Birch v Chief Executive of the Department of Corrections
[2020] NZHC 1997
•7 August 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-441-55
[2020] NZHC 1997
UNDER the Habeas Corpus Act 2001 IN THE MATTER
of an application for a writ of habeas corpus ad subjiciendum
BETWEEN
ANDREW JAMES BIRCH
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Teleconference: 7 August 2020 Appearances:
A J Birch in person
J Watson for the Respondent
Judgment:
7 August 2020
JUDGMENT OF COOKE J
[1]The applicant has made an application for habeas corpus, dated 31 July 2020.
[2] The application was referred to me in my capacity as Duty Judge, and in accordance with the Habeas Corpus Act 2001 I scheduled a hearing by telephone today at 2.15 pm. The respondent has filed a notice of opposition dated 7 August 2020 and also brief submissions. Those had not been sent by Mr Birch, but I was able to explain the essence of them to him at the telephone conference.
[3] Mr Birch challenges his detention by questioning original legitimacy of this arrest, including because the DNA evidence alleged to be held by the Crown cannot establish any offending, as Mr Birch says the police never had his DNA in the first
BIRCH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 1997 [7 August 2020]
place. Other related points are made in his written application, and were referred to by him at the telephone conference.
[4] Mr Watson, for the respondent, points out that matters that can be raised on habeas corpus applications have limits. He refers to Bennett v Superintendent of Rimutaka Prison where the Court of Appeal said:1
[70] … In practice, once a prison superintendent or other official named as the respondent produces a committal warrant or other authorisation … it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the particular circumstances…
[5] The documents produced by the respondent here include a series of warrants for Mr Birch’s detention. On discussing those with Mr Birch, he makes the point that he did not attend hearings at the District Court on each of the occasions where warrants were signed. But he did at least accept that he had been before the Court on 26 November 2019. Amongst the warrants produced to me is a warrant signed by Judge Sygrove of that date remanding Mr Birch in custody. The subsequent warrants produced demonstrate continued remand in custody at call-overs. It may be that Mr Birch was not brought before the Court on those occasions — but I am satisfied there is a warrant for his detention.
[6] In addition Mr Watson produced a copy of an order that Corrections produce Mr Birch to the Napier District Court on 31 August 2020 at 9.30 am. Mr Watson was not sure what that was for, and I understood Mr Birch to say that it might be for trial. In any event I am satisfied there is a lawful warrant remanding him in custody, and an order that he be produced at the District Court on that day.
[7] I explained to Mr Birch that the matters he had raised were not matters that could result in the High Court releasing him on a writ of habeas corpus. He asked me whether the matters he had raised could be raised before the District Court. I indicated that he could raise those matters in any application for bail, but that any consideration of bail involved wider considerations. What he said about the prosecution case against him would only be one piece in a jigsaw. Of course, if the hearing on 31 August 2020
1 Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616 (CA).
is for his trial, the question of his guilt or innocence would be directly in issue. I recommended to Mr Birch that he have counsel whatever the purpose of that hearing is.
[8] Nevertheless for these reasons I am satisfied that the writ of habeas corpus should be dismissed.
Cooke J
Solicitors:
Crown Law Office, Wellington for the Respondent cc: Mr Birch
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