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JAMES McLEOD BENNETT & ANOR v THE SUPERINTENDENT, RIMUTAKA PRISON & ORS [2001] NZCA 373 (6 December 2001)

[1] Mr Bennett and Mr Karaitiana separately seek conditional leave to appeal to Her Majesty in Council, pursuant to r2(b) of the Privy Council Rules, from the judgment of the court delivered on 24 October 2001.Both their appeals to this court, which were heard together, and were the subject of a single judgment, concern the security classification and segregation regimes under the penal institutions legislation and the consequences for them as serving prisoners, leading to detention under segregation (graphically described as "a prison within a prison").As well, Mr Bennett challenged the distinction drawn in the Privy Council Rules between appeals as of right, where a low ($5,000) monetary threshold is made (r2(a)) and the specific requirements in other cases (r2(b)) as constituting unjustifiable discrimination between commercial and human rights cases rendering the Rules invalid.

[2] Mr Karaitiana's proceeding was brought under the Habeas Corpus Act 2001.In terms of ss15 and 16 the determination of the original application is "final", subject only to a carefully limited right of appeal to this court. The necessary inference from the scheme of the statute, including ss15 and 16, and the emphasis throughout on urgency accorded to applications and to appeals to this court, is that the limited appeal to this court is the only exception to the finality of the original determination.It shows by necessary intendment that the conditional leave to appeal provisions under the Privy Council Rules have no application (and see De Morgan v Director-General of Social Welfare [1997] 3 NZLR 385).

[3] Mr Bennett applied for habeas corpus (but not under the Act, which was not in force at the material time) and for judicial review.Mr France for the Crown accepts that the meaning of "detention" (and whether it includes changes in conditions within prisons, to which the applicant is subject consequent on security reclassification), be it under the common law of habeas corpus, s2 of the Habeas Corpus Act 2001 or s22 and s23(1) of the New Zealand Bill of Rights Act 1990, is a question of general or public importance under r2(b).His primary argument is that there is no live issue remaining in either of these cases.By the time of the hearing of Mr Bennett's appeal on 24 September 2001 Mr Bennett was no longer subject to the "prison within a prison" detention he was challenging and Mr Karaitiana was released the next day from the detention he was challenging following on indications from the court at the end of the oral hearing.In Attorney-General v E (No 2) [2000] 3 NZLR 637 this court at para [14] adhered to its "long-standing" approach that any discretion to grant leave on public importance grounds where there was no live issue should be exercised by the Privy Council in terms of R v Secretary of State for the Home Department, Ex parte Salem [1999] 1 AC 450, and not by this court.

[4] Mr Ellis submitted, however, that in one form or another the issue of whether "prison within a prison" detention attracted habeas corpus or Bill of Rights protection would be argued before the Privy Council and, if necessary, the United Nations Human Rights Committee, e.g. by a new proceeding seeking a Bill of Rights declaration and damages.He urged the court to treat the present proceedings as sufficiently brought for the purpose of granting conditional leave to appeal.But, while the Bill of Rights provision was referred to in the substantive appeal as informing the meaning to be accorded to "detention", as a matter of jurisdiction neither Mr Bennett nor Mr Karaitiana brought a cause of action for breach of the Bill of Rights and it is far too late to seek to amend the pleadings.

[5] Finally, questions as to validity of the Privy Council rules should be raised, if appropriate before a judicial body, before the Privy Council.The Preamble to the 1910 Order in Council records the new provision for rules to appeal to the Privy Council as being "expedient with a view to equalizing as far as may be the conditions under which His Majesty's subjects in the British Dominions beyond the Seas shall have a right of Appeal to His Majesty in Council and to promoting uniformity in the practice and procedure in all such Appeals".

[6] As well, in the absence of the 1910 Order it would seem necessary to seek leave from the Privy Council itself.Finally, this court would necessarily be constrained in considering appeals from its decisions in habeas corpus matters by the need for celerity and finality reflected in the 2001 Act.

[7] For these reasons the applications for leave to appeal are dismissed.

Solicitors

N Dunning, Wellington, for applicants

Crown Law Office, Wellington, for respondents