Human Rights and Prisons - Rethinking Crime and Punishment

Correct Remedy For Breach Of Natural Justice Is Judicial Review (NZ)
McKean v Attorney-General [2007] 3 NZLR 819 (HC)
In this case the Judge found that the Visiting Justice's decision not to allow
legal representation had been made unfairly, in breach of the principles of
natural justice. However Mr McKean was not entitled to compensation, as
judicial review was adequate redress for the error of the Visiting Justice.
This is one of several cases dealing with judicial review of disciplinary
decisions by Visiting Justices. These affirm that judicial review, rather than
compensation, is the appropriate remedy for a breach of natural justice. This
decision referred to dicta in previous cases – including Brown v Attorney-
General [2005] 2 NZLR 405 and Attorney-General v Udompun [2005] 3 NZLR
204 – that compensation is not necessary if there is already an effective
remedy (ie, judicial review) for breaches of the NZBORA.
Legal Representation – Judicial Review/ BORA Compensation (NZ)
Botting v Attorney-General 16/12/05, Chisholm J, HC Christchurch CIV-
2005-409-1570
This case concerned a prisoner who had been declined legal representation in
relation to a disciplinary charge of cannabis use following a urine test. He
claimed that this breached natural justice, and he sought compensation for
loss suffered as a result (namely, increase in „Identified Drug User‟ status and
ejection from a programme).
The Judge found that issues concerning the drug test's validity emerged
during the hearing with which Mr Botting struggled to cope; thus he was
prejudiced in his defence by lack of legal representation, constituting a breach
of natural justice. The Visiting Justice‟s decision was set aside for lack of
evidence. However, citing dicta in Attorney-General v Udompun [2005] the
Judge held that compensation was not justified.
Judicial Review – Procedural Fairness (NZ)
Percival v Attorney-General [2006] NZAR 215 (HC)
This case involved claims by five prisoners in relation to charges of tampering
with urine samples. Four of the prisoners argued that the Visiting Justice‟s
decision breached natural justice, as they were denied legal representation
and the opportunity to cross-examine witnesses on the scientific evidence.
The Judge found that natural justice had been breached. While declining to
award compensation, the Judge noted that the right breached is important and
should not be trivialised. Three of the prisoners were entitled to a declaration
that the disciplinary decision was invalid.
133