Israel v Commissioner of Police HC Rotorua CIV 2007-463-595

[2007] NZHC 1965

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2007-463-000595

IN THE MATTER OF     the Habeus Corpus Act 2001

BETWEEN  GORDON ISRAEL Applicant

ANDCOMMISSIONER OF POLICE Respondent

Hearing:         3 August 2007

Appearances: G Israel Applicant in person

F Pilditch and C H Macklin for Respondent

Judgment:      3 August 2007

(ORAL) RULING OF ANDREWS J

Solicitor:            Crown Solicitor, PO Box 740, Rotorua

Gordon Israel, c/o 25A Ngati Maru Highway, at Kopu, near Thames

G ISRAEL V COMMISSIONER OF POLICE HC ROT CIV 2007-463-000595  3 August 2007

[1]      On 26 July 2007, Peter William Johan Paalvast was detained in custody for the purpose of assessment under s 38 of the Criminal Procedure Mentally Impaired Persons Act 2003.

[2]      On 2 August 2007, Gordon Israel made an application under the Habeus Corpus Act 2001 seeking a Writ of Habeus Corpus requiring the Commissioner of Police to prove the lawfulness of his detention of Mr Paalvast, or to immediately free him from detention.

[3]      Pursuant  to  a  direction  given  by  me  on  2  August  2007,  copies  of  the application were faxed to the Crown Solicitor in Rotorua and, I understand, to the respondent.  The application was then brought before me for hearing this morning.

[4]      Mr Pilditch and Mr Macklin have appeared today primarily for the purpose of assisting the Court.  This is for two reasons.  The first is that it would appear that the respondent has been incorrectly named.  As Mr Paalvast is remanded in custody the proper defendant should perhaps have been the Department of Corrections.  Second, as a result, Mr Pilditch has not been able to obtain instructions.  The Court is grateful to them for their attendance on short notice and for their assistance.

[5]      Mr Israel is in Court today.  Patently he is not the person detained nor, as he is not a barrister or solicitor, can he represent Mr Paalvast as counsel.  He therefore has, in my view, no standing to appear on this matter.  Nevertheless I indicated to Mr Israel that I was prepared to read his application and to hear from him, given the nature of the application under the Habeus Corpus Act and the urgency that is always given to such applications by the Court.

Background

[6]      On 25 July 2007 Mr Paalvast appeared in the District Court at Taupo before

Judge C J Maguire on two charges under ss 19 and 49 of the Domestic Violence Act

1995 for breach of a protection order.   The Judge found both charges proved and convicted Mr Paalvast on each.

[7]      It is clear from the Judge’s decision that over the course of the hearing he became concerned about Mr Paalvast’s mental state. At [24] of the decision he made an order, on his own initiative, to require an assessment report to be prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”). He made it a condition of releasing Mr Paalvast on bail that he attend for assessment on 20 August 2007 and that he appear again in the Taupo District Court on 3

September 2007.

[8]      Mr Paalvast, however, appeared before the Judge again the next day (26 July

2007).   He had been seen driving a car at 9am that morning.     Mr Paalvast is forbidden from driving because he has refused to renew his drivers licence after it expired.   On that charge Mr Paalvast is bailable as of right.   However, the circumstances of his apprehension, in particular Mr Paalvast’s behaviour at the time, caused the Police concern.  The Judge noted in his record of the hearing on 26 July that Mr Paalvast’s behaviour was such that he now had sufficient concern as to Mr Paalvast’s mental state that he should in fact be remanded in custody for preparation of the assessment report.  The remand was to be for a maximum of 14 days.

[9]      That is the background against which a Writ of Habeus Corpus was sought.

Discussion

[10]     Habeus Corpus is a remedy against unlawful detention.    Patently it is not available if the detention is lawful.

[11]     Today  in  Court  Mr  Israel  advised  me  that  he  had  now  seen  the  two judgments, and that these had not been previously available to him.   He acknowledged that the detention of Mr Paalvast is not unlawful.

[12]     Having reviewed the matter independently I am satisfied, for myself, that Mr Paalvast’s detention is lawful.   The Judge was entitled to order preparation of an assessment report, on his own initiative, under s 38(1) of the Act, on 25 July 2007. Mr Paalvast was in the custody of the Court at the time and he was entitled to make

it a condition of Mr Paalvast’s release on bail that he attend for an assessment. (s 38(2)(a)).

[13]     Further on 26 July 2007 the Judge was entitled, under s 38(2)(b), to order Mr Paalvast’s detention in custody for up to 14 days for an assessment report to be prepared.

[14]     In accordance with his acknowledgement that Mr Paalvast’s detention was lawful, Mr Israel indicated that the application for a Writ of Habeus Corpus was declined.

[15]     On a further note.   Mr Pilditch submitted to me that, in any event, a Writ could not have been issued.  The Judge’s decision was in fact a ruling as to bail (a decline of bail) and s 14(2)(b) of the Habeus Corpus Act provides that such a ruling cannot be called into question with a Writ of Habeus Corpus application.

[16]     The application for a Writ of Habeus Corpus is dismissed.

Andrews  J