KISSLING v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 291 [26 February 2020]

KISSLING v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 291[26 February 2020]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2020-454-12[2020] NZHC 291BETWEEN JAMIE RONAKI KISSLINGAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 26 February 2020 (via AVL)Appearances: Appellant in PersonD Jones for RespondentJudgment: 26 February 2020JUDGMENT OF CLARK JIntroduction[1] Mr Kissling is currently detained, awaiting sentence. His sentencing date is2 March 2020. Mr Kissling was most recently refused bail on 23 December 2019.[2] This is Mr Kissling's second application for habeas corpus. His firstapplication was declined by Cooke J on 12 February 2020 for reasons delivered on13 February 2010.1The current application[3] Mr Kissling has included in his application as parties to be served, thePrime Minister, Crown Prosecutions Palmerston North, Palmerston North DistrictCourt Registry, the Attorney-General, the Chief Executive of Corrections and the1 Kissling v Crown Prosecutions Palmerston North District [2020] NZHC 150.Department of Birth Registry (which I take to mean the Department of InternalAffairs).[4] Mr Kissling advances 17 grounds for a writ of habeas corpus. At the hearingMr Kissling spoke to his written submissions and to his further document received onthe morning of the hearing, replying to the memorandum filed on behalf of therespondent.[5] It is not necessary to go into the detail of the grounds relied upon. Mr Kisslingagreed that his primary concern is one of natural justice in relation to his trials. In theapplication which Cooke J determined, Mr Kissling sought an adjournment of hissentence so as to avoid a miscarriage of justice and an abuse of process. Mr Kisslingcontends his first trial on 24–25 May 2018 was unfair for a range of reasons. Hemaintained his innocence right through to his second trial during which he "foolishly"accepted improper legal advice offered by his second defence lawyer. As aconsequence, he pleaded guilty to an offence he did not commit and did not understandthe relevance of a document he initialled. Mr Kissling says these trial improprietiesare before the Court of Appeal.Discussion[6] On the morning of the hearing I requested a copy of the warrant pursuant towhich Mr Kissling is detained. Mr Kissling asked during the brief hearing whether Ithought his application had merit. I appreciated the courteous manner in whichMr Kissling received the no doubt, disappointing response. The Court will not issuea writ of habeas corpus where the applicant is being detained pursuant to a validwarrant issued by a court of competent jurisdiction.2[7] Mr Kissling is detained under a warrant issued by Judge Crayton on26 November 2019 pursuant to s 168(4) of the Criminal Procedure Act 2011.[8] The production of apparently regular warrants will not always be the completeanswer to a habeas corpus application. But this is not one of the rare cases in which2 Misiuk v Chief Executive of the Department of Corrections HC Auckland CIV 2011-404-1346,14 March 2011.the habeas corpus procedures permit the Court to inquire into an apparently regularwarrant.3 Nor does Mr Kissling challenge the validity of the warrant on administrativelaw grounds or otherwise.[9] The proper course is for Mr Kissling to prosecute his appeal against conviction.He understands the hearing is to proceed on 18 March 2020. I confirmed toMr Kissling that he will be able to raise in the context of his appeal, his many concernsabout the fairness of his trial.[10] Mr Kissling seeks to be released on an interim basis, citing in support s 11 ofthe Habeas Corpus Act 2001. I brought to Mr Kissling's attention subsection (2)which provides that the Court "must not make an order" under that provision if it is ofthe opinion bail would not be granted.4 In my view, as at the date of this hearing, bailwould not be granted. Bail has been refused. I do not understand that refusal to havebeen appealed. Mr Kissling is due for sentence in a few days' time. There is nomaterial before the Court constituting a basis for granting bail, particularly this closeto sentence.5Result[11] For the foregoing reasons the application for habeas corpus is dismissed._____________________________Karen Clark JSolicitors:Crown Law Office, Wellington for Respondent3 Misiuk v Superintendent of Penal Institution [2010] NZCA 480 at [30]–[31].4 Habeas Corpus Act 2001, s 11(2).5 Bail Act 2000, s 13(3)(b).