Martin v Department of Corrections [2012] NZHC 820 (24 April 2012)

Last Updated: 23 May 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-000465 [2012] NZHC 820

IN THE MATTER OF the Habeas Corpus Act 2001

BETWEEN JAMES TIMI MARTIN Applicant

AND DEPARTMENT OF CORRECTIONS Respondent

Hearing: 24 April 2012

Counsel: Applicant in person

J O'Sullivan for Respondent

Judgment: 24 April 2012

_{JUDGMENT OF ASHER J}

Solicitors/Counsel:

Crown Solicitor, DX GP 20023, Hamilton. Email: [e-mail]

Copy to:

JT Martin, Inmate, Waikeria Prison, Private Bag 2400, Te Awamutu 3840.

JAMES TIMI MARTIN V DEPARTMENT OF CORRECTIONS HC HAM CIV-2012-419-000465 [24 April

2012]

Introduction

[1] The applicant, James Timi Martin, has filed a document called “Application for Habeas Corpus” with various unsworn documents, together with an affidavit dated 18 April 2012. The Department of Corrections opposes the application.

[2] Mr Martin is presently serving a finite term of imprisonment of 16 years imposed on him on 28 February 2001. He was sentenced on that date having been found guilty after a jury trial of the crime of rape. The Judge had declined to impose a sentence of preventive detention, despite an earlier conviction and final sentence of

10 years imprisonment for an earlier very serious rape.

[3] His sentence expiry date is 28 November 2015. Under the relevant provisions of the Parole Act 2002 and the Criminal Justice Act 1985 unless an application had been made by the Department of Corrections for the extension of time he was required to be released after he had served two-thirds of his sentence. He had served two-thirds of his sentence on 30 July 2010. At that point in time the Parole Board had no discretion and he was required to be released.

[4] Mr Martin was released at that time. He was given a document dated 28 July

2010 headed “Conditions of release” and a “Notification of release on licence” document of the same date. He was also given another “Conditions of release” document dated 28 July 2010 which appears to be similar in wording to the first “Conditions of release” document with one difference that I will refer to shortly.

[5] After he had been released and had been living in the community for approximately eight months and had obtained a job, an application to recall him to prison was filed by a probation officer under s 60 of the Parole Act. The application was on the ground of undue risk to the safety of the community or any person or class of persons. An interim recall order was made.

[6] There was then a hearing on 18 August 2011 in Waikeria Prison before the Parole Board in which Mr Martin was represented and opposed the recall. In a reserved decision issued 12 September 2011, it was recorded:

37. ... In the exercise of our general discretion we are going to make a final recall order and it is made on the grounds set out.

38. In accordance with the policy of the Board, we will reschedule him for parole to be reconsidered in three months time. The usual reports are to be made available.

Mr Martin’s application

[7] Mr Martin has made it clear that he is not challenging the original sentence of imprisonment, or indeed the terms of the decision of the Parole Board recalling him. He focuses on the documents he was given and the procedure followed at the time he was released. He points out correctly that in the first set of conditions of release he was given there was the following statement:

Recall to prison

You are not liable to be recalled to prison to continue serving your sentence.

[8] He also refers in his affidavit to documents having been falsified by Community Probation Officers and refers to faults in the wording and signing of the release licence documents. He considers the release licence to have been incomplete. He submits there were three different sets of release licences on which he was supposed to have been released.

Decision

[9] The Habeas Corpus Act 2001 provides for the quick and summary determination of an application. In the context of an application of such short notice it is not usual for there to be any determination of substantive contested issues. Nevertheless, under s 14(2) the Judge must enquire into the matters of fact and law claimed to justify the detention.

[10] If the respondent fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.1 The general principles

to be applied are those set out in the decision of Manuel v Superintendent of Hawkes

Bay Regional Prison.2

[11] It is necessary therefore to consider, as the documents are of paramount importance in this habeas corpus application, the documents under which Mr Martin is detained.

[12] There are two relevant documents before me. The first is the sentencing decision of Potter J of 28 February 2001. The second is the decision of the Parole Board of 12 September 2011. Both of those documents appear to be entirely valid on their face. Although they are not before me, there has been no challenge to any formal court or prison documents that followed the issue of those decisions. There is therefore nothing to indicate that there is anything unlawful or irregular in the detention of Mr Martin.

[13] There is the error that is in the conditions of release given to him at the time of his release. Ms O’Sullivan for the Department of Corrections accepts that this was an error and apologises on the Department’s behalf for that error. In relation to that it must be observed that it seems at about the same time, another “Conditions of release” document has issued, which did specify that Mr Martin was liable to be recalled to continue serving his sentence until 28 August 2015.

[14] It would seem that the error was an isolated one and had been picked up by the relevant officers. However, even if this were not so, an error in a form issued on the detainee’s release, even a misleading error of this type, would not be a proper basis to issue a writ of habeas corpus. Nor would any other error in the interim release process warrant the issue of the writ. This is because the conditions of release are not in fact a document under which the detainee has been held in custody. It was in fact a document authorising his release. The document, although part of the chain of material, is irrelevant to his current custody. He is not held under that document. Those conditions and the other release procedures in 2010 have no direct bearing on his present incarceration other than as steps in the background. The

wording error has not made the process of his release and recall in any way irregular or unlawful. It is a technical error on a document and no more than that.

[15] On the face of all the material before me, the detention of Mr Martin is lawful. There is no basis for the issue of a writ of habeas corpus.

Result

[16] The application for habeas corpus is declined.

...................................

Asher J