Human Rights and Prisons - Rethinking Crime and Punishment

to be provoked must be assessed objectively. A breach of s17D does not
give rise to a private law cause of action; and even if a private law cause of
action was available, in this case the very high threshold for exemplary
damages was not surmounted.
Cell Confinement As Factor In Bail (NZ)
R v Kahui 2/10/07, Heath J, HC Auckland CRI-2007-092-14990
In considering whether there is just cause for continued detention, s 8(1)(a)
Bail Amendment Act 2007 requires the Court to take into account „whether
there is a real and significant risk‟ of flight, interference with witnesses or
evidence and re-offending, as well as s 8(1)(b) considerations of „any matter
that would make it unjust to detain the defendant‟.
In this case, although previous breaches of bail conditions established a „real
and significant risk of re-offending‟, the nature of Mr Kahui‟s detention – which
entailed cell confinement for 23 hours per day for his own protection – was a
countervailing factor which made continued detention unjust.
Disciplinary Procedures
Legal Representation – Distinction Between Prison Discipline Regime
And CJS (NZ)
Taylor v Visiting Justice at Arohata Prison 24/7/07, Wild J, HC Wellington
CIV-2007-485-613:
This is one of several recent cases – following Drew v Attorney-General
[2002] 1 NZLR 58 – dealing with the distinction between the prison discipline
regime and criminal justice system, and the (lesser) requirements of legal
representation that attach to the prison discipline context. The relevant
statutory provisions are ss 128 and 133-140 Corrections Act 2004 and
Schedule 7 to the Corrections Regulations 2005.
Legal Representation (NZ)
Thompson v Attorney-General 1/11/07, John Hansen J, HC Christchurch
CIV-2007-409-2364; CIV-2007-409-2245
This case concerned the assault of a prisoner by two others, Thompson and
Pryce. Following the incident, the Visiting Justice sentenced the men to 15
days‟ cell confinement and 90 days' loss of privileges, the maximum penalty
available under the Corrections Act. Thompson and Pryce sought judicial
review of this decision on the grounds of lack of legal representation,
evidential issues, and unreasonableness. They were unsuccessful. It was
deemed the the Visiting Justice hearing did not require legal representation,
that the decision was reached following eyewitness accounts by prison
officers and photographic evidence of the assaulted prisoner‟s injuries. In the
circumstances, the Visiting Justice faced a clear-cut credibility issue and was
entitled to favour officer evidence.
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