Inmate cites ancient law in freedom fight

Rimutaka Prison inmate Ken Morgan carries a box of files during his hearing at the Supreme Court. Picture / Mark Mitchell

A Rimutaka Prison inmate has argued in New Zealand's highest court that he is in jail unlawfully.

His landmark case, if successful, could force the release of many prisoners and spark compensation claims.

Kenneth Christopher Morgan had no lawyer and represented himself before a full bench of five judges at the Supreme Court in Wellington yesterday, flanked by a prison officer to his left and two gowned Crown lawyers to his right.

Lawyers told the Herald that if his case succeeded, the Corrections Department would have to look at who else should be immediately released from jail, and prepare itself for lawsuits seeking compensation for unlawful imprisonment.

It was not clear exactly how many people might be affected by the Supreme Court's decision. Legal estimates run from scores to hundreds of current and former inmates.

Morgan, 55, was appealing against a majority Court of Appeal ruling which dismissed his application for a writ of habeas corpus, a rarely used and ancient legal procedure which requires an urgent decision by the courts on whether a person is legally in jail.

Morgan, clad in jeans and a khaki-coloured bomber jacket covering a white sweatshirt on which Rimutaka Prison was boldy printed on the back, arrived at the Supreme Court carrying a large cardboard box filled with carefully tagged papers and case files.

Despite having no formal legal training, his clear, confident voice faltered only when he realised he had been struggling to read his papers because he was wearing the wrong spectacles.

"I thought it was nervousness that I couldn't read my words, but it was not."

Morgan was arrested and charged with cannabis offences in September 2001, and was convicted in November 2002. During that time, the law changed.

Provisions of the Criminal Justice Act were replaced by the Sentencing Act and the Parole Act, both of which came into force on July 1, 2002.

Morgan, whose sentence for cultivating cannabis was reduced to three years on appeal, has been eligible for parole since late last year, but not released.

He told the Supreme Court yesterday that meant the penalty imposed on him under the new law was harsher than would have applied under the law as it existed when he committed the crime.

He said that under the Criminal Justice Act, he would have been entitled to parole after serving two-thirds of his term. Having to serve his full term was a more severe penalty than being able to serve some of it in the community, and that breached the Bill of Rights Act.

That legislation says that if a penalty changes between the time an offence is committed and the time of sentencing, the offender is entitled to the lesser penalty.

Morgan said he was aware of the ramifications of his case, but what it really meant was that a number of people had been in prison longer than intended.

Crown counsel Andrew Butler rejected Morgan's arguments on penalty.

He said there was no difference between the sentence imposed under the new law and the old law.

What had changed was whether or not Morgan was released on parole, and that was an issue of how the original penalty was administered rather than the imposition of a harsher penalty.

Mr Butler said Morgan was eligible for parole at the same time under both laws.

Chief Justice Dame Sian Elias said the court would release a decision "shortly", which could be as soon as today.

Habeas corpus

* Habeas corpus dates from medieval times and means "to deliver up the body".

* It became British law in 1679 and aims to stop a nation illegally jailing a person.

* At times, states have tried to suspend what is considered a fundamental legal principle.

* Examples include the interment of 110,000 Japanese in the United States in World War II.

* British Governments have flouted it to jail IRA and terrorist suspects.