MARTIN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 2500

MARTIN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 2500 [19 October 2016]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2016-419-349[2016] NZHC 2500BETWEEN ROBIN LESLIE MARTINApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 19 October 2016Appearances: Applicant in personL Dunn for the RespondentD OʼNeill, amicus to assistJudgment: 19 October 2016ORAL JUDGMENT OF MUIR(Habeas Corpus)Counsel/Solicitors:L Dunn, Almao Douch, HamiltonD O'Neill, Barrister, HamiltonCopy to the Applicant[1] By application dated 9 October 2016, received by the High Court on 17 October 2016, the applicant seeks a Writ of Habeas Corpus. The background to that application is as follows:(a) Mr Martin faces four charges of burglary laid pursuant to s 231(1)(a) of the Crimes Act 1961 relating to alleged offences on 11 January 2016, 24 May 2016, 25 May 2016 and between 16 and 18 August 2016. The Crown says he was arrested on 19 August 2016 and he made his first appearance before a Community Magistrate on 20 August 2016. He was remanded in custody at that time.(b) On 22 August he appeared before District Court Judge Cocurullo in the Hamilton District Court before whom he made a bail application. That application was refused and he was further remanded in custody.(c) The next mention was in the Waihi District Court on 19 September 2016 when the applicant appeared before Judge Ingram. At that time he made a further application for bail which was likewise refused and he was remanded to 31 October for a Judge alone trial in relation to all charges. That trial date has now been set for 14 November 2016.(d) The Crown has provided to me copies of warrants of detention of the applicant dated 20 August 2016, signed by N Mascelle, Community Magistrate, dated 22 August 2016, signed by Cocurullo DCJ and dated 19 September 2016, signed by Ingram DCJ.Procedure[2] Mr Martin's application is in handwritten form, intituled Habeas Corpus. He identifies the relevant parties as himself and The Queen. Her Majesty is not the appropriate defendant in a habeas corpus application. Rather that is the Chief Executive of the Department of Corrections. The Department takes no issue with this procedural point and I amend Mr Martin's application accordingly.[3] Neither is the application in the proper legal form, which is by way of an originating application. Again the Chief Executive takes no issue with that omission and I treat the application as an originating application pursuant to the High Court Rules.[4] Mr Martin's application was filed on the morning of 17 October 2016.Consistent with the provisions of the Habeas Corpus Act 2001 I set it down for hearing before me at 10.00 am. I directed that a copy of the application be served onthe Crown Solicitor at Hamilton and I appointed Mr O'Neill as amicus to assist the Court. I record my appreciation to Mr O'Neill for having accepted suchappointment on short notice, for the helpful submissions he has provided and for his attendance today.[5] When the matter was called before me this morning it was apparent MrMartin had not yet received a copy of the Chief Executive's submissions inopposition to the application, albeit that they had been sent to Springhill Correctional Facility. I therefore stood the matter down to give Mr Martin an opposition toconsider those submissions and discuss matters with Mr O'Neill as required. I thenheard from Mr Martin in support of his application, from Ms Dunn for the ChiefExecutive and from Mr O'Neill. I heard further from Mr Martin in reply.[6] The essence of Mr Martin's application is that, although according to his birth certificate and other documents, his full name is Robin Dion Leslie Martin, the name under which he has been charged is Robin Leslie Martin. He says that the omissionof one of his middle names "Dion" provides a proper basis for his allegation that hehas been unlawfully imprisoned.[7] In support of that application he has filed, this morning, a further documentintituled "Notice of Understanding and Intent and Claim of Right" in which he claims that he is a "natural man created by God almighty". He summarises thatsubmission this morning in terms that he is not a person as such although he "has aperson".[8] In opposition to the application Ms Dunn cites s 16 of the Criminal Procedure Act 2011 which states that a charging document must include, among other things:(2) (a) particulars of the defendant.She submits that the charging documents accord with the requirements of s 16 of the Act by recording particulars of Mr Martin. She notes that the applicant's date of birth, according to the charging document, is 18 June 1973 and that this accords with the birth certificate in the name of Robin Dion Leslie Martin filed by the applicantwith his application. She notes that the applicant's criminal and traffic historyrecords that he has two other aliases, namely Robert Lesley Martin and Robin Leslie Martin. It is under the second of those so-called aliases that he has been charged.[9] Ms Dunn further submits that if there is any relevant error in the charging document that this may be corrected under s 133 of the Criminal Procedure Act either on the motion of the police or Crown as the case may be or on the Court's ownmotion. I discussed with Ms Dunn whether she sought an order today amending thecharging document to include Mr Martin's omitted middle name Dion and she doesnot seek an order in those terms at this stage.[10] Nevertheless it is clearly open to the Court to amend the charging document at any time prior to the delivery of a verdict.[11] Helpfully Mr O'Neill also draws to my attention the provisions of s 379 of the Criminal Procedure Act which provides that any procedure is not invalidated for want of form or defect in the charging document unless there has been a miscarriage of justice. I do not go so far as to say there is a defect in the charging document. Mr Martin is apparently known under several aliases including that under which he has been charged. To the extent, however, that there may be a defect by omission of hismiddle name "Dion" it would only invalidate procedures to the extent that there had been a miscarriage of justice.[12] It is not suggested by Mr Martin that the person arrested on or about 19 August 2016 for the alleged crimes I have detailed is any other than the individual who is now present in court. The Writ of Habeas Corpus is, as its name suggests,directed to the "corpus" that is the individual or person concerned. It is not an order appropriately made in relation to possible technical omissions in a charging document of the type alleged in this case.[13] In terms of whether there has been a miscarriage of justice, I am satisfied this does not arise through want of identification of Mr Martin's christened middle name "Dion". There is no reasonable argument that the person who appears before metoday and who is currently held in custody is the person Robin Leslie Martin identified in the relevant charging document. To the extent there is any omission in the charging document it cannot therefore be considered "invalidated".[14] I agree also with the Chief Executive's submission pursuant to s 14(1)(A)(b)of the Habeas Corpus Act 2001 that the appropriate remedy for Mr Martin if he considers that he should not be held in custody pending his trial he is either to appeal the refusal of the grant of bail made by Judge Ingram on 19 September 2016 or to bring a fresh application for bail, if there are any new circumstances justifying it, or (possibly) an application for electronically monitored bail.[15] I dismiss the application. No order as to costs is made.__________________________Muir J