BIRCH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 1997

BIRCH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 1997 [7 August2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-441-55[2020] NZHC 1997UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of habeas corpusad subjiciendumBETWEEN ANDREW JAMES BIRCHApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentTeleconference: 7 August 2020Appearances: A J Birch in personJ Watson for the RespondentJudgment: 7 August 2020JUDGMENT OF COOKE J[1] The applicant has made an application for habeas corpus, dated 31 July 2020.[2] The application was referred to me in my capacity as Duty Judge, and inaccordance with the Habeas Corpus Act 2001 I scheduled a hearing by telephone todayat 2.15 pm. The respondent has filed a notice of opposition dated 7 August 2020 andalso brief submissions. Those had not been sent by Mr Birch, but I was able to explainthe essence of them to him at the telephone conference.[3] Mr Birch challenges his detention by questioning original legitimacy of thisarrest, including because the DNA evidence alleged to be held by the Crown cannotestablish any offending, as Mr Birch says the police never had his DNA in the firstplace. Other related points are made in his written application, and were referred toby him at the telephone conference.[4] Mr Watson, for the respondent, points out that matters that can be raised onhabeas corpus applications have limits. He refers to Bennett v Superintendent ofRimutaka Prison where the Court of Appeal said:1[70] In practice, once a prison superintendent or other official named asthe respondent produces a committal warrant or other authorisation itwould then be necessary for an applicant for habeas corpus to demonstratethat the documentation did not in fact provide a lawful justification in theparticular circumstances[5] The documents produced by the respondent here include a series of warrantsfor Mr Birch's detention. On discussing those with Mr Birch, he makes the point thathe did not attend hearings at the District Court on each of the occasions where warrantswere signed. But he did at least accept that he had been before the Court on 26November 2019. Amongst the warrants produced to me is a warrant signed by JudgeSygrove of that date remanding Mr Birch in custody. The subsequent warrantsproduced demonstrate continued remand in custody at call-overs. It may be thatMr Birch was not brought before the Court on those occasions — but I am satisfiedthere is a warrant for his detention.[6] In addition Mr Watson produced a copy of an order that Corrections produceMr Birch to the Napier District Court on 31 August 2020 at 9.30 am. Mr Watson wasnot sure what that was for, and I understood Mr Birch to say that it might be for trial.In any event I am satisfied there is a lawful warrant remanding him in custody, and anorder that he be produced at the District Court on that day.[7] I explained to Mr Birch that the matters he had raised were not matters thatcould result in the High Court releasing him on a writ of habeas corpus. He asked mewhether the matters he had raised could be raised before the District Court. I indicatedthat he could raise those matters in any application for bail, but that any considerationof bail involved wider considerations. What he said about the prosecution case againsthim would only be one piece in a jigsaw. Of course, if the hearing on 31 August 20201 Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616 (CA).is for his trial, the question of his guilt or innocence would be directly in issue. Irecommended to Mr Birch that he have counsel whatever the purpose of that hearingis.[8] Nevertheless for these reasons I am satisfied that the writ of habeas corpusshould be dismissed.Cooke JSolicitors:Crown Law Office, Wellington for the Respondentcc: Mr Birch