Hindman v Chief Executive of the Department of Corrections

[2013] NZHC 6

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000092 [2013] NZHC 6

UNDER  the Habeas Corpus Act 2001

BETWEEN  MICHAEL JOHN HINDMAN Applicant

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing:         14 January 2013

Appearances: M J Hindman (Self-represented Applicant) in Person

A R Longdill for the Defendant

Judgment:      14 January 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 14 January 2013 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     Meredith  Connell  P  O  Box  2213  Auckland  1140  (DX  CP24063)  for  the

Defendant

Copy To:     M  J  Hindman  Mt  Eden  Correctional  Facility  (MECF)  Private  Bag  92625

Symonds Street Auckland 1150 (Self-represented Applicant)

HINDMAN v DEPARTMENT OF CORRECTIONS HC AK CIV-2013-404-000092 [14 January 2013]

[1]      In May 2000, the applicant, Michael John Hindman, was sentenced to a term of life imprisonment for murder.  He was released on life parole on 9 May 2011.  On

24 December 2012, the Panel Convenor of the New Zealand Parole Board, the Hon. M A Frater, made an interim recall order under s 62(1) of the Parole Act 2002 on the ground that Mr Hindman posed an undue risk to the safety of the community or any person or class of persons.   She then issued a warrant to arrest and detain Mr Hindman under s 63(1).

[2]      Mr Hindman has applied for a writ of habeas corpus.   He asserts that the evidence on which the interim order was made, contained in the affirmation of Matthew Kean, was incorrect in material respects and did not justify the conclusion that he was an undue risk to the safety of the community.  Mr Hindman did not file an affidavit in support of his application.

[3]      In general, it is not for this Court, in determining an application for habeas corpus, to go behind any apparently valid warrant which forms the basis for the applicant’s detention.  The position was explained by the Court of Appeal in Manuel v Superintendent of Hawkes Bay Regional Prison:[1]

[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 involve 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.

[1] Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161

[4]      A copy of the warrant signed and the interim recall order were both produced. It is evident that the Panel Convenor had turned her mind to the specific concerns

raised by Mr Kean, namely the lack of any suitable residence for Mr Hindman and has failure to attend scheduled appointments for drug and alcohol counselling.

[5]      In the usual course, there would be no justification for going behind the warrant and considering a challenge to the factual assertions made by Mr Kean in support of the application for the interim recall order.  However, Mr Hindman, who appeared in person, relied on Harrison J’s decision in Kurariki v Singh[2]in which Harrison  J  was  prepared  to  go  behind  the  apparently  valid  decision  of  the Parole Board and the apparently lawful warrant to arrest Mr Kurariki.   The Judge

regarded the Panel Convenor’s decision as properly susceptible to fair and summary determination, particularly given that it had acted ex parte.  As a result, the Judge was prepared to consider the factual basis for the decision, ultimately disagreeing with the Panel Convenor’s decision that there was a basis on which to conclude that Mr Kurariki posed a risk to the safety of the community.

[2] Kurariki v Singh HC Auckland CIV 2008-404-4873, 4 August 2008

[6]      Mr Hindman submitted that his case was very similar to that of Mr Kurariki. However, I respectfully decline to follow the course taken by Harrison J.  There does not appear to me to be any basis for viewing Mr Hindman’s position as falling into the category of rare cases that would justify an enquiry an apparently valid decision to issue an interim recall order and warrant.  There is no suggestion that the authority to make such an order and issue the warrant did not exist.   There was affidavit evidence  provided  to  the  Panel  Convenor which,  on  its  face,  would  justify the decision.

[7]      I note, in any event, that, even if I had been prepared to go behind the Panel Convenor’s  decision,  there  was  no  evidence  to  support  Mr  Hindman’s assertion that the evidence contained in Mr Kean’s affirmation was incorrect.

[8]      I note that Mr Hindman has a final recall hearing scheduled for this coming Friday, 18 January 2013.  That will be the appropriate forum in which to raise the matters that he has sought to canvass in this application.

[9]      The application is dismissed.

Courtney J