Greer v Chief Executive, Department of Corrections

[2013] NZHC 3109

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-9282 [2013] NZHC 3109

IN THE MATTER OF       an application for writ of habeas corpus

BETWEEN  ALAN IVO GREER Applicant

ANDCHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

On the papers

Judgment:                25 November 2013

JUDGMENT OF GODDARD J

This judgment was delivered by me on 25 November 2013 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington for defendant

Copy to: Alan Greer

GREER v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2013] NZHC 3109 [25 November

2013]

[1]      On Wednesday, 20 November 2013, Mr Greer filed an application for a writ of habeas corpus.  Mr Greer is currently in custody awaiting trial in the High Court on two charges of supplying methamphetamine; rape; presenting a firearm; two charges of threatening to kill; two charges of possession of an offensive weapon; and aggravated burglary.

History of detention and applications to the Court

[2]      Following   his   arrest,   Mr Greer   appeared   in   the   District   Court   on

10 September 2012.  Prior to and since his committal to this Court, he has filed a considerable number of applications including, on 1 February 2013, for a writ of habeas corpus, citing the Chief Executive of the Department of Corrections as respondent.  That application was opposed on the ground that Mr Greer was lawfully detained.

[3]      In dismissing the application, Ronald Young J found the application was in effect calling into question a decision of Kós J, declining to grant Mr Greer bail on the grounds that Mr Greer had not discharged the onus on him under ss 10 and 12 of the Bail Act 2000, and that, in any event, consideration of the factors in s 8 of the

Bail Act necessitated Mr Greer’s continued detention.1

[4]      Ronald Young J was satisfied that Mr Greer’s habeas corpus application was effectively an attempt to call into question a competent ruling of this Court as to bail and recorded that the decision rejecting Mr Greer’s bail application constituted a valid warrant of imprisonment, and Mr Greer was therefore lawfully detained.

[5]      Ronald Young J further noted in his judgment that Mr Greer had inter alia raised  concerns  before  Kós J  relating  to  Police  compliance  under  the  Criminal Disclosure Act 2008, and noted that applications and challenges under that Act could be made by Mr Greer separately from any bail application.

[6]      Following his committal for trial in this Court, Mr Greer has appeared further before the Court on a number of occasions.  It is unnecessary to catalogue all of his

1      Greer v Chief Executive of the Department of Corrections (HC) Wellington CIV-2013-485-159,

5 February 2013.

applications  to  this  Court  and  appearances.    However,  the  following  deserves mention.

[7]      On 15 October 2013, Mr Greer made a further application for release on bail in relation to the same charges. At the time, his trial, which was to have commenced on 30 September 2013, had been adjourned until 28 April 2014, because a principal Crown witness suffers from an illness and was, at that time, unable to give evidence.

[8]      In a decision declining the further bail application, Dobson J recorded that

Mr Greer  had  previously  applied  for,  and  been  denied,  bail  on  28 August  and

8 October 2012, and on 13 February, 30 May and 23 August 2013.2   He then further recorded that, in addition:3

Recurring themes of his bail applications have been claimed failures in the extent of Police disclosure, failures by Corrections staff to provide adequate facilities for him to prepare his defence, and the weakness of the Crown case (most particularly focusing on the charge of rape).

The present application for a writ of habeas corpus

[9]      The sole basis of Mr Greer’s current application for a writ of habeas corpus is his dissatisfaction with one aspect of a decision of Williams J, given on 25 August

2013 and following a hearing on 22 August 2013.  The application is focused on one of a number of pre-trial determinations by Williams J in that decision.  The issue is the  production  of  handwritten  notes  made  by  a  Police  officer  who  interviewed certain witnesses.  These notes formed the basis of subsequently dictated and typed up witness statements.  The original notes were not disclosed to Mr Greer because they had apparently been destroyed in accordance with routine practice.

[10]     During the hearing before Williams J on 22 August 2013, the interviewing officer, Detective Faraimo, confirmed that his pre-trial handwritten notes had not been disclosed to Mr Greer.  His evidence was that such notes are never disclosed in any  investigation  and  are  routinely  destroyed.    He  confirmed  that  the  notes  in

question had been destroyed.

2      Greer v New Zealand Police [2013] NZHC 2682.

3 At [2].

[11]     Detective Faraimo further confirmed that the formal written statements by the complainant had been provided to Mr Greer.

[12]     Williams J accepted Detective Faraimo’s evidence and held there was “no

point in taking the matter further because the information sought no longer exists”.

[13]     It  is  Williams J’s  decision  on  that  point  which  Mr Greer  now  seeks  to challenge, by means of an application for writ of habeas corpus.

[14]     His application pleads that, if original notes are routinely destroyed, then “as per the principles of habeas corpus” the Crown should provide him with the following:

(a)      affidavit  evidence  that  at  least  three  Police  officers  in  the investigation have destroyed their original notes;

(b)that Detective Faraimo and the Police officers referred to in (a) provide affidavit evidence of three to five other prosecutions in which they have destroyed original notes of witness interviews; and

(c)      that   the   Crown   provide   previous   cases   establishing   that Williams J’s “standard behaviour” is to “do nothing when evidence of Police destroying original notes are proven”.

Relevant law

[15]     Section 6 of the Habeas Corpus Act 2001 provides that an application to challenge the legality of a person’s detention may be made by an application for a writ of habeas corpus.

[16]     Section 14(1) provides that the onus is on the defendant to establish that the detention of the detained person is lawful.  If the defendant fails to do this, the High Court must grant, as a matter of right, a writ of habeas corpus ordering the release of the detained person from detention.

[17]     In Mr Greer’s case, however, the critical section is s 14(1A)(b).

[18]     Section 14(1A)(b) provides that, despite s 14(1), the High Court may refuse an application for the issue of a writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the Court is satisfied that an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.

Discussion

[19]     While in his application Mr Greer describes himself as a “captive” who “has been held hostage in excess of 14 months facing a contrived litany of malicious criminal allegations pedalled by perverted fascist police”, there is no assertion of unlawful detention and his whole complaint centres on Williams J’s decision concerning the victim’s allegations against him and the police conduct in preparing the witness statements.  However and notwithstanding the lack of any assertion of unlawful detention (so as to require the respondent to demonstrate that Mr Greer’s detention is lawful by the production of a warrant for his committal), the Chief Executive of the Department of Corrections has filed a notice of opposition to the issue of a writ of habeas corpus annexing a warrant of committal for Mr Greer pending his trial.

[20]     The body of Mr Greer’s application, whilst largely unintelligible, is, as I have outlined, no more than a complaint about criminal discovery and evidential sufficiency.   As such, it should be the subject of an appeal from the impugned decision of Williams J and not the subject of a writ of habeas corpus.

[21]     On  that  basis  alone, the Registry is  directed  to  return  the application  to

Mr Greer.

[22]     Some further matters require mention, however.

[23]     The first is that the application is not compliant, as it fails to cite a valid respondent.   Mr Greer has purported to name as respondent “The Fascist State of New Zealand, Respondent, 1st Criminal Fascist Police Force, 2nd Criminal Fascist

Courts, 3rd Criminal Fascist Prisons”.  In that form the application is not fit to be received by the Court.

[24]     The  second  is  the  manner  in  which  Mr  Greer  has  cited  the  so-called respondents  to  his  application  (as  set  out  above) and  the  abusive  and  insulting language he has employed in the body of his application.  These further aspects also render it unfit for receipt by the Court.

Result

[25]     The Court rejects the application.

Directions

[26]     The Registrar is directed to return Mr Greer’s document, purporting to be an application for a writ of habeas corpus, to him.

[27]     The Registrar is to in future consult with the Executive Judge or the Duty Judge as to whether any further applications by Mr Greer should be received, should they be couched in similarly abusive and insulting language.

Goddard J