Kissling v Crown Prosecutions Palmerston North District Court Registry

[2020] NZHC 150

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2020-454-9

[2020] NZHC 150

UNDER

the Habeas Corpus Act 2001

IN THE MATTER OF

an application for a writ of habeas corpus

BETWEEN

JAMIE RONAKI KISSLING

Applicant

AND

CROWN PROSECUTIONS PALMERSTON NORTH DISTRICT COURT REGISTRY

Respondent

Teleconference:

12 February 2020

Appearances:

J R Kissling in person

D Jones for the Respondent

Judgment:

13 February 2020

JUDGMENT OF COOKE J

[1]                  Mr Kissling is currently remanded in custody. By undated application received by the Court on or about 11 February 2019 he has applied for habeas corpus under the Habeas Corpus Act 2001. The application was referred to me in my capacity as Duty Judge. Given  the  priority  to  be  accorded  such  applications,  by  minute  dated  11 February 2020 I asked that a hearing by telephone take place at a time convenient to Mr Kissling and counsel representing the Crown, if possible on 12 February 2020. A hearing by telephone was convened at 2.15 pm yesterday.

[2]                  The basis for the habeas corpus application is set out in Mr Kissling’s writ. In addition prior to the conference Mr Jones was able to file brief submissions. When the telephone conference was convened Mr Kissling reported he had not received

KISSLING v CROWN PROSECUTIONS PALMERSTON NORTH DISTRICT COURT REGISTRY [2020]
NZHC 150 [13 February 2020]

those submissions, but as they were only one and a half pages long I was able to summarise the essential pointed made in them.

The detention

[3]                  Mr Kissling currently awaiting sentencing for certain offending, which is currently scheduled to take place on 2 March 2020. On 23 December 2019 the District Court remanded him in custody. Mr Kissling explained that his bail had earlier been revoked in August, but I accept Mr Jones’ point that his most recent detention arises as a consequence of the 23 December 2019 decision. In those circumstances I accept Mr Jones’ submission that an application for habeas corpus is not the correct procedure for determining challenges to bail. Decisions in relation to bail arise under the Bail Act 2000 and must be dealt with in accordance with the procedures contained in that Act.

[4]Section 14 (2) (b) of the Habeas Corpus Act 2001 provides that:

(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; but this subsection does not entitle a Judge to call into question—

…

(b) a ruling as to bail by a court of competent jurisdiction.

[5]                  In Leapepe v Chief Executive of the Department of Corrections the Court of Appeal said:1

[29]   In Taylor v Superintendent, Waikato Bay of Plenty Regional Prison, this Court ruled that the effect of s 14(2)(b) was to prohibit examination of bail decisions, in the context of an application to issue a writ of habeas corpus. Ms Magnussen seeks to distinguish Taylor on the grounds that it dealt squarely with a bail decision, whereas her application was directed to the decision to recall, made independently of the earlier bail decision.

[30]   In our view, s 14(2)(b) cannot be construed so narrowly. The subsection deals with “rulings” as well as decisions. The point of s 14(2)(b) is to ensure that bail decisions are dealt with under the statutory regime set out in the Bail Act 2000. Parliament has

1      Leapepe v Chief Executive of the Department of Corrections [2012] NZCA 296.

decided that it is unnecessary and undesirable to superimpose the habeas corpus jurisdiction over that regime.

[6]                  I put this to Mr Kissling. He said that his whole detention had been invalidated from the outset for various reasons, and it was not just the decision of the Judge in December that was in issue. I understand the nature of Mr Kissling’s complaints, but the fact is that he is currently detained as a consequence of the bail decision made on 23 December 2019. Therefore it seems to me that Mr Jones’ point is unanswerable.

[7]                  Mr Kissling explained he was not currently legally represented, and towards the end of the hearing asked for his application to be adjourned so he could take legal advice, which he currently intends to do on Monday. He referred to a number of instruments that gave him the fundamental right to legal advice, including under the New Zealand Bill of Rights Act 1990. Mr Jones said that whilst the Crown would normally consent to the adjournment, the matter here was straightforward, and he did not think an adjournment was necessary.

[8]                  On checking with Mr Jones it is apparent that, should Mr Kissling’s legal advice be that he has some proper basis to bring a writ for habeas corpus then a fresh application could be made. At the moment I see the point made by Mr Jones for the Crown as unanswerable, and conclude that the application should be dismissed.

[9]                  I therefore indicated at the conclusion of the hearing that I would decline the writ of habeas corpus and issue the reasons in writing. These are my reasons.

[10]              I record that Mr Kissling asked for a transcript of the hearing to be provided to him. I explained that that could not occur because telephone conferences were not recorded for that purpose.

Cooke J