RICHARD LYALL GENGE Applicant. VISITING JUSTICE CHRISTCHURCH MENʼS PRISON First Respondent

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1 IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE CIV [2018] NZHC 1457 BETWEEN AND AND AND RICHARD LYALL GENGE Applicant VISITING JUSTICE CHRISTCHURCH MENʼS PRISON First Respondent CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Second Respondent ATTORNEY-GENERAL Third Respondent Hearing: Appearances: 28 May 2018 via telephone conference Applicant appeared in person G Gillies for the Respondents Judgment: 18 June 2018 JUDGMENT OF NATION J [1] A first case management conference for these proceedings had to be adjourned from 28 May 2018 to 25 June 2018 after certain parties could not be connected to the conference. Since that time, I have had further opportunity to review these proceedings. I have also been able to take into account a judgment of Davidson J in judicial review proceedings. 1 In those proceedings, Mr Genge was successful in challenging Corrections security reclassification of him as a serving 1 Genge v The Chief Executive, Department of Corrections and The Attorney-General [2018] NZHC GENGE v VISITING JUSTICE, CHRISTCHURCH MENʼS PRISON [2018] NZHC 1457 [18 June 2018]

2 prisoner on the basis his reclassification was not reconsidered promptly as it should have been under s 48(2) of the Corrections Act [2] On 13 March 2018, Mr Genge filed judicial review proceedings. A Visiting Justice had found him guilty of breaching a prison rule that forbids any prisoner from sparring or fighting in any area of the prison. The penalty imposed by the Visiting Justice was 21 days forfeiture of privileges. Mr Genge seeks a declaration that the decision was invalid and $500 per day for each day he was off privileges. [3] Mr Genge filed an affidavit in support of his application as well as submissions. [4] It is clear from Mr Genge s affidavit that he challenges the legality of the rule which forbids sparring or fighting. [5] Mr Genge attached to his affidavit the decision of the Visiting Justice of 22 November That decision recorded the rule issued on 3 March 2016 by the then prison director as follows: Prisoner Instruction Christchurch Men s Prison Zero Tolerance for Violence Christchurch Men s Prison has a zero tolerance for violence therefore the following rule/s will be enforced by staff. Any Prisoner who assaults staff will face external Court charges, reclassification and will more than likely be transferred to Auckland Maximum Security Prison. Any Prisoner who assaults another Prisoner will face disciplinary proceedings which could include external Court charges reclassification and relocation. Further more pursuant to Section 33 of the Corrections Act 2004, I am making a rule that forbids any prisoner sparring/fighting in any area of the Prison including yards, cells and recreation areas. Any prisoner breaching this rule will likely face disciplinary proceedings. This rule is effective from the 3rd of March [6] The Visiting Justice recorded that the issue in the case was:

3 whether as a matter of interpretation, sparring includes non-violent fighting motions for the purpose of fitness training, which is what Mr Genge accepted he was doing on 5 April [7] In her decision, the Visiting Justice summarised the prosecution evidence. A prison officer stated he could see Mr Genge in the gym/recreational area. His movements were unusual, his head was bowing up and down as if skipping. A glass door in the front of the gym room had been left open and a towel draped over the glass. The officer surmised this had been done to obscure the officers view of the cell. With a camera, two officers were able to see clearly into the gym room. An officer was able to see Mr Genge throwing punches at the other prisoner s upheld hands. The other prisoner had jandals on his hands instead of boxing-style pads. This was recorded on video, which the Visiting Justice viewed. The report which led to Mr Genge facing a charge of misconduct said the prison officer confronted Mr Genge who denied any involvement in sparring. [8] There is nothing in the Visiting Justice s decision to indicate the above evidence was challenged by Mr Genge. In his affidavit in this proceeding, he does not take issue with what the Justice set out as the factual background for her conclusions. [9] The Visiting Justice found that all the dictionary definitions produced to her during the hearing consistently defined the verb spar as either fighting with an opponent, or making fighting motions without hitting an opponent. She said that was also consistent with the ordinary meaning of spar and sparring which could be summarised as a consensual set of fighting motions between two or more participants for training purposes. She recorded in her decision that Mr Genge argued that Corrections should have to prove there was an element of violence in the sparring and that he was effectively being charged for exercising and that this amounted to an abuse of power. He also submitted the rule was unclear and ambiguous and its meaning should have been understandable to prisoners. [10] The Visiting Justice found, beyond reasonable doubt, that sparring included non-violent fighting motions for the purpose of fitness training, and Mr Genge was sparring or fighting on 5 April 2017 in breach of the rule.

4 Was it open to the Visiting Justice to find that the regulation, as written, included fighting motions for the purpose of fitness training? [11] After considering various definitions of the term sparring, the Visiting Justice concluded that fighting motions for the purpose of fitness training were included as an offence under the rule. Mr Genge submits that this conclusion was unreasonable, as the regulation is ambiguous and Corrections must ensure prison regulations are comprehensible by prisoners. [12] Section 6(1)(f) of the Corrections Act provides that the corrections system should be guided by the principle that it must ensure the fair treatment of persons under control or supervision by providing them with information about the rules that affect them and ensuring that decisions about them are taken in a fair and reasonable way. Section 164(2) provides that information, including as relating to regulations, must be presented in such a way that the person under control or supervision can be reasonably expected to understand it. [13] Mr Genge submits there is legitimate argument that fighting motions for the purpose of fitness training were not an offence under the rule as the rule is ambiguous and, as such, even if the Visiting Justice s conclusion was open to her, it was not fair or reasonable to punish him for a breach of rule that he was not aware had made his actions an offence. He submits, if fighting motions such as his were to be an offence, that should have been expressly stated in the rule. In support of this argument, Mr Genge cites Lon Fuller s The Morality of Law, Blackstone Commentaries, and a passage from the judgment of Chase J from the United States case Calder v Bull 3 US-386 (1793). [14] On 9 January 2017 Mr Genge signed an acknowledgement that he had been provided with a copy of the rule. The documents attached to Mr Genge s affidavit also indicate that, when a prison officer who had seen what was happening confronted Mr Genge, he denied any involvement in sparring. There was also a towel draped against the window of the gym room where Mr Genge was training. Reasonably, the prison officer interpreted this as an attempt to obscure the officer s view of what Mr Genge was doing. An inference that could properly be drawn from this evidence was that Mr Genge knew his actions constituted a violation of the rule.

5 [15] Regardless, as discussed by the Visiting Justice, making fighting motions for the purpose of fitness training is generally accepted as a form of sparring. The Visiting Justice could reasonably conclude that prisoners reading the rule prohibiting sparring would understand that it prohibited fighting motions as well as trading blows. Is a regulation banning fighting motions for the purpose of fitness training valid? [16] Mr Genge submits that, if the regulation does ban fighting motions for the purpose of fitness training, that regulation is invalid. Section 70 of the Corrections Act provides that every prisoner is entitled to at least one hour of physical exercise per day. [17] Section 70 however does not specify what types of exercise prisoners are entitled to, and banning one specific form of exercise for legitimate reasons does not breach that section. As recognised in Taylor v Chief Executive of the Department of Corrections, while certain rights of prisoners are recognised in the Act, those rights are not unencumbered and are to be balanced against the interests of prison safety, security and good order. 2 [18] Through the notice by which prisoners were advised of the rule prohibiting sparring, the Department was seeking to demonstrate a zero tolerance for violence. It is also evident from the notice that Corrections differentiated consensual fighting or sparring from the situation where one prisoner assaulted another. [19] Judicial notice can be taken that a rule forbidding fighting or assaults within the prison would be in the interests of prisoner and staff safety. It is also readily understandable, without having the rationale for the rule explained, that to enable prison authorities to prevent fighting, they should also prohibit what might be construed as mock fighting or sparring. If fighting were prohibited but sparring or training permitted, there would be difficulties for Corrections in distinguishing 2 Taylor v Chief Executive of the Department of Corrections HC Wellington CIV , 11 September 2006 at [23].

6 between situations where a prisoner might be sparring and another situation where the prisoner was actually fighting. [20] Mr Genge argues it is unfair that an orientation video was shown in the prison, including footage of someone making fighting motions for the purpose of fitness training, with supportive comments about how beneficial exercise can be. The Visiting Justice watched the video and found that it was a promotional video for Te Wānanga o Aotearoa, a tertiary educational institute which appeared to have a fitness related course, and concluded it was irrelevant to the hearing. [21] A rule prohibiting fighting motions for the purpose of fitness training does not breach the Corrections Act, particularly as it has a clear justification. Other issues raised by Mr Genge [22] The prisoner with whom Mr Genge was sparring was not charged with a breach of the rule. Mr Genge submits that this is unfair, unreasonable, an error of law and demonstrates bias on the part of Corrections staff and the Visiting Justice. He also argues that it is a breach of the International Covenant on Civil and Political Rights, the Department of Corrections Code of Conduct, the Universal Declaration of Human Rights, and the New Zealand Bill of Rights Act Mr Genge says that the Attorney-General has been joined as a party because of Corrections breaching these obligations. Corrections explained that the other prisoner was not charged as the charge would not have been heard before his imminent release. The Visiting Justice accepted this explanation. There is no basis for judicial review on this point. [23] Mr Genge also argues that, because his breach of discipline was minor or unintentional, instead of resulting in a disciplinary offence it should have been dealt with under the process described in s 132(1) of the Corrections Act. This provides that, as far as practicable in the circumstances and if appropriate, an officer must deal with a minor or unintentional breach by stopping the breach, explaining the nature of the breach to the prisoner, instructing the prisoner to correct his or her behaviour, and allowing the prisoner to make amends with anyone affected. Section 132(2) however provides that a minor or unintentional breach can still result in a prisoner being charged with a disciplinary offence. The decision to charge Mr Genge with a

7 disciplinary offence was an exercise of discretion and not a ground for judicial review. Restriction order [24] This proceeding is the latest instance of judicial review proceedings filed by Mr Genge to challenge decisions made by a Visiting Justice against him as part of the disciplinary process available under the Corrections Act. He has unsuccessfully attempted to have reviewed decisions finding him guilty of misconduct 3 and behaving in a threatening and intimidating manner towards prison officers 4 and doctors. 5 Each time he has challenged various procedural parts of the prison disciplinary process. In one proceeding, he claimed that transferring the proceeding to a Visiting Justice pursuant to s 134 of the Corrections Act was unlawful, that adjourning the proceeding made the decision invalid, and that the decision was unreasonable because the Visiting Justice did not accept his evidence. 6 Mr Genge has also made claims of perjury, collusion and bias within the disciplinary system. Gendall J dismissed those allegations as unsubstantiated and entirely unsupported in any way. 7 [25] His judicial review arguments have never been successful. In relation to one of the proceedings, Gendall J held that Mr Genge had failed in all respects and that his conduct of the litigation can also be properly subjected to some criticism. 8 Gendall J also warned Mr Genge that: 9 If he intends to continue to litigate a large array of dubious claims such as the present, he must also accept the jurisdiction of this and other courts to impose the usual discipline through costs orders where appropriate. [26] The prison disciplinary process is designed to provide an efficient and relatively informal way of dealing with disciplinary offences. There is an inquisitorial aspect to the investigation, rather than being strictly adversarial, and the 3 Genge v Visiting Justice at Christchurch Men s Prison [2017] NZHC Genge v Visiting Justice Christchurch Men s Prison [2017] NZHC Genge v Visiting Justice at Christchurch Men s Prison [2017] NZHC Genge, above n 3. 7 Genge, above n 5, at [94]. 8 Genge v Visiting Justice at Christchurch Men s Prison [2018] NZHC 70 at [17]. 9 Genge, above n 8, at [19].

8 penalties tend to be significantly less severe than in criminal courts. 10 The filing of a judicial review proceeding to challenge decisions of a Visiting Justice that a prisoner does not like is counter to all that the Corrections Act and regulations were designed to achieve. [27] The pursuit of this proceeding requires a significant time commitment in terms of the allocation of judicial and Court resources to Mr Genge to the cost of the taxpayer and to the detriment of more deserving litigants who face delays in obtaining access to the Courts. [28] The Senior Courts Act 2016 permits a Judge of the High Court to make an extended order restricting a person from commencing or continuing civil proceedings on a particular or related matter, where two or more of the proceedings are or were totally without merit. 11 Section 169(3) gives me the power to make an order restricting proceedings on my own initiative. [29] The term totally without merit is not defined in the Act. The cases establish that whether the litigant has commenced or continued proceedings that are totally without merit is a question to be determined objectively and not in relation to the litigant s own beliefs or motives. 12 In its Departmental Report to the Justice and Electoral Committee, the Ministry of Justice identified the following factors as relevant to determining whether a proceeding is totally without merit: 13 (a) (b) (c) (d) There are no prospects whatever for success; Exposure of defendants to inconvenience, harassment and expense out of all proportion to the gain a plaintiff is likely to receive; Actions are brought at the drop of a hat despite the lack of merit; No regard is paid to merit, proportionality or cost by a litigant; 10 Drew v Attorney General [2002] 1 NZLR 58 at [89] and [91]. 11 Senior Courts Act 2016, ss 166 and McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at [SC167.03]. 13 Judicature Modernisation Bill: Report of the Ministry of Justice to the Justice and Electoral Committee (Ministry of Justice, Departmental Report CRT , April 2014) at [292]-[293].

9 (e) (f) (g) The statement of claim or defence discloses no reasonable grounds of bringing or defending the claim; The statement of claim is an abuse of the Court s process or is otherwise likely to obstruct the just disposal of the proceeding; and There has been failure to comply with a rule, practice direction or court order. [30] The Court should generally be slow to make a restriction order as it amounts to a breach of a person s right of access to justice. 14 I acknowledge that the Court should be particularly slow when making such an order against a person in custody. However, this is a case where it is appropriate for me to exercise the jurisdiction under the Senior Courts Act. [31] I have noted Mr Genge s recent success in judicial review proceedings. Nevertheless, the fact remains that he has brought multiple proceedings challenging the validity of the prison disciplinary process, all of which have been unmeritorious, disproportionate and ultimately unsuccessful. As said by Staughton LJ in Attorney- General v Jones, the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who have genuine grievances, and should not be squandered on those who do not. 15 If Mr Genge does have a genuine grievance relating to the prison disciplinary process in future, he may apply to the High Court for leave to bring proceedings. [32] I accordingly order that Mr Genge is restrained from commencing or continuing a judicial review proceeding challenging the validity of any part of the prison disciplinary process without leave for a period of three years New Zealand Bill of Rights Act 1990, s 27, as discussed in Attorney-General v Siemer [2014] NZHC 859 at [50]-[52]. 15 Attorney-General v Jones [1990] 1 WLR 859 (CA) at 865; quoted with approval by Doogue and Henry JJ in Attorney-General v Hill (1993) 7 PRNZ 20 (HC). 16 Senior Courts Act, s 168(1).

10 [33] Pursuant to that order, Mr Genge is restrained from continuing with these judicial review proceedings. Solicitors: Crown Law, Wellington Copy to: Mr Genge