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Cashmore v Prison Manager, Rimutaka Prison [2019] NZHC 3221 (6 December 2019)

Last Updated: 12 December 2019

ORAL JUDGMENT OF CHURCHMAN J

[1] The applicant, Timothy Cashmore, is currently at Rimutaka Prison serving a six-month term of imprisonment, having pleaded guilty on 12 November 2019 on two charges of assault on a person in a family relationship¹ and one of contravening a protection order.² As he has spent six weeks on remand and his sentence is classified as a short-term sentence,³ his statutory release date is 24 December 2019.

[2] On 4 December 2019, Mr Cashmore, who is self-represented, filed an application for a writ of habeas corpus.⁴ In accordance with the tight timeframes

¹ Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.

² Family Violence Act 2018, ss 9, 90(a) and 112(1)(a); maximum penalty three years’ imprisonment.

³ Parole Act 2002, s 86.

⁴ Habeas Corpus Act 2001, s 6.

CASHMORE v PRISON MANAGER, RIMUTAKA PRISON [2019] NZHC 3221 [6 December 2019]

provided for in the Habeas Corpus Act 2001, the application was listed for hearing before me as Duty Judge at 10 am on 6 December 2019.⁵

[3] Mr Cashmore appears by way of audio-visual link.

[4] Mr Cashmore informs the Court that, in late November 2019, he learnt of the Christmas early release policy. Pursuant to s 52(3) of the Parole Act 2002, the Chief Executive of the Department of Corrections has the discretion to direct the early release of prisoners:

(a) who are serving sentences of imprisonment of more than 14 days; and

(b) whose statutory release dates fall within the period commencing on 15 December in one year and ending on 5 January in the next year.

[5] The primary purpose of s 52 is:⁶

... to mitigate the risk that prisoners, unable to make contact with service agencies and support networks (including family/whānau support) and to make suitable arrangements for such things as accommodation and employment before the Christmas period ... are more likely to re-offend.

[6] The Prison Operations Manual states:⁷

Prisoners serving a sentence of imprisonment of six months or more will be granted Christmas early release, unless the custodial systems manager (CSM) deems the release inappropriate. This includes, but is not limited to the following reasons:

1. likely to increase rather than decrease the risk of further offending;

2. adversely impact on public safety between any early release date and the prisoner’s statutory release date.

[7] On 1 November 2019, the Department of Corrections issued its Christmas early release policy for the 2019-2020 period. That policy proposed that release, for those prisoners whose statutory release dates fall between 15 December 2019 and

⁵ Section 9.

6. Department of Corrections Prison Operations Manual <www.corrections.govt.nz> (accessed 5 December 2019) at [R.04].

⁷ At [R.04.02].

25 December 2019, occur on 3 December 2019.⁸ However, that date is not mandatory and those with delegated authority to direct early release may specify an alternative date.

[8] A notice advising of the Christmas early release policy was placed on all prisoner notice boards. It indicated that complaints regarding decisions made under the policy should be made to a unit staff member in the first instance.

[9] Mr Cashmore made an application for early release. On 15 November 2019, his application was declined on the grounds that he had a “[h]istory of family violence including non-compliance with community based sentences and court orders”.

[10] Mr Cashmore complains that he has never received any written notification regarding his entitlement to early release.

[11] At the commencement of this hearing, I asked Mr Cashmore a number of questions as to the order in which he received notification as to the decision. He indicated that, initially, he was advised by the Corrections officer who he understood to have been assigned the task of dealing with this issue, that as his name was not on the list of people who would be released early, it was likely that he would be released. He indicated that subsequently the same Corrections officer informed him that he had not been successful in relation to the release application. He says that he was not, at that stage, advised by the Corrections officer of the reasons for that decision. He told me that it was not until after he had made the application for a writ of habeas corpus that he received a copy of the written decision. This is a document in Form A that was attached as annexure 6 to the submissions of counsel for the Department of Corrections.

[12] On the face of things, the failure to provide Mr Cashmore with the reasons for the declining of his application is in breach of the express terms of the policy. Clause 15 of the policy states:

8. Department of Corrections 2019/2020 Christmas Early Releases/Early Release Special Reason at [9].

Rationale and supporting documentation is required to accompany any declined decision and will be noted by the CS helpdesk on receipt.

[13] That clause does not specifically say that the documentation will be provided to the prisoner. However, I am satisfied that such an obligation is implied. Indeed it would undermine the purpose of that clause if the prisoner was to be denied knowledge of why his release application had not been successful.

[14] Mr Cashmore claims that the denial of his Christmas early release is arbitrary, improper and/or unlawful. He states that there has been an abysmal absence of written documents and that a just process would require written notice of denial and advice as to the proper appeal or review process. He argues he is entitled to Christmas early release but 3 December 2019 has now been and gone. Accordingly, he seeks the Court’s intervention in what he says is now an ongoing, unlawful detainment and a direction that he be immediately released.

[15] The respondent submits that Mr Cashmore’s application should be dismissed, stating that his claim is more appropriately dealt with by way of judicial review given that it concerns the validity of an administrative decision, namely the exercise of the respondent’s discretion to decline his application for early release and, in particular, the failure to immediately provide reasons for the decision.⁹ It is argued that a considered judicial examination would be required to establish the lawfulness of the decision and what, if any, relief should be granted.

[16] When questioned by the Court as to the possible relief Mr Cashmore might obtain from such proceedings, it was Mr McCusker’s position that he could get a declaration. He acknowledged that if such proceedings did not occur prior to 24 December, that would not provide any practical relief to the situation that Mr Cashmore is in.

[17] As the respondent has noted, Mr Cashmore is currently imprisoned for family violence offending. His criminal and traffic history records numerous instances of offending within this context, including convictions for assault on a child and male

⁹ See Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [46];

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

assaults female arising from offending that took place in mid-2016. Also of relevance is a conviction for contravening a protection order relating to offending that took place on 23 December 2011. Those factors may explain why the decision-maker made the decision to decline the application for early release did so. However, those factors do not address the issue of whether or not the process followed by the decision-maker was lawful or whether a writ of habeas corpus should be granted. In order to determine this question, it is necessary to consider a number of legal issues.

Habeas corpus

[18] I start with the Habeas Corpus Act itself. Section 14(1) of that Act says:

(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.

(1A) Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that–

...

(b) an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.

[19] It is effectively this subsection that Mr McCusker, for the respondent, has relied on.

[20] Section 14(2) says:

(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 ...

[21] It is in discharge of that obligation that I have this morning questioned Mr Cashmore at some length in order to establish the facts upon which his application is based.

[22] Applications for a writ of habeas corpus in circumstances similar to those in Mr Cashmore’s case have been examined by the Court on a number of occasions. The
leading decision is a decision of the Court of Appeal in Manuel v The Superintendent, Hawkes Bay Regional Prison.¹⁰ The decision in that case was given by William Young J. In particular, that case addresses the arguments that Mr McCusker has addressed to me today about the appropriateness of an application for a writ of habeas corpus in circumstances where the subject matter of the application would more properly fall within an application for judicial review.

[23] At [30(3)] of that decision, he said:

The procedures applicable to habeas corpus applications are not suited to refined analysis of nuanced administrative law arguments. The statutory prescriptions as to urgency are inconsistent with the sort of lengthy adjournment which might be necessary to permit a full response to be made to allegations of the type involved here. Further, if such an adjournment had been granted to give the Superintendent an opportunity to reply to Mr Ellis’ arguments with affidavit evidence, the evaluation of that affidavit evidence could not be conducted as efficiently as would be possible in judicial review proceedings given the absence of rights of discovery and inspection.

[24] Further in the judgment, William Young J elaborated on that reasoning. At [49] he 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 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.

[25] At [50] and [51] the Judge said:

¹⁰ Manuel v The Superintendent, Hawkes Bay Regional Prison, above n 9.

[50] 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.

[51] The legal basis for our approach does not lie in any particular limitation on the common law remedy of habeas corpus. Rather we see the issue as turning on the interpretation of the Habeas Corpus Act which cannot have contemplated the use of the habeas corpus remedy for purposes for which the statutory process provided in the Act is plainly inappropriate.

[26] Applying the principles set out by William Young J in that decision which has been applied by many subsequent cases, I am forced to the conclusion that, in this case, the type of challenges that Mr Cashmore wishes to raise, relate to the decision- making process itself. As Mr McCusker has submitted, that is a matter falling within an application for judicial review. This is not a situation where the warrant itself has in any way been challenged.

[27] However, having come to that conclusion, there are a number of matters in relation to this application that cause the Court concern.

[28] The first of those is that, it appears that the reasons for the decision were not conveyed to Mr Cashmore at the time that the decision was made. If that situation is correct, then that would seem to be a breach of the Corrections Department’s own policies as I have discussed above. It is certainly something that should stop as a practice, and the unsuccessful applicants for such early release decisions are entitled to receive, at the time of being told of the decision, the reasons for it.

[29] A further matter of concern is that Mr Cashmore informed the Court this morning that he had not received a copy of the submissions that had been filed with the Court by Mr McCusker. Mr McCusker advised the Court that it was his understanding that the submissions had been forwarded to the prison. It would appear that the Department of Corrections who were aware that Mr Cashmore was appearing in Court today because they were required to make arrangements for his link by AVL, did not provide to him, a copy of the submissions that Mr McCusker had filed. That is most unfortunate. If it was a deliberate action as opposed to an oversight, it is a matter of grave concern. If it was merely an oversight, then it is carelessness towards
the rights of a prisoner that is also a matter of concern for the Court. It is not something that should happen again.

[30] By way of conclusion, I accept that this application is one which properly falls within the ambit of an application for judicial review rather than a writ of habeas corpus. Notwithstanding that the policy behind the early release procedure is to ensure that a prisoner will be released in sufficient time prior to Christmas to be able to make suitable arrangements for things like accommodation and employment, it appears that Mr Cashmore will now be released on Christmas eve.

[31] However, as a result of the caselaw on this point, I am obliged to dismiss the application. For these reasons, the application is dismissed.

Churchman J

Solicitors:

Luke Cunningham Clere, Wellington