P V POLICE HC AK CIV 2006-404-6493

P V POLICE HC AK CIV 2006-404-6493 26 October 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-6493BETWEEN P Plaintiff AND THE COMMISSIONER OF POLICE Defendant Hearing: 25 October 2006 Appearances: J Sutton and A Webb for plaintiff M Woolford for defendant Judgment: 26 October 2006JUDGMENT OF ALLAN JSolicitors/Counsel J Sutton, Manukau, Jeremy@defence.co.nz : Crown Solicitor Auckland[1] This is an application for a writ of Habeas Corpus. Ms P, who is just 14 years old, has been charged with dangerous driving causing death or injury, unlawfully taking a motor vehicle, and escaping from custody. She is currently held in custody in the police cells at the Papakura police station. In this proceeding she challenges the lawfulness of her incarceration.Background[2] The charges relate to an incident at Papakura on 4 February 2006. Ms P was not charged until August 2006 and first appeared in the Manukau Youth Court on 15 August 2006. At that time she was released on bail on conditions which included a 7pm-7am curfew to her mother's address. She was also forbidden to consume alcohol or drugs and from driving any motor vehicle. [3] On 28 August 2006 she commenced a supported bail programme operated by the NYMD Trust. Under that programme she received one on one counselling and was involved in organised activities for 30-35 hours a week. Overnight she resided with her mother. That supported bail programme came to an end on 5 October 2006. [4] On Tuesday 17 October 2006 she was arrested at 3 am. It has been alleged that she was at that time in breach of her curfew condition. She was remanded in police custody pursuant to s 238(1)(e) of the Children, Young Persons, and Their Families Act 1989 (the Act), there being no suitable beds for her either in the Departmental youth prison, or by way of community placement. Ms P alleges that at the time of that remand the Court was provided with no intimation as to her particular needs, including details of her health. [5] On Thursday 19 October 2006, she appeared again in the Youth Court and was given a community placement under s 238(1)(d) of the Act. Later that day, or the next day, she absconded from that community placement.[6] On Saturday 21 October 2006 Ms P was arrested and placed in the cells at the Papakura police station. On Monday 23 October (Labour Day), she appeared at a special sitting of the Youth Court at Manukau, and was again remanded in police custody. That appearance was before Justices of the Peace. On Tuesday 24 October she appeared in the Youth Court and was remanded in police custody by a District Court Judge. Again there were no suitable beds available elsewhere. I was informed from the bar that no consideration was given then to Mr P's personal circumstances as outlined below. Ms P must appear in the Youth Court each 24 hours until a suitable bed can be found for her, pursuant to a Child Youth and Family placement. [7] Ms P's health is problematic. Last year she underwent an operation for the removal of ovarian cysts. She also suffers from serious eczema which affects large portions of her body and limbs. Her mental health is fragile. Last month she attempted suicide. Plainly, she is a young lady with special problems who deserves special care. [8] There is evidence from Ms P's mother that currently Ms P does not have access to certain medication. Neither, according to her mother, is she eating properly. For several days over Labour Weekend, it appears that Ms P did not have access to showering facilities; neither is she able to take any exercise. She says:I just want to have contact with other people and be in a normal environment again.[9] On the evidence it seems she desires to be at home with her mother, and that her continued detention in police cells is having a deleterious effect on her mental and physical health.The application[10] Ms P seeks a declaration that she is held in police custody unlawfully and asks that a writ of Habeas Corpus be issued. She claims that the unlawfulness of her detention arises from the defendant's failure to place before the Court material relevant to her physical and mental well-being and her overall welfare. The defendant's alleged failure is said to be in breach of:a) Section 4(e) of the Act which provides as one of its objects:(e) the protection of children and young persons from harm, ill- treatment, abuse, neglect, and deprivation:b) Section 4(d) of the Act which is aimed at preventing children and young persons:(ii) from suffering harm, ill-treatment, abuse, neglect, and deprivation:c) Section 4(a) of the Act which aims at the establishment and promotion of services and facilities that are:appropriate having regard to the needs, values, and beliefs of particular cultural and ethnic groups;d) Section 5(c)(I)and (ii) of the Act which provide:Subject to section 6 of this Act, any Court which, or person who, exercises any power conferred by or under this Act shall be guided by the following principles: (c) The principle that consideration must always be given to how a decision affecting a child or young person will affect— (i) The welfare of that child or young person; and (ii) The stability of that child's or young person's family, whanau, hapu, iwi, and family group:e) Section 25(i) of the New Zealand Bill of Rights Act 1990 which provides for:(i) The right, in the case of a child, to be dealt with in a manner that takes account of the child's age.f) Articles 37, 39 and 40 of the Convention on the Rights of the Child (1989). [11] As Mr Woolford submitted, these grounds may be summarised in the following way:... that the order was wrongly issued, contrary to the requirement to consider the interests of the applicant as a young person under s 5 CYPFA, the requirement to protect young persons under s 4 CYPFA, the best interests of the child principle under s 4 of the Care of Children Act 2004, the requirement to treat young persons in accordance with their age under s 25(i) of the New Zealand Bill of Rights Act 1990, and parallel rights under the Convention on the Rights of the Child.Discussion[12] The application is governed by the provisions of the Habeas Corpus Act 2001, and in particular s 14(2) of that Act which provides:(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.[13] As is observed in Manuel v Superintendent of Hawkes Bay Regional Prison[2005] 1 NZLR 161 at [46], s 14(2) mandates a wider consideration of the underlying questions of fact and law relevant to an applicant's detention than would be justified by a purely jurisdictional inquiry. At [49] the Court of Appeal explained that although apparently regular warrants will not always be a decisive answer to a Habeas Corpus application, the procedure will be available only where the arguments in issue are properly susceptible to fair and sensible summary determination. Otherwise they must be held over for evaluation in judicial review proceedings. [14] Mr Woolford produced a copy of the warrant dated 24 October 2006, pursuant to which Ms P is currently remanded in police custody. The warrant is valid on its face, and Mr Sutton for Ms P did not argue that it was procedurally defective. However, he claimed that the cells at the Papakura police station were inherently unsuitable for the detention, from day to day, of a young person such as Ms P, and that her plight was exacerbated by the health considerations to which Ihave earlier referred. He submitted that the defendant had failed to advance to the Court arguments based upon the New Zealand Bill of Rights Act and the Convention on the Rights of the Child, with the result that the Court had made a decision which could not be supported. [15] In my view, this application is wholly misconceived for the following reasons: a) The warrant is derived from an order made under s 238 of the Act in respect of bail. Section 14(2)(b) of the Habeas Corpus Act provides that in certain circumstances a Judge dealing with an application, must inquire into the matters of fact and law claimed to justify the detention, and is not confined in that inquiry to the correction of jurisdictional errors. But rulings as to bail made by a Court of competent jurisdiction are specifically excluded from that wider ambit of inquiry. Accordingly, where a bail ruling is concerned, the Court is confined to a narrow inquiry focused upon jurisdictional error. b) On its face, the warrant establishes that Ms P is detained pursuant to an order of the Manukau Youth Court made on 24 October 2006 under s 242(2) of the Act. Such an order is sufficient authority for detention. The defendant has therefore established legal justification for detention. There is nothing to suggest that this is one of the rare cases to which the Court of Appeal referred in Manuel [49], where the Court may inquire into challenges on administrative law grounds to decisions " which lie upstream of apparently regular warrants". c) The application amounts to an abuse of process in that there exist statutory procedures which offer ample scope for review of Ms P's situation. First, there is her entitlement to a daily review by the Youth Court. There is no reason why Mr Sutton cannot, on her behalf, raise before a Youth Court Judge the personal issues which were advanced before me with a view to securing alternative arrangements for Ms P's accommodation. Second, s 241 of the Act provides that both theYouth Court and this Court may, upon application, review an order made under s 238. Moreover, a right of appeal is confirmed by s 243. Finally it is appropriate to mention the fact that Ms P has also launched proceedings for judicial review, upon grounds which largely mirror those relied upon in this proceeding. In the judicial review proceeding she seeks declarations that her remand in police custody is contrary to law. In that proceeding the Youth Court at Manukau is named as first respondent and the Commissioner of Police is second respondent. In launching that proceeding, Mr Sutton has recognised (in my view correctly), that if an administrative law remedy is available to Ms P, then it ought to be pursued in judicial review proceedings as explained by the Court of Appeal in Manuel [49].Result[16] Applications under the Habeas Corpus Act are required to be given precedence " over all other matters before the High Court": s 9(1). This application was filed late in the afternoon of Tuesday 24 October. It was called before me at 10 am the following morning. I made arrangements to hear the application later that morning, despite the pressures of a very busy Duty Judge List. This decision is delivered the following day. The urgency of the matter has dictated the relative brevity of this judgment. Despite the limited time available for consideration I have nevertheless reached the clear view that for the foregoing reasons the application must fail. It is dismissed accordingly.Postscript[17] The failure of this application is not to be taken as an indication that the Court is unsympathetic to Ms P's plight. She is one of a number of young people who are currently remanded in police custody, simply because insufficient alternative accommodation is available for them elsewhere. That state of affairs has attracted significant current public attention. Police cells are inherently unsuitable for the accommodation of remand prisoners and especially for young persons, wholike Ms P, have special needs. But that is a matter for the authorities, and perhaps, for another Court on another day.C J Allan J