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Van Wakeren v Chief Executive of the Department of Corrections [2016] NZHC 2907 (2 December 2016)

Last Updated: 19 December 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-3035 [2016] NZHC 2907

_{REASONS FOR JUDGMENT OF WOODHOUSE J}

Solicitors:

Applicant, C/o Mt Eden Correctional Facility, Auckland

Ms A F Todd, Crown Law, Wellington

VAN WAKEREN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC

2907 [2 December 2016]

[1] Mr van Wakeren, by application received by the Court on 30 November

2016, applied for a writ of habeas corpus. This followed his arrest and detention in prison on an interim recall order under s 62 of the Parole Act 2002.

[2] As required under the Habeas Corpus Act 2001, an urgent hearing was convened on 1 December 2016, with Mr van Wakeren on AVL from prison. I heard oral submissions from Mr van Wakeren, and from Ms Todd for the defendant. It was then necessary to adjourn the hearing, at Mr van Wakeren’s request, to read his written submissions which he had sent by email from prison, but which I had not had an opportunity to read.

[3] Because of time constraints I then issued a results judgment, dismissing the application.¹ I now provide the reasons.

The background facts

[4] On 1 February 2008 Mr van Wakeren was sentenced to imprisonment for 12 years 3 months for 80 crimes committed between 2003 and 2007: 28 offences of accessing a computer system for a dishonest purpose, 46 of forms of fraud or deceit, two of money laundering, and four of burglary.

[5] Mr van Wakeren first became eligible for parole on 28 September 2013. He was released on parole on 7 September 2015. In addition to the standard release conditions, the Parole Board imposed a number of special conditions, including the following:

(a) Not to undertake any employment, paid or unpaid, without the prior written approval of a probation officer.

(b) Not to possess or use any electronic device that is capable of accessing the internet for any purpose for the duration of the sentence without the prior written approval of the probation officer.

_{[6] The sentence end date is 26 December 2019.}

¹ Van Wakeren v The Chief Executive of the Department of Corrections [2016] NZHC 2094.

[7] The interim recall order was made by a panel convenor of the Parole Board on 16 November 2016 on receipt of an application for recall, under s 60 of the Parole Act, made by a probation officer, Mr Ramachandran. Mr Ramachandran’s affidavit in support of the recall application has been produced by the defendant on the present application. Statements of Mr Ramachandran in this affidavit, or matters evidenced by annexure, include the following:

(a) In October 2016 Mr van Wakeren’s probation officer met some initial resistance from Mr van Wakeren, or Mr van Wakeren’s mother (with whom he lives) to requests to visit Mr van Wakeren’s home or speak to his mother to verify that Mr van Wakeren was not using the internet at his home. Following resistance from Mr van Wakeren to a home visit, there was a home visit on 25 October 2016.

(b) Mr van Wakeren appeared before the Parole Board on 8 November

2016 for a progress hearing. At that hearing, Mr Ramachandran says, Mr van Wakeren “reluctantly disclosed” to the Parole Board that he is a shareholder in a company called Best Escort.com and that he had been a shareholder for four months.

(c) Mr Ramachandran states:

Mr van Wakeren’s evasiveness at the progress hearing and failure to disclose this information to his Probation Officer earlier concerned both the [Parole Board] and Community Corrections. Mr van Wakeren’s refusal to divulge any further information at the progress hearing about his status within the company, raised concerns of a potential increase in his risk.

(d) A subsequent search of the New Zealand Companies Register disclosed that on 29 February 2016 a company called RVW Online Trading Limited had been incorporated with Mr van Wakeren as the sole director and sole shareholder.

(e) The Companies Register records that on, it appears, 8 November

2016, the date of the progress hearing, Shaun Card Doherty was

recorded in the register as a director, although apparently appointed on 1 March 2016. On the same date Ronald Smith was recorded as a second new director, replacing Mr van Wakeren. The addresses of Mr Doherty and Mr Smith are the same as Mr van Wakeren’s address. Mr van Wakeren remains as the sole shareholder.

[8] Mr Ramachandran noted, in a summary at the end of his affidavit, that Mr van Wakeren’s convictions include 131 for fraud and forgery and 28 for dishonest use of accessing a computer. He says that a psychologist has reported that, if Mr van Wakeren engages in further offending, “this would most likely involve a return to his previous lifestyle of acting on elaborate schemes to fraudulently obtain money from others for personal gain”.

[9] The panel convenor’s reasons for making the interim recall order were recorded as follows:

Having regard to Mr van Wakeren’s monitoring hearing on 8 November, the developments outlined in his Probation Officer’s affidavit present him as not being open and honest with his Probation Officer and engaging in business or employment that increases his risk to the safety of the community, without the transparency that would be necessary to meet the obvious concern to the safety of the community, I am satisfied that Mr van Wakeren’s actions pose an undue risk to the safety of the community.

[10] Mr van Wakeren was taken into custody on 17 November. He was provided with all of the relevant recall documents on 24 November 2016. It is convenient to record here that, although Mr van Wakeren states in his application for the writ (dated 23 November), he had not been given the reason or reasons for his recall, in the hearing before me he did not suggest that he had not been served with the documents on 24 November or that the documents did not fully inform him. He in fact provided a comprehensive response, both orally and in his detailed written submissions, to the contentions contained, primarily, in Mr Ramachandran’s affidavit.

[11] The recall documents provided to Mr van Wakeren on 24 November are as follows:

(a) A recall tracking sheet.

(b) Confirmation of service of the recall application dated 24 November

2016 (which confirmed service of the documents listed below).

(c) The application for recall dated 16 November, which includes on its cover sheet the handwritten reasons of the panel convenor for issuing the interim recall order.

(d) Mr Ramachandran’s affidavit of 16 November.

(e) The interim recall order dated 16 November.

(f) A warrant to arrest and detain Mr van Wakeren dated 16 November.

(g) Notice to Mr van Wakeren, pursuant to ss 63(3) and 64 of the Parole Act, of the recall application. This includes, amongst other things: (1) notice of Mr van Wakeren’s right of review of the interim recall order; (2) notice of a hearing of the recall application before the Parole Board on 12 December 2016.

[12] Mr van Wakeren advised me that he had on 28 November applied under s 67 of the Parole Act for review of the interim recall order.

[13] As already recorded, but repeated here for completeness, Mr van Wakeren’s application for the writ of habeas corpus was received the Court on 30 November. On that date it was listed for hearing before me the following morning, at 10:00 am. The hearing proceeded, with Mr van Wakeren on AVL from prison.

The grounds of Mr van Wakeren’s application

[14] Mr van Wakeren’s application, and his written submissions, were clear and comprehensive, as were his oral submissions.

[15] The essence of the contentions of fact and submissions put forward by Mr van Wakeren are that the facts presented by the probation officer, in support of the recall application, are either wrong or not capable of supporting an interim recall order if put into the full factual context. Apart from one discrete issue, Mr van Wakeren’s written and oral submissions were directed to issues of fact; what he contends actually occurred in relation to matters referred to by Mr Ramachandran, such as RVW Online Trading Ltd, Best Escort.com, and the progress hearing before the Parole Board on 8 November 2016, and other matters which he contends bear on the panel members’ reasons for issuing the interim recall order.

[16] The discrete issue was a contention by Mr van Wakeren that Mr Ramachandran did not use his true given name when he signed the application for recall under s 60 of the Parole Act and provided the affidavit in support. The affidavit and the application are in the name of Malcolm Ramachandran. Mr van Wakeren submitted that, if Malcolm is not Mr Ramachandran’s true given name – his “legal name” as Mr van Wakeren put it – the application was made under false pretences and the interim recall order is therefore null and void. The evidential foundation for the contention that Malcolm is not Mr Ramachandran’s given name is in essence a speculative assertion. And the propositions said to flow from the assertion are in any event unsustainable. Ms Todd, understandably, did not address the argument. It is an untenable basis for the issue of a writ of habeas corpus. It does not require further consideration.

[17] For reasons I will come to, it is unnecessary to seek to summarise the contentions of fact advanced by Mr van Wakeren, and which were simply advanced by way of submission, or to seek to summarise Mr van Wakeren’s specific submissions on matters flowing from his version of events. The fundamental proposition, to which these submissions were directed, was that, as a matter of fact, Mr van Wakeren did not and does not pose an undue risk to the safety of the community, the provision of s 62(1) of the Parole Act relied on by the panel convenor to make the interim recall order.

Discussion

[18] Under s 14(1) of the Habeas Corpus Act, the onus is on the defendant to establish that the detention is lawful. If the defendant does not establish that the detention is lawful, the High Court must grant the writ of habeas corpus as a matter of right, subject to s 14(1A), noted below.

[19] In the normal course, the defendant will meet that onus if the defendant produces a warrant, order, or other appropriate document, which on its face provided lawful authority for the detention. Issues that arises on this application, given the grounds advanced by Mr van Wakeren, are whether the Court can go behind an order for arrest and detention which appears to be lawful on its face and, if so, the extent of the enquiry that may then be made. I will come to that in a moment.

[20] Under s 14(1A)(b) of the Parole Act, the Court may refuse an application for issue of a writ, without requiring the defendant to establish that the detention is lawful, if the Court is satisfied that an application for the issue of the writ is not the appropriate procedure for considering the allegations made by the applicant.

[21] Mr van Wakeren has, on the face of the formal documents produced to the Court, been arrested and now detained pursuant to lawful process. Mr van Wakeren’s arguments did not suggest otherwise.

[22] The law is clear that it is only in very rare cases that it will be appropriate for the Court, on an application for a writ of habeas corpus, to go behind an order which is valid on its face to assess a challenge to the decision which led to the making of the order.

[23] The leading authority is the decision of the Court of Appeal in Manuel v

Superintendent of Hawkes Bay Regional Prison.² The Court held:

[49] 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

² Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) (Manuel).

See also Campbell v Superintendent of Wellington Prison [2007] NZAR 52 (CA) at [35].

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.

[24] In that discussion, the Court referred to judicial review proceedings, including an application for interim relief, as the alternative procedure to summary determination on an application for a writ of habeas corpus. Where the order for detention is an interim recall order under the Parole Act, the detained person also has the specific right of review provided by s 67 of that Act. Pursuant to s 67(4) a review 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. There are further provisions for the benefit of the persons subject to the interim order. Mr van Wakeren has applied for review, and could have applied for review on 17 November. It is also relevant that there is the substantive hearing before the Parole Board, on the recall application, already scheduled for 12 December 2016.

[25] Mr van Wakeren submitted that a decision of this Court in Kurariki v Manager of Mt Eden Prison supports his approach, which would require an investigation into the merit of the facts and contentions which led to the grant of the interim recall order.³ Ms Todd submitted that Kurariki was wrongly decided, is contrary to the earlier decisions of the Court of Appeal in Manuel and Campbell, and

_{has not been followed in this Court.}⁴ _{It is unnecessary to consider whether Kurariki}

³ _{Kurariki v Manager of Mt Eden Prison [2008] NZHC 1218; [2008] NZAR 625 (Kurariki).}

⁴ Sutton v Chief Executive of Corrections HC Christchurch CIV-2009-409-1202, 11 June 2009;

Langley v Chief Executive of the Department of Corrections HC Wellington CIV-2009-485-

1574, 24 August 2009; Hindman v Chief Executive of Department of Corrections [2013] NZHC

6.

was wrongly decided because the matters considered by Harrison J in that case, and the reasons for proceeding as he did, have no application in this case.

[26] What Mr van Wakeren is seeking is a determination of underlying merit. This cannot be justified in terms of the principles made clear in Manuel, it is not required having regard to s 14(1A)(b) of the Habeas Corpus Act, and it could not be undertaken without evidence being put properly before the Court, which has not occurred so far as Mr van Wakeren’s contentions are concerned, and with that evidence then properly tested, including by cross-examination if required. In respect of that last point it is also pertinent to observe that, on the face of it, some of the factual contentions advanced by Mr van Wakeren, and simply by way of submission, require careful scrutiny.

[27] For these reasons I was satisfied that the defendant had met the onus on it to establish that Mr van Wakeren’s detention is lawful and that there was no justification, on an application for a writ of habeas corpus, for an enquiry into the merit of the underlying factual contentions as sought by Mr van Wakeren. And it is

_{for those reasons that I made the earlier order dismissing the application.}

Woodhouse J