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F A BORRELL V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC CHCH CIV-2007-409-000676 [2007] NZHC 195 (26 March 2007)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                                CIV-2007-409-000676

               UNDER                       the Habeas Corpus Act 2001


               BETWEEN                     FRANCIS ALLAN
BORRELL
                                           Applicant

               AND                         THE CHIEF EXECUTIVE OF THE
                                           DEPARTMENT OF CORRECTIONS
                                           Respondent


Hearing:
      26 March 2007

Counsel:       P N Allan for Applicant
               J Foster for Respondent

Judgment:      26 March 2007


                    ORAL JUDGMENT OF PANCKHURST J


Can a want of jurisdiction finding found res judicata?

[1]    In the end result
the present application for the issue of a writ of habeas
corpus turns on a narrow point. The case concerns a recall application
pertaining to
a sentenced prisoner. The question it raises is whether a finding of a Parole Board
that it lacked jurisdiction to
consider a previous recall application, can form the basis
for an estoppel following the refiling of a new recall application in
similar terms.


[2]    Mr Borrell seeks a writ of habeas corpus. He is presently remanded in
custody with reference to a second
application seeking his recall to prison. The basis
advanced for his detention is a warrant issued by a Panel Controller of the Parole
Board, Judge MacDonald. The applicant challenges his detention on the broad basis
to which I have referred.




F A BORRELL V THE
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC CHCH CIV-
2007-409-000676 26 March 2007

The factual background


[3]    In
2001 Mr Borrell was sentenced to eight years imprisonment, a sentence
which was only finalised on appeal to the Court of Appeal.
This was in relation to
offences of aggravated robbery, burglary and unlawful taking. In July 2006 he was
released on parole. A central
term of his release conditions was that he undertake
and complete a violence prevention programme at Montgomery House in Hamilton.
This was a residential course of treatment. In early August that year he absconded
from Montgomery House, or at least that is an
allegation which is central to the
recall application.


[4]    On 21 December 2006 a probation officer filed an application for
Mr Borrell's recall to prison. That same day Judge Carruthers made an interim recall
order and issued a warrant for Mr Borrell's
arrest. Some time later, on 15 January
2007, Mr Borrell was arrested and taken into custody.


[5]    This brought s65(1)(b) of the
Parole Act 2002 into play. It provides:

       If an interim recall order is made, the Board must determine the recall
       application
on a date that is, -

       (b) if the offender is not in custody when the interim order is made, at least
           14 days after,
but not more than 1 month after, the date on which the
           offender is taken into custody.

[6]    Despite the existence of
that narrow jurisdictional window, requiring that the
recall application be determined within a period of about two weeks and a few
days,
there was not a hearing of Mr Borrell's application until 16 February. Counsel on
his behalf challenged the jurisdiction of
the Parole Board to order final recall on the
basis that the window of opportunity to which I have just referred had expired. The
Panel agreed.


[7]    Judge Henwood, as the Panel Convenor, gave a very brief oral decision on
behalf of the Board. It concluded
in these terms:

       The application is therefore out of time and no order can be made to recall
       him. We do note however
that he has breached his conditions by absconding
       from the Montgomery House Programme and breach action has been taken
  
    in the court for which he is now on bail conditions, so there will be some

       official monitoring of his whereabouts under
that bail. No doubt the
       Probation Service can file another application to have him recalled if it is
       deemed appropriate to do so, and that can be dealt with in a more timely
       fashion.

That suggestion was taken up.


[8]    On 19 February the second application for recall was filed. It is accepted
that
this application involves substantially the same grounds as the first. That same day
Judge MacDonald (another Panel Convenor
of the Parole Board) issued an interim
recall order and a warrant for Mr Borrell's arrest. In the event it was not until
21 March
that Mr Borrell was arrested and taken into custody.


[9]    It is the execution of this warrant for arrest which has spawned the
present
application for a writ of habeas corpus. The application was promptly filed the day
after Mr Borrell's arrest, that is on
Thursday, 22 March. The hearing today was
arranged at the first available opportunity, given the intervention of the weekend.


[10]
  Against this brief description of the factual background I can return to the
narrow issue which I need to determine in order to
decide the present application.


The required approach


[11]   Section 14 of the Habeas Corpus Act 2001 relevantly provides:


      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.

[12]   The impact of the new Act was considered by the Court
of Appeal in the case
of Manuel v Superintendent of Hawkes Bay Regional Prison  [2005] 1 NZLR 161.
Of particular relevance for present purposes is paragraph [49] of the judgment:

       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 inquire 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.

[13]   Mr Allan contends that this
case is one where, despite the existence and
production of a warrant apparently regular on its face, it is nonetheless appropriate
for this Court to consider the argument which underpins the application. Hence
counsel maintains that such argument is one which
is properly susceptible to fair and
sensible summary determination.


[14]   Ms Foster appears for the respondent, the Chief Executive
of the Department
of Corrections. I should interpolate that the Parole Board was also named as a
second respondent to the proceeding.
At the outset of his submissions Mr Allan
indicated an election to discontinue against the Board, since counsel accepted it was
not
necessary for it to have been named a party in the first place.

[15]   Ms Foster did not really contest the contention that the
present question is
one which is susceptible of proper determination in a summary fashion. Rather, she
submitted that the underlying
proposition that the second recall application
represented an abuse of process was simply "untenable". In particular, she submitted
that the very basis of the applicant's case, that the second application represented an
attempt to relitigate an issue already finally
determined by the Parole Board, did not
withstand scrutiny. Her submission was that there had been no final determination
in this
case, no endeavour to consider the merits, only a finding by the Parole Board
that the hearing of the application was out of time
and, therefore, that it had no
jurisdiction to determine it.        Hence, counsel suggested, the application was
effectively dismissed
for want of jurisdiction.


[16]   Given these competing arguments I can return immediately to the question
posed at the outset of
this decision.


Is the second application an attempt to relitigate a final determination?


[17]   The nature and scope of abuse
of process in the criminal sphere is helpfully
discussed in another Court of Appeal case Bryant v Collector of Customs  [1984] 1
NZLR 280. Richardson J, in delivering the decision of the Court, said at page 281:

       Over the last 20 years there has been considerable
debate in the cases and in
       legal periodicals concerning the responsibility resting on criminal Courts to
       prevent the
relitigating of issues already decided and the means by which
       that responsibility once defined is exercised. That debate has
led to
       consideration in various jurisdictions of the precise scope of the concepts of
       res judicata (and in the criminal
law of the pleas of autrefois acquit and
       autrefois convict), issue estoppel and double jeopardy and, more generally,
    
  as to the principles and policies underlying the doctrine of abuse of process.
       It is obvious enough that misuse of the judicial
process ­ of which the
       attempted relitigating of issues is just one example ­ is likely to produce
       unfairness and to
undermine confidence in the administration of justice. So
       it is important in those fortunately rare cases where that is present
that the
       Court, acting in its inherent jurisdiction, should take such steps as are
       considered necessary in the particular
circumstances to protect its processes
       from abuse. The public interest in the due administration of justice
       necessarily
extends to ensuring that the processes of the Court are fairly used
       and that they do not lend themselves to oppression and
injustice. In
       exercising that jurisdiction the Court is not simply protecting the interests of
       the parties to that
case: it is also protecting its ability to function as a Court
       of law in the future as in the case before it.

[18]   Mr
Bryant had been involved in a jury trial in the course of which a ruling
was made that certain incriminating statements he had made
to the police were
inadmissible. Following that jury trial he was charged with an offence against the
Customs Act. The prosecution
sought to use the same incriminating statements in
evidence. The Court of Appeal found that such statements could not be used in
the
new prosecution.      To do so would amount to a collateral attack on a final
determination of the Judge who had presided at
the jury trial. For the statements to
be admitted in evidence would constitute an abuse of the District Court's process in
hearing
the Customs prosecution. Bryant to my mind conveniently sets the scene for
the consideration of the narrow issue in this case.


[19]   I agree with Ms Foster that the most appropriate label to place upon the
applicant's argument is estoppel per rem judicatam.
That form of estoppel is the
subject of discussion in Laws of New Zealand, Estoppel, at paragraph 3. The
constituent elements of
estoppel per rem judicatam are there described. There are
six such constituent elements. I need not record all six because it is
only (4) which is
called in question in this case. It is that the judicial decision was final.


[20]   Was there a final judicial
decision in this instance?            In my view it is
unquestionably the case there was no final determination. The Parole Board
did not
even endeavour to address the merits of the recall application. Properly, it addressed
the preliminary submission of then
counsel for Mr Borrell, that the hearing was out
time, and the Board correctly concluded that it lacked jurisdiction to deal with
the
application. Hence the decision of Judge Henwood is the very antithesis of a
determination on the merits, let alone a final determination.


[21]   If more is required it is to be found in the well-known text of Spencer Bower,
Turner and Handley on Res Judicata (3rd ed.)
at paragraph 37.                  In discussing
estoppel per rem judicata, the authors under the paragraph heading "Dismissal for
want of jurisdiction" say this:

       Again, a decision by a tribunal that it has no jurisdiction will not support a
       plea
of res judicata on the merits. Such a decision does not determine the
       merits of the dispute.

This principle is subject to one qualification. The decision of the Tribunal
that it had
no jurisdiction will render the determination of that issue susceptible of founding an
estoppel. But that is not the
point here. The point in this instance is whether there is
any determination on the merits and as to that, as I have already said,
there can be no
question.


Conclusion


[22]    There is in my view no basis to doubt the warrant issued by Judge
MacDonald on 21
February 2007. To the contrary I am satisfied that the respondent
has demonstrated that there is legal justification for the applicant's
retention.


[23]    Accordingly, I order that the application for the issue of a writ of habeas
corpus is refused. No purpose would
be served by making an order for costs and no
order is therefore made in favour of the respondent.




_________________________________________________________________________________
Solicitors:
G C Knight Solicitor, Christchurch for Application (Counsel instructed: Phillip N Allan)
Crown Law Office, Wellington
Central for Respondent