EDWARDS v THE COMMISSIONER OF POLICE [2021] NZHC 1615

EDWARDS v THE COMMISSIONER OF POLICE [2021] NZHC 1615 [1 July 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECIV-2021-443-31[2021] NZHC 1615UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for writ of habeas corpusBETWEEN JOHN ANTHONY EDWARDSApplicantAND THE COMMISSIONER OF POLICERespondentJudgment: 1 July 2021JUDGMENT OF COOKE J[1] Mr Edwards' application dated 30 June 2021 has been referred to me as dutyJudge.[2] Mr Edwards explains that he is 89 years of age and has disabilities which onlyallow him to walk for short distances with the assistance of two sticks. He describesan incident when he was using his motor vehicle which has resulted in the issuing ofa Notice of Prohibition, and that his driver's license was earlier taken from him bypolice. He then says:Inglewood is a most inhospitable place to exist in without a motorcar. Thereare no taxis, unless you are prepared to spend $150 to call one from Waitara.Public bus transport is available, it is true, but only on weekdays, and onlybetween town and town, and not within a town. There is a small New Worldsupermarket some 1.5 km distant, which I can walk (shuffle) to and from inthe course of a day.My status to all intents is that of one who is sentenced to an indefinite term ofhome detention. I note that according to s.3 of the Habeas Corpus Act 2001,(the Act) "detention" includes every form of restraint of liberty of theindividual. I have written to the Taranaki Police Area Commander, InspectorDewar, on six occasions concerning this matter, which has now dragged onfor 5½ months without result. With the onset of winter, I have had enough!Habeas corpus[3] The Habeas Corpus Act 2001 provides that applications under the Act "mustbe given precedence over all other matters before the High Court unless a Judge ofthat Court considers that the circumstances require otherwise".1 Section 9(3) provides:The Registrar must allocate a date for the inter partes hearing of an applicationthat is no later than 3 working days after the date on which the application isfiled.[4] Section 14 also provides:14 Determination of applications(1) If the defendant fails to establish that the detention of the detainedperson is lawful, the High Court must grant as a matter of right a writof habeas corpus ordering the release of the detained person fromdetention.(1A) Despite subsection (1), the High Court may refuse an application forthe issue of the writ, without requiring the defendant to establish thatthe detention of the detained person is lawful, if the court is satisfiedthat—(a) section 15(1) applies; or(b) an application for the issue of a writ of habeas corpus is not theappropriate procedure for considering the allegations made bythe applicant.(2) A Judge dealing with an application must enquire into the matters offact and law claimed to justify the detention and is not confined in thatenquiry to the correction of jurisdictional errors; but this subsectiondoes not entitle a Judge to call into question—(a) a conviction of an offence by a court of competent jurisdiction,the Court Martial of New Zealand established under section 8 ofthe Court Martial Act 2007, or a disciplinary officer acting underPart 5 of the Armed Forces Discipline Act 1971; or(b) a ruling as to bail by a court of competent jurisdiction.(3) Subject to section 13(2), a Judge must determine an application by—(a) refusing the application for the issue of the writ; or1 Habeas Corpus Act 2001, s 9(1).(b) issuing the writ ordering the release from detention of thedetained person.(4) All matters relating to the costs of and incidental to an application arein the discretion of the court and the court may refuse costs to asuccessful party or order a successful party to pay costs to anunsuccessful party.(5) A writ of habeas corpus may be in the form set out in the Schedule.[5] Section 15(1) provides:15 Finality of determinations(1) Subject to the rights of appeal conferred by section 16 of this Act andto sections 68 to 71 of the Senior Courts Act 2016, the determination ofan application is final and no further application can be made by anyperson either to the same or to a different Judge on grounds requiring are-examination by the court of substantially the same questions as thoseconsidered by the court when the earlier application was refused.[6] A question arises as to whether the High Court can dispose of an applicationfor habeas corpus without affording a hearing if the proceedings appear to be an abuseof process. That question was carefully considered by Mander J in Greer v Smith.2He held:[13] The question arises as to whether there are any circumstances in whichno hearing is necessary. In my view, there are two situations where that mayarise. The first is where the narrow exceptions provided by s 14(1A) apply.Thus, where the application is an attempt to relitigate the same, orsubstantially the same questions as were raised in a previous application, thematter will not be heard by combination of ss 14(1A)(a) and 15(1). The others 14(1A) ground is where an application for a writ is not the appropriateprocedure for considering the allegations made by the applicant.[14] A second situation where, arguably, no hearing would be necessary iswhere the application represents an abuse of process warranting invocation ofinherent jurisdiction to strike the application out. It may, however, be thathaving regard to the solemnity and importance of habeas corpus and thestatutory framework that now governs such applications, the statutesupersedes any such jurisdiction. If that is the case, applications that wouldotherwise have constituted an abuse are now dealt with under ss 14(1A) and15(1).[15] This summary of the position is, I believe, supported by the work ofthe Law Commission and the passage of the Habeas Corpus Bill and itsamendment through the House.2 Greer v Smith [2015] NZHC 326, [2017] NZAR 141.[7] Mander J then set out passages from the Law Commission reports, and fromthe Parliamentary debates supporting that view.Application in the present case[8] I have carefully considered Mr Edwards application, but have concluded thatit is not appropriately advanced as an application of habeas corpus and that s 14(1A)(b)applies. His essential complaint relates to removal of his driver's license and theissuing of the associated Notice of Prohibition. I doubt that prohibiting someone fromdriving a motor vehicle can be regarded as a detention, even in the personalcircumstances described by Mr Edwards. But in any event, to the extent that it can be,the appropriate avenue to challenge the legitimacy of those decisions is not anapplication to the High Court for a writ of habeas corpus.[9] It may well be that Mr Edwards is in the need of community support, and thatsome attention should be given by police to alerting relevant community supportorganisations of Mr Edwards' situation.[10] I direct the Registrar to provide a copy of this decision to Taranaki Policethrough the New Plymouth Crown solicitor.[11] The writ of habeas corpus is dismissed.Cooke J