Helsby-Knight v Chief Executive of the Department of Corrections

[2013] NZHC 3446

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-5154 [2013] NZHC 3446

IN THE MATTER             of the Habeas Corpus Act 2001

BETWEEN  MICHAEL HELSBY-KNIGHT Applicant

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:                   16 December 2013

Judgment

Appearance:

16 December 2013

M Helsby-Knight in person

K Raftery for Respondent

Reasons:                  17 December 2013

REASONS FOR JUDGMENT OF KATZ J

Solicitors:               Meredith Connell, Auckland

Copy to:                 M Helsby-Knight

KNIGHT v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS  [2013] NZHC 3446 [17 December 2013]

Introduction

[1]      Mr Michael Helsby-Knight filed an application for a writ of habeas corpus on

13 December 2013. That application came before me as Duty Judge yesterday.  At the conclusion of the hearing I declined the application, with written reasons to follow. My reasons are set out below.

Factual background

[2]      Mr Helsby-Knight is a New Zealand citizen. In recent years he has lived in Thailand  where,  he  says,  he  ran  a  distribution  business  involving  the  sale  of electronic goods such as smartphones, iPads and so on.  New Zealand was one of the countries he sold goods to.  Mr Helsby-Knight had a New Zealand based agent who would arrange sales of these goods and collect deposits for them.  It seems however, that the goods ordered by customers in New Zealand never (or almost never) actually arrived.   Mr Helsby-Knight maintains that he always sent the goods and that his agent was responsible for those goods not reaching New Zealand customers.

[3]      While visiting New Zealand in mid-May 2012, Mr Helsby-Knight was questioned by Detective Constable Blair, a detective with the Financial Crime Unit of  the  New  Zealand  Police,  regarding  his  business  activities.  Before  leaving New Zealand to return to Thailand, Mr Helsby-Knight changed his name by Deed Poll  to  “Foxconn  Group  plc”  and  applied  for  a  new  passport.    He  returned  to Thailand on 7 June 2012.

[4]      A large number of fraud related informations were subsequently filed in the Auckland District Court on 7 August 2012 and an arrest warrant was issued for Mr Helsby-Knight.  He alleges that the documents filed for the purposes of obtaining the arrest warrant were “false”.   Further, he says that the arrest warrant was kept secret from him while he was in Thailand, despite having visited the New Zealand Embassy in Thailand on four separate occasions between 7 August 2012 and 18

October 2012.

[5]      The evidence provided by Mr Helsby-Knight indicates that on 18 September

2012 Interpol Wellington informed Interpol Bangkok of Mr Helsby-Knight’s alleged

criminal activities, unpaid fines and that a warrant had been issued for his arrest.  It was noted that Mr Helsby-Knight was about to apply for a visa renewal in Thailand and that there might be grounds to consider cancelling his visa.

[6]      Mr Helsby-Knight’s Thai visa was subsequently cancelled. He was detained in an Immigration Detention Centre in Bangkok while a flight was arranged for him to travel back to New Zealand. When Mr Helsby-Knight arrived in New Zealand, in November 2012, he was arrested at the airport pursuant to that arrest warrant.

[7]      Criminal proceedings against Mr Helsby-Knight have since progressed and he is currently detained pursuant to a warrant of commitment for trial, issued by Judge D M Wilson in the District Court at Auckland on 28 March 2013.  He is next due to appear in the District Court on 25 February 2014, for the hearing of various pre-trial applications.  These apparently include an application by Mr Helsby Knight to strike out the prosecution against him, on what appear to be abuse of process grounds.

[8]      Mr Helsby-Knight has never sought bail.  He says this is in part because he has nowhere to go and no means of support.  He also indicated that he did not apply for bail as he has waited to make this application, as he sees it as the appropriate avenue for relief.

The habeas corpus application

[9]      Mr Helsby-Knight brings an application for habeas corpus to challenge the lawfulness of his detention.  Mr Helsby-Knight’s application is made on the grounds that:

(a)       It is in the interests of justice that the application be granted.

(b)His  detention  was  affected  by  bad  faith,  in  particular  dishonesty, corruption or similar malpractice.

(c)       The  police  failed  to  realise  the  limitations  of  their  powers  and consequently acted under an error of law.

(d)      The police were biased which breached his right to natural justice.

(e)       The police failed to follow proper procedures or policies.

[10]     In essence, Mr Helsby-Knight alleges that he is the victim of a sophisticated conspiracy  by  the  New  Zealand  police  to  have  him  unlawfully  returned  to New Zealand and subsequently detained here.

[11]     The respondent opposes the application on the basis that Mr Helsby-Knight is lawfully detained pursuant to warrants of commitment issued, which authorise his remand in custody.

The law

[12]     The application must be determined pursuant to s 14 of the Habeas Corpus

Act 2001, which relevantly 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...

...

(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.

...

Discussion

[13]     To found an application for habeas corpus, the detention or imprisonment itself  must  be impugned  as  lacking justification.1   Many of the issues  raised  by Mr Helsby-Knight in argument, and in the papers he has filed in Court, address issues significantly broader in scope than the lawfulness of his current detention. Ultimately Mr Helsby-Knight seeks to have the charges against him dismissed on the basis of alleged improprieties on the part of the police.  Such issues cannot, however,

be addressed in the context of a habeas corpus application.  The appropriate course is to  raise  them  by  way  of  a  pre-trial  application  in  the  District  Court,  which Mr Helsby-Knight appears to have done.

[14]     In  Police  v  Travis,  where  the  applicant  sought  a  writ  of  habeas  corpus because of the denial of a access to a lawyer, Fisher J stated:2

Habeas corpus is undoubtedly the appropriate remedy for curbing certain unlawful police practices with respect to prisoners held in their custody: for examples see RJ Sharpe, The Law of Habeas Corpus (1976) pp 129-130. But so far as I am aware, habeas corpus is available in these cases only where the police conduct directly or indirectly relates to the lawfulness of the very detention itself. I am not aware of any authority to suggest that denial of a right of access to a solicitor converts an otherwise lawful detention into an unlawful one.

[15]     It was held in that case that habeas corpus was not available because the denial of the right to a lawyer could not convert an otherwise lawful detention into an unlawful one.   Similarly in this case, the focus must be on whether any of the allegations made by Mr Helsby-Knight go to the lawfulness of his current detention.

[16]     As  noted  above,  Mr  Helsby-Knight  is  currently  detained  pursuant  to  a warrant for committal to trial dated 28 March 2013, issued by Judge D M Wilson in the District Court at Auckland, following the standard committal process set out in

the Summary Proceedings Act 1957.

1      Police v Travis [1989] 2 NZLR 122 (HC).

2      Ibid, at 125.

[17]     If a defendant is committed for trial at a standard committal3, the Court must remand the defendant to appear in the Court to which the defendant is committed for trial.4     If the defendant is in custody at the time of committal, the defendant must be remanded in custody.5     If a defendant who is committed for trial, whether at a standard committal process or at a committal hearing, is remanded in custody, the District  Court  must  issue  a  warrant  in  the  prescribed  form  for  the  defendant's

detention in a prison (unless the Judge is of the view that detention in hospital or a secure facility pending trial is justified).6    In this case a warrant, in the prescribed form, was issued for Mr Helsby-Knight’s detention in a prison.  Mr Helsby-Knight is currently remanded in custody to appear in the Auckland District Court at 10:00 am on 25 February 2014.

[18]     The various issues raised by Mr Helsby-Knight do not convert his otherwise lawful  detention  into  an  unlawful  one.    Rather,  the  appropriate  mechanism  for Mr Helsby-Knight to challenge his custodial status is to seek bail in the District Court.  As  for  Mr Helsby-Knight’s  concerns  regarding  police  conduct,  they  are more appropriately raised in the context of the stay application Mr Helsby-Knight has filed.  I understand that application is scheduled for hearing in February 2014.

[19]     For the reasons outlined, I was satisfied that Mr Helsby-Knight’s detention is lawful.   I therefore dismissed his application for a writ of habeas corpus, at the conclusion of the hearing.

Katz J

3      A “standard committal” is a committal that takes place if no oral evidence order has been made allowing the oral examination of a witness: s 146, Summary Proceedings Act 1957: definition of “standard committal”.

4      Summary Proceedings Act 1957, s 184T(1).

5      Ibid, s 184T(1)(a).

6      Ibid, s 184T(2).