Manuel v Superintendent, Hawkes Bay Regional Prison CA195/04 [2005] NZCA 496; [2006] 2 NZLR 63; (2005) 22 CRNZ 331 (23 September 2005)

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IN THE COURT OF APPEAL OF NEW ZEALAND

_CA195/04

BETWEEN BENJAMIN EUGENE MANUEL (ALSO KNOWN AS EUGENE BENJAMIN MANUEL)

Appellant

AND SUPERINTENDENT, HAWKES BAY REGIONAL PRISON

Respondent

Hearing: 4 August 2005

Court: Anderson P, William Young and Robertson JJ Counsel: T Ellis for Appellant

V Sim and H M Carrad for Respondent

Judgment: 23 September 2005

_{JUDGMENT OF THE COURT}

A The appeal is allowed. The costs order made by the High Court is set

_aside.

B Costs against the respondent in the sum of $3,000, together with usual

_{disbursements.}

_REASONS

Para No

Anderson P and Robertson J [1] William Young J [39]

MANUEL V SUPERINTENDENT, HAWKES BAY REGIONAL PRISON CA CA195/04 [23 September 2005]

ANDERSON P AND ROBERTSON J

(Given by Anderson P)

[1] This is an appeal against an order as to costs made by Miller J, in the High Court at Wellington, following the withdrawal by the appellant of an application for a writ of habeas corpus. The form of the order was that, but for the fact that Mr Manuel was legally aided, the Court would have awarded costs against him of $1,500. Such an order has consequences in terms of s 41 Legal Services Act

2000.

[2] In 1984 the appellant was convicted of murder and sentenced to life imprisonment. In January 1993 he was released on parole but, having been sentenced to life imprisonment, he was liable to be recalled to continue serving that sentence by virtue of the provisions of the Criminal Justice Act 1985. On 19 March

1996 the Parole Board made a recall order pursuant to s 107L of that Act. The appellant has remained in prison since then.

[3] In March 2004 the appellant applied to the High Court at Wellington for a writ of habeas corpus which put in issue the legality of the procedures undertaken by the Parole Board when considering and determining the recall application. A summary of the appellant’s grounds appears at [17]-[19] of the judgment of Miller J, on that application, delivered on 2 April 2004:

[17] Mr Ellis attacked the recall on a number of grounds. His first and principal ground was that it was unlawful because the statutory provisions contained in the Criminal Justice Act 1985 governing recall were not read together with the New Zealand Bill of Rights Act, in particular s.9 which states that everyone has the right not to be subjected to disproportionately severe punishment.

[18] Second, Mr Ellis contended that the Parole Board had no jurisdiction to hold a final recall order hearing, because the interim recall order was unlawful in that the interim recall warrant issued on 31 January 1996 was a nullity. Specifically, he pointed to the absence of any record of an order apart from the reference to an order in the warrant itself, and he contended that the application for an interim order could not be made ex parte.

[19] Third, Mr Ellis contended that the interim and final recall orders were unlawful because the Board, the Corrections Department and the Police all failed to ensure that the plaintiff was advised of his rights under the New Zealand Bill of Rights Act to legal advice, or of his right to habeas corpus,

and they failed to bring him speedily before a court as required by s.23 of the

New Zealand Bill of Rights Act.

[4] Miller J dismissed the application and Mr Manuel appealed. In a judgment given on 15 June 2004, this Court dismissed the appeal. That judgment is reported at [2005] 1 NZLR 161.

[5] Mr Manuel sought from the Supreme Court leave for a further appeal. That application was heard and dismissed on 3 August 2004. The judgment declining leave dealt with a particular submission that the final order of the Parole Board recalling Mr Manuel was invalid because there had been a breach of s 107L of the Criminal Justice Act 1985. The judgment stated:

[5] In support of the application, with particular reference to issue 2(b), Mr Ellis sought to place at the forefront of his proposed argument a point not previously taken either before the Parole Board or in the proceeding. That was directed to whether the Parole Board met to adjourn the hearing of the application for recall. We are satisfied that is not an appropriate point to be taken for the first time on a final appeal.

[6] On 4 August 2004, the day following the Supreme Court’s decision declining leave, Mr Manuel filed in the High Court at Wellington a new application for habeas corpus which challenged the Parole Board’s jurisdiction to determine the recall application. That challenge was based on an assertion that the Parole Board had failed to comply with a requirement, mandated by s 107L(1)(a) of the Criminal Justice Act, to determine the recall application “not earlier than 14 days, nor later than 1 month, after the date on which the offender is taken into custody pursuant to this section”.

[7] It is the case that pursuant to s 107L(10) the Parole Board was empowered to adjourn the hearing of the recall application and that if it had done so statutory time limits for determining the application would have been observed. However, the contention on behalf of Mr Manuel was that it was insufficient for such an adjournment to be organised by administrative staff of the Parole Board, that the Board itself had to formally make an adjournment decision.

[8] That second application for habeas corpus was scheduled for hearing by

Miller J on 6 August 2004, two days after the application had been filed. On the

morning of the hearing counsel for the respondent was able to place before the Court evidence on affidavit that Mr Manuel had consented in writing to an adjournment and that the adjournment decision was made by the Board in terms of an on the papers procedure which had been adopted for situations where proposed adjournments were consented to.

[9] Mr Ellis considered the evidence and accepted that the adjournment apparently complied with the requirements of the Criminal Justice Act. As Miller J noted in a minute dated 6 August 2004:

[3] The concession is confined to the habeas corpus application. Mr Ellis wishes to reserve the point for judicial review proceedings. On that basis, he properly withdrew the application.

[10] The respondent applied for costs. Miller J was of the view that the question whether costs can or ought to be awarded against the applicant in habeas corpus proceedings could not be dealt with summarily. He gave leave to counsel to file memoranda should the respondent wish to pursue the application. The respondent did wish to pursue costs and memoranda were filed. Miller J heard and determined the application on 20 August 2004.

[11] The respondent sought indemnity costs of $5,457 or, alternatively, scale costs of $3,625. The core argument for the respondent was that the second application for habeas corpus was an abuse of process having regard, in particular, to s 15(1) of the Habeas Corpus Act 2001 which provides as follows:

15 Finality of determinations

(1) Subject to the rights of appeal conferred by section 16 of this Act and to sections 7 to 10 of the Supreme Court Act 2003, the determination of an application is final and no further application can be made by any person either to the same or to a different Judge on grounds requiring a re- examination by the Court of substantially the same questions as those considered by the Court when the earlier application was refused.

[12] The respondent also contended that, in view of observations made by this Court on the earlier application, the appellant should have challenged by way of judicial review and not by habeas corpus. In any event, submitted the respondent,

the application was unmeritorious on the facts and nothing more than a fishing expedition.

[13] Mr Ellis had contended that the respondent was on notice about the adjournment point from when the application for leave to appeal to the Supreme Court was served on 25 June 2004 and yet had made no effort to find evidence of the adjournment process. He also submitted that when the first application for habeas corpus was filed the respondent should have annexed all the relevant documentation from the Parole Board file. Whilst acknowledging that there is jurisdiction to award costs on habeas corpus proceedings, Mr Ellis was unaware of any New Zealand case where costs had been awarded against an applicant. The reluctance to award costs against an applicant recognised the undesirability of deterring applications by financial burdens. The exemption of habeas corpus applications from filing fees, provided by s 7(6) of the Act, reflected that same view.

[14] Miller J held that the second application for habeas corpus was without merit for two reasons. First, it was prohibited by s 15(1) of the Habeas Corpus Act. This was because, although the adjournment question was not specifically put in issue, a wider question which encompassed it was. That wider question was whether the process adopted by the Board complied with the Criminal Justice Act, a matter which had led to the Court’s examination, in considerable detail, of the process adopted by the Board. Secondly, as indicated by this Court’s earlier judgment, the detention pursuant to recall being prima facie lawful under the provisions of the Criminal Justice Act, the question then arising was whether the arguments advanced as to process were appropriate for summary determination. If they were not, the writ should be dismissed and other more appropriate proceedings pursued if desired. The second application raised issues which were not apt for summary determination and because the habeas corpus procedure had been invoked the respondent was placed under severe pressure to prepare evidence between 4 and 6 August.

[15] Miller J also rejected Mr Ellis’s submission that the respondent should have been on notice as to the adjournment issue from the time leave was sought to appeal to the Supreme Court. The Judge held that the respondent was entitled to resist that application on the narrow ground that it raised a new point. The further argument

that all documents should have been annexed to the response to the application was also rejected on the basis that, pursuant to s 7(5)(a) of the Act, no party to an application for habeas corpus is entitled to discovery.

[16] Miller J pointed out that there had been a New Zealand case, In re Sierk (1876) NZ Jur (NS) 70, where costs had been awarded against an applicant. But he acknowledged that the decision was criticised at the time, in a note reported at (1876) NZ Jur (NS) 64-5, on the ground that liability for costs would defeat the object of the writ by deterring prisoners from applying. Miller J noted, however, that the legislature had chosen not to rule out costs, nor to leave them to the Court’s general jurisdiction under r 64 of the High Court rules. The discretion to award costs in relation to habeas corpus applications is explicitly dealt with in s 14(4) of the Act. It must be exercised judicially. The Judge found that provision precluded any general rule that costs will not be awarded against an applicant.

[17] Miller J concluded:

[19] I accept, notwithstanding the broad discretion to award costs in the Habeas Corpus Act, that costs awards against an applicant are exceptional. But the applicant had already failed in an earlier application (in which costs were not awarded), and it should have been apparent from the Court of Appeal judgment that the second application was misguided and had no hope of success. I conclude that this is a rare case in which a modest award of costs is justified. For purposes of s 14(4) [40(4)] of the Legal Services Act

2000, there will be an order specifying that, but for the fact that the applicant is legally aided, the Court would have awarded costs of $1500 against him.

Arguments on appeal

[18] On this appeal, Mr Ellis submitted that the decision to award costs was wrong in principle, would have a chilling effect on the untrammelled right to apply for habeas corpus, and failed to consider New Zealand’s international obligations. He argued that the point raised on the second application was a new point and did not involve a re-examination by the Court of substantially the same questions as those considered by the Court on the earlier application. In support of that submission he referred to the Supreme Court’s declining leave on the strength of “a point not previously taken either before the Parole Board or in the proceeding”.

[19] Mr Ellis referred to a discussion of the issue of new points set out in The Irish Constitution, J M Kelly, Hogan and White 4 Ed, Butterworths, 2003, which suggests that a Court might, indeed should, entertain a complaint which bears on the question of illegality of detention even though in earlier proceedings the applicant might have raised it but did not do so. Mr Ellis also referred to the criticisms of In Re Sierk made in the article in The New Zealand Jurist, principally upon the grounds that if costs were to be given against a prisoner seeking a writ, the object of the writ would be defeated by deterrence.

[20] On the question whether the second application was without merit, Mr Ellis submitted that whether the Parole Board had jurisdiction was classic habeas corpus material. Moreover, it was one which could be dealt with summarily, as was demonstrated by the decision to withdraw the application upon production of relevant Parole Board documents. The speed and certainty with which the adjournment issue was settled contradicted the respondent’s proposition that the appellant was on a fishing expedition.

[21] Mr Ellis submitted that the appellant had, by counsel, acted responsibly in withdrawing the application when the respondent eventually located and produced for inspection documentary evidence of the regularity of the Parole Board’s procedure.

[22] Further, he submitted, the appellant should not be criticised for taking technical points. He cited Lord Woolf in Brookes v DPP [1994] 1 AC 568, 582G “Where the liberty of the subject is at stake, technicalities are important.” Mr Ellis cited, in the same vein, from R v Oldbury Justices ex parte Smith (1995) 7 Admin LR 315, 326B-C:

No person should be imprisoned unless the rules which govern the process by which the step is to be taken have been precisely complied with.

[23] In relation to international obligations, Mr Ellis submitted that the prohibition on discovery, stipulated by s 7(5)(a) of the Habeas Corpus Act, is itself a restriction on the availability of the writ; and that so also is the jeopardy of costs. The problems

with the present case, in his submission, arise from the absence of a discovery procedure.

[24] Finally, Mr Ellis said that this was the first successive application under the new Habeas Corpus Act. The response of the Supreme Court on the leave application made it entirely proper, in counsel’s submission, for a new application for habeas corpus to be brought to test what was identified as a new point.

[25] There were, submitted Mr Ellis, practical implications of a costs award in an area where, liberty being at stake, applicants may have to act speedily and their counsel altruistically, taking the chance that a grant of legal aid may eventually be made in respect of an attempt to secure freedom for a person.

[26] Counsel for the respondent emphasised that in terms of s 14(4), all matters relating to the costs of and incidental to an application are in the discretion of the Court. Thus, awards of costs were clearly within the contemplation of the legislature, notwithstanding the traditional reticence of Courts to award costs against an applicant.

[27] Although rare, there are nevertheless some precedents for the award of costs, for example In re Sierk. Another instance is R v Chief Metropolitan Stipendiary Magistrate, ex parte Osmond [1988] 3 All ER 173, where costs were allowed in extradition proceedings which had involved the writ of habeas corpus.

[28] Counsel for the respondent made essentially the same submissions to this Court as had been made, successfully, in the High Court, including the s 15(1) barrier and the inaptness of the application, given the nature and history of the recall process.

[29] In counsel’s submission, the absence of a discovery procedure was irrelevant to the issue of costs. Moreover, acknowledging that the chilling effect of costs on habeas corpus applications was a factor to be taken into account, counsel said Miller J had been mindful of that when determining the costs application.

Discussion

[30] It is unarguable that an award of costs against an applicant for the writ of habeas corpus is a rarity. The only New Zealand case before the present was decided in June 1876, without any record of a reasoned decision. On a motion to rescind the costs order, which seems to have been made routinely on the discharge of the application, Williams J “expressed his opinion that the keeper of the gaol having been called upon to show cause why the prisoner should not be discharged, in being bound to show cause, costs were rightly allowed”.

[31] As we have noted, the decision was roundly criticised at the time and until now has not been followed. It can scarcely claim the status of an authority which might influence this Court.

[32] Although s 14(4) does not prohibit costs, in the sense that it leaves a judicial discretion, the specific power to refuse costs to a successful party or to order a successful party to pay costs to an unsuccessful party is, we think, of particular significance. It is extremely unlikely, indeed almost inconceivable, that costs would be awarded against an applicant who has succeeded in securing freedom from an unlawful detention by the issue of the writ. In addition to confirming a continuing jurisdiction in respect of costs, s 14(4) also specifically contemplates that a lawful detainer may, notwithstanding the lawfulness of the detention, be ordered to pay costs to the detainee, or be refused costs against the detainee. That approach is entirely consistent with the authority and crucial importance of the great writ in the protection of liberty.

[33] The Act recognises, in s 5, “the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty”. To facilitate applications for the writ the Legislature has, in s 7, removed barriers of form, standing, and filing fees. Delay which might be occasioned by interlocutory processes is obviated by the express removal of discovery and inspection of documents.

[34] It has been the practice of the courts that costs orders should not be made against unsuccessful applicants. The justification for that approach is obvious. Money barriers should not be placed on that avenue of freedom.

[35] We do not wish to attenuate that principle by examining too closely the merits of the second application. If it had been a further application in a series of manifestly unmeritorious and vexatious applications, it might be necessary for a Court to protect the integrity of the writ by some appropriate sanction against a repetition of the same abuse. But the present matter is far from that situation.

[36] It is the case that the second application was shown to be unnecessary. There could have been recourse to an informal process of inquiry; or an administrative process such as a request for production of the relevant documentation under the Official Information Act. As it transpired, original difficulties in locating the Parole Board files were overcome under the stimulus of the second application. It is, moreover, understandable that the observations of the Supreme Court could have seemed a life-belt to the applicant.

[37] With respect to the learned High Court Judge, we think that the basis upon which he exercised his discretion was wrong in principle and placed insufficient weight on the common law’s aversion to orders for costs against applicants for the writ of habeas corpus.

[38] William Young J concurring in the result, the appeal is allowed. The costs order made in the High Court is set aside. The respondent is ordered to pay costs of

$3,000, together with usual disbursements.

WILLIAM YOUNG J

[39] I accept that exceptional circumstances are required before a court should order costs against an unsuccessful applicant in habeas corpus proceedings. This, however, was also accepted by Miller J in the judgment under appeal. So the only issue is whether Miller J’s conclusion that the case was sufficiently exceptional to warrant an order for costs is fairly open to review on this appeal.

[40] Given our judgment in the earlier appeal, the second application for habeas corpus, was, on any view of the facts, doomed to fail in the High Court and likewise in this Court (unless this Court declined to follow the approach taken in the earlier appeal). In the course of argument Mr Ellis accepted that this was so.

[41] Further, I do not see the point of issuing a second set of habeas corpus proceedings. The more obvious (and certainly more economical) course would have been to make enquiry of the Parole Board as to the circumstances in which the adjournment was granted and as to the supporting documentation. Given that Mr Manuel could not hope to succeed in the High Court on the second application even if the facts were as Mr Ellis supposed them to be, and could hardly expect to succeed on appeal in this Court, the delay associated with this would have been inconsequential.

[42] I do not see the remarks made in the Supreme Court in relation to the application for leave to appeal against our decision on the first appeal as being in the nature of a pressing invitation to issue a second application.

[43] For those reasons, I was initially inclined to the view that the appeal ought to be dismissed.

[44] In the end, however, I have been persuaded that my perception as to what would have been the most reasonable and sensible way for Mr Manuel to proceed is not the controlling consideration. As well, I can understand how Mr Manuel and his advisers might have assumed that what they would see as “the failure” to produce documentation as to the adjournment in response to the application for leave to appeal to the Supreme Court meant that such documentation did not exist. And if the documentation did not exist, this would have provided a vehicle by which the reasoning in our judgment on the first appeal could be challenged in the Supreme Court. So, by what is a very narrow margin, I have been brought to the view that the appeal ought to be allowed.

Solicitors:

N B Dunning, Wellington for Appellant

Crown Law Office, Wellington for Respondent