R v CARE CO-ORDINATOR [2020] NZCA 364

R v CARE CO-ORDINATOR [2020] NZCA 364 [27 August 2020]NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY(COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORTOF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OFTHE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA461/2020[2020] NZCA 364BETWEEN RAppellantAND CARE CO-ORDINATORRespondentHearing: 20 August 2020Court: Brown, Clifford and Collins JJCounsel: A J Bailey for AppellantD R La Hood and N Azam for RespondentJudgment: 27 August 2020 at 4.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 17 August 2020, Dunningham J declined R's application for a writ ofhabeas corpus.1 He appeals that decision.Background[2] R is now 20 years old. In 2010, he was found to meet the criteria for intellectualdisability under the Intellectual Disability (Compulsory Care and Rehabilitation) Act2003 (the IDCCR Act).[3] In 2015, it was alleged R had sexually offended against two 11-year-old girls.He was also alleged to have engaged in even more serious sexual offending againsta two-year-old girl in November 2016, when he was accused of having inserted hispenis into the victim's anus. R was charged in relation to the 2016 alleged offending.[4] On 1 December 2016, it was determined that R had committed the physicalacts alleged in the charge.2 He was, however, found to be unfit to stand trial and on7 February 2017, the Youth Court ordered R be cared for as a care recipient under theIDCCR Act for a period of three years. That compulsory care order was made pursuantto s 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The effectof that order was that for most of the past three years R has been held in a securefacility in Christchurch.[5] On 12 January 2020, Ms Medlicott, a clinical psychologist, prepareda comprehensive report to determine whether an application should be made to extendR's compulsory care status.3 Ms Medlicott recounted nine instances of anti-socialbehaviour and other transgressions by R between 20 October 2019 and 30 December2019. The last of those incidents involved R taking a razor blade into a service station1 [R] v [Care Co-ordinator] [2020] NZHC 2072.2 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 9 which was subsequently repealedwith effect from 14 November 2018; see Courts Matters Act 2018, s 126.3 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 77(2)(c).and threatening staff to obtain cigarettes. Ms Medlicott explained that R'sdeteriorating conduct in late 2019 was due to him being anxious about the compulsorycare order coming to an end and that he was "feeling insecure about not having thesupport and structure that the current [compulsory care order gave] him". Theseanxieties led R to engage in destructive behaviour in order to secure an extension ofthe compulsory care order. She concluded that R still needed to be subject to acompulsory care order.4[6] On 15 January 2020, the care co-ordinator for Forensic Coordination Servicein Christchurch, applied for two orders:(a) A two-year extension to R's compulsory care order and for his care tocontinue in a secure facility. That application was made tothe Family Court pursuant to s 85 of the IDCCR Act.(b) A deferral of the expiration of the compulsory care order pendingthe hearing and determination of the application to extend thecompulsory care order. The deferral application was made pursuant tos 87 of the IDCCR Act.[7] On 7 February 2020, the Family Court deferred the expiration of thecompulsory care order for a period of three months. Thus, the compulsory care orderwas extended to 7 May 2020 pending the hearing and determination of the applicationunder s 85 of the IDCCR Act to extend the compulsory care order for two years.[8] On 16 April 2020, Mr Bailey, who had been appointed as counsel for R, fileda memorandum in the Family Court in which he made submissions about theappropriate length of any extension of the compulsory care order, and the level of carethat ought to be ordered. Efforts were then made to convene a case managementconference. Those efforts were frustrated by the effects of the COVID-19 lockdownmeasures. It would also appear that Mr Bailey had commitments to a hearing that wasbeing conducted in the West Coast. This may also have impacted upon the efforts toconvene a case management conference.4 Section 82(a).[9] The earliest a case management conference could be convened was on 12 and15 May 2020, when the Family Court Judge spoke with counsel. During thosehearings and in subsequent submissions, Mr Bailey challenged the ability ofthe Family Court to determine the applications as the compulsory care order hadlapsed prior to the hearing. He maintained that even if the deferment until 7 May 2020was effective, no further orders under ss 85 or 87 of the IDCCR Act could be madeafter that date.[10] On 3 June 2020, the Family Court issued a judgment concluding thatthe compulsory care order expired on 7 May 2020 and that there was no longer anyjurisdiction to defer or extend that order under the IDCCR Act.5 In doing so, the Judgeacknowledged the "lamentable" situation:[64] There is a persuasive case for [R] to continue to enjoy a structured,and therapeutically sensitive environment. The expectation being this ensuresa safe future for [R] and others. The order is a powerful response intended tomeet both the needs of [R] and the community. The legislative requirementsprovide for the need for an application to be properly considered before anorder that curtails the rights of the subject person. I am not satisfied that I cancorrect the unintended outcome (for [the care co-ordinator or R]) thatfollowing the expiry of the order I impose a judicial correction. I am mindfulof the evidence I have reviewed as to the likely risk [R] poses without ongoingtreatment. The situation is lamentable.The Judge also recognised the complexities of the decisions and the consequences forthe parties and any possible appeal:[67] I confirm any directions to give effect to my decision to lie in Courtfor 28 days in order for counsel to contemplate my decision. I perceive asignificance to the Court's decision that most likely requires the parties needtime for advice, and for [R] possibly also planning. I accept there is a needfor focus not only on community safety but also the ongoing care and supportof [R]. Additionally, I note s 135 of the IDCCR [Act] provides in the event ofan appeal for orders to continue pending the appeal being heard. I interpretthis section to support a continuation of the status quo. The validity of mydecision on whether the order has expired may be dependent on the outcomeof any appeal.[11] On 8 June 2020, the care co-ordinator filed an appeal in the High Court againstthe Family Court decision of 3 June. The care co-ordinator also applied tothe Family Court for an order staying the Family Court's decision pending the5 [Care Co-ordinator] v [R] [2020] NZFC 3820 at [66].determination of the appeal. This application was made in accordance with r 20.10(2)of the High Court Rules 2016, the relevant portions of which state:(2) the decision-maker or the court may, on application, do any 1 ormore of the following pending determination of an appeal:(a) order a stay of proceedings in relation to the decision appealedagainst:(b) order a stay of enforcement of any judgment or order appealedagainst:(c) grant any interim relief.[12] The Family Court responded on 8 June with an order that the compulsory careorder remain in place pending the determination of the appeal to the High Court. R hasnot appealed this order.[13] No further steps appear to have been taken until 11 August 2020, whenMr Bailey filed an application for a writ of habeas corpus on behalf of R. The HighCourt heard that application on 14 August 2020 and, as we have previously noted,delivered its judgment on 17 August 2020.6[14] It is unfortunate that no steps appear to have been taken between 8 June 2020and 11 August 2020 because, if Mr Bailey's arguments are correct, R has beenunlawfully detained for a considerable period of time. Furthermore, if Mr Bailey isright then authorities may need to consider whether fresh criminal proceedings shouldbe activated, possibly in relation to the events of 30 December 2019, in order toprovide R with the care and protection afforded to him by the IDCCR Act.[15] The gravamen of the application advanced in the High Court was that R wasunlawfully detained because the Family Court could not "revive" the lapsedcompulsory care order by issuing interim relief.[16] In dismissing the application for habeas corpus, Dunningham J focused onr 20.10(2) of the High Court Rules. The High Court Judge was satisfiedthe Family Court had the power under r 20.10(2) to order the compulsory care order6 [R] v [Care Co-ordinator], above n 1.remain in place pending the determination of the appeal.7 The High Court Judge alsosaid that if she were considering an application under r 20.10(2) she would have madean order that had the same practical effect of continuing the compulsory care orderpending determination of the IDCCR Act appeal.8 The application for writ of habeascorpus was therefore declined.[17] The care co-ordinator's appeal from the Family Court judgment of 3 June isscheduled to be heard by the High Court on 16 September 2020.Appeal[18] In this Court, Mr Bailey submitted the Family Court powers to continue theeffect of the compulsory care order were confined to:(a) ordering under s 87 of the IDCCR Act the deferment of the expirationof the compulsory care order; or(b) ordering under s 85 an extension of the compulsory care order.[19] Mr Bailey contends that when it failed to make orders pursuant to either ofthese avenues before 7 May 2020, the Family Court ceased to have any statutorypowers over R and it could not revive its powers under r 20.10(2). Mr Baileysubmitted:The decision maker, in this case the Family Court, as at 3 June 2020, no longerhad standing to be involved, in any capacity, in [R's] affairs with respect to his(previous) [compulsory care order]. Therefore, even if the Family Court wasattempting to achieve a "practical and logical" position pending the hearing of[R's] appeal, it had no jurisdiction to make an interim order pursuant tor 20.10(2).[20] Crucial to Mr Bailey's argument is the proposition that orders cannot be madeby a decision-maker under r 20.10(2) in circumstances where the decision-maker hasdetermined that its statutory powers to make orders has lapsed. While he endeavouredto preserve his position, Mr Bailey acknowledged the same contentions may not7 At [34]–[36].8 At [37].necessarily apply to an appellate court exercising the powers conferred by r 20.10(2).But, Mr Bailey stressed, that scenario was not before us.[21] Mr La Hood, senior counsel for the care co-ordinator, maintains R's detentionis lawful, as it was authorised by a court of competent jurisdiction exercisingthe powers conferred by r 20.10(2).[22] Mr La Hood submitted the powers in r 20.10(2) may, in the first instance, beexercised by a decision-maker, in this case the Family Court. Rule 20.10(2) can onlybe invoked once an appeal is filed, at which point the decision-maker has the statutorypower to make orders under r 20.10(2). The case for the care co-ordinator isencapsulated in the proposition that the practical consequences of continuing R'sdetention should not be conflated with the proposition the Family Court was"reviving" a statutory power contained in the IDCCR Act when it granted interimrelief. Rather, the Family Court was exercising an independent statutory powerconferred via the Senior Courts Act 2016 to grant interim relief.[23] Mr La Hood also submitted that Mr Bailey's uncertainty about the High Courthaving the ability to make the same order that was made by the Family Courthighlights a difficulty with R's case. The power under r 20.10(2) could have beenexercised by either the Family Court or the High Court. Mr La Hood contended thatonce it is recognised that there would have been no impediment to the High Courtmaking the order that is in issue, then Mr Bailey's objection to the Family Courtmaking the same order evaporates.[24] Mr La Hood emphasises that in the present case two applications were pending,but not determined by the Family Court. He contends that the application to extendthe compulsory care order under s 85 can still be considered and determined bythe Family Court and that it was, in these circumstances, appropriate forthe Family Court to exercise the broad powers conferred by r 20.10(2) to grant interimrelief so as to preserve the opportunity for the Family Court to determine the "extant"applications, if the High Court allows the care co-ordinator's appeal.Analysis[25] There is no dispute R is being detained for the purposes of the Habeas CorpusAct 2001. This is a proper acknowledgement in view of the fact that his liberty isrestrained while he remains in a secure facility. The acknowledgement R is detainedis also consistent with authorities from this Court.9 The onus is therefore placed onthe care co-ordinator to either:(a) establish that R's detention is lawful; or(b) satisfy us that the application for "a writ of habeas corpus is not theappropriate procedure for considering the allegations made by [R]".10[26] We do not need to determine whether or not R's detention is lawful because weare satisfied that in the circumstances of this case an application for a writ of habeascorpus is not the appropriate procedure for considering the allegations made by R. Ourreasons for reaching this conclusion can be distilled to three points.[27] The first concerns the primary issue in this case. That issue requiresthe High Court to determine whether or not the Family Court was correct when itconcluded that the Family Court no longer had the ability to make orders concerningthe "extant" compulsory care order. Part of the argument that the care co-ordinatorwill advance is that an "extant" order does not necessarily lapse where an applicationto extend that order has been made within time and in circumstances where it wasunable to be determined because of extreme intervening circumstances. Those issuesare the subject of the appeal that is to be heard by the High Court on 16 September2020. The application for a writ of habeas corpus, and the current appeal, seeks to"leap frog" the hearing of the appeal from the Family Court judgment of 3 June byasking the Courts to determine that R's continued detention was unlawful. We do notthink that is an appropriate procedure in the circumstances of this case.9 Sestan v Director of Area Mental Health Services [2007] 1 NZLR 767 (CA); and RIDCA Central(Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1 NZLR 641.10 Habeas Corpus Act 2001, s 14(1A)(b).[28] Second, the arguments which the care co-ordinator intends to pursue in theHigh Court may involve more than a discrete question about the meaning of ss 85 and87 of the IDCCR Act. It is possible the High Court will need to consider whether R'srights to freedom of movement, liberty and access to justice affirmed by ss 18, 22 and27 of the New Zealand Bill of Rights Act 1990 have been breached. The High Courtmay also need to consider whether R has been subject to unlawful discriminationbecause of his intellectual disability. Those potential issues should be considered bythe High Court without this Court first pronouncing on the lawfulness, or otherwise,of R's detention through the habeas corpus procedure.[29] Third, the scope of r 20.10(2) also raises important Bill of Rights issues thatwere not addressed by the High Court or in the submissions before us. Theseomissions again highlight why an application for a writ of habeas corpus isan inappropriate procedure in the circumstances of this case.[30] The issues raised by R's case require careful analysis. They are issues that arebefore the High Court and ought to be determined by that Court, rather than beeffectively determined through an expedited application for a writ of habeas corpus.[31] For these reasons we are satisfied that a writ of habeas corpus is not theappropriate procedure for considering and determining the legal issues that arise inrelation to the appeal that is set down for consideration on 16 September 2020. Thoseissues are best determined by the High Court when it considers the care co-ordinator'sappeal.Result[32] The appeal is dismissed.Solicitors:Luke Cunningham & Clere, Wellington for Respondent