Ericson v Department of Corrections [2014] NZCA 118 (2 April 2014)

Last Updated: 8 April 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA137/2014 [2014] NZCA 118
BETWEEN	JOHN FREDERICK ERICSON Appellant
AND	DEPARTMENT OF CORRECTIONS Respondent

Hearing:	27 March 2014 (by telephone conference)
Court:	Ellen France, Randerson and White JJ
Counsel:	Appellant in person A M Powell for Respondent
Judgment:	2 April 2014 at 12.30 pm

JUDGMENT OF THE COURT

The appeals are dismissed.
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REASONS OF THE COURT

(Given by White J)

[1] Mr Ericson appeals against decisions of Whata J and Mander J in the High Court at Christchurch refusing his applications for habeas corpus.^[1] Both decisions were dealt with on the papers and were given by way of minute.
[2] In support of his appeals, Mr Ericson has provided written submissions and, in response to the written submissions for the Crown, oral submissions during the telephone conference we convened for that purpose.
[3] In essence Mr Ericson submits that the two High Court Judges erred in failing to grant his applications for habeas corpus which would, if granted, have resulted in his immediate release from prison. Mr Ericson claims that his sentence of life imprisonment for murder imposed on 19 April 2000 resulted from a miscarriage of justice and that there is new evidence relating to his psychiatric state at the time of the murder and the removal of relevant evidence from the crime scene which shows that he was wrongly convicted. Mr Ericson also claims that he has been arbitrarily detained in custody and prevented by the prison authorities from meeting recommendations relating to his rehabilitation and reintegration into society made by MacKenzie J in Ericson v Chief Executive, Department of Corrections, an unsuccessful judicial review proceeding he brought.^[2] Finally, Mr Ericson claims that Whata J and Mander J breached the New Zealand Bill of Rights Act 1990 by failing to give him a hearing.
[4] The short answer to Mr Ericson’s appeal is that no proper basis for habeas corpus has been advanced. There is no suggestion that, having been convicted of murder and sentenced to life imprisonment, Mr Ericson’s detention in prison is unlawful. It is clear from s 14(1) of the Habeas Corpus Act 2001 and the decision of this Court in Bennett v Superintendent, Rimutaka Prison that the writ of habeas corpus is to be used only where it is sought to release someone entirely from unlawful custody.^[3] The writ is not appropriate for challenging the lawfulness of a conviction or the conditions under which an inmate sentenced to imprisonment is detained.
[5] Unless and until Mr Ericson’s conviction is set aside, it remains valid at law and, where, as here, a sentence of imprisonment has been imposed, the warrant authorising that imprisonment remains in force. The Prison Manager is not only authorised to detain Mr Ericson for the duration of that sentence he or she is also legally obliged to do so under the Corrections Act 2004.^[4]
[6] As Mr Ericson appreciates, however, there are other processes available to him to challenge the lawfulness of his murder conviction and the conditions of his imprisonment. Although Mr Ericson did not appeal against his conviction or sentence at the time and his application for special leave to appeal out of time, which also dealt with the merits of his proposed appeal, was unsuccessful,^[5] he is able to apply again to the Governor-General under s 406 of the Crimes Act 1961 for the exercise of the prerogative of mercy.^[6] Mr Ericson told us that he has retained a lawyer to pursue an application to the Governor-General for that purpose.
[7] Mr Ericson may also raise any concerns he has about the conditions of his detention with the prison authorities. Mr Powell indicated that he would follow up Mr Ericson’s concerns with the manager of the Christchurch prison.
[8] Finally, we record that Mr Ericson’s applications for habeas corpus have now been unsuccessful on some six occasions because, before the two applications considered by Whata J and Mander J, he had made four unsuccessful applications to the High Court in Wellington, all of which were dismissed.^[7] This means that there was in fact little doubt that, in terms of s 15(1) of the Habeas Corpus Act and this Court’s decisions in Misiuk v Attorney-General and Wallace v Chief Executive of the Department of Corrections,^[8] the applications dealt with by Whata J and Mander J should not have been accepted for filing in the High Court.
[9] Once, however, they were accepted for filing, it may, in terms of s 14(1A) of the Habeas Corpus Act, have been appropriate for Whata J and Mander J to refuse the applications on the papers without hearing from Mr Ericson or the Crown, although we consider that their decisions ought to have been given by way of formal judgment rather than in minutes.
[10] In this respect Mr Powell quite properly drew to our attention the recent decision of Heath J in McNab v Associate Judge Matthews where it is suggested, in reliance on s 9(3) of the Act and without reference to s 14(1A), that the High Court may not deal with a habeas corpus application on the papers.^[9] We express no view on the issue whether, notwithstanding s 9(3), s 14(1A), which was inserted on 30 March 2013 and which applies to any habeas corpus application whenever made,^[10] alters the position. We did not have the benefit of full argument on the issue and it is in any event unnecessary for us to determine it because, whatever the position may now be in the High Court, Mr Ericson has had an opportunity to be heard in support of his appeals in this Court. No question of any breach of the New Zealand Bill of Rights Act therefore arises.
[11] Accordingly for the reasons given, Mr Ericson’s appeals against the decisions of Whata J and Mander J are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Re Ericson HC Christchurch CIV-2014-409-58, 17 February 2014 and Re Ericson HC Christchurch CIV-2014-409-107, 24 February 2014.

^[2] Ericson v Chief Executive, Department of Corrections [2013] NZHC 3035 at [22] and [27]–[28].

^[3] Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA).

^[4] Corrections Act 2004, ss 37 and 38.

^[5] R v Ericson [2007] NZCA 18.

^[6] Mr Ericson has previously applied unsuccessfully under s 406 of the Crimes Act 1961: see the references in Ericson v Department of Corrections HC Wellington CIV-2010-485-1912, 30 September 2010 at [5(e)]; Ericson v Superintendent Rimutaka Prison HC Wellington CIV-2011-485-1607, 3 November 2011 at [8]; and Ericson v Superintendent Rimutaka Prison [2012] NZHC 210 at [5].

^[7] Ibid and Ericson v Superintendent Rimutaka Prison [2012] NZHC 1454.

^[8] Misiuk v Attorney-General [2012] NZCA 13 and Wallace v Chief Executive of the Department of Corrections [2013] NZCA 14.

^[9] McNab v Associate Judge Matthews [2014] NZHC 580 at [6]–[16].

^[10] Habeas Corpus Amendment Act 2013, s 6(1).