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Teina v Manager of Custodial Services, Auckland Prison HC Auckland CIV 2007-404-5783 [2007] NZHC 2123 (20 September 2007)

Last Updated: 4 January 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2007-404-5783}

IN THE MATTER OF the Habeas Corpus Act 2001

BETWEEN TEOKOTAI TEINA Applicant

AND THE MANAGER OF CUSTODIAL SERVICES, AUCKLAND PRISON Respondent

Hearing: 20 September 2007

Appearances: Applicant in person

J Down for the respondent

Judgment: 20 September 2007

_{(ORAL) JUDGMENT OF STEVENS J}

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland

Crown Law Office, PO Box 2858, Wellington

Copy to:

_{T Teina, Inmate, C/- Auckland Prison, PO Box 50 124, Auckland}

TEINA V CUSTODIAL SERVICES, AUCKLAND PRISON HC AK CIV 2007-404-5783 20 September 2007

Introduction

[1] The applicant has applied for a writ of habeas corpus under the Habeas Corpus Act 2001 (the Act). He is currently an inmate of Auckland Prison, Paremoremo, where he has a high/medium classification and is therefore serving his sentence in D-block.

[2] On 7 May 2007, he was convicted on charges of possession of methamphetamine for supply and possession of LSD for supply in the High Court at Auckland. On 26 June 2007, he was sentenced by Harrison J to an effective term of imprisonment of four years. In respect of this sentence there are warrants of commitment for imprisonment under s 91 of the Sentencing Act 2002, which were duly signed by the sentencing Judge.

[3] The writ of habeas corpus is sought essentially on the grounds that, at a hearing before the Parole Board on 6 September 2007, the applicant was denied the opportunity to be heard and to present submissions and otherwise denied a fair hearing. The thrust of his challenge is not to the legality of his detention per se. Rather, it is a procedural challenge to what occurred during an allegedly brief appearance at the hearing before the Parole Board.

[4] Under the Act, an application for a writ of habeas corpus must be given precedence over all other matters before the High Court. Hence, the application was given an urgent hearing today pursuant to s 9(3) of the Act.

[5] The applicant had sought to have another inmate with him in Court to act as a McKenzie friend. That application was declined by the Civil List Judge: see minute of Potter J dated 18 September 2007. At [10] of the minute it was noted that:

The Judge presiding over the application for the writ of habeas corpus will be able to ensure the applicant has whatever assistance may reasonably be required to ensure his rights are protected.

[6] The applicant has filed a three page application which also includes some legal submissions. He appeared today to present additional oral submissions. He was provided with copies of all of the material relied upon by Mr Down, counsel for

the respondent. He was given an opportunity by the Court to develop any further points in support of the application.

[7] During the hearing today, I raised with Mr Down the nature of any review or appeal rights that the applicant might have under the Parole Act 2002. Mr Down helpfully identified the relevant provisions in the Parole Act and provided copies of these to the applicant. I will refer to these provisions in more detail later. But I am able to deal with the application for the writ of habeas corpus without delay.

Opposition to issue of writ

[8] The respondent opposed the grant of a writ of habeas corpus to the applicant. The key grounds are:

a) The applicant is lawfully detained pursuant to two warrants of commitment issued by Harrison J.

b) The applicant does not challenge the legality of the underlying detention. Rather, his challenge is to procedural aspects of the Parole Board hearing on 6 September 2007. The Parole Board is a separate statutory body that is a different entity from the respondent who is responsible for the applicant’s detention.

c) Any concerns which the applicant has can be pursued in the first instance, through possible remedies under the Parole Act.

[9] The respondent filed an affidavit of Christopher Gerard Burns, Acting Prison Manager of Auckland Prison, annexing the warrants of commitment. I was also provided with reports of two Parole Board hearings. The first was on 3 August

2007, when the hearing was adjourned by consent. The second was on 6 September

2007, which is the subject of this application.

[10] A helpful written synopsis of submissions was filed by counsel for the respondent. The applicant had an opportunity during an adjournment of the hearing

to consider this submission and all of the material presented on behalf of the respondent.

Factual background

[11] The applicant was sentenced to a four year term of imprisonment by Harrison J on 26 June 2007. Prior to that date, he had been remanded in custody and had accrued approximately 468 days on remand. Accordingly, the applicant’s parole eligibility date came up within six weeks of the sentence, namely, on 6 August 2007.

[12] The applicant was informed that this was his first statutory parole hearing. When his case came before the Parole Board, the Board did not have a full report either from the Community Probation Service or from the prison. The Board considered that to proceed without such information could place Mr Teina at a disadvantage. It was therefore suggested that he might consent to the application being adjourned to the September sitting of the Board, a course to which Mr Teina consented. His application was then adjourned to 6 September 2007.

[13] On that day, his case came before a differently constituted Parole Board. The application alleges that the hearing on 6 September “lasted somewhere in the vicinity of one to two minutes”. Mr Teina had two support persons with him and he was accompanied by a prison officer, Mr John Small. The application goes on to plead as follows:

10. This [hearing] consisted of the Parole Board Chairman effectively berating the Applicant over the Attendance of his Support persons and him (Mr Teina) wasting “their time” (His support Persons) then concluded almost immediately with the Applicant being denied parole and the Applicant being Adjourned for 12 Months before further Parole hearing.

11. This inter Alia, Arbitrarily deprived the Applicant his right to present submissions and his right to have those submissions considered. Undermined not only his Sense of Justice, Decency, and a fair hearing, But seriously undermined his Support Persons Faith and trust in the Parole system.

[14] Whatever may have occurred at that hearing cannot be decided today. The

Court does not have before it the necessary information as to precisely what

transpired, what was said or by whom on that occasion. Mr Down confirmed that a transcript of the hearing had been made and steps are being taken by the respondent to obtain a typed version of that transcript. Helpfully, the respondent is prepared to disclose that transcript to the applicant without delay.

[15] So far as the outcome of the Parole Board is concerned, all the Court has at present is a short outline of the decision which confirms the start date of the sentence and the almost immediate eligibility for parole because of the lengthy remand in custody. The statutory release date is recorded as being in March 2010. The Board then stated as follows:

The Board has declined his application because it is quite clear Mr Teina has been regularly consuming regularly consuming drugs while in custody. He is now IDU 8. We consider that a person who is not prepared to abide by the rules and conditions of prison demonstrates an undue risk to the safety of the community. We are therefore unable to consider his application of parole. We are quite convinced that if he continues smoking cannabis and other drugs in the environment of prison he is likely to continue to do that in the community and pose undue risk to its safety. His application for parole is declined. We will see him in 12 months time.

[16] The reference in line three of the decision to “IDU 8” is to an acronym for “identified drug user” within the prison context. The Court heard that there is a system of random drug testing of inmates. Mr Teina had been tested on a number of occasions and had returned a positive result. He was classified as level 8 which is a relatively high classification. Having said that, the applicant claimed in Court that he had now realised the error of his ways, had turned his conduct around and had been drug free for a significant period. This was a topic which he had hoped to deal with before the Parole Board, had he been given the chance to do so.

[17] Following the Parole Board hearing, the applicant considered that he had not had a fair hearing and has sought to bring his concerns before the Court by way of an application for a writ of habeas corpus. Unfortunately, for reasons which I will now address, this is not an appropriate procedure to resolve any issues surrounding what took place at the hearing. Other avenues are, however, available to the applicant.

Writ of habeas corpus

[18] The legal difficulty for the applicant is that he has not challenged the lawfulness of his detention. He is clearly imprisoned as a result of the warrants of commitment produced in evidence. Nowhere in the papers supporting the application does the applicant challenge the legality of the warrant itself. Indeed, no basis for doing so has emerged in the application or in the oral submissions canvassed today.

[19] As already noted, what the applicant is concerned about are procedural deficiencies in relation to the Parole Board hearing. There may well have been breaches of the statutory requirements for Parole Board hearings as mandated by the Parole Act. I shall refer to these below. But the threshold question is whether such concerns can be accommodated within, or dealt with under, the present application for a writ of habeas corpus.

Legal authorities

[20] The leading authority on habeas corpus is Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 (CA). There, a five member bench of the Court of Appeal considered an appeal against a decision to refuse a writ of habeas corpus to a prisoner who had been reclassified from high medium security to maximum security and transferred to another prison. That is not the issue here. However, the observations of Blanchard J at [60] are apposite:

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.

(emphasis added)

[21] Mr Down also referred me to the case of Hunia v Parole Board [2001]

3 NZLR 425 (HC). At issue there was whether an application for habeas corpus was the appropriate procedure for considering an application by the General Manager of the Prison Service, under s 105(2) of the Criminal Justice Act 1985, to have a prisoner serve the whole of his principal sentence. It was contended that there had been a failure to give reasons and simultaneous applications were filed for judicial review and habeas corpus. Robertson J considered at [40] that the application in question was:

...an issue for judicial review and a loose approach to habeas corpus (whether as an aid to a substantive issue or as a stand-alone matter) is not available. If the complained of act or omission would not in and of itself support habeas corpus, a Court in hearing a habeas corpus application should not concern itself with it.

[22] In the end, the application was adjourned so that it could be dealt with as an application for judicial review.

[23] The approach in the Hunia case on this aspect was approved in Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA), which dealt with an application made to the Parole Board to recall the appellant to prison because he posed an immediate risk to the safety of the public. The Court of Appeal referred to the provisions of s 14 of the Act which set out the requirements for determination of habeas corpus applications. Under s 14(1) the respondent is required to establish that the detention of the detained person is lawful. If it cannot do so, then the High Court must grant, as a matter of right, a writ of habeas corpus ordering the release of the detained person from detention.

[24] Sections 14(2) and (3) deal with the scope of the matters to be inquired into. These provisions state:

(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.

[25] The Court of Appeal in Manuel then considered the scope of the issues to be considered and stated at [46] and [47]:

Given s 14(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 s 14(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.

On the other hand, Parliament must have contemplated a consideration of underlying questions of fact and law only to the extent to which such inquiry is possible within the procedures provided for in the Act. The inquiry 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.

[26] Later in the judgment, the Court stated at [49] and [50] that:

...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.

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.

(emphasis added)

Respondent’s submissions

[27] The respondent submitted that the present case falls squarely within the dicta just referred to in Manuel. In short, it was more properly a case for judicial review, should that become appropriate or necessary in due course. The applicant had remedies open to him under the Parole Act. In any event, this was not a case that was apt for determination under habeas corpus.

[28] Counsel for the respondent also submitted that the Parole Board had properly considered the application for parole. Counsel noted that the initial hearing was adjourned with the applicant’s consent to enable full reports to be provided by the Probation Service and the Prison Service.

[29] Counsel submitted that at the adjourned hearing, having read the full reports, the Parole Board reached the conclusion that the applicant was still an undue risk to the safety of the community. This conclusion was based on the fact that the applicant had apparently, on the information available to it, flouted the rules and conditions of prison by consuming drugs whilst in custody. This suggested he would continue to use drugs if released. The respondent submitted that the decision of the Parole Board was reasonable in the circumstances and sustainable at law. The applicant’s assertion that his continued detention is arbitrary as a result of the Board’s failure to properly consider his case was clearly unfounded.

[30] The respondent therefore submitted that the application for habeas corpus should be dismissed. If the applicant wished to challenge the legality of the decision of the Parole Board, the appropriate course would be first to take advantage of statutory rights under the Parole Act, and then, if that was unsuccessful file an application for judicial review.

Applicant’s concerns

[31] Apart from the question of the brevity of the hearing and any procedural difficulties, the applicant contended that he should have had an opportunity to place before the Parole Board material which indicated that he had been drug free for a period of some eight months. Whilst his drug classification might be IDU 8, nevertheless he had recently undergone a test for illicit drugs and he was anticipating the results would be negative. This would continue a pattern of positive conduct which he wished to now follow.

[32] The applicant was anxious that this reformed approach to drug use and constructive new material be placed before the Parole Board. He felt he had not been given a chance to do this at the September hearing.

Provisions of the Parole Act

[33] Mr Down helpfully referred me to the guiding principles in s 7 of the Parole Act. These demonstrate that the Parole Board, on 6 September, applied the correct test: see s 7(3). He also referred to s 26 which provides as follows:

26 Other times when Board may consider offenders for parole

(1) The Board may, at any time after an offender’s parole eligibility date, consider the offender for release on parole at a time other than when the offender is due to be considered for parole, and may make an order under section 28(1) directing his or her release on parole.

(2) An offender may, at any time, apply to the Board to exercise its discretion under subsection (1) to consider the offender for parole.

[34] He noted that this may well give the applicant an opportunity to bring his concerns before the Parole Board, provided he could demonstrate that there was a material change in circumstances from when he was before the Parole Board previously.

[35] Reference was also made to s 49 which provides as follows:

49 Attended hearing

(1) An attended hearing must be run in the manner of an inquiry, and in an atmosphere that encourages persons appearing before the Board to speak for themselves, and as freely and frankly as possible.

(2) Within that context, the Board may conduct the hearing as it thinks appropriate and, subject to this section, has the following powers:

(a) to determine who may attend, and determine whether a person may attend other than in person (for instance, by telephone or video link):

(b) to determine who may speak:

(c) to impose limits on what a person may talk about and for how long:

(d) to require any person to leave the hearing, either temporarily or for the remainder of the hearing:

(e) to adjourn the hearing.

(3) The offender who is being considered is entitled to—

(a) appear and make oral submissions to the Board; and

(b) attend while any other person is making submissions, provided that the offender may not be present at the hearing when any victim is present unless the victim, the offender, and the Board agree; and

(c) with the leave of the Board, be represented by counsel; and

(d) be accompanied by 1 or more support persons (subject to any limitation on numbers imposed by the Board) who may, with leave of the Board, speak in support of the offender.

...

(emphasis added)

[36] This statutory requirement regarding Parole Board hearings is an important procedural safeguard for persons appearing before the Parole Board. Of particular

importance in the context of this case is s 49(1). One of the issues which may arise, if the applicant decides to pursue a review, is whether his statutory procedural rights regarding the hearing were properly protected.

[37] I was also referred to the powers to review decisions of the Parole Board. These are set out in s 67 which relevantly provide:

67 Review of decisions

(1) An offender who is the subject of any decision of the Board under this Act (other than a decision under any of the provisions referred to in subsection (2)) may, within 28 days of the decision, apply in writing to the Board for a review of that decision.

...

(3) The grounds for an application for review under this section are that the

Board, in making the decision,—

(a) failed to comply with the procedures set out in this Act and any regulations made under it; or

(b) made an error of law; or

(c) failed to comply with a policy of the Board developed under section 109(2)(a), which resulted in unfairness to the offender; or

(d) based its decision on erroneous or irrelevant information that was material to the decision reached; or

(e) acted without jurisdiction.

(4) A review under this section must be undertaken, as soon as practicable, by the chairperson or by a panel convenor to whom the chairperson delegates the conduct of the review.

...

[38] It is clear from these statutory provisions that the applicant has the ability, if he chooses to exercise it, to seek a review under s 67 of the Parole Act of the decision of 6 September 2007. He must, of course, exercise any review right within

28 days of the decision. He still has time to do so.

Alternative basis for relief/judicial review

[39] Although there is no alternative form of relief sought in the application, a question which I must consider is whether or not the application should be converted into an application for judicial review. There is no doubt that the gist of the applicant’s concerns would be suitable to be dealt with under judicial review. But at present, the Court does not have before it all relevant material. Indeed, it has no information about what took place procedurally at the hearing apart from the brief summary in the applicant’s application and the report in the decision of the Parole Board. Much more information would be needed, including the transcript which is to be provided to the applicant. It is possible that the support persons may wish to provide evidence, as might Mr Small, the prison officer who was present at the hearing.

[40] The question of whether an application for habeas corpus should be treated as an application for judicial review was considered by the High Court in the case of Greer v Visiting Justices at Paremoremo Prison HC AK CIV 2006-404-3294

16 June 2006, Rodney Hansen J. At [9] and [10], he stated:

That is not a course which I consider to be properly available to me in this case. I accept Ms Davidson’s submissions that in order for the Court and the respondents to be given fair notice of the matters complained of and to provide a proper foundation for the directions which need to be made under s

10 of the Judicature Amendment Act 1972 to enable the proceeding to be advanced to a hearing, it is necessary for a statement of claim to be filed

which meets at least the basic requirements of the Judicature Amendment

Act. In particular and pursuant to s 9 of the Judicature Amendment Act, the statement of claim must set out:

(a) The facts on which the applicant bases his claim to relief; (b) The grounds on which the applicant seeks relief; and

(c) The relief sought.

It is important that the statement of claim identify with precision the particular decisions which are challenged, by whom those decisions were made and the grounds on which it is claimed those decisions were unlawful.

[41] One of the factors which I must consider here, is the availability of a statutory right of review. This is similar to the approach which I adopted in Hines v The Manager of Custodial Services, Auckland Prison HC [2007] NZAR 297. Such a

right of review is available to the applicant under the Parole Act itself: see s 67. The time for exercising such right has not expired and I consider that would be the cheapest and most efficient means of dealing with the applicant’s concerns. Indeed, s 67(3)(a) refers to a possible ground for review under the section, that the Board in making its decision failed to comply with the procedures set out in the Act. One possible procedural failure might well involve s 49(1) already referred to. There may be other matters, although I cannot say on the information presently before me.

[42] What I can say is that these are matters which are properly dealt with under the statutory provisions of the Parole Act, should the applicant choose to use them.

[43] If, having exercised such review rights, the applicant still has concerns in due course, then it will still be possible for him to file an application for judicial review in the High Court.

Decision

[44] I am not prepared to treat this application as an application for judicial review. Because the applicant has statutory review rights which can still be exercised, I consider that is the course that should be followed in the first instance. If he is still dissatisfied after exercising such review rights, then he would have open to him the possibility of commencing fresh proceedings in the High Court by way of judicial review.

[45] With respect to the application for a writ habeas corpus, this cannot, for the reasons set out above, succeed. However, I propose to direct, as the respondent invited me to do, that the respondent disclose to the applicant within seven days a full transcript of the events at the hearing of the Parole Board on 6 September 2007. That transcript may be of assistance to the applicant should he choose to exercise his review rights.

[46] Accordingly, the application for habeas corpus is dismissed, but on the basis

_{of the direction set out above.}

Stevens J