Cooke v Chief Executive of the Department of Corrections

[2020] NZHC 244

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-220

[2020] NZHC 244

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

JOSHUA-JAMES LACELLES COOKE

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	21 February 2020
Appearances:	Applicant on own behalf L Lim for the Respondent
Judgment:	21 February 2020

ORAL JUDGMENT OF GORDON J

Solicitors:           Crown Solicitor, Auckland Copy To: The Applicant

COOKE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 244 [21 February 2020]

[1]                  Joshua-James Cooke has filed an application for a writ of habeas corpus dated 17 February 2020 but filed on 19 February 2020. The application was referred to me in my capacity as Duty Judge. I directed it should be served on the Crown. I also set the application down for hearing today, given the requirements of s 9(3) of the Habeas Corpus Act 2001 (the Act).

[2]Mr Cooke’s application states that:

I wish to challenge my detention on my current charges as I believe I have been unlawfully detained.

I am currently being detained at Mt Eden Correctional Facility on a false breach of bail and a number of offences that are a result of a clearly illicit search.

[3]                  Mr Cooke appears today by audio visual link from Mt Eden Correctional Facility in support of his application.

[4]                  Ms Lim appears on behalf of the respondent, the Chief Executive of the Department of Correction, who opposes the application.

[5]                  A defendant (or respondent) in a habeas corpus application is required to establish that the detention of the detained person is lawful.1 Despite this requirement, the Court may refuse an application for the issue of the writ without requiring a defendant to establish that the detention of the detained person is lawful, if the Court is satisfied that an application for the writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.2

[6]                  One of Mr Cooke’s challenges appears to be that a number of the offences in respect of which he has been held in custody arise from what he describes as a clearly illicit search. If he does wish to challenge the admissibility of evidence obtained in a search or the correctness of a Court decision, then the habeas corpus procedure is not the appropriate procedure for considering his allegations. His remedies lie in the criminal proceedings.

1      Habeas Corpus Act 2001, s 14(1).

2      Habeas Corpus Act 2001, s 14(1A)(b).

[7]                  Accordingly, in relation to that part of Mr Cooke’s application, I do not consider the Chief Executive is required to establish that Mr Cooke’s detention is lawful.

[8]                  The second aspect of Mr Cooke’s application relates to his allegation that he is being detained on a false breach of bail. In other words, this appears to be a challenge to a decision to decline him bail. The Act provides that an inquiry under s 14 does not entitle “a Judge to call into question a ruling as to bail by a Court of competent jurisdiction”. In other words, if Mr Cooke has been declined bail, his remedies lie in pursuing a bail appeal or making a fresh bail application. This Court therefore does not have jurisdiction to inquire into the second aspect of Mr Cooke’s application.

[9]                  Mr Cooke addressed the Court orally in support of his application. In his oral submissions he complained about the lack of facilities to enable him to prepare for his court proceedings (his Auckland counsel having resigned) and also what he perceives as an inadequate response to his medical needs. Neither supports an application for a writ of habeas corpus.

[10]              In any event I am satisfied that Mr Cooke is detained lawfully pursuant to warrants of commitment which are annexed to Ms Lim’s submissions. Mr Cooke’s detention is presently authorised by:

(a)A  warrant  to  detain  Mr  Cooke  signed  by  Judge  Orchard  dated   5 February 2020. The warrant authorises Mr Cooke’s detention until 30 March 2020 in respect of three charges, for which convictions are recorded;

(b)A second warrant to detain Mr Cooke signed by Judge Orchard also dated 5 February 2020. The warrant authorises Mr Cooke’s detention until 10 March 2020 in respect of nine charges; and

(c)A third warrant to detain Mr Cooke signed by Judge Collins dated    19 February 2020. The warrant authorises Mr Cooke’s detention until

28 February 2020 in respect of 11 charges (three of which are the same charges as in the first warrant referred to above).

[11]These warrants establish the factual and legal basis for Mr Cooke’s detention.

[12]The application for habeas corpus is refused.

Gordon J