Forrest v Chief Executive of the Department of Corrections
[2014] NZHC 1206
•30 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-1242 [2014] NZHC 1206
UNDER the Habeas Corpus Act 2001 IN THE MATTER
of an application for a writ of Habeas
CorpusBETWEEN
BRENDON DOUGLAS FORREST Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant
Hearing: 28 May 2014 Counsel:
Appearance:
RE Savage for defendant
BD Forrest, applicant in person
Judgment:
30 May 2014
JUDGMENT OF FAIRE J
This judgment was delivered by me on 30 May 2014 at 4:45pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
To: BD Forrrest, Auckland
BRENDON DOUGLAS FORREST v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2014] NZHC 1206 [30 May 2014]
The application
[1] The applicant applies for a writ of habeas corpus pursuant to the Habeas Corpus Act 2001. He submits that his present detention in prison is unlawful. He appears by audio visual link.
Amendment of the application
[2] The defendant correctly submits that the appropriate defendant in this case is the Chief Executive of the Departments of Correction by virtue of s 8(a) of the Habeas Corpus Act 2001. Accordingly, I amend the application and insert the Chief Executive of the Department of Corrections as the defendant.
The opposition
[3] The defendant submits that the applicant is lawfully detained pursuant to warrants of commitment under s 91 of the Sentencing Act 2002. Copies of the warrants as they existed at the time of filing of the notice of opposition are attached to it. One of the warrants had not been signed, but has subsequently been signed by a District Court judge. This case centres on the effect of the unsigned warrant.
Background
[4] Mr Forrest is a serving prisoner. Sentences have been imposed on him on five separate occasions. On 30 July 2004 he was sentenced to a term of four years’ and six months’ imprisonment. On 10 February 2006 he was sentenced to a further three years’ imprisonment, cumulative on the earlier term. Subsequently, he was sentenced to three further cumulative terms: two years’ imprisonment on
12 December 2008; one year and six months’ imprisonment on 17 September 2009;
and two months’ imprisonment on 22 September 2010.
[5] The result is that he is serving a term of imprisonment of eleven years’ and two months’.
[6] The sentencing notes of District Court Judge PA Moran, dated 30 July 2004 have been produced and confirm that the applicant was sentenced to four-and-half
years’ imprisonment.1 An appeal from that decision was determined by Panckhurst J
and was dismissed by his Honour on 29 April 2005.2
[7] On 28 November 2008, the applicant applied for a writ of habeas corpus. He complained that warrants of commitments were inaccurate and misleading and that he should be immediately released on account of his alleged illegal detention. The application was dismissed by John Hansen J in an oral judgment on 28 November
2008.3 In his Honour’s judgment he records that in respect of the sentence imposed
by District Court Judge Moran, that John Hansen J had examined the warrant and that it was clear that the effective sentence imposed by District Court Judge Moran was four-and-a-half years. His Honour also considered the sentencing notes of District Court Judge Crosbie. He reached the conclusion that the results recorded in a warrant in respect of that matter was correct in that the term of imprisonment imposed by District Court Judge Crosbie was cumulative and would run from the expiry of the four-and-a-half years imposed by District Court Judge Moran.
[8] The applicant brought a further habeas corpus application, which was heard by Venning J on 29 April 2009.4 His complaint on this occasion was that the warrant for his imprisonment was directed to the manager at Christchurch prison and did not stipulate that he serve his sentence in any other prison. Justice Venning disposed of that point by referring to s 37(2) of the Corrections Act 2004 and ruled that was a complete answer to the first ground advanced by Mr Forrest.
[9] The second ground he advanced was that he had been moved to Auckland Prison to be held at a maximum security prison and that he was imprisoned there unlawfully because he says he has a low security rating. That also was summarily dismissed by Venning J, who then dismissed the application for habeas corpus.
[10] A further application for habeas corpus was lodged by the applicant and heard by Keane J on 2 May 2011.5 In that application, Mr Forrest alleged that there
had been a miscalculation of the effect of the sentences imposed on him with the
1 Police v Forrest DC Christchurch CRI-2004-009-005696.
2 Forrest v Police, CRI-2005-409-10, 29.
3 Forrest v Attorney-General HC AK CIV-2008-409-002820.
4 Forrest v Chief Executive of the Department of Corrections HC AK CIV-2009-404-002345.
5 Forrest v Chief Executive of the Department of Corrections HC AK CIV-2011-404-2357.
result that he should have been released as at 30 September 2013 and not 13 July
2015 as contended by the Chief Executive of the Department of Corrections. The application was dismissed by Keane J. That resulted, then, in a belated application to appeal from Keane J’s decision which included an application for an extension of time to appeal. That matter was heard on 22 May 2012. The result was a dismissal
of the application and confirmation of the High Court decision.6
[11] What is important to note hear is that there has been significant judicial consideration of the sentences imposed on Mr Forrest which have been confirmed by the Court of Appeal as correct. That analysis confirms that he is presently serving a sentence of imprisonment of eleven years’ and two months’ with a release date of
13 July 2015.
[12] Mr Forrest was not satisfied with the position and discovered the warrant that was prepared for signature by District Court Judge Moran in respect of the 2004 sentencing had not been signed by the Judge. As I have mentioned, the warrant has recently been signed and was presented to the court on the hearing date of this application. Nevertheless, Mr Forrest challenges his continued imprisonment and submitted that the belated signature of the warrant could not cure what was, in effect, the absence of a warrant.
The law
[13] Section 6 of the Habeas Corpus Act 2001 provides that an application to challenge the legality of a person’s detention may be made by application for a writ of habeas corpus. Section 14(1) provides that the onus is on the respondent/defendant to establish that the detention of the detained person is lawful. If the respondent fails to do this the High Court must grant as a matter of right, a writ of habeas corpus ordering the release of the detained person from detention.
[14] This case raises the issue of what happens where a warrant is prepared correctly but does not have an actual signature of the District Court Judge on it.
6 Forrest v Chief Executive of the Department of Correction COA271/2012.
[15] Mr Forrest referred to s 37 of the Corrections Act 2004. That provides that no person may be received in a prison without a valid committal order.
[16] Mr Forrest complains that the Chief Executive of the Department of Corrections has failed to identify the absence of a signature on the warrant of commitment in respect of the 2004 sentence. That, he submitted, was sufficient for the court to conclude that his detention was unlawful.
[17] Ms Savage submitted that s 37 of the Corrections Act 2004 must be read with s 91 of the Sentencing Act 2002. It is appropriate that I record that s 37 of the Corrections Act 2004 has a definition of committal order as “includes any warrant, writ, order, direction, or authority requiring the detention of any person”.
[18] The operative parts of s 91 of the Sentencing Act 2002 are as follows:
91 Warrant of commitment for sentence of imprisonment
(1) If a court imposes a sentence of imprisonment, a warrant must be issued stating briefly the particulars of the offence and directing the detention of the offender in accordance with the sentence.
(2) A warrant issued under this section must include a statement as to whether the offender was or was not legally represented as contemplated by section 30(1).
(3) If the offender was not legally represented, the warrant must state the way in which the requirements of that section have been satisfied.
…
(6) If the sentence is imposed by a District Court, any District Court
Judge may sign the warrant.
[19] It is common ground that the 2004 warrant satisfies the requirements of subs (1), (2) and (3) of the Sentencing Act 2002. There is simply no doubt as to the recording of the correct sentence in the document that was originally produced.
[20] Mr Forrest referred to Mailley v General Manager, Auckland Central Remand
Prison.7 A writ of habeas corpus was ordered to issue in respect of a defective
warrant. The court’s finding, however, was that the warrant was so seriously flawed
7 Mailley v General Manager, Auckland Central Remand Prison HC Auckland CIV-2008-404-
8316, 17 December 2008.
on its face that the court could not determine what order the judge had made in court. That position is wholly different from the position in this case where there is no room for argument that the 2004 warrant of commitment did not correctly record the sentence imposed by the judge.
[21] Ms Savage’s submission is that a warrant that correctly records the matters set out in subs (1), (2) and (3) of s 91 is a sufficient warrant. The remaining subsections which provide for signature as appropriate by either a District Court Judge, a High Court Judge, a Judge of the Court of Appeal, or a Judge of the Supreme Court simply provide that such judge may sign the warrant. There is no mandatory requirement to have the warrant signed by a judge.
[22] There is now a warrant properly signed. Mr Forrest complained that the delay was simply too great and I should not allow the Chief Executive to cure the absence of the signature on the warrant by the subsequent document. Certainly, the Court of Appeal in Misiuk v Chief Executive, Department of Corrections accepted as a matter of practicality that there will be some delay between the pronouncement of the court’s decision on the preparation and execution of the appropriate warrant, but said that the statute should ordinarily be complied with as soon as practicable and
preferably before the prisoner leaves the courthouse.8 The court further said,
however, that:9
we are satisfied that the deficiencies just discussed have long since been overtaken by the warrants subsequently issued in the District Court.
[23] The position being considered by the Court of Appeal was the different from the present one because here an actual warrant had been prepared in a timely way. The only issue is the missing signature.
[24] What is apparent is that Mr Forrest is currently serving sentences which were properly imposed by the courts. His sentences have been reviewed on a number of occasions, as I have already referred to, and upheld. There is no question that those
sentences currently require his continued detention. He has picked on an error that
8 Misiuk v Chief Executive, Department of Corrections [2011] 2 NZLR 114 (CA) at [26].
9 At [27].
should not have occurred but, in fact, has not led to a position where the documents
misrepresent the sentencing court’s order.
[25] I conclude, therefore, that his current detention is in fact lawful. Accordingly, I dismiss the application for the issue of a writ of habeas corpus.
[26] The respondent sought costs. I am not prepared to order costs in this case. A clear error was made by the authorities. It would be wrong to compound the position by ordering Mr Forrest to pay costs on this application even though the conclusion I have reached is simply that he sought to take advantage of an error which has bearing on the sentence that he is required to serve.
[27] For these reasons I do not make any order for costs against Mr Forrest.
Faire J
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