KISSLING v CROWN PROSECUTIONS PALMERSTON NORTH DISTRICT COURT REGISTRY [2020] NZHC 150

KISSLING v CROWN PROSECUTIONS PALMERSTON NORTH DISTRICT COURT REGISTRY [2020]NZHC 150 [13 February 2020]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2020-454-9[2020] NZHC 150UNDER the Habeas Corpus Act 2001IN THE MATTER OF an application for a writ of habeas corpusBETWEEN JAMIE RONAKI KISSLINGApplicantAND CROWN PROSECUTIONSPALMERSTON NORTH DISTRICTCOURT REGISTRYRespondentTeleconference: 12 February 2020Appearances: J R Kissling in personD Jones for the RespondentJudgment: 13 February 2020JUDGMENT OF COOKE J[1] Mr Kissling is currently remanded in custody. By undated application receivedby the Court on or about 11 February 2019 he has applied for habeas corpus under theHabeas Corpus Act 2001. The application was referred to me in my capacity as DutyJudge. Given the priority to be accorded such applications, by minute dated11 February 2020 I asked that a hearing by telephone take place at a time convenientto Mr Kissling and counsel representing the Crown, if possible on 12 February 2020.A hearing by telephone was convened at 2.15 pm yesterday.[2] The basis for the habeas corpus application is set out in Mr Kissling's writ. Inaddition prior to the conference Mr Jones was able to file brief submissions. Whenthe telephone conference was convened Mr Kissling reported he had not receivedthose submissions, but as they were only one and a half pages long I was able tosummarise the essential pointed made in them.The detention[3] Mr Kissling currently awaiting sentencing for certain offending, which iscurrently scheduled to take place on 2 March 2020. On 23 December 2019 the DistrictCourt remanded him in custody. Mr Kissling explained that his bail had earlier beenrevoked in August, but I accept Mr Jones' point that his most recent detention arisesas a consequence of the 23 December 2019 decision. In those circumstances I acceptMr Jones' submission that an application for habeas corpus is not the correct procedurefor determining challenges to bail. Decisions in relation to bail arise under the BailAct 2000 and must be dealt with in accordance with the procedures contained in thatAct.[4] Section 14 (2) (b) of the Habeas Corpus Act 2001 provides that:(2) A Judge dealing with an application must enquire into thematters of fact and law claimed to justify the detention and is notconfined in that enquiry to the correction of jurisdictional errors;but this subsection does not entitle a Judge to call into question—(b) a ruling as to bail by a court of competent jurisdiction.[5] In Leapepe v Chief Executive of the Department of Corrections the Court ofAppeal said:1[29] In Taylor v Superintendent, Waikato Bay of Plenty RegionalPrison, this Court ruled that the effect of s 14(2)(b) was to prohibitexamination of bail decisions, in the context of an application toissue a writ of habeas corpus. Ms Magnussen seeks to distinguishTaylor on the grounds that it dealt squarely with a bail decision,whereas her application was directed to the decision to recall, madeindependently of the earlier bail decision.[30] In our view, s 14(2)(b) cannot be construed so narrowly. Thesubsection deals with "rulings" as well as decisions. The point ofs 14(2)(b) is to ensure that bail decisions are dealt with under thestatutory regime set out in the Bail Act 2000. Parliament has1 Leapepe v Chief Executive of the Department of Corrections [2012] NZCA 296.decided that it is unnecessary and undesirable to superimpose thehabeas corpus jurisdiction over that regime.[6] I put this to Mr Kissling. He said that his whole detention had been invalidatedfrom the outset for various reasons, and it was not just the decision of the Judge inDecember that was in issue. I understand the nature of Mr Kissling's complaints, butthe fact is that he is currently detained as a consequence of the bail decision made on23 December 2019. Therefore it seems to me that Mr Jones' point is unanswerable.[7] Mr Kissling explained he was not currently legally represented, and towardsthe end of the hearing asked for his application to be adjourned so he could take legaladvice, which he currently intends to do on Monday. He referred to a number ofinstruments that gave him the fundamental right to legal advice, including under theNew Zealand Bill of Rights Act 1990. Mr Jones said that whilst the Crown wouldnormally consent to the adjournment, the matter here was straightforward, and he didnot think an adjournment was necessary.[8] On checking with Mr Jones it is apparent that, should Mr Kissling's legaladvice be that he has some proper basis to bring a writ for habeas corpus then a freshapplication could be made. At the moment I see the point made by Mr Jones for theCrown as unanswerable, and conclude that the application should be dismissed.[9] I therefore indicated at the conclusion of the hearing that I would decline thewrit of habeas corpus and issue the reasons in writing. These are my reasons.[10] I record that Mr Kissling asked for a transcript of the hearing to be provided tohim. I explained that that could not occur because telephone conferences were notrecorded for that purpose.Cooke J