MANUEL V THE SUPERINTENDENT, HAWKES BAY REGIONAL PRISON CA CA67/04 15 June 2004

IN THE COURT OF APPEAL OF NEW ZEALANDCA67/04

BETWEEN BENJAMIN EUGENE MANUELAppellant

AND THE SUPERINTENDENT, HAWKESBAY REGIONAL PRISONRespondent

Hearing: 6 May 2004

Coram: McGrath JHammond JWilliam Young J

Appearances: T Ellis for AppellantS P France for Respondent

Judgment: 15 June 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1] This is an appeal from a judgment of Miller J delivered on 2 April 2004 in

which he declined the appellant a writ of habeas corpus. The appellant’s application

for habeas corpus challenged the appellant’s recall to prison from parole.

The background

[2] The applicant was convicted of murder on 20 July 1984 and sentenced to life

imprisonment. He was paroled on 18 January 1993. While on parole he was

convicted of further offences:

4 February 1993 Driving with excess breath alcohol

18 March 1993 Breach of parole conditions (failure to report)

10 May 1994 Receiving stolen property

11 October 1995 Disorderly behaviour; intentional damage; and threatening

language

29 November 1995 Dangerous driving (reversing a car over his sister); driving

with excess breath alcohol; disorderly behaviour; male

assaults female (an assault on his mother)

On 29 November 1995, the appellant was sentenced to a total of four months

imprisonment. At this stage he also faced a further charge of assaulting a female but,

given that this charge was to be defended, the hearing in relation to it was stood over

until the following year.

[3] On 13 December 1995 a probation officer purported to apply to the

Parole Board for the appellant’s recall to prison. The probation officer in question

had no authority to make this application (which could only be made by the

Chief Executive of the Corrections Department). This mistake (and presumably it

was a mistake) was detected and, on 29 January 1996, the Chief Executive of the

Corrections Department applied for the appellant to be recalled to prison. This

happened to be, whether by coincidence or otherwise, the date upon which the

appellant was released from custody in respect of the sentences imposed on

29 November 1995.

[4] The Chief Executive’s application was made under s107I of the

Criminal Justice Act 1985 and relied on the following grounds:

1. The appellant had been convicted of a number of offences involving violence

for which he had received two cumulative sentences of two months

imprisonment.

2. The appellant at the time was on bail charged with a further offence of

assaulting a female.

3. It was in the interests of the safety of the public that the appellant remain in

custody given this offending and the appellant’s deteriorating behaviour

generally.

[5] Also on 29 January 1996, the Chief Executive applied for an interim order for

the recall of the appellant under s107J of the Criminal Justice Act. This application

was based on the ground that the appellant posed an immediate risk to the safety of

the public.

[6] On 31 January 1996 a warrant was issued authorising the appellant’s

detention. If there was ever a separate document recording the making of an interim

recall order, it has been misplaced. In fact, it is unlikely that there ever was such a

separate document given that the warrant is in the prescribed form, is signed by the

then chairperson of the Parole Board and records the grounds upon which the order

was made. It is, relevantly, in these terms:

On the twenty-ninth day of January 1996 an application was made for anorder that the offender be recalled to a penal institution to continue serving[his] sentence.

I have this day made an interim order for the recall of the offender pursuantto section 107J of the Criminal Justice Act 1985 on the grounds that-

…

(d) I believe on reasonable grounds that-

(i) The offender poses an immediate risk to the safety of thepublic or of any person or any class of persons …

[7] On 1 February the appellant voluntarily surrendered to the Police.

[8] The recall application was initially to be heard by the Parole Board on

18 March 1996. This date, however, lay outside the time frame required by

s107L(1)(a). So the hearing was brought forward to 29 February 1996. On

13 February 1996, the appellant signed a letter addressed to the Parole Board in these

terms:

I agree to an adjournment of my Recall application to be heard at HCAuckland on 29 February 1996.

I understand that my Recall will then be considered at the National ParoleBoard on week 18 March 1996 at Paremoremo Prison.

The recall application was eventually heard on 19 March.

[9] At the hearing, the appellant was represented by counsel albeit that,

according to the appellant in an affidavit sworn in support of the habeas corpus

application, he had seen counsel for the first time only 20 minutes prior to the

hearing.

[10] The Parole Board granted the Chief Executive’s application and ordered the

appellant to be recalled to prison. The Board stated that the three grounds on which

the application had been made had been established on the balance of probabilities.

The decision notes:

Since the change in the recall jurisdiction this Board has emphasised on anumber of occasions that parole is a licence subject to good behaviour andthat evidence of significant misbehaviour is likely to result in a forfeiture ofthat licence. We believe that the continuation of alcoholism, some difficultywith controlling his temper and dysfunctional domestic family arrangements,do give cause for concern that there will be further offending unless somestep is taken by the Board to prevent it. We believe that that risk is sufficientthat the order for recall should be granted, together with conditions whichaddress the problems just described.

[11] The Board also noted:

The Board supports the consideration by the Department of a temporaryrelease from custody for Mr Manuel under s21 of the Penal Institutions Act1954 for the purpose of undertaking a residential alcohol treatmentprogramme: for which purpose it will be necessary that an application bemade and that the body concerned undertakes a preliminary assessment ofMr Manuel and is satisfied that he has the necessary commitment to beaccepted into its programme. If that is done, and the programme is notcarried out to the satisfaction of the organisation concerned, then Mr Manuelwill come back to prison to continue serving his sentence. If it issatisfactorily carried out and that circumstance reported to the Board, it willreconsider the grant of parole to Mr Manuel at the next meeting of the Boardfollowing it receiving that advice. At that time the Board will have a reportfrom Community Corrections which will be asked to consider some meansof limiting communication between Mr Manuel and his family, as this hasbeen one of the causes of difficulty.

During the course of today’s hearing [the partner of the appellant] advisedthat she too would be prepared to seek assistance for alcoholism. We thinkeverything which is done which would result in Mr Manuel’s returning tothe present relationship would have little significance unless indeed [the

partner] is prepared to try to do something on her part to eliminate herdrinking problem.

Mr Manuel ought to know, if he does not already do so, that what thisjudgment means is that he will have to be active in finding a suitable courseand in getting himself assessed. In a relatively similar matter which we hadto consider yesterday we learned that the Salvation Army conductsassessments for the purpose of a 16 week bridge programme at Mt Eden, andit may be that should be the first port of call.

[12] The appellant had a right of appeal under s107M of the Act against the

determination of the Parole Board but he did not exercise that right.

[13] In May 1996 the appellant was found not guilty on the outstanding charge

against him of assaulting a female.

[14] Since March 1996 the appellant has been reviewed for parole by the

Parole Board on ten occasions but remains in prison.

The legislative scheme as to recall

[15] At the relevant time (which we take to be 29 January 1996), the legislative

scheme was as follows:

107I Application for recall

(1) Subject to subsection (6) of this section, where an offender who issubject to an indeterminate sentence is released on conditions under this Partof this Act, the Secretary may, at any time, while the offender remains liableto recall, apply to the Parole Board for an order that the offender be recalledto a penal institution to continue serving his or her sentence.

…

(3) Subject to subsection (6) of this section, where an offender subject toa determinate sentence is released under this Part of this Act, a probationofficer may, at any time not later than 3 months before the sentence expirydate, apply to the Parole Board or a District Prisons Board, as the case maybe, for an order that the offender be recalled to a penal institution to continueserving his or her sentence.

…

(6) An application may be made under this section where the applicantbelieves on reasonable grounds that—

(a) The offender has breached the conditions of his or herrelease; or

(b) The offender has committed an offence; or

(c) Because of the offender's conduct, or a change in his or hercircumstances since release, further offending is likely; or

…

(7) An application made under this section shall specify the grounds insubsection (6) of this section on which the applicant relies and the reasonsfor believing that the grounds apply.

…

107J Interim order for recall

…

(2) Where an application is made under paragraph (a) or paragraph (b)or paragraph (c) of section 107I(6) of this Act, the Chairperson of theappropriate Board shall, on behalf of the Board, make an interim order forthe recall of the offender where—

…

(b) The Chairperson believes on reasonable grounds that—

(i) The offender poses an immediate risk to the safetyof the public or of any person or any class of persons; or

(ii) The offender is likely to abscond before thedetermination of the application for recall.

(3) Where a Chairperson makes an interim order under this section, theChairperson shall issue a warrant in the prescribed form for the offender tobe detained in the penal institution specified; and if, on the giving of anysuch order, the offender is still at large, any member of the Police may arrestthe offender without warrant for the purpose of returning him or her to thepenal institution specified.

(4) Where an order is made under this section and a warrant is issued,the offender shall on, or as soon as practicable after, being taken into custodybe given—

(a) A copy of the application made under section 107I of thisAct; and

(b) A notice—

(i) Specifying the date on which the application is to bedetermined, being a date not earlier than 14 days, nor laterthan 1 month, after the date on which the offender is takeninto custody pursuant to this section; and

(ii) Advising the offender that he or she is entitled to beheard and to state his or her case in person or by counsel;and

(iii) Requiring the offender to notify the Board, not laterthan 7 days before the date on which the application is to bedetermined, whether he or she wishes to make writtensubmissions or to appear in person or be represented bycounsel.

(5) Where an order is made under this section, any conditions of releasein existence shall be suspended and the offender shall be detained in thepenal institution specified in the warrant where he or she shall continue toserve his or her sentence pending the determination of the application forrecall.

…

107L Determination of application for recall

(1) Subject to subsection (10) of this section, the Parole Board or aDistrict Prisons Board, as the case may be, shall determine the applicationmade under section 107I of this Act—

(a) Where an interim order is made under section 107J of thisAct, not earlier than 14 days, nor later than 1 month, after the dateon which the offender is taken into custody pursuant to this section;or

(b) In any other case, not earlier than 14 days, nor later than 2months, after the date on which a copy of the application is servedon the offender.

(2) The Board may order the recall of an offender if it is satisfied, on thebalance of probabilities, that one or more of the grounds in section 107I(6)of this Act have been established.

(3) Without limiting the matters that the Board may consider indetermining the application, the Board shall consider the need to protect thepublic or any person or class of persons from the offender.

(4) An order for the recall of an offender may be made under thissection whether or not the offender is in custody relating to a charge, andwhether or not the offender is alleged to have—

(a) Breached any of the conditions of his or her release; or

(b) Committed any offence.

(5) On an application under this section, the Board may receive anyevidence that it thinks fit, whether or not the evidence would otherwise beadmissible in a court of law.

…

(10) Nothing in subsection (1) of this section shall prevent the Boardfrom adjourning, from time to time, the hearing of an application madeunder section 107I of this Act, and, where the offender is in custody pursuantto an order made and a warrant issued under section 107J of this Act, thatwarrant may be extended accordingly, but in such a case the period of theadjournment shall not exceed 8 days unless both parties otherwise consent.

Overview

[16] The case for the lawfulness of the appellant’s detention is relatively simple:

1. The appellant was convicted of murder on 20 July 1984 and sentenced to life

imprisonment.

2. He was released on parole on 18 January 1993.

3. On 29 January 1996 the Chief Executive of the Department of Corrections

applied for his recall to prison. The Chief Executive of the Department of

Corrections had power to do so, see s107I(1).

4. The Parole Board had jurisdiction to direct his recall if satisfied that any of

the grounds relied on by the Chief Executive had been established, see

s107L(2).

5. The Parole Board, being satisfied that all grounds relied on by the

Chief Executive had been made out, ordered the appellant’s recall.

[17] The broad complaints of the appellant as to the lawfulness of his detention

involve the following heads of argument:

1. The interim order should not have been applied for ex parte.

2. No interim recall order was made by the Chairperson of the Parole Board.

3. Section 23 of the New Zealand Bill of Rights Act 1990 was not complied

with when the appellant was taken into custody on the warrant issued by the

Chairperson.

4. The hearing date stipulated in the original application for the appellant’s

recall was incorrect (given the statutory framework) and, after a fresh and

conforming hearing date was arranged, the appellant’s “consent” to an

adjournment (see para [8] above) was not legitimate.

5. The decision to recall the appellant to prison was inappropriate given

international human rights jurisprudence, the New Zealand Bill of Rights Act

1990 and the true interpretation of the relevant provisions of the

Criminal Justice Act 1985.

6. The Chairperson of the Parole Board (who presided over the hearing on

19 March 1996) was biased given his role in the interim recall decision.

The proceedings in the High Court

[18] The application to Miller J was made pursuant to the Habeas Corpus

Act 2001.

[19] The application was lodged with the Court on 19 March 2004. The only

respondent to the application was the Superintendent of the prison in which the

applicant is currently detained.

[20] As required by s7(1) and the High Court Rules, the application was in the

form of an originating application. The grounds expressed were in these terms:

That the Application to Recall the Prisoner granted by the Parole Board on19 March 1996, was unlawful.

Such further grounds as may become apparent when the repeated request forbasic and essential information to the Parole Board are complied with.

This application is made in reliance on ss6-9 of the Habeas Corpus Act2001, ss9, and 22 of the New Zealand Bill of Rights Act ie 5.E.disproportionately severe treatment or punishment, and arbitrary detentionrespectively, and those equivalent rights in the International Covenant onCivil and Political Rights, and the inherent jurisdiction of the Court.

[21] This application was accompanied by an affidavit sworn by the appellant

which did no more than identify himself as the applicant, confirm that he had been

released on parole from a life sentence but had been recalled to prison on

19 March 1996 and advise that he wished to challenge the legality of his detention

and not to be detained any longer.

[22] The Superintendent swore a brief affidavit in which she referred to the

sentence of life imprisonment imposed on 20 July 1984, the appellant’s release from

parole on 18 January 1993 and his recall to prison on 19 March 1996 by the

Parole Board. She produced as exhibits to her affidavit the 1984 and 1996 warrants.

[23] In a further affidavit from the appellant sworn on 26 March 2004:

1. The appellant stated that on 1 February 1996 he surrendered voluntarily to

the police at Waihi and after being allowed four hours with his family was

taken directly to Waikeria Prison. He says that at no time was he advised of

his rights under the New Zealand Bill of Rights Act.

2. He also discussed the nature of his legal representation at the 19 March 1996

Parole Board hearing, a point which was not the subject of any argument

before us.

[24] Also before the High Court was a set of documents which included the

application by the Chief Executive for recall dated 29 January 1996, the affidavit in

support, the appellant’s letter of 13 February 1996 consenting to the adjournment of

the recall application, the transcript of the decision of the Parole Board made on

19 March 1996 and the various Parole Board decisions which have been made

subsequent to the appellant’s recall to prison.

[25] In accordance with s7(5) of the Habeas Corpus Act 2001, neither the

appellant nor the respondent was entitled to general or special discovery. The

application was required to be given precedence “over all other matters before the

High Court”, see s9(1) and the Registrar was required to allocate a date for an inter

partes hearing not later than three working days after the date on which the

application was filed, see s9(3).

[26] The case fell to be determined in accordance with ss14(1) – (3) of the Act

which provide:

14 Determination of applications

(1) If the defendant fails to establish that the detention of the detainedperson is lawful, the High Court must grant as a matter of right a writ ofhabeas corpus ordering the release of the detained person from detention.

(2) A Judge dealing with an application must enquire into the matters offact and law claimed to justify the detention and is not confined in thatenquiry to the correction of jurisdictional errors; but this subsection does notentitle a Judge to call into question—

(a) a conviction of an offence by a court of competentjurisdiction, a duly constituted court-martial, or an officer exercisingsummary powers under Part 5 of the Armed Forces Discipline Act1971; or

(b) a ruling as to bail by a court of competent jurisdiction.

(3) A Judge must determine an application by—

(a) refusing the application for the issue of the writ; or

(b) issuing the writ ordering the release from detention of thedetained person.

[27] In the event that Miller J had found in favour of the appellant, the

Superintendent would have had no right of appeal, see s16(1)(b).

[28] The application was heard in the High Court on 30 March 2004 and the

judgment of Miller J dismissing the application was delivered on 2 April 2004.

[29] We will discuss in later sections of this judgment the areas of argument

which were presented to Miller J.

Habeas corpus or judicial review?

The problem

[30] To the bleak eye of a Judge concerned with the practicalities and fairness of

litigation, the merits or otherwise of the claims advanced on behalf of the appellant

(see para [17] above) look more appropriate for determination in judicial review

proceedings than on an application for a writ of habeas corpus:

1. Of the six arguments advanced by Mr Ellis only one is clearly signalled in the

application and only one of the others is identified in the affidavits filed on

behalf of the appellant. The Superintendent (and the public) would have had

cause for legitimate complaint if the Judge had found against the

Superintendent on arguments to which she had not had a fair chance to

respond.

2. Such complaints would have been of particularly acute concern given the

absence of a right of appeal for the Superintendent had she lost the case in the

High Court.

3. The procedures applicable to habeas corpus applications are not suited to

refined analysis of nuanced administrative law arguments. The statutory

prescriptions as to urgency are inconsistent with the sort of lengthy

adjournment which might be necessary to permit a full response to be made

to allegations of the type involved here. Further, if such an adjournment had

been granted to give the Superintendent an opportunity to reply to Mr Ellis’

arguments with affidavit evidence, the evaluation of that affidavit evidence

could not be conducted as efficiently as would be possible in judicial review

proceedings given the absence of rights of discovery and inspection.

4. An odd feature of the litigation is that the respondent to the application was

the Superintendent but the complaints made on behalf of the appellant are

addressed not in any real sense at the actions of the Superintendent (other

than in the formal sense that she is detaining the appellant) but rather at the

actions of the Parole Board and, to some extent, the Chief Executive of the

Department of Corrections, neither of whom is a party to the proceedings.

[31] In this case, the respondent has produced formal documentation to the Court

which, on its face is valid and sufficient to authorise the appellant’s detention but the

appellant seeks to impugn the underlying administrative decisions giving rise the that

authorisation and to do so directly in these habeas corpus proceedings rather than in

properly constituted judicial review proceedings.

[32] Against that background we see the availability to the appellant in habeas

corpus proceedings of the arguments which Mr Ellis wishes to advance as being a

threshold question which must be addressed.

Pre-Habeas Corpus Act 2001 jurisprudence

[33] This Court’s decision in A J Burr Ltd v Blenheim Borough Council [1980]

2 NZLR 1 is an appropriate starting point for consideration of this threshold

question.

[34] There are no rigid distinctions between “directory” and “mandatory”

procedural requirements. Likewise there is no absolute concept of nullity. On this

basis judicial review necessarily involves a high level of evaluation; this even

leaving aside the discretionary nature of administrative law remedies. The general

implications of all of this are discussed in Joseph, Constitutional and Administrative

Law in New Zealand (2nd ed, 2001) at p769 and following. The extent to which

collateral challenge to administrative decisions may be made in Courts other than the

High Court is open to question. Where collateral challenge occurs in the High Court,

there is often no reason why the Court should not treat the challenge as involving

judicial review, cf Burr at 5 per Cooke J. This approach is most obviously available

if the decision-maker is a party to the proceeding. But while it may be a significant

(and perhaps controlling) factor against allowing collateral challenge that the

decision-maker is not a party to the proceedings, that fact that he or she is a party is

not necessarily decisive the other way. There are now well developed procedures in

New Zealand which apply where judicial review is sought and it might be thought

that collateral challenge should not be permitted in cases in which those procedures

are not available.

[35] There are cases of high authority in which habeas corpus has either been

granted, or at least considered, in situations where the detention in question

depended upon what were apparently regular administrative decisions. The decision

of the Privy Council in Eshugbayi Eleko v Officer Administering Government of

Nigeria [1931] AC 662 is an example of the willingness of the Courts to review the

validity of such administrative decisions in habeas corpus proceedings. For those

with an interest in matters historical, we should note that the basis for the exercise of

such jurisdiction may have been either an associated claim for certiorari in aid of

habeas corpus (as in the celebrated case of ex parte Hopkins (1891) 17 Cox CC 444)

or a willingness of the Courts to act as if certiorari had been sought. This is the view

that has been expressed by Lord Brown writing extra-judicially in his thoughtful

article “Habeas Corpus – A New Chapter” [2000] Public Law 31.

[36] On the other hand, English courts have, in recent years, been reluctant to

allow judicial review procedures to be supplanted by habeas corpus applications, see

for instance R v Home Secretary ex parte Cheblak [1991] 1 WLR 890, R v Home

Secretary ex parte Muboyayi [1992] QB 244 and R v Oldham Justices ex parte

Cawley [1996] 2 WLR 681. In each of these cases the Courts acted on the basis that

judicial review and not habeas corpus was the appropriate remedy where the

“precedent fact” said to justify the detention of the applicant was an administrative

decision which had not been set aside. The flavour of this approach is captured by

remarks made by the then Simon Brown LJ in Cawley (a case concerning committal

by Justices for non-payment of fines). In that case, at 696 the Judge said:

In my judgment habeas corpus has no useful role to play in reviewingdecisions of the nature here under challenge. I recognise, of course, thatwhere it applies, it enjoys precedence over all other court business, reversesthe presumption of regularity of the decisions impugned, and issues as ofright. In practice, however, no less priority is accorded to judicial reviewcases involving the liberty of the subject; the presumption counts for little insuch cases (is indeed effectively reversed by a defective warrant), and thecourt would be unlikely in its discretion to withhold relief if the actualdecision to detain were found legally flawed. Importantly, moreover, injudicial review the court has wider powers of disposal: whereas in habeascorpus the detention is either held unlawful or not, and the applicantaccordingly freed or not, on judicial review the matter can be remitted to the

justices with whatever directions may be appropriate. Furthermore, onjudicial review the challenge is directed where it should be – at the justices –rather than at the prison authorities, whose involvement is in truthimmaterial. For my part, therefore, I would hold that habeas corpus isneither a necessary, recognised nor appropriate remedy in the present cases;rather the applicants’ detention can in my judgment only properly bechallenged by judicial review.

[37] The decisions in these cases have been, in turn, criticised by

Sir William Wade and Dr Christopher Forsyth, see for instance Sir William Wade

“Habeas Corpus and Judicial Review” (1997) 113 LQR 55 and Wade & Forsyth,

Administrative Law (8th ed, 2000) at pp587-88. The Law Commission in England

has also expressed concern about the absorption of habeas corpus into judicial

review, see its report Administrative Law: Judicial Review in Statutory Appeals

(Report No. 226, 1994 at pp93-97). Lord Brown has responded robustly to these

criticisms in his article “Habeas Corpus – A New Chapter” [2000] Public Law 31 to

which we have already referred.

[38] The New Zealand cases prior to the Habeas Corpus Act 2001 generally

followed or are consistent with the English cases referred to in para [36], see for

instance Silke Ali v Minister of Immigration (High Court, Auckland, N2270/91,

Barker J, 13 December 1991) and van der Ent v Sewell [2000] 2 NZLR 125.

Section 14(2) of the Habeas Corpus Act 2001

[39] We have set out the subsection before but it warrants repetition in this

context:

(2) A Judge dealing with an application must enquire into the matters offact and law claimed to justify the detention and is not confined in thatenquiry to the correction of jurisdictional errors; but this subsection doesnot entitle a Judge to call into question—

(a) a conviction of an offence by a court of competentjurisdiction, a duly constituted court-martial, or an officer exercisingsummary powers under Part 5 of the Armed Forces Discipline Act1971; or

(b) a ruling as to bail by a court of competent jurisdiction.

(our emphasis)

[40] In his argument before us Mr Ellis relied heavily on the subsection and in

particular its direction that a Judge dealing with a habeas corpus application must

enquire “into the matters of fact and law claimed to justify the detention”, and the

statutory direction that such enquiry is not confined “to the correction of

jurisdictional errors”.

[41] The Habeas Corpus Act was enacted following and in accordance with the

Law Commission’s recommendations in Habeas Corpus Procedure (Report 44,

1997). In para C15 the Law Commission observed of the then proposed s11(2)

which corresponds to what is now s14(2) of the Act:

The wording of subsection (2) is intended to overcome the problemsdiscussed, for example, by Professor Sir William Wade QC, “Habeas Corpusand Judicial Review” (1997) 113 LQR 55, and the Law Commission(England and Wales), Administrative Law: Judicial Review and StatutoryAppeals (LAWCOM 226, 1994, 93-97).

So the Law Commission would appear to have preferred the view espoused by

Sir William Wade that administrative decisions can be challenged on habeas corpus

applications and that it is not an answer to such an application that the grounds of

challenge would be better addressed in judicial review proceedings.

The post-Habeas Corpus Act 2001 decisions

[42] The relationship between judicial review and habeas corpus is discussed in

two reported decisions, the judgment of Robertson J in Hunia v Parole Board [2001]

3 NZLR 425 and the judgment of this Court in Bennett v Superintendent, Rimutaka

Prison [2002] 1 NZLR 616.

[43] The facts in Hunia are closely analogous to the present case, involving an

impugned decision by the Parole Board to require an offender who was otherwise

entitled to parole to serve the balance of his sentence. The facts in Bennett are less

closely analogous as they involve a challenge to the conditions of imprisonment

rather than to the underlying contention itself.

[44] In Hunia Robertson J held that only issues of a jurisdictional nature were

“properly amenable to an application for habeas corpus”. Other complaints were

seen as appropriate only to judicial review proceedings. On this basis, Robertson J

was not prepared to entertain, in habeas corpus proceedings, arguments associated

with alleged failures to specify reasons, misapplication of the appropriate standard of

proof, failure to comply with, or have regard to, international treaty obligations and

the New Zealand Bill of Rights Act 1990, bias on the part of the Parole Board

members, material errors on the face of the record, misapplication of the relevant

statutory criteria, irrationality and failures to disclose relevant material and timely

reports. The Judge’s reasons for his conclusion were expressed, in summary form, in

para [43] of his judgment:

I am not attracted to Mr Ellis’ argument that any application which is calledhabeas corpus must first involve an enquiry into the matters of fact and lawas dictated by s 14(2) of the Act in every situation. The Court has a duty andresponsibility to first determine whether the claim can properly beconsidered as an application for a writ of habeas corpus. If it can then thestatutory obligation is clear. But in my judgment merely calling somethingan application for habeas corpus does not make it an application for habeascorpus and mean that the requirements of the Act are applicable.

A purported appeal to this Court against this judgment was dismissed for want of

jurisdiction, see [2001] 3 NZLR 353.

[45] Although the Hunia judgment is not mentioned in Bennett, the approach of

this Court in that case was, broadly, consistent with the approach of Robertson J (at

least in terms of ultimate result). In para [60] of the judgment, Blanchard J speaking

for the Court observed:

The great writ of habeas corpus ad subjiciendum – a writ of right – has beenthe means whereby in Great Britain over some hundreds of years, and inNew Zealand since the founding of the nation, the lawfulness of a detentionhas been able to be tested, and, if found to be unlawful, the release of thedetainee obtained. The writ is therefore of great historical and constitutionalimportance. In the hands of creative lawyers and Judges it has proved to bea flexible remedy against oppression and unlawful conduct. In recent yearsits use in this country may largely have been confined to immigration andrefugee matters because alternative convenient and specific remedies havebeen developed to meet particular problems in the general law. Bail lawsand legislation relating to child custody disputes are examples. But habeascorpus is not to be shackled by precedent. It will adapt and enlarge as newcircumstances require. Nor, however, in another sense, is the writ to bediminished by its unnecessary use where another effective remedy isavailable through which compliance with the law can speedily be ensuredand where, overall, the circumstances are not of a kind justifying resort tothe writ.

In respect of the impact of the 2001 Act, Blanchard J observed at para [63]:

We do not consider that the 2001 Act has brought about any relevant changeto the substance of the law of habeas corpus. For that matter, neither has itprevented further judicial development.

Blanchard J then went on to discuss, admittedly in a context somewhat removed

from the present, a comparison of habeas corpus and judicial review procedures:

[66] An application for judicial review does not require the leave of theCourt. In a truly urgent case a hearing on interim relief can be arranged asspeedily as on a habeas corpus application. The relief which can be given isflexible and encompasses anything which could have been obtained underone of the prerogative writs (which technically are also available – but see s6of the Judicature Amendment Act 1972). Of particular note is s8 underwhich, where it is necessary to do so for the purpose of preserving theposition of an applicant (being, as far as possible, the position prior to thedecision complained of), the Court can declare that the Crown ought not totake any further action consequential on the exercise of the statutory power.So, for example, it would be possible as a matter of interim relief for theCourt to declare that a certain form of confinement or certain conditionsought not to continue pending a full hearing.

[67] Also to be noted in connection with the flexibility and speed of thejudicial review remedy are the powers of a Judge to call a conference and togive directions, including the imposition of a timetable (s10).

[68] We consider also that if it were necessary in order for the High Courtto determine any question – say, as to the effect on a prisoner of particularconditions – it has an inherent power to direct that the applicant be broughtbefore the Court. But that is not something which in our view is likely to berequired except in unusual circumstances.

[69] The Court would also take into account the availability of othermeans by which the rights of a prisoner can be safeguarded, namelyapplication to the Prison Inspectorate, to a Visiting Justice and to anOmbudsman. Where appropriate, the Court may decline relief if thecomplaint has not already been ventilated with one of those persons.Judicial review itself is not to be trivialised.

[70] We are aware that, in formal terms, the burden of proof rests on theapplicant for judicial review, whereas it is for the respondent to anapplication for habeas corpus to justify the detention. We are aware also thata writ of habeas corpus must be issued if the respondent does not prove thelawfulness of the detention, whereas the granting of relief in judicial reviewis a matter of discretion. In practical terms, however, these features are veryunlikely to cause any difference in the outcome of the respectiveapplications. In practice, once a prison superintendent or other officialnamed as respondent produces a committal warrant or other authorisation –as the respondents have done in this case by tendering the documentation ofthe Bennett reclassification and the Karaitiana segregation directions – itwould then be necessary for an applicant for habeas corpus to demonstratethat the documentation did not in fact provide a lawful justification in the

particular circumstances. Furthermore, once the unlawfulness of a detentionemerges in a judicial review proceeding the Court would invariably providethe necessary remedy. We do not doubt that the Crown would always act inaccordance with any declaration made by the Court. But, if necessary, amandatory order could be made against the Crown official who had custodyof the applicant (and possibly against a responsible Minister after anexpedited substantive hearing (In re M [1994] 1 AC 377). The supposedadvantages of habeas corpus are not, therefore, a compelling argument forextending it beyond its traditional role when judicial review is alreadyavailable. (The same conclusion was reached in a survey of the modern useof habeas corpus in England by Rt. Hon Lord Justice Simon Brown, HabeasCorpus – A new Chapter (2000) Public Law 31.)

Resolution

[46] Given s14(2), Courts are not confined to jurisdictional enquiry and some

consideration of the underlying questions of fact and law relevant to an applicant’s

detention is clearly envisaged. Further, it is perfectly clear that the Law Commission

intended, by what is now s14(2), to adopt the criticisms made by Sir William Wade

of the English cases referred to in para [36] above. Against that background it would

be wrong to conclude that a Court on a habeas corpus application is not entitled to

examine an administrative decision which underpins the legality of the applicant’s

detention. So, for these reasons, we are not able to accept the reasons given by

Robertson J for his decision in Hunia although, it will be apparent, we are well

satisfied that the result he reached was right.

[47] On the other hand, Parliament must have contemplated a consideration of

underlying questions of fact and law only to the extent to which such enquiry is

possible within the procedures provided for in the Act. The enquiry envisaged must

have been one that although conducted in circumstances of urgency would allow an

appropriately considered judicial examination that would warrant making an

unappealable finding against the lawfulness of the detention.

[48] The English legal debate to which we have referred has taken place in a legal

context well removed from the context in which we must decide this case. There are

considerable differences between the relevant procedural rules that apply in

New Zealand on the one hand and in England and Wales on the other. The primary

reason why there has been disquiet about the recent English decisions to which we

have referred relates to the discretionary nature of judicial review proceedings,

particularly the need to obtain leave to commence such proceedings and as to

remedies which might be available. Our concerns are as to the capacity of the

summary process invoked by the appellant to determine fairly and appropriately the

important questions which are raised. In our system of administrative law, the leave

of the Court to the commencement of proceedings is not required. Interim relief is

available. Prompt hearings in judicial review cases are common. It is inconceivable

that a Judge would refuse relief on discretionary grounds to someone who is illegally

detained. In this context there seems to be no risk of injustice in requiring judicial

review proceedings to be commenced in those cases in which administrative law

challenges are not susceptible to fair summary determination.

[49] A person who detains another can fairly be expected to establish, effectively

on demand, the legal justification for the detention. In cases involving imprisonment

or other statutory confinements, this will involve the production of a relevant warrant

or warrants or other documents which provide the basis for the detention. We accept

that apparently regular warrants (or other similar documents) will not always be a

decisive answer to a habeas corpus application. But it will be a rare case, we think,

where the habeas corpus procedures will permit the Court to enquire, into challenges

on administrative law grounds to decisions which lie upstream of apparently regular

warrants. This is particularly likely to be the case where the decision maker is not

the detaining party. There may not be a bright line which distinguishes between

those arguments which are available on habeas corpus applications and those which

can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless

we see the test as coming down to whether the arguments in issue are properly

susceptible to fair and sensible summary determination. If they are, they can be

addressed in habeas corpus proceedings. If not, they must be held over for

evaluation in judicial review proceedings. In such proceedings, an application for

interim relief (including release from custody) would be dealt with urgently and the

Judge dealing with such an application would be in a position to give directions as to

the future conduct of the litigation to ensure prompt substantive determination.

[50] This approach is consistent with the judgment of this Court in Bennett. It is

also consistent with the results reached in Hunia and the English cases referred to in

para [36] above. In a broad sense it reflects generally the policy considerations

which led to those decisions. It is also capable of sensible and practical application

in the context of the summary determination of a habeas corpus application.

[51] The legal basis for our approach does not lie in any particular limitation on

the common law remedy of habeas corpus. Rather we see the issue as turning on the

interpretation of the Habeas Corpus Act which cannot have contemplated the use of

the habeas corpus remedy for purposes for which the statutory process provided in

the Act is plainly inappropriate.

Evaluation of the appellant’s arguments

General

[52] What we have just said in effect disposes of the arguments advanced by

Mr Ellis because in truth none of them would warrant, on summary determination in

habeas corpus proceedings, an unappealable decision in favour of the appellant.

[53] In deference to the arguments presented we will, however, express our views

as to their merits.

The ex parte nature of the interim recall procedure adopted in this case

[54] Mr Ellis complains to us, as he did to Miller J, that the interim application

was made on an ex parte basis.

[55] Miller J rejected this argument in these terms:

It is plain that s.107J envisages that the interim order will be made withoutnotice to the offender. There is no provision for notice in the section.Rather, s.107J(3) provides that when an interim order is made theChairperson shall issue a warrant upon which any member of the police mayarrest the offender. Subsection 4 goes on to provide that where an order ismade and a warrant is issued, the offender shall on, or as soon as practicableafter, being taken into custody, be given a copy of the application and anotice specifying the date in which the application is to be determined inadvising the offender that he is entitled to appear or be represented bycounsel. Accordingly, the section envisages that the offender will not betold of the application until he is detained or as soon as practicablethereafter.

[56] We agree with the approach of Miller J. The statutory process provided for

was clearly intended to be carried out ex parte. There is no need for an application to

be made for an interim recall order. The statute does not even make provision for

such an application to be made. A parolee whose conduct has given rise to sufficient

concern to prompt a recall application is quite likely to go into hiding if served with

an application for an interim recall order. That, of course, is not always going to be

applicable, particularly where the parolee is back in prison for other reasons (as the

appellant was in the period between the end of November 1995 and

29 January 1996). This, however, is beside the point. For the reasons given by

Miller J, and as supplemented by us, the relevant provisions of the Act simply do not

contemplate that an interim recall order will be the subject of a hearing on notice.

[57] If we were wrong on the point just made and the statute contemplates the

possibility of interim recall applications being made on notice, then perhaps it would

be open to the appellant to seek to review the discretion of the Chief Executive to

apply ex parte for the interim recall order; perhaps by way of analogy with the

High Court Rules. It is perfectly clear, however, that the appellant’s habeas corpus

application would not be an appropriate vehicle for such review. The

Chief Executive is not a party to the application. Furthermore, and perhaps more

importantly, the complaint is signalled neither in the application nor in the affidavits

and there simply has been no opportunity for the Chief Executive to advance an

argument as to why the giving of notice in this case may have been impractical.

[58] We note in passing that the warrants under which the appellant is currently

detained are independent of the validity of the interim order. At least for the moment

we do not see how any challenge to the validity of the interim order could affect the

validity of the appellant’s detention under the final order made on 19 March 1996.

The no order point

[59] Mr Ellis noted that no document had been produced which purported to

record or be the interim recall order. This argument was signalled neither in the

application nor the affidavits. Our perusal of the judgment of Miller J suggests that

it was not put to that Judge. Given that the argument is primarily directed to the

appellant’s detention between 1 February and 19 March 1996 (ie prior to the final

recall order being made) the Superintendent could hardly have been expected to

anticipate such argument when she responded by affidavit to the application. The

Parole Board is not, itself, a party to the application.

[60] In any event, the argument is unsound. Given the statutory scheme as a

whole, there is no requirement for a separate document in the form of an interim

recall order. The making of the order and the grounds upon which it was made are

recited in the warrant executed by the Chairperson of the Parole Board. We are of

the view that this is sufficient.

[61] Echoing a point already made, this is a challenge to the validity of the

detention between 1 February and 19 March 1996. Even if it were the case that the

appellant was wrongfully detained during that period, this does not impugn the

validity of the present detention which is pursuant to the warrant issued on

19 March 1996.

The New Zealand Bill of Rights Act points

[62] In his second affidavit the appellant said that when he was taken into custody

on 1 February 1996 he was not advised of his rights under the New Zealand Bill of

Rights Act and further, it is implicit in his narrative that he was not taken to a Court.

[63] Section 23 of the New Zealand Bill of Rights Act provides:

23 Rights of persons arrested or detained

(1) Everyone who is arrested or who is detained under any enactment—

(a) Shall be informed at the time of the arrest or detention of thereason for it; and

(b) Shall have the right to consult and instruct a lawyer withoutdelay and to be informed of that right; and

(c) Shall have the right to have the validity of the arrest ordetention determined without delay by way of habeas corpus and tobe released if the arrest or detention is not lawful.

(2) Everyone who is arrested for an offence has the right to be chargedpromptly or to be released.

(3) Everyone who is arrested for an offence and is not released shall bebrought as soon as possible before a court or competent tribunal.

…

[64] In the High Court Miller J was prepared to accept that there were breaches of

s23(1)(a) and (b) of the New Zealand Bill of Rights Act which occurred when the

appellant was taken into custody pursuant to the interim recall order. He concluded,

however that the detention was not unlawful and, in this regard, he referred to

R v Shaheed [2002] 2 NZLR 377. Miller J was unimpressed by the contention that

there was also a breach of s23(3). He said that the suggestion that the appellant

should have been taken before a Court was inconsistent with the procedure provided

for under the Criminal Justice Act. In any event, when the appellant was taken into

custody on the interim recall warrant, he was not “arrested for an offence”.

[65] We broadly agree with Miller J although we have reservations as to whether

there was a breach of s23(1)(a) and, indeed, as to the relevance of Shaheed. The

failure to comply with s23 did not render the detention under the interim recall

warrant unlawful. Still less could such failure render unlawful the detention under

the final recall warrant. The contention that the appellant was required to be taken

before a Court by reason of s23(3) is untenable essentially for the reasons given by

Miller J.

The consent to adjourn the point

[66] As developed in this Court, this argument had two components. The first was

that there was no evidence that the Department had consented to the adjournment (a

requirement under s107[L](10)) and secondly that the appellant’s consent was not

properly informed. These arguments, like so much of what was advanced by

Mr Ellis to us, were signalled neither in the application nor in the affidavits.

[67] In the High Court, Miller J drew the inference that the Department had

consented. On the second point he was not able to see why the appellant’s apparent

consent to the adjournment could be regarded as invalid for want of advice

concerning legal rights.

[68] We would also draw the inference that the Department consented to the

adjournment. The letter signed by the appellant has a formal look about it and the

most obvious inference is that it was prepared by or at the request of the Department.

There is no indication in the papers of any complaint by the Department about the

hearing not proceeding on 29 February 1996. There are also practicalities to be

considered. If the adjournment was otherwise than with the consent of the

Department, we would have expected arrangements to have been put in train for the

appellant to be taken to the High Court on 29 February 1996 for a hearing. If this

had happened, we might have expected the appellant to mention this in his affidavit.

[69] We also see no reason for taking the appellant’s consent at anything other

than face value; particularly given the absence of complaint about this consent in

either of his two affidavits.

[70] The appellant’s complaints are addressed primarily to the Department of

Corrections and the Parole Board. The Superintendent can hardly be expected to

speak for or represent the Parole Board in these proceedings. Further, while she is

no doubt an employee of the Department of Corrections, her operational role within

that Department is so different from that of the Chief Executive that it is at least

doubtful whether she can fairly be regarded as speaking for or representing the

Chief Executive. Complaints such as those raised by Mr Ellis could only fairly be

resolved against either the Department or the Parole Board in the course of judicial

review proceedings where those complained about have an adequate opportunity to

respond.

The disproportionately severe punishment point

[71] The argument Mr Ellis advanced was based substantially on English and

related European jurisprudence associated with the circumstances in which those

serving life sentences (whether mandatory or discretionary) are released from prison

and, if released, may be recalled to prison. Underpinning that system is the concept

that indeterminate sentences have two components, a tariff element reflecting what

might be regarded as “just desserts” considerations (involving retribution and

deterrence) and a public protection element. There has been much debate and

dispute as to who should fix the relevant tariffs and how and the extent to which

detention beyond the tariff period can be justified. Also problematical has been

whether it is appropriate for decisions to be influenced by perceptions as to the

public acceptability of release. Underpinning much of the official thinking

associated with all of this has been the idea that a person sentenced to life

imprisonment has forfeited his or her liberty for life and parole is just a privilege

involving the exercise of leniency. This system and associated legal difficulties and

controversies are discussed in Stafford v United Kingdom (2002) 35 EHRR 1121, a

case which, like this, involved a recall to prison of a person who had been paroled

from a life sentence for murder.

[72] Within the scope of the New Zealand legislative scheme, prison sentences

have a mandatory component which, in the absence of contrary judicial direction

under s86 of the Sentencing Act 2002, is either one-half of the nominal sentence (in

the case of sentences under two years) or one-third of fixed term sentences over two

years). In the case of indeterminate sentences there are default mandatory terms of

ten years (for life sentences) and five years (where preventive detention is imposed)

which can also be varied upwards by direction of the sentencing Judge. Associated

with this is the parole system which operates on the basis that once the mandatory

period of imprisonment has been served the offender should be released unless a

danger to the public.

[73] It is possible to discern some similarities between New Zealand practice and

the English concepts just discussed. It is, however, very important to recognise that:

1. This approach can be discerned far more clearly in respect of the sentencing

and parole legislation which came into effect in 2002 (and was amended in

2003) than in the earlier regime under the Criminal Justice Act (which was in

force in 1996).

2. It is simplistic to treat the mandatory component of prison sentences imposed

in New Zealand as necessarily associated only with “just desserts”

considerations.

3. The actual operation of the New Zealand system has always been less

political than the English system. For instance the Parole Board which

decided to recall the appellant was presided over by a High Court Judge and

the statute provided a right of appeal against that decision to the High Court.

One of the most controversial aspects of the English system is the role played

in it by the Home Secretary.

[74] Stafford dealt with the appropriateness of a policy of holding a recall prisoner

in prison on the basis of concern that if released that prisoner would offend not

against “life or limb” but rather in the form of offences of dishonesty. The European

Court of Human Rights took the view that a mandatory life sentence for murder

could not be regarded as imposing, as a punishment, imprisonment for life (leaving

aside those comparatively rare cases where a “whole of life” tariff was fixed) and

once the relevant tariff period had passed, continued detention could only be justified

on considerations of risk and dangerousness associated with the possibility of violent

offending. So the risk of non-violent offending (which was the only risk posed by

Stafford) did not warrant continued detention.

[75] Stafford was, of course, based on the provisions of the European Convention

on Human Rights but its reasoning is arguably applicable to New Zealand conditions

via provisions in the New Zealand Bill of Rights Act 1990 which correspond to

some of the provisions in the European Convention on Human Rights applied in

Stafford.

[76] Mr Ellis therefore sought to invoke the Stafford principles by analogy. So he

said that the Parole Board has been wrong to regard parole “as a licence subject to

good behaviour” and thus has been wrong to act on the basis that any “significant

misbehaviour” warrants recall. According to Mr Ellis, Randerson J was also wrong

in Hart v Parole Board [1999] 3 NZLR 97 in which he adopted the licence subject to

good behaviour analysis of the parole system. Mr Ellis also argued that the

eight years which the appellant has spent in prison since March 1996 is a totally

disproportionate punishment for such misbehaviour as he may have committed

between his release on parole in 1993 and his sentence of imprisonment in

November 1995.

[77] If there is a legal basis for the contentions advanced by Mr Ellis, we are

firmly of the view that the evaluation of their merits could not fairly take place in the

context of habeas corpus proceedings. Assuming the merits of these contentions

become relevant, the Superintendent (although more logically the Chief Executive of

the Department of Corrections or perhaps the Parole Board) would be entitled to

adduce evidence to show that the decision made in March 1996 was fairly referable

to the risk of violence which the appellant was then perceived to present. As well, it

is apparent from the Parole Board decision that it was thought, in March 1996, that

the detention of the appellant pursuant to the recall order would be comparatively

brief. We have no information before us as to why the expectation of the

Parole Board at that time has not been reflected in what subsequently happened. But

if the argument of disproportionate punishment was to be fairly considered, there

would have to be an opportunity for the Superintendent (or the Department of

Corrections or the Parole Board) to explain why the appellant’s detention has

continued so long. There is, of course, an obvious factual difference between this

case and Stafford. In Stafford it was agreed that there was no ongoing risk of

violence. Yet on the papers which we have seen, it appears to us that it was the risk

of violence which the appellant was perceived as presenting which led to his recall.

[78] What we have just said should not be treated as a pressing invitation to

advance these arguments in judicial review proceedings. The relevant provisions of

the Criminal Justice Act permit recall on general grounds not necessarily associated

with a perceived risk of violence. Further, since the parole provisions in issue (ie

those which provide for the grounds upon which a recall application can be made)

are of general application (ie not confined to those serving life sentences for murder)

they will fall to be applied in cases of parolees who were initially imprisoned for

property offences. A person on parole from a sentence imposed on charges of

burglary is plainly exposed to recall if he or she commits other property offences. So

there can be no legitimate basis for interpreting the jurisdiction to recall as being

confined to cases where there is a risk of violent offending. Against that background

we see no legitimate basis for reading down the Criminal Justice Act provisions in

the manner contended for by Mr Ellis even allowing for the interpretative guidance

provided by the New Zealand Bill of Rights Act.

[79] It may be that the appellant could argue that the Parole Board, in the exercise

of its powers, should itself conform to the New Zealand Bill of Rights Act and thus

for instance comply with the rules of natural justice and not act arbitrarily. But, on

the material before us, we see no substantive basis for accusing the Parole Board of

having exercised its discretion in a way which infringed the provisions of the

New Zealand Bill of Rights Act.

The bias point

[80] Mr Ellis’ complaint was that the Chairperson of the Parole Board was biased

because he had granted the interim recall order.

[81] His argument was not signalled in the application or in the affidavits. There

is not the slightest suggestion that the appellant, who was legally represented before

the Parole Board, objected to the then Chairperson sitting on the application. This

head of argument is plainly unsuitable for summary determination on exiguous

papers in the context of a habeas corpus application. If it is to be argued seriously, it

should be in the context of judicial review proceedings, on appropriate notice and

with a fair opportunity for response.

Disposition

[82] The appeal is dismissed.

Solicitors:N B Dunning, Wellington for AppellantCrown Law Office, Wellington