Greer v Department of Corrections HC Auckland CIV 2004-404-5374

[2005] NZHC 1276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-5374

GREER

Applicant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:        16 December 2004 Appearances: Applicant in person

N Cooke Amicus Curiae

V Sim & Miss Edwards for Respondent Judgment:     10 February 2005

RESERVED JUDGMENT OF LAURENSON J.

Solicitors:

Crown Law, PO Box 2858, Wellington.

Amicus Curiae: Nigel Cooke, Barrister, PO Box 47-016, Auckland. The Applicant, A.I. Greer, C/- Paremoremo Prison, PO Box 50124

GREER V DEPARTMENT OF CORRECTIONS HC AK CIV 2004-404-5374 10 February 2005

Introduction and background

[1]        The applicant, Mr Greer, is an inmate of Paremoremo Prison, he having been sentenced to an effective term of 7 years imprisonment by Judge Tuohy in the District Court at Wellington on 14 July 2004, on four counts of sexual violation by unlawful sexual connection, and six counts of indecent assault on a girl under the age of 12.

[2]        On 28 September 2004, he applied for a Writ of Habeas Corpus, pursuant to s6 of the Habeas Corpus Act 2001 (“the Act”) on the ground that there were deficiencies in the two Warrants of Commitment for his imprisonment. The basic allegation at that stage was there had been a failure to correctly calculate and record the number of days spent in pre-sentence detention prior to sentence.

[3]        The application first came before John Hansen J on 4 October 2004. The application was then adjourned to 15 October 2004 to enable the applicant’s counsel to obtain further instructions and to enable the applicant to be present.

[4]       The application next came before me on 15 October 2004. In an oral decision on the same day I directed, inter alia

[a]The respondent was to file further affidavits setting out more precise details of the pre-sentence detention dates and information relating to the legal representation of the applicant at trial and sentence.

[b]These affidavits to be filed and served by 5pm on 22 October 2004, with an affidavit in reply to be filed and served by 5pm on 29 October 2004.

[c]The matter to be adjourned in the meantime with a further hearing date to be determined by the Registrar in consultation with counsel. When this had been resolved the Registrar was to take the necessary steps to obtain an order to produce the applicant.

[5]        I also noted my refusal to grant leave to Mr Cooke to retire, he having been advised by the applicant during the hearing that he no longer wished Mr Cooke to continue acting for him. The refusal to grant leave was not intended as any reflection on Mr Cooke, but rather to emphasise to the applicant that I was not prepared to have the matter disrupted by any aberrant behaviour on his part when the Court and counsel were endeavouring to unravel what was, at that stage, a somewhat confused application and to identify the issues involved.

[6]        On 29 October 2004, Mr Cooke advised he was having difficulty obtaining instructions and sought an extension of time for filing an affidavit in reply until 5 November 2004. I granted leave accordingly on 1 November 2004.

[7]        On 11 November 2004, I issued a minute advising counsel that, if necessary, I would appoint Mr Cooke as Amicus Curiae.

[8]        The affidavits referred to above were filed by 9 November 2004. On 1 December 2004, the Registrar advised me that the parties sought a hearing date, which I was able to provide on 10 December 2004.

[9]        On 9 December 2004, I made enquiry as to whether this date had been accepted by counsel, to find, unfortunately, counsel had not been advised. A telephone conference was arranged at short notice for 10 December 2004, at which time a fixture was arranged for 16 December 2004, together with an Order to Produce the applicant on that date. Mr Cooke advised that the applicant would not sign an application for legal aid. I then appointed Mr Cooke as Amicus Curiae.

Conduct of hearing

[10]       The hearing proceeded on the basis that the applicant was appearing on his own behalf. Fortunately, it transpired that he had agreed to co-operate with Mr Cooke to a reasonable degree and to the extent that Mr Cooke had been able to file submissions setting out his understanding of the applicant’s case with which the applicant agreed in large part. Notwithstanding this, I took pains to ensure that the

applicant was given the opportunity at all stages of the hearing to make his own separate representations throughout the hearing.

1. The applicant raised three preliminary matters:

[a]He had been unable to obtain disclosure relating to an appeal against his convictions. This included disclosure in relation to matters at his trial, and from the police. My impression was, at that point, that this issue was irrelevant to the present application and, in this regard, I now note s7(5) of the Habeas Corpus Act 2001, which states:

(5) In a proceeding for a writ of habeas corpus—

(a)        no party to the proceeding is entitled to general or special discovery of the documents of any other party to the proceeding or to an order for security for costs; and

(b)          the High Court Rules concerning discovery and inspection of documents and security for costs do not apply.

I further note that, notwithstanding this provision, I had previously ordered the respondent to file the affidavits referred to in para [4] in order to ensure that certain essential information was before the Court. The applicant indicated that he accepted my ruling.

[b]The second matter raised by the applicant was an objection to the fact that the material provided by the respondent in relation to the issue of representation at trial and sentence, namely,

1. Judge Tuohy’s sentencing notes;

[ii]Submissions on sentence by the Amicus Curiae appointed at trial and sentence; and

[iii]Copies of rulings numbered 1 to 15 by the Judge had not been verified by affidavit. I ruled that I did not consider this fact to be of any significance given that all the documents were either matters of public record or, in the case of the sentencing

submissions by the Amicus Curiae, recorded submissions previously made in open court.

[c]The third objection related to the content of the above documents, namely, that they were inadequate in the sense that they did not fully set out all the relevant circumstances relating to the issue of representation at trial, and sentence. In particular, it seems that the applicant had left the courtroom during the course of sentencing and this fact is not referred to in any of the above documentation. My impression at that stage was that if the applicant did have grounds for questioning procedural matters which had occurred during trial and sentence, then these would be more appropriately addressed by way of an appeal rather than application for Habeas Corpus.

The issues

[12]      Following the indication given by me in my decision dated 15 October 2004, the applicant and counsel were able to agree on the issues relevant to this application.

[13]      Essentially the applicant seeks to be released from detention for three basic reasons. He submits:

[a]The respondent has failed to correctly calculate the number of days of pre-sentence detention. The result is, he says, that the time has already been reached when he should have been able to apply for parole. Therefore, he submits, the failure to correctly calculate the dates has deprived him of that opportunity by, in effect, postponing that time.

[b]The Warrants of Commitment for imprisonment included an incorrect statement, pursuant to s91(2) of the Sentencing Act 2002 that the applicant was not legally represented as contemplated by s30(1) of the same Act.

[c]The same Warrants were defective for the further reasons that:

[i]Details of the pre-sentence detention entitlements were not included.

[ii]Neither Warrant was signed by the Superintendent of the prison.

[iii]There was a query whether the CRN numbers noted in the Warrants could be referred back to a relevant indictment and conviction.

[14]The respondent has submitted:

[a]The pre-sentence detention dates have been correctly calculated.

[b]The statement as to representation in the Warrants:

[i]Is correct.

[ii]So far as the respondent is concerned, the statement may be relied on, it having been signed by the Judge.

[iii]If in [i] and [ii] above there remains any doubt on this issue, then this should be resolved in this case by way of appeal.

[c]The remaining three issues do not constitute defects in the Warrants and, in any event, they do not provide any ground for the issue of a Writ of Habeas Corpus.

[15]I have attached copies of both Warrants to this decision.

Principles for determination of the issues

[16]Section 14 of the Act provides as follows:

14    Determination of applications

(1)If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

(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, a duly constituted court-martial, or an officer exercising summary powers under Part 5 of the Armed Forces Discipline Act 1971; or

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

(3)A Judge must determine an application by—

(a)refusing the application for the issue of the writ; or

(b)issuing the writ ordering the release from detention of the detained person.

(4)All matters relating to the costs of and incidental to an application are in the discretion of the Court and the Court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.

(5)A writ of habeas corpus may be in the form set out in the Schedule.

[17]Significantly, s16(1) of the Act provides:

16    Certain unsuccessful parties may appeal

(1)The provisions of the Judicature Act 1908 relating to appeals to the Court of Appeal against decisions of the High Court in civil cases—

(a)apply with respect to a determination refusing an application for the issue of a writ of habeas corpus; but

(b)do not apply to a final determination that orders the release from detention of a detained person unless the substantive issue is the welfare of a person under the age of 16 years.

[18]      In Manuel v The Superintendent of Hawkes Bay Regional Prison (CA 67/04, 15 June 2004), the Court of Appeal considered the implications of these sections with particular reference to the alternative relief available by way of judicial review. I refer to the following:

[a]At [46] cited from Bennett v Superintendent, Rimutaka Prison

[2002] 1 NZLR 616 at [70]:

… In practice, once a prison superintendent or other official named as respondent produces a committal warrant or other authorisation – as the respondents have done in this case by tendering the documentation of the Bennett reclassification and the Karaitiana segregation directions – it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the particular circumstances. Furthermore, once the unlawfulness of a detention emerges in a judicial review proceeding the Court would invariably provide the necessary remedy. We do not doubt that the Crown would always act in accordance with any declaration made by the Court. But, if necessary, a mandatory order could be made against the Crown official who had custody of the applicant (and possibly against a responsible Minister after an expedited substantive hearing (In re [1994] 1 AC 377). The supposed advantages of habeas corpus are not, therefore, a compelling argument for extending it beyond its traditional role when judicial review is already available. (The same conclusion was reached in a survey of the modern use of habeas corpus in England by Rt. Hon Lord Justice Simon Brown, Habeas Corpus – A new Chapter (2000) Public Law 31.).

[b][47] On the other hand, Parliament must have contemplated a consideration of underlying questions of fact and law only to the extent to which such enquiry is possible within the procedures provided for in the act. The enquiry envisaged must have been one that although conducted in circumstances of urgency would allow an appropriately considered judicial examination that would warrant making an appealable finding against the lawfulness of the detention.

[c][49] 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 involved 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.

The present case

[19]      In the present case, the inquiry regarding the calculation of pre-sentence detention is a matter which is amenable to judicial review. If the applicant is correct, then the inquiry should be done promptly. As it turns out, the applicant has agreed with the respondent’s calculations. All that has to be resolved is a legal interpretation of the effect of s91(5) of the Parole Act 2002. This being the case, I see no reason why this issue cannot be resolved in a summary manner on the basis of the agreed information supplied by the respondent.

[20]      The second issue relating to the issue of representation is a different matter. This inquiry requires an examination of what actually happened during the course of trial and at sentence, and then whether the outcome dictates that the Warrants of Commitment are valid. If they were for some reason patently invalid, then, in my view, the inquiry should proceed by way of application for habeas corpus. That is not the case. The respondent has satisfied me that there are good grounds to conclude that the Warrants are not defective as claimed by the applicant. For this, and other reasons, which I will refer to later, I have considered that this issue is more appropriately dealt with by way of appeal

[21]      So far as the remaining objections to the Warrants are concerned, I am satisfied for the reasons which will also be referred to later, that none of these are such that they invalidate the Warrants.

Issue 1 – calculation of pre-sentence detention

[22]      In this case, the calculation of these dates was not straightforward. The earliest charges for which the applicant was sentenced on 14 July 2004, was laid on 30 August 2000. After that date, he had spent various periods in custody on remand at both Rimutaka Prison and at Porirua Hospital. Also between these dates he spent a period serving sentences of imprisonment imposed on him on 15 June 2001. He was not, however, in custody continuously between 30 August 2000 and 14 July 2004.

[23]      The respondent had filed two affidavits sworn by Mr Murray Frew, the Superintendent of Auckland Prison on 14 October 2004 and 22 October 2004. In these affidavits he set out in some detail the applicant’s sentence and remand history in schedules attached to the affidavits. In the schedule to the second affidavit it was noted that the applicant had been “at Porirua Hospital between 05.02.02 to 15.09.03, pursuant to Order made under Section 115(1) of the Criminal Justice Act 1985 (but still serving sentence of imprisonment between 05.02.02 and 08.01.03)”.

[24]      If the whole of the period which the applicant spent in hospital was taken into account, then it was agreed that the total remand period was 890 days. The respondent had, however, excluded 337 days for the period 05.02.02 to 08.01.03, because during this period the applicant was serving a sentence in respect of other matters. Therefore, the total remand period credited to the applicant was only the difference, namely, 553 days. This period included the period from 9 January 2003 to 15 September 2003, when in hospital.

[25]      The issue is whether the respondent was entitled to exclude the 337 days. The applicant submitted by reference to s91 of the Parole Act 2002 that, even though he may have been subject to a sentence of imprisonment during this period, because he was not, pursuant to s91(5)(a) “serving a sentence of imprisonment in a penal

institution” he was entitled, nevertheless, to have the period of 337 days credited to him.

[26]      Section 91 of the Parole Act 2002 states so far as it is relevant to the present application, as follows:

91 Meaning of pre-sentence detention

(1)Pre-sentence detention is detention of a type described in subsection

(2)  that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—

(a)any charge on which the person was eventually convicted; or

(b)any other charge on which the person was originally arrested; or

(c)      any charge that the person faced at any time between his or her arrest and before conviction.

(2) The types of detention that are pre-sentence detention are detention under an order made under [section 24(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003] and detention on remand pursuant to a court order—

(a)     in a penal institution (or in a police station in accordance with section 13 or section 26 of the Penal Institutions Act 1954):

(b)       in a residence established under section 364 of the Children, Young Persons, and Their Families Act 1989, or detention in police custody under section 238(1)(e) of that Act:

[(c)     in a hospital or secure facility under any of sections 23, 35, 38(2), and 44(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003:]

…

(5)      Detention that would, under subsection (2) or subsection (3), be pre- sentence detention, is not pre-sentence detention for the purposes of subsection (1) if the offender was, during that detention,—

(a)      serving a sentence of imprisonment in a penal institution or on home detention; or

(b)       in the case of an extradition offender, detained in custody under a sentence for an offence imposed under the law of the country from where the offender was extradited under the request for extradition.

[27]Stated in a little more detail, the applicant’s argument came down to this:

[a]Section 90 of the Parole Act provides that any period spent by an offender in pre-sentence detention is to be taken into account when calculating various dates which arise after the sentence is imposed. These include in particular the statutory release date and parole eligibility date.

[b]Section 91 defines what constitutes pre-sentence detention. It includes detention under an order made pursuant to s24(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. (“the CP (MIP) Act”).

[c]The applicant had been detained at Porirua Hospital for the period 5 February 2002 until 15 September 2003, pursuant to an order made under the precursor to s24(2), namely, s 115 of the Criminal Justice Act 1985.

[d]For part of that period i.e. 5 February 2002 to 8 January 2003 (337 days) he was also subject to pre-existing sentences of imprisonment.

[e]The respondent submitted that this period did not therefore qualify as pre-sentence detention because s91(5) provides that what would otherwise be pre-sentence detention is not pre-sentence detention if during that period of detention the offender is:

“(a) serving a sentence of imprisonment in a penal institution-”

[f]The applicant submitted that, because he was spending the 337 day period in question in Porirua Hospital, which is not a penal institution as defined in s2 of the Penal Institutions Act 1954, then, on a literal reading of s91(5) the period of 337 days could not be excluded from the pre-sentenced period to which he was entitled.

Discussion

[28]      Subsection 91(5) specifically excludes from the definition of pre-sentence detention instances of what would otherwise by pre-sentence detention under subss

(2)   and (3). These include instances where the pre-sentence detention is in a hospital i.e.

[a]pursuant to and under s24(2) of the CP (MIP) Act 2003;

[b]under any of the clauses (c), (d), (c) and (f) of s91(2).

[29]      If the applicant’s view was correct it would mean that, in each of these cases, the period of detention would qualify as pre-sentence detention even though the offender was also subject during all or part of the same period to a pre-existing sentence of imprisonment in a penal institution. In other words, during any overlapping period the offender would in effect be securing two sentences i.e. that already imposed, and that to be imposed afterwards.

Conclusion

[30]Such a result is, in my view, patently incorrect for the following reasons:

[a]As submitted by the respondent, a result which produces in effect a double credit to an offender for no logical reason could not have been intended by the legislature.

[b]It renders the specific exception in s91(5) to detention under ss(2) largely nugatory. Quite apart from the specific references to detention in a hospital in ss91(2) which I have referred to, the only types of detention which would not qualify for a pre-sentence detention are:

[i]detention on remand (s91(2));

[ii]detention at a police station (s91(2)(a));

[iii]and possibly in respect of children and young persons (s91(2)(b)).

[c]Had this been the intention I fail to see why the exception in s91(5) would not have been stated more explicitly.

[d]So far as the specific case is concerned, whence s24(2) of the CP (MIP) Act 2003 applied the issue is put beyond any doubt by reference to s28(1) of this Act, which states:

28        Effect of orders under section 24 on prison sentences

(1) When a sentence of imprisonment is imposed on an offender who is, or subsequently becomes, subject to an order of detention under section 24, the sentence runs during the currency of the order and any period during which the offender is a patient or care recipient.

[31]For the above reasons, I find that, in s91(5)(a) the words:

“serving a sentence of imprisonment in a penal institution”

do not refer to the place where the offender is being held physically in accordance with any of the definitions of pre-sentence detention. Rather, they refer to a sentence of imprisonment in a penal institution which is in force during any period of pre- sentence detention defined in s91(2).

[32]      It follows from this conclusion that the applicant was subject to a sentence of imprisonment in a penal institution previously imposed during the period of 337 days between 5 February 2002 until 8 January 2003, when he was also subject to an order under s115 of the Criminal Justice Act 1985 (now s24(2) of the CP (MIP) Act 2003). Accordingly, that period was rightly excluded when calculating the total pre- sentence detention period of 553 days.

[33]      On 14 July 2004, the applicant was sentenced to an effective sentence of 7 years i.e. 2556 days. Pursuant to s84 of the Parole Act, he first became eligible for parole after one-third of this period i.e. 852 days. With the credit of 553 days pre-

sentence detention that point will not be reached for a further 299 days after 14 July 2004, which I calculate to be 9 May 2005.

[34]      To the extent that the present application is based on an alleged miscalculation of the pre-sentence detention time, I find that the respondent has proved that the applicant’s present detention in Paremoremo Prison is lawful.

Issue 2 - Applicant’s representation at trial and sentence

[35]      The applicant has submitted that, the effective sentence of 7 years imposed on him on 14 July 2004, contravened the requirements of s30 of the Sentencing Act 1001. This section provides:

30 No sentence of imprisonment to be imposed without opportunity for legal representation

(1)No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).

(2)Subsection (1) does not apply if the court is satisfied that the offender—

(a)was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and

(b)fully understood those rights; and

(c)had the opportunity to exercise those rights; and

(d)refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.

(3)If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—

(a)quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or

(b)quash the conviction and direct a new hearing or trial, or make any other order that justice requires.

(4)For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation if the offender—

(a)refuses or fails to apply for legal aid under the Legal Services Act 2000 or applies for it unsuccessfully; and

(b)refuses or fails to engage counsel by other means.

[36]      The applicant has submitted that, at the stage of the proceedings at which he was at risk by conviction (namely, his trial), he was not legally represented.

[37]This issue was referred to in some detail by Judge Tuohy in:

[a]a ruling No. 12 dated 4 May 2004;

[b]his sentencing notes dated 14 July 2004.

[38]The Judge’s ruling No. 12 stated:

[1]        At 2.25 today, the first day of the trial proper Mr Yeoman as amicus indicated to the Court that Mr Greer had reconsidered his decision to dismiss his assigned counsel, Mr Paino and now wished Mr Paino in the trial henceforth. At that point I adjourned so that Mr Yeoman could ascertain whether Mr Paino was willing and able to act as Mr Greer’s counsel at the trial. Mr Yeoman has spoken to Mr Paino and Mr Paino has since taken on other obligations and would not be free to undertake this trial until Tuesday next, that is a week from now.

[2]        We are at the point where the trial has commenced, the jury has been empanelled, an opening has been given and one of the major witnesses has given evidence. We are at the point where the complainant Jaimee is about to give evidence.

[3]        I have considered whether or not any adjournment of the trial should be permitted; I have decided that it should not be. The reasons are as follows: First, Mr Greer was assigned counsel, Mr Paino. Mr Paino represented Mr Greer at pre-trial hearings last week with his usual determination and ability. Nevertheless, on Friday, with trial due to start on Monday, Mr Greer dismissed Mr Paino as his counsel and indicated that he wished to represent himself at the trial henceforth. At that time I strongly advised Mr Greer not to take that course, but rather to continue with Mr Paino as his counsel. That was obviously the appropriate course of action in the circumstances. Having receiving that advice from me, and I think having

receiving similar advice from Mr Yeoman as amicus, Mr Greer nevertheless chose to continue without counsel.

[4]        I also am aware of the fact that Mr Greer is now on trial on these charges for the third time and the complainants are about to give evidence for the third time. These are child complainants in a sexual abuse case who are in one case a natural child and the other, a step-child of Mr Greer. The first trial was aborted after Mr Greer dismissed his counsel mid-way through and as I understand it there was no-one left to cross-examine a child complainant. Because of s23F of the Evidence Act Mr Greer was not permitted to cross-examine himself. Therefore, the Judge at that time aborted the trial.

[5]        I also record that this morning at Mr Greer’s request I permitted Ms Gloria Larken to act as his McKenzie friend. In addition, Mr Yeoman is here as amicus and I noted after Mr Greer’s failure to cross-examine Ms Franklin other than perfunctorily, Mr Yeoman asked some relevant questions of Ms Franklin.

[6]        In my view Mr Greer has had ample opportunity for legal representation and has, by his own decision, declined that opportunity. I am not willing to adjourn this trial at this point for him now to try to obtain the legal representation which he has rejected previously. In my view, that would be a great injustice to the complainants and would not generally be in the interests of justice. Therefore, the trial will proceed.

[39]The relevant references in the sentencing notes are:

[36]      Finally I want to say something about Mr Greer’s representation both at trial and at sentence. Mr Greer had counsel appointed for the trial, Mr Paino. Mr Paino appeared for him during most of the pre-trial hearing, but was dismissed almost immediately prior to the trial commencing. Mr Greer decided that he wished to represent himself.

[37]      Partway through the trial, he indicated a desire to re-employ Mr Paino. I investigated that. It was not possible, and I made a ruling at that time that the trial would proceed, and it did.

[38]      Mr Yeoman meanwhile had throughout been acting as Amicus Curiae, appointed by the Court. The way in which Mr Yeoman undertook his duties was as far as he was able to, to act as a representative of Mr Greer. He advised Mr Greer from time to time during the course of the trial. He questioned the complainants on behalf of Mr Greer, in accordance with instructions given by Mr Greer. In other words, he provided representation to Mr Greer really as far as he was permitted to do.

[39]      After conviction I took steps through the registrar and Mr Yeoman, to ensure that Mr Greer had the opportunity of once more having counsel appointed as his counsel to represent him on sentencing. Mr Yeoman advised initially in a letter of 2 June that Mr Greer did not want counsel, but then at my request went back to Mr Greer, and has advised the Court that on Mr Greer’s instructions, he wrote to three experienced barristers, but none of

them were prepared to accept appointment on the conditions which Mr Greer had imposed.

[40]      Mr Yeoman himself sought at about that point, to resign as Amicus Curiae after Mr Greer had apparently abused him, but at my specific request stayed on as Amicus Curia, filed written submissions relating to sentence, both relative to preventive detention and relative to length of sentence, and did his best under the most trying circumstances to assist Mr Greer.

[41]      I want to say that Mr Yeoman throughout showed the highest standards of professionalism and he assisted the Court, and as far as he was allowed to, he assisted Mr Greer with skill and patience, and I want to commend him on that, and that is all I wish to say.

[42]      Mr Greer can have his application and papers returned to him in the cells, as he wished.

[43]      I direct that my sentence is immediately typed. I will sign it and the sentencing notes, and make it available to Mr Greer.

[40]      The Crown submitted that, if there was an issue to be determined in relation to s31, then this should be the subject of an appeal rather than by the present application.

[41]      I have already indicated that I consider this issue is more appropriately dealt with by way of appeal. Manuel v The Superintendent of Hawkes Bay Regional Prison (supra) referred in detail to whether an issue relating to detention was more appropriately dealt with by an application for habeas corpus or judicial review. If an issue which is dependent on an examination of matters prior to the issue of a Warrant of Commitment can be more satisfactorily resolved by using the procedures involved in judicial review, then that course should be followed. Additional factors in favour of this course are:

[a]The Court has a wider discretion as to an appropriate order compared to habeas corpus where the only outcomes are dismissal or granting of an order.

[b]The unsuccessful respondent has no right of appeal against an order for habeas corpus.

[42]      So far as I can see, the factors which militate in favour of judicial review are equally applicable to an appeal where this is available. One factor which is different is that the procedures involved in an appeal are less amenable to a prompt resolution of an issue than are those which are available with both habeas corpus and judicial review.

[43]      In the present case, the applicant, under this head seeks, to obtain his release on the ground that the two Warrants contain incorrect statements regarding compliance with s30(1) of the Sentencing Act 2002 in regard to his legal representation at the stage of the proceedings at which he was at risk of conviction.

[44]      I have set out in some detail the relevant records by Judge Tuohy relating to the issue of representation.

[45]      It is quite clear to me that the applicant has in the past, and as he endeavoured to do before me, sought to obtain advantages for himself by manipulating the Court process by his attitude to the engagement of counsel. His attitude to this Court was such that I was caused to comment to him that the conduct of trials be they criminal or civil, was based on an adversarial engagement between the parties subject to the direction and determination of the Court. He had, however, sought to pervert this process by creating an adversarial contest between himself and the Court.

[46]      It is, similarly, clear from Judge Tuohy’s notes that this is precisely what he did in the course of his trial. This, after having successfully caused the Judge in the first of three trials to abort same after he had dismissed his counsel. The same ploy was adopted before Judge Tuohy, who responded by appointing an amicus, as did I, in this application. In addition, before Judge Tuohy the applicant sought to have the Judge removed for bias.

[47]      It is against this background of deliberate manipulation of Court procedures that the issue of representation has to be considered. In my view, Judge Tuohy appears to have done all that was possible to ensure that the issue of representation was addressed bearing in mind his duties as a Judge not only to the applicant but also

equally importantly to a Crown complainant, who had apparently been required to attend for three trials.

[48]      For these reasons I have no doubt that it would be quite wrong to grant a Writ of Habeas Corpus on this ground.

[49]      If the applicant wishes to pursue this matter he must appeal. He indicated he was endeavouring to do so. He had not sought counsel for this purpose because he was not satisfied he would obtain competent legal assistance. That is for him to decide. The state provides the possibility for a grant of legal aid if he meets the criteria involved.

[50]      I have concluded that, if the applicant wishes to contest whether or not the statements as to representation in the Warrants are correct or not, then this should be by way of appeal as is anticipated by ss30(3). In summary, my reasons are:

[a]As stated above, s30(3) specifically refers to an appeal.

[b]Contrary to the applicant’s submission, I am satisfied that on the information which is available, there is, at the very least, a strong argument for the respondent to argue that s30 was not breached and accordingly, the Judge was entitled to sign the Warrants as he did.

[c]Having come to this conclusion, I am satisfied that any delay in having an appeal heard is not a factor which justifies dealing with the issue now. The background to the applicant’s claim under this head makes it quite clear to me that the circumstances regarding the representation issue require the more formal and detailed examination which would be available on an appeal.

[d]So far as the respondent is concerned, the Superintendent of Auckland Prison has been presented with two Warrants signed by a Judge. At this point, so far as this ground is concerned, these Warrants are valid.

Result

[51]      The applicant’s ground for release based on alleged incorrect statements in the Warrants for Commitment, is dismissed.

Issue 3 - The remaining grounds of objection to the Warrants

[52]      The remaining grounds relate to alleged defects in the contents of the two Warrants. Section 91 of the Sentencing Act provides 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.

(4)   A warrant issued under this section must include a statement as to whether the offender is a person to whom section 97 applies.

(5)   If section 97 applies to the offender, the warrant must state whether leave under that section has been granted.

(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.

[53] The form of a Warrant of Commitment is prescribed by reg 5 of the Sentencing Regulations 2002 which states:

The forms in the Schedule, or forms to like effect, may be used, with or without additional information required for identification or other official purposes included, and with any variations that the circumstances may require, in connection with proceedings under the Act.

[54]      The first two objections relate to the non-completion of the period spent on remand and the absence of the Superintendent’s signature.

[55]      The Warrants in question do conform with the prescribed form No. 6 in the Schedule to the Regulations. In addition, however, there is the addition of a further section headed “Period spent on remand”. This section is not required by the Regulations, nor is it a matter to be attested by the sentencing Judge. I find, therefore, that the non-completion of this section by the Superintendent of the prison has no bearing on the validity of the Warrant, which appears in the prescribed form above the Judge’s signature.

[56]      The final objection is in the form of a query as to whether the CRN numbers shown in the Warrants can be related back to the relevant indictment and convictions.

[57]      In my view, this is not a matter of any consequence. The Judge has signed a Warrant relating to convictions entered on the basis of findings in relation to an indictment containing specific charges heard at trial before him. It is the indictment which provides the basis for convictions. To my mind, any reference to CRN numbers is irrelevant following committal for trial. At that point, the formulation of charges falls to be determined by the Crown Solicitor. In some cases, original charges will not proceed. In other cases, they will be included within one representative charge. In other cases, entirely new charges will be laid if there is evidence in the depositions to justify this course.

[58]      The net position so far as this ground is concerned is that the Superintendent of the prison is presented with a Warrant in the prescribed form, recording specific convictions, entered on a specific date, in a specific Court, and verified by the

presiding Judge. Whether or not these convictions can be referred back to an irrelevant matter, namely, the originating CRN number is in turn an irrelevancy so far as the validity of the Warrant is concerned.

Result

[59]      For the foregoing reasons, the remaining objections to the Warrants in this case are also dismissed.

Final outcome

[60]The applicant’s application for a Warrant of Habeas Corpus is dismissed.

Addendum

[61]      This decision was completed by me in draft form in the period after the hearing on 21 December 2004. It was typed on 27 January 2005 when my Associate and I returned to the Court. On the same day, I found waiting for me a letter from the applicant dated 20 January 2005.

[62]      Having read the letter, and to the extent that I am able to understand it, I note the following matters:

[a]The draft decision has not been changed apart from minor editing changes.

[b]I have directed that the letter be placed on the Court file, and a copy referred to the Solicitor-General for him to consider what action, if any, should be taken in relation to what I perceive to be threats to myself contained in pp (4) and (5).