HYSLOP v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 2719

HYSLOP v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 2719 [11October 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2021-409-000456[2021] NZHC 2719UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a Writ of HabeasCorpusBETWEEN GLEN MICHAEL HYSLOPApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 11 October 2021Appearances: Applicant in person (By VMR)C J Boshier for RespondentJudgment: 11 October 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 11 October 2021 at 3 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] On 7 October 2021, Glen Michael Hyslop filed an application for a writ ofhabeas corpus. He says he is unlawfully detained and held at Christchurch Men'sPrison. Given the precedence such applications must be given under s 9 of the HabeasCorpus Act 2001, I set the matter down for hearing on Monday, 11 October 2021.[2] Ms Boshier, for the Chief Executive of the Department of Corrections, filedsubmissions in opposition on 8 October 2021. In them she confirmed that Mr Hyslopfaces a charge (CRN19009502939) of breaching the conditions of a sentence ofintensive supervision and, on 30 September 2021, he was remanded in custody byDistrict Court Judge Hix in relation to this charge. His next appearance is scheduledto be in the Christchurch District Court on 3 November 2021.[3] At this morning's hearing, Mr Hyslop appeared by VMR. He initially raised aquery because he thought counsel, Mr Peter Martin from Auckland, might be able toappear on his behalf. I briefly discussed whether he wished to proceed makingsubmissions on his own behalf, or whether he wanted to follow up on whether counselcould appear, and he confirmed he wished to make submissions himself. On that basisthe hearing proceeded.Habeas Corpus – legal principles[4] An application for a writ of habeas corpus is an application to challenge thelegality of a person's detention.[5] If the respondent fails to establish that the detention of the applicant is lawful,the High Court must grant, as a matter of right, a writ of habeas corpus ordering therelease of the detained person from detention.1 If granted, the High Court's writ ofhabeas corpus commands the respondent, or other person in whose custody the personis alleged to be detained, to immediately release the named person from custody.1 Habeas Corpus Act 2001, s 14(1).[6] The focus of this Court's inquiry on an application for habeas corpus is whetherthe applicant is being unlawfully detained. The onus is on the respondent to justifythe detention, but the existence of a warrant of detention has an important effect. InBennett v Superintendent Rimutaka Prison, the Court of Appeal said:2In practice, once a prison superintendent or other official named as respondentproduces a committal warrant or other authorisation it would then benecessary for an applicant for habeas corpus to demonstrate that thedocumentation did not in fact provide a lawful justification in the particularcircumstances.[7] An application for habeas corpus is not a means to call into question a rulingas to bail by a Court of competent jurisdiction.3This application[8] Mr Hyslop's submissions on why he was unlawfully detained werewide-ranging. His first submission was that the warrant was in "dead letter text". Itcapitalised his last name and this, in Mr Hyslop's submission, meant it did not refer tohim, as he is an individual, living man.[9] His next point was that his imprisonment was "slavery through an estate intrust". When asked to elaborate what he meant by this, he said he understood theDepartment of Corrections makes "six trillion dollars a year", and it is thereforeprofiting from his incarceration even though he has not yet been sentenced.[10] His third ground of challenge listed a number of allegations of ill treatment andinappropriate medical care. These included:(a) shining a light in his eyes at night-time;(b) poisoning his water with the inclusion of fluoride, which led to himhaving diarrhea;(c) refusing him his medication for asthma;2 Bennett v Superintendent Rimutaka Prison [2002] 1 NZLR 616 (CA) at [70].3 Habeas Corpus Act, s 14(2)(b).(d) not sending him a "lawful notice" of a change in a Court date (it is notclear what date this was in relation to);(e) failing to file his application for a writ of habeas corpus for two days,as he prepared it on Tuesday, but it was not filed in Court untilThursday;(f) failing to provide him with prison clothing until several days after hisarrival in prison; and(g) failing to provide him with the medication he requires because he hashad a gastric bypass.[11] Finally, he made a general allegation that the Judges were "racketeering",breaching their code of conduct, and making him face double jeopardy. He did notelaborate on any of these allegations.[12] In his reply, he asserted that he completed his sentence of intensive supervisionin March last year, although that, of course, will be a submission that he can makewhen defending the charge.Discussion[13] There is no merit in the submission that the way Mr Hyslop's name is recordedon the warrant for detention can have any effect on its lawfulness.[14] Similarly, the implausible submission that the Department of Corrections is aprofit making exercise, is immaterial to the lawfulness of a warrant issued in theDistrict Court. They are separate entities. As was said in Manuel v Superintendent ofHawkes Bay Regional Prison:44 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).[49] A person who detains another can fairly be expected to establish,effectively on demand, the legal justification for the detention. In casesinvolving imprisonment or other statutory confinements, this will involve theproduction of a relevant warrant or warrants or other documents whichprovide the basis for the detention. We accept that apparently regular warrants(or other similar documents) will not always be a decisive answer to a habeascorpus application. But it will be a rare case, we think, where the habeascorpus procedures will permit the Court to inquire into challenges onadministrative law grounds to decisions which lie upstream of apparentlyregular warrants. This is particularly likely to be the case where the decisionmaker is not the detaining party.[15] In this case, the decision was made by the District Court and the Departmentof Corrections is simply detaining Mr Hyslop pursuant to that authority.[16] Mr Hyslop made a number of allegations of wrongful treatment by theDepartment of Corrections including failure to provide him necessary medication forhis medical conditions and poisoning him with fluoridated water. It was impossibleto determine whether there was any substance to these allegations (though I rejectoutright that if he was given fluoridated water, that could be the subject of criticism).However, if there is substance to any of these complaints, that is a matter to be takenup with the Department of Corrections itself, through its internal complaintsprocedures, or through the external oversight of the Ombudsman or the Courts. Aswas said in Bennett, "[n]or, if an inmate is unlawfully treated while detained, is thedetention itself rendered unlawful. The remedy is the cessation of the unlawfulelement, not the cessation of the detention".5[17] The same response applies to the alleged failures to assist Mr Hyslop withfiling his application for a writ of habeas corpus or any other failure by the Departmentof Corrections to support him in his legal endeavours.[18] Finally, if Mr Hyslop believes he is not in breach of his sentence of intensivesupervision, he can raise those arguments when defending the charge. The applicationfor a writ of habeas corpus is not the appropriate forum to determine whether thecharge on which he is detained, is proven or not.5 Bennett v Superintendent Rimutaka Prison, above n 2, at [62].[19] For all these reasons, I am satisfied that the warrant which was issued to detainMr Hyslop on 30 September 2021 is a complete answer to his application for a writ ofhabeas corpus. For that reason, I declined to issue the writ, as I advised in Court thismorning.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:Mr Hyslop