Taylor v Director, Otago Corrections Facility [2020] NZCA 692 (22 December 2020)

Last Updated: 23 December 2020

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

CA726/2020 [2020] NZCA 692

	BETWEEN	ARTHUR WILLIAM TAYLOR Appellant
	AND	DIRECTOR, OTAGO CORRECTIONS FACILITY Respondent

Hearing:	21 December 2020
Court:	Cooper, Clifford and Goddard JJ
Counsel:	Appellant in person B Hawes for Respondent
Judgment:	22 December 2020 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

• [1] Mr Taylor appeals against a decision of the High Court dismissing his application for a writ of habeas corpus. Dunningham J dismissed the application on 16 December 2020,^[1] and gave her reasons the following day.^[2]
• [2] The Judge noted that the basis of Mr Taylor’s application was that on 4 December 2020 Mr Ritchie, a panel convenor of the New Zealand Parole Board, decided he would not make an interim recall order under s 62 of the Parole Act 2002.^[3] However, on 11 December 2020 another panel convenor, Mr Trendle, made an interim recall order after a further application for recall had been made. Mr Taylor’s principal argument in the High Court was that there had been no significant change in circumstances, and no proper basis for Mr Trendle to make a different decision to that already made by Mr Ritchie.

Background

• [3] Mr Taylor is subject to a sentence of 17 years and six months’ imprisonment for what the Judge described as “a large number of charges” which included drug-related offending.^[4] That sentence has an expiry date of 12 June 2022. Mr Taylor was released on parole in 2019 and issued with a licence under s 53 of the Parole Act. However, after a further drug-related charge was laid against him (and a charge of breach of parole conditions), an application to recall was made in June 2020, and on 14 July 2020 the Parole Board found that he constituted an undue risk to the community. The Board nevertheless decided that the risk could be mitigated by conditions, including a requirement that Mr Taylor reside in Dunedin. On 20 July 2020 he was released on conditions accordingly.
• [4] However, Mr Taylor was subsequently charged with further offences including three charges each of supplying and offering to supply a class B controlled drug, offering to supply methamphetamine, possession of methamphetamine for supply, supplying methamphetamine, two charges of conspiracy to supply methamphetamine and a charge of obtaining by deception. The Judge noted that all of the charges related to events that occurred prior to his re-release on parole in July 2020.^[5] The Department’s application for recall was advanced on the basis of those further charges, then due to come before the District Court at Dunedin on 17 December 2020. The making of the application for recall triggered consideration of whether there should be an interim recall order, under s 62(1) of the Parole Act, which provides:
  62. Making interim recall order

(1) On receiving a recall application, the chairperson or any panel convenor must make an interim recall order if he or she is satisfied on reasonable grounds that—

(a) the offender poses an undue risk to the safety of the community or to any person or class of persons; or

(b) the offender is likely to abscond before the determination of the application for recall; or

(c) in the case of an offender who is subject to residential restrictions,—

(i) a suitable residence in an area in which a residential restriction scheme is operated by the chief executive is no longer available; or

(ii) the offender no longer wishes to be subject to residential restrictions.

...

• [5] When he declined to make the interim recall order Mr Ritchie said:

The further charges outlined in this application are of some seriousness but it is significant that no advice is provided about arrest by the police or a summary of facts. In those circumstances, it is inappropriate for any order for recall to be made on an ex parte basis. The application will be determined in accordance with usual statutory provisions, although it is open to the applicant to file a revised application.

• [6] The substantive recall application was allocated a hearing date of 14 January 2021. However, a second application for recall was made on 11 December 2020, supported by further information. There was an affidavit annexing a draft police summary of facts, a statement from a police officer concerning the laying of the further charges and service of a summons on Mr Taylor, together with extracts of transcripts and telephone calls alleged to have been made by Mr Taylor which were said to support some of the charges.
• [7] It seems that the Parole Board was aware there was an ongoing police investigation when it re-released Mr Taylor in July 2020 and when it varied the conditions of his parole on 30 November 2020. But the serious charges laid were before Mr Ritchie for the first time when he considered the first recall application, and the summary of facts was available only when the second recall application was considered by a different panel convenor.
• [8] The second recall application was successful. Mr Trendle ordered that Mr Taylor be recalled to prison on an interim basis pending determination of the recall application.^[6] Mr Trendle minuted the application as follows on 11 December 2020:

Although the alleged offending occurred prior to the recall hearing on 14 July, the additional information contained in the summary of facts as part of annex C to the applicant’s affidavit, satisfies me that Mr Taylor poses an undue risk to the safety of the community. The current conditions of his release do not satisfy me that his risk can be managed by way of parole conditions. An interim recall order is necessary.

• [9] After that order was made, a warrant to arrest and detain Mr Taylor was issued under s 63 of the Parole Act and Mr Taylor was taken into custody. The formal hearing for the recall application was set down for 7 January 2021, having been brought forward from the original date of 14 January 2021.
• [10] Mr Taylor’s application for habeas corpus was advanced on the basis that there was no material difference between the information available to Mr Ritchie on 4 December 2020 and that available to Mr Trendle one week later. Mr Taylor claimed there was no jurisdiction for Mr Trendle to make a second decision, effectively overruling Mr Ritchie’s decision. He claimed that the summary of facts should not have been seen as significant given that Mr Ritchie would have been aware of the factual background and the basis upon which the further charges had been laid.
• [11] The Judge dismissed the application on the basis that Mr Ritchie had made it clear he had insufficient information on which to make an interim recall order, but at the same time had said what further information would be needed to support an application.^[7] The application received and considered by Mr Trendle had in fact been supported by such further information. Mr Trendle had jurisdiction to consider the second application and make another decision. Further, the Judge considered that the charges and the summary of facts appeared to provide a reasonable basis for making an interim recall order under s 62 of the Parole Act. The Judge was satisfied that the evidence “reached the threshold for a decision to be made to charge Mr Taylor”.^[8] In the circumstances, it had been open to Mr Trendle to make the interim recall order.

Appeal and analysis

• [12] Mr Taylor’s appeal has been filed on his behalf by Ms Hazel Heal, who describes herself as an “advocate”. Ms Heal has also sworn an affidavit dated 17 December 2020.
• [13] There are two grounds of appeal set out in the notice of appeal. The first complains that Mr Taylor was not physically brought before the High Court to determine the application. It is claimed that because Mr Taylor appeared by audio‑visual link (AVL) he was prejudiced. This contention is supported by Ms Heal’s affidavit, in which she describes Mr Taylor looking and sounding “very distant” during the hearing. She asserts that the quality of the AVL suite provided to Mr Taylor was inadequate and prevented him from being fully heard.
• [14] The second ground in the notice of appeal is that the High Court erred by dismissing the application on the basis that s 67(1) of the Parole Act precluded determination of the application on the merits.
• [15] We are satisfied there is nothing in the first ground. Despite the complaint made about the quality of the AVL link, the Judge recorded the submissions that Mr Taylor made.^[9] Neither the notice of appeal nor Ms Heal’s affidavit identifies any argument that Mr Taylor presented, or wished to present, which was not dealt with by the Judge.
• [16] Mr Taylor made an application for review of the interim recall decision under s 67 of the Parole Act, which was dismissed by Sir Ronald Young, the chairperson of the Parole Board, on 17 December 2020. Part of the Judge’s reasoning for declining the application was that if Mr Taylor wished to take issue with the substance of Mr Trendle’s decision that Mr Taylor posed an undue risk to the community for the purposes of s 62(1)(a) of the Parole Act, the appropriate course for him to follow was to make an application for review under s 67.^[10] Mr Taylor’s second ground of appeal is that since he has now made an unsuccessful application for review under s 67, this Court should engage with the merits of the decision to make the interim recall order. However, the hearing of the substantive recall application is to take place on 7 January 2020. We do not consider the present appeal an appropriate forum for the factual inquiry which will then take place under s 65 of the Parole Act.
• [17] In this Court the main emphasis of Mr Taylor’s case was the argument he made to the High Court, which we have summarised above. Essentially it is that nothing of significance changed between Mr Ritchie’s decision not to recall and Mr Trendle’s decision to recall. He says that there was no proper basis for Mr Trendle to decide there was an undue risk to the safety of the community when Mr Ritchie had decided that was not the case. He submits the result of the improper process followed has been to subject him arbitrary detention contrary to the New Zealand Bill of Rights Act 1990.^[11]
• [18] It is generally not appropriate to challenge the merits of decisions of the Parole Board by way of an application for the writ of habeas corpus. Reference can be made to this Court’s decision of Manuel v Superintendent of Hawkes Bay Prison, in which William Young J said:^[12]

[49] A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications and those which can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless we see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination. If they are, they can be addressed in habeas corpus proceedings. If not, they must be held over for evaluation in judicial review proceedings. In such proceedings, an application for interim relief (including release from custody) would be dealt with urgently and the Judge dealing with such an application would be in a position to give directions as to the future conduct of the litigation to ensure prompt substantive determination.

• [19] We consider the reservations expressed in that extract are underlined in the present case where the statutory procedures have yet to run their course and a full consideration of whether the statutory grounds for recall are made out is yet to take place. That hearing will take place on 7 January 2021. The statutory rights also include a right of review under s 67 of the Parole Act and a subsequent right of appeal to the High Court against any final recall order.^[13] Further, we note this is not a case where the decision-maker is the detaining party.
• [20] Mr Taylor’s challenge to the recall application would be arguable only if there was no new information before Mr Trendle on 11 December 2020 over and above the information before Mr Ritchie on 4 December 2020, which could reasonably be seen as relevant to the s 62(1) criteria. In that case, an issue would arise as to whether it was consistent with the scheme of the Parole Act for the Department to make, or for the Parole Board to consider, the second application. And it would be necessary to consider whether a challenge to the interim recall order on this basis is one of the “rare case[s]” referred to in Manuel v Superintendent of Hawkes Bay Prison where habeas corpus procedures permit the court to inquire into decisions “which lie upstream of apparently regular warrants”.^[14]
• [21] As we have mentioned,^[15] Mr Trendle considered that:

... the additional information contained in the summary of facts ... satisfies me that Mr Taylor poses an undue risk to the safety of the community. The current conditions of his release do not satisfy me that his risk can be managed by way of parole conditions.

We consider that the narrative included in the summary of facts, which put flesh on the bare bones of the charges referred to before Mr Ritchie, and in particular the new information in the summary of facts about the significant quantities of drugs to which those charges relate, is reasonably capable of being seen as new information relevant to an assessment of the risk to community safety posed by Mr Taylor. It is neither necessary nor appropriate for us to express a view on whether we would have seen this additional information as sufficient to tip the balance between refusal and grant of an interim recall order.

• [22] In all the circumstances the summary habeas corpus procedure is an inappropriate vehicle for the merits-based inquiry that the Parole Act procedures will afford.

Result

• [23] The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch for Respondent

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^[1] Taylor v Director, Otago Corrections Facility [2020] NZHC 3357.

^[2] Taylor v Director, Otago Corrections Facility [2020] NZHC 3405 [High Court judgment].

^[3] At [2].

^[4] At [5].

^[5] At [7].

^[6] Parole Act 2002, s 62(1).

^[7] High Court judgment, above n 2, at [27].

^[8] At [28].

^[9] At [20]–[22].

^[10] At [29].

^[11] New Zealand Bill of Rights Act 1990, ss 23(1) and 24(b).

^[12] Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

^[13] Parole Act, s 68.

^[14] Manuel v Superintendent of Hawkes Bay Regional Prison, above n 12, at [49].

^[15] Above at [8].