Clarke v Chief Executive of the Department of Corrections

[2023] NZHC 2527

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-58

[2023] NZHC 2527

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

NEIL MARTIN CLARKE

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

On the papers

Counsel:

Applicant in person

C A Bourke for Respondent

Judgment:

8 September 2023

JUDGMENT OF LANG J

[on third application for writ of habeas corpus]

This judgment was delivered by Justice Lang On 8 September 2023 at 2.30 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Pollett Legal, Tauranga

Copy to:
Mr N M Clarke

CLARKE v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2527

[8 September 2023]

[1]        Mr Clarke is awaiting trial on charges laid in the District Court. He has now sought to file a third application seeking an order releasing him from custody under the Habeas Corpus Act 2001 (the Act). He claims that he is unlawfully detained by the Department of Corrections.

[2]        The Registrar has referred the application to me seeking a direction as to whether it should be accepted for filing.

Procedural history

[3]        Mr Clarke first filed an application under the Act on 3 August 2023. Tahana J delivered an oral decision on that date finding that Mr Clarke’s detention was lawful.1 Mr Clarke has appealed against this decision and I understand the Court of Appeal will hear his appeal on 26 September 2023.

[4]        Mr Clarke filed a second application under the Act on 10 August 2023. Brewer J dismissed this application without hearing from Mr Clarke on 11 August 2023.2 He found that the application did not contain any further or different substantive grounds than the first. Brewer J also noted that the procedure under the Act cannot be used abusively or for successive applications to be brought on the same factual basis.3

[5]        Mr Clarke subsequently appealed to this Court against a decision by the District Court refusing to grant him bail. Brewer J dismissed this appeal on 18 August 2023.4

The present application

[6]        Mr Clarke contends he has now obtained new material proving that the protection order that has given rise to two of the charges against him were obtained illegally. He gives no details of this material.

1      Clarke v The Chief Executive of the Department of Corrections [2023] NZHC 2052.

2      Clarke v The Chief Executive of the Department of Corrections [2023] NZHC 2153.

3 At [3].

4      Clarke v New Zealand Police [2023] NZHC 2250.

[7]        However, I am satisfied that Mr Clarke’s detention remains lawful. When Mr Clarke last appeared in the District Court on 23 August 2023 he was further remanded in custody until 10 October 2023. A copy of the warrants remanding him in custody to that date are attached to this judgment. It follows that his application for a writ of habeas corpus is an abuse of the Court’s process.

[8]I dismiss the present application under s 15(1) of the Act.

Lang J