WILSON v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2018] NZHC 2322

WILSON v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2018] NZHC 2322 [4 September2018]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECIV-2018-483-000017[2018] NZHC 2322UNDER THE Habeas Corpus Act 2001IN THE MATTER OF an application for a writ of Habeas CorpusBETWEEN STUART MURRAY WILSON akaSTEWART MURRAY WILSONApplicantAND CHIEF EXECUTIVE, DEPARTMENT OFCORRECTIONSRespondentHearing: 4 September 2018 (via AVL at Wellington)Counsel: Applicant in personG Taylor for RespondentJudgment: 4 September 2018JUDGMENT OF COLLINS JIssue[1] Three issues are raised by Mr Wilson's application for a writ of habeas corpus,namely:(1) Is he "detained" within the meaning of the Habeas Corpus Act 2001while he is subject to an Extended Supervision Order (ESO) issued bythe High Court under the Parole Act 2002?(2) If so, is Mr Wilson's detention unlawful when he is required to residein a defined geographical area, and not leave that area without the priorwritten approval of a probation officer?(3) In the alternative, is it appropriate to issue a writ of habeas corpuswhere Mr Wilson has sought, but not yet been granted, permission toleave that area for compassionate reasons?Background[2] On 15 March 1996, Mr Wilson was sentenced to 21 years' imprisonment inrelation to multiple charges, including rape, stupefication and bestiality.1 The statutoryrelease date for that sentence was 1 September 2015.[3] On 13 July 2012, the High Court granted an application by the Department ofCorrections (the Department) for an ESO that took effect for a 10-year periodcommencing 2 March 2016.2[4] The conditions of the ESO require Mr Wilson to reside at a property inWhanganui owned and managed by the Department. He is "not to leave the districtof Whanganui without the prior written approval of [his] probation officer".[5] On 15 April 2016, Mr Wilson, who is now 71 years old, wrote to the Ministerof Corrections seeking permission to travel to a town in the South Island to visit hiselderly mother. I understand Mr Wilson's mother has cancer. That application is stillbeing considered by the Department. In the absence of a response from theDepartment, Mr Wilson has applied for a writ of habeas corpus to enable him to visithis mother on compassionate grounds.1 R v Wilson HC Wellington T 104/95, 15 March 1996.2 Chief Executive, Department of Corrections v Wilson [2012] NZHC 1634. An appeal and anapplication for leave to further appeal were dismissed: Wilson v Chief Executive, Department ofCorrections [2013] NZCA 144, (2013) 26 CRNZ 177; and Wilson v Chief Executive, Departmentof Corrections [2013] NZSC 78.Analysis[6] A challenge to the legality of a person's detention may be made by anapplication for a writ of habeas corpus, which is a swift remedy available in caseswhere an applicant has been unlawfully detained.3Is Mr Wilson detained?[7] Detention is defined broadly in the Habeas Corpus Act to include "every formof restraint of liberty of the person".4[8] In her very helpful submissions, Ms Taylor, counsel for the Department,suggested that persons who are the subject of an ESO are not detained for the purposesof the Habeas Corpus Act. Ms Taylor drew attention to observations in Schuchardt vCommissioner of New Zealand Police, in which it was said that the term "detention"in the Habeas Corpus Act "typically connotes imprisonment or actual detention insome analogous form, say arising say in an immigration or deportation context, or onaccount of a person's mental health. It does not naturally connote a grant of bail onterms limiting what a person may do".5[9] That observation was, however, based in part on s 14(2)(b) of the HabeasCorpus Act, which provides that applications for a writ of habeas corpus cannot beused as a vehicle to question bail decisions. There is no equivalent provision in theHabeas Corpus Act in relation to ESOs.[10] In the present case Mr Wilson is required to reside at a specified address andnot leave the Whanganui area without the prior written approval of a probation officer.That is a restraint of his liberty and fits within the definition of "detention" in theHabeas Corpus Act.3 Habeas Corpus Act 2001, ss 6 and 14(1).4 Section 3.5 Schuchardt v Commissioner of New Zealand Police [2017] NZAR 1689 (HC) at [10].Is Mr Wilson's detention unlawful?[11] Mr Wilson's detention, however, is not unlawful. The restrictions upon hisliberty have been set out in conditions made by the Parole Board.[12] An analogy can be drawn between Mr Wilson's application, which seeks tochallenge one aspect of his otherwise lawful detention (that he is unable to see hismother), and the Court of Appeal's decision in Bennett v Superintendent, RimutakaPrison.6 In Bennett, the applicant sought to challenge his reclassification as amaximum-security prisoner. The Court held the writ of habeas corpus was not theappropriate way for a prisoner to challenge the lawfulness of the conditions of theirincarceration.7An alternative basis for dismissing the application[13] Furthermore, my conclusion that he is detained within the meaning of theHabeas Corpus Act is of little assistance to Mr Wilson because, as Ms Taylorsubmitted, an application for a writ of habeas corpus is not the appropriate procedurein this case.[14] An obstacle faced by Mr Wilson is that his case fits firmly within s 14(1A)(b)of the Habeas Corpus Act. That section provides that:14 Determination of applications(1A) the High Court may refuse an application for the issue of the writ,without requiring the defendant to establish that the detention of thedetained person is lawful, if the court is satisfied that—(b) an application for the issue of a writ of habeas corpus is notthe appropriate procedure for considering the allegationsmade by the applicant.[15] Ms Taylor correctly submitted that more appropriate procedures are availableto Mr Wilson. Those procedures are:6 Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA).7 At [65].(1) An application for judicial review if the Department declines hisapplication to visit his mother.(2) An application to the Parole Board to vary the conditions of the ESOto specifically enable Mr Wilson to visit his mother.8[16] Mr Wilson submitted it would be cumbersome and time consuming for him topursue other avenues. That may be so, but in the present circumstances, where hisapplication to visit his mother has not actually been declined, it would be inappropriatefor this Court to usurp the decision-making powers vested in the Department and/orthe Parole Board.Conclusion[17] While Mr Wilson has been detained within the meaning of that term in theHabeas Corpus Act, his detention is lawful. Furthermore, Mr Wilson has moreappropriate procedures available to him in the event the Department declines hisapplication to visit his mother. In those circumstances, I am satisfied that theapplication for the issue of a writ of habeas corpus is not the appropriate procedure forconsidering Mr Wilson's concerns.[18] I therefore decline to issue a writ of habeas corpus.____________________D B Collins JSolicitors:Crown Law Office, Wellington for Respondent8 Parole Act 2002, s 107O.