Delamere v Attorney-General

[2022] NZHC 699

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2022-483-000006

[2022] NZHC 699

BETWEEN

BEAUXDINE PETER DELAMERE

Applicant

AND

ATTORNEY GENERAL

Respondent

Hearing:

05 April 2022

Appearances:

Applicant in person

J Watson for the Respondent

Judgment:

5 April 2022

ORAL JUDGMENT OF GENDALL J

BEAUXDINE PETER DELAMERE v ATTORNEY GENERAL [2022] NZHC 699 [5 April 2022]

Introduction

[1]        The applicant Mr Delamere has applied to the Court for an order for a writ of habeas corpus. The application says it is made on the following stated grounds:

(a)To reaffirm the historic and constitutional purpose (which I presume is in relation to the writ of habeas corpus);

(b)To restore the applicants liberty having been unlawfully detained; and

(c)Breach of a contract made by the Judge detaining the applicant (as a dead entity)

[2]        The applicant says in his formal application it is made in reliance on a number of factors:

(a)Certain laws in this jurisdiction do not apply to him;

(b)The applicant could not adequately defend his case having been incarcerated due to a lack of resources;

(c)Unlawful judicial decisions were made at his trial;

(d)Certain international treaties and other international law instruments including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and He Whakaputanga the Declaration of Independence had been breached in the course of his engagement with the criminal justice process.;

(e)He was treated in an unlawful manner by police; and

(f)A breach of contract on the part of the Judge has occurred here.

[3]        The applicant has also filed in this Court at the same time an application for EM bail

[4]        The Crown as respondent opposes the issue of a writ of habeas corpus on the following grounds

(a)The Crown says the applicant is lawfully detained at Whanganui Prison;

(b)Habeas corpus is not the correct procedure for the issues the applicant raises (for example, alleged impropriety by the Police here); and

(c)The bases on which the applicant says he is being held unlawfully are without merit and do not support the conclusion that the applicant is unlawfully detained.

Unlawful detention

[5]        To the extent that the applicant aims to restore his liberty, habeas corpus is an available mechanism. Habeas corpus deals with being wrongfully or unlawfully detained. A writ of habeas corpus must be founded on an unlawful detention.1 If detention is lawful at the date of hearing (as may be evidenced by appropriate documentation such as a committal warrant or other authorisation for the applicant’s detention) there is no basis upon which the application may be granted.

[6]        Although the burden is on a respondent to establish that detention is lawful, in practice, once the respondent has produced appropriate documentation, it is then necessary for the applicant to demonstrate that the documents do not in fact provide a lawful justification for detention in the circumstances.2

[7]        Arguments that have been raised here by the applicant include ‘sovereign citizen’ arguments but these in the past have been consistently rejected by the Courts.

1      Habeas Corpus Act 2001, s 6.

2      Bennett v Superintendent, Rimutaka Prison (No 2) [2002] 1 NZLR 616 (CA) at [70].

In Che v The Department of Corrections, this Court said “incomprehensible statements about being the natural person or not being the natural person or a trustee or a beneficiary and not being susceptible to the laws of the country are properly and summarily rejected by the Courts ”

[8]        The Crown here also submits that the applicant without question is lawfully detained. The applicant was sentenced by Judge Crayton in the District Court on      9 August 2021 to three years and five months’ imprisonment for convictions involving intentionally impeding breath, aggravated assault, indecent assault of a female over 16, assault with intent to injure, threatening to kill/commit grievous bodily harm, contravening a protection order and perverting the course of justice.3

[9]        The Crown has also adduced a warrant of commitment signed by the Judge. Corrections has calculated the applicant’s statutory release date to be 29 April 2023. I accept the Crown’s evidence that this warrant demonstrates a lawful basis for the applicant’s detention.

[10]      This being the case, the onus falls to the applicant to demonstrate that the documentation does not in fact provide a lawful justification for his detention here. As I have noted above, the applicant points to a number of reasons, he says, which support this argument.

[11]      The applicant says on this, he is unable to defend his case, and also a case he says he intends to bring to the Court of Appeal, due to a lack of resources in the prison. Of course, it is important as a matter if justice that any defendant or convicted person have the ability to defend themselves or challenge their conviction at law. A system of legal aid does exist to support people who lack financial resources to engage a lawyer, in light of this important consideration. As I see it, if the applicant does wish to challenge his conviction or sentence that is his right, but I encourage him to consider bringing an application for Legal Aid for assistance in this matter before mounting legal proceeding. Habeas corpus is not the appropriate mechanism for this purpose.

3      R v Delamare [2021] NZDC 16098.

[12]      The applicant also challenges the lawfulness of his conviction, stating the decision at trial was unlawful. The law on this matter is clear, however. An application for a writ of habeas corpus is not the appropriate mechanism to challenge the lawfulness of a conviction. Unless an applicant’s conviction is set aside on appeal, it remains valid at law.4 The appropriate avenue in this respect is through an appeal against conviction or sentence.5

[13]      In principle, alleged breaches of international treaties or other international instruments, to which the applicant has referred in his application, cannot be relevant to whether a applicant such as Mr Delamere here, is unlawfully detained. If the applicant wishes to challenge his conviction on the basis of these instruments that is a matter to be dealt with in an appeal against conviction or sentence. Until that occurs the conviction must stand. The challenges to breaches of treaties or other international instruments must therefore fall away here.

[14]      The applicant also brings his present application on the basis that he claims he is being mistreated by police. The particulars of this alleged mistreatment are not clear and there is no clear basis put before this Court on which it might be said that the applicant has been mistreated. In any case, the law is again clear on this. Unlawful treatment during detention does not render the detention itself unlawful.6 If the applicant wishes to challenge the lawfulness of the conditions of his incarceration, he may do so by applying for judicial review.7 Again, I suggest the applicant consider seeking legal assistance if appropriate by way of an application for Legal Aid.

[15]      In  light  of  the  matters  I  have  raised  above  there  is  no   evidence  in   Mr Delamere’s present application to support a challenge to the lawfulness of this detention here.

Other grounds raised by the applicant

“To reaffirm the historic and constitutional purpose”

4      Ericson v Department of Corrections [2014] NZCA 118, [2014] NZAR 540 at [4]–[5].

5      Habeas Corpus Act, s 14(2)(a).

6      Bennett v Superintendent, Rimutaka Prison (No 2), above n 2, at [61]–[62].

7 At [65].

[16]      Insofar as the applicant applies for a writ of habeas corpus “to reaffirm the historic and constitutional purpose”, I presume he is referring to reaffirming the purpose of habeas corpus itself. However, I would not be minded to grant the applicant a writ of habeas corpus in order simply to affirm the purpose of habeas corpus itself. This is covered by the Habeas Corpus Act 2001 and proper grounds must be established,. The “purpose” alone without proper supporting grounds is not in itself a good reason to grant a writ of habeas corpus

Breach of contract

[17]      An application for habeas corpus is not the appropriate avenue for a claim to breach of contract. In any case, it is not accurate to suggest there has been any breach of contract here. A sentence of imprisonment is in no way a contract between the Judge and the applicant. On the application as filed, there is simply no ground alleging a breach of contract in this case.

EM bail application

[18]      In terms of the EM bail application which accompanied the present application, I confirm this is not the appropriate way to deal with as such a bail application. In order to grant EM bail the Court, in any event, would need to receive supporting information, including an EM bail suitability report from Corrections, submissions in support of bail being granted, including getting any notice of opposition to bail from the police. Any form of application for EM bail needs to follow the ordinary process for making an EM bail application. Again, I urge the applicant to seek assistance through an appropriate Legal Aid application in all the circumstances here.

Conclusion

[19]      In conclusion I find that none of the grounds justifying an order for a writ of habeas corpus have been made out on the application by Mr Delamere as he has put it forward before this Court. The present application by Mr Delamere, the applicant, is refused.

[20]Costs on this application are reserved.

Gendall J

Solicitors: Crown Law