Paul Swain Misleads QC Over Zaoui Assault Reports

Friday, 9 July 2004, 12:34 am
Article: Kevin List

A 8 September 2003 letter written by the Minister of Corrections, Paul Swain, incorrectly informed Nigel Hampton QC of the Howard League, that an internal investigation report concerning allegations of mistreatment of detained refugee, Ahmed Zaoui, had been forwarded to Zaoui’s solicitor.

In fact that report and accompanying documentation was not received by Mr Zaoui's lawyers until June 29th this year, one day before High Court proceedings related to his incarceration in NZ penal institutions began.

Whilst many politicians paint a rosy picture of Mr Zaoui lying back in luxury in Prison and wasting the taxpayer's money on legal proceedings Scoop has revealed this week that his time in New Zealand prisons has involved several assaults and ongoing harassment.

Moreover we have also shown that either willfully or negligently the Department of Corrections withheld information regarding Mr Zaoui's treatment so it arrived too late to put before the High Court this month.

Indeed, but for Scoop investigating the question of assaults on Mr Zaoui the official reports may have in fact remained hidden even today.

Hon Paul Swain's letter dated 8 September 2003

The Minister’s misleading letter was written in reply to a formal complaint from Nigel Hampton QC, in his capacity as the President of the Howard League for Penal Reform (the Howard League) dated 7 August 2003. Mr Hampton in his letter had requested:

‘That an investigation be conducted into the treatment of Mr Zaoui by D-Block prison officers, as revealed in the Sunday Star-Times (C4, August 3, 2003)"

Mr Hampton’s request letter included an excerpt from a Sunday Star-Times article in which Zaoui related how various prison guards had tried to goad him into an outburst.

Mr Zaoui also related an event where he was forced to strip naked, had his shorts thrown in his face and then was manhandled and pinned against a wall by a guard resulting in him breaking down in tears. I

Mr Hampton asserted that the Sunday Star-Times article brought the Department [of Correction’s] into disrepute and raised concerns that:

“Mr Zaoui appears to have been subjected to unprofessional, provocative, disrespectful and callous attitudes and treatment, certainly during his early confinement in D- Block, treatment which warrants investigation."

A full inquiry was then requested by the Howard League.

“With respect, we ask that a full inquiry be conducted into the above aspects of this man’s treatment and that the questions (over) relating to his ongoing detention in D Block be answered in the interim.”

Answering Nigel Hampton’s concerns in a letter dated 8 September 2003 the Minister assured the President of the Howard League that:

“I am satisfied that there need be no further investigation of Mr Zaoui’s placement [at the time D-Block, Paremeremo] and advise that the allegations of mistreatment referred to have already been thoroughly investigated by the Department."

[For more information on the inquiry reports see… 2nd Zaoui Assault Investigation, Once Over Lightly & Details Emerge About Zaoui Assault Cover-Up ]

The Minister then fully outlined the various processes that had ensued following complaints from Mr Zaoui’s solicitor [in January 2003, Paul Coates] and concluded:

“The Regional Manager ordered a full investigation to be carried out and he identified a number of specific areas which needed to be further addressed. This further investigation has been completed and a copy of the report provided to Mr Zaoui’s solicitor. The investigation found that although there had been a personality clash between Mr Zaoui and an officer in the unit, there was no evidence of mistreatment or excessive force by officers.”

Zaoui Lawyers - Kept In The Dark About Assault Reports

Correction's Overlooks Sending the Report's to Zaoui's Lawyers

But despite the Minister’s assertion that "a copy of the report had been provided to Mr Zaoui’s solicitor" the General Manager, Public Prison Service, Phil McCarthy informed Scoop on 29 June 2004 that no report was provided to Mr Zaoui’s initial lawyer Paul Coates.

“It was also one of the recommendations in the final report that a copy be sent to him [Coates]. However, unfortunately, as Mr Coates was by then no longer acting for Mr Zaoui, the matter was overlooked."

McCarthy also informed Scoop that Mr Zaoui’s current lawyers only received the reports in late June 2004.

“I advise that these reports and other associated information were sent to Mcleod and Associates on 28 June 2004 following a request from them late last week. Their request was the first time the Department had received a request from them for this information.”

Senior Corrections Inspector, Gren Bell, confirmed in an internal memo dated 2 March 2004 that the Minister had received the second investigation report on 4 August 2003. The report was then finalised by Bell as the report had not been finalised by the Public Prison Service (PPS) and the "the Minister had already been advised".

Zaoui's Lawyers Finally Learn of the Investigation Reports Existence

Today Deborah Manning confirmed that the first time she became aware of the reports existence was when Scoop brought the matter to Mcleod and Associates attention in June.

This followed a failure by Corrections to release the full report to Scoop under the Official Information Act, partly because of a concern for Mr Zaoui’s privacy. Scoop first requested the reports in April 2004 after finding a reference to Dr Zaza's complaint in materials presented to a Parliamentary Select Committee.

Manning was aware that a guard who had taunted Mr Zaoui for being a ‘terrorist’ had been moved from D-Block due to concerns raised by herself and Richard Mcleod, but had no idea the Howard League had written to the Minister on her client’s behalf and confirmed that at no time had the Department of Correction’s brought the internal reports to her attention [as Mr Zaoui’s lawyer].

While the first report was completed prior to Manning and Mcleod taking over, Mr Zaoui’s complaint was not finalised until mid-2003 well after the changeover between Mr Zaoui’s initial and present counsel.

Howard League's Reaction

Also surprised to learn about the reports and their failure to reach Mr Zaoui’s lawyers hands until very recently was The Howard League’s spokesperson Kathy Dunstall.

In his letter dated 8 September 2003 the Minister had pointed to the reports being provided to "Zaoui’s solicitor". If the inference was that the reports were going to Paul Coates then even this was misleading as he had not acted for Mr Zaoui since April 2003 and in any event even he did not receive the reports.

Dunstall considered the Minister’s failure to provide correct information worrying.

“Once assured by the Minister [Swain] that the investigation was completed and that the report was sent to [Mr Zaoui’s] lawyer’s we believed they [the reports] were in the right hands for any follow up. It is very disturbing to find the General Manager of the Public Prison Service [Phil McCarthy] is now stating the reports did not get sent until June 28 2004 – almost a year after the Howard League’s inquiry into the matter."

Dunstall explained that it is the Howard League’s policy to follow up inquiries should a satisfactory answer not eventuate.

“Had we known that the report had not ended up with Mr Zaoui’s lawyer’s we would have requested a copy ourselves.”

Mr McCarthy's admission that provision of the report was overlooked is remarkable in light of several factors:

- Mr McCarthy himself stated to Scoop that, "it was clearly anticipated that a copy would be sent to him [Coates] at the completion of the investigation despite no formal request from him.

-The Investigation Report to the Regional Manager’s requests, "That a copy of the investigation be sent to Mr Paul Coates as requested."

- The Crown has recently argued that only the Minister of Immigration [Paul Swain] should be responsible for a Security Risk recipient’s human rights into account and that the Minister will be able to make an accurate and informed decision in three days.

- Recently New Zealand was criticised by the United Nation’s Convention Against Torture report for the treatment meted out to asylum seekers (such as Mr Zaoui in New Zealand penal institutions - making this matter potentially diplomatically significant.

Minister of Corrections Paul Swain Responds

Scoop informed the office of the Minister of Corrections Paul Swain about his incorrect advice to the Howard League yesterday afternoon. A spokesperson for the Minister replied:

"The Auckland region was responsible for compiling the investigation reports. It appears that Public Prisons Service National Office mistakenly believed that the undertaking by the region to provide Mr Coates with a copy of the investigation had been honoured. Officials have since realised that with the change of legal representation, Mr Zaoui's current lawyers were not provided with a copy of the investigation report either."

"There appears to have been a miscommunication within the Department. All other requests to the Department for the release of this report have been responded to. Mr Zaoui's lawyers have since been provided with the information."

In a response to an earlier question in June from Scoop relating to general concerns about New Zealand’s treatment of asylum seekers in prison the Minister explained what steps his Government was taking to deal with the issue.

"I am aware that the United Nations Committee Against Torture did make recommendations in respect of asylum seekers in prison. The Department of Corrections has until May 2005 to report back on the issues the committee has raised and I expect the Department will be using that time to consider how best to meet its obligations to the Convention Against Torture."

"In respect of Mr Zaoui, the security risk certificate process will be reviewed once the Zaoui case has been resolved."

Conclusions

While it is correct as Mr Swain says that the assault investigation information was finally sent to Mr Zaoui's lawyers last week on June 28th, even Mr McCarthy acknowledges that this was only done following a request from Mr Zaoui's lawyers. Significantly it came well after the department's oversight in supplying the report must have become clear internally.

Scoop first requested the reports in April 2004 and the Department of Corrections dragged the chain on the OIAs limits, requesting an extension of the 20 day time period allowed under the act in May 2004.

Moreover the documents finally mailed on June 28th arrived on June 29th, the day before Mr Zaoui's High Court application to be released was to be heard in the High Court at Auckland, and too late for the issues raised to be included in pleadings.

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