Grant v Minister of Justice

[2021] NZHC 1270

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF THE PROTECTED PERSON. SEE [15] BELOW.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-27

[2021] NZHC 1270

IN THE MATTER

of an application for writ of habeas corpus

BETWEEN

SAMANTHA JANE GRANT

Appellant

AND

MINISTER OF JUSTICE

Respondent

Hearing:

On the papers

Appearances:

Applicant in person

P J Gunn and C N Tocher for Respondent

Judgment:

1 June 2021

JUDGMENT OF COOKE J

[1]                 Ms Grant’s application for habeas corpus dated 28 May 2021 has been referred to me as duty Judge.

[2]                 Ms Grant has made a number of similar applications in recent times. The underlying issue concerns a protection order. It is alleged that Ms Grant is continuously breaching that order. On 6 November 2020, following a hearing by telephone, I dismissed Ms Grant’s application for habeas corpus on the basis that her detention at that time was as a consequence of bail decisions made by the District Court.1 On 11 March 2021 Judge Barkle in the District Court struck out civil

1      Grant v Chief Executive of Department of Corrections [2020] NZHC 2944.

GRANT v MINISTER OF JUSTICE [2021] NZHC 1270 [1 June 2021]

proceedings against the person protected by the protection order.2 On 26 March 2021 Ms Grant filed another writ for habeas corpus, and Grice J issued a minute observing that Ms Grant was not presently detained and that the application she had filed was in reality in the nature of an appeal from my earlier judgment of 6 November 2020. She directed Ms Grant to file a memorandum explaining the position. On 1 April 2021 Churchman J then considered the memorandum Ms Grant filed. He described it as “incomprehensible” and that no writ of habeas corpus could be considered unless an applicant was in fact detained at the time, and that Ms Grant was not then detained.3

[3]                 In her current application dated 28 May 2021 Ms Grant said that she was in custody “yesterday” (the 27th) and that she was applying for habeas corpus because she was being intimidated by the police. The respondent has filed material from the District Court file which shows that there was a bail hearing on 27 May 2021 and that Ms Grant was released on police bail at that time.

Habeas corpus and abuse of process

[4]                 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”.4 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.

[5]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—

2      Grant v A [2021] NZDC 4457.

3      Grant v Minister of Justice [2021] NZHC 740.

4      Habeas Corpus Act 2001, s 9(1).

(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

(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.

[6]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.

[7]                 A question arises as to whether the High Court can strike out 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.5 He held:

5      Greer v Smith [2015] NZHC 326, [2017] NZAR 141.

[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.

[8]                 Mander J then set out passages from the Law Commission reports, and from the Parliamentary debates supporting that view.

[9]                 Notwithstanding this analysis there have been a number of subsequent High Court decisions in which habeas corpus applications have been struck out as an abuse of process without a hearing, and without reliance on s 14(1A). There are at least two decisions that struck out such a proceeding in reliance of r 3.35B of the High Court Rules 2016.6 There are other decisions where applications have been struck out as an abuse of process without express reference to the power being exercised, which could either involve an exercise of the power under r 15.1 of the High Court Rules, or the inherent jurisdiction.7

[10]             I respectfully agree with the analysis undertaken by Mander J in Greer v Smith, and for that reason see the scope for the Court to dismiss a habeas corpus application on the papers without holding a hearing to be found primarily in s 14(1A). If s 14(1A) applies, in my view the Court can dismiss the application without holding a hearing. I doubt whether there is jurisdiction to strike out the application under r 5.35B or r 15.1

6      Sawal v Chief Executive of the Department of Corrections [2021] NZHC 3; Moananui v Chief Executive of the Department of Corrections [2021] NZHC 1089.

7      See Blackmore v New Zealand Police Kaikohe [2018] NZHC 3295; Billingham v New Zealand Police [2019] NZHC 133. See also Liddington v Attorney-General [2020] NZHC 3528.

of the High Court Rules. I nevertheless accept there may be some circumstances where the Court could strike out an application in the inherent jurisdiction notwithstanding that it may not fall within s 14(1A). The Habeas Corpus Act does not purport to exclude Court’s inherent powers, and the writ itself originates from the constitutional role of the Court to protect individual liberty. So the Act should not be read as displacing the inherent jurisdiction of the Court from where the jurisdiction initiates. There may be some circumstances — for example when the application is simply incomprehensible — where conducting a hearing of the kind contemplated by the Act would not serve the interests of justice. But it seems to me that before a Court would proceed to exercise the residual inherent powers it would first be appropriate to give careful consideration to the provisions of the Act, and especially s 14(1A).

Application in the present case

[11]             In this case Ms Grant’s application falls squarely within s 14(1A), and for this reason I dismiss the application without holding a hearing.

[12]             First, it is clear that the writ of habeas corpus is not the appropriate procedure for considering Ms Grant’s allegations such that s 14(1A)(b) applies. She is not presently detained, and the allegations she advances are directed to complaining about her potential further arrest for breaching the protection order, and any bail decisions that are subsequently made. The bail decisions made by the Police and the District Court are the appropriate place to determine any question of incarceration arising from continuous alleged offending. There are then rights of appeal from bail decisions made by the District Court. If she is convicted for breach of the protection order, any imprisonment would be determined by the District Court, with a right of appeal to this Court. Those are the appropriate processes for any challenges to those decisions.

[13]             Secondly ss 14(1A)(a) and 15(1) apply. That is because Ms Grant has already challenged the question of her incarceration for actions associated with a breach of the protection order in her previous applications for habeas corpus. She has been told in the judgments in those previous applications that this was not the appropriate avenue to challenge the detentions that take place.

[14]             I am obviously not in a position to form a view on whether Ms Grant has engaged in a process of continually breaching the protection order. Any such decision may be for the District Court. But on the information available it would appear that Ms Grant is not complying with a protection order, and as a consequence she is being continuously arrested. If she continues to breach that order, she will no doubt be arrested again, and may ultimately be imprisoned. The way for her to avoid the incarceration that follows is for her to obey the protection order. It is not appropriate for her to file applications for habeas corpus as a means of protesting against the existence of that order.

[15]             For these reasons the application for habeas corpus is dismissed. In the circumstances, and for the avoidance of doubt, I make an order suppressing the identity of the protected person.

Cooke J

Solicitors:
Crown Solicitors for the Respondent