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GREER V THE MANAGER OF CUSTODIAL SERVICES OF AUCKLAND PRISON HC AK CIV 2008-404-858 [2008] NZHC 173 (21 February 2008)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                       CIV 2008-404-858

              UNDER                       the Habeas Corpus Act 2001


              BETWEEN                     ALAN IVO GREER
                                          Applicant

              AND                         THE MANAGER OF CUSTODIAL
        
                                 SERVICES OF AUCKLAND PRISON
                                          Respondent


Hearing:    
 21 February 2008

Appearances: A I Greer In Person
             E R Harrison for the respondent

Judgment:     21 February 2008


                      (ORAL) JUDGMENT OF POTTER J




Solicitors:   Crown Solicitor, P.O. Box 2213, Downtown Auckland

Copy to:
     A I Greer, Paremoremo Prison, P.O. Box 50124, Auckland

GREER V THE MANAGER OF CUSTODIAL SERVICES OF AUCKLAND PRISON HC AK CIV
2008-404-
858 21 February 2008

Introduction


[1]    The applicant Mr Greer has applied for a writ of habeas corpus.          
 His
application was filed by facsimile in the High Court on 19 February 2008. Mr Greer
is currently an inmate at Auckland Prison.


[2]    The application for writ of habeas corpus names as first respondent the
Superintendent of the Auckland Prison and as second
respondent the Visiting Justice
by office rather than by name.


[3]    The Crown has applied for an order removing the Visiting
Justice as the
second respondent on the grounds that the Visiting Justice is not responsible for the
incarceration of Mr Greer. That
is a submission correctly made by the Crown. This
is a technical matter but one that requires correction. I therefore order that
the
Visiting Justice be removed as second respondent in the application for writ of
habeas corpus.


[4]    Mr Greer was convicted
on 14 July 2004 of a range of sexual offences and
was sentenced to seven years imprisonment. He is currently serving that sentence.
His statutory release date and sentence expiry date, I am informed, both fall on 6
January 2010.


The application


[5]    Mr Greer
has sought a writ of habeas corpus essentially on the grounds that
he was ordered by the Visiting Justice to 12 days cell confinement
for a disciplinary
offence. His application contends that he was not provided with his minimum
requirements under the New Zealand
Bill of Rights Act 1990, that the Visiting
Justice was not impartial and that the Visiting Justice failed to provide him with the
minimum requirements to be able to defend himself against the charge brought
internally within the Prison. He contends therefore
that the sentence of 12 days cell
confinement is unlawful and maintains it is a detention within a detention.

[6]    Accordingly
the thrust of Mr Greer's challenge is not to the legality of his
detention as such. Rather it is to the penalty imposed on him for
a disciplinary
offence found to have been proved by the Visiting Justice.


[7]    Under the Habeas Corpus Act 2001 ("the Act") an
application for a writ of
habeas corpus must be given precedence over all other matters before the High
Court. Thus Mr Greer's application
was given a hearing today pursuant to s 9(3) of
the Act.


Opposition


[8]    The Crown filed a notice of opposition formally opposing
the application for
writ of habeas corpus. The application is opposed on the grounds that Mr Greer is
lawfully detained pursuant
to the warrants of commitment to which I have already
referred, and that Mr Greer does not appear to challenge the legality of his
underlying detention but rather the sentence imposed on him by the Visiting Justice
of 12 days cell confinement. These matters are
referred to in an affidavit of Anthony
Graeme Queree which has been provided to the Court in draft form due to the
urgency with which
the application must be brought before the Court. It has also
been provided to Mr Greer in draft form. Because the affidavit has
not been sworn,
Ms Harrison for the Crown applied for exhibits A and B, which are the warrants of
commitment, to be admitted to evidence under s 130 of the Evidence Act. They are
admitted
accordingly.


Factual background


[9]    The factual background as detailed in the draft affidavit of Mr Queree is that
on 13 February
2008 the Visiting Justice sentenced Mr Greer to cell confinement for
a period of 12 days and 35 days loss of privileges pursuant
to s 137(3)(c) of the
Corrections Act 2004 in relation to an internal offence, namely contravention of
s 128(1)(f) of the Corrections
Act 2004, which prohibits prisoners from having
articles in their cells without the approval of an officer.    A misconduct report
exhibited to the affidavit records that on 24 December 2007 at the Auckland Prison a

search was made of Cell 20 occupied by Mr
Greer, when a piece of metal crafted
into a weapon was found. The report states that Mr Greer has been the sole occupant
of this
cell for a considerable time and that before he took up occupancy the cell was
searched by staff. Mr Greer's cell confinement commenced
on 13 February 2008
and is due to end on 25 February 2008. Of course his loss of privileges will extend
beyond that date.


Decision


[10]      Mr Greer's application for writ of habeas corpus, as I have discussed with
him this morning, does not challenge the lawfulness
of his detention.                    He is
imprisoned pursuant to the warrants of commitment dated 14 July 2004. Mr Greer's
application
does not challenge the legality of those warrants and no basis to
challenge the legality of the warrants has been suggested. Mr Greer's
concern is the
penalty imposed on him for what was found to be a misconduct offence within the
prison.


[11]      There is ample
authority about the limitations of a writ of habeas corpus.
That authority frequently referred to, with which Mr Greer will no doubt
be well
familiar, is Bennett v Superintendent Rimutaka Prison  [2002] 1 NZLR 616 where 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 re-classified from high
medium security to maximum security and transferred to another prison. The Court
dismissed the
appeal commenting:

          [61]   Traditionally the writ has been used only where it is sought to
                 release someone
entirely from (unlawful) custody. The passage
                 from Ex parte Rogers (para [23] above) has echoes in many later
 
               judgments, not least of which is Lord Jauncey of Tullichettle's
                 observations in Ex parte Hague (at
p 176), also quoted by Wild J,
                 that placing one prisoner in a strip cell and segregating another
              
  "altered the conditions under which they were detained but did not
                 deprive them of their liberty which they had
not already lost when
                 initially confined".

          [62]   It is also our view that a change to the conditions
on which an
                 inmate is being detained either by segregation, reclassification or
                 transfer to another
institution does not create a new detention under
                 an enactment for the purposes of s 23(1) of the Bill of Rights.
Nor,

               if an inmate is unlawfully treated while detained, is the detention
               itself rendered unlawful.
The remedy is the cessation of the
               unlawful element, not the cessation of the detention.

       ...

       [65]
   In our view, the appropriate way in which sentenced prisoners can
               test the lawfulness of the conditions of their
incarceration is by
               application for judicial review. In cases involving human rights the
               events which
are impugned will be closely scrutinised
               (Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia
        
      Pty Ltd  [1998] NZAR 58 AT P 66).

[12]   The Crown also referred to the case of Cant v Visiting Justices at
Paremoremo Prison AK HC CIV 2006-404-3294 16
June 2006, Rodney Hansen J,
where the applicant sought a writ of habeas corpus on the grounds that a sentence of
ten days cell confinement
imposed on him by a Visiting Justice was unlawful
because it breached natural justice, the New Zealand Bill of Rights Act 1990 and
the
Corrections Act 2004.       The applicant in that case complained that the prison
authorities failed to provide the applicant
with adequate facilities for the preparation
of his submissions and other documents, a matter Mr Greer has also raised this
morning
in relation both to his appearance before the Visiting Justice and in
anticipation of an application for judicial review.


[13]
  Rodney Hansen J held at [6]:

       There is no challenge in the application to the grounds on which the
       applicant is detained.
Rather, it will be seen that the complaint is as to the
       conditions on which the applicant is being held. As I have said to
the
       applicant in the course of argument and as I understand him to appreciate, if
       not concede, this is not an available
basis for the exercise of jurisdiction to
       grant habeas corpus.

[14]   I have had a similar discussion with Mr Greer this
morning and have covered
with him the limits of the Court's jurisdiction in habeas corpus.


[15]   Ms Harrison also referred in
submissions to a very recent Court of Appeal
decision in which Mr Greer was the appellant: Greer v The Attorney-General  [2008]
NZCA 7. The Court in the final paragraph reminded Mr Greer that issues of
conditions of detention are more properly dealt with by way of
judicial review and
referred to the cases of Manuel v Superintendent of Hawkes Bay Regional Prison

 [2005] 1 NZLR 161 at [40] (CA) and Greer v The Parole Board at Auckland Prison
(CA271/06 21 December 2006) at [7].


Judicial review


[16]   In the
course of my discussions with Mr Greer, he raised the option that the
Court should treat his application as an application for judicial
review. But he
himself volunteered there was much information that would be required in respect of
such an application including
the transcript of the proceedings which he said was not
available to him. The Crown opposes this course of action.


[17]   In the
case of Cant v Visiting Justices at Paremoremo Prison Rodney Hansen
J refused to treat the application for habeas corpus as an application
for judicial
review. He said:

       [9]     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.

       [10]    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.

[18]   That is the
process which I consider would need to be undertaken in this case
if Mr Greer wishes to challenge the decision of the Visiting Justice.

[19]    I direct that Mr Greer be provided with a copy of the transcript of the
proceedings before the Visiting Justice. I understand
from Ms Harrison the Crown
will facilitate that.


[20]    In summary, I am not prepared to treat this application as an application
for
judicial review. That will need to be pursued by separate application if Mr Greer
considers he has a valid challenge to the decision
of the Visiting Justice.


[21]    Mr Greer in the course of discussion this morning raised that if he is required
to make an application
for judicial review he should be given interim relief from the
penalty currently imposed by the Visiting Justice. Ms Harrison submitted
that there
are no grounds to support the grant of interim relief and said the Crown opposes it.
No grounds were advanced, and there
is no basis which suggests to me that this is a
case where interim relief should be granted. The facts that give rise to the decision
of the Visiting Justice as detailed in the appendices to Mr Queree's affidavit give rise
to concerns which indicate to me that interim
relief would not be appropriate in this
case.


Conclusion


[22]    For the reasons I have set forth above and on the basis of the
authorities,
particularly Bennett and Cant to which I have referred, the application for habeas
corpus is dismissed. I rule that
the application for habeas corpus made not be treated
as an application for judicial review in the circumstances of this case.