Attard v High Court Auckland

[2017] NZHC 2766

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2679 [2017] NZHC 2766

UNDER	the Habeas Corpus Act 2001
IN THE MATTER OF	an application for a writ of habeas corpus
BETWEEN	LUKE ATTARD Applicant
AND	HIGH COURT AUCKLAND Respondent

Hearing:	On the papers
Judgment:	10 November 2017

JUDGMENT OF DUFFY J

[1]      The applicant, Luke Attard, applies for a writ of Habeas Corpus.

[2]      Section 6 of the Habeas Corpus Act provides:

6.Application for writ of habeas corpus to challenge legality of detention

An application to challenge the legality of a person’s detention may be made by an application for a writ of habeas corpus.

[3]      In Schuchardt v Commissioner of Police HC Hamilton CIV-2011-419-1386,

30 September 2011, the applicant applied for a writ of habeas corpus seeking release from restrictive bail conditions. The application therefore arose in a different context

but in dismissing the application Keane J commented:

ATTARD v HIGH COURT AUCKLAND Habeas Corpus [2017] NZHC 2766 [10 November 2017]

[9]       A challenge to the legality of a person's detention may be made by application for writ of habeas corpus, which is a swift and summary remedy. But for a writ to issue there must be an unlawful detention, a detention without legal justification.  And there must fi rst be a det ent ion  . It is only if there is that a writ may issue unless the restraining entity is able to prove that it is lawful.

[10]      Detention is very widely defined to include “every form of restraint of liberty of the person”. But this typically connotes imprisonment or actual detention in some analogous form, say arising say in an immigration or deportation context, or on account of a person's mental health. It does not naturally connote a grant of bail on terms limiting what a person may do.

(emphasis added)

[4]      In the present case Mr Attard is not presently detained, at most he will be arrested. He makes a pre-emptive application to challenge the lawfulness of the detention that will follow his arrest. Such application is not available to him under the Habeas Corpus Act.  It follows that I have no jurisdiction to deal with his application under the Habeas Corpus Act, nor is there other legal authority available to enable me to consider the application on its merits. Accordingly it is dismissed

Result

[5]      The application is dismissed.

Duffy J