Torture? In New Zealand? Taunoa v Attorney-General

Sam Jeffs

The Behavioral Management Regime (BMR) was an intensive high security unit that operated in Auckland Prison from 1998 to 2004.  The BMR had the dual purpose of deterring prisoner misbehaviour and controlling prisoners that were considered especially problematic. Prisoners admitted to the BMR moved through four phases over a period of six months. Prisoners would progress or regress through the four phrases largely as determined by the subjective appraisal of the guards charged with monitoring them.

The conditions of the BMR were the most punitive found anywhere in the New Zealand corrections system. Prisoners were isolated for 22 to 23 hours per day. While the conditions were slightly relaxed according to progress through the four phases, even the most relaxed BMR conditions were far more severe than what prisoners were otherwise exposed to.[1]

Procedural History

Messrs Taunoa, Robinson, Kidman, Tofts and Gunbie brought a claim in the High Court against the Crown that the BMR was illegal under the Penal Institutions Act 1954 (now repealed) (the Act) and the Penal Institutions Regulations 2000 (now repealed) (the Regulations).[2] Breaches of ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990 (BORA) were also claimed. Ronald Young J found that the BMR was in breach of the Act and the Regulations, as well as in breach of s 23(5) of BORA in respect of the five prisoners (Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC)). His Honour did not find that the prisoners had suffered actual psychiatric harm, excepting Mr Tofts, who had been admitted to the BMR with pre-existing psychological concerns. Despite this, it was held that Mr Tofts had not been treated sufficiently seriously to meet a breach of s 9.

Consequently, Ronald Young J awarded public law damages for the breach of s 23(5) in respect of each of the prisoners (Attorney-General v Taunoa (2004) 8 HRNZ 53 (HC)). Mr Taunoa received $65,000 for the 32 months he spent on the BMR. Mr Robinson, the second longest serving prisoner, received $40,000. Mr Kidman, Mr Tofts and Mr Gunbie then received $25,000, $8,000 and $2,000 respectively, reflecting the shorter duration of time they spent on the BMR.

The Court of Appeal generally confirmed the findings of Ronald Young J in respect of the illegality of the BMR, the breaches of s 23(5), and the damages awarded (Attorney-General v Taunoa [2006] 2 NZLR 457 (CA)). The Court went further in holding that the treatment of Mr Tofts, in light of his known psychiatric concerns, constituted a breach of s 9 of BORA. The Court of Appeal also upheld the quantum of public law damages granted to the prisoners. 

Issues on Appeal 

There were three main issues before the Supreme Court:

1. Whether s 9 of BORA was breached in respect of Messrs Taunoa, Robinson, Kidman and Gunbie;[3]
2. Whether s 27(1) was breached in respect of the prisoners through the denial of natural justice;
3. Whether the awards for damages were appropriate, and whether the quanta of the awards were properly assessed. 

Torture or Cruel Treatment

Section 9 of BORA affirms the right not to be subject to torture or cruel treatment, while s 23(5) protects the dignity of detained persons.  The Supreme Court undertook an extensive analysis of the relationship between ss 9 and s 23(5).  The majority approach, with Elias CJ dissenting, was that ss 9 and 23(5) are distinct standards that, while overlapping to a degree, involved differing levels of seriousness. The Court held that s 23(5) required that detained individuals be treated with humanity, while s 9 protected against torture and cruel, degrading or disproportionately severe treatment or punishment. Section 9 therefore contained inherent degrees of seriousness: torture stood alone, with the other three forms of treatment or punishment being connected but distinct (defined at [171]-[175] per Blanchard J). Section 23(5) recognised treatment that involved “conduct which lacks humanity, but falls short of being cruel” (at [177] per Blanchard J). Section 23(5) imposed a positive standard of “humanity”, whereby s 9 involved the standard of “inhumanity”. While conceptually similar, the s 9 standard was much higher. This may be found by individual incidents or cumulative treatment. Intention to harm, or recklessness as to harm, as well as actual damage, would be particularly salient in finding a breach of s 9. For a breach of s 9 a claimant would have to prove that they were treated to an objectively shocking standard, taking account of societal sensibilities, and amounting to disproportionately severe treatment.

Elias CJ took a differing view to the majority. Instead of defining the various aspects of s 9, Elias CJ suggested that torture stood alone, with the rest of s 9 pertaining to the same standard. Similarly, s 23(5) was recognised as putting a positive obligation on authorities to treat prisoners with humanity, whereas s 9 recognised treatment that was inhumane. The major difference in approach was that Elias CJ saw ss 23(5) and 9 as overlapping and complementary, not variations on a scale of seriousness. Elias CJ, while affirming s 9 would be breached by objectively outrageous treatment, appeared to apply a lower standard for a breach. A breach of statute or regulations, for example, was deemed to be nearly sufficient to breach s 9 and certainly sufficient to breach s 23(5).[4]

The majority in the Supreme Court held that Messrs Robinson, Kidman and Gunbie had not been treated inhumanely so as to breach s 9. By majority, Tipping, McGrath and Henry JJ also held that Mr Taunoa had not had his s 9 rights breached. Elias CJ was prepared to recognise that all prisoners admitted to the BMR had their s 9 rights breached due to the cumulative conditions on the BMR (full reasons [95]-[102]). Blanchard J (Elias CJ agreeing) was willing to recognise that Mr Taunoa had his s 9 rights breached by merit of the nearly 1,000 days that he had spent on the BMR.

Natural Justice

The prisoners alleged that their rights to natural justice under s 27(1) of BORA were breached. The prisoners were inadequately informed of the BMR, and natural justice was not observed in placing the prisoners onto the BMR or when making decisions to promote or regress prisoners while on the BMR.

The High Court (implicitly) and the Court of Appeal (explicitly) recognised that while s 27(1) had been breached, there was no need for a declaration. The breaches to s 27(1) were subsumed as part of the wider illegality of the BMR through the inappropriate and illegal treatment of the prisoners. The Supreme Court affirmed that the breach of s 27(1) was inherently recognised under the breaches of ss 9 and 23(5). A declaration was therefore considered inappropriate.

Damages

The Supreme Court’s discussion regarding public law damages built from the Court of Appeal’s landmark decision in Simpson v Attorney-General (Baigent’s Case) ([1994] 3 NZLR 667 (CA)). There it was held that public law damages were available despite the absence of explicit remedies in BORA. The Supreme Court was unanimous in affirming that an effective remedy must be available for a breach of BORA, albeit an effective remedy would not always involve a monetary award. The Court suggested that a declaration of a breach alone would be sufficient depending on the right breached and the extent of that breach. Monetary damages should be reserved for when appropriate and proportionate to the circumstances.

The Court was unanimous that vindication was an essential characteristic of damages, and served the dual purpose of vindicating the victim as well as society. The Court acknowledged that deterrence could be factored into damages, but that punishment had no role. Blanchard J recognised that damages should be moderate, and calculated with regards to the right breached, the extent of the breach, and subsequent state action (e.g. ceasing the program, introducing new safeguards). The Court appeared heavily influenced by international jurisprudence, but McGrath J was clear that damages needed to be awarded with regard to the social and legal context of New Zealand. Elias CJ differed by foregoing “moderate” damages in favour of damages that were not “extravagant”. While only differing in degree, this would allow a higher quantum when awarding damages.

The Supreme Court was divided when considering the proper award of damages. Elias CJ saw no reason to disturb the damages awarded in the High Court, but ultimately agreed with Blanchard and McGrath JJ so as to form a majority. Blanchard and McGrath JJ reduced the damages for Mr Taunoa to $35,000 and for Mr Robinson to $20,000. McGrath J, while ultimately finding only a breach of s 23(5) for Mr Taunoa, agreed with the quantum of damages based on the seriousness of the s 23(5) breach. Tipping and Henry JJ would have further lowered the damages to $25,000 and $15,000 for Messrs Taunoa and Robinson respectively. The majority lowered Mr Kidman’s damages to $4,000, and Mr Gunbie’s damages for $2,000 remained unchanged.

Concluding Comments

The BMR represents a dark time in our prison history. While the prisoners involved were disruptive, arguably dangerous and had extensive criminal histories, the treatment they were subjected to was unconscionable. The prison population, while seldom popular, is particularly vulnerable to abuses of power and process.  The BMR is a prime example of this abuse.  This decision by the Supreme Court is integral to the development of rights jurisprudence in New Zealand. The Court clearly outlined the correct approach to breaches of s 9 and its corresponding relationship with s 23(5). The affirmation by the Supreme Court of public law damages, following Baigent’s Case, served to strengthen the efficacy of BORA in adequately addressing breaches of human rights.

Sir Robin Cooke and Common Law Rights

This is an extraordinary case as ss 9 and 23(5) codify one of the most fundamental principles of human rights law – to be treated as a human. While the Supreme Court did not uphold torture specifically against any of the prisoners, that s 9 was upheld against Mr Tofts is exceptional. This situation does draw uncomfortably close to the comments made by Sir Robin Cooke whilst sitting on the Court of Appeal. Cooke P (as he was then) was at his most direct when he stated in obiter, “I do not think that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them” (Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 398). While inherently threatening to Parliamentary Sovereignty, the question must be asked: how would the Supreme Court have dealt with the treatment of the prisoners if there were no Bill of Rights?

It must be remembered that the prisoners here had no parallel avenues to seek redress (Taunoa v Attorney-General at [108]). While the Court could have still declared the BMR ultra vires the Act and Regulations, administrative law cannot provide damages for illegality (Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 (CA) per Richardson J at 338). Cooke J in Stininato v Auckland Boxing Association Inc [1978] 1 NZLR 1 (CA) was willing to suggest that tortious remedies could develop to deal with administrative breaches in the future (at 23). It could be that a breach of human rights would be the appropriate impetus to develop such a remedy. In the absence of BORA the Court could potentially look to develop tort or administrative law in order to provide some remedy. Alternatively, the Court could seek to create a common law right (and remedy) prohibiting cruel, degrading or disproportionate treatment following Sir Cooke’s comments.

While this discussion is obviously hypothetical, one more frightening scenario remains – what if the BMR was explicitly and comprehensively codified in statute? Section 4 of BORA would apply and the actions of Corrections would be shrouded in legality, no matter how abhorrent. While perceivably far-fetched, the mere existence of the BMR for six years is proof enough that such a situation is comprehensible. With no definitive answer, the Supreme Court, bound to apply s 4, would have been inevitably placed in a difficult moral, if not legal, position.

Sam Jeffs is a law student at the University of Auckland.