Waa v Chief Executive, Department of Corrections HC Wellington Civ-2006-485-2614

[2007] NZHC 1688

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2006-485-2614

UNDER  the Judicature Amendment Act 1972

BETWEEN  WUTI WELLINGTON WAA Plaintiff

AND  CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

First Defendant

AND  NEW ZEALAND PAROLE BOARD Second Defendant

Hearing:         26 February 2007

Appearances: A F Rickard-Simms for Plaintiff B J R Keith for First Defendant Second Defendant abides decision

Judgment:      28 February 2007

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 10.00am on the 28th day of February 2007.

RESERVED JUDGMENT OF GENDALL J

[1]      Mr Waa is a prison inmate subject to a life sentence for the crime of murder. He brought proceedings, in the form of an informal letter to the High Court dated

15 November 2006 seeking a writ of habeas corpus alleging  illegal detention at

Rimutaka Prison.

[2]      Goddard J dismissed the claim for writ of habeas corpus on 22 November

2006.    Her  Honour went  on,  however, to  say that  the  documents  and  affidavit submitted by the applicant seeking to challenge the validity of an order for recall of

WAA V CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS AND ANOR HC WN CIV-2006-485-

2614 28 February 2007

him to prison, and resulting warrant, were in suitable form to constitute judicial proceedings.  Her Honour said that:

“an inquiry into the validity of his final Recall Order by way of judicial review is appropriate.”

[3]      I have today heard the matter on that basis.  As yet no statement of claim has been filed, nor a statement of defence as directed by Mallon J in her Minute of

15 February 2007.  I am told that that is to follow if there be other and new grounds for review to be advanced.   I have been invited to deal with the judicial review application now in respect of the matters set out below.   Any new grounds incorporated into a formal statement of defence would have to be different.  Counsel for the plaintiff, Mr Rickard Simms, and counsel for the defendants have submitted a “Memorandum of Issues” dated 16 February 2007 and they agree these required a determination by this Court on a final basis.   They say the following issues are relevant:

“1.1     Whether there was incorrect advice to the Board of the effect of the appeal judgment of Ellen France J and, if so, whether so, whether that is consequential [the memorandum then refers to para 6 of a letter purported to be addressed to Judge J Dalmer dated 1 October 2006 which said:

“Why you helped Crown Law counsel Fiona Guy to pervert the  course  of  justice  by  accepting  a  ‘Memorandum  of Counsel for the applicant dated 26 May 2004’ falsely stating that I wasn’t sentence to 14 mth and 18 mth but 36 mths.”]

1.2      Whether  the  adjournments of the  final recall hearing,  which were made with consent of Mr Bott, then counsel for Mr Waa, were nonetheless  invalid  because  Mr  Bott  was  not  authorised  to  give consent ….;  and

1.3      Whether the completion of the order for final recall some months after the recall decision has any consequence for the validity of the warrant….”

Background history

[4]      Mr Waa was found guilty of murder on 19 March 1990 through the shooting of a man during an aggravated robbery.  He was sentenced to life imprisonment in the Auckland High Court and subsequently on 10 April 1990 to concurrent terms of six years and five years imprisonment respectively for aggravated robbery and aggravated wounding.   Whilst serving his sentence Mr Waa was convicted of threatening to kill or do grievous bodily harm to a Corrections manager at Auckland East Prison and sentenced to six months’ cumulative imprisonment on 17 August

1998.

[5]      The plaintiff was released on parole on 27 November 2002, subject to special conditions which were due to expire on 26 November 2004.   Because of his life sentence he remained liable to recall for prison for the rest of his life.   Whilst on parole he committed a raft of offences punishable by imprisonment.   In the early hours of the morning of 15 August 2003, after a lengthy car chase, the plaintiff was arrested and subsequently convicted on 27 November 2003 in the Masterton District Court of reckless driving, failing to stop, possession of an offensive weapon, assault with a weapon (x2), resisting arrest, possession of cannabis, theft of a motor vehicle and possession of ammunition.    On the assault  with  a  weapon  charges  he  was sentenced to cumulative sentences of 18 months’ and 14 months’ imprisonment, making a total of 32  months’ imprisonment.   On the charge of possession of a firearm and  ammunition he  was  sentenced  to  a  further  six  months’  cumulative imprisonment.     That  six  months’  sentence  later  was  quashed  on  appeal  by Ellen France J on 21 May 2004.

[6]      Apart from those offences the plaintiff committed a spate of burglaries in June  2003  in  the  suburbs  of  Masterton.     After  a  defended  hearing  in  the District Court at Masterton on 5 October 2004 he was convicted of seven counts of burglary and one of unlawfully taking a motor vehicle and sentenced to 21 months’ imprisonment, such to be cumulative upon the other cumulative sentences imposed as a result of events of 15 August 2003.

[7]      By reason of those events an application for recall was filed on 10 September

2003.   This was on the basis that the plaintiff committed offences punishable by imprisonment, breached release conditions, and posed an undue risk to the safety of the community.   The application contended that the plaintiff deliberately breached the four release conditions as to residence, movement, reporting and employment and apart from living without permission at unapproved addresses, he had failed to report on 11 occasions.  The ground of him being an undue risk to the safety of the community was said to be supported by his choosing to live a transient life, disregarding safeguards provided by parole conditions, not reporting so as to avoid oversight management and control, and undisciplined behaviour culminating in the offending  so  that  he constituted  an undue risk  to the  safety of the  community. Whilst it was said that the sentences arising out of events of 15 August 2003 totalled

38 months’ imprisonment and were “later upheld on appeal” that was not accurate because the cumulative sentences in respect of those matters which were upheld on appeal totalled 32 months.

[8]      An interim recall order was made on 25 September 2003 with a hearing of the application for final recall scheduled for 22 October 2003.  That was adjourned by consent and it was on 27 November 2003 that the original cumulative sentences of 38 months’ imprisonment were imposed in the District Court.  They were subject of appeal and accordingly of the final recall application hearings were adjourned on

17 December 2003 and thereafter on four other occasions in early to mid-2004, pending  the  appeal  against  conviction  and  sentence.    This  was  determined  by Ellen France J in the High Court at Wellington on 21 May 2004.

[9]      Throughout that time the plaintiff was represented by counsel (Mr Bott) who also appeared for him when the recall application was finally dealt with at a formal hearing on 30 July 2004.   The application was sternly contested and 12 detailed submissions were advanced by Mr Bott as to why the application was “defective”.  It seems  that  the  plaintiff  and  other  deponents  who  made  affidavits  or  gave  oral evidence  were  cross-examined  before  the  Board.     Written  submissions  were received.  The Convenor of the Board, Judge Dalmer, identified the issue as being whether all or any of the grounds for the final recall order had been made out, and if

so, whether the Board should exercise its discretion in favour of the recall order being made.

[10]     In a carefully reasoned decision delivered by Judge Dalmer recording the date of hearing as being 30 July 2004 but the date of decision being (“ August

2004”) the Board found the grounds for recall to have been clearly made out.  The

Board concluded:

“Our discretion is  exercised in  favour  of  granting  the application.    The evidence presented on all three grounds raises serious issues about Mr Waa’s suitability for parole.   He has  committed further  offending,  sufficient  to attract a 38 month sentence of imprisonment even with a credit for guilty pleas factored in.  His performance on parole was unimpressive, viewed in the  round.     The  breaches  cover  residence,  employment,  moving  and reporting.   Essentially Mr Waa was not prepared to comply with basis conditions intended to support his life in the community outside prison.  His non-compliance with those conditions  led,  predictably  and  inevitably,  to further serious offending which caused extreme danger on two occasions to a uniformed constable carrying out his duty on behalf of the community.”

Of course the reference to a sentence of 38 months is incorrect, given the decision of Ellen France J on 21 May 2004 but only to the extent that the term of imprisonment was 32 months.

[11]     It seems that the final recall order was not communicated to the plaintiff, in any formal sense, until some time in October 2004.  As Goddard J observed, he was in the lawful custody by reason of the finite sentences he was serving.  And also, I add, because of the interim recall order.  The final recall order, as was the warrant for arrest and detention of the plaintiff, is dated 30 July 2004.   That is, they are apparently backdated to the date of hearing.   At that time the plaintiff had been returned to Rimutaka Prison pursuant to the sentences imposed by the District Court and also pursuant to the interim recall order made on 25 September 2003.   The plaintiff says the warrant and order is invalid because it was “backdated”.

[12]   The subsequent convictions and cumulative sentences of 21 months’ imprisonment imposed in the District Court at Masterton on 5 October 2004 were the subject  of  an  unsuccessful  appeal  it  being  dismissed  in  the  High  Court  on

7 December 2004.  The plaintiff sought leave to appeal to the Court of Appeal the judgment of MacKenzie J and the earlier decision of Ellen France J but such was

declined.   Thereafter, there were applications for release on parole made by the plaintiff on 3 June 2005, 14 September 2005 and 20 September 2006, all of which were unsuccessful.   These proceedings were filed on 16 November 2006.   An unsuccessful application to the Panel Convenor was made on 24 November 2006 seeking to review the last decision declining parole on 20 September 2006.

[13]     I turn now to deal with the three issues contained in counsel’s memorandum. The Board appears to have been incorrectly advised that the effect of the appeal judgment of Ellen France J was that a sentence of 38 months’ imprisonment was upheld rather than 32 months.  That error seems to have arisen because it was made by Mr Bott, counsel for Mr Waa, who so advised the Parole Board.  The mistake is understandable given that the High Court at Wellington, in the Certificate of Result of Appeal, referred only to the appeal being against a conviction “on the shotgun charge” being allowed.   That document omitted to include or note that the charge itself was possession of a shotgun and ammunition.  Indeed, the District Court Judge in  his  sentencing  notes  referred  to  “the third  matter  was  for  possession  of  the shotgun” and it was in respect of that that he imposed the six months’ cumulative sentence.    Probably confusion arose as to  a separate  “charge”  of possession  of ammunition but on fact that must have been included in the charge disposed of by Ellen France J.

[14]     Later, when that  matter was reheard in the District  Court  (with Mr  Bott representing the plaintiff) the Judge did not refer at any place in his decision to the charge incorporating ammunition, simply dismissing what he said was a charge of possession of a “sawn-off 12 gauge shotgun except for some lawful purpose”.

[15]     In any event the only issue is whether reference to an effective cumulative sentence of 38 months rather than 32 months is something which amounts to reviewable error of the recall decision.  I am satisfied by a wide margin that it is a non-consequential technical error.   Recall grounds are not dependent upon the plaintiff receiving a sentence of a particular length, but rather that he has committed serious offending whilst on parole, had breached terms and conditions of parole the non-compliance with which had led to serious offending, and caused extreme danger to the community (a police officer).  That some mistake may have arisen on the part

of counsel and others as to the eventual sentencing outcome is immaterial.  It could not possibly be said to have led to the final recall decision being  invalid and a nullity.

[16]     The second issue framed by counsel relates to the contention by the plaintiff that he did not consent to the adjournments of the application for the final recall hearing.  It was contended before me that he agreed to the first adjournment but at no subsequent time did he agree because he wished the application to be dealt with quickly so that he knew of his status when it came to making applications for parole, whether  based upon the expiration of certain portions of his  finite sentences or otherwise.    He  contends  that  when  the  matter  finally  came  to  be  heard  and determined on 30 July 2004 the Board was acting outside its jurisdiction having no basis upon which to proceed on an adjourned date to which consent had not been given.

[17]     Pursuant to s62 an interim recall order may be made on the grounds that an offender poses an undue risk to the safety of the community or to any person or class of persons and,  if an  interim recall order  is  made,  s65  requires the  final  recall application to be made at least 14 days after but not more than one month after the date  of  the  interim  order,  unless  in  terms  of  subsection  (5)  there  may  be adjournments if the offender consents.  That provides:

“…the Board may from time to time adjourn the hearing of a recall application;   but no adjournment may be for more than 8 days, unless the offender consents to a longer period.”

[18]     Whilst the plaintiff, in November 2003 had Mr K Daniels representing him, thereafter Mr Bott was his counsel continuously at least up until 5 October 2004 when he was sentenced by Judge Tuohy in the Masterton District Court.   He had agreed to the adjournment of the 22 October 2003 hearing.  He was later to appeal the outcome of the District Court sentencing of 27 November 2003.  On 4 May 2004

Mr Bott in a consent memorandum signed by him as counsel for the plaintiff as well as counsel for the applicant for the recall order, sought an adjournment “until a date after  Wednesday  2 June  2004”  to  provide  opportunity  for  the  appeal  before Ellen France  J  to  be  disposed  of.     There  is   material  which  confirms  that subsequently,  Crown counsel was advised  by Mr  Bott that  he had  received  the

plaintiff’s consent to this adjournment.  Ellen France J heard the appeal on 21 May

2004.  It is obvious that the plaintiff did not wish the final recall application to be determined until the outcome of his appeal was known because he may well have the benefit of a favourable result.   That was the very reason that the application was adjourned from time to time.

[19]     When the recall application proceeded on 31 July 2004 it was in the presence of Mr Bott and the plaintiff, with the latter having filed his own affidavit and being cross-examined before the Board.

[20]     In the absence of any affidavit or other evidence from Mr Bott that he did not have authority to consent to the various adjournments the Court cannot conclude that there was any breach of s65(5).  If such had occurred there was a clear remedy then available to the plaintiff.   That is, he could and should, have demanded that the application be heard.  As I have said, it was in his interest that he obtain the benefit of any appeal decision of Ellen France J before the application was heard.  Until that occurred the interim recall order remained in force.  This matter does not provide a ground of reviewable error.

[21]     I  deal with  the  argument  that  the  recall  order  was  made  in  August  but “backdated” to 30 July 2004 and was, as a consequence, void.  Counsel contended that the plaintiff had review rights to the Board decisions pursuant to s67 and such were jeopardised by such “backdating”.

[22]     Counsel  for  the  defendants  accepted  in  argument  that  there  had  been  a mistake in the dating of the formal order and warrant.   Nevertheless, he submitted that that did not render the final recall order invalid.  That was especially the case where an interim recall order and warrant had been issued which remained in effect until determination of the final application.

[23]     In the end I do not think it is material whether the warrant was mistakenly given an incorrect date or not, because it is clear that a final decision to recall was in fact made.  It was made on grounds which are thoroughly recorded.  The order was valid.   Of course the plaintiff was then in custody and had 28 days to apply for a

review “of the decision”.  But such time limit cannot run until receipt of a decision by an inmate because without knowing of the decision there is nothing to which he can respond.  Beyond doubt the plaintiff was aware of the recall decision from some time in October 2004 given that he deposes that on his return from the Masterton District Court on 5 October he asked to be “released immediately”, on the basis that he was being unlawfully detained.  He was entitled then to have sought review of the recall decision pursuant to s67.   He did not pursue that right (although did so in respect of another decision made on declining parole on 20 September 2006). Subsequently he had an appeal in the High Court against his conviction and sentence on the multiple burglary charges determined.

[24]     I have no doubt the plaintiff was well aware of his rights and entitlement to seek a review of the Parole Board’s final recall decision, but he did not do.  Although counsel says the unsuccessful applications for parole in 2005 and 2006 related to applications for parole in respect of the finite sentences that had been imposed (and were not formal applications for review of the final recall order) the reality is that the Board would have considered the entire factual background and circumstances relevant to the release on parole of the plaintiff at those times with the guiding principle being the safety of the community (s7(1) Parole Act 2002)).

[25]     It is inconceivable that the Parole Board, when considering the applications in June 2005 and September 2006 (irrespective of any final recall order) could have ignored the facts of the multiple convictions of 27 November 2003 and later significant burglary convictions of 5 October 2004, upheld on appeal.   Those established facts, being offences committed whilst on parole, could not be ignored by the Parole Board even if it  were considering only applications for parole in the context of the finite sentences, given the situation where the plaintiff still remained subject to a sentence of life imprisonment.  The life imprisonment sentence did not “evaporate” because of the finite sentences imposed.

[26]     The plaintiff was represented by Mr Rickard-Simms on his applications for release on parole on 14 September 2005 and a year later on 20 September 2006.  He was assessed at being high risk of re-offending and the Board came to the conclusion then that it was:

“of the clear view that he could not be released at this time….He will impose an undue risk to the safety of the community, in particular having regard to the lack of support and supervision available to him following his release.”

He was to be seen in 12 months time, which will be in September 2007.

[27]     It  was only  after  being  declined  parole  on  20  September  2006,  that  the plaintiff came to this Court on 15 November 2006 seeking a writ of habeas corpus or judicial review orders, about the final recall orders communicated to him in October

2004.

[28]     Accepting a technical error in the completion of the date on the recall notice and warrant, I am satisfied the plaintiff had had ample opportunity to seek a formal review of the final recall order.  He did not do so knowing of the decision.  There is nothing  to  suggest  that  the  hearings  that  he  had  had  since  then  before  the Parole Board, represented by counsel, were other than properly conducted.  As was said in Campbell v The Superintendent, Wellington Prison CA3/05 14 February

2005 at [28] and [29]:

[28]      “It does not, however, invariably follow from the demonstration of an irregularity in Parole Board proceedings that orders made or confirmed in such proceedings will cease to have effect.

[29]      Subject to any particular statutory provision, the correct approach to determining the consequences of such errors is that stated by Cooke J in Burr v Blenheim Borough Council [1980] 2 NZLR 1, 4 as follows:

‘When a decision of an administrative authority is affected by some defect or irregularity and the consequence has to be determined, the tendency now increasingly evident in administrative law is to avoid technical and apparently exact (yet deceptively so) terms such as void, voidable, nullity, ultra vires.   Weight is given rather to the seriousness of the error and all the circumstances of the case.  Except perhaps  in  comparatively  rare  cases  of  flagrant  invalidity,  the decision in question is recognised as operative unless set aside.  The determination by the Court whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluation;   the discretionary nature of judicial remedies is taken into account.’”

[29]     The giving of reasons for the order for final recall did not affect the validity of the order.  If the date of a formal order and warrant comprised a clerical error the rights of the plaintiff to seek review were not infringed and he suffered no prejudice. He was then lawfully in custody for a raft of other crimes (indeed, he was yet to be

sentenced by Judge Tuohy) and was lawfully detained pursuant to the interim recall order.  In an intricate argument he contended that he was disadvantaged because his parole applications could have proceeded only on the basis of (what he says) was an “entitlement” to seek parole on his finite sentences.  Yet he did this, and his release date on the cumulative sentences does not appear to be at least some time in 2007.

[30]     Apart from those matters it is abundantly clear to the Court that had there ever been formal “review” of the final recall decision, and further appeal to this Court, the substantive decision would have been upheld.    There existed overwhelming reasons why the interim recall order had to be made final.

[31]   If there was any error of a formal nature, because non-consequential technicalities, the Court in judicial review proceedings does not intervene.   As is apparent  from s5  of the  Judicature Amendment  Act  1972 errors of a  formal  or technical nature, where no substantial wrong or miscarriage of justice has occurred, may entitle the Court to decline relief.  That section provides:

“On an application for review in relation to a statutory power of decision, where the sole ground of relief established is a defect in form or a technical irregularity, if the Court finds that no substantial wrong or miscarriage of justice has occurred, it may refuse relief and, where the decision has already been made, may make an order validating the decision, notwithstanding the defect or irregularity, to have effect from such time and on such terms as the Court thinks fit.”

So too, delay in bringing judicial review proceedings may result in the Court exercising its discretion to decline relief.   But relief ought not be available where there  has  been no  infringement  of substantive  rights,  nor  reviewable  procedural error. That is the case here.

[32]     If it be necessary, I therefore make an order under s5 that the final recall decision is valid and has effect from 31 October 2004.  Until that date the plaintiff was lawfully detained pursuant to the interim recall order and the finite sentences imposed upon him.   Thereafter, he was as lawfully detained pursuant to the final recall order and finite sentences imposed in the District Court.

[33]     None  of  the  grounds  advanced  by  the  plaintiff  are  sustainable  so  as  to invalidate  the  final recall  order  made.    Judicial  review  remedy  in  the  form  of quashing such order is unavailable.    The  application  is declined.    I  assume the plaintiff is legally aided, so no order for costs is appropriate.

…………………………… J W Gendall J

Solicitors:

A F Rickard-Simms, Wellington for Plaintiff

Crown Law Office, Wellington for Defendants