Wilson v Chief Executive, Department of Corrections

[2018] NZHC 2322

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2018-483-000017

[2018] NZHC 2322

UNDER THE

Habeas Corpus Act 2001

IN THE MATTER OF

an application for a writ of Habeas Corpus

BETWEEN

STUART MURRAY WILSON aka STEWART MURRAY WILSON

Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

4 September 2018 (via AVL at Wellington)

Counsel:

Applicant in person

G Taylor for Respondent

Judgment:

4 September 2018

JUDGMENT OF COLLINS J

Issue

[1]                 Three issues are raised by Mr Wilson’s application for a writ of habeas corpus, namely:

(1)Is he “detained” within the meaning of the Habeas Corpus Act 2001 while he is subject to an Extended Supervision Order (ESO) issued by the High Court under the Parole Act 2002?

WILSON v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2018] NZHC 2322 [4 September 2018]

(2)If so, is Mr Wilson’s detention unlawful when he is required to reside in a defined geographical area, and not leave that area without the prior written approval of a probation officer?

(3)In the alternative, is it appropriate to issue a writ of habeas corpus where Mr Wilson has sought, but not yet been granted, permission to leave that area for compassionate reasons?

Background

[2]                 On 15 March 1996, Mr Wilson was sentenced to 21 years’ imprisonment in relation to multiple charges, including rape, stupefication and bestiality.1 The statutory release date for that sentence was 1 September 2015.

[3]                 On 13 July 2012, the High Court granted an application by the Department of Corrections (the Department) for an ESO that took effect for a 10-year period commencing 2 March 2016.2

[4]                 The conditions of the ESO require Mr Wilson to reside at a property in Whanganui owned and managed by the Department. He is “not to leave the district of Whanganui without the prior written approval of [his] probation officer”.

[5]                 On 15 April 2016, Mr Wilson, who is now 71 years old, wrote to the Minister of Corrections seeking permission to travel to a town in the South Island to visit his elderly mother. I understand Mr Wilson’s mother has cancer. That application is still being considered by the Department. In the absence of a response from the Department, Mr Wilson has applied for a writ of habeas corpus to enable him to visit his mother on compassionate grounds.

1      R v Wilson HC Wellington T 104/95, 15 March 1996.

2      Chief Executive, Department of Corrections v Wilson [2012] NZHC 1634. An appeal and an application for leave to further appeal were dismissed: Wilson v Chief Executive, Department of Corrections [2013] NZCA 144, (2013) 26 CRNZ 177; and Wilson v Chief Executive, Department of Corrections [2013] NZSC 78.

Analysis

[6]                 A challenge to the legality of a person’s detention may be made by an application for a writ of habeas corpus, which is a swift remedy available in cases where an applicant has been unlawfully detained.3

Is Mr Wilson detained?

[7]                 Detention is defined broadly in the Habeas Corpus Act to include “every form of restraint of liberty of the person”.4

[8]                 In her very helpful submissions, Ms Taylor, counsel for the Department, suggested that persons who are the subject of an ESO are not detained for the purposes of the Habeas Corpus Act. Ms Taylor drew attention to observations in Schuchardt v Commissioner of New Zealand Police, in which it was said that the term “detention” in the Habeas Corpus Act “typically connotes imprisonment or actual detention in some analogous form, say arising say in an immigration or deportation context, or on account of a person’s mental health. It does not naturally connote a grant of bail on terms limiting what a person may do”.5

[9]                 That observation was, however, based in part on s 14(2)(b) of the Habeas Corpus Act, which provides that applications for a writ of habeas corpus cannot be used as a vehicle to question bail decisions. There is no equivalent provision in the Habeas Corpus Act in relation to ESOs.

[10]              In the present case Mr Wilson is required to reside at a specified address and not leave the Whanganui area without the prior written approval of a probation officer. That is a restraint of his liberty and fits within the definition of “detention” in the Habeas Corpus Act.

3      Habeas Corpus Act 2001, ss 6 and 14(1).

4      Section 3.

5      Schuchardt v Commissioner of New Zealand Police [2017] NZAR 1689 (HC) at [10].

Is Mr Wilson’s detention unlawful?

[11]              Mr Wilson’s detention, however, is not unlawful. The restrictions upon his liberty have been set out in conditions made by the Parole Board.

[12]              An analogy can be drawn between Mr Wilson’s application, which seeks to challenge one aspect of his otherwise lawful detention (that he is unable to see his mother), and the Court of Appeal’s decision in Bennett v Superintendent, Rimutaka Prison.6 In Bennett, the applicant sought to challenge his reclassification as a maximum-security prisoner. The Court held the writ of habeas corpus was not the appropriate way for a prisoner to challenge the lawfulness of the conditions of their incarceration.7

An alternative basis for dismissing the application

[13]              Furthermore, my conclusion that he is detained within the meaning of the Habeas Corpus Act is of little assistance to Mr Wilson because, as Ms Taylor submitted, an application for a writ of habeas corpus is not the appropriate procedure in this case.

[14]              An obstacle faced by Mr Wilson is that his case fits firmly within s 14(1A)(b) of the Habeas Corpus Act. That section provides that:

14       Determination of applications

(1A) … the High 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 the court is satisfied that—

…

(b)an application for the issue of a writ of habeas corpus is not   the appropriate procedure for considering the allegations made by the applicant.

[15]              Ms Taylor correctly submitted that more appropriate procedures are available to Mr Wilson. Those procedures are:

6      Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA).

7 At [65].

(1)An application for judicial review if the Department declines his application to visit his mother.

(2)An application to the Parole Board to vary the conditions of the ESO to specifically enable Mr Wilson to visit his mother.8

[16]              Mr Wilson submitted it would be cumbersome and time consuming for him to pursue other avenues. That may be so, but in the present circumstances, where his application to visit his mother has not actually been declined, it would be inappropriate for this Court to usurp the decision-making powers vested in the Department and/or the Parole Board.

Conclusion

[17]              While Mr Wilson has been detained within the meaning of that term in the Habeas Corpus Act, his detention is lawful. Furthermore, Mr Wilson has more appropriate procedures available to him in the event the Department declines his application to visit his mother. In those circumstances, I am satisfied that the application for the issue of a writ of habeas corpus is not the appropriate procedure for considering Mr Wilson’s concerns.

[18]I therefore decline to issue a writ of habeas corpus.

D B Collins J

Solicitors:

Crown Law Office, Wellington for Respondent

8      Parole Act 2002, s 107O.