LAWFUEL – The Legal Newswire – The right to apply for habeas corpus was in many respects anachronistic, given that remand inmates had the right to appear before a court every seven days and were assisted by legal aid, said Criminal Bar Association of New Zealand President, Graeme Newell.
Mr Newell, who was asked to comment on a Law Commission study paper Further Reform of Habeas Corpus Procedure, said that in those circumstances, prisoners using habeas corpus applications as a means of complaining about the system were probably abusing the process.
In his 19 years of practising criminal law, he had not needed to apply once for a writ of habeas corpus.
However, said Mr Newell, in the international framework in which prisoners were remanded on other than criminal matters – such as the refugee context – there was obviously a need for the writ of habeas corpus.
The Law Commission was asked by the Government to examine practical difficulties arising in relation to habeas corpus applications, and has issued a discussion document seeking responses by September 17.
Law Commission President Sir Geoffrey Palmer said that, while the writ of habeas corpus was a fundamental bulwark of constitutional liberties, problems had recently arisen with it in the courts and the commission believed that they needed to be addressed. The Habeas Corpus Act 2001 was passed as a result of a Law Commission report. Its purpose was to simplify habeas corpus procedures.
Although it had done that, a number of practical problems had emerged that had led to unnecessary court appearances and delays in the process. The draft study paper, Further Reform of Habeas Corpus Procedure, noted that the right of persons arrested or detained to apply for habeas corpus was enshrined in section 23 (1) (c) of the New Zealand Bill of Rights Act 1990.
Section 9 of the Habeas Corpus Act 2001 required habeas corpus applications to be given precedence over all other court business, with judges and court staff being required to dispose of them as a matter of priority and urgency. Appeals were also required to be given precedence over other court business. The document noted that this priority was a long-standing one.
“The dictates of priority and urgency are clearly appropriate, because habeas corpus applications involve questions of individual liberty. But it is questionable whether such applications should be given priority over all other court business. While liberty is an important value, it is not difficult to envisage other cases that are deserving of at least equal priority. Cases where the court needs to intervene to ensure that children receive lifesaving medical treatment and interim injunction applications to prevent publication of material injurious to national security may be examples.”
The paper recommended that the requirement that habeas corpus applications be given precedence over all other court business be repealed but proposed that judges and court staff should still be required to treat applications with priority and urgency. “This would mean that it would be left to the court to determine the relative priorities if a habeas corpus application needed to be dealt with alongside other urgent court business.”
The commission noted that the act at present provided that an inter partes hearing must be allocated no later than three working days after the filing of a habeas corpus application. It acknowledged that the three day time limit was consistent with the need for urgency, but said that the strictness of the requirement had caused difficulties in practice.
For example, in Togia v General Manager, Rimutaka Prison, an application was filed late on a Monday and was set down for hearing on Wednesday morning, as there was no available court time on Thursday.
The case involved complex legal issues that Justice Harrison decided could not be dealt with fully in view of the time constraints. Accordingly, the court had made an order “releasing” the applicant from detention in prison under an interim recall order to detention in a residential care facility under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. The parties settled the habeas corpus proceeding before the final hearing.
However, the paper said that, had the matter proceeded to a final hearing, Mr Togia would have spent a month detained in a secure care facility awaiting resolution of the legal issues surrounding his detention. “Arguably, the matter could have been dealt with more expeditiously by allowing the parties more time to prepare fully prior to the initial hearing.”
The commission accordingly recommended that the three day time frame remain the ordinary rule but that High Court judges be given the ability to relax the requirement if the circumstances required. The paper went on to say that section 16 conferred a right of appeal against the refusal of a writ of habeas corpus, but no right of appeal against the grant of a writ.
This was potentially problematic when the decision created a legal precedent that affected other detained persons, as could be seen from a series of habeas corpus decisions in the mental health context relating to section 9 (2)(d) of the Mental Health (Compulsory Assessment and Treatment) Act 1992.
The document suggested that a right of appeal on points of law where a writ of habeas corpus was granted should be enacted. However, the legislature should make it clear that a successful appeal did not result in the return to custody of the person who had been granted the writ.
The commission noted that section 13 of the Habeas Corpus Act provided for ancillary powers where the detainee was a child or young person, including the power to transfer applications to the Family Court. It proposed that section 13 be amended to make it clear that, where the court decided that the most appropriate response was to transfer an application to the Family Court, it need not “determine” the application in accordance with section 14 first.
Another problem identified by the commission was the use of the habeas corpus procedure in circumstances in which the issues were not susceptible to summary determination by habeas corpus. “Many applications of this kind are brought by prisoners in prison. Some cases have involved wide-ranging complaints about matters that have nothing to do with unlawful detention. Some appear to have been brought in circumstances where the applicant had known the procedure was wrong, for the purposes of securing an early hearing.”
The document accordingly recommended the introduction of a power to dismiss applications without the need for the defendant to establish the lawfulness of the detention where the application was statute-barred under section 15(1), or involved the wrong procedure.
It also suggested that greater use of telephone hearings could overcome some of the current practical problems.