HINES V THE MANAGER OF CUSTODIAL SERVICES, AUCKLAND PRISON HC AK CIV 2006-404-6060 [2006] NZHC 1195 (9 October 2006)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CIV 2006-404-6060


               IN THE MATTER OF         the Habeas Corpus Act 2001

               BETWEEN                  DENNIS HINES
     
                                  Applicant

               AND                      THE MANAGER OF CUSTODIAL
                  
                     SERVICES, AUCKLAND PRISON
                                        Respondent


Hearing:       9 October 2006

Appearances: Applicant in person
             A Longdill for the Respondent

Judgment:      9 October 2006


                  
   ORAL JUDGMENT OF STEVENS J



Introduction


[1]    The applicant has applied for a writ of habeas corpus. He is currently an
inmate of Auckland Prison, Paremoremo, having been transferred there on
21 September 2006 from Manawatu Prison.


[2]    On 4 July
2005, the applicant was convicted of conspiracy to supply
methamphetamine and amphetamine in the High Court at Wanganui.        
    He was
sentenced by Gendall J to a term of imprisonment of 5 years 6 months, in respect of
which there is a Warrant of Commitment
for Imprisonment under s 91 of the
Sentencing Act 2002 duly signed by the sentencing Judge.


[3]    The applicant has sought a writ
of habeas corpus, essentially on the grounds
that his assigned security classification was changed on 20 September 2006 resulting

HINES V THE MANAGER OF CUSTODIAL SERVICES, AUCKLAND PRISON HC AK CIV 2006-404-6060
9 October 2006

in his being transferred to
Auckland Prison. The thrust of his challenge is not to the
legality of his detention per se. Rather, it is to the change of conditions
upon which
he is being detained, namely, the change upon review of his assigned security
classification from low medium to maximum
classification.


[4]    Under the Habeas Corpus Act 2001 (the Act), an application for a writ of
habeas corpus must be given precedence
over all other matters before the High
Court. Hence, the application was given a hearing today pursuant to s 9(3) of the
Act.


[5]
   The applicant had sought to have another inmate with him in Court to act as a
Mackenzie friend in relation to the application.
That application was denied: see
minute of Venning J dated 5 October 2006. Pursuant to paragraph [10] of the
minute, it was noted:

       The Judge presiding over the application for the writ of habeas corpus will
       be able to ensure that the applicant has
whatever assistance may reasonably
       be required to ensure his rights are protected.

[6]    The applicant has filed nine pages
of written submissions, plus exhibits. He
appeared today to present additional oral submissions, in respect of which he was
provided
with assistance to articulate the points made in support of the application.


[7]    In addition, during the hearing today, I raised
with Crown counsel,
Ms Longdill, various points requiring factual clarification.           During a short
adjournment, Ms Longdill
was able to obtain further factual information which have
enabled me to deal with the matter without delay.


Opposition to issue
of writ


[8]    The Crown, representing the Manager of Custodial Services, Auckland
Prison, filed a notice of opposition formally
opposing the grant of a writ of habeas
corpus to the applicant. The key grounds are:

       1.      The applicant is lawfully detained
pursuant to a Warrant of
               Commitment;

        2.        The applicant does not appear to challenge the legality of
the
                  underlying detention. Rather, his challenge is to a security
                  classification which resulted
in him being transferred to Auckland
                  Prison.

[9]     The Crown filed an affidavit of Peter Maxwell Phelan, the
Manager of
Custodial Services at Auckland Prison, in opposition to the application. A helpful
synopsis of written submissions, the
contents of which the applicant had a full
opportunity to address at the hearing, was also filed by the Crown.


Factual background


[10]    The applicant has been detained in prison
following his sentencing on 4 July
2005.    The relevant Warrant of Commitment was produced as an exhibit to
Mr Phelan's affidavit.
Since the commencement of his imprisonment, the applicant
claimed to have been the subject of a "progressively diminishing security
classification." But as the facts emerged, this was not entirely accurate.


[11]    Prior to the most recent security classification
review in September 2006 (the
recent review), there were reviews in February and August 2006. Following the
review in February 2006,
the applicant's status was "low medium". The then review
score, according to the review security classification sheet, was 24. Following
adjustments, his "security total" was 8, resulting in the classification of "low
medium". The applicable formula operates in such
a way as the higher the review
score, the lower the classification. But the number produced by the formula is
merely one part of
a more detailed assessment which must be carried out by the
prison authorities.


[12]    The six monthly review, which is required
by s 47(3) of the Corrections Act
2004, was carried out between 18 and 22 August 2006. That resulted in a review
score of 20, down
4 on the February review. It also resulted in the applicant's
security classification remaining as "low medium", the same as the
February
classification.

[13]   The recent review which has led to this habeas corpus application was carried
out in September.
The relevant documentation dated 21 September 2006 as attached
to the application. The base score on the form was the same as the
February and
August reviews. However, the review score was 14, that is 10 below the figure in
February and 6 below the August figure.
This was brought about by changes in
three categories of section B.


[14]   The changes included B4 (misconduct and/or incident
reports) down from 6
to 4, and B5 (motivation) down from 4 to 2. I was not provided, in the time
available, with any detailed factual
information as to what may have led to these
downward adjustments. In terms of the misconduct category, the circle for "more
than
one non-serious report" was marked. Also, the form suggests "5 x incident
reports plus 1 x misconduct for cellphone sim card." In
the motivation category, the
result was circled as "poor" as opposed to "average" in February. The form also
states: "Removed from
Maori Focus Unit because of Idu [identified drug user]
status. Has not addressed offending needs mainly because of this." But the
major
difference was in B3 (co-operation with prison staff), where the three circle options
were left unmarked and the sub-total
has defaulted to zero. The result is the reduced
score of 14, down 10 from the February review. This score led to the applicant being
initially assigned a "high medium" security classification.         But upon further
assessment by the prison authorities, this was
increased to "maximum".


[15]   There is no information before me as to whether there was any formal
correspondence between the
prison authorities and the applicant to accompany the
advice that the applicant's security classification had changed following the
recent
review. But what appears from the documentation under category C5 "advice to
inmate" is that a copy of the review security
classification form was issued to the
applicant on 21 September 2006. This entry is accompanied by a signature of the
issuing officer.


[16]   As can be seen from the applicable provisions of the Corrections Act (see
s 48 quoted below), when there is a change to
the security classification, the prisoner
must be promptly informed of the changed classification and the reasons for it.

Certain
reconsideration rights are also provided in the statute.             Section 48(1)
provides as follows:

       If a security classification
is assigned to a prisoner, or the security
       classification assigned to a prisoner is changed, the manager of the prison in
       which the prisoner is detained must ensure
that the prisoner is promptly
       informed in writing of -

       (a) that classification or, as the case may be, that changed
classification;
           and

       (b) the reasons for the assignment of that classification or, as the case may
           be,
that changed classification.

[17]   Following the change in security classification as a result of the recent
review, the applicant
was immediately transferred to Auckland Prison at
Paremoremo on 21 September 2006.


[18]   Following such transfer, it is uncertain
whether the applicant entered upon
any formal correspondence with the prison authorities. Mr Hines informed me today
that he did
speak to a Mr Tihore and raised with him a concern about his transfer. In
addition, he filed the present application for a writ of
habeas corpus. The applicant's
chosen course may have been motivated by a desire for urgency, as opposed to
procedural accuracy.


[19]   In essence, the applicant wishes to be transferred back to Manawatu Prison
without delay. Specifically, the application
states:

       22 [A] writ of habeas corpus is sought directing prison authorities that the
          applicant's detention at Paremoremo
maximum security prison is
          unlawful and that such writ be actioned within seven days.


Recent development


[20]   Mr
Phelan's affidavit on behalf of the Manager of Custodial Services,
Auckland Prison, candidly confirmed in paragraph 4 that "there
was an error in the
security classification dated 20 September 2006 in that no circle has been selected in
response to the question
B3, which deals with co-operation with prison staff. The
point value in the right-hand box has defaulted to the minimum, being zero."

[21]   Mr Phelan then noted that, where a prisoner has a complaint with a security
classification, there is a right pursuant to
s 48(2) of the Corrections Act to apply to
the Chief Executive for a reconsideration of that classification. He noted that the
applicant
had not applied for reconsideration of his classification.        Importantly,
Mr Phelan then stated:

       ... given the error
on the face of the security classification dated
       20 September 2006, I have requested that a fresh security classification
be
       completed in respect of the applicant.

[22]   At the hearing today, I clarified with Ms Longdill, appearing for the Crown,
whether the fresh security classification had already been commenced and how long
it might take. I was informed that the initial
parts of the classification have already
been competed (sections A1 to C2). The prison authorities are currently giving
consideration
to making a recommendation under section C3.           That is part of the
overall assessment procedure that follows upon the completion
of the earlier parts of
the form.    Once a decision is made in terms of such recommendation, the
recommendation will be forwarded
to the Regional Manager who will make the
ultimate decision on the applicant's security classification (under section C4).
Importantly,
Ms Longdill has confirmed that the final decision will be made by the
end of this week.


Writ of Habeas Corpus


[23]   In respect
of the application for a writ of habeas corpus, the legal difficulty
for the applicant is that he has not challenged the lawfulness
of his detention. He is
imprisoned as a result of the Warrant of Commitment dated 4 July 2005. Nowhere
in the paperwork supporting
the present application does the applicant challenge the
legality of that warrant. Indeed, no basis for doing so has emerged in the
application
itself or in the oral submissions canvassed before me today.


[24]   As is clear from the factual background outlined
above, what the applicant is
concerned about is the change in his security classification resulting from the recent
review. This
concern is best characterised as being about a change in the conditions
under which he is being (lawfully) detained. The question is whether such a concern

can be accommodated
within, or dealt with under, the present application for a writ
of habeas corpus. I will deal with this issue after referring to
the relevant legal
authorities.


Legal authorities


[25]   Ms Longdill referred me to the case of Bennett v Superintendent, Rimutaka
Prison  [2002] 1 NZLR 616 (CA). There, a five member bench of the Court of
Appeal considered an appeal against a decision to refuse a writ of habeas corpus
to a
prisoner who had been reclassified from high medium security to maximum security
and transferred to another prison. The Court
dismissed the appeal and in so doing
dealt authoritatively with the issue now before the Court. The Court of Appeal said
at 633 ([61]
and [62]):

       [61] Traditionally the writ [of habeas corpus] has been used only where it is
       sought to release someone
entirely from (unlawful) custody. The passage
       from Ex parte Rogers (para [23] above) has echoes in many later judgments,

      not least of which is Lord Jauncey of Tullichettle's observations in Ex parte
       Hague (at p 176), also quoted by Wild
J, that placing one prisoner in a strip
       cell and segregating another "altered the conditions under which they were
      
detained but did not deprive them of any liberty which they had not already
       lost when initially confined".

       [62] It
is also our view that a change to the conditions on which an inmate is
       being detained either by segregation, reclassification
or transfer to another
       institution does not create a new detention under an enactment for the
       purposes of s 23(1) of
the Bill of Rights. Nor, if an inmate is unlawfully
       treated while detained, is the detention itself rendered unlawful. The
remedy
       is the cessation of the unlawful element, not the cessation of the detention.

[26]   Later in the judgment, the Court
of Appeal stated (at [65]):

       In our view, the appropriate way in which sentenced prisoners can test
       the lawfulness
of the conditions of their incarceration is by application
       for judicial review. In cases involved human rights the events
which are
       impugned will be closely scrutinised (Pharmaceutical Management Agency
       Ltd v Roussel Uclaf Australia Pty
Ltd  [1998] NZAR 58 at p 66).
       (emphasis added)

[27]   Reference should also be made to the Court of Appeal case of
Manuel v Superintendent of
Hawkes Bay Regional Prison  [2005] 1 NZLR 161.
There, William Young J (as he then was) giving the judgment of the Court stated
at 176 ([49]):

       ... [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.

[28]   The respondent submitted that the present case falls squarely within the dicta
in Bennett. The respondent argued that, because
the challenge by the applicant is to
the lawfulness of the change of his security classification, that is a change in his
conditions
of detention. Hence, the appropriate course would be for the applicant to
have exhausted his statutory remedies and then to have
applied for judicial review
pursuant to the provisions of s 4 of the Judicature Amendment Act 1972.


[29]   I agree. In my view,
this case falls squarely within the principle outlined in
the Bennett case. There being no challenge to the lawfulness of the applicant's
imprisonment itself, I consider that there is no proper basis for the grant of a writ of
habeas corpus. Moreover, in relation to
the test outlined in Manuel, I do not consider
that any upstream issues pertaining to the recent security classification review are
"properly susceptible to fair and sensible summary determination" under this habeas
corpus application.


Alternative basis for relief
­ judicial review


[30]   The applicant in his application also seeks alternative forms of relief,
variously described as a "declaration
that the recent review is null and void", an
"injunction against the prison authorities to prevent continuation of a breach of duty"
and also a direction that "further aspects of these issues be transferred over to
judicial review."

[31]      The relief referred
to of declaration or injunction may conveniently be
included within judicial review. The nature and purpose of judicial review is
to
enable the Courts to exercise a supervisory jurisdiction over the procedures and
decisions of governmental and other public authorities.
              The Privy Council in
Mercury Energy Ltd v Electricity Corp of NZ Ltd [1994] 2 NZLR 385; at 388
described judicial review
as:

          ... a judicial invention to secure that decisions are made by the executive or
          a public body according to
law even if the decision does not otherwise
          involve an actionable wrong ...

          Judicial review involves interference
by the Court with a decision made by a
          person or body empowered by Parliament or the governing law to reach that
     
    decision in the public interest.

[32]      The omnibus procedure to facilitate judicial review is contained in s 4(1) of
the
Judicature Amendment Act 1972 as follows:

          On an application ... which may be called an application for review, the
  
       [High Court] may, notwithstanding any right of appeal possessed by the
          applicant in relation to the subject-matter
of the application, by order grant,
          in relation to the exercise, refusal to exercise, or proposed or purported
          exercise by any person
of a statutory power, any relief that the applicant
          would be entitled to, in any one or more of the proceedings for a writ
or
          order of or in the nature of mandamus, prohibition or certiorari or for a
          declaration or injunction against
that person in any such proceedings.

[33]      There are three aspects of this section which merit brief comment. The first
is the
phrase in s 4(1) "... notwithstanding any right of appeal possessed by the
applicant." This phrase underscores the principle that
in general the prerogative
remedies are not excluded by a right of appeal. However, the existence of an appeal
right, or other means
(often statutory) of securing relief, is a matter to which a Court
may have regard in the exercise of its residual discretion.


[34]      The second point is that s 4(1) provides that "the High Court may ... by order
grant".     Relief is discretionary.   
   Even if the applicant establishes all of the
prerequisites to judicial review under the statutory procedure, the Court still retains
a
discretion as to whether or not to grant relief. Such discretion is expressly provided
for in s 4(3) of the Judicature Amendment
Act. This subsection provides that the
grounds for refusal of relief are the same as the Court had prior to the
commencement of the
1972 Act. The point was noted by Goddard J in another

context in ACC v Wellington DC  (2000) 14 PRNZ 507;  [2001] NZAR 265. There
Goddard J stated at 513; 273 that:

       Even where an alternative remedy is clearly open to a party, the Court must
   
   ask itself which of the two remedies is the more convenient and effective in
       the circumstances, not only for the applicant
but in the public interest, and
       exercise its discretion accordingly...

[35]   That principle has particular application here
for the reasons to be discussed.


[36]   One    final   point   should    be   noted.      The    Court    of    Appeal   in
Campbell
v Superintendent of Wellington Prison CA3/05 14 February 2005,
commented in relation to a habeas corpus application at paragraph
[35]:

       ... the Court has emphasised that the judicial review procedure affords an
       effective, flexible and expeditious
process for securing release for an
       unlawful detention. Where a considered judicial examination and evaluation
       of the
facts concerning the validity and administrative decision is necessary
       to establish the unlawfulness of the detention, it
is more suitable than the
       very important but essentially summary procedure of habeas corpus.


Should the application be treated
as a judicial review?


[37]   The gist of the applicant's claim for alternative relief is for the application to
be treated as a
judicial review. The respondent has opposed this course. The
grounds for such opposition are that the respondent has already acknowledged
that
there was an error in the recent security classification review. Immediate steps have
been taken to rectify the position. Accordingly,
there is no present need for this
Court to become involved in an investigation of the circumstances of the recent
review, let alone
to consider the grant of relief to the applicant by way of judicial
review.


[38]   Moreover, even if the proposed reconsideration
does not take place, or is
improperly dealt with, the applicant has a statutory right, pursuant to s 48(2) of the
Corrections Act
2004, to apply to the Chief Executive for a reconsideration of the
security classification. The provisions of s 48(1) of the Corrections
Act were cited
earlier. The remaining subsections of s 48 provide as follows:

       (2) A prisoner who is dissatisfied with the
security classification for the
           time being assigned to that prisoner may apply to the chief executive for
           a
reconsideration of that classification, and the chief executive must
           ensure that the security classification is reconsidered
promptly in the
           prescribed manner.

       (3) Despite subsection (2), a prisoner may not make an application under
 
         subsection (2) if the security classification that applies to the prisoner
           was reconsidered, as a consequence
of an earlier application under
           subsection (2), within the previous 6 months.

       (4) Whenever a security classification
is assigned to a prisoner or a security
           classification assigned to a prisoner is reconsidered, the prisoner must
    
      be informed in writing of the decision.

[39]   In these circumstances therefore, the question is whether I should treat the
application for habeas corpus as containing in the alternative an application for
judicial review.


Discussion


[40]   In support
of its opposition on this point, the respondent cited the decision of
Greer v Visiting Justices at Paremoremo Prison (HC AK CIV 2006-404-3294
16 June 2006, Rodney Hansen J). In that case, Rodney Hansen J refused to treat the
application for habeas corpus as an application
for judicial review. He stated at
paragraphs [9] and [10]:

       That is not a course which I consider to be properly available
to me in this
       case. I accept Ms Davidson's submissions that in order for the Court and the
       respondents to be given
fair notice of the matters complained of and to
       provide a proper foundation for the directions which need to be made under
s
       10 of the Judicature Amendment Act 1972 to enable the proceeding to be
       advanced to a hearing, it is necessary for a statement of claim to
be filed
       which meets at least the basic requirements of the Judicature Amendment
       Act. In particular and pursuant to
s 9 of the Judicature Amendment Act, the
       statement of claim must set out:

       (a) The facts on which the applicant bases
his claim to relief;

       (b) The grounds on which the applicant seeks relief; and

       (c) The relief sought.

       It is
important that the statement of claim identify with precision the
       particular decisions which are challenged, by whom those
decisions were
       made and the grounds on which it is claimed those decisions were unlawful.

[41]     The statement of claim
there being referred to is of course one which
complies with the rules of Court. In the context of an application for judicial review,
the applicable rules of procedure are those set out in r 628 of the High Court Rules.


[42]     In the context of the present case,
I take into account the fact that Mr Phelan,
for the respondent, has frankly acknowledged that there was an error in the recent
security
classification review. In his affidavit, he confirmed that "I have requested
that a fresh security classification be completed in
respect of the applicant."


[43]     Today, I have been told that the reclassification is already well under way
and that a final
decision will be made by the Regional Manager by the end of this
week.


[44]     It is somewhat troubling that the error in the
paperwork regarding the
September review should have occurred at all. Although I was not able to consider
all of the relevant background
details or any correspondence or other documentation,
it may be that the communication surrounding the recent security classification
review was not particularly well handled. As noted above, the applicant has a
statutory right to be told about the change of classification
and to be informed about
the reasons for the changed security classification promptly after the review had
taken place. In this regard,
I have noted that there is a notation in the relevant form
which, at section C5, notes that the advice to inmate requirement was
met.


[45]     However, these are not matters which can be canvassed without all of the
relevant factual details being before the
Court.        I have been assured that the
reclassification is being carried out, and without delay. This should, in the normal
course,
produce a result which the applicant can consider and take steps to have
reviewed by the Chief Executive, if necessary.


[46]  
  In view of the discretionary nature of relief by way of judicial review, and
given the circumstances of this case, including the
action which the respondent has
already taken, it is doubtful that the applicant would be entitled to relief in any event.
That would
be the case, even if an application for judicial review had been properly
filed.

Decision


[47]    I am not prepared to treat
this application as an application for judicial
review. Given the fact that the respondent has already actioned a reconsideration,
there is no need for interim relief. In any event, the applicant has available to him
the statutory remedies contained in s 48 of
the Corrections Act.


[48]    If, after the reconsideration of his security classification has been completed,
and/or after he has
invoked the statutory procedures in s 48(2) of the Corrections
Act, the applicant is still dissatisfied, he could then commence proceedings
by way
of judicial review, if that course is considered necessary. That would involve filing a
statement of claim which would identify
with precision the particular decisions
which are challenged and set out the grounds upon which it is claimed that the
decisions
were unlawful.       If the matter is urgent, the Registrar can make time
available for an initial conference under s 10 of the Judicature
Amendment Act. Any
necessary directions can then be made to ensure that the course of such judicial
review proceeding is expedited.


[49]    Accordingly,
and for the above reasons, the application for habeas corpus is
dismissed. I also rule that, for the reasons stated, I am not prepared
to treat the
application for habeas corpus as an application for judicial review in the particular
circumstances of this case.




_________________________
                        Stevens J


Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Auckland

Copy
to:
D Hines, C/o Paremoremo Prison, PO Box 50124, Auckland