JESSIE CLARK AND NEW ZEALAND POLICE AND CHRISTCHURCH DISTRICT COURT AND ATTORNEY-GENERAL

[2024] NZHC 2644

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-476

[2024] NZHC 2644

BETWEEN

JESSIE CLARK

Applicant

AND

NEW ZEALAND POLICE

First Respondent

AND

CHRISTCHURCH DISTRICT COURT

Second Respondent

AND

ATTORNEY-GENERAL

Third Respondent

Hearing:

On the papers

Appearances:

Applicant in person

W S Taffs for Respondents

Judgment:

12 September 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 12 September 2024 at 3.15 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CLARK v NEW ZEALAND POLICE [2024] NZHC 2644 [12 September 2024]

Introduction

[1]        Mr Clark applies for the issue of a writ of habeas corpus, seeking his urgent release from what he describes as “unlawful detention”, resulting from his conditions of EM bail.

[2]        Because of an unusual sequence of events documented below, I am satisfied the alleged detention complained of is no longer in place and there is no need to conduct a hearing of the application. This is because the unlawful detention complained of must be ongoing at the time of the hearing.1 Consequently, the application must be declined and no hearing is required.

[3]        However, given the convoluted history of this application, and the attempts which were had to convene a hearing, I set this background out in full so that Mr Clark can understand what impediments there were to his application even if it had proceeded to hearing.

The remand on EM bail

[4]        Until his arrest yesterday, Mr Clark was remanded on EM bail while he awaits trial on charges including possession of cannabis, breach of a protection order, and unlawful possession of firearms, and sentencing on charges including cannabis-related charges, firearms and driving-related offending and breaches of a protection order.

[5]        There have been various decisions remanding Mr Clark on EM bail. I refer only to the two most recent decisions relevant to bail.

[6]        On 7 August 2024 Judge Kellar observed that, as Mr Clark had been convicted on various charges, s 13 of the Bail Act “certainly applies”, with a presumption that Mr Clark would be remanded in custody while he was awaiting sentencing.2 Nevertheless, the Judge readmitted Mr Clark to EM bail on the same conditions as before, until the respective dates for sentencing or for progressing the unresolved charges.

1      Prescott v New Zealand Government [2020] NZHC 653.

2      New Zealand Police v Clark [2024] NZDC 18598.

[7]        On 5 September 2024 Mr Clark sought a bail variation before Judge K Elkin. He sought removal of electronic monitoring in order to go to work and to be able to travel to see his son and daughter and to move to a new address to live with his partner and new baby. The Judge declined the application to vary bail, noting there was no evidence that he had any work and there were protection orders in place that created an impediment to the proposed change of address.3 This application for a writ of habeas corpus was filed the following day.

Procedural issues arising in relation to this hearing

[8]        The progress of this application has not been straightforward. Mr Clark initially filed it in the Wellington High Court on Friday 6 September 2024. On the same day, a Wellington Registrar transferred Mr Clark’s application to the Christchurch Registry as the proper Registry of the Court. Mr Clark sought a review of the Registrar’s decision. He did not want the matter dealt with in Christchurch, claiming there was an obvious conflict of interest because this Court would not want to be seen to contradict its previous decision on his application and would have a “prejudicial bias to make the same errors of law”.

[9]        On 10 September 2024 Isac J issued a decision dismissing the application for review and affirming the appropriateness of the application being transferred to the Christchurch High Court Registry.4

[10]      When the application was forwarded to the Christchurch High Court, Eaton J, who was duty Judge, directed the application to be heard on Wednesday 11 September at 10 am. He proposed that Mr Clark make arrangements with the EM bail monitoring team to appear in person, but otherwise he could appear at the hearing via VMR.

[11]      Mr Clark elected to appear by VMR and the appropriate details were sent to him. However, at the scheduled hearing time, and despite Mr Clark being online, visual and/or audio contact was intermittently cut off. This made it impossible for the

3      R v Clark [2024] NZDC 2146.

4      Clark v New Zealand Police [2024] NZHC 2607.

hearing to proceed. Accordingly, I directed that the hearing was to be conducted by way of telephone conference to be convened that afternoon.

[12]      A telephone conference was scheduled for 2 pm. However, despite Mr Clark providing his telephone contact details, and the conference organisers calling him  six times, he did not pick up and was not joined to the telephone conference.

[13]      I apprehend that this was because Mr Clark maintained his application should not be heard in this Court and should not be heard by me. Both before and after the scheduled telephone conference he sent emails via the Registry to this effect with his last email being sent at 4.48 pm. Indeed, he demanded that the matter be remitted back to Wellington for an urgent hearing and advised that he had requested Isac J to recall his decision.

[14]      Given my concerns that Mr Clark was deliberately refusing to participate in a hearing in Christchurch, I issued a minute on the afternoon of 11 September 2024 directing that the hearing  would  be  conducted  at  the  High  Court  on  Thursday 12 September 2024 at 10 am. Again, I said that Mr Clark should either make arrangements with the EM bail team to attend the Court in person or could participate by VMR. I also warned Mr Clark that if he did not attend the hearing by one of those means, the application would be determined on the papers, noting the Court could not continue to convene hearings on an urgent basis with Mr Clark, if Mr Clark chose not to appear.

[15]      VMR details were sent to Mr Clark for this morning’s hearing. Unfortunately, while the details were the correct details to connect to Courtroom 11, those same details had been booked for use to hear the Invercargill bankruptcy list from an AVL booth. However, as soon the error was identified, fresh VMR details were sent by the Registry to Mr Clark by email to enable him to join the hearing. There were also attempts made to telephone Mr Clark. However, his phone was turned off.

[16]      Enquiries by Registry staff confirm that Mr Clark made no attempt to join the hearing that was being conducted using the original VMR details. Mr Clark also did not make contact with this Court to suggest there were any problems with the VMR

details he was initially sent. He also made no attempt to contact this Court using the corrected VMR details.

[17]      While initially it appeared that Mr Clark was still demonstrating reluctance to participate in a hearing of his application in the Christchurch High Court, shortly after

11.30 am I had an email referred to me which explained his non-appearance.

[18]      Ms Tanya Dunstan sent the email explaining that Mr Clark had again been arrested by police, and a hearing occurred at the Christchurch District Court but bail was denied.

[19]      I am satisfied that these circumstances have overtaken Mr Clark’s current application and he is now subject to a different decision of the District Court which has declined him EM bail and remanded him in custody. In the circumstances, the basis on which it is brought, being the alleged illegality of his EM bail, has fallen away. The decision to decline him bail is a decision which would need to be challenged by way of an appeal to this Court. Under s 14(2)(b) of the Habeas Corpus Act 2001 (the Act), it cannot be challenged by way of an application for a writ of habeas corpus.

[20]      While, technically, there is no need to consider Mr Clark’s application, I do make observations on it because I trust it will guide Mr Clark in pursuing future applications.

This application

[21]      An application for a writ of habeas corpus is a constitutionally important remedy. It allows a person who is unlawfully detained to seek release on an urgent basis through the grant of a writ. The starting point is, self-evidently, that there must be an unlawful detention, that is, a detention without lawful justification.

[22]      Mr Clark raised the following matters which he says mean he was unlawfully detained while remanded on EM bail. He asserted:

(a)the full bail order was never served on him and so the bail order was “invalid”, saying he never signed or agreed to it;

(b)his convictions for breaches of protection orders are “unlawful” saying service of those orders was not effected;

(c)his EM bail conditions cause him stress and prevent him from working.

The 29 July application for a writ of habeas corpus

[23]      On 29 July 2024 I heard a similar application for a writ of habeas corpus from Mr Clark. In that application he:

(a)took issue with his conviction for breach of a protection order saying he was not served with the relevant protection order; and

(b)took issue with the conduct of a bail variation hearing where he sought to have his bail conditions removed, including the failure to permit him to have an individual appear by audio visual link at that hearing as his McKenzie friend.

[24]      In my judgment I dismissed his application both because the Act specifically provides, at s 14(2)(b), that where a Court of competent jurisdiction has made a ruling as to bail, the Court is precluded from calling that ruling into question.5 I also determined that the allegations made by Mr Clark were not appropriately determined in the context of an application for a writ of habeas corpus.   That is because, under   s 14(1)(A)(b) of the Act, an application for a writ of habeas corpus may be refused if it is not the appropriate procedure for considering the allegations made by the applicant. I observed that an appeal was the most appropriate procedure for determining the issues he raised regarding his conviction and his bail variation hearing.

5      Clark v New Zealand Police [2024] NZHC 2078 at [12].

[25]      Mr Clark sought leave to appeal that decision direct to the Supreme Court. In declining to grant leave, the Supreme Court noted “nothing raised by the applicant suggest that the proposed appeal has sufficient prospects of success to warrant an appeal to this Court. … The applicant has other, more appropriate, remedies he can pursue.”6

Discussion

[26]      The only new issue which was raised in the present application is the argument that Mr Clark never saw a full copy of the bail order and there was no signed bail bond. A scanned copy which was sent to him was incomplete.

[27]      This point is comprehensively rebutted by Mr Taffs, for the respondents. Attached to the respondents’ submissions is a full signed copy of Mr Clark’s bail bond dated 8 March 2024. Bail has continued on those conditions up until his arrest yesterday.

[28]      However, as Mr Taffs points out, even if the bail bond had not been signed, it did not make Mr Clark’s bail unlawful. Mr Clark plainly understood the terms of his EM bail. I also note he has twice sought to vary those EM conditions, which reinforces Mr Taff’s submissions. Furthermore, EM bail is imposed as an alternative to a remand in custody. If Mr Clark is not subject to EM bail, the alternative would be a remand in custody.

[29]      The balance of the issues raised by Mr Clark simply repeat the arguments raised in the 29 July 2024 hearing. Under s 15(1) of the Act Mr Clark is precluded from advancing these arguments as they raise “substantially the same questions as those considered by the Court when the earlier application was refused.”

[30]      To the extent Mr Clark again challenges the lawfulness of his convictions, I reaffirm my view that an application for a writ of habeas corpus is not the appropriate procedure for considering those allegations. Mr Clark has rights of appeal which he can pursue.7

6      Clark v New Zealand Police [2024] NZSC 106.

7      Habeas Corpus Act, s 14(1A)(b).

Result

[31]      Circumstances have now overtaken the application for writ of habeas corpus because Mr Clark is no longer subject to EM bail, but is in custody. I therefore decline the application on this basis.

Solicitors:

Crown Solicitor, Christchurch

Copy to: Mr Clark