Clark v Police

[2024] NZHC 2078

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-351

[2024] NZHC 2078

BETWEEN

JESSIE CLARK

Applicant

AND

NEW ZEALAND POLICE

First Respondent

AND

ATTORNEY-GENERAL

Second Respondent

Hearing:

29 July 2024

Appearances:

Applicant in person

B Hawes for Respondents

Judgment:

29 July 2024

ORAL JUDGMENT OF DUNNINGHAM J

[1]                 This is an application for a writ of habeas corpus. Such an application allows a person to challenge the lawfulness of their detention and seek their immediate release.1

[2]                 In this case, Mr Clark claims he is unlawfully detained because he is subject to electronically monitored bail (EM bail), following conviction on a charge of breaching a protection order as determined by Judge Elkin in a decision dated 9 July 2024.2

[3]                 I understand from the submissions filed for the respondents that Mr Clark also faces a number of other charges, including other breaches of a protection order,

1      Habeas Corpus Act 2001, ss 6 and 14.

2      New Zealand Police v Clark [2024] NZDC 15857.

CLARK v NEW ZEALAND POLICE [2024] NZHC 2078 [29 July 2024]

unlawful possession of a firearm restrictive or explosive (x 3), and possession of an offensive weapon (x 4).

[4]                 Mr Clark claims the conviction on the breach of the protection order was obtained as a result of a miscarriage of justice because he says he was not served with the relevant protection order. In the circumstances, he should not have been convicted.3

[5]                 He then takes issue with the conduct of a subsequent bail variation hearing on 24 July 2024, where he sought to have all his bail conditions removed on the grounds the conviction was a miscarriage of justice and he should not be subject to bail at all, as it was preventing him from travelling to see his daughter and attend important family events.

[6]                 Prior  to  the  hearing  on   24   July   2024,   Mr   Clark   sought   to   have  Ms Tanya Dunstan appear by audio visual link as his McKenzie friend, but that request was refused. Mr Clark takes issue with both this decision and the way the subsequent hearing was conducted, saying he was “verbally abused” and “obstructed” from pleading his case by the Judge.

[7]                 However, as Mr Hawes has noted in his submission, most of these issues are not relevant to an application for a writ of habeas corpus. The only issues arising which I have to determine are:

(a)first, whether Mr Clark was detained for the purpose of the Habeas Corpus Act 2001 (the Act); and

(b)if he is, whether his detention is lawful.

[8]                 In terms of the first issue, Mr Hawes points out that Mr Clark is not detained within a prison or a similar facility. He is subject to EM bail, pending sentence and this is not typically regarded as “close custody”. He points out that this issue was

3      For completeness, I note this issue was squarely addressed by Judge Elkin in her written decision at [9]–[10] and [26] where she concluded that, at the least, the temporary protection order was served on Mr Clark and this was sufficient to satisfy that element of the offence.

considered in Drever v Auckland South Corrections Facility, where the Court of Appeal considered that “close custody” was required before a writ of habeas corpus could be detained. In that case, the Court did not consider that a person who was subject to parole conditions was detained saying:4

In the present case, Mr Drever has been released from prison, but on terms limiting what he may do. However, even the condition with which he takes particular issue is ameliorated by the fact that he may seek permission from a probation officer to be away from the residential address during the specified hours. In our view, nothing in the special conditions of  parole imposed on Mr Drever reach the threshold required to invoke the important constitutional protection of the writ of habeas corpus.

[footnotes omitted]

[9]                 The respondents submit that the EM bail conditions that Mr Clark is subject to, do not amount to “close custody”. Mr Clark enjoys the majority of freedoms that any other person has with the exception of specific limits which are designed to limit the risk of offending.

[10]              Mr Clark, however, says he is detained and refers to the definition of detention in the Act which includes “every form of restraint of liberty of the person”.5 Mr Clark says that his conditions of EM bail are clearly a significant restraint on his liberty.

[11]              I note that no case appears to have decided this issue and I am satisfied I do not need to resolve it because even if the conditions of EM bail constitute a detention for the purpose of the Act, it is clear that Mr Clark’s detention would be lawful. The District Court remanded Mr Clark on EM bail pending sentence on the breach of protection order. However, this was a continuation of EM bail which had applied on the various charges he was facing. It is not clear to me therefore that the decision to impose EM bail relied on his conviction for the breach of the protection order which is the judgment he takes issue with.

[12]              Furthermore, the Act specifically provides that where a Court of competent jurisdiction has made a ruling as to bail, the Court is precluded from calling that ruling into question under s 14(2)(b).

4      Drever v Auckland South Corrections Facility [2019] NZCA 346 at [30].

5      Habeas Corpus Act 2001, s 3.

[13]              I am satisfied here that the District Court remanded Mr Clark on bail following the issue of Judge Elkin’s decision, and this was a decision as to bail by a Court of competent jurisdiction.

[14]              If, as Mr Clark does, he takes issue with both the conviction and the bail variation decision on 24 July, he has rights of appeal should he choose to exercise them.

[15]              This then leads to a further reason for declining the application, as pursuant to s 14(1A)(b) of the Act, an application for a writ of habeas corpus may be refused if it is not the appropriate procedure for considering the allegations made by the applicant. Here, the underlying challenge is to the merits of the conviction, and to the conduct of the subsequent bail variation hearing. It is clear that a fully argued appeal whether of the 9 July decision or the 24 July decision, or both, is the most appropriate procedure for determining the issues which Mr Clark raises in this application.

[16]Accordingly, the application for a writ of habeas corpus is declined.

Solicitors:
Crown Solicitor, Christchurch

Copy to: Applicant