Mather v Chief Executive of the Department of Corrections

[2023] NZHC 3818

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-802

[2023] NZHC 3818

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

ALEXANDER JOHN MATHER

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	19 December 2023
Counsel:	M Pillay, lay advocate for Applicant S J Leslie for Respondent
Judgment:	20 December 2023

JUDGMENT OF RADICH J

[1]    On 18 December 2023, the applicant applied for a writ of habeas corpus. Presently, he is  remanded in custody, after the trial of the charges he faces was, on  6 December 2023, aborted and pending his retrial which, currently, appears to be scheduled for 29 January 2024. As I indicated at the conclusion of the hearing of the application, I am satisfied that the application cannot succeed because, for the reasons I go on to give, there is no illegality in the applicant’s detention.

Background

[2]The applicant faces the following charges:

MATHER v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 3818

[20 December 2023]

(a)one representative charge of assault on a person in a family relationship under s 194A of the Crimes Act 1961 (CRN 21085001510);

(b)one representative charge of suffocation under s 189A(a) (CRN 21085001511);

(c)one charge of strangulation under s 189A(b) (CRN 21085001512);

(d)one charge of assault with a weapon under s 202C(1)(a) (CRN 21085001513);

(e)one representative charge of indecent assault under s 135 (CRN 21085001516); and

(f)two charges of sexual violation by unlawful sexual connection under  s 128(1)(b) (CRN 21085001766 and 21085000618).

(the Crown charges)

[3]    The charges carry a maximum penalty of between two and 20 years’ imprisonment.

[4]    In addition, the applicant faces a judge-alone trial on two police charges of breach of a protection order under s 112 of the Family Violence Act 2018, each of which has a maximum penalty of three years’ imprisonment (CRN 23096002608 and 23096002609). (the police charges).

[5]    The applicant’s trial on the Crown charges began on 4 December 2023. Before that time, he had been granted bail to an Auckland address.

[6]    On the third day of the trial, Judge Phillips granted the applicant’s counsel leave to withdraw from acting for the applicant and then discharged the jury and declared the trial to have been aborted.1 The applicant has said in his application for

1      R v Mather [2023] NZDC 27470 – Ruling 4 of Judge K J Phillips, 6 December 2023.

the writ that his counsel had refused to follow his instructions to his counsel and that leave ought not to have been granted to enable his counsel to withdraw.

[7]    Upon the trial being aborted, the applicant sought bail simpliciter. The Crown opposed bail but indicated that it would not oppose electronically monitored bail. The Judge remanded the applicant in custody pending an EM bail application, which he set down for hearing as a part of a pre-trial callover, on 14 December 2023. In doing so, the Judge found that bail simpliciter would not be appropriate as it would not satisfy the terms of the Bail Act 2000 in relation to both the complainant’s safety and risk.

[8]    It would appear that the Judge’s order has not been appealed. The applicant was  held  in  custody  under  a  warrant  to  detain  until  his  next  appearance  on  14 December 2023.

[9]    He  appeared  before  Judge  Harrop  on   14   December,   represented   by Mr Castelino. An EM bail suitability assessment could not be completed in time for the 14 December hearing and so Judge Harrop remanded the applicant in custody until 8 January 2024, but with provision for an earlier date if it proves possible. In giving that direction, the Judge observed that the applicant had not applied for bail simpliciter.

[10]   As a consequence, the defendant is now held in custody pursuant to a separate warrant to detain until his 8 January (or earlier) appearance.

[11]   Separately, the applicant is detained under a warrant issued on 18 December 2023 by Judge Mika in the Hutt Valley District Court in relation to the police charges pending an appearance on 15 January 2024.

The position of the parties

[12]   The applicant’s written application is long and raises challenges to a number of procedural steps in the District Court proceedings including the grant of leave to the applicant’s counsel to withdraw, the decision to abort the trial, the EM bail hearing direction and procedural aspects of the decision that led to his remand in custody. A

breach of s 25(c) of the New Zealand Bill of Rights Act 1990 is raised – the right to be presumed innocent until proved guilty according to the law.

[13]   However, as Mr Pillay2 confirmed during the hearing, the primary point that is advanced for the applicant is expressed in para 83 of the written application, which is in the following terms:

83. Mr Mather submits that the arbitrary ruling of 6 December 2023 remanding him in custody in these circumstances satisfies criteria for a writ of Habeas Corpus and that an urgent interim order for bail simpliciter is not unreasonable nor unusual within the history and context of his case despite the ruling of Judge Phillips or the positions taken by the Crown or New Zealand Police.

[14]   The respondent says that the application is made on grounds that are in substance a challenge to underlying factual matters, the subject of Judge Phillips’ bail decision of 6 December 2023. It is said that the grounds advanced are matters to which the warrant to detain relates and need to be determined by way of bail application or appeal. It is said that the applicant is lawfully detained under a valid warrant and that the warrant is a complete answer to his application.

Analysis

[15]   It is correct to say that the warrant to detain the defendant, which is valid, provides a complete answer to the application. Under s 6 of the Habeas Corpus Act 2001 (the Act), an application for a writ of habeas corpus challenges the legality of a person’s detention. Under s 14 of the Act, if the defendant fails to establish that the detention is lawful, then the Court must grant a writ ordering the release of the detained person as a matter of right. Under s 14(2)(b), a Judge is not entitled to call into question a ruling as to bail by a court of competent jurisdiction.

[16]   As the Court of Appeal has said, the existence of a warrant of detention has an important effect and it would be necessary, in the face of a warrant, for an applicant

2 As the applicant’s lay advocate – and for whom I granted leave to appear under s 27(1)(b)(ii) of the Lawyers and Conveyancers Act 2006.

for habeas corpus to demonstrate that the warrant did not in fact provide lawful justification in the particular circumstances.3

[17]   I am satisfied that the grounds advanced for this application seek to challenge assessments made that resulted in the 6 December 2023 decision declining the applicant’s readmission to bail simpliciter and which resulted in a valid warrant to detain. Unlike an appeal court, there is no basis for me in the face of an application such as this to consider the merits of the application – and the procedural issues advanced by the applicant, including those mentioned in [12] above – do not fall within the Court’s habeas corpus jurisdiction.

[18]   The applicant’s EM bail application is soon to be heard. In the event that it is not granted, he has the ability to make a further application for bail simpliciter. And he has appeal rights in relation to past and upcoming bail decisions. They are the avenues though which issues of the type advanced by the applicant in this application may be raised.

Outcome

[19]For these reasons, the application for a writ of habeas corpus is declined.

Radich J

Solicitors:

Luke Cunningham Clere, Wellington for Respondent

3      Bennett v Superintendent Rimutaka Prison [2002] 1 NZLR 616 (CA) at [70] and see Manuel v Superintendent of Hawkes Bay Regional Prison [2006] 2 NZLR 63 where the Court said that it would be a rare case where habeas corpus procedures would permit a Court to inquire into challenges on grounds which lie upstream of apparently regular warrants.