F A BORRELL V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC CHCH CIV-2007-409-000676

F A BORRELL V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC CHCH CIV- 2007-409-000676 26 March 2007IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2007-409-000676UNDER the Habeas Corpus Act 2001 BETWEEN FRANCIS ALLAN BORRELL Applicant AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent Hearing: 26 March 2007 Counsel: P N Allan for Applicant J Foster for Respondent Judgment: 26 March 2007ORAL JUDGMENT OF PANCKHURST J Can a want of jurisdiction finding found res judicata?[1] In the end result the present application for the issue of a writ of habeas corpus turns on a narrow point. The case concerns a recall application pertaining to a sentenced prisoner. The question it raises is whether a finding of a Parole Board that it lacked jurisdiction to consider a previous recall application, can form the basis for an estoppel following the refiling of a new recall application in similar terms. [2] Mr Borrell seeks a writ of habeas corpus. He is presently remanded in custody with reference to a second application seeking his recall to prison. The basis advanced for his detention is a warrant issued by a Panel Controller of the Parole Board, Judge MacDonald. The applicant challenges his detention on the broad basis to which I have referred.The factual background[3] In 2001 Mr Borrell was sentenced to eight years imprisonment, a sentence which was only finalised on appeal to the Court of Appeal. This was in relation to offences of aggravated robbery, burglary and unlawful taking. In July 2006 he was released on parole. A central term of his release conditions was that he undertake and complete a violence prevention programme at Montgomery House in Hamilton. This was a residential course of treatment. In early August that year he absconded from Montgomery House, or at least that is an allegation which is central to the recall application. [4] On 21 December 2006 a probation officer filed an application for Mr Borrell's recall to prison. That same day Judge Carruthers made an interim recall order and issued a warrant for Mr Borrell's arrest. Some time later, on 15 January 2007, Mr Borrell was arrested and taken into custody. [5] This brought s65(1)(b) of the Parole Act 2002 into play. It provides:If an interim recall order is made, the Board must determine the recall application on a date that is, - (b) if the offender is not in custody when the interim order is made, at least 14 days after, but not more than 1 month after, the date on which the offender is taken into custody.[6] Despite the existence of that narrow jurisdictional window, requiring that the recall application be determined within a period of about two weeks and a few days, there was not a hearing of Mr Borrell's application until 16 February. Counsel on his behalf challenged the jurisdiction of the Parole Board to order final recall on the basis that the window of opportunity to which I have just referred had expired. The Panel agreed. [7] Judge Henwood, as the Panel Convenor, gave a very brief oral decision on behalf of the Board. It concluded in these terms:The application is therefore out of time and no order can be made to recall him. We do note however that he has breached his conditions by absconding from the Montgomery House Programme and breach action has been taken in the court for which he is now on bail conditions, so there will be someofficial monitoring of his whereabouts under that bail. No doubt the Probation Service can file another application to have him recalled if it is deemed appropriate to do so, and that can be dealt with in a more timely fashion.That suggestion was taken up. [8] On 19 February the second application for recall was filed. It is accepted that this application involves substantially the same grounds as the first. That same day Judge MacDonald (another Panel Convenor of the Parole Board) issued an interim recall order and a warrant for Mr Borrell's arrest. In the event it was not until 21 March that Mr Borrell was arrested and taken into custody. [9] It is the execution of this warrant for arrest which has spawned the present application for a writ of habeas corpus. The application was promptly filed the day after Mr Borrell's arrest, that is on Thursday, 22 March. The hearing today was arranged at the first available opportunity, given the intervention of the weekend. [10] Against this brief description of the factual background I can return to the narrow issue which I need to determine in order to decide the present application.The required approach[11] Section 14 of the Habeas Corpus Act 2001 relevantly provides:Determination of applications(1) If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention. (2) A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question – (a) a conviction of an offence by a court of competent jurisdiction, a duly constituted court-martial, or an officer exercising summary powers under Part 5 of the Armed Forces Discipline Act 1971; or (b) a ruling as to bail by a court of competent jurisdiction.(3) A Judge must determine an application by – (a) refusing the application for the issue of the writ; or (b) issuing the writ ordering the release from detention of the detained person.[12] The impact of the new Act was considered by the Court of Appeal in the case of Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161. Of particular relevance for present purposes is paragraph [49] of the judgment:A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications and those which can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless we see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination. If they are, they can be addressed in habeas corpus proceedings. If not, they must be held over for evaluation in judicial review proceedings. In such proceedings, an application for interim relief (including release from custody) would be dealt with urgently and the Judge dealing with such an application would be in a position to give directions as to the future conduct of the litigation to ensure prompt substantive determination.[13] Mr Allan contends that this case is one where, despite the existence and production of a warrant apparently regular on its face, it is nonetheless appropriate for this Court to consider the argument which underpins the application. Hence counsel maintains that such argument is one which is properly susceptible to fair and sensible summary determination. [14] Ms Foster appears for the respondent, the Chief Executive of the Department of Corrections. I should interpolate that the Parole Board was also named as a second respondent to the proceeding. At the outset of his submissions Mr Allan indicated an election to discontinue against the Board, since counsel accepted it was not necessary for it to have been named a party in the first place.[15] Ms Foster did not really contest the contention that the present question is one which is susceptible of proper determination in a summary fashion. Rather, she submitted that the underlying proposition that the second recall application represented an abuse of process was simply "untenable". In particular, she submitted that the very basis of the applicant's case, that the second application represented an attempt to relitigate an issue already finally determined by the Parole Board, did not withstand scrutiny. Her submission was that there had been no final determination in this case, no endeavour to consider the merits, only a finding by the Parole Board that the hearing of the application was out of time and, therefore, that it had no jurisdiction to determine it. Hence, counsel suggested, the application was effectively dismissed for want of jurisdiction. [16] Given these competing arguments I can return immediately to the question posed at the outset of this decision.Is the second application an attempt to relitigate a final determination?[17] The nature and scope of abuse of process in the criminal sphere is helpfully discussed in another Court of Appeal case Bryant v Collector of Customs [1984] 1 NZLR 280. Richardson J, in delivering the decision of the Court, said at page 281:Over the last 20 years there has been considerable debate in the cases and in legal periodicals concerning the responsibility resting on criminal Courts to prevent the relitigating of issues already decided and the means by which that responsibility once defined is exercised. That debate has led to consideration in various jurisdictions of the precise scope of the concepts of res judicata (and in the criminal law of the pleas of autrefois acquit and autrefois convict), issue estoppel and double jeopardy and, more generally, as to the principles and policies underlying the doctrine of abuse of process. It is obvious enough that misuse of the judicial process – of which the attempted relitigating of issues is just one example – is likely to produce unfairness and to undermine confidence in the administration of justice. So it is important in those fortunately rare cases where that is present that the Court, acting in its inherent jurisdiction, should take such steps as are considered necessary in the particular circumstances to protect its processes from abuse. The public interest in the due administration of justice necessarily extends to ensuring that the processes of the Court are fairly used and that they do not lend themselves to oppression and injustice. In exercising that jurisdiction the Court is not simply protecting the interests of the parties to that case: it is also protecting its ability to function as a Court of law in the future as in the case before it.[18] Mr Bryant had been involved in a jury trial in the course of which a ruling was made that certain incriminating statements he had made to the police were inadmissible. Following that jury trial he was charged with an offence against the Customs Act. The prosecution sought to use the same incriminating statements in evidence. The Court of Appeal found that such statements could not be used in the new prosecution. To do so would amount to a collateral attack on a final determination of the Judge who had presided at the jury trial. For the statements to be admitted in evidence would constitute an abuse of the District Court's process in hearing the Customs prosecution. Bryant to my mind conveniently sets the scene for the consideration of the narrow issue in this case. [19] I agree with Ms Foster that the most appropriate label to place upon the applicant's argument is estoppel per rem judicatam. That form of estoppel is the subject of discussion in Laws of New Zealand, Estoppel, at paragraph 3. The constituent elements of estoppel per rem judicatam are there described. There are six such constituent elements. I need not record all six because it is only (4) which is called in question in this case. It is that the judicial decision was final. [20] Was there a final judicial decision in this instance? In my view it is unquestionably the case there was no final determination. The Parole Board did not even endeavour to address the merits of the recall application. Properly, it addressed the preliminary submission of then counsel for Mr Borrell, that the hearing was out time, and the Board correctly concluded that it lacked jurisdiction to deal with the application. Hence the decision of Judge Henwood is the very antithesis of a determination on the merits, let alone a final determination. [21] If more is required it is to be found in the well-known text of Spencer Bower, Turner and Handley on Res Judicata (3rd ed.) at paragraph 37. In discussingestoppel per rem judicata, the authors under the paragraph heading "Dismissal for want of jurisdiction" say this:Again, a decision by a tribunal that it has no jurisdiction will not support a plea of res judicata on the merits. Such a decision does not determine the merits of the dispute.This principle is subject to one qualification. The decision of the Tribunal that it had no jurisdiction will render the determination of that issue susceptible of founding an estoppel. But that is not the point here. The point in this instance is whether there is any determination on the merits and as to that, as I have already said, there can be no question.Conclusion[22] There is in my view no basis to doubt the warrant issued by Judge MacDonald on 21 February 2007. To the contrary I am satisfied that the respondent has demonstrated that there is legal justification for the applicant's retention. [23] Accordingly, I order that the application for the issue of a writ of habeas corpus is refused. No purpose would be served by making an order for costs and no order is therefore made in favour of the respondent._________________________________________________________________________________ Solicitors: G C Knight Solicitor, Christchurch for Application (Counsel instructed: Phillip N Allan) Crown Law Office, Wellington Central for Respondent