Lazarus v Chief Executive of the Department of Corrections [2024] NZCA 396 (21 August 2024)

Last Updated: 26 August 2024

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

CA336/2024 [2024] NZCA 396

	BETWEEN	LENIN WAYNE LAZARUS Applicant
	AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Court:	Thomas and Cooke JJ
Counsel:	Applicant in person S M Kinsler and H T Reid for Respondent
Judgment: (On the papers)	21 August 2024 at 10.30 am

JUDGMENT OF THE COURT

The application seeking an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Cooke J)

• [1] The applicant seeks an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) to bring an appeal from a decision of the High Court dated 15 November 2023 in which the Court declined an application for habeas corpus under the Habeas Corpus Act 2001 (the Act).^[1]

Background

• [2] The relevant background is set out in the High Court judgment.
• [3] Mr Lazarus is serving a sentence of life imprisonment for a murder committed in 2000. He was released on parole in October 2021.^[2]
• [4] On 3 June 2022, police responded to an incident of alleged wilful damage. Mr Lazarus’ former partner told police that Mr Lazarus smashed the door to her hotel room with a weapon. Then, on 21 July, the former partner told police she thought Mr Lazarus was following her. On 23 July, the former partner told police that Mr Lazarus threatened her over the phone to “send the boys over and fuck her up”.^[3] Police laid charges against Mr Lazarus and applied for him to be recalled to continue his sentence of life imprisonment.^[4]
• [5] On 25 July 2022, the Parole Board made an interim order for his recall and, on 12 August, made a final recall order on the grounds that Mr Lazarus posed an undue risk to the safety of the community or any person, and that Mr Lazarus had breached his release conditions.^[5]
• [6] Mr Lazarus subsequently appeared before the Parole Board on three occasions: 8 March 2023, 30 June 2023 and 11 October 2023. In a decision issued on 11 October, the Parole Board was satisfied on the basis of the evidence of the former partner and a psychological report that Mr Lazarus needed counselling to address issues relating to his former partner and that he should not be released.^[6]
• [7] On 6 November 2023, Mr Lazarus applied in the High Court for a writ of habeas corpus. He said he had been detained unlawfully since 23 July 2022 under s 61(a) of the Parole Act 2002 and that all the charges police had laid were dismissed or withdrawn on 15 June 2023. He said he was therefore being held unlawfully and that this was a “blatant abuse of power under [s] 61(a) of the Act”.^[7]
• [8] Woolford J rejected Mr Lazarus’ argument that his detention was unlawful because the charges were withdrawn, finding that “[t]here is no doubt that Mr Lazarus is lawfully detained”.^[8] The Judge noted that Mr Lazarus was sentenced to life imprisonment and that he could only be released by the Parole Board if it was satisfied on reasonable grounds that he would not pose an undue risk to the safety of the community or any person if released.^[9] The Judge stated that undue risk was a broad term and that while the charges had been withdrawn, the Parole Board could take into account underlying facts that it found were established.^[10]
• [9] The Judge also noted that it was not essential to a finding of undue risk that an offender had committed further offending of any sort.^[11] Rather, the Parole Board considers a range of risk factors which emerge from an offender’s actions while subject to release conditions which may amount to “undue risk”, even though the actions do not necessarily amount to committing an offence.^[12] For these reasons, the Judge declined the application.^[13]
• [10] Mr Lazarus’ application to this Court is phrased in similar terms to his application in the High Court. He does not address the delay in bringing the proposed appeal and why an extension should be granted. Mr Lazarus relies on the “Great Writ” of habeas corpus and says it “is a fundamental right in the [c]onstitutional arrangements of New Zealand law, that is supposed to protect [him] against unlawful and indefinite imprisonment”.^[14] He also says the application of the Crimes Act 1961 has been incorrectly administered by the Crown.
• [11] The Chief Executive opposes the application on the grounds that the application for a writ of habeas corpus was declined approximately six months ago, that there is no adequate explanation for the delay, and that the proposed appeal is not genuinely arguable.

Assessment

• [12] The principles to be applied in relation to an application for extension of time under r 29A of the Rules were outlined by the Supreme Court in Almond v Read.^[15] The particular circumstances of the case should be assessed, including factors such as the length of the delay, the reasons for it, the conduct of the parties (particularly the applicant), any prejudice or hardship to the respondent, the significance of the proposed appeal, and the prospects of success. The ultimate question is whether it is in the interests of justice to grant the extension.^[16]
• [13] Here the relevant delay involves a period of some five months. The appellant has not offered any explanation for this delay, although the fact that he is a serving prisoner may make it more difficult to engage in court proceedings. The fact that no explanation has been given for the delay counts against the application being granted. More significantly, however, we do not think the proposed appeal has any prospects of success, and for this reason we consider that an extension of time should not be granted.
• [14] As the applicant’s own submissions emphasise, the habeas corpus remedy is one of constitutional significance. When an application under the Act is made it will be necessary for those who have the custody of a person to present the warrant or other instrument that evidences that the detention is lawful, but once they do so, the applicant will need to demonstrate why that detention is not lawful in accordance with that warrant or other instrument.^[17] It will generally not be appropriate for the Court to address collateral attacks on other decisions — such as sentencing decisions, or decisions of the Parole Board declining parole — through an application for habeas corpus. Challenges to those decisions should generally be addressed by exercising appeal rights, or applications for judicial review.^[18] This is consistent with the application for habeas corpus being directed to cases where a person’s detention is without lawful authority.
• [15] Like the prisoner in Manuel v Superintendent of Hawkes Bay Regional Prison, the appellant here is ultimately advancing a collateral challenge to the decisions of the Parole Board recalling him and then not releasing him.^[19] He has not brought direct challenges to the decisions of the Parole Board, however. For example, he had a right of appeal against the final recall order made against him which he did not exercise.^[20] The respondent has produced the warrant to detain the appellant following the final recall order duly signed by a convenor of the Parole Board. As the Judge held, there were no circumstances that called for the Court to go beyond this warrant.^[21] The complaint the applicant appears to advance is that the matter for which he was recalled was not progressed in criminal charges. But we agree with the Judge that this did not prevent a final recall order being made.
• [16] The applicant also complains about the correctness of the Parole Board’s subsequent decisions concerning parole, and the recentness of the psychological assessments that were relied upon. But complaints of that kind are not appropriately addressed in an application for habeas corpus under the Act, and there is nothing in the material before us to demonstrate that the Parole Board’s decisions were not lawfully made. We note that the Parole Board continues to assess the appellant’s circumstances in the manner contemplated by the Act.
• [17] For these reasons we consider that the proposed appeal has no prospects of success and the application for an extension should be declined accordingly.

Result

• [18] The application seeking an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 is declined.

Solicitors:
Meredith Connell, Wellington for Respondent

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^[1] Lazarus v Chief Executive, Department of Corrections [2023] NZHC 3225 [High Court judgment].

^[2] At [7].

^[3] At [7].

^[4] At [8].

^[5] At [9]; and Parole Act 2002, s 66.

^[6] At [10].

^[7] See [3].

^[8] At [11].

^[9] At [12]; and Parole Act, s 7. See also ss 28,61 and 62.

^[10] At [13].

^[11] At [14], citing Isherwood v New Zealand Parole Board [2022] NZHC 2031 at [53].

^[12] High Court judgment, above n 1, at [14].

^[13] At [17].

^[14] Emphasis in original.

^[15] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

^[16] At [38]–[39].

^[17] Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 (CA) at [70]. See also Manuel v Superintendent of Hawkes Bay Regional Prison [2004] NZCA 440; [2005] 1 NZLR 161 (CA) at [45]–[46], which discusses and Bennett v Superintendent, Rimutaka Prison at [60], [63] and [66]–[70].

^[18] Habeas Corpus Act 2001, s 14(1A)(b); and Manuel v Superintendent of Hawkes Bay Regional Prison, above n 17, at [49]–[51].

^[19] Manuel v Superintendent of Hawkes Bay Regional Prison, above n 17.

^[20] Parole Act, s 68.

^[21] High Court judgment, above n 1, at [11].