CLARKE v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2527

CLARKE v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2527[8 September 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2023-463-58[2023] NZHC 2527UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of habeas corpusBETWEEN NEIL MARTIN CLARKEApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: On the papersCounsel: Applicant in personC A Bourke for RespondentJudgment: 8 September 2023JUDGMENT OF LANG J[on third application for writ of habeas corpus]This judgment was delivered by Justice LangOn 8 September 2023 at 2.30 pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:Pollett Legal, TaurangaCopy to:Mr N M Clarke[1] Mr Clarke is awaiting trial on charges laid in the District Court. He has nowsought to file a third application seeking an order releasing him from custody underthe Habeas Corpus Act 2001 (the Act). He claims that he is unlawfully detained bythe Department of Corrections.[2] The Registrar has referred the application to me seeking a direction as towhether it should be accepted for filing.Procedural history[3] Mr Clarke first filed an application under the Act on 3 August 2023. Tahana Jdelivered an oral decision on that date finding that Mr Clarke's detention was lawful.1Mr Clarke has appealed against this decision and I understand the Court of Appeal willhear his appeal on 26 September 2023.[4] Mr Clarke filed a second application under the Act on 10 August 2023. BrewerJ dismissed this application without hearing from Mr Clarke on 11 August 2023.2 Hefound that the application did not contain any further or different substantive groundsthan the first. Brewer J also noted that the procedure under the Act cannot be usedabusively or for successive applications to be brought on the same factual basis.3[5] Mr Clarke subsequently appealed to this Court against a decision by theDistrict Court refusing to grant him bail. Brewer J dismissed this appeal on 18 August2023.4The present application[6] Mr Clarke contends he has now obtained new material proving that theprotection order that has given rise to two of the charges against him were obtainedillegally. He gives no details of this material.1 Clarke v The Chief Executive of the Department of Corrections [2023] NZHC 2052.2 Clarke v The Chief Executive of the Department of Corrections [2023] NZHC 2153.3 At [3].4 Clarke v New Zealand Police [2023] NZHC 2250.[7] However, I am satisfied that Mr Clarke's detention remains lawful. When MrClarke last appeared in the District Court on 23 August 2023 he was further remandedin custody until 10 October 2023. A copy of the warrants remanding him in custodyto that date are attached to this judgment. It follows that his application for a writ ofhabeas corpus is an abuse of the Court's process.[8] I dismiss the present application under s 15(1) of the Act.____________________________Lang J