Harris v The New Zealand Police HC Whangarei M34/O1

[2001] NZHC 595

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY M34/O1

IN THE MATTER of an application to issue a Writ of Habeas Corpus address subjiciendum

AND

IN THE MATTER of ROBERT JOHN HARRIS in the custody of the New Zealand Police at Whangarei

BETWEEN ROBERT JOHN HARRIS of Whananaki North Road, R.D.1, Hikurangi
Applicant

AND THE NEW ZEALAND POLICE
First Respondent

AND NORTH SHORE DISTRICT PRISON BOARD
Second Respondent

Hearing: 2 July 2001

Counsel: L B Cordwell for Applicant
Mr M Smith for Respondents

Judgment: 3 July 2001

ORAL JUDGMENT OF LAURENSON J.

Solicitors: Webb Ross Johnson, DX AP2450G, Whangarei
Crown Solicitor, Whangarei

9.25a.m.

[1] This is an application for a Writ of Habeas Corpus Ad Subjiciendum pursuant to s 6 of the Habeas Corpus Act 2001 (the Act), which arises in the context of an executed warrant to arrest following an application to recall the applicant pursuant to ss 107I and 107J of the Criminal Justice Act 1985.

[2] Section 5 of the Habeas Corpus Act states in sub-secs 5(a) and (b) that the purposes of the Act include:

“(a) to reaffirm the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty:

(b) to make better provision for restoring the liberty of persons unlawfully detained by establishing an effective procedure for applications to the High Court for the issue of a writ of habeas corpus, and the expeditious determination of those applications;”

[3] Section 14 refers to the determination of applications. Sub-sections (1), (2) and (3) are particularly relevant in this case:

“14(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.”

Given the unqualified statement of this onus in relation to the remedy regarded as the most fundamental safeguard in our law for the protection of a citizen’s liberty, I conclude this onus must be satisfied to the level of being beyond reasonable doubt.

“14(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 correct 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 V of the Armed Forces Discipline Act 1971; or

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

This section confirms the common law principle that the write may not be used as a means of obtaining a further appeal against conviction, particularly when appeal rights have not been exhausted. Similarly if a court of competent jurisdiction has ruled as to bail, neither may that be called into question. This is particularly important in this case because the principal argument raised by the applicant is that courts of competent jurisdiction have both ruled, in relation to alleged offences by the applicant, that he was entitled to bail. In my view this sub-section is directed to the situation where a ruling has already been made that the applicant should not be granted bail and, as a result, he or she is in prison. For reasons which I will refer to later, I do not consider a ruling granting bail comes within this sub-section unless the granting of the writ has the effect of calling the earlier ruling into question.

“14(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] Bearing these statutory provisions in mind I now turn to the facts of this case. Stated in chronological order these were:

[a] On 13 March 1997 the applicant was sentenced to six and a half years’ imprisonment on drug-related charges;

[b] On 29 September 1999 he was released from prison on parole;

[c] On 19 September 2000 he was arrested again on drug-related charges;

[d] Bail was originally declined;

[e] On 17 October 2000 the Court of Appeal allowed bail;

[f] On 31 January 2001 the applicant was again arrested on drug-related matters;

[g] Bail was declined in the District Court;

[h] On 6 April 2001 Nicholson J. granted bail following an appeal;

[i] On 18 April 2001 the accused was arrested again, this time on a charge of disorderly behaviour;

[j] On 23 April 2001 bail was granted in respect of this charge by His Honour District Court Judge Tompkins;

[k] On 18 June 2001 an application for recall was made pursuant to s 107I of the Criminal Justice Act 1985;

[l] On 21 June 2001 an interim order for recall was made pursuant to s 107J of the Criminal Justice Act 1985;

[m] On 28 June 2001 the applicant was arrested pursuant to that warrant;

[n] The same day he applied for a writ of habeas corpus.

[5] At this point it is necessary to consider the statutory provisions dealing with the matter of recall of convicted persons following their release on parole. Section 107I(3) of the Criminal Justice Act 1985 states:

“Subject to subsection (6) of this section, where an offender subject to a determinate sentence is released under this Part of this Act, a probation officer may, at any time not later than 3 months before the sentence expiry date, apply to the Parole Board or a District Prisons Board, as the case may be, for an order that the offender be recalled to a penal institution to continue serving his or her sentence.”

[6] In this case the applicant is subject to the determinate sentence of six years and six months imposed on 13 March 1997. The application has been made to a District Prisons Board by a probation officer well within the time limit of three months before the sentence expiry date. This sub-section is subject to sub-section (6) which states:

“An application may be made under this section where the applicant believes on reasonable grounds that -

(a) The offender has breached the conditions of his or her release; or

(b) The offender has committed an offence . . .”

The remaining four sub-sections are not relevant to this application.

[7] Sub-section 107I(7) states:

“An application made under this section shall specify the grounds in subsection (6) of this section on which the applicant relies and the reasons for believing that the grounds apply.”

The application to the Prisons Board was stated to be based on the probation officer’s belief on reasonable grounds that “the offender has committed an offence. (Section 107I(6)(b)”

[8] The application also included an application for an interim order for recall pursuant to s 107J. Sub-section (2) states:

“Where an application is made under paragraph (a) or paragraph (b) or paragraph (c) of section 107I(6) of this Act, the Chairperson of the appropriate Board shall, on behalf of the Board, make an interim order for the recall of the offender where -

(a) . . .

(b) The Chairperson believes on reasonable grounds that -

(i) The offender poses an immediate risk to the safety of the public or of any person or any class of persons; . . .”

[9] The Prisons Board was, therefore, presented with an application for recall under s 107I(6)(b). Because the application was made under this sub-section the Chairperson of the Board was required in this case to make the interim order under s 107J if he believed on reasonable grounds that the offender posed an immediate risk to the safety of the public or of any person or any class of persons. The probation officer making this application had stated in the application this was her belief and she supported that belief in her supporting affidavit. Presented with this, the warrant issued by the Chairperson pursuant to s 107J(3) specifically recites that it was made on the Board Chairperson’s belief “on reasonable grounds that

(i) the offender poses an immediate risk to the safety of the public or of any person or class of persons.”

[9] Thus, on the face of it all necessary steps had been observed prior to the issue of the warrant on 18 June 2001 which had, in turn, led to the arrest and detention of the applicant on 28 June 2001.

[10] The applicant submits, however, that this is not the end of the matter because, in the particular circumstances of this case, there were no reasonable grounds for the probation officer to form this belief and hence nor is there a sufficient basis for the Chairperson of the Prisons Board to do so as well. This being the case the applicant’s present detention is flawed and hence, the defendants have failed, pursuant to s 41, to establish the applicant’s detention is lawful. Accordingly a writ should, in the submission of the applicant, issue.

[11] The applicant submits the probation officer had no reasonable grounds to form the belief she did because the same issue had already been addressed by His Honour, Nicholson J. when he ruled, on appeal, on 6 April 2001, the applicant was entitled to bail following his re-arrest on 31 January 2001; as did Judge Tompkins on 23 April 2001 following the arrest for disorderly behaviour on 18 April 2001.

[12] So far as the present application is concerned the applicant argued that if this Court was to accept as valid the detention pursuant to the warrant under s 107I, then this would necessarily call into question the rulings as to bail by two courts of competent jurisdiction. According to s 14(2) this Court may not do so.

[13] As I have already indicated, I have concluded this argument must fail. I can accept that a ruling refusing bail by a competent court, exercising its discretion as to bail, must prevent the issue of a writ for habeas corpus because such a ruling provides a complete justification for any detention based on that ruling.

[14] I do not, however, agree that the reverse situation necessarily applies, namely where, as in this case, the writ is sought in relation to a detention following an application for recall under ss 107I and J. My reasons are:

[a] It is clear from the probation officer’s affidavit that she relied on the alleged offending for which the defendant was arrested on 19 September 2000, 31 January 2001 and 18 April 2001 as the basis for her belief in relation to s 107I(6)(b), that the offender had committed an offence which, in turn, provided the basis for the Prisons Board Chairperson’s belief pursuant to s 107J(2)(b) that the applicant poses an immediate risk to the safety of the public or of any person or of any class of person.

[b] It is equally clear that in respect of each of those arrests the applicant was subsequently allowed bail.

[c] It is, however, still open to this Court to ignore those rulings as to bail if, in so doing, this does not call into question those rulings.

[d] In my view, in this case, those rulings may be ignored because the issues addressed by the competent courts which made those rulings, are quite different from the issues which fell to be considered ultimately by the Chairperson of the Prisons Board when he came to consider whether the applicant should be arrested and detained pending determination of the probation officer’s application for recall.

[e] When considering the appeal against refusal of bail on 6 April 2001, Nicholson J. was considering this in the context of the Bail Act 2000. The criteria to be applied are set out in ss 7, 8 and 9 of that Act. Those criteria are applied in relation to persons who have been arrested and are awaiting trial, but who are deemed to be innocent pending trial.

[f] The issue faced by the District Prisons Board was, and is, quite different. Section 107L of the Criminal Justice Act 1985 refers to the determination of applications for recall. The following sub-sections are relevant:

[i] s 107L(2). This states:

“(2) The Board may order the recall of an offender if it is satisfied, on the balance of probabilities, that one or more of the grounds in section 107I (6) of this Act have been established.”

[ii] s 107L(3)

“Without limiting the matters that the Board may consider in determining the application, the Board shall consider the need to protect the public or any person or class of persons from the offender.”

[iii] s 107L(4)

“An order for the recall of an offender may be made under this section whether or not the offender is in custody relating to a charge, and whether or not the offender is alleged to have -

(a) Breached any of the conditions of his or her release; or

(b) Committed any offence.”

[iv] s 107L(5)

“On an application under this section, the Board may receive any evidence that it thinks fit, whether or not the evidence would otherwise be admissible in a court of law.”

[16] In my view the fundamental difference between the issues arising in relation to a bail application in respect of a particular offence, and an application to recall based on the same alleged offending, is that in the first case that offending must still be proved in relation to a person deemed to be innocent. In the second case, the issue of detention is to be considered in the context of a continuing punishment for an offence already committed and in respect of which the offender is still subject to the original sentence.

[17] In this case Nicholson J. had specifically referred to the issues of likelihood of continuing offending (Bail Act s 8(1)(c); and possible interference with witnesses (s 8(1)(b), and had determined that he was “satisfied that the proposals as to conditions of bail would alleviate the likelihood of any further offending or interference with witnesses”. Accordingly, and because he was concerned with the aspect of length of custody before trial, bail was allowed.

[18] In the light of this ruling the applicant submitted in this case, that Nicholson J. had effectively addressed the issue whether the applicant “poses an immediate risk to the safety of the public, or of any person or of any class of persons”.

[19] In my view he did not. His Honour simply determined, in relation to one instance of alleged offending, that the applicant was entitled to bail in accordance with the criteria specified in the Bail Act.

[20] The issue to be determined by the District Prisons Board at the point when the warrant for recall was issued on 18 June 2001, was quite different. Faced with the fact the applicant was alleged to have committed two further instances of serious drug offending, including, on the second occasion, a charge of being unlawfully in possession of a firearm, it had to determine whether there were reasonable grounds for the belief specified in s 107J(2)(b). Under s 107L(3) it has a mandatory obligation to consider the need to protect the public or any person or class of persons from the offender. Proof of guilt of offending in particular instances is not a requirement.

[21] Whether or not the allegations against the applicant do provide a sufficient basis for his recall under the original sentence on 13 March 1997 remains to be seen. That will be determined in due course at a hearing before the Board when the applicant is entitled to be present and represented by counsel.

[22] In the meantime the Board has concluded, after reviewing the situation which goes much beyond that considered by Nicholson J., has decided that its powers under ss 107I and 107J be invoked.

[23] I therefore concluded that the Board has, in terms of s 14(1) of the Habeas Corpus Act 2001 established that the detention pursuant to warrant issued on 18 June 2001 is lawful.

[24] It follows that the arrest and detention by the police pursuant to that warrant, prior to the applicant’s return to prison, have also been established as being lawful.

[25] Furthermore the issue of that warrant does not call into question the previous rulings as to bail by the two courts of competent jurisdiction.

[26] Accordingly the application for the issue of the writ is dismissed.

[27] At the point when this application was heard there was some doubt whether the Prison Board had been served with the necessary papers. Crown counsel involved in this case was able to obtain instructions from the police and make enquiries from the Prison Board.

[28] Applications for writs of habeas corpus must, pursuant to s 9 of the Act, be accorded precedence and dealt with as a matter of priority and urgency. In the light of those dictates I wish to record that I am satisfied all the necessary documentary material was placed before me to enable a proper consideration of this application.

[29] I also note it was not clear whether the applicant had yet been served with the documentation required to be served on him pursuant to s 107J(4). This states:

“Where an order is made under this section and a warrant is issued, the offender shall on, or as soon as practicable after, being taken into custody be given -

(a) A copy of the application made under s 107I of this Act; and

(b) A notice -

(i) Specifying the date on which the application is to be determined, being a date not earlier than 14 days, nor later than 1 month, after the date on which the offender is taken into custody pursuant to this section; and

(ii) Advising the offender that he or she is entitled to be heard and to state his or her case in person or by counsel; and

(iii) Requiring the offender to notify the Board, not later than 7 days before the date on which the application is to be determined, whether he or she wishes to make written submissions or to appear in person or be represented by counsel.”

[30] I am informed, and accept, that following the apprehension of the applicant on 28 June 2001 those documents can now be completed as to the hearing date of the application for recall and accordingly they have, at the time I am delivering this decision, been, or will be, served as a matter of urgency.

[31] As to costs, s 14(4) of the Act states:

“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.”

[32] This is, to my understanding, the first application which has been made under the new Act. I have also referred to the difficulties defendants’ counsel has had in obtaining instructions. No submissions were made in relation to costs when Mr Cordwell was present during the hearing of the application yesterday. In the circumstances I reserve the question of costs on the following basis:

[a] If either party seeks costs then that party is to file and serve a memorandum by 5pm on 17 July 2001;

[b] The opposing party shall be entitled to reply by filing and serving a memorandum by 5pm on 31 July 2001