Morgan v General Manager Mt Eden Prison HC Auckland CIV 2010-404-6272

[2010] NZHC 1742

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-6272

IN THE MATTER OF     AN APPLICATION FOR HABEAS CORPUS PURSUANT TO THE HABEAS CORPUS ACT 2001

BETWEEN  RICHARD GRAHAM MORGAN Plaintiff

ANDTHE GENERAL MANAGER MT EDEN PRISON

Respondent

Hearing:         27 September 2010

Appearances: Plaintiff in Person with G A R Palmer as MacKenzie Friend

N M H Whittington for Respondent

Judgment:      27 September 2010

JUDGMENT OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

Richard Graham Morgan, Pt Eden Prison, Lauder Road, Mt Eden, Auckland

G A R Palmer, PO Box 17 496, Greenlane, Auckland

MORGAN V THE GENERAL MANAGER MT EDEN PRISON HC AK CIV-2010-404-6272  27 September

2010

[1]      Richard Graham Morgan has applied for a Writ of Habeas Corpus.  He has been assisted in doing so by Mr Palmer, whom I have allowed to act as his MacKenzie Friend this afternoon.

[2]      Mr Morgan is presently detained pursuant to a final recall order made by the New Zealand Parole Board under s 66(1) of the Parole Act 2002.  He was sentenced to life imprisonment in the High Court at Auckland on 30 July 1986 having been convicted of murder.  He was originally released on life parole from Ohura Prison on

28 November 1994.  Many years later, on 4 November 2009 he was convicted for cultivating cannabis, sentenced to three months’ imprisonment and again released on parole on 9 February 2010.

[3]      He is now charged with cultivation and supply of marijuana and he is to be tried on that charge on 14 January 2011.

[4]      On  29  April  2010  having  been  advised  of  the  current  charges  the  New

Zealand Parole Board made an interim recall order under s 62(1) of the Parole Act

2002.   A final recall order was made under s 66(1), the Board being satisfied on grounds which it said were reasonable, that Mr Morgan posed an undue risk to the safety of the community or to a person or class of persons, and that he has committed an  offence  punishable  by  imprisonment.    The  form  of  the  final  recall  order recognised that the ground on which the Parole Board is empowered to act involving the commission of an offence punishable by imprisonment, is a power available whether or not the offence in question has resulted in a conviction.

[5]      What is necessary, as is provided in s 66(1) of the Parole Act, is that the Board must be satisfied on reasonable grounds, that one or more of the grounds for recall set out in s 61 of the Act has been established.  Section 61(c) provides as one of the grounds for recall, that the offender has committed an offence punishable by imprisonment.

[6]      Mr Morgan  alleges  that  the  facts  placed  before  the  Parole  Board  were erroneous and fundamentally flawed.   He states that he has a good defence to the charges and submits that the recall order is effectively punishing him twice for the

crime for which he was originally sentenced to life imprisonment, that it presumes his guilt on the new charges and that it breaches his rights under the New Zealand Bill of Rights Act 1990.

[7]      He refers to s 22 and the right that it affirms not to be arbitrarily arrested or detained, s 23(1)(c) and the right to be released if detention is not lawful, the right in s 26(2) not to be tried or punished twice for the same offence, and the right in s 25(c) to be presumed innocent until proved guilty according to law.   Mr Morgan also refers to Magna Carta and its provision that no one may be imprisoned except pursuant to the law of the land.

[8]      On an application for Writ of Habeas Corpus it is for the respondent to establish that the applicant has been lawfully detained.   In the present case, Mr Whittington, for the respondent, points to the recall order made by the New Zealand Parole Board under s 66(1) of the Parole Act 2002 which recites that after a hearing the Board was satisfied on reasonable grounds that Mr Morgan posed an undue risk to the safety of the community or to a person or class of persons, and that he had committed an offence punishable by imprisonment.

[9]      In making a decision in those terms the Board was expressing itself in terms of the provisions of the Parole Act 2002.  Plainly Mr Morgan is of the view that the Board should not have  been satisfied as to the matters of which it said it was satisfied.  However, there is a statutory procedure which can be followed whereby such decisions may be the subject of review and if the applicant is unsatisfied with the outcome of a review, then there may be an appeal to the High Court.

[10]     Mr Morgan complains that despite requests, he was not sent a copy of the decision of the Parole Board and saw it for the first time when it was provided by Mr Whittington to him this afternoon.   If that is right, then it may well be that Mr Morgan  has  a  proper  case  for  seeking  leave  to  invoke  the  statutory  review process, notwithstanding the fact that on the face of it he is outside the time limited for doing so.  Obviously a person cannot appeal against a decision of which he has not been advised.

[11]     However, for present purposes, this Court’s task is to ascertain whether he has been lawfully detained and in that respect the final recall order issued by the new Zealand Parole Board appears to be decisive.   I do not, of course, overlook the other arguments which may be described as directed not so much against the facts on which the Parole Board acted, but on the principle that there is a necessary breach of the rights to which Mr Morgan referred by virtue of the fact that he is now detained, notwithstanding he has not been convicted of the current charges against him.

[12]     The suggestion that he is in effect being punished twice for the offending for which he was originally imprisoned, overlooks the fact that the sentence imposed when he was convicted of murder was a sentence of life imprisonment.  If the Board is satisfied that, having been paroled, an offender has committed further offences, his recall to prison is not the imposition of a further punishment.  Rather, he is simply being recalled to continue serving the sentence that was originally imposed.

[13]     Neither is he being punished in respect of new offences for which he has not yet been convicted.  Whatever punishment is appropriate in respect of those offences will be imposed only if there is a conviction on those charges.

[14]     For similar reasoning there is no diminution of his right to be presumed innocent until proved guilty according to law.  The Parole Board is empowered by the Parole Act 2002 to recall an offender to continue serving an existing sentence if it is satisfied that various statutory grounds are made out.  It was so satisfied here.

[15]     For the reasons I have given, the application for a Writ of Habeas Corpus is dismissed.