MILLER v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 621

MILLER v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 621 [28 March2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-492[2019] NZHC 621UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of habeas corpusBETWEEN ALLAN BRIAN MILLERApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 26 March 2019Appearances: Applicant on own behalf (via AVL)M Mortimer for the RespondentJudgment: 28 March 2019JUDGMENT OF GORDON JThis judgment was delivered by meon 28 March 2019 at 3.00 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, AucklandCopy To: ApplicantIntroduction[1] The applicant, Allan Miller, has filed an application for habeas corpus by wayof a one page letter dated 17 March 2019. The letter gives his address as "Spring Hill".[2] The application was received by the Court on 22 March 2019. It was accordedthe urgency mandated by s 9 of the Habeas Corpus Act 2001 (the Act) and was setdown for hearing before me on 26 March 2019 in my capacity as Duty Judge.[3] Mr Miller appeared by AVL from Springhill Prison. Mr Mortimer appearedfor the Chief Executive of the Department of Corrections in opposition.[4] At the end of the hearing, I gave my decision refusing the application. Theseare my reasons.Grounds of application[5] The application sets out eight grounds, each without any elaboration. Thegrounds are:(a) Miscarriage of justice;(b) Arbitrary detention;(c) Breach of the law;(d) Breach of the Human Rights Act 1990;(e) Breach of reintegrative [sic];(f) New Zealand on Breachs [sic];(g) Degrading treatment; and(h) Extending the sentence unlawful.[6] Mr Miller made oral submissions supplementing his letter. In essence, hiscomplaint is that presently he is classified as "high risk". But he is not getting thetreatment he considers necessary to enable him to be reclassified so as to assist withhis applications for parole.Discussion[7] I will start by addressing what appeared to be the substance of Mr Miller'scomplaint as set out in [6] above.[8] In Bennett v The Superintendent of Rimutaka Prison, Trentham,1 a full court ofthe Court of Appeal considered appeals by serving prisoners against a refusal by theHigh Court to grant them writs of habeas corpus (and, in the case of Mr Bennett,judicial review). The judgment records the issue to be determined in that case asfollows:[1] Their applications related to the conditions under which they wererequired to serve portions of their sentences. Central to the appeals is whetherhabeas corpus is available, as it has been found to be in Canada (Miller v TheQueen (1985) 23 CCC (3d) 97 (SCC)), to obtain release from maximumsecurity or non-voluntary segregation in an isolation cell (a "prison within aprison") where the applicant is already subject to a prison sentence lawfullyimposed and accordingly there is no possibility that the Court will order thatthe applicant be set at liberty.[9] The Court then held as follows:[62] It is also our view that a change to the conditions on which an inmateis being detained either by segregation, re-classification or transfer to anotherinstitution does not create a new detention under an enactment for the purposesof s23(1) of the Bill of Rights. Nor, if an inmate is unlawfully treated whiledetained, is the detention itself rendered unlawful. The remedy is the cessationof the unlawful element, not the cessation of the detention.[65] In our view, the appropriate way in which sentenced prisoners can testthe lawfulness of the conditions of their incarceration is by application forjudicial review. In cases involving human rights the events which areimpugned will be closely scrutinised (Pharmaceutical Management AgencyLtd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58,66).1 Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA).[10] In my view the decision of the Court of Appeal provides a complete answer tothe oral submissions made by Mr Miller in support of his application. In other wordsan application for habeas corpus is not the correct procedure to advance Mr Miller'sclaim.[11] For completeness, to the extent that the written application does raise groundsrelating to the validity of Mr Miller's detention, I find the Chief Executive hasestablished that Mr Miller is lawfully detained.2 I refer to the following.[12] In 2004, Mr Miller made an application for habeas corpus which, together withan appeal against a postponement order, was refused.3[13] In relation to the appeal, Miller J referred the matter back to the Parole Boardto reconsider and decide the matter of both postponement and parole. Miller J orderedthat, in the meantime, Mr Miller was to remain subject to his sentence of preventivedetention.4[14] Miller J refused the application for habeas corpus stating:[79] The application for habeas corpus was brought against theSuperintendent of the Tongariro Prison. The Superintendent filed an affidavitexhibiting the warrant pursuant to which the appellant is held in custody underhis sentence of preventive detention. The affidavit records that the appellantbecame eligible to be considered for parole on 13 February 2001, but that nodirection for his release on parole has yet been made by the Parole Board. Onthe face of it, the affidavit suffices to discharge the burden on theSuperintendent to show that the appellant is lawfully detained.[80] Mr Powell submitted that this is not a proper case for habeas corpus.He submitted that the jurisdiction is amenable only to "bright line" cases. It isvery rarely available in the case of prisoners since there ordinarily will be, asthere is in this case, a warrant that authorises detention. In such cases theappropriate remedy is normally appeal or judicial review. He cited Bennett vSuperintendent, Rimutaka Prison [2002] 1 NZLR 616 for the proposition thatthe writ is not to be diminished by unnecessary use where another effectiveremedy is available.[81] The writ of habeas corpus is directed to the liberty of the applicant. Itis not appropriate in circumstances where his detention is lawful and the2 Habeas Corpus Act 2001, s 14(1).3 Miller v New Zealand Parole Board HC Wellington CRI-2004-485-37, 11 May 2004.4 At [77] and [78].question is whether the Parole Board ought to have approached an applicationfor parole in a different way; Nunn v Superintendent, Waikeria Prison [2004]NZAR 240. Mr Ellis rightly did not contend that immediate release wasappropriate. In those circumstances, the application should not have beenbrought at all.[82] I conclude that habeas corpus is unavailable in the circumstances ofthis case. The appellant is lawfully detained pursuant to the warrant issued on26 February 1991. The Board declined his application for parole in its decisionof 5 November 2003. Further, the appellant has available to him the procedureset out in the Parole Act for appeal to this Court.[15] Mr Mortimer, appearing for the Chief Executive, has annexed to hissubmissions a copy of the Warrant of Commitment dated 26 February 1991. Therespondent has also filed an affidavit of Alistair Spieling, Manager of the New ZealandParole Board, who deposes that Mr Miller is currently serving a sentence of preventivedetention. This was imposed on 26 February 1991 following his third conviction forrape. Mr Spieling continues that a sentence of preventive detention means thatMr Miller's release is determined by the Parole Board.[16] Mr Miller's most recent Parole Board hearing was on 31 May 2018. A copyof the decision is annexed to Mr Speiling's affidavit. The decision states that parolewas declined on 31 May 2018. The decision further states that Mr Miller's nexthearing would be in approximately a year's time and must be held before the end ofMay 2019 at the latest. Mr Speiling confirms that Mr Miller has not yet had anotherParole Board hearing since 31 May 2018. His understanding is that a precise date hasnot yet been set for the hearing.[17] I am satisfied, on the basis, of the evidence filed, that the Chief Executive hasestablished that Mr Miller is lawfully detained.[18] It is also possible that s 14(1A)(a) and s 15(1) may apply in that Mr Miller'spresent application requires a re-examination by the Court of substantially the samequestions as those considered by the Court when the earlier application was refused.In those circumstances, no further application can be made.[19] One of the grounds relied on by Mr Miller in his application heard by Miller Jwas that:5The Board left the appellant in an impossible position, by finding that he wasnot ready to be considered for parole because he had not undertaken treatmentwhen the Department will not consider him for treatment until he is close tohis release date.[20] That ground is substantially the same as the ground advanced by Mr Miller inhis oral submissions.[21] The legal basis for Mr Miller's detention is the same as it was before Miller J,namely the Warrant of Commitment, dated 26 February 1991.[22] I have however considered the application and for the reasons recorded abovethe application was refused.___________________________________Gordon J5 At [24](h).