Goh v Department of Corrections HC Auckland CIV 2010-404-7665

[2010] NZHC 2110

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7665

PENG THIAM GOH

Applicant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         26 November 2010

Appearances: Mr Goh in person

Ms A Longdill for respondent

Judgment:      26 November 2010

JUDGMENT OF LANG J

[on application for writ of habeas corpus]

Solicitors/Counsel:

Crown Solicitor, Auckland

Copy to: Applicant

GOH V DEPARTMENT OF CORRECTIONS HC AK CIV-2010-404-7665  26 November 2010

[1]      This proceeding was last before Allan J on 24 November 2010.  He noted that the present application is misconceived on the basis of the authorities referred to at [7] of his minute dated 24 November 2010.

[2]      The proceeding was adjourned to today to enable counsel for the Crown to make submissions in relation to the form of the warrant, which on its face says that Mr Goh is to be remanded in custody pending his trial.  His trial has now concluded and he will be sentenced on 25 January 2011.

[3]      Counsel  for  the  Crown  has  now  filed  further  written  submissions  in the District Court.  Mr Goh’s counsel, Ms Packer, has indicated that she does not wish to make submissions in response.

[4]      Mr Goh is currently detained pursuant to a warrant of commitment issued pursuant to s 171 of the Summary Proceedings Act 1957.  The prescribed form for the purposes of that section is Form 43 of the Summary Proceedings Regulations

1958.  The prescribed form contains two options for authorising detention:

a)        Detention pending trial.

b)        Detention pending being brought up for sentence.

[5] Where a defendant pleads not guilty to a charge, he or she is committed for trial. That is the position with Mr Goh. The warrant in his case authorises his attention “pending trial”. There is no provision in the Summary Proceedings Act, the Bail Act 2000 or any other Act for a further warrant to be issued once a person has been found guilty following a jury trial. For that reason, the warrant authorising the detention of an accused person remains expressed as “pending trial” until such time as sentence is passed. At that point s 91 of the Sentencing Act 2002 applies, and a new warrant is prepared in the form prescribed by Form 9 of the Sentencing Regulations 2002.

[6]      In R v Grant (1951) 1 KB 500 the English Court of Appeal interpreted the word “trial” in the Criminal Justice Act 1948 (UK) as comprising the entire criminal process, including sentencing. Lord Goddard CJ said at 503:

... In our opinion, for this purpose the trial is not complete until sentence has been passed or the prisoner has been ordered to be discharged.

[7]      In  Evans  v  Police  HC  Auckland  CRI2006-404-112-113,  27  April  2006, Frater J was required to consider the meaning of “trial” for the purpose of s 12(1)(a) of the Bail Act 2000.  She, too, took the view that the phrase “trial” means the whole of the proceedings, including the sentencing hearing.

[8]      For these reasons I am satisfied that the warrant under which Mr Goh is currently detailed is lawful.

[9]      The application for habeas corpus is dismissed.

Lang J