Craig v Chief Executive, Department of Corrections

[2024] NZHC 1751

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2024-425-17

[2024] NZHC 1751

BETWEEN

KYLE JAMES CRAIG

Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

On the papers

Appearances:

Applicant in person

K A Courteney and W S Taffs for Respondent

Judgment:

1 July 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 1 July 2024 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CRAIG v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2024] NZHC 1751 [1 July 2024]

Introduction

[1]                The Deputy Registrar has placed before me an application by Kyle Craig for an interim order releasing him from detention under s 11 of the Habeas Corpus Act 2001 (the Act).

[2]                The Deputy Registrar considers that the application falls within s 15(1) of the Act in that the application requires a re-examination by this Court of substantially the same questions as those considered and determined by the Court when an earlier application for a writ of habeas corpus was refused.

The application for a writ of habeas corpus

[3]                In order to understand why s 15(1) of the Act may apply, it is necessary to outline the history of Mr Craig’s application for a writ of habeas corpus.

[4]                Mr Craig initially made an application for a writ of habeas corpus to this Court in February 2024. The application was heard by Radich J who declined it.1 In summary, Radich J held that the production of the warrant of commitment for a sentence of imprisonment in respect of Mr Craig provided a complete answer to the application, noting that, under s 14(2) of the Act, a Judge is not entitled to call into question a conviction of an offence by a Court of competent jurisdiction.2

[5]While Mr Craig raised a number of concerns about:

(a)the appropriateness of his sentence; and

(b)his conditions in prison,

the Judge concluded that those were not matters which went to the lawfulness of the detention, nor was an application for the issue of a writ of habeas corpus the appropriate procedure for considering those allegations.3

1      Craig v Chief Executive of the Department of Corrections [2024] NZHC 202.

2 At [15].

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

[6]                On 28 February 2024, dissatisfied with this judgment, Mr Craig filed an application for leave to appeal the judgment of the High Court directly to the Supreme Court. He also filed an application for an interim order releasing him from detention under s 11 of the Act.

[7]                On 19 March 2024, the Supreme Court dismissed both his application for leave to appeal and the application for an interim order, noting that the criteria for such an appeal were not met.4 Specifically, the Court concluded as follows:5

In this case nothing raised by Mr Craig suggests that the High Court decision may be erroneous. There is therefore no risk of a possible miscarriage of justice.

[8]The Court also noted:6

Mr Craig also seeks, under s 11 of the Habeas Corpus Act 2001, an interim order for release from detention pending final determination of his application. Given his application for leave to appeal has been dismissed, this application must also be dismissed.

[9]                Dissatisfied that leave was not granted to appeal directly to the Supreme Court, Mr Craig then filed a notice of appeal in the Court of Appeal along with an application for extension of time to appeal. He also made an application for an interim order to the Court of Appeal dated 3 April  2024  which  resulted  in  a  decision  issued  on 12 April 2024, where the Court of Appeal determined that it did not have jurisdiction to make such an order, only the High Court did, so the Deputy Registrar was correct to reject his application for filing.7

[10]            On 28 May 2024, the Court of Appeal issued a judgment granting the application for an extension of time to appeal but dismissing the appeal.8 Once again, the Court held that the Act specifically prohibits the Court from calling into question a conviction for an offence by a Court of competent jurisdiction. Despite Mr Craig’s submissions to the contrary, the Court held the District Court was a Court of competent

4      Craig v Chief Executive of the Department of Corrections [2024] NZSC 23.

5 At [8].

6 At [9].

7      Craig v Chief Executive of the Department of Corrections [2024] NZCA 109.

8      Craig v Chief Executive of the Department of Corrections [2024] NZCA 184.

jurisdiction. The Court held that Mr Craig’s attempts to challenge the legitimacy of his conviction failed “by a very wide margin”.9

[11]            In respect of his concerns regarding the way the sentence of imprisonment was administered, the Court was satisfied that this part of his appeal failed because, relying on s 14(1A)(b) of the Act, a writ of habeas corpus was not the appropriate mechanism for challenging the way a lawful sentence of imprisonment was administered.10

[12]            On 15 April 2024, while awaiting the Court of Appeal’s decision, Mr Craig filed an application in the High Court for an interim order releasing him from detention, pursuant to s 11 of the Act. That section relevantly provides:

11       Interim orders for release from detention

(1) The High Court may make an interim order for the release from  detention of the detained person pending final determination of the application, and may attach any conditions to the order that the court thinks appropriate to the circumstances.

…

[13]            The Registrar rejected the application for filing on the understanding his application for habeas corpus had been finally determined.

[14]            Mr Craig sought a review of the Registrar’s decision on 18 April 2024. However, in a subsequent e-mail on 23 April 2024, the Registrar acknowledged that the appeal to the Court of Appeal was still active, but nevertheless the application for interim orders could not be accepted as the proceeding in the High Court was at an end. The Registrar asked whether Mr Craig still sought an application for review of the Registrar’s decision dated 18 April 2024 to be referred to a Judge. He did not respond. Instead, a further interim order application was filed dated 20 June 2024. It is this application that comes before me.

[15]            In the meantime, on 5 June 2024, Mr Craig filed an application for leave to appeal to the Supreme Court against the judgment of the Court of Appeal. On

9 At [15].

10 At [16].

20 June 2024 he also filed an application in that Court for an interim order releasing him from detention.

The current application for an interim order

[16]            The application for an interim order dated 20 June 2024 seeks an interim order for release pending “final  determination  under  the  Habeas  Corpus  Act  2001.”  Mr Craig attaches, and cross-references his application for an interim order made to the Supreme Court on the same date in which he relies on the “grounds and contents” of his previous interim order applications being:

(a)interim order application to the Supreme Court dated 15 March 2024;

(b)interim order application to the Court of Appeal dated 3 April 2024; and

(c)interim order  application  to  the  Christchurch  High  Court  dated  15 April 2024.

Discussion

[17]            I consider there are two reasons why this application should not be accepted for filing. First, under s 15(1) of the Act, no further application can be made by any person requiring a re-examination by the court of substantially the same questions as those considered by the court when the earlier application was refused.

[18]            In this case, there is no suggestion that Mr Craig is challenging his detention in prison on grounds that he has not already ventilated. Indeed, he relies on all his prior applications to warrant interim release.

[19]            This Court has already heard and determined the application for a writ of habeas corpus on 16 February 2024. This Court’s decision was upheld by the Court of Appeal subsequently, and Mr Craig has already been declined leave to proceed to the Supreme Court. While this Court has not previously considered an application for an interim order, it is advanced on the same grounds as Mr Craig’s substantive

application for a writ, and relies on the Court being prepared, in due course, to grant a writ of habeas corpus. That is precluded by s 15(1).

[20]            That leads to the second ground. Under s 11(1) of the Act, the High Court may make an interim order “pending final determination of the application”. Here, this Court has considered and finally determined the substantive application for a writ and declined it and there is no fresh and substantially different application before it.

[21]            There is, therefore, no jurisdiction for this Court to consider an interim order. The time for making it has passed.

[22]            I am therefore satisfied that there is no jurisdiction to consider the application and it should not be accepted for filing.

Solicitors:

Crown Solicitor, Christchurch

Copy to: Mr Craig