Drever v Auckland South Corrections Facility [2019] NZCA 346 (31 July 2019)

Last Updated: 6 August 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA216/2019 [2019] NZCA 346

	BETWEEN	DEAN JOHN DREVER Appellant
	AND	AUCKLAND SOUTH CORRECTIONS FACILITY Respondent

Hearing:	4 July 2019
Court:	Stevens, Venning and Dunningham JJ
Counsel:	Appellant in person M J Mortimer for the Chief Executive of the Department of Corrections
Judgment:	31 July 2019 at 3.30 pm

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

[1] On 30 April 2019 the High Court dismissed Mr Drever’s application for a writ of habeas corpus.^[1] The High Court on 13 May declined to revisit that decision, saying that he was not detained within the meaning of the Habeas Corpus Act 2001 (the Act), as he was on parole.^[2]
[2] Mr Drever appeals on the grounds that the High Court Judge misunderstood the basis of his application. He says his application raised “the right to impose any breaches of liberty against [a] person on the grounds the sentences expiry dates were incorrect”. He considers (despite a judgment to the contrary),^[3] that the prison has wrongly calculated his entitlement to credit for pre-sentence detention, and therefore erred in determining his sentence expiry date. What he wishes to argue is whether there is a right to impose “any breach of liberty after the sentence expiry dates” as he calculates them to be.
[3] The issue for this Court is whether the High Court was wrong to dismiss his application for a writ of habeas corpus in the circumstances that have arisen.

Background

[4] To understand Mr Drever’s concerns it is necessary to recount briefly his sentencing history. Mr Drever was remanded in custody on 9 May 2014 on a charge of arson. Several days later he was also charged with possession of utensils and equipment related to the consumption and manufacture of methamphetamine (the drugs charges). In June 2014 he was charged with offences under the Tax Administration Act 1994 and was remanded in custody in respect of those charges. However, they were subsequently withdrawn.
[5] Mr Drever was sentenced on the arson charge on 25 July 2014 and received five years’ imprisonment. He was then sentenced to one year’s imprisonment in relation to the drugs charges to be served cumulatively on the sentence for arson, making a total of six years to be served.
[6] When calculating pre-sentence detention, the Department of Corrections (the Department) took into account the 77 days Mr Drever had spent in custody from 9 May 2014 to 25 July 2014, when he was sentenced in respect of the arson charge. The Department calculated his sentence expiry date to be 8 May 2020.
[7] Mr Drever does not accept that calculation, arguing he is entitled to credits for “pre-sentence detention” on the other charges, notwithstanding this was largely accrued while he was serving the sentence on the arson charge. He applied for a review of his entitlement to credit for pre-sentence detention under s 92 of the Parole Act 2002. He was dissatisfied with the outcome of that review and appealed to the District Court under s 92(4). However, Judge D Sharp dismissed Mr Drever’s appeal concluding there were no grounds raised to depart from the methodology applied by the Department and, on reconsideration, 77 days was the correct allowance for pre‑sentence detention on the charges he was imprisoned for.^[4]
[8] Mr Drever has not appealed that decision.
[9] On 15 April 2019, the Parole Board granted parole to Mr Drever and imposed a range of special conditions which included, relevantly, a requirement that Mr Drever is “for three months from release, to be at [his] approved address between the hours of 10.00 pm and 6.00 am daily unless [he has] the prior written approval of a Probation Officer”.^[5]
[10] On 26 April 2019, Mr Drever made an application for a writ of habeas corpus. It was dismissed by Peters J on the papers, on the grounds that “Mr Drever is not in custody”.^[6]
[11] Mr Drever renewed his application by filing an “Addendum to Application” dated 9 May 2019. The addendum cited the definition of detention in the Act which says it “includes every form of restraint of liberty of the person”. The addendum went on to explain that Mr Drever was detained within the meaning of the Act because his liberty was restricted by his parole conditions.
[12] On 13 May 2019, again on the papers, Walker J dismissed that application, saying she was “satisfied that parole conditions do not represent a detention within the meaning of the Act and that an application for a writ of habeas corpus is not a procedure available to Mr Drever”.^[7]

Should a writ of habeas corpus issue?

The legal framework

[13] A challenge to the legality of a person’s detention may be made by application for a writ of habeas corpus.^[8]
[14] A writ of habeas corpus is a constitutionally important remedy. For that reason, such an application “must be given precedence over all other matters before the High Court”.^[9] That urgency is reinforced by the requirement to allocate an inter partes hearing within three working days of the application being filed.^[10] As Heath J said in McNab v Matthews, “[t]he need for a prompt inquiry into an alleged loss of liberty is self evident”.^[11]
[15] For a writ to issue there must be an unlawful detention, that is, a detention without legal justification.^[12] If the defendant fails to establish that the detention is lawful, the High Court must grant a writ of habeas corpus, unless the Court is satisfied that the application “is not the appropriate procedure for considering the allegations made by the applicant”.^[13]

The appellant’s submissions

[16] Mr Drever argued that he was detained because his conditions of parole constituted a “detention” as defined under the Act. In particular, he is not free to leave his address during the hours of 10.00 pm to 6.00 am. He considered this is to be a form of “house arrest” which is recognised as a form of detention by the United Nations Working Group on Arbitrary Detention.^[14]
[17] In submitting that the special conditions constituted a detention he relied on cases which demonstrated that even short periods of unlawful constraint on a person’s liberty could amount to a detention. For example, in Pogson v Police, Fogarty J found there had been an unlawful detention when Mr Pogson had been “kept under the control of police officers” for a 49 minute period.^[15] In Mr Drever’s submission, his statutory release date having passed, the requirement to remain on his property between 10.00 pm and 6.00 am was clearly a form of detention within the definition of the Act, which could not be demonstrated to be lawful if his sentence had expired.
[18] For completeness, Mr Drever did not take issue with the Parole Board’s ability to impose such conditions if they had correctly calculated his sentence expiry date.^[16] Furthermore, he was not arguing that the conditions were inappropriate or unduly onerous. His case was simply that there was no jurisdiction to impose them when his sentence had expired. The special conditions therefore comprised an unlawful detention.

Mr Mortimer’s submissions

[19] Mr Mortimer appeared on instructions from the Chief Executive of the Department of Corrections. He noted that the named respondent had no separate legal personality so should not have been named as the respondent. Furthermore, as Mr Drever was not detained in a Corrections prison it was not clear that the Chief Executive would have been the correct respondent in any event.
[20] Mr Mortimer’s primary argument was that Mr Drever was not detained as he was on parole and parole is not detention for the purposes of the Act. Mr Mortimer noted that detention typically connotes imprisonment or actual detention in some analogous form.^[17] While Mr Drever’s parole conditions impose certain requirements, including a night time curfew at a residential address, the respondent submits that these conditions do not unduly restrict Mr Drever’s physical liberty in the sense of being physically prevented from leaving a place, nor from seeking legal advice or recourse to the courts.^[18]
[21] Mr Mortimer considered analogies can be drawn between this case and the High Court’s findings in McNab as to whether bankruptcy orders which placed limits on travel constituted a form of detention.^[19] In McNab, Heath J said:^[20]

The most compelling evidence of a lack of “detention” is the ability of Ms Mathiesen and Mr Spurr to attend the hearing before me, without permission from anyone. They also have the ability to seek permission to go overseas. If good reasons can be advanced, there seems to be no reason why permission should not be granted (at least on conditions) by the Official Assignee.

[22] In any event, Mr Mortimer argued that there is lawful authority for Mr Drever’s “detention” until 8 May 2020 pursuant to the warrants of commitment. Mr Drever’s challenges to his sentence expiry date have misunderstood the Supreme Court’s decision in Booth v R.^[21] While that case held that pre-sentence detention was to be treated cumulatively where successive charges were laid, that does not assist Mr Drever because, from 25 July 2014, he began serving a sentence of imprisonment. The operation of s 91(5)(a) of the Parole Act means that time from then on cannot count as pre-sentence detention. The Supreme Court in Booth expressly stated:^[22]

... the ... definition of pre-sentence detention relates to detention during the whole of the court process or processes from the original remand in custody on any charge up to the imposition of a sentence (or sentences) of imprisonment.

(Footnote omitted.)

[23] In Mr Drever’s case, as he commenced his sentence of imprisonment on 25 July 2014, he was entitled to only 77 days of credit for pre-sentence detention. Mr Drever has already challenged the Department’s calculation of his sentence length through the review provisions in s 92 of the Parole Act and was unsuccessful.^[23] In addition, if he wishes to seek a review of his parole conditions, he may do so under s 67 of the Parole Act. The existence of those other avenues of challenge speak against the issue of a writ of habeas corpus.^[24]

Our decision

Is Mr Drever detained?

[24] Mr Drever brought his initial application for a writ of habeas corpus on the basis that the special conditions of parole restricted his liberty, in particular the condition which required him to be at his approved residential address between the hours of 10.00 pm and 6.00 am unless he had “the prior written approval of a Probation Officer”.
[25] The question is whether this is sufficient “custody” to be described as a form of detention. As the authors of Habeas Corpus: Australia, New Zealand, and the South Pacific observe, the concept of custody for the purpose of invoking the writ has been confined historically to “close custody”, which normally refers to incarceration in a prison or police lock-up.^[25] However, they acknowledge that the custody requirement “includes other forms of restriction short of imprisonment where the applicant is subject to restrictions not shared by the public generally”.^[26] The authors note the arguable possibility of the custody requirement being extended to a person on parole or on probation without identifying any authority on point.^[27]
[26] The authors of The Law of Habeas Corpus also suggest that restraints short of confinement to a jail or some other such close perimeter, such as requiring a person to remain within a given geographical boundary, “may be seen as something of the order of a significant restraint on the liberty of the subject, and on that account, habeas corpus may be an appropriate remedy”.^[28]
[27] However, New Zealand authorities on the point do not suggest that habeas corpus is an appropriate remedy for a person who is not held in close custody.^[29] For example, in Slavich v Official Assignee, Andrews J held the conditions of the applicant’s bankruptcy did not give rise to a detention.^[30] On appeal, this Court upheld that decision, saying:^[31]

The point of an application for a writ of habeas corpus is “to challenge the legality of a person’s detention”. But Mr Slavich is not detained. He is free to go wherever he likes within New Zealand. So he does not get past first base.

(Footnote omitted.)

[28] As already noted, Heath J in McNab also considered that the conditions of a bankruptcy order were not sufficient to warrant invoking the constitutionally important remedy of the writ.
[29] However, the most pertinent New Zealand authority is that of Schuchardt v Commissioner of Police, where Mr Schuchardt sought release from bail conditions which he said restrained his liberty unlawfully.^[32] Keane J noted that the concept of detention:^[33]

... typically connotes imprisonment or actual detention in some analogous form, ... arising say in an immigration or deportation context, or on account of a person’s mental health. It does not naturally connote a grant of bail on terms limiting what a person may do.

[30] In the present case, Mr Drever has been released from prison, but on terms limiting what he may do. However, even the condition with which he takes particular issue is ameliorated by the fact that he may seek permission from a probation officer to be away from the residential address during the specified hours. In our view, nothing in the special conditions of parole imposed on Mr Drever reach the threshold required to invoke the important constitutional protection of the writ of habeas corpus.

If he is detained, is his detention unlawful?

[31] Even if Mr Drever were found to be detained under the broad definition of detention under the Act, he has not satisfied us that his detention is unlawful. His sentence does not end until 8 May 2020. The relevant calculation has been upheld in the District Court where the calculation of his sentence expiry date was reviewed in light of the Supreme Court’s judgment in Booth v R.^[34] No issue was raised before us which would bring the District Court’s determination of the sentence expiry date into question. That being the case, the Parole Board was able to impose special conditions on Mr Drever under s 29AA of the Parole Act when it granted parole. The consequential restrictions on Mr Drever’s liberty caused by those conditions are therefore lawful and no argument has been raised to displace that assessment.^[35]
[32] We also note that had Mr Drever had concerns about the specific conditions he could have applied for them to be varied or discharged under s 56 of the Parole Act 2002. He also had express rights to review the Parole Board’s decision under s 67 of that Act. This includes where the Board has acted without jurisdiction.^[36] These alternative avenues of challenge also tell against the availability of the writ. As has been noted by the High Court, an application for a writ of habeas corpus is not an appropriate alternative to an application for review under s 67 where, on its face, the applicant’s detention is lawful.^[37]
[33] Mr Drever has failed to demonstrate that his parole conditions constitute a “detention”, let alone that the detention is unlawful. Accordingly, his appeal is dismissed.

Result

[34] The appeal is dismissed.
[35] This is not a case where costs are appropriate and we make no order as to costs.

Solicitors:
Meredith Connell, Auckland for the Chief Executive of the Department of Corrections

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^[1] Drever v Auckland South Corrections Facility HC Auckland CIV-2019-404-726, 30 April 2019.

^[2] Drever v Auckland South Corrections Facility HC Auckland CIV-2019-404-726, 13 May 2019.

^[3] Drever v Department of Corrections [2017] NZDC 8258.

^[4] At [32]–[33].

^[5] Imposed pursuant to the Parole Act 2002, s 29AA.

^[6] Drever v Auckland South Corrections Facility, above n 1.

^[7] Drever v Auckland South Corrections Facility, above n 2, at [5].

^[8] Habeas Corpus Act 2001, s 6.

^[9] Section 9(1).

^[10] Section 9(3).

^[11] McNab v Matthews [2014] NZHC 580 at [6].

^[12] Bennett v Superintendent, Rimutaka Prison [2001] 3 NZLR 803 (HC) at [28].

^[13] Habeas Corpus Act 2001, ss 14(1) and 14(1A)(b).

^[14] Fact Sheet No. 26, The Working Group on Arbitrary Detention (May 2000).

^[15] Pogson v Police [2012] NZHC 112 at [16].

^[16] Which he calculates was no later than 5 December 2016.

^[17] Schuchardt v Commissioner of Police [2017] NZAR 1689 (HC) at [10].

^[18] Slavich v Official Assignee HC Hamilton CIV-2010-419-246, 19 March 2010 at [22].

^[19] McNab v Matthews, above n 11.

^[20] At [31].

^[21] Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.

^[22] At [24].

^[23] Drever v Department of Corrections, above n 3.

^[24] Habeas Corpus Act, s 14(1A)(b).

^[25] David Clark and Gerard McCoy Habeas Corpus: Australia, New Zealand and the South Pacific (2nd ed, The Federation Press, Sydney, 2018) at 66–67.

^[26] At 68.

^[27] At 68.

^[28] Judith Farbey, RJ Sharpe and Simon Atrill The Law of Habeas Corpus (3rd ed, Oxford University Press, Oxford, 2011) at 183.

^[29] Leaving aside the generally accepted category of child custody cases.

^[30] Slavich v Official Assignee, above n 18, at [30].

^[31] Slavich v Official Assignee [2010] NZCA 117 at [2].

^[32] Schuchardt v Commissioner of Police, above n 17.

^[33] At [10].

^[34] Booth v R, above n 21.

^[35] Thus this case differs from Booth v R, where an interpretation argument was raised which was ultimately accepted by the Supreme Court and which affected the calculation of Mr Marino’s sentence length. Here the sentence expiry date has been calculated in accordance with the Supreme Court’s judgment in Booth and no new issue is raised.

^[36] Parole Act, s 67(3)(e).

^[37] Huata v Chief Executive, Department of Corrections [2013] NZHC 3569 at [12].