Bowden v Chief Executive of the Department of Corrections
[2016] NZHC 2504
•19 October 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2016-419-352 [2016] NZHC 2504
BETWEEN KYLE BOWDEN
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent
Hearing: 19 October 2016 Appearances:
Applicant in person
L Dunn for the Respondent
D OʼNeill, amicus to assistJudgment:
19 October 2016
ORALJUDGMENT OF MUIR J (HABEAS CORPUS)
Counsel/Solicitors:
L Dunn, Almao Douch, Hamilton
D O’Neill, Barrister, Hamilton
Copy to the Applicant
BOWDEN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 2504 [19
October 2016]
[1] By an application dated 9 October 2016, received by the District Court on 17
October 2016 and forwarded to the High Court on 19 October 2016 application is made for a Writ of Habeas Corpus. The application is intituled in the matter of Kyle Bowden v The Queen but the application itself is said to be made by Mr Kyle Toni Ngarama.
[2] According to the provisions of the Habeas Corpus Act 2001 I have arranged for Mr Bowden/Ngarama to be produced before the Court and I have heard his application from 2.00 pm today.
[3] The application has procedural problems to the extent it names The Queen as the respondent when the appropriate party is the Chief Executive of the Department of Corrections. Likewise the application should have been brought by way of an originating application under the High Court Rules. However, counsel for the Chief Executive takes no issue with either matter and during the course of argument I made orders which I now record amending the application according.
[4] In essence the applicant alleges that his legal name is Kyle Toni Ngarama and that he has been unlawfully imprisoned because “my persons legal name is not Kyle Bowden” and “at no time did I agree or consent to the name Kyle Bowden”. He therefore alleges that he is falsely imprisoned invoking the principle that “equality before the law is paramount and mandatory”.
[5] On all such applications it is for the Crown, or in this case the Chief Executive to prove that it has the authority of law to detain the applicant. If the Crown fails to establish such authority then the Writ must follow. A Writ can only issue if at the time of its issue the detention is unlawful.
[6] The background to the application is as follows:
(a) Mr Bowden/Ngarama faces a number of charges in the District Court at Hamilton laid under the Crimes Act 1961, the Arms Act 1983 and the Misuse of Drugs Act 1975. These include unlawful possession of a firearm and ammunition, injuring with intent to injure and
kidnapping. I am advised that he was arrested on 12 August 2016 and he made his first appearance in the District Court at Hamilton on 13
August 2016 when he was remanded in custody.
(b)On 15 August 2016 a bail application was heard before Community Magistrate Mascelle. That application was declined. The matter was set down for a review hearing on 20 August 2016.
(c) On 31 August 2016 an EM bail application was heard before Judge
Saunders in the District Court. That application was refused.
(d)An appeal against the refusal to grant EM bail was heard in the Hamilton High Court before Davison J on 29 September 2016. His Honour reserved his decision. In a judgment delivered on 3 October
2016 he dismissed the appeal.
[7] The applicant has previously been represented by counsel but appeared today on his own behalf. Against that background I appointed Mr O’Neill as amicus. I am grateful for his agreement to act on short notice and for the submissions that he has filed.
[8] In submissions filed on behalf of the Chief Executive Ms Dunn annexes warrants to detain the defendant signed by Community Magistrate Wilson on 13
August 2016 and Community Magistrate Mascelle on 15 August 2016.
[9] When the matter was called before me this afternoon it was apparent Mr Bowden had not received a copy of the Chief Executive’s submissions or those of Mr O’Neill. I therefore directed that he be provided with a copy of them but he declined to read them. He has, however, addressed me extensively on the grounds for his application.
[10] As indicated the principal ground is that, he says his correct name is Kyle
Toni Ngarama and that he is not Kyle Tony Bowden, the person identified in the
warrants to detain on the relevant charging documents. He therefore says his detention is unlawful.1
[11] He also, and somewhat inconsistently with his endeavours to invoke the Habeas Corpus Act 2001, makes a broad attack on the jurisdiction of this Court on what might be called Maori Sovereignty grounds. He identifies in what is styled an affidavit but is in fact a submission a number of relevant pieces of legislation, including the New Zealand Constitution Act 1986, the Statute of Westminster Adoption Act 1947, the New Zealand Constitution of the Dominion Act 1852, the Conservation Act 1987, the Imperial Laws Application Act 1988, the Constitution Regulations Act 1995 and other legislation.
[12] According to the criminal and traffic history provided to this Court by the Chief Executive, Kyle Tony Bowden is known by a series of other names including Kyle Christopher Ngarama, Kyle Toni Ngarama and Kyle Tony Ngarama.
[13] At the time of his arrest Ms Dunn says that the defendant made relevant admissions in relation to the charges and the person who made such admissions was thereafter charged and held in custody. She produces a copy of the police record of the person identified as Kyle Tony Bowden which includes a photograph depicting, apart from facial hair on the photograph, the person who appears in court today as Mr Kyle Toni Ngarama.
[14] Significantly, having been charged under the name of Kyle Tony Bowden Mr Bowden made an application for bail under that name and further when that application was declined prosecuted an appeal under the same name to the High Court. I consider that to have been an acknowledgement that he is the person charged.
[15] Significantly also I asked him during the course of argument whether “on or about 13 August” (the actual date was 12 August) he was arrested for a number of
crimes relating, among other things, to injury with intent and kidnapping. He
1 No birth certificate was before the Court.
declined to answer that question on the basis that there were “too many uncertainties” to do so.
[16] I am left in no doubt that the person who appears before me today as Kyle Toni Ngarama is one and the same person as Mr Kyle Tony Bowden as appears in the relevant charge documents and the warrants to detain.
[17] In terms of s 16 of the Criminal Procedure Act 2011 a charging document must include, among other things:
(2) (a) particulars of the defendant.
Ms Dunn submits that the charging documents accord with the requirements of s 16 of the Act by recording the relevant particulars of the defendant. She notes that the applicant’s date of birth, according to the charging document, is 16 August 1975. I asked the applicant during the course of argument what was his date of birthday and he confirmed it to be the same date.
[18] Ms Dunn further submits that if there is any relevant error in a charging document that can be corrected under s 133 of the CPA either on the motion of the Crown or as the case may be on the Court’s own motion. Helpfully Mr O’Neill also draws my attention to the provisions of s 379 of the CPA 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 am not convinced that there is any defect in the charging document as Mr Bowden clearly operates under a number of aliases. However, to the extent that there may be any such defect or omission it would not invalidate the procedures taken unless there had been a miscarriage of justice. Since, as I have already indicated, I am left in no doubt that the person arrested on 12 August 2016 and subsequently charged with the crimes I have identified is the person who is currently detained in custody and who has appeared before me today that test cannot be satisfied.
[19] The Writ is, as its name suggests, directed to the “corpus”, that is the
individual or person concerned. It is not an order appropriately directed to possible
technical issues with a charging document of the type that are alleged in this case. As Mr O’Neill fairly puts the position, if the applicant for the Writ is not the person who was arrested for the offences then the Writ should issue. However, as I have indicated, that is not the case.
[20] In relation to Mr Bowden’s submission that this Court does not have jurisdiction, I have already recorded the extent to which this is inconsistent with his invocation of jurisdiction under the Habeas Corpus Act. He has also previously invoked this Court’s jurisdiction on appeal from the District Court’s refusal to grant bail.
[21] I simply add that the Court of Appeal has consistently held that New Zealand Courts have jurisdiction over all people in New Zealand. In R v Mitchell,2 for example, the Court of Appeal observed:
This Court has made it plain on a number of occasions now that arguments that are based upon an assertion that the Parliament of New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand cannot succeed before it. Our courts are bound to accept the validity of Acts of Parliament…[a litigant] is not entitled to put himself outside the law of New Zealand.
[22] In Brooker v R, Andrews J said:3
The courts have consistently held that challenges to the sovereignty of Parliament, and validity of Acts of Parliament (whether in the context of Maori sovereignty arguments, or any other challenge to the sovereignty of the New Zealand Parliament) cannot succeed.
[23] Likewise the Supreme Court has recently declined leave to appeal against a ruling of the trial judge rejecting a protest to jurisdiction advanced on Maori sovereignty grounds.4 The Court describes such arguments as “plainly unsound
legally”.5
2 R v Mitchell CA68/04, 23 August 2004.
3 Brooker v R [2014] NZCA 436.
4 Wallace v R [2011] NZSC 10.
5 Wallace v R above n 4 at [2].
[24] Accordingly I refuse the applicant’s application for Writ of Habeas Corpus.
No order as to costs is made.
Muir J