Corrections Act 2004, ss 58 and 59 – segregation orders – judicial review – statutory scheme – mistake of fact – duty of Chief Executive of Department of Corrections to give independent consideration to issue of segregation – scope of powers under s 58 to restrict or deny access to other prisoners – relevance of Nelson Mandela Rules – effect of factual error on an order – natural justice – scope of the duty on the chief executive to give reasons for the decisions – proper exercise of statutory discretion under ss 58 and 59

Stevens v Chief Executive of the Department of Corrections [2023] NZHC 1051

Michael (aka Maxien) Stevens is a transgender prisoner subject to a sentence of preventive detention, who was detained at Auckland South Corrections Facility, a high-security men’s prison from June 2020 to November 2021.

Staff at the prison developed concerns about her relationships with other prisoners, including the risk they posed to her and others. As a result, four directed segregation orders were made in respect of Stevens in May and June 2021 (the last of which was extended on four occasions).  These segregation decisions were reviewed by a delegate of the Chief Executive of the Department of Corrections and confirmed.

Stevens brought judicial review proceedings against the chief executive and the prison director at Auckland South Corrections Facility, challenging each of the segregation orders as being illegal and invalid. The grounds of the review included a failure to meet the statutory criteria (illegality), breach of natural justice (including a failure to follow a fair process and to provide reasons for decisions), disproportionality, mistake of fact and unreasonableness.

Applicable principles – Judicial review – statutory scheme under Corrections Act 2004 – burden on applicant to establish material error of law within broadly conferred powers –  strict review threshold for mistake of fact – cogent justification required for authorising continuation of prolonged segregation – no requirement to obtain verbal authorisation or support from chief executive before managing Stevens under directed segregation – s 58 Corrections Act clearly confers power on prison director to either restrict or deny access to other prisoners – delegate of chief executive gave proper, independent consideration to issue of segregation – Nelson Mandela Rules neither a treaty nor a binding international instrument – no disproportionality – factual error on one order an administrative oversight, which had no bearing on lawfulness – order not unreasonable – decision not to revoke order not unreasonable – no contradiction or unlawfulness by Stevens being subject to both voluntary and directed segregation at the same time – nature of the duty on the chief executive to give reasons: administrative powers, not judicial or quasi-judicial powers – reasons brief but fairly informed Stevens about basis for the decision – no failure by chief executive to exercise the statutory discretion to review under ss 58 and 59 of the Corrections Act 2004.

Held: The application for judicial review is dismissed. None of the grounds of review is made out.  This is not a case where something has gone wrong of a nature and degree that requires the intervention of the court.

STEVENS v ATTORNEY-GENERAL (ON BEHALF OF CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS) – BC202360999