SAMUEL JAMES MARSHALL AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
[2024] NZHC 2991
•14 October 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-616
[2024] NZHC 2991
UNDER the Habeas Corpus Act 2001 IN THE MATTER
of an application for a writ of habeas corpus
BETWEEN
SAMUEL JAMES MARSHALL
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 11 October 2024 at 11 am, 12 pm and 3.30 pm and 14 October
2024 at 12 pm
Counsel:
Applicant in person with Mr Greer as a McKenzie friend S B McCusker and M Gavey for Respondent
Judgment:
14 October 2024
JUDGMENT OF RADICH J
[1] On Monday, 7 October 2024, the Court received an application for a writ of habeas corpus, filed by Samuel Marshall. Grau J directed that the application be served on the Crown. The Crown filed submissions and a notice of opposition to the application on 8 October 2024.
[2] The application was called before Grau J on Wednesday, 9 October. At that time, Mr Marshall did not have access to the Crown’s notice of opposition and submissions, so the hearing was adjourned until 11 am on 11 October 2024.
MARSHALL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2024] NZHC 2991
[14 October 2024]
[3] On the morning of 11 October, counsel for Mr Marshall filed a memorandum in which it was said that she was unable to appear on 11 October, had tried to secure alternative counsel for Mr Marshall, unsuccessfully, and that Mr Marshall would proceed without counsel but would, instead, seek leave for a McKenzie friend, or lay assistant, to appear with him. That person was to be Mr Greer who is an inmate at Rimutaka Prison with Mr Marshall. The Court was comfortable with Mr Greer’s involvement on that basis but it did create a conflict of interest for Grau J so I presided at the 11 am fixture. While Mr Greer did not appear with Mr Marshall, he had prepared detailed written submissions in support of the application and a further set of submissions, in reply to the submissions filed for the respondent. The hearing was adjourned until midday to enable those submissions to be able to be provided to the Court and to counsel for the respondent.
[4] As I come on to describe, one of the primary points raised by Mr Marshall in those submissions was whether or not, in circumstances in which his recall to prison was for having breached a condition of his prior release, the conditions in the relevant release licence had in fact expired. Accordingly, when the Court reconvened at midday, a further adjournment was sought and granted to enable the Crown to make further inquiries about the relevant documents. When the Court reconvened at
3.30 pm, a final adjournment was granted, until this morning, to enable those inquiries to continue.
[5] At this morning’s hearing, Mr Marshall was supported by Mr Greer, as a McKenzie friend. Mr Greer had prepared a further set of submissions for Mr Marshall. In addition, Mr Marshall’s partner had on his behalf, provided the Court with additional material and the Crown filed a further memorandum attaching an unsigned amended release licence. After hearing from Mr Marshall and the Crown, I dismissed the application and indicated that my reasons would follow.
Grounds of application
[6] Mr Marshall is imprisoned on the basis of an interim recall order made, following his release on parole in 2022, by the panel convenor of the New Zealand Parole Board.
[7] Mr Marshall says that he is being unlawfully detained because the special condition of his release that, it is said, he has breached (a condition requiring him not to use controlled drugs) had not been breached, that, in addition, the blood specimen taken from him was taken illegally and that, in any event, the condition that was said to have been breached was no longer in operation, having ceased to apply from 14 June 2024.
[8] The interim recall order that is in question was made on 26 September 2024. Mr Marshall’s substantive recall application is scheduled to be heard tomorrow – 15 October 2024.
Writ of habeas corpus
[9] The writ of habeas corpus has a long history as a means by which the lawfulness of a person’s detention can be tested.
[10] Applications for writs of habeas corpus are made under the Habeas Corpus Act 2001 which has as one of its purposes making “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”.1
[11] Accordingly, habeas corpus applications must be disposed of as a matter of priority and urgency.
[12] The burden is on the respondent, as the detaining party, to establish the lawfulness of the detention.2
[13] The Court must issue the writ if the detention is not established to be lawful, and refuse the writ if unlawfulness is established.3
1 Habeas Corpus Act 2001, s 5(b).
2 Section 14(1).
3 Section 14(3).
[14] While the onus is on the respondent to justify the legality of the detention at issue, the existence of a warrant of detention has an important effect. In Bennett v Superintendent Rimutaka Prison, the Court of Appeal said:4
In practice, once a prison superintendent or other official named as respondent produces a committal warrant or other authorisation…it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the particular circumstances.
[15] Further, in Manuel v Superintendent of Hawkes Bay Regional Prison,5 the Court of Appeal noted:
[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 inquire 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. …
[16] In considering decisions of the Parole Board, Miller J, in Miller v NZ Parole Board said:6
[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 question is whether the Parole Board ought to have approached an application for parole in a different way.
Factual background
[17] On 11 May 2020, Mr Marshall was sentenced to five years seven months’ imprisonment on one charge of aggravated robbery, and 12 months’ imprisonment on one charge of threating to kill.
[18]He was released on parole on 15 June 2022.
4 Bennett v Superintendent Rimutaka Prison [2022] 1 NZLR 616 (CA) (Bennett) at [70].
5 Manuel v Superintendent of Hawkes Bay Regional Prison [2006] 2 NZLR 63 (CA) (Manuel).
6 HC Wellington CRI-2004-485-37, 11 May 2024, at [81].
[19] The release licence that was issued to him that day provided, amongst other things for the conditions of his release. There are three primary parts to those conditions:
(a)The standard release conditions set out in ss 14(1) of the Parole Act 2002 which were to apply from the date of his release and were “to cease to apply” on 14 June 2024. These conditions are not relevant to the matters in issue.
(b)The special conditions that had been imposed by the Parole Board which, in each case, were to cease on the dates specified in those conditions. The relevant condition here was in the following terms:
Not to possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional (14 June 2024).
(c)The general grounds for recall, expressed in the notice as follows:
You are liable to be recalled to continue serving your sentence until 06/03/2025 if the Parole Board is satisfied on reasonable grounds that one or more the grounds for recall set out in s 61 of the Parole Act 2002 is established.
There was no expiry date for these grounds.
[20] The grounds for recall in s 61 include that “the offender poses an undue risk to the safety of the community or any person or class of persons” or that “the offender has breached his or her release conditions”.
[21] On 29 May 2024, a recall application was made on the basis that Mr Marshall was in breach of his special conditions of release, as he had returned a positive alcohol and drug test result, and was said to pose an undue risk to the community.
[22] However, in its substantive decision on the recall application following a hearing on 5 July 2024, the Parole Board took an approach which was described as “something of a middle course”. It made a formal order for recall but went on to say that “Mr Marshall will, however, continue in the community on parole subject to the
various conditions which will all continue until six months beyond the statutory release date”.
[23] The special conditions in the Board’s decision, again, included a condition “not to possess, use or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional”.
[24] An amended release licence (to replace that referred to in [19] above, signed by Mr Marshall has not been able to be located by Corrections. What might be the operative amended release licence has been obtained by the respondent but that is not clear and it is not signed. However, an amended licence is not necessary for the conditions imposed to be valid. It is the written decision of the Board through which the conditions are lawfully imposed.
[25] On 5 September 2024, Mr Marshall had come home from work. Commendably, after his release in 2022, he went on to establish his own property maintenance business undertaking a range of property maintenance jobs for customers including concreting, retaining, clearing and landscaping. It has, I understand from Mr Marshall, been a successful business to date and helps him to provide for the needs of his partner and children. He had parked the trailer used for his work, securing the wheels with blocks. However, when he looked back at it, he was concerned that, although parked horizontally, and perpendicular to the slope of the driveway of the property at which he and his partner lived, it might have been at risk of moving. Accordingly, he endeavoured to adjust slightly the position of the trailer by hand. The trailer then started to move of its own volition and was about to roll down the sloping driveway and onto a public road. In order to arrest its movement, Mr Marshall was run over twice by the trailer. He managed to stop it.
[26] An ambulance was called and he was taken to hospital. Blood was taken from him in hospital. Mr Marshall has said that he was unconscious when the blood was taken and that he woke up to find that an notice advising of the blood having been taken being attached to his chest.
[27] The blood test returned a positive result for methamphetamine. Mr Marshall was adamant in the hearings before me that he had not taken methamphetamine. He refers to a letter from his doctor in which it is said, as I understand it, that the medication that he is taking has the ability to produce a false positive test outcome for methamphetamine. Mr Marshall has, as I understand it, endeavoured to have the letter reach the High Court file. But it has not.
[28] Mr Marshall is concerned also that the accident with the trailer occurred on his private property is such that it is his view that the Land Transport Act cannot apply.
[29] In any event, following the blood test, a probation officer made a second recall application for Mr Marshall. An interim recall order was made by the Panel Convenor on 26 September 2024 on the basis of the methamphetamine test result. The Panel Convenor referred to Mr Marshall having failed to comply with his special conditions, and having failed to admit substance use to his probation officer. The Convenor said “on the information in the application to recall I am satisfied Mr Marshall has breached a special condition of parole, he is an undue risk to the safety of the community. An interim recall order is made”.
[30] Mr Marshall has referred to the utterly devastating effect this has had on him, in all senses of the word. He was on his way to pick up his son from Taupo when he was arrested. He is unable to conduct his business which, he feels, he will lose if he cannot get back to it right away. It is a business he has built up bit by bit and with considerable effort. But even know, Mr Marshall tells me, given word of his imprisonment, those involved with him, including some customers and, for example, his accountant, are turning him away.
[31] Mr Marshall remains adamant that he has not taken methamphetamine, that the personal medication he is on would in any event have likely produced the adverse result, but that the blood test was not taken properly and that the Land Transport Act should not apply. He referred to putting his “life on the line” to stop the trailer rolling and causing damage to other people or property. He told me about the considerable efforts that he has had made over the last 20 months in the community with no issues. This is the first time he has been in prison and he is concerned that he has not been
charged, for example, for breach of parole or with any other offence. For all of these reasons, he does not believe that he should be where he is.
Discussion
[32] The difficulty for Mr Marshall, in terms of this application, is the unsuitability of the habeas corpus jurisdiction to address the issues that arise for him.
[33] The starting point is that there is no doubt that Mr Marshall is lawfully detained. I have been provided with a copy of the warrant to arrest and detain issued by the Parole Board on 26 September 2024, and signed by a Convenor of the Parole Board.
[34] And there are no circumstances which would enable me to go behind the warrant of detention. In the first place, Mr Marshall’s blood specimen appears to have been taken lawfully pursuant to s 73(3) of the Land Transport Act 1998, which is in the following terms:
73 Who must give blood specimen in hospital or medical centre
…(3)The health practitioner who is in immediate charge of the examination, case, or treatment of a person in a hospital or medical centre—
(a)may take a blood specimen or cause a blood specimen to be taken by another health practitioner or a medical officer; and
(b)must either take a blood specimen or cause a blood specimen to be taken by another health practitioner or a medical officer, if an enforcement officer requests him or her to do so,—
whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.
[35] As the respondent submits, s 73 provides a complete answer to the challenge that the taking of the specimen was unlawful. Consent is not required when an enforcement officer directs a medical officer to take a sample where the medical officer has reasonable grounds to suspect that the person was in hospital as a result of an accident or incident involving a motor vehicle (which includes a trailer), pursuant to s 2 of the Land Transport Act.
[36] In addition, the points that Mr Marshall has raised about whether or not the conditions of his release remain in place are addressed by the terms of the Parole Board’s decision of 5 July 2024.
[37] The Board will be meeting again tomorrow to consider the interim recall order that has been made. That is when the matters I have discussed at [25]–[31] can be addressed. A real issue does arise on Mr Marshall’s part as to whether he has breached a special condition and, moreover, whether in the circumstances that I have described he is, as the Panel Convenor found on 26 September 20324, “an undue risk to the safety of the community”. However, these are all matters that Mr Marshall is able to raise when the Board meets under s 65(1) of the Act. Beyond that, a further right of review from the Board’s decision is provided for Mr Marshall through s 67 of the Parole Act.
[38] As the Court of Appeal said in Drever v Auckland South Corrections Facility, an application for a writ of habeas corpus is not an appropriate alternative to an application for review under s 67 of the Parole Act where, on its face, an applicant’s detention is lawful.
[39] In addition, under s 14(1A) of the Habeas Corpus Act, the Court may refuse an application for the issue of a writ, without requiring a defendant to establish that detention is lawful, if the Court is satisfied that an application for the issue of the writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant. That is so here given the role of the Parole Board.
Result
[40] For these reasons, Mr Marshall’s application for a writ of habeas corpus is dismissed. His remedy lies with the Parole Board.
Radich J
Solicitors:
Crown Solicitor, Wellington for Respondent
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