Lazarus v Chief Executive of the Department of Corrections

[2023] NZHC 3225

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2649

[2023] NZHC 3225

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

LENIN WAYNE LAZARUS

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS SUPERINTENDENT OF AUCKLAND SOUTH CORRECTIONS FACILITY

Respondent

Hearing:

8 November 2023

Appearances:

Applicant in person (via VMR) with assistance from W Underhill- Ripia

H Reid for Respondent

Judgment:

15 November 2023

REASONS JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 15 November 2023 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Meredith Connell (Office of the Crown Solicitor), Auckland Copy to:  Respondent

LAZARUS v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2023] NZHC 3225 [15 November 2023]

[1]                  At 12:16 pm on Monday, 6 November 2023, the Court received a one-page document in the name of Lenin Wayne Lazarus in which he applied for a writ of habeas corpus. The application was filed by his cousin, Wayne Underhill-Ripa.

[2]                  I directed that the application be served on the Crown and called in Court at 3:00 pm on Wednesday, 8 November 2023. After hearing from Mr Lazarus and the Crown, I dismissed the application and indicated that my reasons would follow. These are my reasons.

Grounds of application

[3]The grounds on which the order is sought are as follows:

I/We, Lenin Wayne Lazarus believe that I am currently being detained unlawfully since 23 July 2022 under section 61(a) of the Parole Act 2002. I have been notified on three separate occasions since the recall order to appear for callover on unsubstantiated allegations against a person in the community and all of the callovers were withdrawn. On the 15th of June 2023, in the Manukau District Court all five charges against me were dismissed or withdrawn by the court and I am still being detained unlawfully. This is a blatant abuse of power under section 61(a) of the Act, - That, I pose an undue risk, in a flawed and way overdue psychological report.

Writ of habeas corpus

[4]                  The writ of habeas corpus has a long history. It is the means by which the lawfulness of a person’s detention can be tested. Habeas corpus applications are required to be given precedence over all other matters before the Court, and should be disposed of as a matter of priority and urgency.1 At any hearing, the burden is on the respondent, as the detaining party, to establish the lawfulness of the detention.2 The Court must issue the writ if the detention is not established to be lawful, and to refuse the writ if it is so established.3

[5]                  In Manuel v Superintendent of Hawkes Bay Regional Prison,4 the Court of Appeal held that habeas corpus is the appropriate procedure by which to challenge the lawfulness of administrative or judicial determinations only where the challenge is one

1      Habeas Corpus Act 2001, s 9(1).

2      Section 14(1).

3      Section 14(3).

4      Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

able to be determined fairly by summary process. In other cases, such challenge must be made in proceedings for judicial review. Whether the challenge is able to be determined fairly by summary process is a question of fact and degree.

[6]                  As to decisions by the Parole Board, Miller J stated in Miller v New Zealand Parole Board:5

The writ of habeas corpus is directed to the liberty of the applicant. It is not appropriate in circumstances where his detention is lawful and the question is whether the Parole Board ought to have approached an application for parole in a different way; Nunn v Superintendent, Waikeria Prison [2004] NZAR 240.

Factual background

[7]                  Mr Lazarus is serving a sentence of life imprisonment for a murder committed in 2000. He was released on parole on 27 October 2021. On 3 June 2022, Police responded to an incident of wilful damage. Mr Lazarus’ former partner told Police that Mr Lazarus smashed the door to her motel room with an unknown weapon. On 21 July 2022, the former partner notified the Police that she thought Mr Lazarus was following her. On 23 July 2022, the former partner advised the Police that Mr Lazarus had threatened her over the phone to “send the boys over and fuck her up”.

[8]                  Police laid charges against Mr Lazarus and applied for him to be recalled to continue to serve his sentence of life imprisonment.6

[9]                  On 25 July 2022, the Parole Board made an interim order for his recall. On  12 August 2022, the Parole Board made a final recall order on the grounds Mr Lazarus posed an undue risk to the safety of the community or any person and Mr Lazarus had breached his release conditions.7

[10]              Mr Lazarus appeared before the Parole Board on 8 March 2023, 30 June 2023 and 11 October 2023. In the most recent Parole Board decision of 11 October 2023, the Parole Board was satisfied there was evidence upon which they were entitled to

5      Miller v New Zealand Parole Board HC Wellington CRI 2004-485-37, 11 May 2004 at [81].

6      Threatening a person verbally, possession of offensive weapon, threatening language and miscellaneous intimidation (x 2).

7      Parole Act 2002, s 66.

rely relating to Mr Lazarus’ former partner,8 and a psychological report which indicated that Mr Lazarus needed further one-on-one psychological counselling to address issues relating to his former partner. Mr Lazarus is due before the Parole Board again in August 2024.

Discussion

[11]              There is no doubt that Mr Lazarus is lawfully detained. I have been provided with a copy of the “Warrant to arrest and detain released offender following Final Recall Order” dated 12 August 2022 and signed by a convenor of the Parole Board. There are no circumstances which would enable me to go behind the warrant of detention.

[12]              Mr Lazarus maintains that he is being unlawfully detained because the criminal charges against him have been withdrawn. He was, however, sentenced to life imprisonment from which he can only be released by the Parole Board. The Parole Board can release a sentenced prisoner only if it is satisfied on reasonable grounds that the prisoner, if released on parole, will not pose an undue risk to the safety of the community or any person.9

[13]              Undue risk is a broad term. The risk to the safety of the community is “undue” where it is disproportionate to and outweighs the offender's personal interest in retaining their liberty.10 Satisfaction is also not to be equated with proof beyond reasonable doubt. Even though the criminal charges against Mr Lazarus were withdrawn, the Parole Board can take into account the underlying facts that it finds established.

[14]              It is not essential to a finding of undue risk that an offender has committed further offending of any sort.11 Rather, the Board looks to a range of risk factors which emerge from an offender’s actions while subject to release conditions that may amount to an “undue risk” under the Act despite not amounting to the commission of an

8      The charges against Mr Lazarus were withdrawn on 15 June 2023 when his former partner did not appear in Court as a witness.

9      Parole Act 2002, s 7.

10     Forrest v New Zealand Parole Board [2013] NZHC 2847 at [27].

11     Isherwood v New Zealand Parole Board [2022] NZHC 2031 at [53].

offence per se. In Blackmore v New Zealand Parole Board,12 Panckhurst J considered an appeal against the decision to issue a recall order. The Board issued an interim recall decision following an assault allegation against Mr Blackmore’s partner that was not established. Despite this, the Board issued a final recall order. The Court upheld the Board’s finding of undue risk when viewed against the “essential background” of Mr Blackmore’s manslaughter conviction for the death of his former partner, and the circumstances in which the assault allegation had arisen:13

I would add that there were signs that the relationship with Ms T had encountered difficulties. Although not able to find that a serious assault had occurred, there was at least evidence to show that the relationship was at a point of breakdown because the Board accepted Ms T had sustained injuries in worrying circumstances. Even without a clear resolution of how and why she sustained those injuries, there was a basis for concern.

[15]              Mr Lazarus could challenge the Parole Board refusal to grant him parole by way of an application for judicial review, but it is difficult to see any clear path for him to do so successfully because of the Board’s expertise in assessing undue risk. No error of law has been identified.

[16]              Mr Lazarus had rights of review and appeal to the High Court under ss 67 and 68 of the Act against the final recall order, but these had to be exercised within 28 days of the decision.

Result

[17]              It was for the above reasons that the application for a writ of habeas corpus was dismissed.

Woolford J

12     Blackmore v New Zealand Parole Board [2013] NZHC 1417.

13     Blackmore v New Zealand Parole Board, above n 12 at [39].