Greer v The Prison Manager at Rimutaka Prison HC WN CIV-2008-485-1554
[2008] NZHC 2418
•24 July 2008
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2008-485-1554
UNDER THE HABEAS CORPUS ACT 2001
IN THE MATTER OF APPLICATION FOR WRIT OF HABEAS CORPUS
BETWEEN ALAN IVO GREER Applicant
ANDTHE PRISON MANAGER AT RIMUTAKA PRISON
First Respondent
ANDRIMUTAKA PRISON OFFICER, MSC SKIP WOLEDGE
Second Respondent
ANDTHE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Third Respondent
ANDTHE ATTORNEY-GENERAL Fourth Respondent
Hearing: 22 July 2008
Counsel: Applicant in person
C Griffin for Third Respondent
Judgment: 24 July 2008
JUDGMENT OF GENDALL J
[1] This is an application for Writ of Habeas Corpus. Mr Greer is currently an inmate at Rimutaka Prison serving a sentence of seven years’ imprisonment on three charges of unlawful sexual connection of a female under the age of 12. That sentence was imposed on 14 July 2004. He says his detention is unlawful. In
addition he says that it has become unlawful because of the failure by the
GREER V THE PRISON MANAGER AT RIMUTAKA PRISON AND ORS HC WN CIV-2008-485-1554 24
July 2008
Department of Corrections and prison managers to adhere to proper standards and to afford to him essential rights (set out in para [11] below).
[2] The Habeas Corpus Act 2001 legislated for the historical and constitutional
Writ of Habeas Corpus. Its purposes are set out in s 5. It is said that the Writ is:
A vital means of safeguarding individual liberty.
[3] It was aimed at making better provision for restoring liberty to persons unlawfully detained through an effective procedure to have applications dealt expeditiously by the High Court, with rights of appeal to the Court of Appeal. It abolished the historical writs of Habeas Corpus other than the writ of Habeas Corpus ad subjiciendum.
[4] The aim of the Writ is to order release from detention of a detained person if the detention is unlawful. A defendant must establish that a detention of a detained person is lawful. If the defendant fails to do so, the High Court must grant as a matter of right a Writ of Habeas Corpus ordering the release of the detained person from that detention (s 14).
[5] The Judge is required to inquire into matters of fact and law claimed to justify the detention and is not confined in that inquiry to the correction of jurisdictional errors. But a Judge is not entitled to call into question a conviction of an offence by a Court of competent jurisdiction, or a ruling as to bail by such a Court (s 14(2)).
[6] The application has to be determined by the Judge either refusing the application for the issue of the Writ or the issue of such a Writ. Subject to rights of appeal, the Court’s determination of the application is final.
[7] Section 15(1) provides that the determination of an application is final:
… and no further application can be made by any person either to the same or to a different Judge on grounds requiring a re-examination by the Court of substantially the same questions as those considered by the Court, when the earlier application was refused.
[8] At the conclusion of the hearing I dismissed the application advising
Mr Greer that it was hopelessly misguided and had to fail.
[9] The Third Respondent sought an order for costs against Mr Greer. Although I declined to make such an order, I warned Mr Greer that if he continued to bring applications for Writ of Habeas Corpus which fell within the provisions of s 15(1) which were entirely without merit, then he could expect the sanction of costs to be awarded in future.
[10] Mr Greer’s Statement of Claim encompasses 27 pages. It is said to be a claim “for judicial review and public law compensation”. It can proceed in the normal way of civil proceedings of such a nature. It alleges multiple causes of action against the seven respondents, but does not provide any basis or support for the proposition that his detention is unlawful.
[11] In the multiple causes of action, he claims that he has been restricted and denied rights to his property, facilities necessary to prosecute “criminal appeals, criminal prosecutions, civil litigation and international petition”. The seven causes of action allege the prison authorities:
a) Unlawfully dealt with his legal papers;
b) Withheld his personal computer;
c) Comprised unlawful search and seizure;
d)Failed to provide him with access to law library or similar research facilities;
e) Comprised theft or conversion of an “application for computer”
document;
f) Breached his legal privilege;
g) Failed to provide advice requested by him and deprived him of information surrounding his entitlements;
h)Unlawfully imposed further restrictions in the form of a personal management plan;
i) Failed to provide competent independent complaint processes.
[12] In his oral submission Mr Greer contended that those failures have led to him being unlawfully detained and therefore his immediate release under a Writ of Habeas Corpus was required.
[13] It is abundantly clear that Mr Greer is a sentenced prisoner. His conviction and sentence was upheld on appeal by the Court of Appeal (R v G CA 179/06,
20 November 2007), and leave to appeal was refused by the Supreme Court (SC 90/2007 [2008] NZSC 41). Beyond any shadow of a doubt, he is lawfully detained pursuant to the warrant of committal issued by the District Court Judge to the prison Superintendent.
[14] His complaints of treatment, privileges, facilities, or acts or omissions of staff of the Department of Corrections, the subject of his application for judicial review, can be dealt with in the usual way, with affidavit evidence and a proper case management timetable. He has been told on other occasions that the Writ of Habeas Corpus is not available where he challenges the lawfulness or appropriateness of the conditions under which he is detained. The issue is dealt with by the Court of Appeal in Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616.
[15] If an inmate is unlawfully treated whilst detained, his detention is not thereby rendered unlawful, and the remedy is the cessation of the unlawful element, not the cessation of the detention. Mr Greer has been told this on previous occasions when he sought Habeas Corpus because of alleged failures of prison authorities to provide him with adequate facilities; see Greer v Visiting Justices at Paremoremo Prison and Superintendent of Paremoremo Prison (CIV-2006-404-3294, HC AK, 16 June
2006, Rodney Hansen J).
[16] Despite that decision Mr Greer again applied for a Writ of Habeas Corpus in October 2006 because of what he said was a continuing failure by authorities to provide him with the facilities he wanted. Lang J refused to grant the Writ repeating that complaints about the failure of authorities to make facilities available to Mr Greer:
… should not, however, be enforced by means of the Habeas Corpus procedure. That procedure cannot be used to re-litigate matters that have already been considered in the context of an earlier unsuccessful application for the Writ.
See Greer v Parole Board at Auckland Prison & Ors (CIV-2006-404-6234, HC AK,
17 October 2006, Lang J at [15]).
[17] The Court of Appeal dismissed Mr Greer’s appeal from that decision noting that complaints about conditions of his detention did not have “any relevance to the lawfulness or otherwise of his detention”; Greer v Parole Board at Auckland Prison
& Ors (CA 271/06, 21 December 2006 at [4]).
[18] In another unsuccessful appeal by Mr Greer against the refusal by the High
Court to grant the Writ, the Court of Appeal said:
Conditions of detention are more properly dealt with by way of judicial review and Mr Greer is well aware of that.
See Greer v Attorney-General CA 45/08, 19 February 2008 at [20].
[19] But Mr Greer continued to persist. An application for the Writ was declined by Potter J in Greer v Manager of Custodial Service of Auckland Prison (CIV-2008-
404-858, HC AK, 21 February 2008, Potter J). Her Honour observed that the Court of Appeal had reminded Mr Greer that challenges to conditions of detention should be brought by way of judicial review.
[20] Mr Greer is very familiar with Habeas Corpus applications and since July
2004 he appears to have brought 13 separate applications. Three involved a child of his and were within the Family Court jurisdiction, but 10 were to Judges of the High Court. They comprised:
a) 15 October 2004, Auckland High Court before Laurenson J who said that it was “not a procedure that I am going to have trifled with in this Court, in this manner”;
b) 10 February 2005 before Laurenson J - dismissed;
c) 5 October 2005, Auckland High Court before Heath J - dismissed;
d)22 December 2005, Wellington High Court before Ronald Young J - dismissed;
e) 6 January 2006, Wellington High Court before Miller J - dismissed.
The appeal to the Court of Appeal from that decision was dismissed by the Court of Appeal. It stated that Mr Greer was detained pursuant to a valid warrant;
f) 16 June 2006, Auckland High Court before Ronald Hansen J - dismissed;
g) The application for leave to appeal the decision of the Court of Appeal delivered on 18 May 2006 - dismissed by the Supreme Court as being “clearly hopeless”;
h) 17 October 2006, Auckland High Court before Lang J – dismissed.
The appeal to the Court of Appeal from that decision was dismissed on 21 December 2006. The application to the Supreme Court for leave to appeal was dismissed on 7 March 2007 as being “plainly devoid of merit as Mr Greer’s detention is a convicted person detained pursuant to valid warrant of commitment”;
i) 20 November 2007, Auckland High Court before Andrews J –
dismissed. Mr Greer’s appeal to the Court of Appeal was dismissed;
j) 21 February 2008, Auckland High Court before Potter J - dismissed.
[21] Now there is this further application which has been dismissed as totally devoid of merit. Quite frankly it could be categorised as misguided and an abuse of the Court’s process. I doubt however that it is “misguided” given that Mr Greer knows that he cannot use the Habeas Corpus procedure in this way. The application could not possibly succeed. He is detained under a valid warrant on convictions upheld by the Court of Appeal and the Supreme Court.
[22] This has to be brought to a halt.
[23] I have some sympathy with the claim for costs by the Third Respondent. Mr Greer has shown persistence to use the Habeas Corpus procedure to involve the Courts and respondents in considerable time, expense and effort in dealing with those applications as a matter of urgent priority, as they must be. Although it would be rare for costs to be awarded against an applicant in a Habeas Corpus matter, the Court of Appeal commented in Manuel v Superintendent of Hawkes Bay Regional Prisons [2006] 2 NZLR 63 that in exceptional circumstances that might arise and it said:
[35] … if [this] had been a further application and a series of manifestly unmeritorious and vexatious applications, it might be necessary for a Court to protect the integrity of the Writ by some appropriate sanction against repetition of the same abuse.
[24] There has been a relatively recent decision in Lyon v Manager, Hawkes Bay Prison (CIV-2006-404-6680, HC AK, 10 May 2007, Priestley J) where costs of $750 were awarded against an applicant for making a totally unmeritorious application for a Writ in an attempt to obtain bail. The Judge said that use of the ancient and powerful remedy in this way was an abuse and should be discouraged.
[25] Counsel submitted that the time has come when a costs order should be made against Mr Greer by reason of his abuse of the Habeas Corpus procedure. She sought however a nominal order.
[26] But, as I have advised Mr Greer, I determined by the narrowest of margins that an order for costs not be made against him in this case. Manual’s case was regarded by the Court of Appeal to not be sufficiently exceptionable to warrant an
order for costs, but I think Mr Greer has reached a stage where continuation of his applications may fall into the category of “exceptional”. I have warned him that despite my not granting the application for costs by the Third Respondent, if there should be a further hopeless and unmeritorious Habeas Corpus application brought to seek his release from prison through the issue of that Writ, then he could expect a Court to take a very dim view of his abuse of the procedure. He could expect to find the sanction of costs being imposed.
[27] I confirm the dismissal of the application for the Writ. There will be no order for costs on this occasion. Mr Greer may pursue his judicial review proceedings in a proper way. Inevitably there may need to be some amendments and refinements of the documents that he has filed to which the respondents can plead, at the moment, as best they can.
[28] For completeness, I add that Ms Griffin submitted that the only proper defendants are the first and third respondents, and that the second and fourth respondents should be dismissed from the proceedings. That would be a matter for further argument and determination by a Judge in the course of the judicial review procedure. Obviously they were never able to be appropriate, or proper, respondents in an application for a Writ of Habeas Corpus.
“J W Gendall J”
Solicitors:
Crown Law, Wellington
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