Kissling v Chief Executive of the Department of Corrections

[2020] NZHC 291

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2020-454-12

[2020] NZHC 291

BETWEEN

JAMIE RONAKI KISSLING

Appellant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

26 February 2020 (via AVL)

Appearances:

Appellant in Person

D Jones for Respondent

Judgment:

26 February 2020

JUDGMENT OF CLARK J

Introduction

[1]                  Mr Kissling is currently detained, awaiting sentence.  His sentencing date is  2 March 2020. Mr Kissling was most recently refused bail on 23 December 2019.

[2]                  This is Mr Kissling’s second application for habeas corpus. His first application was declined by Cooke J on 12 February 2020 for reasons delivered on 13 February 2010.1

The current application

[3]                  Mr Kissling has included in his application as parties to be  served,  the  Prime Minister, Crown Prosecutions Palmerston North, Palmerston North District Court Registry, the Attorney-General, the Chief Executive of Corrections and the

1      Kissling v Crown Prosecutions Palmerston North District [2020] NZHC 150.

KISSLING v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 291

[26 February 2020]

Department of Birth Registry (which I take to mean the Department of Internal Affairs).

[4]                  Mr Kissling advances 17 grounds for a writ of habeas corpus. At the hearing Mr Kissling spoke to his written submissions and to his further document received on the morning of the hearing, replying to the memorandum filed on behalf of the respondent.

[5]  It is not necessary to go into the detail of the grounds relied upon. Mr Kissling agreed that his primary concern is one of natural justice in relation to his trials. In the application which Cooke J determined, Mr Kissling sought an adjournment of his sentence so as to avoid a miscarriage of justice and an abuse of process. Mr Kissling contends his first trial on 24–25 May 2018 was unfair for a range of reasons. He maintained his innocence right through to his second trial during which he “foolishly” accepted improper legal advice offered by his second defence lawyer. As a consequence, he pleaded guilty to an offence he did not commit and did not understand the relevance of a document he initialled. Mr Kissling says these trial improprieties are before the Court of Appeal.

Discussion

[6]                  On the morning of the hearing I requested a copy of the warrant pursuant to which Mr Kissling is detained. Mr Kissling asked during the brief hearing whether I thought his application  had merit.  I appreciated the courteous manner  in which   Mr Kissling received the no doubt, disappointing response. The Court will not issue a writ of habeas corpus where the applicant is being detained pursuant to a valid warrant issued by a court of competent jurisdiction.2

[7]  Mr Kissling  is  detained  under  a  warrant  issued  by  Judge  Crayton  on  26 November 2019 pursuant to s 168(4) of the Criminal Procedure Act 2011.

[8]                  The production of apparently regular warrants will not always be the complete answer to a habeas corpus application. But this is not one of the rare cases in which

2      Misiuk v Chief Executive of the Department of Corrections HC Auckland CIV 2011-404-1346, 14 March 2011.

the habeas corpus procedures permit the Court to inquire into an apparently regular warrant.3 Nor does Mr Kissling challenge the validity of the warrant on administrative law grounds or otherwise.

[9]                  The proper course is for Mr Kissling to prosecute his appeal against conviction. He understands the hearing  is  to  proceed  on  18  March  2020.  I  confirmed  to  Mr Kissling that he will be able to raise in the context of his appeal, his many concerns about the fairness of his trial.

[10]              Mr Kissling seeks to be released on an interim basis, citing in support s 11 of the Habeas Corpus Act 2001. I brought to Mr Kissling’s attention subsection (2) which provides that the Court “must not make an order” under that provision if it is of the opinion bail would not be granted.4 In my view, as at the date of this hearing, bail would not be granted. Bail has been refused. I do not understand that refusal to have been appealed. Mr Kissling is due for sentence in a few days’ time. There is no material before the Court constituting a basis for granting bail, particularly this close to sentence.5

Result

[11]For the foregoing reasons the application for habeas corpus is dismissed.

Karen Clark J

Solicitors:

Crown Law Office, Wellington for Respondent

3      Misiuk v Superintendent of Penal Institution [2010] NZCA 480 at [30]–[31].

4      Habeas Corpus Act 2001, s 11(2).

5      Bail Act 2000, s 13(3)(b).