|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2005-404-007225
BETWEEN GRAHAM ASHLEY ROBERT PALMER
Plaintiff/Applicant
AND THE MANAGER OF AUCKLAND
PRISON
Respondent
Hearing: 21 December 2005
Appearances: Plaintiff/Applicant in Person
Mr P Hamlin for Respondent
Judgment: 21 December 2005
ORAL JUDGMENT OF VENNING J
Solicitors:
Crown Solicitor, Auckland
Copy to: G A R Palmer, c/- Auckland Prison,, PO Box 50124, Albany, Auckland
PALMER V THE MANAGER
OF AUCKLAND PRISON HC AK CIV 2005-404-007225 21 December 2005
[1] This is an application for relief pursuant to the Habeas Corpus
Act 2001. The
application was filed on 19 December 2005. The matter has come before me today.
Mr Palmer represents himself. The respondent
is represented by the Crown Solicitor
at Auckland. No notice of opposition has been filed to the application but I have
heard Mr
Hamlin in support of the opposition.
[2] The principles in relation to habeas corpus are well settled. They are set out
in the
recent decision of the Court of Appeal in Manual v Superintendent of Hawkes
Bay Regional Prison [2005] 1 NZLR 161 (CA). It is fair to say that Mr Palmer is an
experienced litigant and has regularly appeared before this other and other Courts.
I
do not consider he has been caught by surprise by the lack of a formal notice of
opposition.
[3] The basis for the application
for relief under the Habeas Corpus Act is
essentially a challenge to a decision of the Manager not to adjust Mr Palmer's parole
eligibility
date. It is the view of the respondent (or perhaps more properly the Chief
Executive of the Department of Corrections) that the parole
eligibility date is in fact
26 March 2010. Mr Palmer's view is that in fact the parole eligibility date was
approximately 18 months
ago and that he has already served 11 years six months and
should have been taken before the Parole Board prior to or upon completion
of the
first 10 years of that term of imprisonment. It is implicit in the material submitted to
the Court that Mr Palmer accepts
that he was not eligible for parole until 10 years
had been served. That must be right when reference is had to s 20 (2) of the Parole
Act 2002 and s 89 (1) of the Criminal Justice Act 1985.
[4] In support of his application for relief under the Habeas Corpus
Act and an
interim order under s 11 of that Act releasing him from detention on certain
conditions Mr Palmer has referred to the
following matters. I summarise the
particularly material points.
[5] On 26 February 1999 he was arrested and charged
with 10 counts of alleged
sexual offending. On 7 October 1999 a jury in the High Court at Auckland returned
six not guilty verdicts
and four guilty verdicts. On 7 April 2000 Cartwright J
sentenced Mr Palmer to preventive detention.
[6] For present purposes
I accept Mr Palmer's submission, although I have not
heard from Mr Hamlin on it, that counts 6 and 7 of the indictment on which he
was
found guilty were the only convictions that support the sentence of preventive
detention, they being offences under s 128 (1)
of the Crimes Act 1961.
[7] On the basis of new evidence the convictions on counts 6 and 7 have been
referred back to the Court
of Appeal by the Governor General in Council. That
matter is to be heard before a full Court of the Court of Appeal on 20 February
next
year.
[8] Mr Palmer also challenges the validity of his convictions on counts 3 and 10,
being the remaining two counts
on which he was convicted but for present purposes
it is not necessary for the Court to refer to those matters further.
[9]
Mr Palmer calculates that taking the time he had spent on remand into
account the sentence of preventive detention started on 26
February 1999.
[10] Mr Palmer was earlier convicted and sentenced to imprisonment in relation to
four counts of offences involving
GST fraud. On 6 October 2005 the Court of
Appeal quashed the convictions entered by Gault J on 31 March 1998 for those
matters. The
convictions were entered on the basis of guilty pleas. Before entering
conviction and sentencing Mr Palmer Gault J had refused to
set aside the guilty
pleas. In quashing the conviction the Court of Appeal directed that the application to
withdraw the guilty pleas
is to be reheard by this Court. A date has not yet been
allocated for that hearing.
[11] Mr Palmer submits that taking
into account the time he spent in custody in
relation to those matters and by reference to s 81 of the Criminal Justice Act 1985
(as
it applied at the relevant time) all of the time served in terms of the sentence and
remand for the GST offences is now to be
treated as time served in respect of the
current preventive detention sentence. In particular he submits that the time served
for
the four offences without a guilty plea or verdict was all remand time. By
reference to ss 89 to 91 of the Parole Act 2002, which
he submits repeats and
clarifies what is set out in s 81 of the Criminal Justice Act 1985 Mr Palmer
calculates that he has effectively
spent 11 years and 10 months in custody.
[12] Mr Palmer refers to an apparent decision of the Superintendent in relation to
the time that Mr Palmer has spent in custody
with particular reference to the effect
on his parole eligibility date. The note of that decision produced to the Court
records:
At this stage the unit manager has taken this request to the R/O for checking
and consideration. They do not agree
there should be any adjustment to
Palmer's parole eligibility date. At the same time National Office
Operations advisor
Bill Crawley was consulted by phone, he too agrees with
the decision, as the appeal relates to a different term of imprisonment
for an
unrelated offence.
[13] Mr Palmer submits that the Manager's judgment is erroneous as time on
remand has not been
taken into account as it should be.
[14] Mr Palmer made direct application to the Chairman of the Parole Board. The
Chairman
of the Parole Board has replied to the effect that the statutory obligation to
determine the sentence release dates falls to the
Chief Executive of the Department
for Corrections.
[15] It is against that background and primarily on the basis that he has
been
denied the opportunity to be brought before the Parole Board for his eligibility for
parole to be considered that Mr Palmer
seeks relief under the Habeas Corpus Act.
[16] As I referred to above the most recent and relevant authority on the
application
of the Habeas Corpus Act is the decision of Manuel v The
Superintendent, Hawkes Bay Regional Prison. In that case the Court of Appeal
summarised the position under the Act as follows:
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.
[17] Earlier the Court of Appeal had observed at
para [26]:
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.
[18] In the present case it seems to me that the decision of Manuel and the
principles set out by the Court
of Appeal in that decision are particularly applicable.
In my view the application before this Court is misconceived as an application for
relief under the habeas corpus legislation.
[19] Underlying
Mr Palmer's application for habeas corpus is the submission that
the Manager or perhaps the Chief Executive's calculations as to
time served is wrong
and he should have been brought before the Parole Board and had the opportunity to
put his case for early release.
[20] Mr Palmer may possibly be right in his submission but I have to say that the
authority of Taylor v Superintendent of Auckland
Prison [2003] 3 NZLR 752 would
seem to cause him some considerable difficulty with that particular argument. The
cases referred to by him of R v Harris (1989) 5 CRNZ 403 (CA) and R v Shepherd
(1990) 6 CRNZ 154 (CA) do not assist. But in any event Mr Palmer's challenge is
to the decision as to the calculation of his parole eligibility date
rather than the
underlying warrants or legality of his imprisonment . If he wishes to pursue and
maintain the challenge to the
calculation of his parole eligibility date then the
appropriate way forward for him in relation to that is to bring a proper application
for judicial review if a final decision has indeed been made on that matter or an
application perhaps for mandamus if no decision
has been made. Those, however,
are matters for another forum and another hearing, and can not be pursued in this
application for
habeas corpus.
[21] The position is that in the present case Mr Palmer is lawfully detained
pursuant to warrants of commitment
that he himself produced in support of this
application. The first warrant does contain an error in the date of the conviction but
that is apparent on the face of the warrant itself and in any event was rectified by the
replacement warrant issued.
[22] There
are a number of other matters that Mr Palmer has referred to in support
of the application for habeas corpus. First, that by failing
to present him before the
Parole Board the respondent has denied him the opportunity to be released on parole,
which represents a
breach of s 25 (a) of the New Zealand Bill of Rights Act.
Reliance is placed on the decision of Upton v Green (No 2) (1996) 3 HRNZ 179.
This is not a case of a breach of a right to a fair hearing or at least not at the moment.
Mr Palmer's submission in reliance on
s 25A is predicated on the assumption that his
analysis as to his parole eligibility date is correct. If he is wrong, that is the
end of it.
If he is right and the correctness or otherwise of that is yet to be established, then he
may have an argument under s
25 (a) of the New Zealand Bill of Rights Act but at
present the section does not apply.
[23] Mr Palmer also made the submission
that his sentence had been completed.
He referred to a memorandum from the Parole Board stating that he was to appear
before the
Board in September 2005, some five years after sentence. That date was
retracted when it was discovered that he had been sentenced
under the Criminal
Justice Act 1985 and the minimum period was 10 years. He submitted that such
retraction was arbitrary and in breach
of the New Zealand Bill of Rights Act but
again, with respect, that submission cannot be correct. As a matter of law and
Mr Palmer
has acknowledged in his presentation, the Criminal Justice Act applies.
The minimum period before parole is 10 years, not five years.
Any administrative
error that suggested the period was five years rather than 10 cannot affect the legality
or the application
of the Act or create an expectation enforceable at law.
[24] Mr Palmer also made reference to the defect in the original warrant
of
commitment and the fact that a new warrant had been issued. He submitted that if
the warrant had been corrected after 30 June
2002 then indeed he would have been
eligible for parole after five years. He referred to Article 15 of the International
Covenant
on Civil and Political Rights. Again, in my judgment, there is no merit in
that particular submission. It misses the point that the
replacement warrant issued on
13 September 2001 before 30 June 2002. It was clearly a replacement for the
original defective warrant,
the defect of which was apparent on its face. In the
circumstances the Article 15 relied on can have no application.
Result
[25]
On the information before the Court I am satisfied that Mr Palmer is lawfully
detained at present in accordance with a regular
warrant of commitment. For the
reasons I have given above the matters that Mr Palmer seeks to raise are more
appropriately raised
in judicial review proceedings rather than in this habeas corpus
application. There is no basis for the application for habeas corpus
or the interim
relief sought. The application is dismissed.
Addendum
[26] During the course of the hearing Mr Palmer also
referred to his lack of access
to a computer at present and presented a handwritten application seeking an order
that the Manager
issue him with his computer and printer under the same terms and
conditions as prevailed in 2000-2001 and from 19 April 23 April
2005.
[27] In the time available Mr Hamlin has not been able to obtain full instructions
from the respondent as to the current
practical position within the prison in relation
to Mr Palmer's access to the computer. He has referred me to earlier decisions of
this court that touch on this matter, including the decision of Palmer v The
Superintendent Auckland Prison Albany (HC Auckland,
M1023-AS/01, 17
December 2001, Salmon J); Palmer v Commissioner of Inland Revenue (HC
Auckland, CIV 2004-404-3420, 9 June
2005, Winkelmann J); and in addition
Mr Palmer has referred me to a teleconference minute of Baragwanath J on
21 March
2005 where the matter was raised.
[28] It seems to me that the position before me is, as it was, before Winkelmann J
and set
out in her judgment of 9 June 2005. Essentially Mr Palmer is seeking to
review a decision of the Manager as to the management of
the operation of the
prison. Although it may appear unwieldy the only formal legal basis for this Court
to make any orders in relation
to that would be on a properly constituted application
for judicial review. If the matter is truly urgent orders could be made on an
application for interim relief in the course of such
judicial review proceedings.
[29] Absent such formal proceedings, which of course would give the Manager
the opportunity to respond
to the matters that Mr Palmer raises, there is simply no
jurisdiction for the Court to make orders binding the Manager.
[30]
However, I do note that Baragwanath J dealt with this matter by way of
suggesting that it would be helpful if the matter could be
discussed and agreement
reached perhaps with the intervention of the Crown Solicitor. I take from what
Mr Hamlin has said in submission
that the Crown Solicitor is in contact with the
Manager and may be able to discuss this matter with the Manager.
[31] It seems
to me that it would be helpful if, after discussion with the Crown
Solicitor, the Manager could consider whether some relaxation
in the present
situation could be achieved, bearing in mind the importance of the forthcoming
Court of Appeal hearing in February
2006 to Mr Palmer and given the need to
properly prepare for such a hearing. I have to leave the matter on that basis,
however,
in light of the state of the material before me at the moment.
__________________________
G J Venning J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2005/462.html