SAIFFITI v DEPARTMENT OF CORRECTIONS COMMUNITY PROBATION SERVICES PALMERSTON NORTH [2020] NZHC 151

SAIFFITI v DEPARTMENT OF CORRECTIONS COMMUNITY PROBATION SERVICES PALMERSTONNORTH [2020] NZHC 151 [13 February 2020]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2020-454-8[2020] NZHC 151UNDER the Habeas Corpus Act 2001IN THE MATTER OF an application for a writ of habeas corpusBETWEEN HUKA MALO SAIFFITIApplicantAND DEPARTMENT OF CORRECTIONSCOMMUNITY PROBATION SERVICESPALMERSTON NORTHRespondentTeleconference: 12 February 2020Appearances: H M Saiffiti in personD Jones for the RespondentJudgment: 13 February 2020JUDGMENT OF COOKE J[1] Mr Saiffiti is currently detained at Manawatu Prison. By undated applicationrecorded as having been received by the Registry on 11 February 2020 he has appliedfor a writ of habeas corpus under the Habeas Corpus Act 2001. It was referred to mein my capacity as Duty Judge and I convened a hearing by way of telephoneconference yesterday. Mr Jones for the Crown was able to file submissions on behalfof the respondents. Unfortunately they had not reached Mr Saiffiti for the telephoneconference, but I raised the substance of the matters raised with him during thehearing.Background[2] Mr Saiffiti is subject to a life sentence for murder imposed on 23 February1993. On 29 May 2019 he was released on parole. On 25 January 2020 an interimrecall order was made. He is currently incarcerated on that order. A hearing beforethe Parole Board on whether a final recall order should be made is scheduled for18 February 2020.[3] I have been provided with copies of the formal documents, including an interimrecall order under s 62(1), and an arrest warrant under s 63(1) of the Parole Act 2002both signed by Mr N Trendall, a panel convenor of the Parole Board. The basis forrecall was set out in an affidavit of Cameron Hogan sworn 25 January 2020.Allegations are made that Mr Saiffiti breached his release conditions, and I note thatthe interim recall order has been made on the basis that Mr Saiffiti poses an undue riskto the safety of the community.[4] It is not necessary for the purpose of dealing with the present application toaddress the underlying allegations in relation to the breach of release conditions, orthe circumstances more generally. As I explained to Mr Saiffiti the first keyconsideration is to ascertain whether he has been detained under a lawful warrant, andI accept that he has been. Mr Saiffiti makes a number of criticisms of the process,including not only the process in relation to the original setting of conditions, but alsothe allegations that he has breached them. He also says that the correct procedureshave not been followed in relation to his recall. For example he explained that he hadnot received a copy of the interim recall order. As Mr Jones pointed out, on the filethere is a document dated 7 February 2020 where Mr Saiffiti is recorded as signing anacknowledgement that he had received such material. But Mr Saiffiti was adamantthat he had not received them, and I accept that I should not make a finding that hehas.[5] The key point is, however, that the kind of criticisms that Mr Saiffiti makes donot mean that a writ of habeas corpus should be issued. The position was summarisedby the Court of Appeal in Manuel v Superintendent of Hawkes Bay Regional Prisonin the following terms:1A person who detains another can fairly be expected to establish, effectivelyon demand, the legal justification for the detention. In cases involvingimprisonment or other statutory confinements, this will involve the productionof a relevant warrant or warrants or other documents which provide the basisfor the detention. We accept that apparently regular warrants (or other similardocuments) will not always be a decisive answer to a habeas corpusapplication. But it will be a rare case, we think, where the habeas corpusprocedures will permit the Court to enquire, into challenges on administrativelaw grounds to decisions which lie upstream of apparently regular warrants.This is particularly likely to be the case where the decision maker is not thedetaining party. There may not be a bright line which distinguishes betweenthose arguments which are available on habeas corpus applications and thosewhich 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 issueare properly susceptible to fair and sensible summary determination. If theyare, they can be addressed in habeas corpus proceedings. If not, they must beheld over for evaluation in judicial review proceedings. In such proceedings,an application for interim relief (including release from custody) would bedealt with urgently and the Judge dealing with such an application would bein a position to give directions as to the future conduct of the litigation toensure prompt substantive determination.[6] There have been situations where the Court has concluded that an interim recallorder is unlawful.2 But this is not such a case. Rather Mr Saiffiti's criticisms arepreliminary to the real point, which is whether a final recall order should be made bythe Parole Board. The Parole Board is addressing whether a final recall order shouldbe made on 18 February 2020. That is where the Board will consider whetherMr Saiffiti should be recalled to continue to serve his sentence. No doubt the ParoleBoard will follow the approach to such decisions set out by the Court of Appeal inMiller v New Zealand Parole Board who described the approach under the provisionsin the Parole Act 2002 in the following way:3[129] Given the overall scheme of the 2002 Act and the human rightsjurisprudence as to arbitrariness of detention, we conclude that the discretionunder s 66 to make a final recall order ought only to be exercised where publicsafety is in issue. Where the ground specified in s 61(a) is made out, the Boardwill necessarily be satisfied that the offender poses an undue risk to publicsafety. The same is likely also to be true in respect of s 61(d)(i) and (e)(i). Theissue arises more acutely in relation to the other grounds provided for in s 61.We are of the view that when those grounds are made out, the Board shouldaddress public safety directly. If the Board, having done so, is of the view that1 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161.2 Kurariki v Singh [2008] NZAR 625 (HC).3 Miller v New Zealand Parole Board [2010] NZCA 600.further detention of the offender is not required for purposes of consistencywith the public safety of the community (cf s 7(2)(a)) and is satisfied that theoffender can remain in the community without posing an undue risk to publicsafety (cf s 28(2)), the discretion to recall should not be exercised. In puttingthe test in this slightly awkward and labourious way, we are trying to ensurean approach which is aligned as closely as possible to the statutory language.We are also of the view that there is no need for an applicant for recall toestablish particular conduct on the part of the parolee which is similar to theoriginal offending. In this context, the concept of nexus is simply functional.If there is an obvious nexus then that is likely to be highly relevant to thepublic safety assessment and tell in favour of recall. Where there is no obviousnexus in that sense, it may be rather more difficult to establish an undue risk.[7] For these reasons I am satisfied that the application for habeas corpus shouldbe dismissed. I advised Mr Saiffiti of that decision at the conclusion of the hearing,and also advised him I would issue a decision in writing.Cooke J