UNDERHILL v THE COMMISSIONER OF THE NEW ZEALAND POLICE [2023] NZHC 3247

UNDERHILL v THE COMMISSIONER OF THE NEW ZEALAND POLICE [2023] NZHC 3247 [16November 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2023-412-000118[2023] NZHC 3247IN THE MATTER of an application for a Writ of HabeasCorpusPlaintiffBETWEEN KANE JOSEPH UNDERHILLApplicantAND THE COMMISSIONER OF THE NEWZEALAND POLICERespondentHearing: On the papersJudgment: 16 November 2023JUDGMENT OF EATON JThis judgment was delivered by me on .. at pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] By application filed at 3.02 pm on 14 November 2023 Kane Joseph Underhillapplies for a writ of habeas corpus.[2] The application records:This document notifies you that,-1] The Applicant, Kane Joseph Underhill, will on the date to bedetermined in November 2023, apply to the Court for an order for a Writ ofHabeas Corpus and this application will be filed by our Te WakaminengaAdministration, 2023.2] The grounds on which the order is sought is as follows;I/We, Kane Joseph Underhill believe that I was being detainedunlawfully by the Dunedin Central Police on the 13th and 14th of November2023. On Monday 13 November a neighbour may have rung the DunedinPolice about a woman yelling or screaming. The Police came into the house,I had been assaulted by the woman then the Police ordered me to leave forthree days. I pay the rent and I felt the Police officers were racist towards meand this whole thing turned into a fiasco on the Six o'clock News in the centreof George Street, Dunedin City surrounded by Police. This is blatant racismof white supremist in Dunedin against me and the detention is unlawfully andracially motivated by giggling cowardly police officers.3] The principle of law on which we the Applicant rely is as follows;The "Great Writ" of habeas corpus is a fundamental right in the Constitutionalarrangements of New Zealand law, that is supposed to protect me, - KaneJoseph Underhill ko Ngati Rangi me Te Popoto ki Hokianga against unlawfuland indefinite imprisonment. Translated from Latin it means "show me thebody." Habeas corpus has historically been an important instrument tosafeguard individual freedom against arbitrary executive power.[3] The application suggests Mr Underhill was detained by the police on 13 and14 November 2023. It does not speak to his current status. It does not refer to whetheras a result of the incident he described he is facing criminal charges and, if so, whatcharges.[4] The application was referred to me as duty Judge. I asked the registrar toinquire of the person recorded as having filed the application1, and of Crown Law asto Mr Underhill's current status and, if he is facing charges, of any warrant relevant tohis custodial status.1 Waynne Underhill, the applicant's father[5] Mr Smith, on behalf of the respondent has filed a memorandum this morningrecording that Mr Underhill was served with a Police Safety Order at about 8.30 amon 13 November and then arrested at 12.29 pm for breaching that order. He was incustody overnight. He appeared in the Dunedin District Court on 14 November andwas then served with a further Police Safety order. Following service of that order,Mr Smith confirms Mr Underhill was released from Police custody. Mr Underhill'sfather has confirmed by email that his son is no longer in custody having been releasedat approximately 2 pm on 14 November.[6] The purpose of a writ of habeas corpus is to challenge the legality of a person'sdetention.2 It is the fact of detention that triggers such an application. A writ must befounded on an unlawful detention, considered as at the date of the hearing of theapplication. "Detention" is defined in s 3 of the Act as including "every form ofrestraint of liberty of the person". Mr Underhill does not allege and is not in fact,presently detained.[7] An application for a writ of habeas corpus is not the appropriate procedurewhen the applicant is not detained. There being no detention, the application isdismissed....................................................Eaton JSolicitors:RPB Law, DunedinCopy to:K J Underhill2 Habeas Corpus Act 2001, s 6.