Edwards v Commissioner of Police
[2021] NZHC 1615
•1 July 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-31
[2021] NZHC 1615
UNDER the Habeas Corpus Act 2001 IN THE MATTER
of an application for writ of habeas corpus
BETWEEN
JOHN ANTHONY EDWARDS
Applicant
AND
THE COMMISSIONER OF POLICE
Respondent
Judgment: 1 July 2021
JUDGMENT OF COOKE J
[1] Mr Edwards’ application dated 30 June 2021 has been referred to me as duty Judge.
[2] Mr Edwards explains that he is 89 years of age and has disabilities which only allow him to walk for short distances with the assistance of two sticks. He describes an incident when he was using his motor vehicle which has resulted in the issuing of a Notice of Prohibition, and that his driver’s license was earlier taken from him by police. He then says:
Inglewood is a most inhospitable place to exist in without a motorcar. There are no taxis, unless you are prepared to spend $150 to call one from Waitara. Public bus transport is available, it is true, but only on weekdays, and only between town and town, and not within a town. There is a small New World supermarket some 1.5 km distant, which I can walk (shuffle) to and from in the course of a day.
My status to all intents is that of one who is sentenced to an indefinite term of home detention. I note that according to s.3 of the Habeas Corpus Act 2001, (the Act) “detention” includes every form of restraint of liberty of the individual. I have written to the Taranaki Police Area Commander, Inspector
EDWARDS v THE COMMISSIONER OF POLICE [2021] NZHC 1615 [1 July 2021]
Dewar, on six occasions concerning this matter, which has now dragged on for 5½ months without result. With the onset of winter, I have had enough!
Habeas corpus
[3] The Habeas Corpus Act 2001 provides that applications under the Act “must be given precedence over all other matters before the High Court unless a Judge of that Court considers that the circumstances require otherwise”.1 Section 9(3) provides:
The Registrar must allocate a date for the inter partes hearing of an application that is no later than 3 working days after the date on which the application is filed.
[4] Section 14 also provides:
14 Determination of applications
(1)If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.
(1A) Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—
(a) section 15(1) applies; or
(b) an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.
(2)A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—
(a) a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or
(b) a ruling as to bail by a court of competent jurisdiction.
(3)Subject to section 13(2), a Judge must determine an application by—
(a) refusing the application for the issue of the writ; or
1 Habeas Corpus Act 2001, s 9(1).
(b) issuing the writ ordering the release from detention of the detained person.
(4)All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.
(5)A writ of habeas corpus may be in the form set out in the Schedule.
[5] Section 15(1) provides:
15 Finality of determinations
(1)Subject to the rights of appeal conferred by section 16 of this Act and to sections 68 to 71 of the Senior Courts Act 2016, the determination of an application is final and no further application can be made by any person either to the same or to a different Judge on grounds requiring a re-examination by the court of substantially the same questions as those considered by the court when the earlier application was refused.
[6] A question arises as to whether the High Court can dispose of an application for habeas corpus without affording a hearing if the proceedings appear to be an abuse of process. That question was carefully considered by Mander J in Greer v Smith.2 He held:
[13] The question arises as to whether there are any circumstances in which no hearing is necessary. In my view, there are two situations where that may arise. The first is where the narrow exceptions provided by s 14(1A) apply. Thus, where the application is an attempt to relitigate the same, or substantially the same questions as were raised in a previous application, the matter will not be heard by combination of ss 14(1A)(a) and 15(1). The other s 14(1A) ground is where an application for a writ is not the appropriate procedure for considering the allegations made by the applicant.
[14] A second situation where, arguably, no hearing would be necessary is where the application represents an abuse of process warranting invocation of inherent jurisdiction to strike the application out. It may, however, be that having regard to the solemnity and importance of habeas corpus and the statutory framework that now governs such applications, the statute supersedes any such jurisdiction. If that is the case, applications that would otherwise have constituted an abuse are now dealt with under ss 14(1A) and 15(1).
[15] This summary of the position is, I believe, supported by the work of the Law Commission and the passage of the Habeas Corpus Bill and its amendment through the House.
2 Greer v Smith [2015] NZHC 326, [2017] NZAR 141.
[7] Mander J then set out passages from the Law Commission reports, and from the Parliamentary debates supporting that view.
Application in the present case
[8] I have carefully considered Mr Edwards application, but have concluded that it is not appropriately advanced as an application of habeas corpus and that s 14(1A)(b) applies. His essential complaint relates to removal of his driver’s license and the issuing of the associated Notice of Prohibition. I doubt that prohibiting someone from driving a motor vehicle can be regarded as a detention, even in the personal circumstances described by Mr Edwards. But in any event, to the extent that it can be, the appropriate avenue to challenge the legitimacy of those decisions is not an application to the High Court for a writ of habeas corpus.
[9] It may well be that Mr Edwards is in the need of community support, and that some attention should be given by police to alerting relevant community support organisations of Mr Edwards’ situation.
[10] I direct the Registrar to provide a copy of this decision to Taranaki Police through the New Plymouth Crown solicitor.
[11]The writ of habeas corpus is dismissed.
Cooke J