Greer and The Parole Board at Auckland Prison and ors

[2006] NZCA 369

IN THE COURT OF APPEAL OF NEW ZEALAND

CA271/06

BETWEENALAN IVO GREER

Appellant

ANDTHE PAROLE BOARD AT AUCKLAND PRISON

First Respondent

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Second Respondent

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT FOR COURTS

Third Respondent

ANDTHE GOVERNOR-GENERAL

Fourth Respondent

Hearing:20 December 2006

Court:O'Regan, Robertson and Ellen France JJ

Counsel:Appellant in person

J M Davidson and A J Bennett for Respondents

Judgment:21 December 2006 at 2 pm

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

B        The appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

[1]       The appellant seeks leave to appeal from the judgment of Lang J in which the Judge declined an application for a writ of habeas corpus: Greer v Parole Board at Auckland Prison & Ors CH AK CIV 2006-404-006243 17 October 2006.

Leave

[2]       The appeal is out of time.  Mr Greer says the failure to commence the appeal within the applicable time limit resulted from the fact that a copy of the judgment of Lang J was not provided to him by the prison authorities.  He said he received the decision only a week or so before he filed his application for leave to appeal.  Given the urgency with which the matter was heard, counsel for the respondents accepted that they were not in a position to dispute that version of events, but argued that leave should be refused because the appeal was baseless.  In the circumstances, we believe the fairer approach is to grant leave, and deal with the appeal on its merits. 

Decision of Lang J

[3]       Lang J had before him an affidavit from the Manager of Custodial Services at Auckland Prison, to which were exhibited copies of the warrants of commitment pursuant to which Mr Greer is being detained.  The Judge said that the material provided satisfied him that Mr Greer was currently detained pursuant to a valid warrant of commitment, and for that reason the writ of habeas corpus could not succeed.  That was the conclusion of Laurenson J in a previous habeas corpus application: Greer v Department of Corrections HC AK CIV 2004-404-5374 10 February 2005.

[4]       Mr Greer raised a number of other complaints about his treatment in prison, none of which had any relevance to the lawfulness or otherwise of his detention.  Lang J noted that a Court considering an application for habeas corpus may sometimes be prepared to deal with the application on the basis that it is dealing in reality with an application for judicial review.  Lang J did not adopt that course. 

[5]       It is clear that Lang J had before him evidence establishing the lawfulness of Mr Greer’s detention.  In those circumstances he correctly declined to grant a writ of habeas corpus.  Although Mr Greer made a number of submissions challenging the lawfulness of the warrants, it was clear to us that the factual finding made by Lang J was correct, and that his decision was also correct.  We therefore dismiss Mr Greer’s appeal.

[6]       Mr Greer also appealed against Lang J’s refusal to accept his habeas corpus application as an application for judicial review, dealing with a number of extraneous matters relating to the conditions on which he is detained.  Counsel for the respondents argued that there was no right of appeal against this decision under the Habeas Corpus Act, but whether that is the case or not we record that we agree with the approach taken by Lang J.  While there may be cases where the interests of justice demand that the Court take a non-technical approach to matters relating to the liberty of the subject, this case was not of that kind. 

[7]       In our view, a Judge considering an application for habeas corpus needs to undertake a proper assessment of the merits and determine positively that the interests of justice require that a habeas corpus application be treated as if it were an application for judicial review.  If this is not done, there will be an incentive for applicants to utilise the habeas corpus procedure to secure an urgent fixture under s 9 of the Habeas Corpus Act, which would not be available if the application had been correctly filed as an application for judicial review.  That is an abuse of the Court’s process which should not be permitted. 

[8]       Counsel for the respondents pointed out that applications for habeas corpus made by Mr Greer have been dealt with by the High Court on 10 February 2005, 5 October 2005, 22 December 2005, 6 January 2006 and 16 June 2006.  The distinction between an application for habeas corpus and an application for judicial review arose in a number of those cases, and Mr Greer would have been well aware of the differences between the two.  In those circumstances we are in no doubt that Lang J was correct to decline to treat the present application as an application for judicial review in this case.

Costs

[9]       Counsel for the respondents did not seek costs against Mr Greer.  She noted that the Crown had not ever sought costs against Mr Greer in relation to his numerous habeas corpus applications.  But she argued that the importance of the writ of habeas corpus meant that it should be protected from abuse, and that the Court should indicate to Mr Greer that he risked an award of costs against him if he continued to pursue baseless applications for habeas corpus.  We agree that an award of costs is an available remedy, even in habeas corpus cases, where it is shown that there is an abuse of the Court’s process.  However, we were not asked to make an award of costs in this case and we do not do so.

Solicitors:
Crown Law Office, Wellington