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Saiffiti v Department of Corrections Community Probation Services Palmerston North [2020] NZHC 151 (13 February 2020)

Last Updated: 20 February 2020

JUDGMENT OF COOKE J

[1] Mr Saiffiti is currently detained at Manawatu Prison. By undated application recorded as having been received by the Registry on 11 February 2020 he has applied for a writ of habeas corpus under the Habeas Corpus Act 2001. It was referred to me in my capacity as Duty Judge and I convened a hearing by way of telephone conference yesterday. Mr Jones for the Crown was able to file submissions on behalf of the respondents. Unfortunately they had not reached Mr Saiffiti for the telephone conference, but I raised the substance of the matters raised with him during the hearing.

SAIFFITI v DEPARTMENT OF CORRECTIONS COMMUNITY PROBATION SERVICES PALMERSTON NORTH [2020] NZHC 151 [13 February 2020]

Background

[2] Mr Saiffiti is subject to a life sentence for murder imposed on 23 February 1993. On 29 May 2019 he was released on parole. On 25 January 2020 an interim recall order was made. He is currently incarcerated on that order. A hearing before the Parole Board on whether a final recall order should be made is scheduled for 18 February 2020.

[3] I have been provided with copies of the formal documents, including an interim recall order under s 62(1), and an arrest warrant under s 63(1) of the Parole Act 2002 both signed by Mr N Trendall, a panel convenor of the Parole Board. The basis for recall was set out in an affidavit of Cameron Hogan sworn 25 January 2020. Allegations are made that Mr Saiffiti breached his release conditions, and I note that the interim recall order has been made on the basis that Mr Saiffiti poses an undue risk to the safety of the community.

[4] It is not necessary for the purpose of dealing with the present application to address the underlying allegations in relation to the breach of release conditions, or the circumstances more generally. As I explained to Mr Saiffiti the first key consideration is to ascertain whether he has been detained under a lawful warrant, and I accept that he has been. Mr Saiffiti makes a number of criticisms of the process, including not only the process in relation to the original setting of conditions, but also the allegations that he has breached them. He also says that the correct procedures have not been followed in relation to his recall. For example he explained that he had not received a copy of the interim recall order. As Mr Jones pointed out, on the file there is a document dated 7 February 2020 where Mr Saiffiti is recorded as signing an acknowledgement that he had received such material. But Mr Saiffiti was adamant that he had not received them, and I accept that I should not make a finding that he has.

[5] The key point is, however, that the kind of criticisms that Mr Saiffiti makes do not mean that a writ of habeas corpus should be issued. The position was summarised

by the Court of Appeal in Manuel v Superintendent of Hawkes Bay Regional Prison

in the following terms:¹

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.

[6] There have been situations where the Court has concluded that an interim recall order is unlawful.² But this is not such a case. Rather Mr Saiffiti’s criticisms are preliminary to the real point, which is whether a final recall order should be made by the Parole Board. The Parole Board is addressing whether a final recall order should be made on 18 February 2020. That is where the Board will consider whether Mr Saiffiti should be recalled to continue to serve his sentence. No doubt the Parole Board will follow the approach to such decisions set out by the Court of Appeal in Miller v New Zealand Parole Board who described the approach under the provisions in the Parole Act 2002 in the following way:³

[129] Given the overall scheme of the 2002 Act and the human rights jurisprudence as to arbitrariness of detention, we conclude that the discretion under s 66 to make a final recall order ought only to be exercised where public safety is in issue. Where the ground specified in s 61(a) is made out, the Board will necessarily be satisfied that the offender poses an undue risk to public safety. The same is likely also to be true in respect of s 61(d)(i) and (e)(i). The issue arises more acutely in relation to the other grounds provided for in s 61. We are of the view that when those grounds are made out, the Board should address public safety directly. If the Board, having done so, is of the view that

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

² Kurariki v Singh [2008] NZHC 1218; [2008] NZAR 625 (HC).

³ Miller v New Zealand Parole Board [2010] NZCA 600.

further detention of the offender is not required for purposes of consistency with the public safety of the community (cf s 7(2)(a)) and is satisfied that the offender can remain in the community without posing an undue risk to public safety (cf s 28(2)), the discretion to recall should not be exercised. In putting the test in this slightly awkward and labourious way, we are trying to ensure an approach which is aligned as closely as possible to the statutory language. We are also of the view that there is no need for an applicant for recall to establish particular conduct on the part of the parolee which is similar to the original offending. In this context, the concept of nexus is simply functional. If there is an obvious nexus ... then that is likely to be highly relevant to the public safety assessment and tell in favour of recall. Where there is no obvious nexus in that sense, it may be rather more difficult to establish an undue risk.

[7] For these reasons I am satisfied that the application for habeas corpus should be dismissed. I advised Mr Saiffiti of that decision at the conclusion of the hearing, and also advised him I would issue a decision in writing.

Cooke J