Miller v Chief Executive of the Department of Corrections
[2019] NZHC 621
•28 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-492
[2019] NZHC 621
UNDER the Habeas Corpus Act 2001 IN THE MATTER
of an application for a writ of habeas corpus
BETWEEN
ALLAN BRIAN MILLER
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 26 March 2019 Appearances:
Applicant on own behalf (via AVL) M Mortimer for the Respondent
Judgment:
28 March 2019
JUDGMENT OF GORDON J
This judgment was delivered by me
on 28 March 2019 at 3.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland Copy To: Applicant
MILLER v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 621 [28 March 2019]
Introduction
[1] The applicant, Allan Miller, has filed an application for habeas corpus by way of a one page letter dated 17 March 2019. The letter gives his address as “Spring Hill”.
[2] The application was received by the Court on 22 March 2019. It was accorded the urgency mandated by s 9 of the Habeas Corpus Act 2001 (the Act) and was set down for hearing before me on 26 March 2019 in my capacity as Duty Judge.
[3] Mr Miller appeared by AVL from Springhill Prison. Mr Mortimer appeared for the Chief Executive of the Department of Corrections in opposition.
[4] At the end of the hearing, I gave my decision refusing the application. These are my reasons.
Grounds of application
[5] The application sets out eight grounds, each without any elaboration. The grounds are:
(a)Miscarriage of justice;
(b)Arbitrary detention;
(c)Breach of the law;
(d)Breach of the Human Rights Act 1990;
(e)Breach of reintegrative [sic];
(f)New Zealand on Breachs [sic];
(g)Degrading treatment; and
(h)Extending the sentence unlawful.
[6] Mr Miller made oral submissions supplementing his letter. In essence, his complaint is that presently he is classified as “high risk”. But he is not getting the treatment he considers necessary to enable him to be reclassified so as to assist with his applications for parole.
Discussion
[7] I will start by addressing what appeared to be the substance of Mr Miller’s complaint as set out in [6] above.
[8] In Bennett v The Superintendent of Rimutaka Prison, Trentham,1 a full court of the Court of Appeal considered appeals by serving prisoners against a refusal by the High Court to grant them writs of habeas corpus (and, in the case of Mr Bennett, judicial review). The judgment records the issue to be determined in that case as follows:
[1] … Their applications related to the conditions under which they were required to serve portions of their sentences. Central to the appeals is whether habeas corpus is available, as it has been found to be in Canada (Miller v The Queen (1985) 23 CCC (3d) 97 (SCC)), to obtain release from maximum security or non-voluntary segregation in an isolation cell (a “prison within a prison”) where the applicant is already subject to a prison sentence lawfully imposed and accordingly there is no possibility that the Court will order that the applicant be set at liberty.
[9]The Court then held as follows:
[62] It is also our view that a change to the conditions on which an inmate is being detained either by segregation, re-classification or transfer to another institution does not create a new detention under an enactment for the purposes of s23(1) of the Bill of Rights. Nor, if an inmate is unlawfully treated while detained, is the detention itself rendered unlawful. The remedy is the cessation of the unlawful element, not the cessation of the detention.
…
[65] In our view, the appropriate way in which sentenced prisoners can test the lawfulness of the conditions of their incarceration is by application for judicial review. In cases involving human rights the events which are impugned will be closely scrutinised (Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58,66).
1 Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA).
[10] In my view the decision of the Court of Appeal provides a complete answer to the oral submissions made by Mr Miller in support of his application. In other words an application for habeas corpus is not the correct procedure to advance Mr Miller’s claim.
[11] For completeness, to the extent that the written application does raise grounds relating to the validity of Mr Miller’s detention, I find the Chief Executive has established that Mr Miller is lawfully detained.2 I refer to the following.
[12] In 2004, Mr Miller made an application for habeas corpus which, together with an appeal against a postponement order, was refused.3
[13] In relation to the appeal, Miller J referred the matter back to the Parole Board to reconsider and decide the matter of both postponement and parole. Miller J ordered that, in the meantime, Mr Miller was to remain subject to his sentence of preventive detention.4
[14]Miller J refused the application for habeas corpus stating:
[79] The application for habeas corpus was brought against the Superintendent of the Tongariro Prison. The Superintendent filed an affidavit exhibiting the warrant pursuant to which the appellant is held in custody under his sentence of preventive detention. The affidavit records that the appellant became eligible to be considered for parole on 13 February 2001, but that no direction for his release on parole has yet been made by the Parole Board. On the face of it, the affidavit suffices to discharge the burden on the Superintendent to show that the appellant is lawfully detained.
[80] Mr Powell submitted that this is not a proper case for habeas corpus. He submitted that the jurisdiction is amenable only to “bright line” cases. It is very rarely available in the case of prisoners since there ordinarily will be, as there is in this case, a warrant that authorises detention. In such cases the appropriate remedy is normally appeal or judicial review. He cited Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 for the proposition that the writ is not to be diminished by unnecessary use where another effective remedy is available.
[81] 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
2 Habeas Corpus Act 2001, s 14(1).
3 Miller v New Zealand Parole Board HC Wellington CRI-2004-485-37, 11 May 2004.
4 At [77] and [78].
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. Mr Ellis rightly did not contend that immediate release was appropriate. In those circumstances, the application should not have been brought at all.
[82] I conclude that habeas corpus is unavailable in the circumstances of this case. The appellant is lawfully detained pursuant to the warrant issued on 26 February 1991. The Board declined his application for parole in its decision of 5 November 2003. Further, the appellant has available to him the procedure set out in the Parole Act for appeal to this Court.
[15] Mr Mortimer, appearing for the Chief Executive, has annexed to his submissions a copy of the Warrant of Commitment dated 26 February 1991. The respondent has also filed an affidavit of Alistair Spieling, Manager of the New Zealand Parole Board, who deposes that Mr Miller is currently serving a sentence of preventive detention. This was imposed on 26 February 1991 following his third conviction for rape. Mr Spieling continues that a sentence of preventive detention means that Mr Miller’s release is determined by the Parole Board.
[16] Mr Miller’s most recent Parole Board hearing was on 31 May 2018. A copy of the decision is annexed to Mr Speiling’s affidavit. The decision states that parole was declined on 31 May 2018. The decision further states that Mr Miller’s next hearing would be in approximately a year’s time and must be held before the end of May 2019 at the latest. Mr Speiling confirms that Mr Miller has not yet had another Parole Board hearing since 31 May 2018. His understanding is that a precise date has not yet been set for the hearing.
[17] I am satisfied, on the basis, of the evidence filed, that the Chief Executive has established that Mr Miller is lawfully detained.
[18] It is also possible that s 14(1A)(a) and s 15(1) may apply in that Mr Miller’s present application requires a re-examination by the Court of substantially the same questions as those considered by the Court when the earlier application was refused. In those circumstances, no further application can be made.
[19] One of the grounds relied on by Mr Miller in his application heard by Miller J was that:5
The Board left the appellant in an impossible position, by finding that he was not ready to be considered for parole because he had not undertaken treatment when the Department will not consider him for treatment until he is close to his release date.
[20] That ground is substantially the same as the ground advanced by Mr Miller in his oral submissions.
[21] The legal basis for Mr Miller’s detention is the same as it was before Miller J, namely the Warrant of Commitment, dated 26 February 1991.
[22] I have however considered the application and for the reasons recorded above the application was refused.
Gordon J
5 At [24](h).
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