Ericson v Department of Corrections HC Auckland CIV 2010-485-1912

[2010] NZHC 2046

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-1912

UNDER  The Habeas Corpus Act 2001

BETWEEN  JOHN FREDERICK ERICSON Applicant

ANDDEPARTMENT OF CORRECTIONS Respondent

Counsel:         Applicant in Person

A M Powell and T Jennings for the Respondent

Judgment:      30 September 2010

ORAL JUDGMENT OF WILD J

[1]      By handwritten application dated 27 September, received for filing in this

Court on 28 September, Mr Ericson applies for a writ of habeas corpus.

[2]      Mr Ericson begins his neatly written application:

1.My motion of habeas corpus is in regard to my parole board hearing on the week beginning 24th May 2010.

(In fact I think the hearing was on 26 May.  That is the hearing date recorded in the

Parole Board’s decision.)

[3]      The Crown has met Mr Ericson’s application with an affidavit sworn by Ms Lamb, the Manager of Litigation in the office of the Chief Executive of the Department of Corrections, annexing the warrant of committal for imprisonment for Mr Ericson.  This warrant is dated 19 April 2000 and is signed by Panckhurst J.  It is addressed   to   every  Constable   and   to   the   Superintendent   of   the   Prison   at

Christchurch.  It records that Mr Ericson was convicted of murder by this Court at

ERICSON V DEPARTMENT OF CORRECTIONS HC WN CIV 2010-485-1912  30 September 2010

Christchurch and sentenced on 19 April 2000 to imprisonment for a term of life.  It directs the Constables to deliver Mr Ericson to the Superintendent of the Prison at Christchurch, and directs the Superintendent to detain him in the prison for the purposes of the sentence.

[4]      Mr Ericson does not challenge the validity of that warrant.  I am satisfied that it is valid.

[5]      I turn then to consider the matters raised by Mr Ericson in his application.  It runs to seven pages, 55 paragraphs, so the following is a summary:

a)       He says he has now been in prison for 11½ years, well beyond the 10 year minimum non-parole period (now stipulated by s 103(2) Sentencing Act 2002, substituted as from 7 July 2004).  He details the courses he has attended in prison, and the steps he has taken in conjunction with outside agencies, in an effort to rehabilitate himself and ready himself for release back into the community.   He asserts that his continued imprisonment is arbitrary and illegal, in particular because  it  breaches  Art  9  International  Covenant  on  Civil  and Political Rights (ICCPR).

b)He  criticises  the  Parole  Board  for  requiring  him  to  rebuild  his relationship with his family in Lower Hutt, when his main support is in the Auckland region.  He asserts that he is being set up to fail.

c)       He criticises the Parole Board in relation to the attitude to his release by the victim’s family.  In particular, he criticises the Board for not taking action in respect of threats by the victim’s family to kill him.

d)He details that the Parole Board asked him whether he would be prepared to go into the self care unit to further his rehabilitation. When he told them he would, the Board said he would need to cease being  a  segregated  prisoner  and  join  the  main  prison  population,

which he asserts “is not an option” for him.  He contends this situation represents a violation of Art 10 para 3 ICCPR.

e)       He states that he applied on 1 January 2010 for exercise of the Royal prerogative of mercy, his application comprising 567 pages.   As I understand his application, he is concerned that he will not be granted parole before the outcome of this application.

f)        He criticises the Parole Board for denying him parole because he does not have a robust relapse prevention plan, when the lack of that is the result of a lack of resources in the Department of Corrections.

g)       He criticises the Parole Board for taking the view that any appeal by him against his conviction would indicate that he continues to deny his offending, which is an obstacle to his release on parole.  He says this violates Art 14 para 5 ICCPR.

h)        He contends that all of this is cruel and inhuman and violates Art 7

ICCPR.

[6]      Are these matters appropriate for determination on Mr Ericson’s application for a writ of habeas corpus?  Section 14(2) Habeas Corpus Act 2001 provides:

14       Determination of applications

...

(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; but this subsection does not entitle a Judge to call into question—

(a)a  conviction  of  an  offence  by  a  court  of  competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

(b)      a ruling as to bail by a court of competent jurisdiction.

Just what is contemplated by the words “must enquire into the matters of fact and law claimed to justify the detention” was comprehensively considered by the Court of Appeal in Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1

NZLR 161.  Manuel, and also this Court’s decision in Hunia v Parole Board [2001]

3 NZLR 425, differ from this case. That is because both involved a challenge to a decision by the Parole Board recalling a prisoner released on parole to serve the balance of his sentence. Thus, the very basis upon which the applicant was back in prison was being impugned. That is not the position here. In Manuel the Court held that that type of challenge could be entertained on an application for a writ of habeas corpus if the issues were properly susceptible to fair and sensible summary determination by the Court.  If the arguments were not so susceptible, then they had to be held over for an evaluation on an application for judicial review.

[7]      This case is different also to Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 where the challenge was to the conditions of imprisonment, rather than to the lawfulness of the imprisonment itself.

[8]      I mention these things because of the requirements for dealing with an application for habeas corpus.  The Act, as did the common law it replaced, requires this Court to give an habeas corpus application precedence over all its other business. No matter how urgent,  how important or how  numerous that other business is, habeas corpus prevails.  The application must be heard within three working days. The reality of that in this Court this afternoon, is that I am hearing this application ahead of an immigration appeal for which counsel has travelled from Napier and an application for fresh bail by a woman charged with dealing in Class A drugs, who was arrested last night for allegedly breaching her bail conditions.  Two judgments that urgently need to be completed must also wait.

[9]      What is fairly and sensibly practicable this afternoon is that I require the Crown to satisfy me that Mr Ericson is lawfully detained in prison.  Production of the warrant of committal so satisfies me.  What is not fairly and sensibly practicable this  afternoon  is  for  me  to  deal  adequately  and  properly  with  Mr  Ericson’s complaints against and concerns about the Parole Board in considering releasing him

on  parole.    Those  matters  are  properly held  over  for  determination  by  judicial review.

[10]     Having sought Mr Ericson’s view, and that of counsel for the respondent, I

make the following orders:

a)       Insofar as it challenges the lawfulness of Mr Ericson’s imprisonment, pursuant  to  s  14(3)(a)  Habeas  Corpus  Act,  I refuse  Mr  Ericson’s application for the issue of the writ.

b)Insofar as it challenges decisions by, and the conduct of, the Parole Board, I direct that Mr Ericson’s application is to be treated as an application for judicial review, but with the same proceeding number (CIV 2010-485-1912).

c)        As to that application for judicial review, I direct:

i)That the Parole Board and the Attorney-General be substituted as respondents to the application for judicial review.

ii)By 15 October, Mr Ericson is to file and serve on the Parole Board and the Attorney-General (address for service Crown Law  Office,  P  O  Box  2858,  Wellington)  any  affidavit  or further submission in support of his application for judicial review.

iii)By 29 October, the Parole Board is to file and serve its full record.   With that record it is to file and serve a list of any documents   not   included   in   the   record,   that   list   to   be sufficiently descriptive to enable Mr Ericson to see what, if anything, has been excluded.   I note here that Mr Ericson’s concern   is   two-fold:      first,   that   what   he   asserts   were threatening statements by the victim’s family be included in

the record, and second, that submissions he has made to the

Parole Board also be included in the record.

iv)Also by 29 October, the Parole Board and/or the Attorney- General are/is to file and serve their/its statement of defence and any affidavit(s) in opposition to Mr Ericson’s application for judicial review.

v)Immediately following that, the Case Manager is to refer the file to the Executive Judge at Wellington, Miller J, for further direction toward an early fixture.

Solicitors:

Crown Law Office, Wellington for the Respondent