IN THE COURT OF APPEAL OF NEW ZEALAND CA67/04 JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Transcription

1 IN THE COURT OF APPEAL OF NEW ZEALAND CA67/04 BETWEEN AND BENJAMIN EUGENE MANUEL Appellant THE SUPERINTENDENT, HAWKES BAY REGIONAL PRISON Respondent Hearing: 6 May 2004 Coram: McGrath J Hammond J William Young J Appearances: T Ellis for Appellant S 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 While on parole he was convicted of further offences: MANUEL V THE SUPERINTENDENT, HAWKES BAY REGIONAL PRISON CA CA67/04 15 June 2004

2 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 [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 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 an order 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 pursuant to 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 the public 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 This date, however, lay outside the time frame required by s107l(1)(a). So the hearing was brought forward to 29 February 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 HC Auckland on 29 February 1996.

4 I understand that my Recall will then be considered at the National Parole Board 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 a number of occasions that parole is a licence subject to good behaviour and that evidence of significant misbehaviour is likely to result in a forfeiture of that licence. We believe that the continuation of alcoholism, some difficulty with controlling his temper and dysfunctional domestic family arrangements, do give cause for concern that there will be further offending unless some step is taken by the Board to prevent it. We believe that that risk is sufficient that the order for recall should be granted, together with conditions which address the problems just described. [11] The Board also noted: The Board supports the consideration by the Department of a temporary release from custody for Mr Manuel under s21 of the Penal Institutions Act 1954 for the purpose of undertaking a residential alcohol treatment programme: for which purpose it will be necessary that an application be made and that the body concerned undertakes a preliminary assessment of Mr Manuel and is satisfied that he has the necessary commitment to be accepted into its programme. If that is done, and the programme is not carried out to the satisfaction of the organisation concerned, then Mr Manuel will come back to prison to continue serving his sentence. If it is satisfactorily carried out and that circumstance reported to the Board, it will reconsider the grant of parole to Mr Manuel at the next meeting of the Board following it receiving that advice. At that time the Board will have a report from Community Corrections which will be asked to consider some means of limiting communication between Mr Manuel and his family, as this has been one of the causes of difficulty. During the course of today s hearing [the partner of the appellant] advised that she too would be prepared to seek assistance for alcoholism. We think everything which is done which would result in Mr Manuel s returning to the present relationship would have little significance unless indeed [the

5 partner] is prepared to try to do something on her part to eliminate her drinking problem. Mr Manuel ought to know, if he does not already do so, that what this judgment means is that he will have to be active in finding a suitable course and in getting himself assessed. In a relatively similar matter which we had to consider yesterday we learned that the Salvation Army conducts assessments for the purpose of a 16 week bridge programme at Mt Eden, and it 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 is subject to an indeterminate sentence is released on conditions under this Part of this Act, the Secretary may, at any time, while the offender remains liable to recall, apply to the Parole Board for an order that the offender be recalled to a penal institution to continue serving his or her sentence. (3) Subject to subsection (6) of this section, where an offender subject to a determinate sentence is released under this Part of this Act, a probation officer may, at any time not later than 3 months before the sentence expiry date, apply to the Parole Board or a District Prisons Board, as the case may be, for an order that the offender be recalled to a penal institution to continue serving his or her sentence. (6) An application may be made under this section where the applicant believes on reasonable grounds that

6 (a) The offender has breached the conditions of his or her release; or (b) The offender has committed an offence; or (c) Because of the offender's conduct, or a change in his or her circumstances since release, further offending is likely; or (7) An application made under this section shall specify the grounds in subsection (6) of this section on which the applicant relies and the reasons for 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 the appropriate Board shall, on behalf of the Board, make an interim order for the recall of the offender where (b) The Chairperson believes on reasonable grounds that (i) The offender poses an immediate risk to the safety of the public or of any person or any class of persons; or (ii) The offender is likely to abscond before the determination of the application for recall. (3) Where a Chairperson makes an interim order under this section, the Chairperson shall issue a warrant in the prescribed form for the offender to be detained in the penal institution specified; and if, on the giving of any such order, the offender is still at large, any member of the Police may arrest the offender without warrant for the purpose of returning him or her to the penal 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 custody be given (a) A copy of the application made under section 107I of this Act; and (b) A notice (i) Specifying the date on which the application is to be determined, being a date not earlier than 14 days, nor later than 1 month, after the date on which the offender is taken into custody pursuant to this section; and

7 (ii) Advising the offender that he or she is entitled to be heard and to state his or her case in person or by counsel; and (iii) Requiring the offender to notify the Board, not later than 7 days before the date on which the application is to be determined, whether he or she wishes to make written submissions or to appear in person or be represented by counsel. (5) Where an order is made under this section, any conditions of release in existence shall be suspended and the offender shall be detained in the penal institution specified in the warrant where he or she shall continue to serve his or her sentence pending the determination of the application for recall. 107L Determination of application for recall (1) Subject to subsection (10) of this section, the Parole Board or a District Prisons Board, as the case may be, shall determine the application made under section 107I of this Act (a) Where an interim order is made under section 107J of this Act, not earlier than 14 days, nor later than 1 month, after the date on 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 2 months, after the date on which a copy of the application is served on the offender. (2) The Board may order the recall of an offender if it is satisfied, on the balance 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 in determining the application, the Board shall consider the need to protect the public or any person or class of persons from the offender. (4) An order for the recall of an offender may be made under this section whether or not the offender is in custody relating to a charge, and whether or not the offender is alleged to have (a) (b) Breached any of the conditions of his or her release; or Committed any offence. (5) On an application under this section, the Board may receive any evidence that it thinks fit, whether or not the evidence would otherwise be admissible in a court of law.

8 (10) Nothing in subsection (1) of this section shall prevent the Board from adjourning, from time to time, the hearing of an application made under section 107I of this Act, and, where the offender is in custody pursuant to an order made and a warrant issued under section 107J of this Act, that warrant may be extended accordingly, but in such a case the period of the adjournment 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 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.

9 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 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 [19] The application was lodged with the Court on 19 March 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 on 19 March 1996, was unlawful. Such further grounds as may become apparent when the repeated request for basic and essential information to the Parole Board are complied with. This application is made in reliance on ss6-9 of the Habeas Corpus Act 2001, ss9, and 22 of the New Zealand Bill of Rights Act ie 5.E. disproportionately severe treatment or punishment, and arbitrary detention respectively, and those equivalent rights in the International Covenant on Civil 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

10 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).

11 [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 detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention. (2) A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question (a) a conviction of an offence by a court of competent jurisdiction, a duly constituted court-martial, or an officer exercising summary powers under Part 5 of the Armed Forces Discipline Act 1971; 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 the detained 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 [29] We will discuss in later sections of this judgment the areas of argument which were presented to Miller J.

12 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

13 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 (2 nd 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

14 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 reviewing decisions of the nature here under challenge. I recognise, of course, that where it applies, it enjoys precedence over all other court business, reverses the presumption of regularity of the decisions impugned, and issues as of right. In practice, however, no less priority is accorded to judicial review cases involving the liberty of the subject; the presumption counts for little in such cases (is indeed effectively reversed by a defective warrant), and the court would be unlikely in its discretion to withhold relief if the actual decision to detain were found legally flawed. Importantly, moreover, in judicial review the court has wider powers of disposal: whereas in habeas corpus the detention is either held unlawful or not, and the applicant accordingly freed or not, on judicial review the matter can be remitted to the

15 justices with whatever directions may be appropriate. Furthermore, on judicial review the challenge is directed where it should be at the justices rather than at the prison authorities, whose involvement is in truth immaterial. For my part, therefore, I would hold that habeas corpus is neither a necessary, recognised nor appropriate remedy in the present cases; rather the applicants detention can in my judgment only properly be challenged 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 (8 th ed, 2000) at pp 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 of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question (a) a conviction of an offence by a court of competent jurisdiction, a duly constituted court-martial, or an officer exercising summary powers under Part 5 of the Armed Forces Discipline Act 1971; or (b) a ruling as to bail by a court of competent jurisdiction. (our emphasis)

16 [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 problems discussed, for example, by Professor Sir William Wade QC, Habeas Corpus and Judicial Review (1997) 113 LQR 55, and the Law Commission (England and Wales), Administrative Law: Judicial Review and Statutory Appeals (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

17 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 called habeas corpus must first involve an enquiry into the matters of fact and law as dictated by s 14(2) of the Act in every situation. The Court has a duty and responsibility to first determine whether the claim can properly be considered as an application for a writ of habeas corpus. If it can then the statutory obligation is clear. But in my judgment merely calling something an application for habeas corpus does not make it an application for habeas corpus 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 been the means whereby in Great Britain over some hundreds of years, and in New Zealand since the founding of the nation, the lawfulness of a detention has been able to be tested, and, if found to be unlawful, the release of the detainee obtained. The writ is therefore of great historical and constitutional importance. In the hands of creative lawyers and Judges it has proved to be a flexible remedy against oppression and unlawful conduct. In recent years its use in this country may largely have been confined to immigration and refugee matters because alternative convenient and specific remedies have been developed to meet particular problems in the general law. Bail laws and legislation relating to child custody disputes are examples. But habeas corpus is not to be shackled by precedent. It will adapt and enlarge as new circumstances require. Nor, however, in another sense, is the writ to be diminished by its unnecessary use where another effective remedy is available through which compliance with the law can speedily be ensured and where, overall, the circumstances are not of a kind justifying resort to the writ.

18 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 change to the substance of the law of habeas corpus. For that matter, neither has it prevented 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 the Court. In a truly urgent case a hearing on interim relief can be arranged as speedily as on a habeas corpus application. The relief which can be given is flexible and encompasses anything which could have been obtained under one of the prerogative writs (which technically are also available but see s6 of the Judicature Amendment Act 1972). Of particular note is s8 under which, where it is necessary to do so for the purpose of preserving the position of an applicant (being, as far as possible, the position prior to the decision complained of), the Court can declare that the Crown ought not to take 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 the Court to declare that a certain form of confinement or certain conditions ought not to continue pending a full hearing. [67] Also to be noted in connection with the flexibility and speed of the judicial review remedy are the powers of a Judge to call a conference and to give directions, including the imposition of a timetable (s10). [68] We consider also that if it were necessary in order for the High Court to determine any question say, as to the effect on a prisoner of particular conditions it has an inherent power to direct that the applicant be brought before the Court. But that is not something which in our view is likely to be required except in unusual circumstances. [69] The Court would also take into account the availability of other means by which the rights of a prisoner can be safeguarded, namely application to the Prison Inspectorate, to a Visiting Justice and to an Ombudsman. Where appropriate, the Court may decline relief if the complaint 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 the applicant for judicial review, whereas it is for the respondent to an application for habeas corpus to justify the detention. We are aware also that a writ of habeas corpus must be issued if the respondent does not prove the lawfulness of the detention, whereas the granting of relief in judicial review is a matter of discretion. In practical terms, however, these features are very unlikely to cause any difference in the outcome of the respective applications. In practice, once a prison superintendent or other official named as respondent produces a committal warrant or other authorisation as the respondents have done in this case by tendering the documentation of the Bennett reclassification and the Karaitiana segregation directions it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the

19 Resolution particular circumstances. Furthermore, once the unlawfulness of a detention emerges in a judicial review proceeding the Court would invariably provide the necessary remedy. We do not doubt that the Crown would always act in accordance with any declaration made by the Court. But, if necessary, a mandatory order could be made against the Crown official who had custody of the applicant (and possibly against a responsible Minister after an expedited substantive hearing (In re M [1994] 1 AC 377). The supposed advantages of habeas corpus are not, therefore, a compelling argument for extending it beyond its traditional role when judicial review is already available. (The same conclusion was reached in a survey of the modern use of habeas corpus in England by Rt. Hon Lord Justice Simon Brown, Habeas Corpus A new Chapter (2000) Public Law 31.) [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,

20 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

21 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 without notice to the offender. There is no provision for notice in the section. Rather, s.107j(3) provides that when an interim order is made the Chairperson shall issue a warrant upon which any member of the police may arrest the offender. Subsection 4 goes on to provide that where an order is made and a warrant is issued, the offender shall on, or as soon as practicable after, being taken into custody, be given a copy of the application and a notice specifying the date in which the application is to be determined in advising the offender that he is entitled to appear or be represented by counsel. Accordingly, the section envisages that the offender will not be told of the application until he is detained or as soon as practicable thereafter.

22 [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 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

23 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 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 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 the reason for it; and (b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and (c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

24 (2) Everyone who is arrested for an offence has the right to be charged promptly or to be released. (3) Everyone who is arrested for an offence and is not released shall be brought 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