Teina v Attorney-General

[2007] NZCA 464

IN THE COURT OF APPEAL OF NEW ZEALAND

CA554/07
[2007] NZCA 464

BETWEENTEOKOTAI TEINA

Appellant

ANDATTORNEY-GENERAL

Respondent

Hearing:17 October 2007

Court:Chambers, Randerson and Williams JJ

Counsel:Appellant in person

J C Down for Respondent

Judgment:25 October 2007 at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Williams J)

Issue

[1]       On 17 September 2007 the appellant, Mr Teina, applied to the High Court for an order under the Habeas Corpus Act 2001 for his release from prison. 

[2]       As required by the Act, his application was processed rapidly.  It was heard on 20 September 2007 over a period of several hours during which Stevens J gave Mr Teina every opportunity to present submissions.  At the conclusion of the hearing Stevens J delivered an oral judgment dismissing the application on the ground that Mr Teina was indisputably lawfully detained.  For reasons he gave in his careful and comprehensive judgment, the Judge declined to convert the habeas corpus application into an application for judicial review: HC AK CIV2007-404-5783 20 September 2007.

[3]       By notice of appeal dated 9 October 2007, Mr Teina appealed to this Court.

[4]       Mr Teina’s appeal was heard on 17 October 2007.  Though we formally reserved our decision, it was explained to Mr Teina during the hearing that, with Stevens J, we, too, took the view there could be no challenge to the legality of his detention and accordingly his application under the Habeas Corpus Act must fail.  For essentially the same reasons as Stevens J, we also took the view that it was inappropriate to convert Mr Teina’s application to one seeking judicial review.  He was advised that the best avenue for him to obtain the relief he seeks would be to invoke his rights under the Parole Act 2002.

[5]       Those observations require to be seen against the background of Mr Teina’s circumstances.

Facts

[6]       On 7 May 2007, Mr Teina was convicted on charges of possessing methamphetamine and LSD for supply and on 26 June was sentenced by Harrison J to a term of four years’ imprisonment.  The sentencing Judge signed warrants of commitment for imprisonment under s 91 of the Sentencing Act 2002.  Thus, Mr Teina’s detention is plainly lawful and any application brought by him under the Habeas Corpus Act 2001 in relation to his detention was bound to fail.

[7]       Mr Teina’s complaint, however, is principally directed towards the way in which the Parole Board dealt with him.

[8]       Because, as at the date he was sentenced, Mr Teina had spent 468 days in custody on remand, his parole eligibility date was determined as 6 August 2007. 

[9]       He came before a panel of the Parole Board at Auckland Prison on 3 August 2007 but the panel was unable to deal with his parole eligibility that day as it had no reports from the Community Probation Service or the prison.  With his consent, the hearing was adjourned to the September sitting of the Board.

[10]     That occurred on 6 September 2007 before a differently constituted panel.  The Board’s decision reads:

Teokotai Teina is currently serving a sentence of four years imprisonment for possession of drugs for supply.  He commenced his sentence on 26^th June 2007 and almost immediately became eligible for consideration for parole having remained on remand in custody for a long period.  His statutory release date is March 2010.  Today he again appeared before the Board for the Board’s consideration of his application for parole.

The Board has declined his application because it is quite clear Mr Teina has been regularly consuming drugs while in custody.  He is now IDU 8.  We consider that a person who is not prepared to abide by the rules and conditions of prison demonstrates an undue risk to the safety of the community.  We are therefore unable to consider his application of [sic] parole.  We are quite convinced that if he continues smoking cannabis and other drugs in the environment of prison he is likely to continue to do that in the community and pose undue risk to its safety.  His application for parole is declined.  We will see him in 12 months time.

[11]     The delivery of that decision was preceded by a brief hearing.  Unlike Stevens J, we had the advantage of a transcript of what took place.  It occupies less than one page of typescript.  The operative part occupies only two paragraphs.  It shows the hearing was succinct, perhaps even brusque.  Despite the injunction in s 49(1) of the Parole Act 2000 that Parole Board attended hearings must be conducted “in an atmosphere that encourages persons appearing … to speak for themselves, and as freely and frankly as possible”, if the transcript is accurate, it appears Mr Teina was not given an opportunity to answer the Board’s concerns arising out of the material before it.

[12]     Attached to each of the Parole Board decisions was advice of Mr Teina’s entitlement to seek a review under s 67(1) together with information as to the grounds on which review could be sought.

[13]     Unfortunately, despite the urgency accorded Mr Teina’s application to the High Court and the hearing of this appeal, the 28 day review period for which s 67(1) provides had expired prior to the hearing before us and there appears to be nothing in the Parole Act 2000 giving the Parole Board express power to extend the review period.  Although s 117A gives the Board power to “regulate its own procedure as it thinks fit”, that power is subject to the Act and it may be dubious whether it gives the Board power to extend a statutory review period.

[14]     That said, s 26 gives the Parole Board power after an offender’s parole eligibility date to consider him or her “for release on parole at a time other than when the offender is due to be considered for parole” and also empowers the Board to direct release on parole under s 28.

[15]     As discussed with Mr Teina at the hearing before us, if he wishes to have his eligibility for parole reconsidered – doubtless by a differently constituted Board – prior to expiration of the 12 month postponement order made by the Board on 6 September 2007, s 26 would appear to create an avenue for Mr Teina’s position to be fully re-examined at a hearing at which he would have the opportunity to present submissions in support of his application for parole.

[16]     Should any further parole application Mr Teina filed be unsuccessful, he would, of course, still have available to him rights of review of that decision under s 67 or by judicial review.  Should judicial review of that decision be the more appropriate he was informed he would be well advised to seek legal aid and take legal assistance in preparing the necessary papers so as to ensure compliance with the Judicature Amendment Act 1972.

Result

[17]     In the result, Mr Teina’s appeal is dismissed on the basis that he is lawfully detained and accordingly his application under the Habeas Corpus Act 2001 could not be granted.

[18]     He is left to exercise his rights under the Parole Act 2002.

Solicitors:
Crown Law Office, Wellington