Ericson v Attorney-General [2019] NZHC 2728 (24 October 2019)

Last Updated: 6 December 2019

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-000111 [2019] NZHC 2728

BETWEEN	JOHN FREDERICK ERICSON Applicant
AND	THE ATTORNEY-GENERAL Respondent

Hearing:	On the papers
Judgment:	24 October 2019

JUDGMENT OF NATION J

[1] On 23 October 2019, Mr Ericson filed an application for Habeas Corpus.

[2] In Mr Ericson’s application, he said he had been arrested on 7 March 2019 on a warrant to recall issued by the New Zealand Parole Board at the request of his probation officer.

[3] Mr Ericson said the Parole Board’s warrant to recall failed to comply with the procedures in the Parole Act 2002 in that the application for a warrant to recall had been made by Mr Ericson’s probation officer under s 60(2) Parole Act. Pursuant to ss 60(1)(a) and (b), the application should have been made by the Chief Executive of the Department of Corrections because it sought his recall on a life sentence for murder and not a determinate sentence. He also claimed the Parole Board based its decision “on erroneous or irrelevant information that was material to the decision reached”.

ERICSON v THE ATTORNEY-GENERAL [2019] NZHC 2728 [24 October 2019]

[4] In his application itself, Mr Ericson thus acknowledges he is now in custody pursuant to a warrant to recall issued by the NZ Parole Board.

[5] It is a matter of record from earlier proceedings that Mr Ericson applied for the Board’s recall decision to be reviewed by the chairperson of the Parole Board under s 67 Parole Act. After a hearing, in which Mr Ericson was represented by counsel, the chairperson held there was no error in the Board’s approach or analysis to the recall decision.

[6] Mr Ericson then appealed to the High Court against the Board’s decision under s 68 Parole Act. There was a full hearing as to that appeal with both the Parole Board and Mr Ericson represented by counsel. In a judgment of 30 July 2019, Dunningham J dismissed his appeal.¹

[7] It is thus apparent that Mr Ericson is in custody pursuant to the order issuing a warrant for his recall made by the Parole Board, confirmed by the High Court. The validity of the Board’s decision has been considered both by the chairperson of the Parole Board and by the High Court.

[8] The habeas corpus procedure is not an available or appropriate way of challenging the decisions made by either the Parole Board, its chairperson, or the High Court.

[9] Even if the original application to the Parole Board was made in error by Mr Ericson’s probation officer rather than the Chief Executive, such an error is not the reason for Mr Ericson being recalled to prison in a way that could be challenged through the habeas corpus procedure.

[10] The application for recall, although part of the chain of material, is irrelevant to Mr Ericson’s current custody. He is not held under that document.

¹ Ericson v New Zealand Parole Board [2019] NZHC 1806.

[11] A technical error in the completion of a step which led to the making of the final recall order does not necessarily mean orders made by the Parole Board subsequent to such an error will cease to have effect.²

[12] For all these reasons, the assertions made by Mr Ericson do not provide a tenable basis for the issue of a writ of habeas corpus or to require the application to be considered further.

[13] Mr Ericson’s application is dismissed.

This judgment was delivered by me on 24 October 2019 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

² Wa v Chief Executive, Department of Corrections HC Wellington CIV-2006-485-2614.