Che v Chief Executive of the Department of Corrections

[2017] NZHC 11

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-000435 [2017] NZHC 11

IN THE MATTER	of the Habeas Corpus Act 2001
BETWEEN	FRANK CHE Applicant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

CIV-2017-419-000001

BETWEEN  LEONARD FRANK FONUA Applicant

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	17 January 2017
Appearances:	Applicant in person via AVL Link KH Lawson-Bradshaw for Respondent
Judgment:	17 January 2017

ORAL JUDGMENT OF TOOGOOD J

Solicitors:

Meredith Connell, for Respondent

Fonua v Chief Executive of the Department of Corrections [2017] NZHC 11 [17 January 2017]

[1]      Leonard  Frank  Fonua  applies  under  that  name  seeking  a  writ  of  habeas corpus under the Habeas Corpus Act 2001.   That application was received by the Court this month, although it was contained in a letter addressed to the Court dated

25 December 2016.   It has been given a Court reference number CIV-2017-419-1. Mr Fonua had also applied to the Court on a similar basis under the name of “Frank Che”  by  letter  dated  19  December  2016  which  was  received  by  the  Court  on

22 December 2016 and given a reference number CIV-2016-419-435.

[2]      On 22 December, with commendable and helpful dispatch, counsel for the Chief Executive of the Department of Corrections filed a memorandum in the Court attaching a copy of a warrant to detain the applicant in the name of Leonard Frank Fonua, dated 24 November 2016.   The warrant reveals that Mr Fonua has been remanded  in  custody for  a  sentence  hearing  on  20  January 2017  following  his conviction on a charge of possession of methamphetamine for supply.

[3]      Although that first application was made under the name of “Frank Che”, the applicant  had  been  charged,  convicted  and  remanded  under the name  “Leonard Frank Fonua”, a name which he acknowledged as his when he arrived at the Spring Hill Corrections Facility pursuant to the warrant.  I note that Mr Fonua claimed that he had engaged in the induction process "under duress" and "without prejudice", but he confirmed his date of birth which matches that of the Department’s records.

[4]      The Chief Executive has also provided to the Court Mr Fonua's criminal history which records him as being a United States citizen also, known as Leonard Frank Che Fonua, and there are photographs of Mr Fonua taken in 2015 and on his arrest in New Zealand.   The Chief Executive has also provided the copy of the warrant of detention I have referred to and an earlier one dated 23 November 2016 which was related to a remand in custody during Mr Fonua's trial.

[5]      I have read all of the papers filed by Mr Fonua.  They include submissions addressed  to  the  Court  dated  1  January  2017  and  copies  of  other  documents contained within it, comprising written submissions and letters addressed to the Chief Executive of Corrections and to the manager of Spring Hill Prison.  I do not propose to attempt to summarise the nature of the allegations which Mr Fonua makes

in those letters except to illustrate their irrational and nonsensical nature by reference to some examples.

[6]      Among other things, Mr Fonua says that he is “a living de jure natural man en ventre sa mere” and that to imply that he is actually a public person or entity when he is not, and knowing that he is not, is a crime under the Crimes Act 1961. He says also that he stands “under the Supreme Imperial Common Law of this Whenua (land) of Aotearoa enacted and written in the Short Title of the Principle [sic] Act known as Te Ture Whenua Maori Act, recognised internationally in law since  (2005),  and  protected  by  the  Original  Land  Court,  Harris  Park,  NSW, Australia.”  He says he is not what is legally defined as a person nor does he have what is legally defined as a name, nor is required by law to have one.  He says also that he does not have a registered date of birth and is not required by law to have one.

[7]      That nonsense is reflected in the oral submissions which Mr Fonua made to me when he told me that he was “the beneficiary of a trust of the person” and that, because he is such a beneficiary, the High Court Rules and District Court Rules do not entitle him to be present as a beneficiary.  He reserves all his rights.

[8]      It is plain that these applications are an abuse of the process of the Court. I am satisfied that they do not actually engage the Court's jurisdiction under the Habeas Corpus Act 2001 in that they do not identify any proper   factual or legal basis for the view that Mr Fonua has been unlawfully detained.   In those circumstances, Mr Fonua’s letters do not amount to applications to challenge the legality of his detention as that term is used in s 6 of the Habeas Corpus Act. Parliament  did  not  intend  that  the  Court  must  accord  priority  and  urgency  to disposing of such claims at the expense of the Court's resources and of the proper interests of other persons having legitimate business before the Court.

[9]      Mr Fonua is well aware that he is lawfully detained by virtue of Judge Snell's decision to remand him in custody pending his sentence, following his conviction on a serious criminal charge, and in accordance with the relevant warrant to detain.  He is also aware that, whether he approves of it or not, the courts of New Zealand have

jurisdiction to enforce the criminal law enacted by Parliament.   Incomprehensible statements about being a natural person or not being a natural person or a trustee or a beneficiary and not being susceptible to the laws of this country are properly and summarily rejected by the Courts.1

[10]    Had this matter been put before me at an earlier stage I would have ruled that, because it amounts to an abuse of the process of the Court, it should not have been accepted by the Registrar for filing.  However, since Palmer J, being careful, decided that Mr Fonua ought to be given a hearing, I have done that and examined the merits. There being none, I dismiss the application.

[11]    I direct the Registrars of the High Court that they are to reject any further application by Mr Fonua for a writ of habeas corpus while he is detained pursuant to the warrants I have referred to.

Postscript

[12]     Mr Fonua appeared at this hearing by audio-visual link from Spring Hill Corrections Facility.   I record that, when I began to deliver my oral judgment, he tried to talk over the top of me and refused to remain silent when requested to do so. At my direction, the court taker disconnected the audio-visual link, with the consequence that Mr Fonua did not hear the judgment being delivered.

...................................................

Toogood J

1      See, for example, Wallace v Chief Executive of the Department of Corrections HC Auckland CIV-2011-404-4235, 19 July 2011; Bowden v Chief Executive of the Department of Corrections [2016] NZHC 2504; R v Mitchell CA68/04, 23 August 2004; Brooker v R [2014] NZCA 436; Wallace v R [2011] NZSC 10.