when other duties do not permit it or when the phone is busy. Staff do not record when a prisoner asks for a phone call as generally most prisoners are able to make a call to their lawyer when requested or at some time later in the day. However, when staff make a call on a prisoner’s behalf this is recorded in the prisoner phone call register (register).

[50]	SCO Frater does not recall whether Mr Keats asked to call a lawyer before his adjudication hearing.  SCO  Beevor  produced  the  register  between  the  dates  of 25 March (when Mr Keats was first verbally notified of intention to charge) and     26 April 2024. There is no record in the register of any phone calls made for Mr Keats at any time from 25 March before his adjudication hearing. But the logbook does show many calls Mr Keats made to speak with various lawyers on 8 April 2024,11 and a further call from Mr Keats to a lawyer on 11 April 2024. I note the register also shows that on 28 March—the day when (it appears) Mr Keats asserts staff could not facilitate a call—only two calls were placed to a lawyer on behalf of prisoners in the unit, only one of which was answered.

[51]	If, as Mr Keats claimed, the charge papers were not served on him until
6.00 pm that evening, I would accept there was no realistic opportunity for Mr Keats to make such a call, given the Easter holiday weekend and the limited window on the morning of 2 April before the hearing. However, as I have found, Mr Keats was not served the papers when he said but, rather, no later than 12.11 pm, and I consider there was adequate time that afternoon in which Mr Keats could have made contact with a lawyer had he wished to do so. Mr Keats has not stated when he says he made the call to the lawyer whom he says was otherwise occupied, but given that all calls put through to a lawyer on behalf of a prisoner are logged, from the register it would appear this may have been a call made after the adjudication hearing but before the appeal hearing: on either the 8th or 11th of April.

11	Staff also log whether the call is answered or not. The log shows Mr Keats called seven different lawyers on 8 April, four of whom answered his call.

[52]	Ms Rutherford deposed that her practice was that if Mr Keats had complained he was ill prepared the hearing would have been adjourned, as has occurred with other misconducts in the past.   As noted, although he did not plead this in submissions   Mr Keats claimed that he sought an adjournment but this was refused by the adjudicator. But the record indicates otherwise. The record of hearing contains a pro forma field in which the adjudicator is required to indicate whether a request for legal representation is made. The adjudicator here selected, by circling the answer, “no” to that enquiry.

[53]	Further, it is evident Mr Keats was able to advance before the adjudicator several challenges in his defence: to the entry of a conviction and/or to the intended penalties, including his argument that the stand down from employment was a further penalty. Had he wished for an adjournment because of insufficient time to prepare or for legal representation, he was on notice he could do so. On the evidence considered as a whole I am satisfied he did not.

[54]	It follows Mr Keats was not deprived of sufficient time to prepare his defence or to contact his lawyer. This ground also fails, accordingly.

Was the decision to terminate Mr Keats’ employment open to Corrections?

[55]	The gravamen of Mr Keats’ complaint turns on this, his third ground, concerning the loss of his employment as a consequence of the misconduct charge.

[56]	As Mr Neild acknowledges for the Attorney, perhaps understandably Mr Keats feels that this was an additional punishment, over and above the fine imposed by the visiting justice. Mr Keats argues the loss of employment was a loss of privilege and therefore breaches the rule against double jeopardy. Further, he says the decision to standdown with immediate effect offended the statutory scheme.

Stand down from employment: loss of privilege?

[57]	Mr Keats’ primary complaint on this ground contends that the stand down from his employment in the kitchen pending the determination of the misconduct charge was a loss of privilege in breach of the disciplinary regime in the Act and Regulations.

He argues this was a punishment imposed before the disciplinary hearing had concluded, in breach of sch 7 cl 48, and the ultimate loss of the privilege of employment doubly punished him, contrary to the outcome imposed on appeal by the Visiting Justice who quashed the first instance penalty of seven days’ loss of privileges.

[58]	In the prison setting in particular, given there is no statutory or regulatory entitlement to prison employment,12 employment can readily be understood as a privilege in the general sense. However, Mr Keats’ argument misapprehends the term ‘privilege’ as that term is used in the disciplinary context.

[59]	The starting point is the statutory scheme governing disciplinary proceedings.

[60]	Where an offence against prison discipline is proven, s 133 of the Act provides that penalties may be imposed, including payment of an amount up to $100, forfeiture or postponement of privileges for any period not exceeding 28 days, and cell confinement.

[61]	Forfeiture or postponement of privileges—which is commonly referred to as loss of privileges or “LoPs”—are defined in cl 158 of the regulations:

158	Privileges

The penalty of forfeiture or postponement of privileges that may be imposed on a prisoner under section 133(3)(a) or 137(3)(a) of the Act comprises the loss or postponement of all or any of the following privileges:

(a)	the opportunity to be in common areas of the prison after the evening meal:

(b)	the opportunity to make telephone calls other than those to which a prisoner is entitled under the Act or these regulations:

(c)	participation in a recreational activity, course, or programme that is not part of the prisoner’s management plan:

(d)	use of, or access to, films, videotapes, records, cassettes, or compact discs:

12	Smith v Attorney-General [2017] NZHC 136 at [128] citing Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371 at [32] and [35].

(e)	use of a television, radio, audio cassette player, compact disc player, or other electronic equipment used for recreational purposes:

(f)	use of a musical instrument, unless it is part of a prisoner’s management plan:

(g)	pursuit of a hobby:

(h)	purchase of anything other than essential toiletries, writing materials, and stamps:

(i)	the opportunity for physical exercise beyond the minimum entitlement conferred by section 69(1)(a) of the Act:

(j)	the opportunity to receive private visitors beyond the minimum entitlement conferred by section 69(1)(d) of the Act.

[62]	As may be seen, the list of privileges which may be forfeited or postponed as a result of disciplinary proceedings does not include employment.

[63]	The evidence for the first respondent explains the nature of the employment opportunities which are offered in the custodial setting. Senior corrections officers are responsible for employment decisions within their unit. SCO Beevor deposes there are many people in the unit looking for work and when a placement is made, a prisoner is extended an opportunity which entails a relationship of trust and confidence:

Someone that we employ is trusted by us. They are a trusted person who has been offered the opportunity to work as long as they do what they have got to do. We need to be able to have continued trust and confidence in the people we employ because of the positions and responsibility they have in the Unit. A fit and proper person in the Unit will generally be offered unit employment but the moment they breach the trust and confidence we place in them, that opportunity will be taken away.

[64]	In that officer’s experience, previously there was a varying practice whether prisoners were stood down from employment as soon as an event giving rise to a misconduct charge happened. If the conduct was dangerous, there was an immediate stand down but otherwise there was some flexibility for senior officers to make decisions in the particular circumstances. However, he explains that as that practice was a source of tension within the Unit as to arguably differential treatment, the policy now is “to take the approach of standing down everyone who is charged with a misconduct offence [which] makes it fair for everyone”.

[65]	Mr Shuker has been employed with Corrections for 27 years and in a management role for 17 of those. He confirms that decisions about employment form part of basic unit operational management decisions and in a situation where there are insufficient roles to give all prisoners jobs, Corrections seek the best-behaved people for the opportunity. If someone demonstrates poor behaviour or makes bad decisions, this erodes the inherent trust in the employment relationship. Often prisoners who are in employment are managing themselves or within areas with staff or where they would otherwise not be allowed to be present. If a prisoner cannot be trusted to adhere to the standards required of them, this poses a safety and security issue for the Unit.

[66]	Mr Shuker notes that prisoners are aware that employment requires conduct that leads officers to have trust and confidence in them and that if they are charged with a misconduct offence they will be stood down from employment and, if convicted, the role will be terminated. Standard form contracts for prisoners employed in the units contain express provision to this effect.

[67]	Although Mr Keats denies signing an employment contract for the kitlocker role and the first respondent was not able to locate a signed copy, the signed copy of a contract from Mr Keats’s earlier employment in a role at a different corrections facility contains an equivalent condition. So, too, does the contract he signed in the new role he has commenced since this matter arose.

[68]	In view of the previous role, in particular, I consider it likely Mr Keats would have been aware of the potential jeopardy to his employment of a misconduct charge arising. However, whether or not he was formally on notice having signed a written contract is immaterial as a position of employment within the prison environment necessarily entails a relationship of mutual trust and confidence which may require immediate response by stand down or otherwise, in the event of behaviour which undermines that relationship. As Mr Keats himself accepts, there is “a degree of trust” inherent in the employment relationship.

[69]	This ground is not amenable to judicial review as I am satisfied the decision to stand Mr Keats down, and subsequently to terminate his employment was well within Corrections’ operational purview given the misconduct allegation, and the

subsequently proven charge. As the senior courts have repeatedly recognised, decisions in relation to prison employment including termination of employment are part of the day-to-day operations of a prison and the general management of prisoners, in which the courts are typically reluctant to intervene.13

Double punishment?

[70]	As I have found, the loss of employment was not a punishment. For this reason Mr Keats’s claim of double punishment in breach of sch 7 cl 49 of the Regulations, which provides that no prisoner should be punished more than once for the same disciplinary offence, cannot be sustained. The NZBORA, including the right against double jeopardy in s 26(2) pertains to the criminal process and has no application in context of a disciplinary offence,14 but the claim otherwise would fail for the same reason.

[71]	Taking all these matters into account I am satisfied that whereas the stand down and ultimate loss of employment was a consequence of the misconduct charge it was not a loss of privilege in the narrow sense of the statutory scheme, nor did it constitute either premature or otherwise unlawful punishment as Mr Keats contends.

[72]	The third ground is not established.

The further grounds

[73]	Mr Keats’ three further grounds of complaint allege conflict of interest, provocative conduct by an officer and breaches of Mr Keats’ rights under various legislation and international instruments.

13 Smith v Attorney-General [2017] NZHC 136 at [127], citing Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85] – [86] and Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371 at [29]. See also Ericson v Chief Executive of the Department of Corrections [2013] NZHC 3035 at [16].
14 Daniels v Thompson [1998] 3 NZLR 22 at [33] – [34]; Harder v Director of Land Transport Safety
(1990) 5 HRNZ 343 at [5].

Alleged conflict of interest

[74]	Mr Keats made a complaint concerning the loss of his employment and disciplinary process on a prison complaint form (the PC.01), part of Corrections’ internal complaints process. He alleges a conflict of interest arose as Mr Shuker, who was also the hearing adjudicator, responded to the PC.01 complaint which was dismissed.

[75]	Mr Shuker explained that responsibility for answering the PC.01 complaints process falls to the residential manager of the prison. The disciplinary process and the PC.01 complaint process are distinct. In the role of adjudicator the officer was required to determine whether a disciplinary charge is made out and where required to set an appropriate penalty for that conduct. In responding to the PC.01 complaint, the residential manager was required to consider the complaint about an issue of prison operational management, namely the decisions made by staff about Mr Keats’ employment. Mr Shuker reiterated that loss of employment is not one of the penalties available to an adjudicator and was unrelated to the penalty imposed.

[76]	Independent of the internal complaints process, prisoners may also complain to the Corrections Inspectorate and/or the Ombudsman. I note that in dismissing the complaint Mr Shuker advised Mr Keats in writing that if he was not happy with the decision he was “most welcome to take the matter further via the prison Inspectors”. Mr Keats duly did so. Upon review, the Principal Inspector informed Mr Keats the Inspectorate was satisfied the complaint had been managed appropriately and the response of the residential manager was reasonable.

[77]	Although Mr Keats may believe there was a conflict of interest, I consider in these circumstances there was no conflict such as gave rise to a breach of natural justice. As I have found, the residential manager when acting in the disciplinary proceeding identified, correctly, that the employment consequences were an operational matter, not a punitive action and not relevant to the disciplinary proceedings accordingly. As Mr Nield submits, Mr Shuker’s response to the PC.01 complaint is exactly the type of intervention the court typically avoids in order to avoid judicial micro-management of prisons. In any event, any appearance of conflict of

interest from Mr Keats’ perspective was overtaken by Mr Keats’ subsequent complaint to the Inspectorate.

[78]	This ground is not established.

A conversation in July 2024 with an officer

[79]	Mr Keats further pleads that SCO Frater told him on 26 July 2024 that the reason he had not received a new employment opportunity was because he had initiated this judicial review proceeding.  He claims that this amounts to a breach of  s 84 of the Act which requires that no officer may deliberately act or speak in a manner likely to provoke a prisoner.

[80]	SCO Frater confirmed in evidence that Mr Keats did ask her about why other prisons had received employment opportunities. She said she explained that the prison staff try to make it fair for everyone and they consider all avenues, but that Mr Keats responded “I’d be careful what you say next”. She disengaged and walked away, as she did not want to get into an argument with him.

[81]	SCO Frater stated she did not tell Mr Keats that the reason he was not getting a job was because of this litigation. This is consistent with her file note made at the time which records:

I was speaking to another prisoner KEATS approached asking about why others were getting jobs in the unit. I tried to mention that they were due a job in the unit. KEATS then said “id be careful what you say next then” I then disengaged from this conversation as he was wanting to start an argument over this.

[82]	I note, for completeness, Mr Keats has been employed in a new role at the prison since late September 2024.

[83]	This ground of review is unsustainable.

Discrimination

[84]	Mr Keats’ concern at the re-employment of other prisoners is the basis also of his final ground. He alleges that he has been subjected to degrading punishment

contrary to s 9 of the NZBORA because of what he infers is preferential treatment of other prisoners who he claims have been re-employed after committing more serious offences than him.

[85]	I agree, as Mr Neild submits, even if there were evidence before me about the employment of other prisoners in Mr Keats’ unit—which there is not—his complaint in this regard falls far short of the high threshold in s 9 that sets a prohibition on torture or cruel, degrading, or disproportionately severe treatment or punishment.15

[86]	Nor is there any basis to support Mr Keats’ allied claims of discrimination, defamation, other provisions of the NZBORA or of the international instruments which Mr Keats cites in support.

[87]	Accordingly, the final ground fails.

Conclusion

[88]	Mr Keats’ claim for judicial review is declined.

[89]	At the hearing, Mr Keats sought a direction that a cover note be sent with the Court’s decision, requiring that the decision is not to be opened and must be presented to Mr Keats by a principal corrections officer of the Unit he is in. Mr Neild queried the propriety and workability of the proposed direction.

[90]	The file discloses the claim navigated a substantial procedural history before it was ready for hearing, throughout which counsel and/or solicitors for the respondents and the court registry have provided documentation to Mr Keats in prison through Corrections’ staff. There are no suppression orders extant in this proceeding, issued against the Attorney-General on behalf of Corrections. I am not persuaded the direction sought is necessary or appropriate.

15	Taunoa v Attorney-General [2007] NZSC 70, 2008 1 NZLR 49 at [288].

[91]	Mr Neild made no submission as to costs in the event the application for review was unsuccessful. I anticipate this was because no order is sought in that case.

[92]	If costs are sought, a memorandum is to be filed within 10 working days of the date of this judgment, with any memorandum  from Mr Keats to be filed within      10 working days of receipt thereof, thereafter costs will be determined on the papers. The memoranda are to be no longer than four pages.

[93]	If no memorandum is filed, then the order of the Court is that there is no order as to costs.

………………………………………
Preston J

Solicitors:
D P Neild, Crown Law, Wellington for First Respondent
K Whiting, Crown Law Wellington for Second Respondent

Copy to:
Mr D D Keats, C/- Rolleston Prison