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Pahl v Chief Executive of the Department of Corrections HC Auckland CIV 2010-409-2075 [2010] NZHC 1718; [2010] NZAR 722 (21 September 2010)

Last Updated: 12 October 2010

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CIV-2010-409-002075}

IN THE MATTER OF the Habeas Corpus Act 2001, and in the matter of an application for a Writ of habeas corpus by JOSEPH MARK PAHL

BETWEEN JOSEPH MARK PAHL Applicant

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing: 21 September 2010

Counsel: S W Rollo for Applicant

V Casey for Defendant

Judgment: 21 September 2010

_{ORAL JUDGMENT OF PANCKHURST J}

Introduction

[1] The applicant, Mr Joseph Pahl, is detained at Christchurch Prison pursuant to an interim recall order made on 13 September 2010 under s62(1) of the Parole Act

2002.

[2] That section relevantly provides:

On receiving a recall application, the chairperson or any panel convenor must make an interim recall order if he or she is satisfied on reasonable grounds that –

(a) the offender poses an undue risk to the safety of the community or to any person or class of persons;

Further grounds are provided in the section for the making of an interim recall order, but they are not of present relevance.

JOSEPH MARK PAHL V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC CHCH CIV-2010-409-002075 21 September 2010

[3] On Thursday, 16 September, the applicant applied for a writ of habeas corpus. That is, an order for his immediate release on the grounds that his present detention is unlawful.

[4] In that application the manager of the Christchurch Men’s Prison is named as the defendant, whereas it is common ground that the Chief Executive of the Department of Corrections should have been so named. Accordingly I make an order substituting the Chief Executive.

[5] There is an obligation upon him to establish that Mr Pahl’s detention is lawful. Otherwise this Court must grant the writ as a matter of right and order the applicant’s immediate release: see s14 of the Habeas Corpus Act 2001.

The relevant background

[6] On 12 September 1991 the applicant was sentenced to life imprisonment for the crime of murder. On 29 January 2001 he was granted parole on standard conditions and certain special release conditions. He took up residence in Nelson where he has resided until the present time.

[7] On 20 March 2009 a probation officer served a non-association direction on the applicant. He was directed not to associate with members of the Red Devils Motor Cycle Club, or members of other gangs.

[8] On 28 August 2010 Nelson police officers executed a search warrant at a local address and located the applicant amongst others at the gathering which was occurring there. There was an assembly of about 50 people. It included other members of the Red Devils group, together with persons said to be members of the Hells Angels and Headhunters gangs. Two of those present were found to be in possession of methamphetamine. There was also, according to police reports, drug paraphernalia.

[9] It was the applicant’s presence at this meeting which excited the application for his recall which was filed on 13 September. Coupled with the application was a request that an interim recall order be made.

[10] The grounds of the recall application itself are that the applicant poses an undue risk to the safety of the community and that he breached a release condition in the manner that I have already outlined. I note that it is only the former of those two grounds which is relevant to the decision to order interim recall.

[11] That decision was made by Judge Mahony, a panel convenor who, on 13

September, granted the interim recall without reasons as is the normal approach.

[12] I was informed from the bar that Mr Pahl was arrested later that day being Monday, eight days ago. This proceeding seeking a writ of habeas corpus was filed on 16 September. The basis upon which it is brought is that there was insufficient evidence to enable a finding of undue risk to be made.

[13] In terms of the Parole Act the recall application itself must be called within

28 days, but at this point counsel for the applicant, Mr Rollo, has not been notified of a date of hearing.

The competing arguments

[14] Section 14(2) of the Habeas Corpus Act 2001 provides:

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; ...

[15] Ms Casey, in opposing the application on behalf of the Chief Executive, contended that this was not an example of a rare case where it was appropriate for this Court to go behind the face of a valid warrant and consider the merits of the interim recall decision.

[16] In this regard she stressed a number of factors:

(a) that habeas corpus applications must be heard urgently, and are not an appropriate forum to determine issues of a kind essentially considered in a judicial review context;

(b) that the Parole Board, or for that matter the panel convenor who made the subject decision, is not a party to this proceeding;

(c) that full information is not before me in relation to the underlying decision, and

(d) that an order granting the writ of habeas corpus is not appealable, and the Court should avoid making a finding as to the lawfulness of the decision except in the clearest of cases.

[17] These contentions were drawn from the Court of Appeal decision in Manuel v Superintendent of Hawkes Bay Regional Prison.[1] At [49] William Young J, in delivering the decision of that Court, said:

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 an apparently regular warrant (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. (emphasis added)

That somewhat lengthy passage was made, however, in the context of a challenge to an actual recall decision, as opposed to a challenge, as here, to an interim recall decision.

[18] Turning to the circumstances of this case Ms Casey drew attention to the evidence which was before the panel convenor. This included the affidavit of Mr Stephen Taylor, a Nelson probation officer, who described the essential background which I detailed earlier. There was also an affidavit from Ms Astrid Kalders, the acting general manager of the Probation Service. Her brief affidavit confirmed that she had considered the affidavit sworn by Mr Taylor, reviewed Mr Pahl’s file and his notes and that on this basis she was satisfied that he did pose an undue risk such as to warrant the making of an interim recall order.

[19] Mr Taylor, in addition to outlining the factual matters to which I have already referred, said this in his affidavit:

19 New Zealand society regards methamphetamine as a serious risk to the safety of the community, and it is considered that in associating with persons involved with methamphetamine, Mr Pahl’s actions constitute an undue risk to the community.

20 In considering the available information I have concluded that Mr Pahl constitutes an undue risk to the safety of the community because of his association with identifiable members of motorcycle gangs and persons involved with the manufacture of methamphetamine.

Whether there is any evidence pertaining to the actual manufacture of methamphetamine is highly questionable, but there is at least evidence concerning the possession of that drug.

[20] Mr Rollo began by accepting the limits of the jurisdiction to grant an application of this kind. In summary he submitted:

(a) that this case is appropriate for determination in a habeas corpus context;

(b) that the information presented to the panel convenor was insufficient and unbalanced and therefore was not adequate to rationally determine

that Mr Pahl poses a risk to society that is excessive or beyond the ordinary;

(c) the decision to grant the interim recall order was inappropriately made, and

(d) there is no lawful justification for Mr Pahl’s continuing imprisonment.

[21] Correctly, counsel stressed that s62(1)(a) requires that the decision-maker is satisfied, on reasonable grounds, that the person made subject to the interim recall order poses an undue risk to the safety of the community.

[22] As to whether the evidence here could meet that test Mr Rollo submitted:

There was not a sufficient evidential basis upon which to conclude that Mr Pahl poses an undue risk to the safety of the community. He has led an exemplary life since his release on parole in 2001. The substance of the recall application is simply that he has been associating with people contrary to a non-association direction. Those he was associating with may not be to the liking of his probation officer but there is no evidence to establish that this case is one that involves anything more than an ordinary breach of parole. There is no evidence upon which a rational conclusion could be reached that the risk of Mr Pahl committing some offence justifying his recall is beyond the ordinary, unjustifiable, inappropriate or excessive. To the contrary, the evidence including his record of not offending since his release and his personal circumstances establish that he poses very little risk to the safety of the community.

[23] Counsel’s submissions reflect two aspects which I should mention at this point. The first is the competing affidavit evidence which is before me, but which was not, of course, before the panel convenor. There are affidavits from Mr Pahl himself, and also supporting affidavits from his employer and others. From these it is evident that in the past nine years he has been in employment and in recent time in a position of responsibility. He has re-established contact with his adult children. He is in a stable domestic relationship. It seems he has also been compliant with his various parole obligations, save for the breach of the non-association condition to which I have already referred.

[24] Mr Rollo argued that this evidence should equally have been before the panel convenor. He suggested that Mr Taylor must have been aware of these aspects and

should therefore have provided a more balanced picture by including reference to them.

[25] The second aspect is that Mr Rollo relied upon the decision of Harrison J in Kurariki v Manager of Mt Eden Prison.[2] This is an example of a successful habeas corpus application in the present context. In that case the applicant was in breach of a parole condition that he not consume cannabis. A suspected breach of that condition led to a recall application and the making of an interim recall order. Harrison J held that there was no evidence upon which the decision-maker could

have been satisfied as to undue risk, and hence habeas corpus was granted. Counsel has borrowed from that decision in relation to the description of the test of undue risk contained in s62.

Evaluation

[26] I do not accept the criticism that it was incumbent upon Mr Taylor in swearing his affidavit to refer to the positive aspects which are disclosed in Mr Pahl’s evidence and that of the other deponents. Mr Taylor was applying for a recall order. The necessary focus of his affidavit was upon the grounds which were said to support a recall. It was not incumbent upon him at that preliminary stage of the inquiry to present a full picture of the matter. That was something which would occur at the recall hearing itself.

[27] That said, to my mind the core question for my determination is whether there was evidence before the panel convenor upon which he could, on reasonable grounds, be satisfied that Mr Pahl posed an undue risk to the safety of the community. If not, the decision reached can be described as irrational and therefore as affording no basis for the order which was made.

[28] I do not consider that in answering that core question it is appropriate for me to weigh the evidence in support of this application alongside that which was before the panel convenor. This, it seemed to me, I was invited to do by Mr Rollo. An approach of that nature implies a merits-based review of the core issue. But that is

not, I think, this Court’s function in the context of a habeas corpus application. Instead I am confined to looking at such evidence as was available to the panel convenor and to deciding whether that evidence provided a rational basis upon which to reach the necessary conclusion pursuant to s62(1)(a).

[29] I confess to real concern as to the existence of an evidential foundation in this instance. At most there is evidence of a clear breach of the non-association condition. Coupled with that evidence there is some limited evidence as to the nature of the breach. Mr Pahl was involved in a sizeable assembly of people. That assembly included members of the group with which he is associated, but also members of two known gangs. At least two people present at the assembly were in possession of methamphetamine. This, in substance, is the extent by the relevant evidential material in Mr Taylor’s affidavit.

[30] It is supplemented, to some extent, by the affidavit of Ms Kalders who said that having reviewed the file and the notes pertaining to Mr Pahl in the light of Mr Taylor’s affidavit, she was of the considered opinion that an interim recall was justified. I must approach that evidence in the expectation that it was a genuine and responsible expression of opinion based not only on Mr Taylor’s account, but also upon an appreciation of Mr Pahl’s makeup derived upon a reading of his personal file.

[31] When I consider this evidence, in combination, and despite some significant degree of hesitation, I am not satisfied that this is a sufficiently clear case to warrant the intervention of the Court in granting a writ of habeas corpus. To my mind, for me to consider and to undertake what is in essence a judicial review of the conclusion reached in the context of a summary and urgent hearing, and without the decision-maker being heard, would not be appropriate.

[32] For these reasons I have determined that the application should not be granted. Accordingly it is dismissed.

Addendum

[33] Immediately following delivery of the oral decision Mr Rollo rose and made application to treat the present proceeding as an application for judicial review of the Parole Board decision. I am satisfied that is an appropriate course. I trust that the reasons for that observation are apparent from what I have already said.

[34] The immediate problem is that Ms Casey appears as counsel for the Chief Executive. She does not have instructions from the Board which is an independent statutory body. However, she is in a position to obtain prompt instructions from the Board concerning whether it wishes to contest an application for judicial review and concerning its attitude to an interim order, given the further information which is now on record as a result of the habeas corpus proceeding.

[35] An urgent hearing of a judicial review application is essential. I make the primary direction sought by Mr Rollo, and also direct the convening of a telephone conference at 9.00 am on Thursday morning, 23 September 2010, at which further directions and/or an interim order will be made as appropriate.

[36] Costs are reserved to be finalised in the context of the judicial review proceeding.

Solicitors:

Lane Neave, Christchurch for Applicant

Crown Law, Wellington for Defendant

[1] Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

[2] Kurariki v Manager of Mt Eden Prison [2008] NZHC 1218; [2008] NZAR 625 (HC).