SMITH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 362

SMITH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 362 [9 August 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA316/2019[2019] NZCA 362BETWEEN GEOFFREY MARTIN SMITHAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 24 July 2019 (further material received 26 July 2019)Court: Gilbert, Courtney and Wild JJCounsel: Appellant in personV McCall and L Dittrich for RespondentJudgment: 9 August 2019 at 4.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)Introduction[1] This is an appeal from a judgment of Brewer J1 delivered on 14 May 2019directing the Registrar of the High Court at Whangarei not to accept for filingdocuments tendered by the appellant, Mr Smith.1 Smith v Chief Executive of the Department of Corrections [2019] NZHC 1054.Background[2] Some brief background is necessary.[3] The appellant applied on 4 May 2018 to the High Court for a writ ofhabeas corpus. At the time he was remanded in custody awaiting sentence ondrugs charges.[4] Toogood J dismissed the application in a judgment delivered on 7 May 2018,with reasons following the next day.2 In his judgment Toogood J:3(a) expressed himself as satisfied that Mr Smith was lawfully detainedunder a warrant dated 28 March 2018;(b) held that Mr Smith was effectively applying for bail and the Court wasprecluded from considering bail;4(c) held that an application for a writ of habeas corpus was not the correctprocedure for challenging the jurisdiction of the New Zealand courts;5and(d) directed the Registrar of any registry of the High Court not to accept afurther application for habeas corpus from Mr Smith pending hissentencing.[5] In the District Court at Manukau on 1 June 2018 Mr Smith was sentenced tofive years imprisonment.[6] Between 18 May 2018 and 21 March 2019 Mr Smith filed further applicationsseemingly, in some if not all instances, seeking a writ of habeas corpus. These were2 Martin v Chief Executive of the Department of Corrections [2018] NZHC 980.3 At [24]–[26].4 Habeas Corpus Act 2001, s 14(2)(b).5 Section 14(1A).dealt with successively by Cooke J,6 Jagose J,7 Gordon J8 and Lang J.9 As theseapplications are not directly relevant to this appeal, we need do nothing more thanrecord that they were made.[7] On 3 May this year, and again on 13 May, Mr Smith attempted to file a furtherdocument in the High Court.10 On 3 May the document was rejected by the Registrarat Whangarei, pursuant to the direction Toogood J had given back on 8 May 2018.When Mr Smith sought to file the same document on 13 May, also in Whangarei,the Registrar referred the document to Brewer J for direction as to whether it shouldbe accepted as an application for habeas corpus.11[8] In a judgment delivered on 14 May Brewer J:(a) accepted that the Registrar on 3 May had wrongly relied on Toogood J'sdirection, as that had expired on 1 June 2018 when Mr Smith wassentenced;12(b) held the document Mr Smith had sought to file was not an applicationfor a writ of habeas corpus. The Judge quoted from the body ofthe document:132. This is not a challenge to the legality of the detentionof a legal person/company entity.(c) noted the document did not seek any relief from the Court;146 Minute of Cooke J dated 18 May 2018 at [3].7 Smith v Chief Executive of the Department of Corrections [2018] NZHC 2380 at [4]–[6].8 Smith v Chief Executive of the Department of Corrections HC Auckland CIV-2019-404-336,1 March 2019 at [11].9 Smith v Chief Executive of the Department of Corrections, above n 1, at [5].10 At [6]–[7].11 At [8].12 At [7].13 At [9].14 At [10].(d) held the document should not be accepted for filing because it wasunintelligible and did not comply with any of the High Court Rules2016 for the filing of documents;15(e) (insofar as the document raised an issue as to the correct identity ofMr Smith), held that was not an issue for which application underthe Habeas Corpus Act 2001 was the correct procedure;16 and(f) expressed the view that Mr Smith's documents were "gibberish" andthat "To accept them and somehow act on them would be an abuse ofthe process of the Court".17[9] Appearing before us, Mr Smith confirmed he was seeking to appeal Brewer J'sjudgment, essentially on the ground that the Judge had misunderstood the nature ofthe document Mr Smith had attempted to file. Mr Smith's position is thatthe document was an application for a writ of habeas corpus and Brewer J had erredin holding otherwise. Mr Smith confirmed that he was seeking to challengethe lawfulness of his detention pursuant to the warrant issued by Judge Moala on1 June 2018, upon sentencing him to 5 years' imprisonment.[10] For the respondent, Ms McCall accepted the warrant under which Mr Smithwas detained at the time Toogood J gave his judgment was a different warrant fromthat under which Mr Smith was detained when Brewer J gave his judgment. The firstwarrant detained Mr Smith in custody pending sentence, the latter committed him toprison upon sentence. However, Ms McCall points out that the documentsthe two Judges were dealing with advanced essentially the same "identity" argument.Although this argument is not easy to comprehend, its essence appears to be thatthe warrants were both for the detention of Geoffrey Smith, but the person detained,and the applicant to the High Court on both the successive occasions, was notMr Smith but rather "S-I-R-Crown; 1953150853, in body, Sovereign/Crown/LivingMan".1815 At [11].16 At [12]; and Habeas Corpus Act, s 14(1A).17 At [13].18 From the intituling of the document considered by Brewer J.[11] On that basis, Ms McCall makes two submissions for the respondent.First, Brewer J rightly directed the Registrar not to accept the documents for filing asan application for a writ of habeas corpus because s 14(1A)(a) of the Habeas CorpusAct applied. That provides:Despite subsection (1), the High Court may refuse an application for the issueof the writ, without requiring the defendant to establish that the detention ofthe detained person is lawful, if the court is satisfied that—(a) Section 15(1) applies; Section 15(1), in turn, provides that, subject to rights of appeal: the determination of an application is final and no further application canbe made by any person either to the same or to a different Judge on groundsrequiring a re-examination by the court of substantially the same questions asthose considered by the court when the earlier application was refused.[12] In short, the grounds for the application dealt with by Brewer J weresubstantially the same as those in the application dealt with by Toogood J.The application dealt with by Brewer J was thus proscribed by ss 14(1A) and 15(1).The Judge rightly stopped it at the threshold.[13] Second, and an overlapping point, an application for a writ of habeas corpus isnot the appropriate procedure for consideration of the "identity" argument advancedin the applications both to Toogood J and to Brewer J. We have already explained ourunderstanding of this argument: the person seeking the writ of habeas corpus is notthe prisoner. Although, unsurprisingly, courts have struggled to elucidate thesearguments, they have been uniformly dismissed.19[14] As Ms McCall pointed out, the same "identity" argument is contained inMr Smith's notice of appeal, for example its statement "very clearly there are twoidentities".[15] In reply, Mr Smith confirmed he wished again to raise the "identity" issue.He told us "I am S-I-R-Crown: 1953150853. I am not Geoffrey Martin Smith".19 For instance, in Martin v Chief Executive of the Department of Corrections [2016] NZHC 2811 at[20]–[24]; and Meenken v Family Court at Masterton [2017] NZHC 2103 (not a habeas corpuscase).But Mr Smith told us he also sought to challenge the validity of the warrant pursuantto which he is currently imprisoned. He embarked on an outline of the basis on whichhe would seek to do this. We stopped Mr Smith because the grounds he was outlining,if they do provide a basis for seeking a writ of habeas corpus, are properly addressedto the High Court at first instance, and were not a subject for this appeal.[16] It was clear we could not deal with the respondent's arguments without havingcopies of the documents considered by Toogood J and Brewer J respectively. Asthe respondent did not have them available in Court, we asked that they be providedto us. We now have them. Having considered these documents, our views are these.First, the substance of the affidavit filed by Mr Smith in support of the application fora writ of habeas corpus dealt with by Toogood J is dual identity. Like the Judge, weconfess to not understanding the content of the affidavit, but its tenor emerges fromthese two paragraphs:4. The Birth Certificate being indicia of a Corporation/transmitting-utility or other creature of commerce trading in the public whileremaining undischarged has through its Guardians, Officers,Administrators Agents or assigns by mischievous, deceitful, obscureand forceful methods induced the Petitioner to become security for thecommercial activities carried on its name; 6. That the attached Authenticated Birth Certificate showsthe corporation trading as Geoffrey Martin SMITH; [17] Second, dual identity is also the subject matter of the document considered byBrewer J. Again, we share the Judge's difficulty in understanding this document. Butthe following parts of it indicate its tenor. In the intituling, the following:Between ;S-I-R-Crown; 1953150853, in body,Sovereign/Crown/Living ManAnd Geoffrey Martin SmithLegal Person/Company, Trademark, Copyright,SecuritisedAnd in the body of the document the following:3. Judge Cooper has ruled identification, contract between the living andthe person, contract between the living and the Court to exercise itsjurisdiction are required and have not been produced.4. The New Zealand Bill of Rights Act 1990, Habeas Corpus Act 2001,The Criminal Proceedings Act define the two separate identities beingthe legal person and the Sovereign/Crown/Living People.5. Habeas Corpus Act 10(c) required the Registrar to communicate withS-I-R-Crown 1953150853 in body as to the time and the place ofthe Hearing and as to what proceeding is taking place within 3 daysof this document being filed.[18] Third, as Ms McCall submits, the grounds that Mr Smith advanced inthe document considered by Brewer J would have required "a re-examination bythe court of substantially the same questions as those considered by the court (that is,by Toogood J) when the earlier application was refused".[19] It follows that, in terms of s 14(1A), Brewer J rightly directed the Registrar notto accept for filing the document Mr Smith had attempted to file on 3 May and againon 13 May this year. Brewer J did not, as Mr Smith contends, misunderstandthe nature of that document. Accordingly, this appeal cannot succeed.Result[20] The appeal is dismissed.[21] There is no order as to costs.Solicitors:Crown Law Office, Wellington for Respondent