T (CA230/06) v Jones CA230/06

[2006] NZCA 529

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THERE BEING NO APPEAL AGAINST THE SUPPRESSION ORDERS MADE AT [55] AND [56] OF THE HIGH COURT'S JUDGMENT THEY ACCORDINGLY STAND.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA230/06

BETWEEN  T (CA230/06) Appellant

ANDCHRISTOPHER DEAN JONES Respondent

Hearing:         26 October 2006

Court:            Arnold, Baragwanath and Wild JJ Counsel:     W C Pyke for Appellant

T Sutcliffe and L F Walkington for Respondent

Judgment:      26 October 2006

Reasons:        10 November 2006

JUDGMENT OF THE COURT

A        The appeal is dismissed.

B        Orders are made in terms of [4] below.

REASONS OF THE COURT

(Given by Baragwanath J)

T (CA230/06) V CHRISTOPHER DEAN JONES CA CA230/06 [26 October 2006]

Table of Contents

Para No.

An appeal against order for habeas corpus  [1] The interim judgment and order of 26 October 2006  [4] Events following the hearing  [7] Background to appeal  [12] Jurisdiction  [20] Breach of natural justice  [33] Lack of evidential base for decision: what is the proper approach?  [42]

Barnardo criteria satisfied  [71]
Doubt whether the Barnardo constraints represent the law              [78]

The right to protection against self-incrimination  [79]

An appeal against order for habeas corpus

[1]      Jayden Headley is a six year old boy who has been abducted and whose present whereabouts are unknown.  The appellant is alleged to have abducted him. She challenges on appeal an order of the High Court that she either produce Jayden or make an affidavit recounting her knowledge of that matter.

[2]      The  appeal  concerns  the  jurisdiction  of  this  Court  to  hear  appeals  from decisions under the summary procedure of the Habeas Corpus Act 2001 and the role of the High Court in dealing with habeas corpus.  Central to it is the tension between Jayden’s right to the protection of the law and the appellant’s right not to incriminate herself.  Each is an aspect of constitutional rights recognised by the common law and echoed by provisions of the New Zealand Bill of Rights Act 1990: the right not to be arbitrarily detained (s 22) and the right to have the validity of the detention determined without delay by way of habeas corpus and to be released if the detention is not lawful (s 23(1)(c)); and the rights to refrain from making any statement and not to be compelled to be a witness or to confess guilt (ss 23(4)(b) and 25(d)).

[3]      There is a further question as to the scope of habeas corpus and related procedures.

The interim judgment and order of 26 October 2006

[4]      At the conclusion of the hearing on 26 October 2006 we reserved judgment on the issue of jurisdiction but dismissed the appeal.  We ordered that:

•At the expiration of four working days the affidavit of the appellant is to be supplied in confidence to the Registrar of the High Court at Hamilton to be laid before the Judge and to counsel for the respondent on the undertaking that it not be copied or disclosed to any person including the respondent without leave of the Court.

•This interim order is made with reservation of leave for the Solicitor-General to apply within four working days to discharge or vary it.  In that event we reserve leave to the parties to apply for reconsideration of this interim order. This order is not to be sealed until the expiration of four working days.

•    This order is also made on the basis of the respondent’s undertaking to the

High Court through counsel:

(a) that the affidavit of the appellant will not be made available to the police to inspect without prior permission of the Court obtained on notice to all parties and the lawyer for the child (judgment of High Court of 18 October

2006 at [46]); and

(b) that except for the purposes of proceedings for perjury or contempt of court based on the content of the affidavit no-one may either directly or indirectly use the affidavit or any information obtained or derived from it for the purposes of any criminal prosecution of the appellant nor make the same available to the police or any other person for any other purpose.

•Out of caution we order that the affidavit will not be admissible against the appellant in any criminal proceedings against her relating to the abduction of Jayden Headley.

[5]      We determined:

• We are satisfied that the appellant’s affidavit having been sworn under compulsion  of  order  of  the  High  Court  its  contents  cannot  be  given  in

evidence against her: R v Garbett (1847) 1 Den 236 at 257; R v Coote (1873) LR 4 PC 599 at 607.

•We are satisfied that the opportunity for full hearing in this Court disposes of the allegation of want of adequate notice in the High Court: Calvin v Carr [1980] 1 AC 574.

•We are satisfied that in the event that this Court possesses jurisdiction to undertake the appeal there is sufficient evidence to justify the orders made by the High Court.

•There being no challenge to the suppression orders made at [55] and [56] of the High Court’s judgment they accordingly stand.

[6]      We recorded that full reasons would follow.

Events following the hearing

[7]      In case the Solicitor-General should wish to seek leave to apply we allocated a fixture for 8 November 2006 for continuation of the hearing.   But by memoranda of 1 and 3 November 2006 he advised that he does not seek party status and does not seek leave to apply to discharge or vary our orders of 26 October 2006.   Counsel for the respondent advised that he did not wish to be heard further. Counsel for the appellant initially advised that he wished to apply for variation or recall of the orders of 26 October and a further oral hearing.   But following the Solicitor-General’s second memorandum he advised that he wished only to file written submissions. Since neither the appellant nor the respondent sought to retain the fixture for further oral argument it was vacated.

[8]      By his memoranda the Solicitor-General invites us, in effect of our own motion, to consider:

(a)whether the order at [4](b) of our interim judgment (see [4] above), made on the basis of the respondent’s undertaking to the High Court:

(i)goes beyond settled doctrine as to the use of self-incriminatory evidence and might better be left for full argument if the point actually arises;

(ii)should be expressed as an order of the Court independent of the respondent’s undertaking (the same point arises in relation to the order at [4](a)); and

(b)whether the order that the appellant’s affidavit will not be admissible against her in any criminal proceedings relating to the abduction of Jayden Headley is unnecessary.

[9]        The  Solicitor-General  did  not  develop  argument  in  support  of  such suggestions.

[10]     The   appellant   by   memorandum   of   7   November   submitted   that   the Solicitor-General’s memoranda added weight to her argument that the Crown would not be bound by the orders of the High Court and of this Court and since she would be at risk that her affidavit might be used to incriminate her the High Court’s order should be discharged.

[11]     Since the parties agree that no further argument is required we now give our reasons.

Background to appeal

[12]     On 18 August 2006, Jayden was taken from the public library in Hamilton. His mother Ms Skelton has been arrested and charged with his kidnapping. He had been taken there by his paternal aunt with the authority of his father Mr Jones, to whom the Family Court had granted Jayden’s day to day care.  His mother, who had previously had his primary care, was allowed supervised access at an access centre for two hours each week.  The order was the cumulation of proceedings which had been running in the Family Court since Jayden was seven months old.

What is happening here is that this child has been and is being relentlessly and ruthlessly cut off from any relationship with his father and his life has already been very severely damaged.  The Court’s evidence from its expert is that this situation will be irretrievable if it is not remedied immediately. By one means or another, Mrs Skelton has avoided and will continue to avoid the Court’s judgment.    To allow this to continue would… literally…expose him to undue hardship.

[14]     Mr Jones’ habeas corpus proceedings were issued against Jayden’s mother, Ms Skelton, her father Dick Headley, other members of her family, and the present appellant Ms T whose name was suppressed by order of the High Court.  The issue of suppression was not argued before us.  The ground for suppression mentioned to us – the interests of Ms T’s children – appears slender and if there is no other ground the High Court may wish to revisit its order.

[15]     Heath J was satisfied that Jayden was under the control of Mr Headley. He made orders (at [44] of his judgment of 18 October 2006):

(a)      That the mother, Mr Headley, the other family members and Ms T should discharge and release the child from detention and bring him before    the    Court    at    Hamilton    at    10am    on    Wednesday

25 October 2006;

(b)That in the event that all or any of those people were unable to bring Jayden before the Court at the time and place specified, each should file and serve an affidavit containing the following information:

(i)Their knowledge of what has happened to Jayden since the time  he  was  taken  from  the  Hamilton  Public  Library  on

18 August 2006;

(ii)Details of any contact (whether physical, telephone, email or otherwise)  that  the  deponents  have  had  with  Jayden  or Mr Headley since he was taken;

(iii)      Efforts each of them have made to locate or contact Jayden;

(iv)      The location in which Mr Headley might be found;

(v)The reasons why the deponent was unable to bring Jayden before the Court and the steps that each has taken to have Jayden brought before the Court in compliance with its order.

[16]     On 20 October 2006 Ms T filed a notice of appeal to this Court against the order as it affected her.  The same day Heath J heard an application on her behalf for a stay (pending the hearing of the appeal) of the order requiring her to file and serve an affidavit.

[17]     Because of the nature of the inquiry being undertaken by the Court and the need  to  provide  for  the  welfare  and  best  interests  of  Jayden,  Heath  J  was  not prepared to stay either the order that he be produced or the order that, in the event that the child were not produced, the affidavit be filed.  The Judge made an order staying any steps that might be taken by the presiding Judge to inquire into the adequacy of any affidavit filed by Ms T and to consider whether any questions of contempt arose.  He directed that such issues be dealt with only after this Court has determined Ms T’s appeal.

[18]     On 24 October 2006, William Young P made an order staying, pending further order of this Court, the orders made against the appellant on terms that she swear an affidavit in accordance with [44](b) of the judgment of Heath J and that such affidavit be lodged with the appellant’s solicitors and be held by them on their undertaking that they file and serve the affidavit as and when directed by this Court. If the appellant took up the stay in such terms she was to be taken as consenting irrevocably  and  unconditionally  to  the  release  of  the  affidavit  on  that  basis. The President directed that the appeal be heard on 26 October 2006 in Auckland.

[19]     On  25  October  2006,  Keane  J  heard  applications  to  hold  in  contempt Jayden’s  mother  and  other  family  members.    Contempt  was  proved  as  against Ms Skelton and she was committed to prison until she discloses where Jayden and her father are.  The Judge was not satisfied that the other family members were in contempt.

[20]     Mr Sutcliffe submitted that this Court lacked jurisdiction to entertain any appeal by Ms T.  The Habeas Corpus Act states:

16       Certain unsuccessful parties may appeal

(1)       The provisions of the Judicature Act 1908 relating to appeals to the

Court of Appeal against decisions of the High Court in civil cases –

(a)       Apply   with   respect   to   a   determination   refusing   an application for the issue of a writ of habeas corpus; but

(b)       do not apply to a final determination that orders the release from detention of a detained person unless the substantive issue is the welfare of a person under the age of 16 years.

[21]     By s 11(1) interim orders may be made for release of the detained person from detention pending final determination of the application and the Court may attach any conditions to the order that the Court thinks appropriate to the circumstances.   Such interim order is not “a final determination” for the purposes of s 16(1)(b).

[22]     The Habeas Corpus Act was based on the report of the New Zealand Law Commission Habeas Corpus Procedure (NZLC R44 1997).  In the notes to the draft appeals clause, the Law Commission commented (at 23):

C21 Subsection (1) would introduce to New Zealand a right of appeal for applicants whose application is at first instance refused, and for defendants in custody cases (see para 9), but not for other unsuccessful defendants (see paras 10-13)

[23]     The reason for the limitation  on appeals was stated at 11:

If the applicant’s release from detention is ordered that should be the end of the matter:

[I]t is a cardinal principle of the law of England, ever jealous for personal  liberty, that when once a person has been held entitled to liberty by a  competent  Court there  shall  be no  further question. [fn Secretary of State for Home Affairs v O’Brien [1923] AC 603,

621 per Lord Dunedin.]

[24]     As to the exception in custody cases, the Law Commission recognised that normally recourse will be had to the expert Family Court, administering the Guardianship Act 1968 (now the Care of Children Act 2004).  But it was loath to withhold entirely the remedy of habeas corpus in custody situations, enabling the High Court to transfer proceedings to the Family Court (s 13(2)).  In cases remaining in the High Court the Law Commission recorded:

14… The draft Act also gives an unsuccessful defendant in custody cases a right of appeal.

[25]     So the exception to the exclusion of the right of appeal from habeas corpus orders for release from detention was provided to accommodate custody cases. However, the text of the Law Commission’s draft, carried forward into s 16(1)(d), was not expressly limited to the concept of custody but extended to cases where “the substantive issue is the welfare of the person under the age of 16 years”.

[26]     Mr Sutcliffe submitted that the substantive issue must relate to the appeal rather than to the application.  He argued that on this appeal the substantive issue is not the welfare of a child but rather the fate of the appellant. He submitted the appellant  is  not  an  unsuccessful  defendant  in  a  custody  case.    The  appellant’s concern in filing the appeal does not relate to the welfare of the child but to the adequacy of an evidential basis for the making of the order against her.  She did not contend that the making of the order has compromised the welfare of the child. Accordingly this Court has no jurisdiction to consider an appeal against the issue of the orders of the High Court.

[27]     Mr  Pyke  contended  that  the  Law  Commission’s  classification  of  the exception concerns “custody cases”, not issues in such cases, and that this Court has jurisdiction.

[28]     He submitted in the alternative that the order recorded at [44](b) was not made pursuant to the Habeas Corpus Act but in exercise of the High Court’s inherent jurisdiction under s 16 of the Judicature Act 1908.  Accordingly it is unaffected by the limitation within s 16 of the Habeas Corpus Act and falls instead within s 66 of the Judicature Act conferring a right of general appeal.

[29]     We accept in principle Mr Pyke’s primary argument.  As to the interpretation of s 16(1)(b), we consider a construction that would grant jurisdiction more natural than the alternative.  Section 5 states the purposes of the Act to include:

(b)      …the expeditious determination of [habeas corpus] applications:

(c)       to provide certain unsuccessful parties in habeas corpus proceedings with a right of appeal to the Court of Appeal:…

[30]     The classification for the purposes of the exception is of certain parties not of certain issues.   It is clear from the Law Commission’s report that the parties are marked out by whether their case is a custody case.   The substantive issue in this case  is  undoubtedly the  welfare  of  Jayden  Headley;  its  fundamental  concern  is accordingly the custody of a child.  In adopting the Law Commission’s very words Parliament may be taken to have adopted the categorisation proposed by the Commission.  So in terms of s 5 of the Interpretation Act 1999 the case is within the policy of the measure.  It is equally within its text.

[31]     If Heath J’s order were a final order we would have held that Mr Pyke has established the jurisdiction of this Court without recourse to his argument on the alternative point, which we therefore do not need to determine.   We return to the alternative point in the later discussion of Barnardo v Ford; Gossage’s case [1892] AC 326 at [67] below.

[32]     But as will  later  appear  we have concluded  that  Heath  J’s  order,  which contemplated a further hearing on 25 October, was not a “final determination” and accordingly the appeal must fail on that ground.  Since that point was not argued by counsel, if we were of the opinion that the appeal might otherwise have succeeded we would have restored the case for further argument.   But for the reasons that follow we are satisfied that it could not.

Breach of natural justice

[33]     It was further contended for the appellant that the rapidity with which Heath J

undertook the hearing on 18 October 2006 infringed a facet of Ms T’s right to

natural justice guaranteed by the common law and s 27(1) of the Bill of Rights: that she should have adequate time to prepare her case.

[34]     In all litigation the procedures must be proportionate to the occasion.  But in an abduction case little time is needed for a defendant either to produce the child or to depose to what has happened.   Here the appellant’s position may or may not have been complicated by issues of self-incrimination.  But whatever the position before the High Court, by the time of the hearing in this Court any problem of time had been cured.  Since there could be no complaint of breach of natural justice as a result of lack of time for preparation in this Court, any deficiency in the first instance hearing in this respect was cured.  On the authority of Calvin v Carr [1980] AC 574 (PC) we reject the argument of inadequate time to prepare in the High Court.

[35]     We are not however to be taken as suggesting that there was any breach of natural justice at first instance.  The time pressures imposed on the appellant are to be viewed in the  context of the evidence that she had  abducted  a  child  whose whereabouts remain unknown.

[36]     Of its very nature habeas corpus is a rapid and summary remedy.   That is made clear by s 5:

5    Purposes

The purposes of this Act are –

(a) to reaffirm the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty:

(b) to make 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; …

[37]     We have already mentioned this last purpose and noted the general exclusion of appeals by parties other than the person detained.  The allusion to history recalls the legislation that remained in force until 25 May 2001: the Habeas Corpus Act

1640 which provided for treble damages to be paid by a judge who delayed in proceeding to examine the cause of detention for more than three days after the return of the writ; the 1679 Act which imposed the three day time limit (carried over

to s 9(3) of the 2001 Act) and imposed a £500 penalty on any judge, from the Lord Chancellor down, who wrongly denied habeas corpus; the 1816 Act which strengthened the powers of the Court to enforce the writ by process of contempt. The history of the writ is a powerful pointer to expedition.

[38]     Section 7(5) excludes discovery and security, which are other avenues for delay and s 19(1)(a) subjects, to contempt of court, a person who wilfully hinders the prompt disposal of an application.

[39]     Importantly,  the  High  Court  fixture  must  be  allocated  no  later  than three working days after the application is filed.   Sections 9, 10 and 17 require applications and appeals in habeas corpus cases to be given precedence over all other matters before the High Court or this Court.

[40]     Furthermore, as Heath J observed (at [39]), by s 14 once a Judge is satisfied that a person is being detained by another the Court “must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention” if the defendant fails to establish that the detention of the detained person is lawful. Either the application must be refused or the writ must issue.

[41]     So Heath J was right to bring to the application before him the concern for expedition that the legislation requires.

Lack of evidential base for decision: what is the proper approach?

[42]     Mr Pyke’s next submission was that there was no sufficient evidential base for Heath J’s making any order against the appellant.  He sought to contend that the evidence did not establish that the appellant had participated in the abduction and argued with force that, whatever her initial role, there was no evidence that the child was now in her hands and accordingly there was no jurisdiction to make any order against her.

[43]     Relevant to that submission is the opinion expressed in Barnardo at 335 that where it is established that a party who had been implicated in the detention of a

person was now dissociated from the detention, no order could be made against that party.  Because habeas corpus was ordered the discussion was not necessary to the decision.    The  actual  decision  was  that  the  order  should  stand  because  further enquiry was needed as to whether Dr Barnardo in fact still had the child in his custody or control.

[44]     Section 7 of the Habeas Corpus Act has superseded former procedures by providing simply that the application for a writ of habeas corpus is made by originating application under the High Court Rules.   The writ, of which a form appears in the Schedule to the Act, commands the defendant or other person in whose  custody  the  detained  person  is  alleged  to  be  detained  immediately  to discharge and release that person from custody.

[45]     The authorities include much discussion of arcane and obsolete procedures. The abolition of the forms of action coupled with the new New Zealand regime allow the Court to focus on what procedures are appropriate to the case.

[46]     The general rule is that the writ of habeas corpus should be directed to the person   who   has   physical   custody   of   the   prisoner:   Sharpe,   The   Law   of Habeas Corpus, (2ed 1989) at 175.   The writ may be directed to several persons where there is some doubt as to who has custody, or, to some person other than the jailer or actual custodian of the party detained: Sharpe at 176.  It is also clear that the writ may also be directed to a person who, while not having custody of the child, has control over the child: Sharpe at 178, and see  Re H [1960] SASR 55 at 56 (SC) per Reed J.

[47]     At first sight Heath J’s orders could be seen as final determinations.  He did not state that he was exercising the s 11 power to make interim orders.  At [39] he said that his factual findings “bring s 14 into play” and referred to the entitlement under s 14 to the issue of the writ.

[48]     But the order at [44](a) is followed by those in (b) with which it must be read. The form of the latter clearly contemplated a further order.  Moreover at [50]-[51] the Judge adjourned the application and referred to the possibility of further orders.

In the case of parties other than Ms T the final determinations were later made by

Keane J on 25 October.

[49]     While  [44](a)  is  expressed  as  a  final  order  for  the  release  of  the  child, paragraph (b) makes it plain that it is not in fact a final determination as against any defendant, and in particular as against Ms T.  Read with order (b), Heath J’s order (a) ([15] above) was plainly conditional on the defendants being able to bring Jayden before the Court and on the result of the factual enquiry that would take place on

25 October.   We therefore construe the order as it affects Ms T as interim, under s 11, rather than as a final determination.

[50]     Heath  J’s  orders  were  the   equivalent  of   an  interlocutory  mandatory injunction, made before the defendants had had the opportunity to respond on oath to the claim.  While they were made on notice the process was equivalent to a Pickwick procedure (see Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213) and closely analogous to the English ex parte procedure described by Sharpe at 218-9.

[51]      Section 14 provides:

14       Determination of applications

(1)       If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

(2)       A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention…

(3)       A Judge must determine an application by —

(a)      refusing the application for the issue of the writ; or

(b)      issuing the writ ordering the release from detention of the detained person …

[52]     Section 15 provides:

15       Finality of determinations

(1)       Subject to the rights of appeal conferred by section 16 of this Act…, the determination of an application is final and no further application can be made… on grounds requiring a re-examination by the Court of substantially

the same questions as those considered by the Court when the earlier application was refused. …

[53]     It is convenient to repeat s 16:

16       Certain unsuccessful parties may appeal

(1)       The provisions of the Judicature Act 1908 relating to appeals to the

Court of Appeal against decisions of the High Court in civil cases –

(a)       Apply   with   respect   to   a   determination   refusing   an application for the issue of a writ of habeas corpus; but

(b)       Do not apply to a final determination that orders the release from detention of a detained person unless the substantive issue if the welfare of a person under the age of 16 years…

[54]   It will be seen that s 16 speaks both of “determination” and of” final determination”.  Despite the statutory emphasis on expedition the High Court is not necessarily required to determine the case within the statutory three days within which the application must receive a fixture.   On the contrary, more time may be required.  In some cases cross-examination on the defence affidavits may be needed: Barnardo v Ford at 340; Khawaja v Secretary of State for the Home Department [1984] AC 74 at 101 per Lord Wilberforce. Lord Bridge in Khawaja suggested at

124-5 that in the past the discretion to permit cross-examination “had been too sparingly exercised”.  In other cases oral evidence may be taken and the deponents cross-examined:  Eshugbayi  Eleko  v  Officer  Administering  the  Government  of Nigeria [1931] AC 662 at 675 per Lord Atkin.

[55]     At 79 of his text Sharpe refers to the option of trying an issue.   While proposing that a rule of court might be adopted to provide for that option he cites at

78 authority, including the Privy Council decision Ex parte Gregory [1901] AC 129, where such a course was adopted without express provision in the rules. He states (at 79):

If the substantive law allows or requires the court to deal with a question of fact,  it  is  inexcusable  to  pretend  that  procedural  difficulties  prevent  a thorough investigation.

[56]     We  respectfully  agree.    We  note  that  in  the  New Zealand  context  such investigation would generally fall within the scope of s 14(2).

[57]     The  interim  order  (a)  pronounced  by  Heath  J  was  both  lawful  and proportionate to the requirements of the case.  It was procedurally appropriate in this case where, in view of the order of the Family Court, although the facts were not fully before him there was, on the face of it, no justification for any detention. The further orders in (b) were primarily focused on the defendants’ contact with Jayden  since  he  was  taken  and  their  knowledge  of  how  he  might  be  located. The former is logically related to the latter: information about what had happened to him would tend to assist the enquiry as to where he now is.   Order (b)(v) was premised on the defendant having had involvement in the abduction but being unable to bring Jayden before the Court.  That order warrants further discussion and requires further analysis of habeas corpus.

[58]     There is much authority to the effect that habeas corpus is essentially a lis between the applicant and the respondent, activated by service of the writ or an order to make a return.  For this reason rules of court normally require personal service, although substituted service has been ordered: Clark and McCoy The Most Fundamental Legal Right (2000) at 15-16 citing English, Irish, Canadian, Rhodesian and Victorian authority as well as the decision of this Court in Jayamohan v Jayamohan (1997) 15 FRNZ 486.

[59]     There is no higher interest than the liberty and dignity of  an individual. The constitutional  importance  of  habeas  corpus  is  its  power  and  flexibility  in responding rapidly and effectively to protect that interest.  It provides the machinery to deliver on the right conferred by the Magna Carta of 1215 that:

No free man shall be taken or imprisoned or disseized of his… liberties…

save by the law of the land.

[60]     Yet there is some tendency to retain both the formality and the limitations accepted a century ago.

[61]     The  formal  process  of  writ  demanding  return  and  return  to  the  writ  is illustrated by Re Thompson (Habeas Corpus) – The Queen v Woodward, Captain of Her Majesty’s Ship The Duke of Wellington (1888) 5 TLR 540. The case presented an extraordinary spectacle. A 17 year old youth who, having enlisted in the

Derby Militia, had been arrested as being a 24 year old deserter of another name and summarily imprisoned and kept incommunicado for ninety days by way of punishment.   On the day the writ was issued the captain, under orders from the Admiralty on the advice of the Treasury Solicitor, sent the youth under arrest to his regiment from where he was taken by the police. The captain, in answer to the rule (or order nisi) for the writ, asserted that the youth was not and never had been since the writ was issued in his control.  The Court regarded this as an attempt to evade the process and ordered the writ to issue and the captain to make a return to it on the final day of the sessions.  The youth was sitting in the courtroom in military uniform with a Marine corporal, supposedly charged with theft rather than the desertion he alleged was the ground of his detention.  But rather than being in police custody for theft he had been taken back to the ship and kept in navy custody for desertion.

[62]     The captain had simply presented the youth and made no return by affidavit to the writ.  The Court held that the production of the youth in naval custody, with no return to the writ, was unlawful.  The judges stated vehemently that:

We have been prevented from exercising our jurisdiction for the protection of the liberty of the subject by some arrangement between the Admiralty, the military authorities and the police.  No return has been made to our writ and we cannot take cognizance of the case.

The Court ordered the arrest of the captain, who was admitted to bail and ordered to make a proper return to the writ and answer interrogatories on oath.  The hearing was adjourned to the next sittings.

[63]     Nowadays, as Sharpe records at 219, the hearing of the application becomes almost  invariably  the  substantive  hearing  although  in  some  cases  the  precise formality of Re Thompson may be appropriate.

[64]     Barnardo  was  decided  four   years  after  Thompson  in  the  formalistic atmosphere of the era.  Dr Barnardo had received a destitute boy, Harry Gossage, into one of his homes at the request of a clergyman.  The boy’s mother had written to ask that the boy be kept in the home because she could not afford to keep him. On 11 November 1888 a letter was written on behalf of the mother to Dr Barnardo saying that the boy’s mother wanted a Catholic home for him and that a Catholic

institution was prepared to accept him.  On 16 November Dr Barnardo transferred the boy to the care of an American visitor to England.  He deposed that the American was fit and proper to assume the care of the boy and that since he had handed the boy over he had not heard from the American, did not know where he and the boy were, and had no means of contacting them.   There was an unresolved dispute whether Dr Barnardo had given the boy to the American before he knew of the mother’s desire to recover him or whether he had sent the child away to evade process.

[65]     The Lords considered that the purpose of the writ was to facilitate the release of persons actually detained in unlawful custody, not a means of inflicting penalties upon persons by whom they were at some time illegally detained.  Lord Watson said at 334:

Accordingly, the writ invariably sets forth that the individual whose release is sought… is taken and detained in the custody of the person to whom it is addressed.

And Lord Hershell at 339:

The terms of the writ require the recipient to have the body of the person named in it… This indicates that the very basis of the writ is the allegation… that the person to whom it is directed is unlawfully detaining another in custody.  To use it as a means of compelling one who has unlawfully parted with the custody of another person to regain that custody, or of punishing him for  having parted  with  it,  strikes  me…  as being a  use  of  the  writ unknown to the law and not warranted by it…. If… it had been an admitted fact that before notice of the application for the writ [Dr Barnardo] had ceased to have the custody of or any control over the boy alleged to be detained,  that  might  have  been  ground  for  [exonerating  Dr  Barnardo]. But where  the  Court  entertains  a  doubt  whether  this  be  the  fact,  it  is unquestionably entitled to use the pressure of the writ to test the truth of the allegation and to require a return to be made to it.

[66]     Dr Barnardo’s appeal was dismissed on the basis that he would be required to make  a  return  to  the  writ  on  oath  and  be  subjected  to  cross-examination. That purpose, rather than the use of the procedure to punish, is in our opinion lawful.

[67]     While the Lords did not say so in terms, their decision had the effect of ensuring that all relevant evidence was heard.   We consider that the procedure of enquiry into the issues of fact as to the detention, which in New Zealand is required by s 14(2), is to be characterised as an integral part of the habeas corpus procedure

rather than a separate exercise which could be the subject of appeal under s 66 of the Judicature Act.  So we do not accept Mr Pyke’s alternative jurisdictional argument ([28] above).

[68]     Barnardo now needs to be reconsidered in the light of modern developments. In terms of authority, in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 the House of Lords, after 14 days of argument held that a person who, albeit innocently and without incurring any personal liability, becomes involved in the tortious acts of others, comes under a duty to assist one injured by those acts by providing to that person full information by way of discovery and disclosing the identity of the wrongdoers. That authority, applied in Ashworth Hospital Authority v MGN Ltd   [2002] 1 WLR 2033 (HL), must apply a fortiori in the case of an actual wrongdoer.   That principle can readily apply to those who provide food or other assistance to Mr Headley.

[69]     Lord Hoffmann in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings [2006] 3 WLR 689, at [19] has said in another context that “[t]he underdeveloped state of the common law means that unifying principles … have not been fully worked out”. That is so in respect of habeas corpus. In Bennett v Superintendent of Rimutaka Prison [2002]

1 NZLR 616 this Court stated:

[60]      …habeas corpus is not to be shackled by precedent.   It will adapt and enlarge as circumstances require…

[63]      We do not consider that the 2001 Act has brought about any change in the substance of the law of habeas corpus… neither has it prevented further judicial development… the 2001 Act is concerned with procedures…

[70]     In terms of principle we are no longer restrained by the forms of action: R v Gyngall [1893] 2 QB 232. The principle in Norwich Pharmacal, the Anton Piller order and the Mareva order were all developed to protect mere proprietary interests.  There can be no reason of principle, beyond that of self-incrimination still to be discussed, why the procedures for habeas corpus should not evolve to meet the needs of the age of the wide bodied jet.  As Lord Carswell demonstrated in A and ors v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249 (HL) at [152], to maintain credibility the law must evolve. In such a case as this there is

much to be said for extending the scope of the writ from one in personam, against specific individuals, to one contra mundum (against all persons), as was done by Anderson J in Tony Blain Ltd v Splain [1993] 3 NZLR 185 and by Sir Andrew Morritt V-C in Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] 1 WLR 1633. That would not only enable an order to be made against all persons who fall within the Norwich Pharmacal principle but allow any person to be summoned to make an affidavit and to be cross-examined who is reasonably suspected of having capacity to shed light on the abduction and its aftermath.  While it is unnecessary for the decision of this case, there must in principle be much force in the contention that a mere witness of an abduction must be compellable in habeas corpus proceedings to provide the Court with any information which might tend to assist the restoration of the person abducted.

Barnardo criteria satisfied

[71]     We are  satisfied  that  on  a  simple  application  of  the  principles  stated  in

Barnardo, the order was consistent with what is contemplated by ss 11 and 14(2).

[72]     The evidence is that the appellant actually carried out the abduction and was recorded on video doing so.  She is a close friend of Ms Skelton, who had previously abducted Jayden to Australia.  The appellant’s role in the carefully planned operation bears out the nature and extent of their relationship.   Ms Skelton’s husband has stated that the appellant knows where Jayden is. The combined effect of s 13(1) of the Habeas Corpus Act and s 128 of the Care of Children Act is that such hearsay evidence is admissible. In the absence of any evidence from the appellant to contradict the claim it was open to Heath J to decide as he did that there was sufficient evidence to make the orders at [44] of his judgment.

[73]     The assertion that Jayden is in the control of his grandfather and that the appellant cannot compel the grandfather to release him does not meet the argument that the appellant has been party to his abduction; that she is so close to Jayden’s mother to have been called upon to participate in the kidnapping and plainly to have the mother’s confidence; and that her conduct has contributed materially to Jayden’s current detention.  The appellant has not only carried out the initial abduction but has

aided  the  subsequent  detention.    Section  66  of  the  Crimes Act  1961  provides examples of where the policy of the law is to impose liability on those who are not the principal offender but who aid, abet, counsel, or procure what is done or party to it.

[74]     More generally, Hart and Honoré Causation in the Law, (2ed), includes in responsibility for causation “cases of assistance… usually described by the use of the word ‘aid’.  The usual case is intentionally providing the means or opportunity for the principal’s act” (at 385).

[75]     The applicant having demonstrated an implication by the appellant in the abduction,  a  legal  burden  is  cast  on  the  appellant  to  demonstrate  effective dissociation from the transaction.

[76]     If it were found that T has intentionally aided the mother’s scheme by playing the critical initial part, she could be criminally liable for the subsequent detention which her conduct has aided.  There can be no policy reason for the remedial civil procedure of habeas corpus to be more limited in its response to such conduct than the criminal law.  It would only be if the appellant satisfied the Court that she had done everything in her power to assist the authorities to find the child and restore him to his father that the consequences of her initial conduct would be exhausted. That has not occurred.

[77]     Mr Pyke elected not to tender the appellant’s affidavit in this Court.  We can understand his reluctance to do so since in the event that there has been implication of the appellant in the abduction by making a statement on oath, the  appellant arguably risks either  (subject to the decision of this Court) being exposed  to  a dilemma that telling the truth may put her at risk of being joined in criminal proceedings which have been issued against the mother, or alternatively facing a perjury  charge.    We  find  it  unnecessary  to  have  recourse  to  Lord Mansfield’s aphorism in Blatch v Arthur (1774) 1 Cowp 63 at 65 that:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.

There is simply nothing to gainsay the respondent’s account.

Doubt whether the Barnardo constraints represent the law

[78]     But we are not persuaded that there remain the constraints upon securing information in support of a claim for habeas corpus suggested in the Barnardo dicta. There can be no reason why a person reasonably suspected of relevant knowledge should  not  be  required  to  give  evidence  of  it,  no  doubt  most  conveniently  by affidavit, and be cross-examined upon it in exercise of the Judge’s responsibility under s 14(2) to enquire into matters of fact.  Such enquiry would in many cases be better performed by counsel appointed under s 99A Judicature Act to assist the Court.   We add that the more limited power conferred by s 129 of the Care of Children Act, which is primarily directed as empowering the statutory Family Court, cannot be read as suggesting limits on the powers of the High Court.

The right to protection against self-incrimination

[79]     The next question is whether Heath J was right in ordering that the appellant make an affidavit as to her knowledge of the abduction and its aftermath, against the submission that to do so might tend to incriminate her.  The common law of England and Australia has been expressed in conservative terms with which the judiciary have  expressed  concern  and  for  which  the  intervention  of  Parliament  has  been sought.  It may be noted that in C plc v P [2006] 4 All ER 311 Evans-Lombe J has been prepared to modify the common law privilege to a degree. In the important sphere of Anton Piller orders Somers J in Busby v Thorn EMI Video Programmes Limited [1984] 1 NZLR 461 at 482-483 (CA) preferred the conservative approach but the decision of the majority of that Court delivered by Cooke J, with the concurrence of Bisson J, has developed the common law of New Zealand. The public interest that property or evidence should not be removed or destroyed was protected by an order requiring the defendant to disclose the names and addresses of all persons responsible for making or supplying videotapes manufactured in breach of copyright. The majority faced directly what they termed the problems arising in the realm of lawyers’ law. They said at 474:

The problem in this case is very much in that realm.   Its ingredients are Judge-made   processes   of   discovery   and   interrogation:   a   Judge-made privilege: Judge-made practice as to the evidence that will be received in a criminal trial.   Experience, first overseas and now in New Zealand, has shown that it is reasonable to put the process to a new use to meet a demand occasioned by the abuse of new technology.  A privilege, established in the

19th century, remains as valuable and as important as ever.  All that is needed is a modification of the practice so as to enable information to be obtained

while preserving the privilege.  In other words, rather than undermining the privilege  against  self-incrimination, the  steps  about to  be mentioned  are aimed at achieving its object.

If a defendant is required to provide information or documents which may include evidence of criminal offences, it  is  reasonable  that it  should  be on condition that they are  not  used for the purpose  of  prosecuting him. In New Zealand in this class  of case  that result  can  be achieved  for  all practical purposes, I think, by two steps.

First, the Court can hold, as a general rule regarding criminal evidence, that the documents and information will not be admissible against such a defendant in any criminal proceedings for an offence relating to the intellectual property or other subject-matter of the action in which the order has been made.  I would hold this to be the rule; it is a reasonable corollary of the order.  Nor is there any threat to the public interest.  Essentially what are being protected are the private property rights of the plaintiff.  The law enforcement agencies of the State have no particular interest in prosecuting the defendant; the public peace and the protection of citizens from violence are not involved.

Secondly, as an aid to ensuring observance of that rule, the plaintiff can be put on terms.  In addition to the undertakings set out in the Chief Justice's orders, the plaintiffs here should now be required to undertake that (except for the purposes of proceedings for perjury or contempt of Court) they will not, either directly or indirectly, use any document which is a subject of the order  or  any  information  obtained  from it  or  from  any  answers  by  the defendant under the order for the purpose of any criminal prosecution of the defendant, nor make the same available to the police for any purpose. [Counsel   for   the   plaintiffs]   indicated   during   the   argument   that   an undertaking  to  this  effect  would  be  forthcoming  here.    As  a  matter  of practice Judges making Anton Piller orders can require similar undertakings in future.

With those joint safeguards there will be no real risk that defendants will incriminate themselves by complying with orders such as were made by the Chief Justice.   Accordingly I would hold that such orders can properly be made,  on  sufficiently  strong  evidence  as  previously  discussed,  in  future cases.

[80]      The argument in support of the protection of property interests must apply with stronger force in relation to the higher interest of protecting personal integrity, and indeed that of a child.   The latter has been reinforced by the policy of child

protection expressed in the Care of Children Act to which the Habeas Corpus Act now refers.

[81]     In our judgment of 26 October, we strengthened the protection contained in the orders of Heath J and of the President with those safeguards.   While we have held that there is no jurisdiction to appeal, as judges of the High Court we possessed jurisdiction under s 57(4) of the Judicature Act 1908 to amend and improve the Court’s interlocutory order.

[82]     Ms T’s entitlement confirmed by the Bill of Rights to refrain from making any statement and not to be compelled to be a witness or to confess guilt (ss 23 (4)(b) and 25(d)) relates to the risk of prosecution or other penalty and does not extend to the eliciting of information in this civil case directed simply at finding and protecting Jayden.  There can be no rational basis for withholding in the search for Jayden information that his abductress can provide given that she is protected from any breach of her right against self-incrimination.  In this way the two high public interests can be reconciled.

[83]     We reserved the right to the Solicitor-General to intervene in the event that in his  opinion  the  public  interest  in  the  administration  of  the  law  of  which  the Law Officers  are  custodians  might  be  infringed.     We  do  not  doubt  that  the Solicitor-General has  given  consideration to consultation with  the police in  this regard before advising that he would not seek leave to intervene. In the absence of such intervention we are of the clear opinion that the public interest lies in bringing the whole force of the law to bear upon the discovery of Jayden and restoring him to his father’s care as ordered by the Family Court.

[84]     We are not minded to exercise the jurisdiction of the High Court to recall either  the  orders  made  by  Heath  J  or  those  which  we  added  on  26 October. We summarise our reasons:

(a)The personal interest of Jayden and the public interest in the prompt and safe recovery of an abducted child whose life is at best on hold, without access to the father who is entitled to his day-to-day care, to

education and to all the other elements of freedom, are of the utmost importance;

(b)While the public interest in the administration of the criminal law is high, the New Zealand Bill of Rights Act subordinates it to the suspect’s right against self-incrimination.

(c)The making of broad orders to protect the interests of children is commonplace  in  New Zealand  as  elsewhere.     We  instance  the decision of Mumby J in In the matter of Brandon Webster, a child; Norfolk  County  Council  v  Webster  [2006]  EWHC  2733  (Fam)

2 November 2006 where the order was made against all persons. [85]          We respond to the Solicitor-General’s points:

(a)Our recital of the respondent’s undertaking to the Court does not detract from the authority of our orders but gives emphasis to the respondent’s obligation to comply meticulously with them.

(b)We consider the prohibition of derivative use to be necessary and desirable, given our assessment of the competing public interests, in order   to   guarantee   the   protection   of   the   appellant   against self-incrimination.

(c)      We are satisfied that our order that the affidavit will not be admissible against the appellant in any criminal proceedings against her relating to the abduction of Jayden Headley is necessary and desirable for similar reasons.

[86]     We therefore decline to recall or amend our judgment that the appeal must be and was dismissed and that the protection of additional orders should be added. Costs are reserved.

Solicitors:

Swarbrick Dixon, Hamilton for the Appellant

Till Henderson King, Hamilton for the Respondent