Taylor v Director, Otago Corrections Facility
[2020] NZHC 3405
•17 December 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2020-412-000112
[2020] NZHC 3405
UNDER the Habeas Corpus Act 2001 IN THE MATTER
of an application for a writ of Habeas Corpus
BETWEEN
ARTHUR WILLIAM TAYLOR
Applicant
AND
DIRECTOR, OTAGO CORRECTIONS FACILITY
Respondent
Hearing: 16 December 2020 Appearances:
Applicant in person
B Hawes for Respondent
Judgment:
17 December 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 17 December 2020 at 4.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date 17 December 2020
[1] The applicant, Arthur William Taylor, applies for a writ of habeas corpus alleging that the warrant for his arrest, and consequent recall to prison, issued by Mr Neville Trendle, Panel Convenor, New Zealand Parole Board, is unlawful, invalid and of no legal effect.
TAYLOR v DIRECTOR, OTAGO CORRECTIONS FACILITY [2020] NZHC 3405 [17 December 2020]
[2] The gist of Mr Taylor’s complaint is that on 4 December 2020 Mr Alan Ritchie, Panel Convenor, New Zealand Parole Board, dismissed an application by the Department of Corrections to issue an interim recall notice on Mr Taylor which relied on Mr Taylor being charged with various offences which are to be heard in Dunedin on 17 December 2020. He says, as a consequence of Mr Ritchie’s decision, “the Parole Board was functus officio to determine a further application on the same grounds”. However, following receipt of a draft summary of facts in relation to that offending, an application was made to Mr Trendle on 11 December 2020, resulting in an interim recall order being made.
[3] In Mr Taylor’s submission, the second application was made on the same grounds as the 4 December 2020 application and so it had “all the hallmarks of “judge shopping””, making the order for interim recall which resulted, unlawful, invalid and of no legal effect. As a consequence, he is being unlawfully held by the respondent at the Otago Corrections Facility.
[4] I heard Mr Taylor’s application on 16 December 2020 and at the conclusion of the hearing I dismissed it.1 I advised my reasons would follow. This decision contains those reasons.
Background
[5] Mr Taylor is currently serving a sentence for a large number of charges including drug-related offending. However, he was released on parole in 2019 following a hearing before the Parole Board and was subject to a release licence issued under s 53 of the Parole Act 2002.
[6] An application to recall was made in June 2020 following fresh drug-related charges being laid against Mr Taylor, and on 14 July 2020 the Parole Board found he did constitute an undue risk to the public, but it held that this risk could be mitigated by conditions, including changing his place of residence to Dunedin. Mr Taylor was subsequently released on those conditions on 20 July 2020.
1 Taylor v Director, Otago Corrections Facility [2020] NZHC 3357.
[7] On 4 December 2020, the New Zealand Police informed Community Corrections that they had laid the following additional charges against Mr Taylor:
(a)supplies gamma-butyrolactone (a Class B controlled drug) x 2;
(b)offers to supply gamma-butyrolactone x 3;
(c)offers to supply methamphetamine;
(d)supplies methamphetamine;
(e)possession of methamphetamine for supply;
(f)conspiracy to supply methamphetamine x 2; and
(g)obtains by deception.
These charges all related to events which had occurred prior to Mr Taylor being re-released on parole on 14 July 2020.
[8] On the same day as these charges were laid, Corrections applied to recall Mr Taylor to prison to resume his sentence, pursuant to s 60 of the Parole Act 2002. Upon receipt of such an application, the Chairperson or any panel convenor of the Parole Board must consider whether to make an interim recall order, pursuant to s 62 of the Parole Act.
[9] Mr Alan Ritchie, a Panel Convenor of the Parole Board, received the 4 December 2020 application but did not make an order pursuant to s 62. He made the following note on the application:
The further charges outlined in this application are of some seriousness but it is significant that no advice is provided about arrest by the police or a summary of facts. In those circumstances, it is inappropriate for any order for recall to be made on an ex parte basis. The application will be determined in accordance with the usual statutory provisions, although it is open to the applicant to file a revised application.
[10]The recall application was allocated a hearing on 14 January 2021.
[11] A second application was made by Corrections on 11 December 2020 with further information. This was accompanied by a further affidavit which annexed the draft Police summary of facts, a statement from a police officer regarding the history of laying the further charges and when the summons was served on Mr Taylor, along with extracts of transcripts and telephone calls alleged to have been made by Mr Taylor and which were relied on to support some of the charges.
[12] Panel Convenor, Mr Trendle, determined the application and ordered that Mr Taylor be recalled to prison on an interim basis pending determination of the recall application. His note dated 11 December 2020 reads as follows:
Although the alleged offending occurred prior to the recall hearing on 14 July, the additional information contained in the summary of facts as part of annex C to the applicant’s affidavit, satisfies me that Mr Taylor poses an undue risk to the safety of the community. The current conditions of his release do not satisfy me that his risk can be managed by way of parole conditions. An interim recall order is necessary.
[13] Following the making of this order, a warrant to arrest and detain Mr Taylor was issued under s 63 Parole Act and Mr Taylor was then taken into custody.
[14] The recall application is still to be heard by the Parole Board but the date for hearing has been brought forward to 7 January 2021.
[15] An application was made on 14 December 2020 for review of the interim recall decision pursuant to s 67. This application has been considered by Sir Ronald Young, Chairperson of the Parole Board but was not actioned because it was filed by Ms Hazel Heal, who was neither the applicant nor a practicing lawyer. I understand it has since been clarified that Mr Taylor is bringing the application for review and I expect it will be considered expeditiously.
The Habeas Corpus Act 2001
[16] Mr Taylor’s application is governed by the Habeas Corpus Act 2001. It permits, as Mr Taylor has done, an application to be made challenging the legality of a person’s detention by an application for a writ of Habeas Corpus.2 Such applications
2 Habeas Corpus Act 2001, s 6.
must be dealt with urgently. Given the importance placed on an individual’s liberty, and in accordance with s 9 of the Act, such applications must be heard no later than three working days after the date on which the application is filed.
[17] In determining an application, the onus is on the defendant to establish that the detention of the detained person is lawful, and this Court must grant a writ of habeas corpus if the defendant fails to do so.3 However, s 14(1A) provides that this Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if, relevantly, the application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.4
[18] In that regard, Mr Hawes’ submissions point out that a writ of habeas corpus is generally not the appropriate procedure for challenging decisions of the Parole Board.5 Mr Hawes relies on a number of authorities to support this approach, but it is sufficient to cite Drever v Auckland South Corrections Facility, where it was said:6
… 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 2002] where, on its face, the applicant’s detention is lawful.
[19] However, an exception to this general principle can be found in Kurariki v Singh, Manager of Mt Eden Prison, where Mr Kurariki had been recalled to prison on an ex parte basis and where, in the particular circumstances, Harrison J considered the case fell into the “rare category” where habeas corpus was the appropriate vehicle for challenging the lawfulness of the interim recall decision.7 However, in that case the order was held to be made upon “hearsay evidence in the nature of suspicion”8 of cannabis use and the Court held that more was required to conclude that Mr Kurariki posed an undue risk to the community.9
3 Section 14(1).
4 Section 14(1A).
5 Lyon v The Manager, Hawkes Bay Prison HC Auckland CIV-2006-404-6680, 24 November 2006; Huata v Chief Executive, Department of Corrections [2013] NZHC 3569; Ericson v Attorney-General [2019] NZHC 2728; and Hindman v Chief Executive of the Department of Corrections [2013] NZHC 6.
6 Drever v Auckland South Corrections Facility [2019] NZCA 346 at [32].
7 Kurariki v Singh, Manager of Mt Eden Prison [2008] NZAR 625 (HC) at [11].
8 At [19].
9 At [23].
Submissions
Mr Taylor’s submissions
[20] As signalled in his application, Mr Taylor’s submission was that there was no material difference between the information available to the Panel Convenor on 4 December 2020 and that available to the Panel Convenor on 11 December 2020, and there was, therefore, no jurisdiction for the Panel Convenor on the subsequent application to make a fresh decision overruling the first decision. In Mr Taylor’s submission, the summary of facts did not materially add to the charge list and, in any event, Mr Ritchie, who made the decision on 4 December 2020, was aware of the factual background to the allegations which supported the fresh charges because they were known when he was granted parole on 14 July 2020, and yet had not considered it sufficient to deny Mr Taylor parole.
[21] In Mr Taylor’s submission, Mr Ritchie envisaged that something more than what was provided with the 11 December 2020 application would be required to satisfy the Parole Board that he was an undue risk and that an interim recall order should be made. Furthermore, he pointed to the fact that he was not arrested on the subsequent charges but merely summonsed by the Police. That supported the conclusion there was no immediate need to recall him to prison.
[22] Mr Taylor also queries the legality of making successive applications for interim recall orders when the first is rejected. He points out that s 64 of the Parole Act provides the procedure for the Board when no interim recall order is made. It requires the offender to be served with a copy of the recall application and a notice under s 63(3), advising the offender of the date the application is to be determined and of her right to appear. Section 65 then states strict timeframes in which the application must be heard. Mr Taylor says there is a risk that if successful recall applications can be made, then it is unclear how the statutory process is affected and it could lead to delays in the substantive recall application being heard.
The defendant’s submissions
[23] Mr Hawes submits that Mr Taylor is lawfully detained by virtue of an order made, and authorised to be made, by a Panel Convenor of the Parole Board pursuant to s 62 of the Parole Act. The material before Mr Trendle was of a substantial nature and provided reasonable grounds for the purposes of making an interim recall order under s 62 of the Act.
[24] Mr Hawes rejects the suggestion that when Mr Trendle made a decision on 11 December 2020, he was functus officio. He says, here, the two panel convenors were provided with different information, with Mr Trendle having the benefit of a summary of facts and other material regarding the further charges that Mr Taylor faced. Mr Ritchie was implicitly critical of the lack of information filed on 4 December 2020 but clearly left open the possibility of a further application being made which provided more information. His decision did not prevent reconsideration of the risk assessment that Mr Taylor poses, on a different factual basis.
[25] In terms of Mr Taylor’s assertion he does not comprise an undue risk to the safety of the community, Mr Hawes says that Mr Taylor has other more appropriate avenues of challenge available, including review under s 67, and the hearing of the recall application on 7 January 2020. He says both of these avenues provide mechanisms for all of the applicant’s arguments and challenges to be put before the Parole Board. Furthermore, the Parole Board is subject to the oversight of the High Court by way of judicial review.
[26]Accordingly, he argues the application should be dismissed.
Analysis
[27] I dismissed the application for a writ on 16 December 2020. My reasons for doing so are as follows. The application is founded on the assertion that when Mr Trendle considered the recall application, he was faced with exactly the same material as Mr Ritchie had when the first application was made. That is plainly incorrect. Mr Ritchie made it clear that he had insufficient information on which to make an interim recall order, but indicated the type of information he would require
to support such an application. The application received and considered by Mr Trendle was supported by such further information. I am satisfied therefore he had jurisdiction to consider the further application and make a fresh decision on it.
[28] Furthermore, and distinguishing this case from Kurariki,10 the charges and the summary of facts appear, on their face, to provide a reasonable basis for making an interim recall order under s 62. The allegations involve serious drug offending as well as obtaining by deception. The evidence reached the threshold for a decision to be made to charge Mr Taylor. That took the allegations beyond mere speculation. I am satisfied, therefore, that it was open to the decision-maker to make the interim recall order. Whether the conclusion that Mr Taylor is an undue risk to the public is correct when considered more fully at the recall application hearing is not for this Court to determine on an application for a writ of habeas corpus. As Courtney J said in Hindman, this does not fall “into the category of rare cases that would justify an enquiry [into] an apparently valid decision to issue an interim recall order and warrant”.11
[29] To the extent that Mr Taylor may wish to take issue with the substance of the decision (which he does), the appropriate forum for him to take that up is in his application for review under s 67 or in the 7 January 2021 hearing.
[30] Finally, I do not consider there is any merit in the submission that successive applications for interim recall orders could lead to improper delay. When an application for recall is made, a date is set to hear it. It must proceed regardless of whether an interim recall order is made or rejected. In this case, the revised application for an interim recall order should not have resulted in the deferral of the recall application hearing. Indeed, in this case, it was in fact brought forward from 14 January 2021 to 7 January 2021. There has been no prejudice to Mr Taylor by the subsequent application for an interim recall order being made.
10 Kurariki v Singh, Manager of Mt Eden Prison, above n 7.
11 Hindman v Chief Executive of the Department of Corrections, above n 5 at [6].
Result
[31] For the above reason, the application for a writ of habeas corpus was dismissed on 16 December 2020.
[32] I also note that at the conclusion of the hearing Mr Taylor sought a direction that Ms Heal be authorised to file an appeal on his behalf, citing difficulties in him doing so from prison. I decline to make such an order but expect Corrections staff to facilitate Mr Taylor exercising his right to appeal this and other decisions.
Solicitors:
Raymond Donnelly & Co., Christchurch Copy To: Mr Taylor
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