Richard Lyall Genge was jailed for life after the brutal September 1994 fatal attack on Christchurch woman Anne Maree Ellens. Photo / Star.kiwi
Richard Lyall Genge was jailed for life after the brutal September 1994 fatal attack on Christchurch woman Anne Maree Ellens. Photo / Star.kiwi
A "vexatious" convicted rapist and murderer has won a legal battle to argue that prisoners should be able to spar or fight while behind bars.
Richard Lyall Genge, jailed for life with a minimum non-parole period of 15 years after a brutal 1994 murder, has spent years making fruitless legal challenges against aspects of prison life.
After four failed discipline-related judicial reviews, Genge's latest challenge came after he was found guilty by a Visiting Justice at Christchurch Men's Prison of breaching a rule forbidding prisoners from sparring or fighting.
"Technical difficulties" meant that Genge, who has been denied parole and remains a serving prisoner, missed a telephone case management conference of his appeal case in May last year.
Afterwards, a judge made an extended civil restraint order which blocked Genge from "commencing or continuing judicial review proceedings" challenging the validity of "any part of the prison disciplinary process" for three years.
While the Court of Appeal judges understood the earlier judge's "disquiet" in dealing with "another apparently meritless judicial review application by Mr Genge", they were clear that an inadvertent failure of due process had occurred.
They found that Genge's claims are not an abuse of process but rather simply ill-conceived and prone to failure.
Although Genge is liable to pay costs if he fails, and costs have been ordered against him in the past, he "patently he cannot meet that obligation".
In a newly-released judgment, the Court of Appeal has sided with the prisoner. Photo / Mark Mitchell
"Undeterred, and beyond any real risk to his pocket, he issues another review application where he perceives his rights have been infringed. His self-judgment on such matters is not good — as he candidly acknowledges — although [for what it is worth] he says he is learning," the Court of Appeal says.
While he is "plainly at risk" of a restraint order, the earlier actions of the court had infringed his right to a fair hearing, both at common law and the New Zealand Bill of Rights Act, the appeal judges found.
The validity of a prison rule preventing sparring as part of a physical exercise programme, given the right to physical exercise under the Corrections Act 2004, is "at least arguable", they said.
Genge's appeal against the making of the restraint order must be allowed and the order itself quashed.
A date for Genge's case must now be set.
Genge was found guilty of the September 1994 fatal attack on 22-year-old Christchurch woman Anne Maree Ellens in the grounds of Christchurch East primary school.
While she was heavily-intoxicated, Genge and co-accused Samuel Kirner and Michael October took her into the school before raping her and savagely beating her to death. Her semi-naked body was found on the school steps the next morning.
