PARKER v DEPARTMENT OF CORRECTIONS [2022] NZHC 987

PARKER v DEPARTMENT OF CORRECTIONS [2022] NZHC 987 [10 May 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-198[2022] NZHC 987UNDER The Habeas Corpus Act 2001IN THE MATTER OF An application for a writ of habeas corpusBETWEEN DAVID RICHARD PARKERApplicantAND DEPARTMENT OF CORRECTIONSRespondentTeleconference: 6 May 2022Appearances: The Applicant in personA W M Britton for the RespondentJudgment: 10 May 2022JUDGMENT OF PALMER JSolicitorsCrown Solicitor, WellingtonThe applicant[1] On Thursday 5 May 2022, Mr David Parker applied for a writ of habeas corpus.I convened an urgent hearing by teleconference on Friday 6 May 2022. I noted duringthe hearing that it was not clear to me that Mr Parker was very well prepared to arguethe application and offered him the opportunity to reconvene on Monday 9 May 2022,once he had further collected his thoughts. He did not take up that opportunity.Habeas Corpus[2] Section 23(1)(c) of the New Zealand Bill of Rights Act 1990 provides thateveryone who is arrested or detained has the right to have the validity of arrest ordetention determined without delay by way of habeas corpus and to be released if thearrest or detention is not lawful.[3] The Habeas Corpus Act 2001 (the Act) reaffirms "the historic andconstitutional purpose of the writ of habeas corpus as a vital means of safeguardingindividual liberty", as it states in s 5(a). It provides for restoring the liberty of thosewho are unlawfully detained. Section 14(1) states, if the defendant fails to establish adetention is lawful, the court "must grant as a matter of right a writ of habeas corpusordering the release of the detained person from detention". Section 14(2) provides"a Judge dealing with an application must enquire into the matters of fact and lawclaimed to justify the detention".[4] Once the defendant has produced a warrant or other authorisation for theapplicant's detention, it is up to the applicant to demonstrate that the documentationdoes not provide a lawful justification for detention in the circumstances.1 As theCourt of Appeal has stated, the inquiry envisaged by Parliament in passing the Actmust be one "that although conducted in circumstances of urgency would allow anappropriately considered judicial examination that would warrant making anunappealable finding against the lawfulness of the detention".21 Bennett v Superintendent, Rimutaka Prison (No 2) [2002] 1 NZLR 616 (CA) at [70].2 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [47].Should a writ of habeas corpus issue?[5] It is difficult to discern exactly why Mr Parker submits that his detention isunlawful. The closest he came to that point was in submitting that his warrant ofdetention is illegal because not all laws are lawful and some may be unlawful underUnited Nations guidelines and international law.[6] Mr Britton, for the respondent, submits that the issue must be whether thewarrant of committal is a lawful warrant. He produced the warrant. It was issued byJudge R E Neave in the Christchurch District Court on 22 April 2022 in relation totwo charges of resisting Police and one charge of disorderly behaviour likely to causeviolence. The warrant remands Mr Parker in custody until he is brought back to theWellington District Court on 25 July 2022, where he faces 11 other charges. I amsatisfied the warrant demonstrates that Mr Parker is lawfully detained, internationallaw notwithstanding.[7] None of Mr Parker's other objections affect the lawfulness of his detention:(a) Mr Parker objects to aspects of the Statement of Facts that underliecharges against him. But that should be pursued at trial, if he pleadsnot guilty. An amicus curiae is assisting him. I ask Mr Britton toprovide this judgment to the amicus.(b) Mr Parker objects to not being granted bail and that his time in custodywill likely exceed any sentence. But these issues should be pursued byan appeal of the relevant bail decision or a fresh application for bail. Iunderstand that was made clear to Mr Parker in the District Court.[8] Mr Parker also objects to the hearing being by telephone, rather than in person,as he says is required under the Act. Ordinarily, he would be correct. Section 14A ofthe Act specifies that an application for a writ of habeas corpus is a civil proceedingfor the purposes of the Courts (Remote Participation) Act 2010. Section 7 of that Actallows for the appearance of a participant in a civil proceeding by way of audio-visuallink. But s 7A provides for the use of audio links for such hearings while an EpidemicPreparedness (COVID-19) Notice 2020 is in force, which is currently the case. TheAct, therefore, does not require an in person hearing to determine the presentapplication.[9] I dismiss the application.Palmer J