Detention of autistic man a ‘shambles’

"What we've got here really . . . is the equivalent of a private prison." Tony Ellis, lawyer

He’s been locked up for more than 10 years. His crime? Breaking the windows of his neighbour’s van after reacting to a loud noise.

The severely autistic and intellectually disabled man, who has name suppression, has been detained in various intellectual disability secure care facilities since 2006.

He and his mother have applied, through lawyer Dr Tony Ellis, for a writ of habeas corpus, which establishes the process for checking illegal imprisonment, and would have him freed.

At the High Court in Wellington yesterday, Ellis said the way lower courts handled the man’s plight had been a ’’shambles’’.

The man, in his 30s, was arrested after an incident in South Auckland in 2006.

He was angered after hearing a loud bang, and he smashed three windows of his neighbour’s van with an axe.

He was found on the balance of probabilities to have committed the offence, but deemed unfit to stand trial, taken into secure care, and his detention repeatedly extended.

According to Ellis, the man had no lawyer present at some extension hearings, so the detention was unlawful.

‘‘All orders of detention must be made in public, not in private.’’

The man couldn’t leave his place of detention, which was also suppressed, ‘‘without three people’’ minding him, Ellis said.

‘‘He probably hasn’t been out since September.’’

These and other conditions equated to ‘‘disproportionately bad treatment,’’ Ellis said.

The man was charged with wilful damage, and being unlawfully in an enclosed yard, both of which carried maximum penalties of just three months’ imprisonment.

In contrast, criminals in New Zealand who’d been sentenced to life imprisonment could be paroled after 10 years, Ellis said.

But the court also heard allegations the man was deemed ‘‘dangerous’’ and was accused of threatening to kill somebody, though Ellis voiced scepticism at those claims.

Authorities wanted to extend the man’s detention for yet another three years, Ellis told the court.

‘‘What we’ve got here really . . . is the equivalent of a private prison,’’ Ellis added.

Justice Karen Clark voiced worries about the man’s detention but said a judicial review would probably be needed.

‘‘I do have a real concern about the lawfulness of some of these earlier orders,’’ the judge said.

‘‘That concern is without the benefit of submissions . . . but it’s an impression that I have.’’

The National Intellectual Disability Care Agency (NIDCA) and the man’s care manager were defendants in the hearing.

The agency’s lawyer, Martha Coleman, said a judicial review would be the appropriate setting to discuss the case and ’’remedy defects’’.

Justice Clark reserved her decision but expected a judicial review to be arranged, hopefully with some urgency.

– Fairfax NZ