Genge v Superintendent of Christchurch Men's Prison
[2015] NZHC 705
•15 April 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-182 [2015] NZHC 705
BETWEEN RICHARD LYALL GENGE
Applicant
AND
SUPERINTENDENT OF CHRISTCHURCH MEN'S PRISON Defendant
Hearing: 14 April 2015 Appearances:
Applicant in Person
C Lange for the CrownJudgment:
15 April 2015
JUDGMENT OF MANDER J
The application
[1] Richard Genge is currently a prisoner at Christchurch Men’s Prison. On 13
October 1995 he was convicted on one count of murder and one count of sexual violation by rape. On 25 October 1995, Mr Genge was sentenced to life imprisonment, with a minimum period of imprisonment of 15 years, on the charge of murder, and a concurrent term of 12 years for the rape charge. That sentence was imposed on 25 October 1995. On the same day a warrant of commitment was issued pursuant to s 143 of the Criminal Justice Act 1985.
[2] Mr Genge has made application for a writ of habeas corpus. The sole ground upon which the application is advanced is that Mr Genge is of the view that:
… section 143 of the Criminal Justice Act 1985 was repealed and is no longer active.
GENGE v SUPERINTENDENT OF CHRISTCHURCH MEN'S PRISON [2015] NZHC 705 [15 April 2015]
[3] Mr Genge submits that there is thus no longer any valid warrant of commitment for imprisonment and he should be released immediately. He also relies on ss 7 and 17(2) of the Interpretation Act 1999 in support of his argument.
Habeas corpus
[4] Habeas corpus provides protection from unlawful detention. Applications for habeas corpus are governed by the Habeas Corpus Act 2001 (the Act) and are to be made by originating application,1 save for cases of unusual urgency.
[5] Where an application is made, if the defendant cannot discharge the burden of establishing that the detention is lawful, the writ will issue as a matter of right (ex debito justitiae) ordering the applicant’s release from detention.2 Save for certain exceptions which are here inapplicable, “[a] Judge dealing with an application must inquire into the matters of fact and law claimed to justify the detention and is not confined in that inquiry to jurisdictional errors”.3
The parties’ positions
Mr Genge
[6] The extent of the grounds relied upon by Mr Genge in his application are set out above. No further grounds or arguments were advanced at the hearing.
The Crown
[7] The Crown’s opposition to the application, and basis for establishing that Mr Genge’s detention is lawful is, quite simply, that a warrant of commitment issued under s 143 of the Criminal Justice Act 1985 is not invalidated by the repeal of that Act. And further, that the production of the warrant of commitment by the defendant has plainly established that the detention is lawful.
[8] Various methods of reaching this conclusion were advanced by the Crown. I
will not repeat them in their entirety.
1 Habeas Corpus Act 2001, s 7(1).
2 Section 14(1).
3 Section 14(2).
The legislation
[9] For ease of reference I set out the provisions relied on by the parties. The entirety of Mr Genge’s application is encapsulated in two legislative provisions. First, and foremost, Mr Genge relies on s 143 of the Criminal Justice Act 1985:
143 Warrant of commitment for full-time custodial sentence
(1) Where a court passes a full-time custodial sentence, it shall direct the issue of a warrant stating briefly the particulars of the offence and directing the detention of the offender in accordance with the sentence.
(2) Every warrant issued under this section shall include a statement as to whether the offender was or was not legally represented as contemplated by subsection (1) of section 10 of this Act; and, if the offender was not legally represented, the warrant shall state the way in which the requirements of that section have been satisfied.
(2A) Every warrant issued under this section must include a statement as to whether the offender is a person to whom section 21D applies; and, if that section applies to the offender, the warrant must state the way in which the requirements of that section have been satisfied.
(3) Where the sentence is passed by the High Court, any Judge of that court may sign the warrant.
(4) Where the sentence is passed by a District Court, any District Court
Judge or a Justice may sign the warrant.
(5) Any warrant under this section may be issued in respect of any number of sentences passed in respect of the same offender at the same sitting of the court.
[10] This section was repealed on 30 June 2002 by s 166(c) of the Sentencing Act
2002. It is on this basis that Mr Genge states that his warrant of commitment issued under s 143 is no longer valid. He relied on s 7 of the Interpretation Act 1999:
7 Enactments do not have retrospective effect
An enactment does not have retrospective effect.
[11] Taken in combination, therefore, Mr Genge’s argument is that not only is there no valid warrant of commitment under the Criminal Justice Act, but also that the effect of s 7 of the Interpretation Act is to prevent the provisions of either the Sentencing Act 2002 or the Parole Act 2002 from having any effect in relation to Mr Genge. With the repeal of the Criminal Justice Act, Mr Genge argues that there is no longer any valid warrant of commitment justifying his detention.
[12] The Crown relies on s 143 of the Criminal Justice Act, ss 17 and 21 of the Interpretation Act, and s 91 of the Sentencing Act. The relevant provision of the Sentencing Act is the modern counterpart of s 143 of the Criminal Justice Act 1985, which provides:
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.
(4) Repealed. (5) Repealed.
(6) If the sentence is imposed by a District Court, any District Court
Judge may sign the warrant.
(7) If the sentence is imposed by the High Court, any Judge of that court may sign the warrant.
(8) If the sentence is imposed by the Court of Appeal, any Judge of that court may sign the warrant.
(8A) If the sentence is imposed by the Supreme Court, any Judge of that court may sign the warrant.
(9) A warrant under this section may be issued in respect of any number of sentences imposed in respect of the same offender at the same sitting of the court.
[13] Sections 17 and 21 of the Interpretation Act provide:
17 Effect of repeal generally
(1) The repeal of an enactment does not affect—
(a) The validity, invalidity, effect, or consequences of anything done or suffered:
(b) An existing right, interest, title, immunity, or duty: (c) An existing status or capacity:
(d) An amendment made by the enactment to another enactment:
(e) The previous operation of the enactment or anything done or suffered under it.
(2) The repeal of an enactment does not revive—
(a) An enactment that has been repealed or a rule of law that has been abolished:
(b) Any other thing that is not in force or existing at the time the repeal takes effect.
21 Powers exercised under repealed legislation to have continuing effect
Anything done in the exercise of a power under a repealed enactment, and that is in effect immediately before that repeal, continues to have effect as if it had been exercised under any other enactment—
(a) that, with or without modification, replaces, or that corresponds to, the enactment repealed; and
(b) under which the power could be exercised.
Resolution
[14] I have reached a clear view that Mr Genge’s application must fail. The defendant has established that Mr Genge’s detention is lawful. In this respect, I see no need to resort to s 8 of the Parole Act, or any other argument.4 The legality of his detention can be worked through quite simply:
(a) A valid warrant of commitment was issued pursuant to s 143 of the
Criminal Justice Act 1985;
(b) The current iteration of that section is now found in s 91 of the
Sentencing Act 2002;
(c) The effect of s 21 of the Interpretation Act 1999 is that the warrant of commitment in respect of Mr Genge issued under the Criminal Justice
Act remains valid and continues to have effect as if it had been issued
4 Though I need not resolve the point, it seems to me that s 8 of the Parole Act 2002 is not entirely on point for present purposes. Mr Genge’s application does not relate to a decision relating to Parole. In other words, he does not seek to assert that the provisions of the Criminal Justice Act
1985 should be resorted to for the purposes of considering his eligibility for, or release on, parole, or some other such argument and, indeed, expressly disavowed such an approach. Rather, his argument is much simpler. That is, that the repeal of the Criminal Justice Act 1985 invalidated his warrant of commitment under s 143 of the Criminal Justice Act. In this sense, s
8(3) of the Parole Act provides limited assistance. That section concerns decisions made under Part 4 or 6 of the Criminal Justice Act. A warrant of commitment is issued under Part 9. As I have said, I need not consider this issue in any detail, given the conclusions I have reached below.
under s 91 of the Sentencing Act 2002 which replaced, and corresponds to, s 143 of the Criminal Justice Act.
[15] The same result could have been reached by resort to s 17 of the Interpretation Act, though, it seems to me, that s 17 is not so directly on point as s 21.5 In any event, I need not resort to s 17 for the reasons set out above.
[16] I also note that Mr Genge’s application is, in essence, inviting this Court to hold that all warrants of commitment issued under the Criminal Justice Act were invalidated by its repeal. That argument, were it accepted, would lead to extraordinary consequences wholly outside the contemplation of Parliament, and is clearly avoided by s 21 of the Interpretation Act 1999.
Result
[17] The respondent has established the legality of Mr Genge’s detention. It
therefore follows that his application fails and no writ of habeas corpus will issue.
Solicitors:
Crown Law, Wellington
Raymond Donnelly & Co, Christchurch
Copy to Applicant
5 Interpretation Act 1999, s 17(1)(e).
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