22 Mar 2021

Corrections in the gun after accusations of mistreatment at Auckland Women's Prison

9:51 am on 22 March 2021

Corrections Minister Kelvin Davis is taking aim at his department over its failure to answer in court accusations of "cruel and inhumane" treatment of inmates at Auckland Women's Prison.

Kelvin Davis

Photo: RNZ / Dom Thomas

It's come under scrutiny by the country's most senior lawyers after stinging criticism from a judge for not fronting up to properly answer the allegations.

The claims were aired during an arson trial for one of the women, Mihi Bassett, who'll be sentenced later this morning.

The pressure on Corrections has been mounting after the criticism from Judge David McNaughton in the Manukau District Court after Bassett pleaded guilty.

He was highly critical of the treatment of some inmates, as well as the failure of Corrections to front anyone to properly answer the raft of serious allegations, which included unreasonable use of pepper spray and confinement cells.

In his judgment he said if the claims were "genuine", Bassett's treatment could be taken into account at her sentencing.

He said the prison had treated her and others in a "degrading", "cruel" and "inhumane" manner in a "concerted effort to break their spirit".

Judge McNaughton found Corrections broke its own regulations multiple times but despite plenty of opportunity had not fronted anyone who could respond in any detail.

Mihi Bassett being questioned by the police prosecutor at  Manukau District Court

Mihi Bassett will be sentenced today. Photo: RNZ / Claire Eastham-Farrelly

The only witness called from Corrections was deputy prison director Alison Fowlie but McNaughton noted she had "no direct dealings with any of the defence witnesses".

He described the failure to front anyone who could specifically talk about eight different allegations of mistreatment as "troubling", with "none of the officers from C and D wings who were present at the time" made available to the court.

Minister has "concerns" about Corrections' practices

Corrections Minister Kelvin Davis told RNZ after getting top-level legal advice his fears about the way Corrections had conducted itself have been "borne out".

"I sought advice from the Attorney-General right from the outset ... it's fair to say that I still have concerns about some of the processes used, in particular the way evidence was given at the hearings," he said.

The judge had said the evidence was "powerful and compelling" and he had no reason to doubt it, but back in February Davis said he wasn't taking the judge's findings at face value, and wanted more information.

Davis said at the time he'd gone to Corrections for its account of what happened.

"When they went to that court case they were there to give evidence in terms of the arson charges, then there were a whole lot of other allegations made against Corrections and they didn't really have an opportunity to present that side of the story to the judge," he told RNZ.

While there had been an admission that behaviour escalated "on both sides", he'd been told allegations inmates had to undress in front of male guards were false.

He was asked what information he has now.

"I said I needed to hear both sides of the story and I have sought advice, I have heard, seen, got advice from the Inspectorate.

"And obviously, I still have concerns, but I'll be making further comments after the hearing," he said, adding "it's fair to say that there will be changes in Corrections".

Kelvin Davis' comments 'hopeful' - Mihi Bassett's lawyer

Mihi Bassett's lawyer Hannah Kim told Morning Report her client had pleaded guilty to the arson charges after a sentence indication.

This is when courts provide details of the sentence a defendant might receive, which can then be taken into account when the defendant decides on their plea.

Kim said Bassett's plea was made "on an indication the judge has given a specific time that he was going to impose. It's a matter for the judge whether he will give a significant discount in relation to the sentence to take into account the findings of the court, or not give additional sentence at all, by imposing a concurrent sentence."

Davis' comments that there would be changes in prisons after the case, was hopeful, she said.

"I was rather relieved ... this is actually the first time that they have conceded that Corrections were in the wrong to some degree, so I think it's a positive development. Whatever internal report that they have done on the Auckland Women's prison, it must be quite critical, so I would be very interested to read it."

Some of the details of Bassett's treatment in prison had been made clear in a management plan presented to court, which was incontestable, Kim said; including that she had been made to lie face down on the ground, interlock her hands behind her head, place one foot over the other and bend her legs at the knees if she was going to be fed.

"I think even the Minister himself said that that practice is no longer going to continue," Kim said.

"The most worrying treatment I think was the segregation part. That Mihi Bassett and Karma Cripps were segregated in the pound for four or five months, with no explanation.

"There was no procedure being followed, and their complaints not being heard, and them completely being silenced by the prison."

The pound is an area separated from other prisoners, without things for them to do, such as internet access. Prison staff can only put people into such areas after following strict processes, which Corrections has been accused of not following, meaning they acted illegally by keeping Bassett and Cripps there, Kim said.

"We have acts and regulations in place, and [prisoners] rights are guaranteed under the Corrections Act, and they completely ignored it. And what was more shocking was that the deputy [prison] director Alison Fowlie didn't seem to be aware of that when I cross-examined her on that - which was the most appalling part."

Kim said there had been opportunity given by the judge for Corrections to front witnesses with direct knowledge of the allegations about their treatment of Bassett and the other prisoners.

"The proceeding did progress quite rapidly, but the judge did allow police prosecution to come up with their rebuttal witness. The judge did give some opportunity to consider their position so that they can cross the witnesses, and call any witnesses from their parts to rebut any of the evidence that we had raised.

"Police prosecution then chose to call [deputy prison director] Alison Fowlie, who of course wasn't in charge when these decisions were being made, so a lot of these questions that we had to ask to the prison couldn't be answered, which was quite frustrating.

"It was a choice that police prosecutions made, not to cross-examine two of the witnesses that we called, out of three. They only chose to call Mihi Bassett to cross-examine her. The two other inmate's evidence was unchallenged."

A separate judicial review was also set to go ahead, into the use of 'cell buster' pepper spray on prisoners by Corrections staff, though Kim said that process has been adjourned until later.

Kim expects there will be government intervention into Corrections practices, following the case.

Attorney-General David Parker wants further investigation

Davis consulted Attorney-General David Parker about the court case and in particular media reports Corrections "had not offered evidence in the hearing about the allegations that have been made of inappropriate practice at Auckland Women's Prison".

Parker said Corrections had earlier been invited by the judge to "present evidence to counter those allegations".

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Attorney-General David Parker says neither he nor Kelvin Davis are trying to influence the sentence. Photo: RNZ/ Dom Thomas

However, at the subsequent hearing "the person that they had called didn't have knowledge of the allegations that were being made and so the judge made some adverse findings against the Department of Corrections which are quite serious".

He and Davis discussed it, and Parker then sought advice from the Solicitor-General.

She confirmed the police had handed the prosecution over to the Crown Solicitor "because it was a difficult issue", Parker said.

"The Crown Solicitor had then advised Corrections that they were expected to present the evidence dealing with the allegations that have been made, but that Corrections had not, leading to the findings by the judge."

Parker said the Inspector of Prisons has provided an "interim report" to Davis, and he'll have more to say after sentencing.

In a statement Corrections said the case "relates to the sentencing of a woman for arson offences committed while she was in prison".

It said it was not party to the proceedings and "there was limited ability for us to present contextual information" and it "won't be providing comment until the matter before the court is concluded".

Ministers and court cases

Ministers have to abide by Cabinet rules - they include the obligation to respect the separation of the executive and the judiciary and never to seek to influence the outcome of a court case.

Otago University law professor Andrew Geddis said it's an important convention.

"That with an ongoing court case, ministers are not seen to be trying to influence the way in which the court case will be decided and that extends to the sentencing of individuals, when they've been convicted for a crime.

"The courts need to be independent, institutions that aren't being dictated to or being commanded by the executive branch, otherwise there's no separation between that executive that's running the country and the body that's in charge of making sure the laws have been complied with and applying those."

Professor Andrew Geddis

Law professor Andrew Geddis says courts must be independent Photo: RNZ / Claire Eastham-Farrelly

Even if Davis believed there was more the public should know, said Geddis, it's pretty risky talking about it at this point in the legal process.

"That then gets very close to the minister actually trying to get involved in the court process and get involved in the way the court's doing its job and that's just not appropriate ... so sometimes the minister just has to take a deep breath and wait, and then have their go after the court's finished."

Parker said neither he nor Davis was breaching any Cabinet rules nor "trying to influence the sentence here".

"We accept that the judge's acting appropriately but serious allegations were raised by the media earlier that don't appear to have been properly dealt with by the Corrections Department.

"And so minister Davis and myself just want to make it clear that those allegations are being taken seriously, and that they're being looked into," Parker said.

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