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Blindsided prisoner succeeds in judicial review of Visiting Justice

23 Feb 2024

| Author: Anna Longdill

Corrections Act 2004 – judicial review – prison disciplinary hearing – adequacy of notification of hearing to the prisoner – duty on Visiting Justice to adjourn the hearing – breach of natural justice – breach of Corrections Regulations 2005, sch 7, cls 9 and 41 

Fahey v The Visiting Justice at Serco [2023] NZHC 3807 per Muir J.

 

Grenville Fahey is a prisoner at Auckland South Corrections Facility.  On or about 10 November 2022, he is alleged to have smeared whole walls of his cell and parts of the ceiling in his faeces. The stench was so strong that other prisoners in his ward were vomiting.

On 17 November 2022, Fahey was charged with an internal prison disciplinary offence: deliberately disfiguring or damaging a prison cell by painting or spraying faecal matter over it.

Fahey pleaded not guilty to the charge. On 21 November 2022, a hearing adjudicator found the charge proven and sentenced him to seven days’ solitary confinement, 28 days’ loss of privileges and $100 reparation payable to Serco New Zealand, the prison’s operator. Fahey immediately appealed the decision to a Visiting Justice.

Three days later, a rehearing was held before the Visiting Justice.  Fahey had not been notified of this rehearing and voiced his surprise to the Visiting Justice when he was escorted to appear before her. He said, “You’re blindsiding me with all this information that I should have had prior to coming to this hearing…I haven’t seen any of it”.

Fahey sought legal representation. The Visiting Justice considered and declined this application under s 135 of the Corrections Act 2004. She then proceeded to find the charge proven and imposed the same sentence that the hearing adjudicator imposed. Fahey’s defence of provocation, which he said was based on Serco’s failure to address issues in managing him as a prisoner, was rejected.

Fahey brought judicial review proceedings to challenge the decision of the Visiting Justice.

 

Applicable principles: Corrections Regulations 2005, sch 7, cls 9 and 41 – Corrections Act 2004, s 135 – whether the hearing was adequately notified – whether there was a duty on the Visiting Justice to adjourn the hearing – whether there was a breach of natural justice.

 

Held: The decision of the Visiting Justice is quashed. There was a breach of the basic standards of natural justice applicable to the hearing and of the specific provisions in the Regulations.

Fahey was never able to put his best foot forward in the circumstances that arose. Nor did he know what he didn’t know in that his defence might have been appropriately developed if he had had the opportunity to properly reflect and prepare.

 

Fahey v Visiting Justice at Serco Auckland South Corrections Facility [2023] NZHC 3807.

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